IMM-1-97
B E T W E E N:
ANGEL
JUAN FERNANDEZ AMPUERO
Applicant
-
and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR ORDER
REED, J.:
The applicant seeks to have a decision of the Convention
Refugee Determination Division of the Immigration and Refugee Board set aside.
That decision found him not to be a convention refugee.
Counsel for the applicant argues that the Board
misconstrued the evidence and made negative inferences based on those
misconstructions. He also argues that the Board found parts of the applicant's
evidence implausible when there was no reason to find it to be so.
The applicant was employed in an administrative capacity
(architect) with the National Police in Oruro, Bolivia. He had been in such
employ since 1981. His evidence was that, while he was on assignment in
Pisiga, at the Chile/Bolivia border, on April 16, 1995, he and two friends
overheard UMOPAR (officers of the U.S. - backed Bolivian Narcotic Police Force)
discussing a drug transaction with a truck driver who seemed to be transporting
sulphuric acid into Bolivia from Chile. Sulphuric acid is used to process
cocaine. The truck driver and the officers were allegedly discussing bribes
and payoffs going all the way up to the commander of UMOPAR. The applicant
stated that he and his companions were discovered by the officers and
threatened that they would be killed if they revealed what they had heard. He
states that he reported these events to his departmental commander, Colonel
Garcia, the day after his return to Oruro from Pisiga. His reporting of this
event subsequently led to his arrest by UMOPAR officers, beatings by them and
an attempted transfer by truck to Cochabamba. In the course of that transfer
he escaped and eventually entered Canada.
The Board's rejection of the applicant's claim focused on
three aspects of the evidence: (1) the applicant's reporting the events of
April 16, 1995 to his superior (the departmental commander), Colonel Garcia,
when he suspected that his superior was involved in police corruption; (2) his
explanation of how he had escaped from the UMOPAR officers; (3) his failure to
contact his brother who was in Canada and who had also escaped from Bolivia and
sought refugee status here.
It is important to note, first, that the
Federal Court when reviewing decisions of Federal tribunals and decision makers
does not evaluate the evidence de novo. Section 18.1 (4) (d) of the
Federal Court Act provides that decisions are only set aside, as a result
of the mis‑characterization of factual matters where the Court:
is satisfied that the federal board, commission or
other tribunal ... based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or without regard for the
material before it; (underlining added)
With respect to the
first area in which the Board found the applicant's evidence not to be
credible, it stated that the applicant had a "deep knowledge" of
police corruption and that the events he encountered on April 16, 1995 would
not have been considered by him to be extraordinary. Counsel argues that
characterizing the applicant's evidence as demonstrating that he had a
"deep knowledge of corruption practices" is a mis‑characterization
of the evidence. It is argued that the evidence discloses that the applicant
had suspicions that the police were involved in the drug trade and that members
took bribes to facilitate that activity.
The transcript
reveals that the applicant said he had "deep concerns" about
corruption in the police force. It also reveals that he stated on several
occasions that he knew of the corruption and that he had for many years
operated on the basis that he could not trust anyone in the police force. He
also suspected his supervisor of being involved in the corruption.
It may be that the
use of the word "deep" in connection with "knowledge" is a
bit of an overstatement of the evidence but it would be erroneous for a
reviewing Court to treat this as an error that justifies setting the decision
aside, in the light of the evidence as a whole. Whether the Board
characterized the applicant's awareness of corruption, as suspicion or
knowledge, as deep or more superficial, is secondary to the central element of
its conclusion. The Board did not believe that a person who had such knowledge
or suspicions would report the incidents of April 16, 1995, to his supervisor,
especially, when he suspected the supervisor of also being involved in corruption.
I will quote the relevant portions of the transcript:
RCO But, why, knowing
the extent of the corruption, knowing the inability to trust anyone in the
police force, would you have chosen to report one incident, one set of
suspicions and not the other? [the other refers to his failure to report his
suspicion that one of the friends who had been with him on April 16, 1995, had
not committed suicide but had been murdered]
CLAIMANT Can you say that
again, please:
RCO Well, you were
able to relay your fears or suspicions about how you couldn't trust anyone in
the police force and go to your department commander, go to your colonel
Wilfredo Garcia, your departmental commander to report what happened in Pisiga,
but ---
CLAIMANT Yes, he was my
superior and it was one of my duties to keep him informed.
RCO I'm just trying
to wonder in my own mind, to seek clarification from you as to why you'd report
that first incident in Pisiga, but not what you had strong suspicions about
regarding Mario's death.
CLAIMANT Yes, I had
assessed the facts and I'd realized that almost everyone was now part of this
corruption and I could not afford to trust anyone. Even more so, after Mario's
death.
RCO So then, was
there in fact a change in your perceptions between the visit ---
MACADAM Well, I just
wonder if we could just pursue that and I'm still not clear. Earlier sir, you
said that you suspected Garcia of being involved in this kind of corruption and
so I'm still not clear, why --- why did you --- certainly you' ve had to give a
report on the reason you went to Pisiga, but why --- why not simply omit from
your report any reference to this drug thing, especially if you suspected
Garcia of being involved in it?
CLAIMANT Yes, it was my
life and my personal and physical integrity that was at risk because of what I
have been told in Pisiga. That made me anxious.
MACADAM Well, maybe you
don't understand the question, sir, because what you've just told me doesn't
answer the question. So, I'll try it one more time. You've told us that you
suspect Garcia of being involved in this corruption. So, I can understand that
you had to give a report to him on the reason you were sent to Pisiga and
presumably, that's the drawings for the new station. But, based on what you've
told us, there was no reason that you would have to tell him that you saw this
drug transaction or what --- so why would you mention it at all to him in those
circumstances?
CLAIMANT I just want to
know whether he was aware of this and if his reaction would be different.
Because, had he not been part of the corruption, he would in turn, report to
his superiors.
Another finding of
the Board that relates to the April 16 incident and for which it is stated
there is no support, is the Board's conclusion that given the applicant's
knowledge, he would not have considered the events of April 16, 1995, to be
extraordinary. He stated in his evidence that while he had been aware of
corruption in the police force relating to the drug trade he had not personally
encountered it before April 16, 1995. His evidence was that he was surprised
at hearing the conversation, and stunned to receive death threats. The Board
wrote:
In view of his experience and contacts, the
panel is not persuaded that the claimant could have considered the event to
be extraordinary. (emphasis added)
The Board did not
misconstrue the evidence. There is no reason to think that it did not
understand what the applicant had said. It simply did not believe the
applicant's evidence. It was not persuaded to believe the applicant's
assertion that he had been surprised and stunned. This type of assessment of
the evidence is particularly within the scope of the Board's authority. It is
the Board who sees and hears the witnesses and who has considerable experience
in assessing these types of cases. I could not find that the Board erred in
the conclusion it reached.
The second area in
which the Board did not find the applicant's evidence credible was his evidence
about how he escaped. He and one of the companions who had witnessed the April
16, 1995 events, Carlos, were arrested, the other companion, as noted, having
been killed (or committed suicide). The applicant and Carlos were being
transferred to Cochabamba for disciplinary action. The truck stopped on route;
the applicant did not know why. The UMOPAR officers let him and his companion
out of the truck; he did not know why. The applicant and Carlos ran away. He
was a marathon runner and escaped. His companion was killed. He was assisted
by an athletic club and left Bolivia to participate in a marathon. The club
made the arrangements for him. The Board stated that the "claimant's
evidence concerning his escape on foot and Carlos' death is implausible".
Counsel for the
applicant argues that it would be unreasonable for the applicant to know why
the truck stopped and why the UMOPAR officers let the two of them out of the
truck - that would be speculation on his part. Counsel also argues that the
Board ignored the fact that it was dark and the location in question was in
rough and rocky terrain. The Board's decision reads, in part:
The claimant did not give persuasive evidence
concerning Carlos' death and his own escape on this occasion. The UMOPAR
agents stopped the truck for no apparent reason and allowed the claimant and
Carlos out of the truck. The claimant was able to successfully run from the
captors though Carlos was hit by bullets as he ran. While the panel has
considered the claimant's experience as a marathon runner in this matter, we
are not satisfied that this evidence is probably true. It is not plausible
that three UMOPAR agents clandestinely transporting two witnesses to UMOPAR
corruption would allow those witnesses to escape in the manner described by the
claimant.
I do not believe the
Board ignored the evidence about the nature of the terrain and the time of
night. It simply did not believe an unarmed man could escape from three armed
officers. This is a matter of credibility which a Court, on review of a
tribunal decision, does not set aside lightly. I do not find there to be
grounds that would allow me to set the decision aside as a result of the
Board's conclusions on this aspect of the evidence.
Lastly, the Board's
conclusion that it was not credible that the applicant had not contacted his
brother before leaving Bolivia is again a question of credibility and a
weighing of the evidence. The Board did not ignore the applicant's explanation
as to why he did not contact his brother. It simply disbelieved him. This is
not a situation in which a reviewing Court is entitled to set aside the Board's
decision.
For the reasons
given this application must be dismissed.
"B.
Reed"
Judge
Toronto, Ontario
October 2, 1997
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