Date: 20070829
Docket: IMM-402-07
Citation: 2007 FC 868
Montréal, Quebec, the
29th day of August 2007
Present:
the Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
ANDRES ALEJANDRO RAMIREZ
CEVALLOS
CARMEN GERARDA RAYGADA TRELLES
DANIELA EUGENIA RAMIREZ RAYGADA
and
DIEGO ANDRES RAMIREZ RAYGADA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
case at bar concerns an application for judicial review filed pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), from a decision by the Immigration and Refugee Board,
Refugee Protection Division (the Board), on January 3, 2007 which had the
effect of dismissing the applicants’ claim for refugee status.
[2]
The
applicants are asking this Court to set aside the Board’s decision and order
that the matter be sent back for hearing before a panel of different members.
Facts
[3]
The
principal applicant, Andres Alejandro Ramirez Cevallos, his wife, Carmen
Gerarda Raygada Trelles, and their children, Daniela Eugenia Ramirez Raygada and
Diego Andres Ramirez Raygada, are all citizens of Peru. They
arrived in Canada on March 19, 2003, and on that
date claimed refugee status.
[4]
The
facts on which the application is based arose when the principal applicant
created a charitable organization known as the “Junta Vecinal Talarita” in the
town of Piura in Peru.
[5]
In
2002, in connection with his position as president of that organization, the
principal applicant approached the parliamentary representative for the region,
one Humberto Requena Oliva (representative Requena) seeking funds to establish
programs to assist the needy. Representative Requena allegedly promised
financial assistance if he submitted his application with 200 signatures, and
this was done. However, the representative’s promise never materialized.
[6]
On
November 28, 2002, when the applicant went to the representative’s office to
inquire about his application for financial assistance, the latter’s secretary
told him the money had in fact been received by the representative but he had
used it for other purposes.
[7]
Shocked
by the turn of events, the applicant said he then accused the representative of
embezzlement and abuse of authority. He said he even filed a complaint with the
public prosecutor’s office and the mayor of Piura, but the
latter refused to intervene.
[8]
From
that time onwards, the applicant said he was threatened by the police, who he
said arrested him on false charges and tortured him. The applicant also alleged
that his eldest son was attacked by plainclothes police officers.
[9]
The
applicant said he then resigned his employment and moved to his uncle’s
residence to get away from his attackers. At the same time, the applicant’s
wife said she hired a lawyer to get information about the investigation
concerning her husband, but with no success.
[10]
Some
time later, the applicant said he was again the victim of threats. The
applicant and his family accordingly took the necessary action to obtain
passports and fled to Lima, where they said their attackers located
them and threatened them again. The applicants accordingly left Peru for Canada on March 15, 2003 and arrived
on March 19, 2003.
[11]
It
should be noted that the applicants’ refugee status claim was denied by the
Board once on September
2, 2004,
but that decision was set aside by Sean Harrington J. of the Federal Court, who
referred the applicants’ file back for reconsideration.
Impugned decision
[12]
On
January 3, 2007 the Board again dismissed the applicants’ refugee status claim
on the ground that it did not believe the essential points in the principal
applicant’s story.
[13]
Although
the Board accepted that the applicant had created a charitable organization in Piura and might
have had some problems with a representative who promised him financial
assistance, it did not believe that the applicant was the subject of reprisals
on account of those problems.
[14]
The
Board’s doubts turned, inter alia, on the lack of evidence submitted by
the applicant regarding the embezzlement complaint he allegedly filed against
representative Requena. In view of the lack of documentary or other evidence to
corroborate the applicant’s story, the Board found it hard to accept that
representative Requena, a member of the Frente Independiente Moralizador (FIM)
party, an opposition party, felt the need to pursue the applicant and have him
threatened and arrested by the local authorities.
[15]
There
is also the fact that representative Requena, like the other members of his
party, was defeated in the elections of April 9,
2006,
thereby in the view of the Board losing any power over the local authorities.
In these new circumstances, the Board considered that the applicants could not
only return safely to Peru, but that the principal applicant could
even, if he wished, proceed with his embezzlement complaint against former
representative Requena.
[16]
While
the Board accepted the medical evidence submitted by the principal applicant,
indicating injuries suffered by himself and his son, it noted that such evidence
did not in itself establish that the injuries were inflicted by police officers
at representative Requena’s request.
[17]
The
Board attached no evidentiary value to Exhibits P-20, P-21, P-24 and P-30,
letters of support to the applicant from members of his family, on the ground
that these were not impartial documents. It also rejected Exhibit P-30, an
information filed by the applicant’s uncle on October 5, 2006, since the
Board thought it unlikely that the applicant was still being sought by the
authorities four years after his departure from the country. However, the Board
noted that the latter document contradicted document P-29, which stated that as
of May
25, 2004
no criminal or investigative reports existed against the applicant.
[18]
Finally,
the Board noted that the applicants could readily relocate elsewhere in Peru, since their
persecutor, former representative Requena, is no longer in a position of
authority and has no means of locating them.
Issue
[19]
The
only question raised in the case at bar is whether the Board erred in its view
of the facts.
Standard of review
[20]
It
is settled law that the standard of review applicable to questions involving
the weighing of facts and findings on credibility is patent unreasonableness (Aguebor
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732
(QL)).
Analysis
[21]
The
applicant maintained in the case at bar that the Board had erred in its
assessment of the evidence put forward.
[22]
First,
he stressed that the Board erred when it stated that representative Requena
refused to give the organization of which he was president a grant. The
applicant is right, since his testimony always indicated that the grant came
not from the representative, but from international and/or government aid, and
that representative Requena had not refused to give his association a grant.
The issue also was always whether the representative had diverted money
intended for his association.
[23]
In
the respondent’s opinion, the question of the source of funds is not relevant
here. After re-reading the Board’s reasons, the Court concurs in its view on
this point. The reasons show very clearly that the Board did not pay undue
attention to the source of the funds intended for the association of which the
applicant was president, and accepted the fact that he could have had problems
with the representative as the result of embezzlement.
[24]
The
applicant further maintained that the Board erred in concluding that he had no
evidence representative Requena had diverted funds intended for him. However,
for his part the respondent properly pointed out that the applicant himself
admitted that he had no evidence to show that the representative had diverted
funds intended for his association and no documentary evidence to show that a funding
application had in fact been submitted to the representative.
[25]
Inasmuch
as the applicant admitted in his testimony that he had no evidence to
corroborate his allegations of embezzlement against representative Requena, the
Board can hardly be blamed for concluding as it did.
[26]
The
applicant further submitted that he gave more than sufficient explanation to
justify the refusal of other members of the association to report the
representative, namely their fear of reprisals. However, the Board did not in
any way reject the applicant’s explanations of the reasons behind the refusal
of other members of the association to file complaints. The respondent further
maintained that this point was only noted by the Board in order to assess the
likelihood of the applicant’s allegations, namely that the representative
feared allegations of embezzlement by the applicant and for that reason felt he
needed to persecute him.
[27]
The
approach taken by the respondent is confirmed simply by reading the Board’s
reasons. What mattered to the Board was the fact that, in view of the lack of
evidence from the applicant, his complaint had not been accepted, regardless of
the fact that other members of the association had refused to file complaints.
In such circumstances, it became unlikely that the representative felt a need
to silence the applicant. The reasons explaining the refusal of members of the
association to assist the applicant in his actions were of no relevance in the
reasoning employed by the Board.
[28]
The
applicant then submitted that the Board was wrong to conclude that the mayor
and prosecutor had refused to accept his complaint, since the evidence says
nothing about this.
[29]
For
his part, the respondent submitted that the applicant’s Personal Information
Form (PIF) mentioned the fact that the applicant had tried to file a complaint
both with the prosecutor and the mayor and that both had refused to accept the
complaint. On its face, the applicant’s PIF confirms the respondent’s
submissions and makes it difficult to dispute this finding by the Board.
[30]
The
applicant further submitted that the evidence put forward did not allow the
Board to conclude that the FIM was an opposition party. Although the evidence
before the Board did not mention it, the applicant contended that the president
of the FIM was a very good friend of the party in power, the Peru Possible party.
[31]
The
respondent considered that in fact the documentary evidence allowed the Board
to conclude that the FIM was an opposition party, in the sense that in the 2001
elections the PP party had obtained 53.1 percent of the vote in the
presidential elections; with one exception, the cabinet was formed solely from
members of that party; the FIM received only 9.9 percent of the vote; and the
PP party won 45 out of 82 seats and the FIM 12. What is more, the most recent
evidence indicates that the FIM won no seats in the Congress in the 2006
elections.
[32]
The
evidence that the FIM and the PP party were in fact allied, referred to by the
applicant in his written argument, was not before the Board. Accordingly, it is
hard for the Court to use evidence which the Board did not have as a basis for
concluding that the Board was patently mistaken. On the contrary, the evidence
in the record which was analysed by the Board actually supports its conclusion
that the FIM was only a minority party within the government.
[33]
The
applicant further submitted that the Board wrongly found that it was not
plausible for the representative to have sent persons to find him and that the
latter had no reason to go after him, as these conclusions were not supported
by the evidence. The applicant added that the evidence before the Board did not
in any way establish that the other FIM members were defeated in the
April 2006 elections. The applicant further argued that the Board could
not validly conclude he would be in a good position if he went back to Peru. In support
of this argument, the applicant referred the Court to a newspaper article which
mentioned the presence of former representative Requena in Congress in
September 2006.
[34]
In
response to these various arguments, the respondent noted first that the
applicant had the burden of establishing that his fear was valid. He added
that, inasmuch as the applicant confirmed at the hearing that representative
Requena had been defeated in the April 2006 elections and no FIM members had
been in Congress since those elections, the applicant could not reasonably
contend that he feared the Peruvian authorities on account of the
representative’s authority over them. The respondent further noted that the
only evidence of political activity by former representative Requena since the
2006 elections was his presence at the submission of a project to Congress.
Thus, in the respondent’s submission, the Board was entirely justified in
concluding that representative Requena had lost his influence over the Peruvian
authorities.
[35]
The
Court concurs in the viewpoint adopted by the respondent. The documentary
evidence supports it, and in fact the applicant admitted it: representative
Requena was defeated in the last elections. Additionally, Exhibit P-2, which
consists of a press review dealing with the elections held in Peru in 2006,
confirms that the FIM was unable to elect any of its members to Congress. From
this standpoint, the Board could reasonably conclude that it was unlikely the
applicant would be threatened by former representative Requena, since the
latter had no political influence over the existing authorities.
[36]
The
applicant further argued that the Board erred in not attaching any evidentiary
value to Exhibits P-16 and P-17, medical reports mentioning the injuries he and
his son had sustained. The applicant in fact contended that these documents had
never been disputed and that the Board should have taken them into account in
weighing the facts.
[37]
This
argument does not stand up, as on the contrary the Board took this evidence
into account in its assessment of the facts, but in view of its conclusions on
the credibility of the applicant’s story it was right to say that the documents
only showed that the applicant and his son had both been injured, without
establishing that their injuries were caused by persons in the pay of
representative Requena.
[38]
The
applicant then argued that the Board erred when it concluded that the
information filed by the uncle on October 5, 2006, Exhibit P-30, contradicted
Exhibit P-29, a document establishing that as of December 17,
2002
no criminal or investigative report related to the applicant.
[39]
The
Court does not see how these two documents contradict each other. However, this
conclusion by the Board is not the principal basis for rejecting Exhibit P-30,
as it appeared that Exhibit P-30 was rejected not on this ground but because
the Board considered it unlikely that the applicant was still being sought by
the authorities four years after leaving the country. Accordingly, the error
noted by the applicant is not conclusive as such.
[40]
Finally,
the applicant submitted that the Board erred in deciding that the applicants
could relocate elsewhere in Peru without fear of being located by the
former representative, since the latter had no further political power over the
authorities. In support of this argument, the applicant maintained that the
former representative is still active in politics and so still has power over
the authorities.
[41]
After
re-reading the evidence and the Board’s decision, and weighing the pros and
cons of the two parties’ arguments, the Court finds no unreasonable error that
would justify its intervention in the case at bar, especially as the assessment
of the facts and the conclusions to be drawn from them very largely depend on
the credibility given to the oral evidence heard. The Board, which heard this
evidence, was in a better position to assess the evidence, and the applicant
did not persuade the Court that its assessment was unreasonable.
[42]
For
these reasons, therefore, the Court must dismiss the application, and since the
parties properly submitted no questions for certification, no question will be
certified.
JUDGMENT
THE COURT ORDERS that:
- The application is
dismissed;
- No question is
certified.
“Maurice E. Lagacé”
Certified
true translation
Brian
McCordick, Translator
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