Date : 20010608
Docket No : IMM-3890-00
Neutral Citation : 2001 FCT 628
Between:
MARTIN ORLANDO TELLO OSTOS,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
Muldoon, J :
1. Introduction
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, Chap. F-7 as am., for judicial review of a decision by a one-member panel of the Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD), dated June 28, 2000, refusing the applicant's application for Convention refugee status. The application came on for hearing in Toronto, on June 5, 2001.
2. Statement of facts
[2] The CRDD summarized the facts at page 2 of the decision:
The claimant testified that he was employed in a factory in Trujillo, Peru. The company which owned the factory had several other factories and close to 4,000 employees. The claimant joined the union and was elected to the position of Union Secretary of Organisation, an executive position in the union.
In the mid-1980's the Sendero Luminoso (SL) was at considerable strength and active in many parts of the country and targeted among others, trade unionists.
In 1986 the claimant received an envelope from the SL "requesting" the claimant to organise his section of the union to support the SL. This was brought to the attention of the union and the membership and the union decided not to support the SL citing the killing of union leaders and workers by the SL.
Later in 1986 the claimant received another communiqué holding him responsible for the failure of the union to support.
Several years later, in 1992, the claimant testified that he was taken by the SL to a beach, accused of not supporting the SL, and was beaten and burned with cigarettes. The SL demanded information about the factory.
The claimant testified that he received medical attention for the injury and reported it to the police. The claimant provided copies of medical and police reports in support of his claim.
Again in 1994, the SL demanded money from the claimant, stole the money he had on him, threatened him and fearing for his life the claimant closed his business.
The last incident occurred in October 1998 when the buyer of the claimant's home told the claimant that four men and two women had come to his home looking for the claimant.
The claimant subsequently left the country; his family remains in Peru.
[3] The CRDD identified two issues: whether the applicant had a well-founded fear of persecution by the Shining Path (Sendero Luminoso, or SL), and whether the applicant met the exceptional requirements in section 2(3) of the Immigration Act.
[4] The CRDD made the following findings at pages 3 and 4 of the decision:
While the SL continues to operate in Peru it is a much-diminished force. The U.S.Department of State Report for Peru (DOS) included the following observations:
The capture or death of several remaining terrorist leaders marked continuing progress in eliminating the once great threat posed by the Sendero Luminoso (Shining Path). The government further reduced the extent of its emergency zones which cover about 6 percent of the country and 5% of the population.
Reports of forced conscription by the MRTA (most of whose surviving members are jailed) and the greatly weakened Sendero Luminoso terrorist groups diminished significantly. However Sendero Luminoso continued to coerce indigenous people to join its ranks.
Sendero Luminoso continued to be a leading violator of the rights of the indigenous people. Isolated primarily along the Ene River in Junin department, Sendero Luminoso continued to coerce indigenous Ashaninkas to join its ranks. This practice resulted in further internal displacement in this region.
There is no mention in the DOS report of attacks by the SL against trade unionists.
Exhibit C-2 does refer to continued attacks by the SL as late as 1998 but these attacks occur in distinct areas in which the SL still maintains a presence including Hualanga and incursions into Lima. There are no reports of attacks in the Trujillo area.
The Amnesty International Report for 1999 for Peru observes that an armed operation by the SL and the MRTA "remained confined to isolated regions of Peru's rainforest".
Given the substantial reduction in the size, strength and capacity of the SL, the restriction of its activities to areas far removed from Trujillo, the presence of the claimant's family, who live without incident, the panel finds that there is no more than a mere probability that the claimant would be persecuted by the SL if he were to return to Trujillo or Lima.
In order for the panel to determine whether the claimant meets the requirements of section 2(3) of the Immigration Act the panel must first determine that the claimant met the requirements of section 2(1) of the Immigration Act, that subsequent events place the claimant within the parameters of section 2(2) of the Immigration Act.
Even assuming that this is the case the claimant's circumstances do not meet the exceptional requirements of section 2(3) of the Immigration Act.
The claimant was brutally beaten on one occasion and he has lost site (sic) in one eye. He suffers painful memories and is receiving counselling through a friend and the church.
His family remains in Peru. There is an absence of evidence that his return to Peru would give rise to severe psychological difficulties and he would be re-united with his family. Although the beating he endured was severe he remained in Peru for several years following this incident.
Without attempting to minimise the harm suffered by the claimant and his fear of persecution by the SL the evidence as presented is not a sufficient basis for the panel to determine that the claimant meets the exceptional requirements contained in section 2(3) of the Immigration Act.
For these reasons, the Refugee Division determined that Martin Tello Ostos is not a Convention Refugee.
3. Issue
[5] Did the CRDD err by disregarding evidence before it or by basing its findings on irrelevant considerations?
4. Applicant's submissions
[6] The applicant based his claim on a well-founded fear of persecution at the hands of the SL in Peru. He described a history of intimidation and violence by the SL towards himself and towards other similarly-situated persons. In October, 1998, there was a violent break-in at his former home in Trujillo by SL members who were looking for him. He fled Peru after this incident.
[7] The applicant submits that the CRDD did not make any adverse findings about his credibility, and therefore must be taken to have accepted his evidence as being credible. The CRDD denied the claim because the documentary evidence showed that the SL was substantially reduced in size, strength and capacity, and that its activities were restricted to areas which were far removed from Trujillo, and because the applicant's family continues to live in Peru without incident.
[8] The applicant submits that his family was never targeted by the SL, and that the harassment and persecution were directed only at him. That his family has not been persecuted is irrelevant, and the CRDD erred in basing its decision on this fact. [Salamat v. M.E.I. (1998), 8 Imm. L.R. (2d) 58 (F.C.A.).
[9] The applicant submits that the CRDD's most serious error arises from finding that the SL's activities were restricted to areas which were far removed from Trujillo. The documentary evidence belies this finding. The 2000 Human Rights Watch Report on Peru, which was before the CRDD, lists many areas in which the SL was active, sone of which were 200 to 300 kilometres from Trujillo. The CRDD also overlooked that the SL carried out an armed attack at his home as recently as October, 1998. Therefore, the CRDD's conclusions were incorrect because the SL did in fact conduct an operation against him in Trujillo. The applicant submits that this evidence undermines the conclusion that his fear was not objectively well-founded.
[10] In light of the SL's capability to carry out an armed attack in Trujillo, the applicant submits that the general reduction in the organization's resources and activities were irrelevant to his personal circumstances, and could not rationally support a conclusion that he was not at risk in Trujillo [Dhillon v. M.E.I. (1990), 12 Imm.L.R. (2d) 118 (F.C.A.).
5. Respondent's submissions
[11] The respondent submits that the evidence upon which this application is based, the affidavit of Hall Ahlfeld, a legal assistant to the applicant's counsel, does not address from personal knowledge the matters which the applicant is putting in issue. The affidavit merely attaches as exhibits the applicant's Personal Information Form and the Human Rights Watch Annual Report 2000 for Peru. No affidavit has been provided by Martin Tello Ostos, and as such, there is no sworn evidence regarding the factual basis for this application. Without a factual basis for the applicant's argument, this application should be dismissed.
[12] Moreover, the applicant has failed to show that the CRDD refused to consider any evidence, or that it ignored evidence, or that it made an erroneous finding with respect to the evidence, the respondent argues.
[13] The documentary evidence on which the CRDD relied was part of the total evidence which it could weigh for reliability and cogency. The CRDD is entitled to rely upon documentary evidence in preference to the applicant's evidence. The weight given to documentary evidence is a matter squarely within the domain of the CRDD if its reasons are reasonable and supportable by the evidence before it. [Hassan v. M.E.I.(1992), 147 N.R. 317 (F.C.A.); Woolaston v. M.M.I., [1973] S.C.R. 102; Florea v. M.E.I. [1973] F.C.J. No. 598 (F.C.A.)(QL), June 11, 1993, A-1307-91)]. The CRDD's findings, according to the respondent, are reasonable and supportable on the evidence here. The respondent argues that the applicant has not shown that the CRDD's decision was perverse, capricious or without regard to the evidence. The respondent's arguments are incorrect.
6. Order sought
[14] The applicant requests that the decision denying him Convention refugee status be quashed, and that the matter be referred back to a differently constituted panel of the CRDD. So be it. The application is allowed. No question is to be certified.
Ottawa, Ontario
June 8, 2001
Judge