Date: 20040211
Docket: IMM-5600-02
Citation: 2004 FC 219
Ottawa, Ontario, February 11, 2004
PRESENT: MR. JUSTICE SHORE
BETWEEN:
PETER LOUIS BARRENECHEA VARGAS
Applicant
AND
THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated October 17, 2002, to the effect that the applicant is not a Convention refugee under sections 96 and 97 of the Immigration and Refugee Protection Act.[1]
Allegations
[2] The Applicant is a citizen of Peru. He claimed refugee status alleging that he has a well-founded fear of persecution because of his membership in a particular social group, namely the family of a person who resigned from his position with the governing party and who publicly denounced the Fujimori-Montesinos regime.[2]
[3] The applicant alleges that his father was a politician and that he held important positions in the Fujimori-Montesinos government during its rule.[3]
[4] Allegations of corruption against Alberto Fujimori's government surfaced in September 2000. The applicant alleges that his father also denounced the government and resigned from the position that he held at the time.[4]
[5] On September 30, 2000, his father was attacked by individuals who told him to stop his public criticism of the government of President Fujimori. Because of this incident, the applicant's father moved to another city. The applicant continued to live in Lima to continue his studies but he moved to his aunt's home.[5]
[6] The applicant alleges that on August 5, 2001, he was attacked by supporters of President Fujimori. They asked him where his father was. They told him that he and his family were considered traitors by the Fujimori government.[6]
[7] After this incident, the applicant fled to Canada.[7]
The Board's decision
[8] The Board decided that the applicant was not credible. It found that, contrary to the applicant's testimony, the documentary evidence indicates that the senior officials of former President Fujimori had no power or support within the current government in Peru.[8]
[9] The Board also determined that there was no documentary evidence that the supporters of former President Fujimori were attacking individuals who criticized the former regime.[9]
[10] Finally, the Board determined that the applicant had given vague, evasive, inconsistent and implausible answers in his testimony. Moreover, he had not given any reasonable explanations to justify the contradictions and the implausibilities in his testimony and in his documentary evidence.[10]
[11] Consequently, the Board found that the applicant is not a Convention refugee.[11]
Issues
[12] Did the Board err in not considering whether the applicant has a well-founded fear of persecution because of his political opinion?
[13] Did the Board err in not asking the applicant to explain the contradictions between his testimony and the police reports?
[14] Did the Board err in determining that the applicant was not credible?
ANALYSIS
Did the Board err in not considering whether the applicant has a well-founded fear of persecution because of his political opinion?
[15] The applicant claims that he was a member of the "Peru 2000" party and that he had based his claim on the ground of his political opinion.[12] The applicant seems to claim that the Board erred in not considering whether the applicant had a well-founded fear of persecution, not only because of his membership in a particular social group, but also because of his personal beliefs.
[16] The respondent argues that the applicant did not base his refugee claim on his political opinion.[13] The Court agrees with the respondent. This basis for the claim is not mentioned in the Personal Information Form (PIF). The applicant did not testify that his claim was based on the ground of his political opinion, either. In fact, his testimony shows that he had not expressed a strong political opinion. During the hearing, the applicant testified that he had been a member of the "Peru 2000" party, but that he had become a member in order to help his father with his political activities and that he carried out only simple tasks.[14] Furthermore, in his PIF and his oral testimony, the applicant said that when he was attacked, his attackers wanted to know where his father was, and did not suggest to the applicant himself that he might possess useful information. Thus, the Court does not believe that there was evidence before the Board demonstrating that the applicant had a fear of persecution because of his own political opinion.
Did the Board err in not asking the applicant to explain the contradictions between his testimony and the police reports?
[17] The applicant argues that the Board did not ask him to explain the contradictions between his testimony and the police reports.[15] The respondent submits that the Board gave the applicant the opportunity to explain the contradictions and implausibilities in his testimony and in his documentary evidence.[16]
[18] The Board asked the applicant, during the hearing, to explain certain inconsistencies between his testimony and the reports of the police, who victimized his father.[17] Also, in circumstances where the contradictions and inconsistencies are obvious, it falls upon the applicant to explain them.[18] In this case, the Court believes that the inconsistencies between the applicant's testimony and the police reports were sufficiently clear that he had an obligation to explain them.
Did the Board err in determining that the applicant was not credible?
Documentary evidence
[19] The applicant maintains that the Board's conclusion about the documentary evidence, showing that the allies of former President Fujimori have no power and that they do not harass Alberto Fujimori's opponents, was erroneous.[19] In his arguments, the applicant refers the Board to the documentary evidence which, he claims, show that Fujimori's supporters still have political power and can persecute his enemies. The report declaring that the government named a sympathizer of former President Fujimori to a position with the government must be considered in its context as a whole.[20]
[20] However, the documentary evidence as a whole, including the second report referred to by the applicant, indicates the contrary. This report says that some journalists and some members of the media were harassed over the course of 2001, but these victims were, actually, allies of former President Fujimori.[21]
[21] The respondent makes it clear that the documentary evidence shows that the allies of the former president are no longer in power. The former government is criticized in many public documents and some of its members have been criminally prosecuted for corruption and human rights violations.[22] It notes that the applicant said, during the hearing, that he fears "Colina," a paramilitary death squad that worked for the former government. Many members of this group have been arrested and charged with human rights violations and corruption. Only a few members of this group are still at large, but as fugitives from justice.[23] I agree with the respondent that, according to the balance of the evidence, the supporters of Alberto Fujimori no longer have the power that the applicant attributes to them. The Board did not err in finding that the documentary evidence contradicts the testimony of the applicant.
Contradictions and implausibilities
[22] The Board based its conclusions on significant contradictions between the documentary evidence and the applicant's testimony. The Board did not err.
CONCLUSION
[23] The application for judicial review is dismissed. Also, no question will be certified.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question of general importance is stated.
"Michel M.J. Shore"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
APPENDIX
| Immigration and Refugee Protection Act, S.C. 2001, c. 27 |
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Loi sur l'immigration et la protection des réfugiés, L.C. 2001, c. 27 |
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| Convention refugee 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. |
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Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. |
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| Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (I) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
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Personne à protéger 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
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| Person in need of protection 97 (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. |
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Personne à protéger 97 (2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d'une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. |
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5600-02
STYLE OF CAUSE: PETER LOUIS BARRENECHEA VARGAS
v.
THE DEPARTMENT OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: FEBRUARY 11, 2004
REASONS FOR ORDER
AND ORDER BY: SHORE J.
DATE OF REASONS FOR
ORDER AND ORDER: FEBRUARY 11, 2004
APPEARANCES:
Clarel Midouin FOR THE APPLICANT
Richard Casanova FOR THE RESPONDENT
SOLICITORS OF RECORD:
Clarel Midouin FOR THE APPLICANT
Ottawa, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
[1] S.C. 2001, c. 27.
[2] Applicant's record, "Reasons for Decision", tab 3 at page 7.
[3] Applicant's record, "Personal Information Form", tab 4(A) at page 31, paragraph 2.
[4] Applicant's record, "Reasons for Decision", tab 3 at page 7.
[5] Supra.
[6] Supra, at page 8.
[7] Supra.
[8] Supra, at pages 8-9.
[9] Supra, at page 9.
[10] Supra, at pages 9-10.
[11] Supra, at page 10.
[12] Applicant's Application Record, Memorandum of Fact and Law, tab 5 at page 93, paragraph 10.
[13] Respondent's Supplementary Memorandum, tab A at page 3, paragraph 8.
[14] "Certified Tribunal Record", at pages 182-183.
[15] Applicant's Application Record, Memorandum of Fact and Law, tab 5 at pages 94-95, paragraphs 16-17.
[16] Respondent's Supplementary Memorandum, tab A at page 5, paragraph 13.
[17] Certified Tribunal Record, Transcript of Hearing, at pages 217-218.
[18]Ayodele v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1833 (QL), paragraphs 16-17; Tekin v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 506 (QL), paragraphs 10, 12, 13, 14, 20, 27.
[19] Supra, paragraphs 20-26.
[20] Supra, paragraphs 23-24.
[21] Supra, paragraphs 21-22.
[22] Respondent's Supplementary Memorandum, tab A at page 5, paragraph 14.
[23]Supra, at page 4, paragraph 8.