Ottawa, Ontario, June 13, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
Background
[1] In rejecting the refugee claim of Rene Luis Quispe Pillhuaman, (the applicant or claimant) a citizen of Peru, the Refugee Protection Division of the Immigration and Refugee Board (the tribunal), in its August 8, 2005 decision, relied heavily on several improbabilities as well as the availability of State protection and delay to conclude he was not a Convention Refugee nor a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act (the Act). The tribunal did not make a finding the applicant was not credible.
[2] Counsel for the applicant argues the tribunal's decision should be set aside because the inferences drawn by the tribunal were not reasonable since they lacked evidentiary foundation on the record; its reliance on State protection was misguided since the agents of persecution were the police and there was direct evidence the Ombudsman in Peru had no enforcement powers; and its finding of delay was arbitrarily drawn without regard to the applicant's testimony as to the circumstances of his entry in Canada when he arrived at Pearson International Airport with other members of a Peruvian dance group.
[3] The applicant's story is not complicated. He claims in June, 2001 the police came to his home to execute an order he vacate the property on which his house was built. That order was issued by a Justice of the Peace at the behest of its former landowner with whom the applicant had a dispute whether the property was bought or leased.
[4] He alleges the police told him they had found some Shining Path material in his house. He was then accused of supporting the Shining Path. He was taken into custody, interrogated and beaten but released after two days on the payment of a bribe on his behalf by his brother.
[5] He did not report the incident to the authorities because he did not know whom to trust and also feared taking legal action could make matters worse. He claims the incident traumatized him so much he went into hiding and planned his flight from Peru.
[6] Fearing the Peruvian security forces because they believed he was involved with the Shining Path, a organization which Canada has designated as a terrorist organization, he obtained a visitor's visa to Canada (CVV) from the Counsular Staff at the Canadian Embassy in Lima, at the suggestion and with the help of his friend who was organizing a tour in Canada of an ensemble of Scissor Dancers.
[7] He arrived in Canada on September 16, 2001 and made a claim for refugee protection on September 28, 2001.
The Tribunal's Decision
[8] In its decision the tribunal acknowledged the claimant fears Peru's security forces (the National Police) because of their belief he was involved with the Shining Path and therefore a subversive.
[9] The central findings of the tribunal are:
[10] First, in response to a question whether he believed his problems were related to the property dispute or because the authorities thought he was associated with the Shining Path, the tribunal said the claimant responded he believed his problems are related "to a police belief that his association with the Shining Path is as a result of his ethnic identity as a member of the Ayacuchano race."
[11] Second, the tribunal then stated "the claimant had done nothing to establish any such identity" and took into account the fact he speaks Spanish and does not speak Ayacuchano but understands some of that language. It also referred, however, to the fact he provided extensive cultural information concerning a dance that he identified as the Scissors Dance and cultural areas relating to indigenous peoples.
[12] After setting out those purported facts, the tribunal wrote:
"On the balance of probabilities, I am prepared to accept that the claimant is probably a member of the Ayacuchano race. However, given the fact that he was born in Lima and does not speak the native tongue, it is improbable that others in Peru would identify him as an Ayacuchan. Ayacuchans or indigenous people are predominately from the remote rural Amazon regions.
[13] Third, the tribunal then said it "cannot find sufficient evidence to support the claimant's position that members of the Ayacuchan race would be presumed to be supporters of the Shining Path. The tribunal stated:
"Were that the case, the current Peruvian President would also be presumed to support terrorism. The evidence shows that "President Toledo was the country's first elected President of mixed caucasian and indigenous ancestry. It was rare for indigenous persons, who make up more than one third of the population, to hold high public office."
[14] Fourth, the tribunal further constructed its reasoning:
"The government of Canada has designated the Sendero Luminoso Nostra as a terrorist organization. For the claimant's allegation of guilt by association by way of his tenuous racial profile to make any sense, it would be extremely difficult to rationalize why the Canadian Embassy staff (working in Lima) would grant a Canadian visitor's visa (CVV). The claimant's revised PIF narrative tells the Board that his friend, Hector Bautista, was organizing Scissors Dancers tour in Canada and suggested that the claimant could avail himself of a CVV by joining that group. It would be improbable that visa's (CVVs) would be handed out in Limato performing groups known or presumed to have terrorist associations. The embassy staff, being agents of the Canadian government should be presumed aware of the terrorist designation of the Shining Path and, being in Peruwould also be presumed aware of any such association between Ayacuchians and the Sendero Luminoso."
[Emphasis mine]
[15] Fifth, the Tribunal wrote:
"I do not accept the claimant's allegation that Ayacuchans are assumed to be Sendero Luminoso supporters. If that assumption had any basis, it is improbable that a dance ensemble of Ayacuchan Scissors Dancers would be granted CVVs."
[Emphasis mine]
...
"In arriving at that conclusion, I am well aware that despite relentless efforts by Peruvian authorities, the Shining Path does remain active in remote areas of Peru. Peru's jungle areas near the Andes and in the country's central Amazon region. These areas include locations such as Junin, Ayacucho, Apurimac and part of Cusco."
[16] Sixth, the tribunal advanced: "Furthermore the same document tells us that the Shining Path has taken indigenous people hostage and attempted to coerce those people to join ranks with the Shining Path. It seems highly improbable that intelligence information concerning massive voluntary Ayacuchan in the Shinning Path would not also be available to Canadian Embassy staff approving CVVs in Lima. It is infinitely probable that Canadian Embassy staff would have reliable first hand knowledge of Peruvian matters based upon the fact that they live in Peru and would be exposed to Peruvian news and current affairs on a day-to-day basis." [Emphasis mine]
[17] The tribunal concluded based on the claimant's evidence "it is probable that he has become involved in a property or real estate dispute. Disputes over real estate may in certain situations boil over into Human Rights violations. However, only in cases where one's own country has shown an inability or unwillingness to support, guard and protect those rights, does international or surrogate protection come into play." [Emphasis mine]
[18] The tribunal then went on to consider the issue of State protection concluding State protection was available in Peru.
[19] In coming to its conclusion on State protection, the tribunal relied very heavily on exhibit R-2 which is the United States Department of State Human Rights Report, Peru, published on February 25, 2004 with respect to its review of the situation in Peru in 2003, (The DOS Report).
[20] Basing itself on the DOS Report, the tribunal stated "it is recognized that the Peruvian government generally respects human rights. However, there have been serious problems reported. Such incidences have involved unwarranted killings by the police as well as abuse of inmates in prison. Quoting another report, the tribunal stated that "following the fall of the Fujimori government in November 2002, it is recognized that the human rights situation in Peru has improved significantly and that Peru has undertaken significant review and made beneficial changes to its justice and prison system." The tribunal noted the Peruvian government, through its Constitution, had banned discrimination against its indigenous population.
[21] The tribunal added as follows:
Even accepting that pervasive discrimination is mentioned, there are adequate functioning structures in place to provide recourse to the claimant if the police had mistreated him over a real estate dispute.
...
Not the least of the alternative to fleeing Peru is the Office of the Ombudsman. Documentary evidence shows that the Ombudsman's office is a well-funded vehicle for such complaints.
...
Even without the power to enforce its findings and limited to moral suasion, the Ombudsman office has reported too many times related to investigation of police misconduct of the Board to ignore that organization's importance to Peruvian human rights issues.
[22] On this point, the tribunal concluded as follows:
It is therefore my finding that Peru is making serious effort to protect the human rights of its indigenous population. Through instruments such as the Peace and Development Plan that support for indigenous people reaches far beyond simple protection of basic human rights. If the claimant's allegation about being taken away and beaten up by the police are true (and I am not accepting them as true based on the improbability discussed above), "there are certainly other alternatives at the claimant's disposal before resorting to surrogate protection in Canada
...
The loss of one's principle residence through legal rangling is unfortunate. The Board is not expected to provide relief to persons who have experienced such a loss unless the loss is a result of the violation of a Convention right. From the earlier finding that others in Peru are unlikely to see the claimant as an Ayachuchan, the Board concludes that as unfortunate and unfair such loss may have been to the claimant, it does not form the basis for a refugee claim in Canada. I find that adequate State protection for persons in his particular situation exist in Peru.
Moreover, the claimant failed to show that he made reasonable efforts to seek protection that was not forthcoming or inadequate.
[23] With respect to the third grounds invoked by the tribunal for rejecting his claim, the tribunal was of the view "his failure to make a claim for refugee protection immediately upon arrival at Toronto only adds further suspicion to this claimant's true motives for coming to Canada."
[24] The tribunal wondered why "given the amount of premeditation that took place in Peru where he connected up with an ethnic dance ensemble and waited specifically to obtain a CVV, he failed to claim refugee protection at Pearson Airport.
[25] The tribunal concluded:
"The claimant's explanation only served to add more suspicion wherein he explained that upon arrival, he and other members of this troupe were welcomed at the airport by their Canadian host who assisted them in proceeding through Canada Customs and Canada Immigration desks.
Thus, I am of the opinion that at that hour, having recognized that his plan had succeeded and that he had the assistance of a Canadian host, there is no reason why the claim could not have been made at that hour. Instead, the claimant willingly passed silently through the airport began his dance performances and only then finally turned to refugee protection.
The Board is satisfied that it would not be unreasonable in the particular circumstances of this claim, to conclude that delay is inconsistent with the actions of a person who has a well-founded fear of persecution."
Analysis
[26] The standard or review enabling a Court to intervene to set aside a decision of a tribunal based on implausabilities is the same as setting aside a credibility finding. This proposition is made clear in the Federal Court of Appeal's decision in Aguebor v. Minister of Employment and Immigration [1993] 160 N.R. 315 at paragraph 4 which I cite:
¶ 4 There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. [Emphasis mine]
[27] Implausibility findings are based on factual inferences. As such, the standard of review is set out in section 18.1(4)(d) of the Federal Courts Act, 1998 which enables the Court to intervene if it is satisfied the tribunal "based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it", a standard of review akin to patent unreasonableness which permits intervention by the Court only if the implausibility finding is "clearly rational" or the decision is "so flawed that no amount of curial deference can justify letting it stand": Law Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247 at paragraph 52.
[28] On this point, it is useful to cite the Supreme Court of Canada's decision in Canadian Union of Public Employees, Local 301 v. Montreal (City) [1997] 1 S.C.R. 793 at paragraph 85 which I cite:
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La ForestJ., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370. [Emphasis mine]
[29] The central factual finding of the tribunal is that "it is probable that he has become involved in a property or real estate dispute" as opposed to a perceived opinion held by the police he was a supporter of the Shining Path.
[30] The tribunal came to the conclusion it did because the tribunal did not accept as sufficient the applicant's evidence that Ayachuchans are presumed to be supporters of the Shining Path.
[31] The tribunal's rejection of the applicant's evidence was itself largely based on several implausibility findings including, if that proposition was true, i.e., his race are presumed to support the Shining Path (1)the then current President of Peru would be presumed to support terrorism; (2) The Canadian Embassy staff in Lima would not have issued him or the Scissor Dancers Canadian CVVs because such staff is presumed to be aware of "any such association between the Ayacuchans and the Shining Path" and "it was highly improbable that intelligence information concerning massive voluntary Ayacuchan in the Shining Path would also be available to Canadian Embassy staff;"(3) the improbability that others in Peru would identify him as an Ayacuchan because he was born in Lima and does not speak the language.
[32] In my view, the tribunal's implausibility finding must be set aside on the basis that they are not grounded or reasonably related to the evidence before the tribunal but rather were built on suppositions or assumptions. Moreover, these findings are not consistent with the documentary evidence before the tribunal. The DOS Report relied on by the tribunal under the heading "indigenous People at Certified Tribunal Record (CTR) page 158 indicates that "the large population of indigenous persons faced pervasive societal discrimination and social prejudice." At page 138 of the CTR the same report speaks about violence against Indigenous peoples which remained problems. In addition the tribunal never came to grips with the applicant's story the had found Shining Path material in his home. The tribunal could have disbelieved the applicant on this and other points but did not say so. In my view, this case resembles closely Justice MacKay's decision in Yada v. Canada(Minister of Citizenship and Immigration) [1998] F.C..J. No. 37.
[33] It would appear that much of the tribunal's decision was based on the tribunal's specialized knowledge. At page 199 of the CTR, the tribunal stated "I want to tell you first of all that I have heard many Peruvian claims and am expected to have certain specialized knowledge about what happens in your country and that comes from hours of research on the country conditions just so you know that ..." I am not satisfied the tribunal complied with Rule 18 of the Refugee Protection Division Rules concerning the use of specialized knowledge, the identification of that knowledge and the opportunity to make representations on the reliability and use of the information or opinion. (See, N'Sungani v. Canada(Minister of Citizenship and Immigration) [2004] FC 1759).
[34] There is another reason for setting aside the tribunal's decision. In my view, its analysis of State protection is flawed.
[35] As is evident, the tribunal relied heavily on the possibility of a complaint to the Ombudsman. The tribunal ignored the applicant's evidence on the point where he testified the Ombudsman's office did not offer any protection. He based his view on his knowledge of friends making denunciations to the Ombudsman office against "bad police". See CTR pages 213 and 214, Justice Layden-Stevenson set aside a tribunal decision precisely on the same ground in Badilla v. Canada (Minister of Citizenship and Immigration) (2005) F.C. 535.
[36] Moreover, the tribunal's analysis on State protection did not take into account the fact the agents of the State were alleged to be the source of the persecution (see Chaves v. Canada(The Minister of Citizenship and Immigration)(2005) F.C. 193).
[37] In the circumstances, I do not propose to deal with the third ground of the applicant's judicial review application namely, the issue of delay in making a refugee claim immediately on his arrival at Toronto International Airport.
ORDER
THIS COURT ORDERS that this judicial review application is allowed. The tribunal's decision of August 8, 2005 is set aside and the applicant's claim is returned to the Immigration and Refugee Board for re-determination by a differently constituted Panel. No certified question was proposed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5298-05
STYLE OF CAUSE: RENE LUIS QUISPE PILLHUAMAN
v.
MCI
REASONS FOR ORDER & ORDER LEMIEUX J.
APPEARANCES:
| Yehuda Levinson Toronto, Ontario |
|
| Laden Shahrooz Toronto, Ontario |
SOLICITORS OF RECORD:
| Yehuda Levinson Barrister and Solicitor |
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |