Federal Court Decisions

     IMM-1105-96

BETWEEN:

     RUTH SABINA HURTADO TAPIA,

     Applicant

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent

     REASONS FOR ORDER

TEITELBAUM, J:

FACTS:

The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, [hereinafter "Board"] holding the applicant not to be a refugee within the meaning of subsection 2(1) of the Immigration Act , R.S.C. 1985, c.I-2. The decision was made February 29, 1996 and communicated to the applicant on March 13, 1996. The grounds for judicial review are that the Board erred when it based its decision on a mistaken conclusion of fact without regard to the totality of the evidence.

The applicant is a 29 year old native of Chile. She claims refugee status on the basis of her political opinions and her membership in a particular social group, namely her family. Her uncle, a member of the Socialist party, was arrested and killed during General Pinochet"s 1974 coup d"état. The applicant herself was politically active in Chile although she was not a formal member of any political party. In 1988, the applicant participated in peaceful demonstrations and distributed pamphlets in a national referendum campaign to determine if General Pinochet should step down. The next year, she was politically involved during the 1989 Presidential elections held to replace General Pinochet, an election won by Mr. Aylwin.

The applicant was arrested and detained on three occasions: 1989, 1992 and 1995. In November 1989, the applicant was arrested at a raid on a house where she had gone to collect buttons to distribute in a protest march. She was held overnight by the military police and released the next day. In November 1992, she was arrested with other demonstrators during a campaign to press for the release of a body suspected of being buried on the grounds of the Military Cavalry School. The third and final arrest took place on July 25, 1995 in Santiago. The applicant was stopped in the street near her home and taken to a detention center where she was held overnight and released the next day. The applicant believes that colleagues at a medical clinic where she worked had informed on her to the police because she had made anti-Pinochet remarks.

The applicant left Chile in August 1995 and applied for refugee status in September 1995.

The Board"s Decision

The Board held that the applicant was not a Convention refugee because her fear of persecution on the basis of family background and political opinion was not well-founded. In particular, the Board did not see a connection between the applicant's family name and her arrests. Her uncle was not the focus of public attention during the demonstrations on behalf of General Pinochet"s victims. The Board also concluded that if the Hurtado family name was truly the cause of the applicant's unwelcome attention from the police, then other members of her family would have been targeted, even if they had not participated in public demonstrations.

The Board also ruled that the applicant's political opinions did not furnish sufficient grounds for awarding her refugee status. The applicant was not a member of a political party and was never herself singled out when she was arrested in 1989 and 1992 or participated in large public demonstrations. The Board also noted how anti-Pinochet sentiments were widespread in Chile in 1995, the date of the applicant"s last arrest. There was no orchestrated campaign to arrest or detain individuals for holding these views. The Board considered the nature of the applicant's three arrests and found that the applicant was never the target of physical aggression or held more than 12 hours. From 1992 until 1995, the applicant had no interference from the police.

Finally, the Board asserted that due to permanent and fundamental change in Chile's political climate, the applicant"s fear of persecution was not well-founded. Since 1989, there had been two democratically held and conducted presidential elections with a massive voter turn-out. High ranking military officers and police had been tried and punished by the courts despite the rumblings about a coup d"état offered by General Pinochet. The Board acknowledged that some police officers have abused their powers and that human rights violations still occur. The Board, however, cited in its reasons a one paragraph newspaper blurb that documented recent efforts to eradicate corruption from the police ranks. The Board also quoted from two short news items describing changes in the treatment accorded Chilean refugees from the U.N High Commission for Refugees and the French office for refugees. The Board did note that a smaller portion of the written record also reveals some tension in Chile between the military and those who would have full and complete disclosure of the military regime"s abuses and crimes in the Pinochet era (1974-1989).

ISSUES:

1. Did the Board commit a reviewable error in characterizing Chile's political climate?

2. Did the Board commit a reviewable error when it denied that the applicant had endured physical violence?

1. Permanent and fundamental changes in Chile's political climate

The applicant argues that the Board put undue and unreasonable emphasis on the evidence of positive changes to the detriment of the larger part of the documentary record. The Court cannot simply substitute its analysis of the documentary evidence regarding Chile's political climate for the Board"s. Under Section 18.1 (4)(d) of the Federal Court Act , R.S.C. 1985, c.F-7, the Court may grant relief if it is satisfied that the Board "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. If the Board's analysis was made without regard to the totality of the evidence, judicial intervention is warranted where on an assessment of the evidence as a whole, the findings are unreasonable: see Hristova v. Canada (Minister of Employment & Immigration) (1994), 75 F.T.R. 18 (T.D). The characterization of Chile's current political climate or its change in circumstances is a question of fact. A Court has a limited scope of review. Justice Hugessen at page 12 in Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N. R. 11 wrote:

We would add that the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful", "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s. 2 of the Act: does the claimant now have a well-founded fear of persecution? Since there was in this case evidence to support the Board's negative finding on this issue, we would not intervene.

I agree with the applicant's submission that the Board committed a reviewable error when it characterized Chile's political climate. The Board in the case at bar had to review a voluminous documentary record setting out Chile's evolving political climate. The Board chose to specifically highlight the three shortest articles in the entire file although it did acknowledge other parts of the documentary evidence. The Board indicated that there were some clouds on Chile"s political horizon at page 4 of its reasons (page 7 in the Board Record):

Une infime partie de la preuve documentaire indique qu"il existe une certaine tension entre une partie de la population qui veut faire la lumière complète sur les crimes commis sous le régime Pinochet et certains militaires (my emphasis).

In contrast to the Board's finding, I hold that the bulk of the documentary record paints a less positive picture of Chile's political climate. In over 100 pages, which includes dispatches from Amnesty International, the United States State Department Country Reports and articles from various news outlets, the documentary evidence for the years 1992-1995 reveals General Pinochet's entrenched and insidious influence in Chile's electoral, political and judicial systems (pages 46, 67, 70-71, 116, 126, 146-147 Board Record), limits on free expression (pages 78, 106, 114-117, 146, 147) and the frustrating lack of progress in the prosecution of culprits from the Pinochet regime (pages 59 and 63). I am not satisfied that the Board considered the entire documentary record. I understand that it is not open to the Court to simply override the Board"s appreciation of the documentary record, but in this instance the Board simply ignored evidence contrary to its general finding of fact. I hold that the Board committed a reviewable error in characterizing and weighing from the evidence filed the tenor and significance of Chile"s political climate.

    

2. Physical violence endured by the applicant     

The applicant alleges that she suffered physical violence during her arrests. This crucial fact was explicitly denied by the Board in its reasons. The Board wrote, "Elle n"a jamais été détenue plus de douze heures et n"a été victime d"aucune agression physique ou autres." The Board also failed to mention the threatening phone calls and lackadaisical police attitudes preceding her July 1995 arrest. Another fact cited by the Board that does not follow from the evidence is the length of the applicant"s time in detention. The applicant alleges that she was held 24 hours in 1992 and not 12 hours as stated by the Board. In effect, the applicant's ground of review is that the Board's conclusion was based on an erroneous finding of fact that flies in the face of the evidence.

The record reveals that the applicant did endure physical violence in Chile although the actual number of incidents is unclear. During the course of oral argument, the respondent admitted that some violence did take place despite the Board"s initial finding to the contrary. The transcript from the February 12, 1996 hearing before the Board reveals that the applicant spoke of beating and physical aggression from the military police on two occasions, namely during her first arrest in November 1989: "La police militaire nous a commencé à battre, à nous frapper, nous a fait monter dans des, ça veut dire, camionnettes...." (page 175, Board Record) and her third arrest in July 1995: "On m'a pris, je comprenais pas pourquoi, ça veut dire, on me donnait des coups... (page 185, Board Record). In the same transcript at page 189, the applicant described the anonymous phone calls she received some three months before the July 1995 arrest. In her affidavit dated April 29, 1996, filed in support of her application for judicial review, the applicant alleges that for all three arrests, "each time (she) was beaten by security forces" (para. 3, page 10, applicant"s record). The applicant"s "Formulaire de renseignements personnels", filed in support of her initial claim for refugee status speaks only of violence in conjunction with the final arrest (lines 36-37, Exhibit A of Lise Simoneau"s affidavit dated May 21, 1996).

I believe that in conjunction with the Board's characterization of Chile's political climate, the Board"s admitted error on the issue of physical violence also warrants judicial review. The Board is permitted to make errors of omission if these errors are not fatal to the integrity of the decision-making process or performed in an entirely capricious and perverse matter. The Court does not subject the Board's analysis to a microscopic examination in a judicial review of this nature: see Boulis v. The Minister of Manpower and Immigration, [1974] S.C.R. 875. In a similar vein, Justice Rouleau in Naikar v. Canada (Minister of Employment & Immigration), [1993] F.C.J. No. 592 (QL) concluded at paragraph 2, "A Court must balance seeming errors in the Board's decision with the more substantive findings it has made. Or, expressed in another way, are the errors of a nature that if not committed, the Board's conclusions would have been substantially different?"

However, the Court will pay less deference to a Board"s decision when the Board has committed an error of commission and contradicted the record on a crucial element like the occurrence of physical violence. Physical violence can go to the heart of determining whether a refugee claimant"s fear of persecution is well-founded. I am uneasy at the Board"s outright denial of the applicant"s physical mistreatment. True, this is not a case of torture by security forces but manhandling or "coups" suffered as the applicant on one or two occasions was hustled into police custody. Does the relatively minor and infrequent nature of the violence in this instance minimize the fallout of the Board"s error and the scope of review? The bulk of the Board's reasons were devoted to characterizing Chile's larger political climate and the fact that the applicant was not a specific target during her three arrests. It is highly likely that the Board, looking to the evidence as a whole and particularly the documentary record on the change in political circumstances, would have come to the same conclusion even if it had accurately described the physical violence at issue. However, the Board's unwarranted and unreasonable characterization of the documentary evidence means that its error on the issue of physical violence takes on more significance. This being the case, I conclude that the Board"s error on the occurrence of physical violence is a cause for review. I do agree with the respondent"s contention that other minor points of error like the actual length of the applicant's detention during the second arrest in 1992 does not vitiate the Board"s decision.

     The application for judicial review is therefore allowed. The matter is referred back to a differently constituted Board which will consider the applicant's claim for refugee status in light of the entire documentary record and the incidents of physical violence.

                         "MAX M. TEITELBAUM"                                  J U D G E

OTTAWA

March 6, 1997