Date: 19980513
Docket: IMM-2611-97
B E T W E E N:
GUILLERMO WALDE PEREZ GONZALEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY, J.
[1] The applicant seeks judicial review of, and an order setting aside, the decision of the Convention Refugee Determination Division, dated June 6, 1997, by which it was determined that the applicant is not a Convention refugee as defined in s-s.2(1) of the Immigration Act, R.S.C. 1985, c. I-2 as amended (the "Act").
[2] The applicant is a citizen of Chile. His claim to refugee status is based on his alleged fear of persecution, for reasons of his perceived political involvement, if he were to return to Chile. In 1968 he joined a communist youth organization in Chile. In 1985, while he was at a meeting of an armed opposition group opposed to then dictator Pinochet, police raided the meeting. He was arrested and detained for three days without food or water and was severely beaten by police and members of the military intelligence group. He claims that as a result of his beating he developed cancer of his left testicle which he subsequently lost by surgery.
[3] Thereafter he acted as a messenger for the opposition group until 1987 when he ceased after two friends and several others were killed by security forces. In 1988 his brother-in-law was killed by security forces. He was not politically active after 1987 until 1994, when, after restoration of democracy, he rejoined his old group, no longer in armed opposition, but said to support a coalition of democratic parties offering permitted opposition to the government.
[4] In 1995, after participating in an anti-government demonstration, he was arrested and detained by police; he was beaten and believes his name was entered in police computer-based records. He was told by police that they were aware of his arrest a decade earlier and that if he continued as a subversive, he would be killed. Thereafter, he did not participate in any demonstrations. Nevertheless after a major demonstration he was picked up by police and detained and beaten, despite his protests that he had not been involved. He claims he was released only after promising to leave Chile.
[5] He left Chile on June 17 and came to Canada, and he claimed refugee status a month later, on July 17, 1995.
[6] The CRDD panel concluded that there was no credible or trustworthy evidence upon which to base a determination that the claimant is a Convention refugee. That conclusion was based upon contradictions in his evidence and conduct the panel considered inconsistent with any well-founded fear of persecution.
[7] The panel noted a number of implausibilities it found in aspects of the plaintiff's claim, in particular concerning his lack of knowledge of the political organization with which he claims to have been active. Further, his claim about suffering cancer of the testicle as a result of being beaten in 1985 was not supported, his claim to embarrassment in revealing evidence of a second medical problem with his remaining testicle was not consistent with his evidence of the first problem, his claim that the former security agency, the centre of his fears to persecution, was still in existence, and his delay in making a refugee claim, after lying about purposes of his coming to Canada on his arrival, all these were factors considered by the panel in concluding there was no credible evidence.
[8] However, as counsel for the respondent concedes, the panel erred in stating there was no evidence of the applicant having had cancer of the left testicle, a matter specifically set out in his medical report submitted in evidence, which the panel apparently did not understand. It erred as well in its discussion of delay of the applicant in making a refugee claim by stating that the applicant did not apply until July 1996, a year later than his application was made. Finally, the panel discounted the applicant's claimed fear of the power of security forces by referring to documentary evidence which described those forces as disbanded in 1990 when all "personnel, files and computers were transferred to army intelligence where civilian access to the information is severely limited". That is less than full answer to the applicant's concerns about continuing influence of former security forces. (See de Calles v. M.C.I. (1993), 67 F.T.R. 78).
[9] Each of these errors by the panel was a major factor in discussion within its decision. I agree that it stated other grounds for finding the applicant's evidence not to be credible. Yet the panel also stated:
| While it could, perhaps, be argued that none of the credibility concerns herein is sufficient, considered individually, to negate the claim, it is our opinion that the cumulative effect of all of them is such as to render all of the claimant's evidence as neither credible nor trustworthy.1 |
[10] That assessment, that it is the cumulative effect of all of the panel's concerns that supports the conclusion on credibility, means that the Court cannot assess what the effect upon the panel's conclusion is of the admitted errors by the panel in factors it considered significant. In the circumstances, the Court has little alternative to intervening where the panel's determination rests on its assessment of the credibility of the applicant's evidence, in light of a number of matters of concern to the panel, three of which are clear errors or misunderstandings of fact, which in the panel's decision were given significance.
[11] In argument counsel for the respondent referred to aspects of the panel's decision, primarily those concerning documentary evidence of conditions in Chile, as though the panel's decision was based on its assessment of changes in country conditions which would not support an objective basis for the applicant's claimed fear. I do not read the panel's decision thus. In my reading, its determination is based entirely on its finding there was no credible evidence to support the applicant's claim.
[12] When an error in basic facts or assessments undercuts the cumulative effect of grounds of concern which effect leads to a conclusion of a lack of credible evidence, the assessment of a lack of credibility is questionable. These circumstances warrant setting aside the decision of the panel, and referring the applicant's claim for reconsideration by a differently constituted panel. It is now so ordered.
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Judge
OTTAWA, Ontario
May 13, 1998.
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