IMM-2778-96
BETWEEN: RICHARD WARTER HUERTA LILLO,
NANCY RAQUEL QUINTEROS ESTRADA,
PAVEL RADIN HUERTA VALENZUELA,
TANIA VALENTINA HUERTA QUINTEROS,
DAYS NELSON HUERTA QUINTEROS,
Applicants,
AND: MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
O R D E R
DENAULT J.:
The applicants' application for judicial review is dismissed.
OTTAWA, June 11, 1997
PIERRE DENAULT
J.F.C.C.
Certified true translation
C. Delon, LL.L.
IMM-2778-96
BETWEEN: RICHARD WARTER HUERTA LILLO,
NANCY RAQUEL QUINTEROS ESTRADA,
PAVEL RADIN HUERTA VALENZUELA,
TANIA VALENTINA HUERTA QUINTEROS,
DAYS NELSON HUERTA QUINTEROS,
Applicants,
AND: MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DENAULT J.:
The applicant and his family members, who are nationals of Chile and arrived in Canada on April 18, 1995, are seeking judicial review of the decision of the Refugee Division denying them refugee status. The applicant claimed refugee status on the basis of the persecution he said he suffered in Chile by reason of his political opinion, both imputed and real, and his membership in a particular social group: the family.
After stating that [translation] "the claimants [had] not demonstrated by credible and trustworthy evidence a reasonable fear of persecution for either of the reasons stated", the Refugee Division rejected the claim by the applicant and his family as follows:
[translation]
| The tribunal has decided to believe the documentary evidence as a whole, which seems to be neutral, rather than the claimant's testimony. Accordingly, the tribunal does not believe that there is a reasonable likelihood that the claimants would be persecuted if they had to return to Chile. |
In support of the application for judicial review, counsel for the applicant essentially argued that the tribunal incorrectly assessed the changes in the political situation in Chile and that they did not have regard to all of the evidence, in particular the existence of former agents of the Chilean security who continue to repress political dissidents, the practice of torture in Chile even today, and the impunity enjoyed by those who engage in it. Counsel for the applicant argued that the tribunal stressed the change in circumstances that has occurred in Chile but failed to have regard to the documentation which indicated that there are still human rights violations, and to the incidents recounted by the applicant.
Since the decision of the Federal Court of Appeal in Yusuf1 it has been settled that assessment of changes in the situation in a country is a question of fact. The Court stated:
| 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 how 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. |
In the instant case, it appears that the tribunal first analyzed the applicant's situation, the problems he said he had experienced, and concluded that he had not demonstrated that there was a reasonable fear of persecution in the event that he returned to Chile, mainly because of the fundamental changes, which it described as real and lasting, that had occurred in Chile since the advent of democracy in that country in 1989. Apart from the existence of a democratic system in which political parties are able to express themselves, the tribunal found that the documentary evidence indicated that there was freedom of the press and that, generally speaking, it is possible to have recourse to the judicial system, which the applicant apparently did not do.
In Zhou,2 the Federal Court of Appeal reaffirmed the principle that the Refugee Division may prefer the documentary evidence to the applicant's testimony.
In the instant case, although some of the evidence shows that this country is encountering real problems in striving for a society free of any barriers to respect for human rights, there is no doubt that a large part of the documentary evidence also shows that efforts are being made to achieve a more just and equitable society. The tribunal had full jurisdiction to assess the content of the documentary evidence, and after analyzing the change that had occurred in the situation in Chile, it described it as real and lasting. In the instant case, it was not unreasonable to conclude that there was no reasonable possibility that the claimants would be persecuted if they had to return to their country.
At the end of the hearing, counsel for the applicants argued that the case raised a serious question of general importance, within the meaning of subsection 83(1) of the Immigration Act, which he stated as follows:
[translation]
| Is it open to the Refugee Division to give credence to anonymous sources rather than reports from official sources, including Amnesty International, Americas Watch or other organizations for the protection of human rights? |
Under subsection 68(3) of the Immigration Act, the Refugee Division is not bound by any legal rules of evidence and it may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy. I find that in the instant case this question should not be certified.
For these reasons, the applicants' application for judicial review is dismissed.
OTTAWA, June 11, 1997
PIERRE DENAULT
J.F.C.C.
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-2776-96
STYLE OF CAUSE: RICHARD WARTER HUERTA LILLO ET AL. v. M.C.I.
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MAY 6, 1997
REASONS FOR OF DENAULT J.
DATED: JUNE 11, 1997
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANTS
Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR THE APPLICANTS
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________