Ottawa, Ontario, August 16, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
RITHA GLADYS ZEBALLOS DE CARRILLO
ENRRIQUE ANTONIO CARRILLO ZEBALLOS
(a.k.a. ENRIQUE ANTONI CARILLO ZEBALLOS)
CARLA BIANCA CARILLO ZEBALLOS
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicants are members of a Bolivian family who sought refugee protection in early October, 2003. Their application was heard by the Immigration and Refugee Board (Board) over four days between September 27, 2004 and July 13, 2005. That application was rejected in a decision rendered on September 21, 2005. The Board’s negative decision was based on adverse credibility and plausibility conclusions made in connection with the evidence of the principal applicant, Feliciano Carrillo Bocangel (Mr. Carrillo).
Background
[2] Mr. Carrillo’s claim for protection was founded upon his history of active involvement in Bolivia in support of political opposition groups. The record contains considerable uncontradicted evidence confirming Mr. Carrillo’s political profile. That evidence clearly discloses that he had been politically active since his student days commencing in the late 1960’s. In 1984, he was one of the founders of a left-wing political party identified as the Revolutionary Leftist Party (FRI). In early 2000, he was instrumental in the formation of a coalition between the FRI and another left-leaning opposition party known as the Movimiento al Socialismo (MAS).
[3] According to Mr. Carrillo, the MAS was an opposition party that ran second in the 2002 national elections. The leader of MAS was, and remains, Mr. Evo Morales. Mr. Morales was subsequently elected as the President of Bolivia in the 2005 elections.
[4] Mr. Carrillo’s status within MAS was corroborated by a considerable amount of apparently reliable documentary evidence including evidence tying him closely to Mr. Morales. The record also contained evidence indicating that Mr. Morales may have been the target of politically motivated threats, including death threats.
[5] It is readily apparent from uncontradicted evidence in the record that Mr. Carrillo had a considerable political profile within the opposition movement in Bolivia, and was a strong advocate for the rights of the indigenous population in that country.
[6] Mr. Carrillo’s claim for protection was centered on three primary incidents of politically-motivated persecution. He claimed that his home had been set on fire on December 10, 2002, that he had been beaten and shot by Bolivian authorities during a violent street demonstration in La Paz on February 12, 2003 and that he had been beaten by the Bolivian military on June 15, 2003 while attending a political meeting in San Carlos. In addition to these events, he claimed that he and other members of his family had been repeatedly threatened because of his political involvement in opposition to the Bolivian government.
The Board Decision
[7] The Applicants’ protection claim was resolved against them on the basis of adverse credibility findings. The Board concluded that Mr. Carrillo was an unreliable witness based upon its finding of implausibilities and testamentary inconsistencies made up principally of the following:
a) Mr. Carrillo’s evidence was implausible in suggesting that the Bolivian police would wait for political opposition groups to reach their destinations before confronting them and, instead, would more likely have stopped them on the road.
b) There was no evidence that members of the political opposition party or its leader, Mr. Morales, had been persecuted by the authorities.
c) The failure by Mr. Carrillo to mention in his Personal Information Form (PIF) that the authorities had been advised of a deliberately set fire at his home was a material omission which he failed to adequately explain. This evidence was found to be “fabricated” to bolster the refugee claim.
d) Mr. Carrillo’s evidence about being beaten by the authorities during a violent uprising in La Paz on February 12, 2003 contained a number of discrepancies and implausibilities and this aspect of his story was also “fabricated” around the corroborating documentary evidence. The Board also disbelieved Mr. Carrillo’s evidence that he had made a complaint about this incident to the Ombudsman.
e) It was implausible that the judicial police would ignore Mr. Carrillo’s evidence of mistreatment by the Bolivian authorities.
f) Mr. Carrillo’s evidence of barriers to the political involvement of the indigenous population was inconsistent with the documentary evidence and was, therefore, not believable.
[8] The upshot of the Board’s decision is that it did not believe Mr. Carrillo’s evidence of a history of persecution at the hands of the Bolivian authorities. It rejected as unreliable the key evidence that he related concerning the episodes of the burning of his home and the beating and gunshot injury administered at the time of a violent political uprising in La Paz on February 12, 2003.
Issue
[9] What is the appropriate standard of review, and does the Board decision meet the requisite standard?
Analysis
[10] I accept that, with respect to factual and plausibility findings made by the Board, the appropriate standard of review is “patent unreasonbleness”. It is not the Court’s place to substitute its decision for that of the Board unless the Applicants can establish that the Board’s decision was based on erroneous findings of fact made in a perverse or capricious manner, or without regard to the evidence before it: see R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162, 2003 FCT 116 at paragraphs 7-8.
[11] Notwithstanding the considerable deference that is owed to the Board’s factual conclusions, there are a number of troubling aspects to its treatment of the evidence. The most pronounced of the problems is the very selective treatment of the evidence by the Board and its failure to place much of the evidence into the broader, and essentially undisputed, context of Mr. Carrillo’s political involvement at a time of profound political and social unrest in Bolivia. Notably, the Board decision relates almost nothing about Mr. Carrillo’s political activity or his profile as a leader of the political opposition in Bolivia. The decision also virtually ignores key elements of the apparently reliable United States Department of State Report for 2003 detailing a background of political unrest and violence across Bolivia in 2002 and 2003. While observing that Bolivia was a democracy with traditions of respect for human rights, that particular report also confirms the killing of dozens and injuring of hundreds of protestors during at least three large-scale episodes of violent social unrest, the use of excessive force, arbitrary arrests and detentions, beatings and a culture of impunity.
[12] The Board’s conclusion that Mr. Carrillo faced no more than a generalized risk of harm in Bolivia is difficult to reconcile with the uncontradicted evidence of his political profile and the situation of political and social unrest in that country in 2002 and 2003. The failure by the Board to undertake a proper contextual analysis of this evidence renders this conclusion patently unreasonable: see Menjivar v. Canada (Minister of Citizenship and Immigration), [2006] F. C. J. No. 5, 2006 FC 11.
[13] The Board rejected Mr. Carrillo’s evidence of being attacked by the Bolivian army in La Paz on February 12, 2003 during a well documented violent political protest. Mr. Carrillo testified that he was enroute to a political meeting when he was recognized by the police and accused of inciting violence. He said that he was shot on the leg, beaten and briefly held by the authorities. When the Board confronted Mr. Carrillo with an apparent inconsistency about whether he was beaten by the police or by the military, he did acknowledge some confusion at the time brought about by a blow to the head. It was this inconsistency that the Board used as the basis for disbelieving any part of Mr. Carrillo’s evidence about being attacked. At the same time, the Board gave no meaningful consideration to a medical report tendered in evidence confirming that Mr. Carrillo’s injuries were the result of “a confrontation between military, police and the people” and where the following injuries were noted:
- bruising to the frontal and parietal areas of the scalp and both eyelids;
- traumatic conjunctivitis in right eye;
- bullet wound in left leg showing entry and exit points; and
- bruise to the jaw.
Although the Board makes a passing reference to this critical piece of corroborative evidence, it failed to draw any conclusion about its authenticity or how the documented injuries could otherwise have occurred. Evidence given of a gunshot wound would ordinarily be difficult to falsify and, therefore, unlikely to be fraudulently advanced. The Board’s silence on this issue suggests that it, too, had a problem in reconciling this particular injury and the well-documented violence of February 12, 2003 with its conclusions that Mr. Carrillo had made the whole thing up. Material omissions of this kind in the decision-making process will usually require that a decision be overturned: see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 at paragraph 17.
[14] In rejecting Mr. Carrillo’s evidence of being attacked on February 12, 2003, the Board also relied upon an erroneous perception that he had failed to mention in his PIF that he had been detained following this event. This was an error repeated by the Board during its questioning of Mr. Carrillo. Although the PIF lacks some detail, it clearly refers to Mr. Carrillo being apprehended and later released by the authorities. This criticism by the Board of Mr. Carrillo’s PIF statement was entirely unjustified as was its related finding that his evidence on point was vague and evasive.
[15] A key aspect of Mr. Carrillo’s claim of persecution was an alleged beating administered to him on the night of June 15, 2003 by hooded members of the Bolivian army. This event was recorded in Mr. Carrillo’s PIF and he was questioned about it during the Board hearing. A corroborating medical certificate was tendered in evidence to the Board. Surprisingly, the Board decision contains no reference whatsoever to either the event or to the medical report. This was key evidence presented by Mr. Carrillo in support of his claim and the Board had an obligation to consider it. The failure to do so is patently unreasonable.
[16] There are several other problems with the Board’s treatment of the evidence. For example, its plausibility conclusion dealing with the tactics of the Bolivian Police in confronting opposition groups is not a reasonable basis for rejecting Mr. Carrillo’s evidence on the point. His testimony on this point is no less worthy of weight than the Board’s view and it is not a matter over which the Board could claim any level of special expertise. This is the kind of plausibility finding that ventures well beyond the assessment of normal and rational human behaviour and which the Board must generally avoid making in the absence of supporting evidence.
[17] The Board’s conclusion that there was no evidence that the MAS leader, Mr. Morales, had been persecuted might have been technically accurate but the Board’s failure to address the documentary evidence that he may have been targeted for assassination is a further example of selectivity by the Board. The evidence that Mr. Morales was a potential target of the Bolivian authorities was all the more important to Mr. Carrillo’s claim because of their close political association. If Mr. Morales was in danger, it stands to reason that his close political associates might also be at risk. This evidence should not have been ignored by the Board.
[18] The Board’s description of Bolivia as a democracy where the freedom of association and assembly are generally respected is also a gloss of the evidence. In 2003, the Bolivian political situation was far from stable and human rights abuses were prevalent. This is well documented in the evidence including the United States Department of State Report for 2003.
[19] With respect to Mr. Carrillo’s allegation that his home had been deliberately set on fire in 2003, the Board seems to have been preoccupied with identifying relatively minor inconsistencies between Mr. Carrillo’s PIF and his testimony. The simple fact that there may have been omissions of detail from Mr. Carrillo’s PIF is not a particularly sound basis for concluding that his entire description of this event was “fabricated”. Here, the Board made no findings whatsoever with respect to the central allegation that Mr. Carrillo’s home had been set on fire by his political adversaries and no attention was paid to evidence which corroborated certain aspects of that testimony. In adopting a piecemeal approach to the evidence, the Board failed to assess Mr. Carrillo’s evidence as a whole or in context. In that respect, the Board’s decision failed to conform with the dictates of the Federal Court of Appeal decision in Djama v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 531 (F.C.A.).
[20] In summary, there are so many significant deficiencies in the Board’s analysis and treatment of the evidence that the Board’s decision cannot stand. Those deficiencies clearly meet the test for patent unreasonableness. In the result, the Board’s decision is set aside with the matter to be remitted for reconsideration on the merits by a differently constituted Board.
[21] Neither party proposed a certified question and no question will be certified.
JUDGMENT
THIS COURT ADJUDGES that the Board’s decision is set aside with the matter to be remitted for reconsideration on the merits by a differently constituted Board.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6240-05
STYLE OF CAUSE: FELICIANO CARRILLO BOCANGEL ET AL
v.
MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 27, 2006
APPEARANCES:
D. Clifford Luyt FOR APPLICANTS
Linda Chen FOR RESPONDENT
SOLICITORS OF RECORD:
Patricia Ann Ritter FOR APPLICANT
Czuma, Ritter
Barristers & Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Ontario Regional Office
Toronto, Ontario