Ottawa, Ontario, March 19, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ROBERTO AUGUSTO ARMAS CORNEJO,
MILENA FABIOLA ALARCON CUADROS,
XIMENA DANIELA ARMAS ALARCON
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] On this application for judicial review the Applicants, Roberto Augusto Armas Cornejo, Milena Fabiola Alarcon Cuadros and Ximena Daniela Armas Alarcon (claimants), challenge an unfavourable decision of the Immigration and Refugee Board (Board) rendered on February 24, 2006. For the reasons which follow I allow their application and direct that this matter be returned to the Board for reconsideration on the merits. Before the Board, the Respondent Minister took the position that Mr. Armas was inadmissible but that argument was rejected and it is not in issue in this proceeding.
Background
[2] Mr. Armas’ claim to protection was based on allegations that he was the target of certain former members of the Peruvian Intelligence Service (SIN) for whom he and his brother, Daniel, had worked as chauffeurs during the late 1990’s under the infamous Fujimori regime. The Fujimori government collapsed in 2000 amid widespread allegations of human rights violations including assassinations, torture, intimidation and corruption – activities in which SIN was directly implicated and which the Respondent appears to have acknowledged in its position before the Board in challenging Mr. Armas’ admissibility.
[3] Mr. Armas contended that because he and his brother had knowledge of “names and faces” they began to receive threats directed at ensuring their silence. Eventually they were warned to leave Peru and both left for Florida with Daniel leaving in August, 2000 and Mr. Armas following in October of that year. Mr. Armas also testified that many of the SIN agents with whom he had worked remained in the national police service or with the Peruvian armed forces. This evidence was corroborated by documentary evidence submitted by Mr. Armas. It was contended that those individuals were concerned about being exposed for their extensive human rights abuses. This was the ostensible motivation for the threats that were directed at Mr. Armas and his family. He also testified that he did not fear the present government of Peru but only those members of the national police service who had been employed by SIN.
The Board Decision
[4] The Board rejected the claimants’ claims but did accept that Mr. Armas and his brother had worked for “a shadow organization” which was part of the Peruvian intelligence apparatus. The Board found Mr. Armas’ credibility to be lacking because of “many unexplained inconsistencies in [his] actions”. It also rejected his testimony about the absence of state protection relying, instead, on documentary evidence that the current Ministry of Justice has investigated a wide range of “misdoings” by the former regime and has detained a number of top former government officials. The Board also concluded that the claimants’ had failed to make reasonable efforts to seek state protection before leaving Peru.
[5] The Board rejected Mr. Armas’ claim that he genuinely feared a return to Peru based on the initial delay in leaving and on the failure of the “claimants” to seek asylum in Florida upon first arriving there. It also found an inconsistency between the evidence that Mr. Armas’ wife and child were in hiding in Peru but, nevertheless, exposed themselves to discovery by applying for passports. On the strength of this supposed inconsistency, the Board found it to be improbable that the family was in hiding at any time.
[6] Finally, the Board considered it to be important that Mr.Armas’ brother ostensibly returned to Peru and that this “voluntary” reavailment undermined the claims of Mr. Armas and his family as similarly situated individuals.
Issues
[7] (a) What is the appropriate standard of review for the issues raised by the claimants?
(b) Did the Board make reviewable errors in its treatment of the evidence before it?
Analysis
[8] Because the determinative issues in this case are all evidence-based, the standard of review is either patent unreasonableness or reasonableness simpliciter. However, because I have concluded that the higher standard has been met in this case, it is unnecessary for me to conduct a detailed analysis on this issue.
[9] There are many problems with the Board’s treatment of the evidence which cumulatively render its decision patently unreasonable. Indeed, some of those mistakes are sufficiently serious, that they alone justify the setting aside of this decision. These include failures to consider material evidence, significant mischaracterizations of the evidence and a failure to recognize important evidentiary distinctions among the three claimants.
[10] One of the Board’s key findings in rejecting these claims was that Mr. Armas’ brother had returned to Peru to rejoin his family there. The significance of the brother’s behaviour to the claimant’s claim to protection was described as follows:
It can not be added that one could find a more similarly situated individual than the principal claimant’s own brother. They, after all did the same work, faced similar threats and allegedly fled the country for similar reasons.
Accordingly, the Board finds that it is not reasonable to accept that these claimants are more at risk in Peru than the brother who has decided to voluntarily re-avail himself of the protection of his home state.
[11] The problem with this finding of supposed reavailment is that Mr. Armas had testified that his brother had returned only briefly to Peru (for about 3 days) before leaving for Chile to be reunited with his family there. According to Mr. Armas, his brother’s spouse and children could not obtain visas to enter Canada and his marriage was threatened after several years of separation. Near the end of the hearing the Board asked Mr. Armas to attempt to obtain evidence to corroborate his evidence that his brother was in Chile. Although that evidence was provided after the hearing it is nowhere referenced in the Board decision. Instead, the Board concluded, in the absence of any evidence, that the brother remained in Peru.
[12] It seems fairly obvious that the Board completely overlooked a considerable amount of material evidence including a lengthy submission by the claimant’s counsel submitted on November 14, 2005 after the hearing. This was material that the Board agreed to accept. Included in that package were extensive submissions and reports which contradicted the Board’s ultimate conclusions concerning the availability of state protection. A good summary of that contrary evidence is contained in the following passage from Counsel’s post-hearing submissions to the Board:
In August 2004, the US Department of State reported (at p. 1.3.8) that the government of Peru “is now weighing its response to the CVR’s [TRC’s] recommendations that human rights violators be tried…”.
The US DOS Report on Human Rights Practices for 2004 (February 2005) reported that during the year the government “filed charges in 47 cases involving 150 persons whom the TRC identified as possible human rights violators, but most cases remained under prosecutorial investigation; only 16 persons have been formally charged.” (p. 2.2.16)
Human Rights Watch World Report 2005 states: “Peru’s progress in carrying out the recommendations of its truth commission…. has been disappointingly slow. Movement toward prosecuting state officials responsible for the worst human rights violations has been obstructed by military courts. Civilian prosecutors have advanced significantly in only a small number of cases.” (p. 2.3.1) The special prosecutor’s office mandated to investigate 159 cases of disappearance and another 43 cases referred to it by the TRC has filed charges in only 5 cases. None of the defendants is in detention. In addition, more than forty former members of the Colina group are currently detained awaiting trial. (p.2.3.2)
With respect to corruption under Fujimori (as apposed to human rights abuses), the investigating attorney stated in January 2002 that the extensive inquiry “will last more than five years”. (p.2.4.7)
Finally, most recently Peru is seeking the extradition of Fujimori himself from Chile. (See new evidence, faxed herewith: Washington Post, November 7, 2005)
The male claimant testified that the SIN agents he worked for as a driver were members of the police and the military. The aforementioned evidence shows that the investigation and prosecution of SIN agents for human rights violations is an ongoing, but slow and lengthy process. The evidence also shows that many possible suspects are currently in the police force, or, even if under investigation or facing charges, are not in detention (i.e., at large or under house arrest). According to an editorial of January 30, 2005 (C-6, Item 2, p. 5) the courts have released some members of the Colina Group death squad due to “excessive detention” before trial. The evidence shows, as well, that Montesinos himself exercises considerable power, over the press and the “mafia”, from within prison. (See C-5, Package B, Item 5, p. 8; Peru Index, 2005, pp. 2.2.12, 2.4.7) Montesinos, while admitting the corruption charges against him, has not admitted human right violations. (See C-5, package B, p. 11, April 20, 2004.)
That is, it is submitted that the agents who the male claimant drove, and the “high-level officials of the national Intelligence Service” who the TRC holds “criminally responsible for the assassinations, forced disappearances and massacres by the ‘Colina’ death squad” (Peru Index, p. 2.1.15) have every reason to anticipate that, eventually, the authorities will get round to investigating them, or, if already investigated, the authorities lack the direct identification evidence which the male claimant and his brother Daniel could provide. They therefore have every reason to ensure that the male claimant and his brother Daniel ware not around to provide that evidence. This is even more so if Fujimori is successfully extradited to Peru to face the charges laid against him.
At the same time, it is evident that the people who have been threatening the male claimant and his brother since August 2000 to the present, are free (that is, not detained) to carry through with their threats to silence them, or as in the case of Montesinos, are able to silence the male claimant from within prison. It is doubtful that the authorities would be able to provide adequate protection, even if they were willing. It is clear from the materials that the present government is attempting to rebuild the democratic institutions of the state, but these institutions are fragile. Further, there is considerable popular support for the return of Fujimori. The DOS report makes clear that there are serious problems of impunity within the police, who still practice torture, and witnesses are threatened and intimidated from filing charges against security forces (police and military) human rights violators. There is a lack of faith in the justice system. At page 2.2.7 the DOS Report states:
The PNP was considered undermanned, had problems with professionalism, and was often ineffective against common criminal activity, and unable at times to meet its mandated responsibilities, such as witness protection.
Corruption and impunity were problems.
While “judicial reform continued to be a priority of the Government, its “implementation was irregular”. (p. 2.2.9) Further, as noted above, many of the former SIN agents remain within the PNP.
There are examples of the assassination or targeting of witnesses. See C-7, Item 3, June 25, 2005 where a witness against a drug-trafficking organization was murdered. Montesinos and the SIN were implicated in drug-trafficking. A news article of February 2, 2005 (C-6, p. 8) reports the attack on two witnesses against an international drug-trafficking ring. One was killed. A news article (C-7, Item 4, undated) reports that a PNP officer, Major Gavidia, states he was threatened by Felix Murazzo, former Minister of Internal Affairs (i.e., responsible for the PNP) in Fujimori’s regime, and a former SIN agent, to remain silent about Murazzo’s ties with Montesinos. Major Gavidia says: “…he tried to silence me through threats. That is why I hold Murazzo responsible for whatever happens to me or my family”. Even a police major does not feel safe.
[13] The above evidence is simply ignored in the Board decision. Other evidence included within the November 14, 2005 submission to the Board but nowhere noted in its decision are medical reports concerning the minor claimant and corroborating correspondence from Mr. Armas’ parents in Peru.
[14] On this point it is noteworthy that in footnote 2 to the Board decision the only material from the claimants’ counsel noted to have been reviewed is a submission dated November 4, 2005 dealing with the issue of Mr. Armas’ admissibility to Canada. No mention whatsoever is made of the November 14, 2005 submission and the only reasonable inference to draw from this is that this material evidence and counsel’s related arguments were overlooked by the Board. This failure to reference key evidence has frequently been found to be a reviewable error and for this point I would refer to the recent decision of Justice Judith Snider in Jones v. Canada (MCI), [2006] F.C.J. No. 591, 2006 FC 405 at para 37:
[37] As a general proposition the Board is entitled to prefer some documentary evidence above others (Maximenko v. Canada (Solicitor General), [2004] F.C.J. No. 606, 2004 FC 504 at para. 18). It is also trite law to say the Board need not refer to every piece of evidence before it (ibid.). However, if the Board fails to discuss important, contradictory evidence, then this Court may conclude that the Board ignored or misapprehended key facts and came to an erroneous decision (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) at para. 17). The questions becomes whether, overall, this evidence is “so important and vital that failure to acknowledge it may constitute a reviewable error” (Johal v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1760 at para. 10 (T.D.)). In my view, the evidence that I have identified above falls into this category. The Board’s failure to acknowledge and weigh this evidence is a reviewable error.
[15] The Board also erred in its common treatment of these three claims to protection. It seems to have concluded that the claims by Ms. Alarcon Cuadros and by the minor child were entirely derivative from that of Mr. Armas. While there was certainly some overlap among these claims and Mr. Armas was at the root of all of them, the Board had an obligation to examine the evidence of individualized risk. In fact, there was considerable evidence of threatening behaviour specifically directed at the child and at Ms. Alarcon Cuadros after Mr. Armas had come to Canada. Apart from the Board’s global rejection of “the claimants’ allegations of a well-founded fear of return to Peru” this evidence is totally ignored. The unwarranted conflation of these claims is further magnified by the Board’s sloppy treatment of the issue of delay. Although Mr. Armas was in the United States for a few weeks before claiming protection in Canada, his spouse and child were not. They came to Canada later on and immediately claimed refugee protection. Notwithstanding this evidence the Board wrongly attributed delay to all of the claimants in the following passages from its decision:
The claimants left Peru on October 04, 2000 and went to the United States of America for over 1 month before coming to Canada on November 17, 2000. The United States is a signatory to the 1967 Protocol, the claimants made no effort to seek protection in that country. In my opinion, this constitutes conduct inconsistent with a well-founded fear of persecution, and such conduct has been held by the Federal Court to have a negative impact on a claim.
…
The claimants’ failure to seek out refugee protection or asylum in the U.S. does serious harm to any allegations of fear in Peru. Whatever temporary status that these claimants enjoyed while in the U.S. would ultimately end and therein cause return to Peru.
[16] There is another obvious mistake in the decision where the Board confuses Mr. Armas with his brother and repeats the error of the date of departure from Peru for his wife and child by stating:
The principal claimant states that tells [sic] the Board that he left Peru on August 23, 2000 and was joined there by his brother, Roberto [Mr. Armas] along with the spouse and the minor claimant in Miami on October 4, 2000.
[17] All of these errors are serious in their own right and indicate quite strongly that the Board not only overlooked evidence but was also confused about the evidence that it was relying upon.
[18] The Board’s negative plausibility conclusion dealing with the supposed inconsistency between Ms. Alarcon Cuadros’ passport application and her ostensible attempt to hide from Peruvian authorities is also somewhat contrived. Although Ms. Alarcon Cuadros was apparently attempting to keep a low profile in Peru, her evidence indicated that her whereabouts had been uncovered and she was faced with repeated threats to her safety and to the safety of her daughter.
In addition, the agents of alleged persecution were in the national police service and not part of the governing administration. Presumably the only realistic and lawful means of getting out of Peru was with a passport. Faced with a choice of remaining in Peru under a continuing threat or seeking a passport as a means of escape, choosing the latter option cannot be reasonably described as improbable or implausible. Indeed, seeking a passport in the context of the actual evidence before the Board would not have placed Ms. Alarcon Cuadros in any position of increased risk beyond that which she and her daughter already allegedly faced.
[19] The Board’s decision in almost all of its aspects is patently unreasonable and cannot be allowed to stand. In the result this application is allowed with the matter to be remitted to a reconstituted Board for a re-determination on the merits.
[20] Although I cannot identify an issue of general importance arising from this decision, I did leave open to the parties the opportunity to consider that issue. In the result, the Respondent will have seven (7) days to propose a certified question, if any, with a right of reply within the three (3) days following.
JUDGMENT
THIS COURT ADJUDGES that this application is allowed with the matter to be remitted to a differently constituted Board for re-determination on the merits.
"R. L. Barnes"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1537-06
STYLE OF CAUSE: ROBERTO AUGUSTO ARMAS CORNEJO, MILENA FABIOLA ALARCON CUADROS, and XIMENA DANIELA ARMAS ALARCON
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATON
Respondent
DATE OF HEARING: February 26, 2007
REASONS FOR JUDGMENT
APPEARANCES:
Modupe Oluyomi For the Respondent
SOLICITORS OF RECORD:
Neil Cohen
Barrister & Solicitor
Toronto, ON For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent