Date: 20040514
Docket: IMM-6247-02
Citation: 2004 FC 690
Ottawa, Ontario, Friday, the 14th day of May 2004
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
CARLOS MIGUEL MOSTACERO ORTIZ
MARIA LUZ VASQUEZ BAIMA
MARIA YSABEL MOSTACEROS VASQUEZ
MIGUEL ANDRES MOSTACEROS VASQUEZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Refugee Protection Division of the Immigration and Refugee Board ("RPD") found Mr. Mostacero Ortiz and his family not to be Convention refugees and not to be persons in need of protection. They bring this application for judicial review of that decision.
[2] Mr. Mostacero Ortiz and his family are citizens of Peru. He made his claim on the basis that he fears persecution at the hands of members of the Shining Path. Mr. Mostacero Ortiz says that he came to the attention of the Shining Path because he advised private farmers not to pay protection money ("cupos") demanded by the Shining Path. As a result, five masked persons attacked him in July of 2000.
[3] The RPD appears to have found the claimants not to be credible. The reasons of the RPD for this apparent finding are as follows:
The principal claimant was invited to explain when the "cupos" extortion began. He answered that this practice had a long history in Peru and that the companies he worked for in the eighties and nineties paid this money. He related two incidents about businesses that refused to pay the money. The first was in 1989, when 5,000 chickens were poisoned, and the second in 1991, when a business owner saw his yacht gutted by fire. He thought that, in both situations, police investigations were carried out.
When invited to explain whether he had been targeted before, he answered no. When asked to explain whether he informed the police of the attack on July 19, 2000, the claimant answered that the police representative was not at the hospital when he was there and that he immediately went to the airport after his release from the hospital. At the hearing on September 25, 2002, he added that he had called the army's headquarters in Pucallpa once he had returned to Lima and was told that he had to go in person to file a complaint. When asked to explain why he had discussed this pay-off with his clients only in 2000 when, according to his testimony, this practice had a long history and terrorists were much more active in the eighties and nineties, the claimant answered that, at the time, the military were carrying out more active surveillance and that there was almost no more terrorism. The claimant testified that, to file a complaint, he had to go to the army's headquarters, which was 10 kilometres from Pucallpa. The army therefore always had a presence because the army's headquarters was very close to Pucallpa. When asked to explain why he did not return after his convalescence in order to file a complaint, the claimant answered that he was afraid to go back to this region. He also related a story about a friend, a forestry engineer, who told the claimant, while hospitalized in 1999, that the police were infiltrated.
The claimant's daughter was asked to explain whether they had alerted the police about the telephone call on July 27, 2000. She answered no, because they only thought of leaving the house. The panel finds all these explanations unlikely.
[4] The RPD did not refer to any inconsistencies, contradictions or evasions in the claimants' testimony. Rather, it appears that the RPD found some or all of the claimants' testimony to be implausible.
[5] That finding can not be supported on the reasons provided by the RPD. Subsection 169(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 requires the RPD to provide written reasons when it rejects a claim. To meet this obligation the reasons given by the RPD must be sufficiently clear, precise and intelligible that a claimant may know why his or her claim failed and may properly decide whether to seek leave and judicial review. See: Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. 545 (F.C.A.), decided under an equivalent statutory requirement. Credibility findings are, therefore, to be set out clearly and reasons must be given for such findings.
[6] Where credibility findings are based upon perceived implausibilities in testimony, the RPD should identify the facts which form the basis for the conclusion of implausibility. See: Leung v. Canada (Minister of Employment and Immigration) (1994), 81 F.T.R. 303 (T.D.). This is because the plausibility of testimony is only properly assessed by the RPD against known or undisputed facts. For this reason, the Federal Court of Appeal has said that plausibility findings are "nourished" by reference to documentary evidence (Fok v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 800) and has warned against applying Canadian paradigms in order to determine whether conduct is plausible. (Ye v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 584).
[7] For this Court to judicially review a plausibility finding made by the RPD, the Court must be able to discern from the decision the facts against which the claimant's evidence was tested by the RPD. Then the Court may assess the plausibility finding against those facts to determine whether the plausibility finding was patently unreasonable.
[8] In the present case, the blanket conclusion that the "panel finds all these explanations unlikely" fails to explain clearly and intelligibly the basis upon which explanations were found to be unlikely. While in some cases the basis of a plausibility finding may be immediately apparent even in the absence of reasons, this is not such a case. For that reason, the credibility finding of the RPD can not be supported.
[9] The RPD also found that the claimants had failed to rebut the presumption of state protection. The panel's reasons with respect to this conclusion are equally cursory and are as follows:
Furthermore, in the absence of a complete collapse of the government, one can assume that nations are capable of protecting their citizens. The claimants must refute this assumption by presenting "clear and convincing evidence". Although the system is not perfect, Peru condemns terrorist acts: in the civilian jurisdiction, a specialized terrorism division of the superior court tries cases. The division is based in Lima, but its judges travel to the provinces as needed. During the year, judges from this court travelled around the country to hear several hundred cases of persons with old warrants outstanding for terrorism charges.
Documentary evidence also mentions the following:
"On 31 December 1998 the police reportedly captured the Shining Path's 'top military leader in the capital.' (AP 4 Jan. 1999) The man was captured in the industrial slum of Vitarte, where he was in charge of organizing workers and neighbourhood networks for the group ..."
The panel determines, in light of the evidence, that the claimants have not refuted this assumption. [footnotes omitted]
[10] Thus, the finding of the RPD on state protection was supported only by reference to Peru's condemnation of terrorist acts, the existence of a specialized court division which heard several hundred cases based on old warrants and the capture in 1998 of the top leader in the capital.
[11] Absent from the reasons of the RPD was any analysis of the documentary evidence before it which contradicted the panel's conclusion about the availability of state protection and which supported the claimants' testimony. The documentary evidence contained confirmation that historically the Shining Path extorted monies, reports from credible agencies that at the time of the alleged attack upon Mr. Mostacero Ortiz the Shining Path was active in that area of Peru, and reports that the Shining Path remained active in 2000. The 2000 U.S. Department of State Report noted that while progress was being made, the Shining Path posed a "still lethal threat". An article written on the Shining Path in 2000 noted that:
Although the Shining Path's military strength and organizational capacity have been greatly reduced in recent years, it remains a visible force capable of undertaking successful terrorist attacks on public and private infrastructure and assassinating police personnel and civilians. It is unlikely that the Peruvian government will be able to completely suppress the group any time soon. This is due largely to the fact that the social and economic conditions that spawned the revolution - - including widespread poverty, unemployment, and hopelessness in rural and urban areas - - have improved little since the group was founded in the 1960s.
[12] In the face of this independent documentary evidence, the analysis by the panel was insufficient to warrant its conclusion that the applicants had not refuted the presumption of state protection.
[13] Counsel for the Minister argued that, notwithstanding, the RPD was entitled to conclude that the claimants failed to seek state protection and to reject their claims on that basis.
[14] In my respectful view there are two difficulties with that submission. First, the RPD did not reject the applicants' claim on that basis. Second, only where state protection might reasonably have been forthcoming will a claimant's failure to approach the state for protection defeat his or her claim. See: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 49. As noted above, in this case the analysis of the RPD was insufficient to support the conclusion that state protection might reasonably have been forthcoming.
[15] For these reasons, the application for judicial review is allowed. Counsel posed no question for certification and no question arises on this record.
ORDER
[16] THE COURT THEREFORE ORDERS THAT:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division dated November 18, 2002 is set aside.
2. The matter is remitted for redetermination before a different panel of the Refugee Protection Division of the Immigration and Refugee Board.
"Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6247-02
STYLE OF CAUSE: Carlos Miguel Mostacero Ortiz et al. v. The Minister of Citizenship of Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 10, 2004
REASONS FOR ORDER AND ORDER BY
THE HONOURABLE MADAM JUSTICE DAWSON
APPEARANCES:
Kakomire Kashongwe FOR THE APPLICANTS
Lynn Marchildon FOR THE RESPONDENT
SOLICITORS OF RECORD:
South Ottawa Community Legal Services
Ottawa, Ontario FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT