Date: 19990222
Docket: IMM-572-98
Between:
OMAR MARTIN FARRO RIVERA
JOSE LUIS FARRO RIVERA
LUIS MIGUEL FARRO RIVERA
GLADYS PAOLA FARRO RIVERA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of the Refugee Division that the applicants are not Convention refugees because there is no objective basis for the alleged fear.
[2] The applicants are Peruvian citizens. The Farro brothers already claimed refugee status in Canada in 1994. The Refugee Division dismissed their claim in June 1995 for lack of credibility. They left Canada in November 1996, to return on February 14, 1997.
[3] The applicants recite the following facts:
| [TRANSLATION] The applicants" father was an officer in the Peruvian army, and that is why the Farro children are persecuted in Peru. The Farros" father was removed from his army position in 1993. He was subsequently retired because he disagreed with Fujimori"s dictatorial military policy, and stripped of the right to live on the military base; |
| The applicants" maternal uncle, who worked in the municipality of San Juan and was responsible for public safety in that district, was murdered on October 5, 1993. The Shining Path is strongly suspected; |
| Another uncle of the applicants was intercepted by an MRTA patrol in December 1993 and taken captive. Only on payment of a sizeable ransom was he freed; |
| The Farros have all received many threats from the Shining Path. On February 4, 1994, terrorists attempted to take Omar Martin Farro captive. Although the applicants" father reported this incident to the police, the police did nothing to protect them, advising them not to leave the military base; |
| A few weeks later, the Farro brothers heard that people were asking friends of theirs for information about them, such as the times at which they left the military base. The applicants" parents were afraid and decided to send their sons to Canada; |
| When they returned from Canada in November 1996, the Farros continued to suffer the same persecution; the threats were even redoubled because they had returned to Peru. To avoid being found by the terrorists, the Farro family had to move frequently while the Farro brothers were away. The applicants" sister, who was no longer a student on the military base, suffered the same persecution as her brothers; |
| On December 28, 1996, Luis Miguel received death threats in a letter from the Shining Path. In February 1997, Omar was intercepted by armed masked strangers. In March 1997, a stranger stopped Paola on the street, taking her by the arm and threatening her with death. The whole family received telephone threats. Although the Farro family reported some of these incidents to the police, no steps were taken to protect them; |
| Thus, the applicants decided to leave Peru again. They arrived in Canada on various dates early in 1997. |
[4] The applicants argue to begin with that the Refugee Division erred in holding that the events they reported did not involve the repetition factor required to show past persecution. I agree.
[5] On the contrary, in fact, the evidence in the record displays repetition factors. Each child had problems with the Shining Path before first leaving for Canada and after returning to Peru. In addition, the family had to move frequently to avoid the threats. A maternal uncle was murdered and another was abducted by the terrorist movement. Considering that the applicants are the children of a former soldier, the murder of a soldier uncle is surely a relevant factor in assessing how much danger they are in. Faced with this evidence, the Refugee Division could not hold that the repetition factor was totally lacking. Nevertheless, because the panel found that the applicants had a subjective fear and essentially based its decision on State protection, that error was not conclusive.
[6] The Refugee Division found that the applicants had not shown by clear and convincing proof that the State refused or was unable to protect them.
[7] In my view, this finding is unfounded in light of the evidence in the record:
| 1) the testimony of the whole family and the father"s letter relating the numerous incidents in which the applicants were constantly threatened despite complaints to the police; |
| 2) the special situation of the applicants as children of a former army officer, which makes them a particular target of the Shining Path; |
| 3) the documentary evidence referring both to the difficulty of the Peruvian authorities in controlling the activities of the Shining Path, which still exists in Peru, and to the treatment suffered by many soldiers who disagree with the current policy of repression of terrorism by the authorities. |
[8] In my view, all of these facts convincingly show that State protection is not available in the applicants" situation.
[9] For these reasons, the application for judicial review is allowed. The decision of the Refugee Division is quashed and the matter is referred back for redetermination by a newly constituted panel.
[10] Neither counsel advised that a question be certified in the case at bar.
Danièle Tremblay-Lamer
JUDGE
OTTAWA, ONTARIO
February 22, 1999.
Certified true translation
Peter Douglas
Date: 19990222
Docket: IMM-572-98
OTTAWA, ONTARIO, FEBRUARY 22, 1999
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
Between:
OMAR MARTIN FARRO RIVERA
JOSE LUIS FARRO RIVERA
LUIS MIGUEL FARRO RIVERA
GLADYS PAOLA FARRO RIVERA
Applicants
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O R D E R
The application for judicial review is allowed. The decision of the Refugee Division is quashed and the matter is referred back for redetermination by a newly constituted panel.
Danièle Tremblay-Lamer
JUDGE
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-572-98
STYLE OF CAUSE: RIVERA ET AL. v. M.C.I.
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: FEBRUARY 16, 1999
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED: FEBRUARY 22, 1999
APPEARANCES:
Stewart Istvanffy FOR THE APPLICANT
Sébastien Dasylva FOR THE RESPONDENT
SOLICITORS OF RECORD:
Stewart Istvanffy FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada