Federal Court Decisions

     IMM-3547-97

BETWEEN:

     CESAR MARTIN DIAZ

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

ROULEAU, J.

     This application for a stay of the execution of a deportation order scheduled for August 28, 1997 came before me at Toronto on August 25, 1997.

     The applicant, a citizen of Peru, entered Canada on June 30, 1989. On January 12, 1990, he made a claim for refugee status on the basis that his life was in danger because he had turned police informant on the Sendero Luminoso (Shining Path), a revolutionary group operating in Peru. The matter went before the Refugee Division of the Immigration and Refugee Board in September of 1992, as well as May and June of 1993, and a decision was rendered on February 21, 1994. The panel determined that this individual was found to be responsible for crimes against humanity under article 1.F of the 1951 United Nations Convention incorporated into the Immigration Act as a Schedule. Article 1.F reads as follows:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

     A very detailed analysis of the evidence and the background was provided by the panel in reaching their conclusion and I would like to highlight some of their comments:

There was no credible evidence that the claimant was forcibly recruited in the Shining Path. The claimant entered the University of San Marcos knowing fully well that it was a hot bed for Shining Path activities. He was fully aware of their philosophy and tactics. He donated money, listened to their ideological talks and went to a meeting when he was asked. Unlike some of his fellow classmates, he decided to go to a second meeting where he was recruited. He displayed loyalty and hence was trained in their tactics near Ayacucho (headquarters of the Shining Path) in both weaponry and bomb assembly.

(my underlining)

...

However, he knowingly delivered many innocent persons to face that fate. He played the role of "decoy" to keep the military and the police away from the scene of the real targets and killings. He was fully conscious of the intent and effect of the brutal behaviour of the Shining Path, while engaged as a "decoy". He personally engaged in activities as a decoy knowing fully well that in some other place, people are being killed.

The panel's concluding paragraph reads as follows:

Having considered all of the evidence before us on the issue of the applicability of the exclusion clause, and for all of the foregoing reasons, the Refugee Division determines Cesar Martin Diaz to be excluded from the provisions of the Convention, and, by virtue of the definition in section 2(1), he is not a Convention refugee.

     This decision was reviewed by Justice Muldoon of this Court and a decision was rendered April 24, 1995. In upholding the decision of the Refugee Board, he rejected the credibility of this applicant and confirmed his membership in the Sendero Luminoso (Shining Path) which organization he found to be "a limited, brutal-purpose organization within the meaning of the test enunciated in the Court of Appeal decisions" Ramirez v. M.E.I., [1992] 2 F.C. 206, and Moreno v. M.E.I., A-746-91 (September 14, 1993). In his Reasons, when reviewing the applicant's allegation that he had become a traitor to this brutal movement and felt he had to leave the country because he feared for his own safety, Justice Muldoon made the following determination:

Did he flee to his haven of Canada straight away? No, he fled to - through - Chile, a hispanophone country - and for a five-month sojourn in Argentina, "03-02-89 [to] 29-06-89", another hispanophone country. Was he really fleeing persecution? Was he really in fear of the loss of life and personal security, when he came into Canada? No matter. The CRDD rejected the application on the basis of Article 1.F(a).

     Following this negative decision, no application was made for review under the Post-Determination Refugee Claimants in Canada Class and he is now statute-barred.

     In June of 1995, the applicant married a Canadian citizen and subsequently an application was made, sponsored by his wife, under section 114 of the Immigration Act for consideration under humanitarian and compassionate grounds seeking the Minister's authority to apply for immigrant status from within Canada. This was rejected and the applicant was advised on April 11, 1997. It was determined that, though the marriage was found to be bona fides, he was nevertheless denied the relief on the basis of "his past criminal activities".

     When counsel for the applicant appeared before me, he had attempted to file with the Court an Amended Application for Leave and for Judicial Review. This was opposed to by counsel for the respondent. Essentially, by means of this amended application counsel sought relief as well as judicial review of issues that had never been the subject of any determination by either the Refugee Claims Division, the Minister or any immigration officer. He argues that he had written a letter to Immigration Canada on August 15, 1997 indicating that they stay the deportation order; he forwarded to the immigration officers certain documentary evidence requesting that they conduct a risk analysis with respect to the removal of his client. In his amended application he states that an immigration officer would have verbally advised him that they would not defer the removal of the applicant.

     Counsel further argues in the amended pleading that deporting the applicant to Peru would violate his rights under sections 7 and 12 of the Charter; and, in the alternative, if the Court was not prepared to quash the deportation order or grant a stay, that the Court direct that the applicant be deported to a safe third country.

     Though I have not allowed the filing of the Amended Application for Leave and for Judicial Review, I am nevertheless prepared to comment. I am not aware of any decision of either the Trial or Appeal division of the Federal Court that would find a challenge to the immigration procedure to violate sections 7 and 12 of the Charter and I reject these submissions outright.

     In his pleadings the applicant challenges the validity of the deportation order, however no serious argument was advanced in this area nor were there any submissions with respect to directing deportation to a safe third country.

     Essentially, what the applicant submits is that in light of the more recent documentary evidence filed with the immigration officer in correspondence of August 15, 1997, I should be satisfied that the present country conditions would support changes affecting the security of the applicant and that a risk assessment should be conducted before his removal.

     I have endeavoured to find jurisdiction which would allow me to judicially review decisions that would permit me to stay this deportation order. There was no application under PDRCC which could have eventually resulted in a risk assessment. This initiative was not taken. There is no application on humanitarian or compassionate grounds submitted to the Minister suggesting that this applicant would be at risk if he returned to Peru and therefore no decision on this issue for the Court to review.

     I am faced with a situation where the refugee division of the Immigration and Refugee Board found this claimant not to be credible; the decision by Muldoon J. of this Court made a similar finding. How can I, in light of both of these determinations, accept the sworn testimony now before me alleging that he would be at risk if returned to Peru?

     Counsel suggested that it was almost incumbent upon me to review the documentary evidence. On numerous occasions this Court has maintained that this was not the place to determine country conditions necessary to evaluate a risk assessment.

     Counsel submits that Madam Justice McGillis, in Sinnappu v. M.C.I., IMM-3659-95, suggested in principle that risk assessments are almost mandatory in cases where failed claimants could be in danger if returned to their home country. I have carefully reviewed her decision and I would like to point out that in her case all the steps available under the regulatory scheme of the Immigration Act were adhered to by the applicant and there was outright admission by the immigration officials that the risk assessment had not been properly evaluated following the review of the application for membership in the PDRCC class.

     May I say in closing that the Immigration Refugee Board found that the applicant, when alleging that he was coerced into becoming an adherent to the Shining Path, could have sought the protection of cousins who were both in the Peruvian Intelligence as well as in the Military and he could have gone to them for help in the past, why can he not avail himself of their protection now?

     I have not been convinced that I should interfere with the deportation order and the application is hereby denied.

JUDGE

OTTAWA, Ontario

August 27, 1997