Date : 20000726
Docket : IMM-4021-99
BETWEEN:
ELISA AYULO CHAVEZ
HANS PETER HANSEN AYULO
HANNELYSE HANSEN AYULO
NICK ANTHONY HANSEN AYULO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] The applicants, a mother and her three minor children, are citizens of Peru. The Convention Refugee Determination Division decided that the applicants were not Convention refugees because the evidence in support of their claim was not credible and, in any event, they failed to establish the absence of state protection.
[2] In its reasons for decision, which were first delivered orally immediately after the hearing, the tribunal sets out three examples where the evidence lacked credibility. The most significant, in my view, was the failure of Elisa Ayulo Chavez to state in her personal information form that her domestic servant for some two years was arbitrarily arrested and detained at the same time she was. This omission was further compounded by her apparent failure to seek information concerning the plight of the domestic servant subsequent to her own release from detention. Upon a careful review of the transcript, I am satisfied that there exists no reviewable error in the tribunal"s appreciation of the evidence in support of its negative finding of credibility.
[3] Concerning state protection, a lawyer was retained to bring this unlawful detention and abusive interrogation to the attention of the appropriate state authorities and to satisfy the applicants that Mrs. Ayulo Chavez was no longer under police suspicion. The attorney concluded that the matter had been resolved. Concerning the second incident where the applicants" residence was allegedly raided by terrorists, the same lawyer recommended that the family leave Peru and seek refuge elsewhere. It was only after her decision to leave Peru that Mrs. Ayulo Chavez, upon the recommendation of a relative, filed a complaint with the police concerning the second incident. She was told that the police did not have the resources to investigate the matter but was encouraged to communicate with them again if she encountered further problems. Mrs. Ayulo Chavez testified that she would have wanted constant police surveillance of her residence.
[4] In Kadenko et al. v. Canada (Solliciteur général) (1996), 206 N.R.272 (C.A.), Justice Décary stated at paragraph 5:
| [Translation] |
| When the state in question is a democratic state, as is the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state"s institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. |
[5] The documentary evidence concerning Peru discloses that "a dominant executive branch ... often uses its control of the legislature and the judiciary to the detriment of the democratic process." However, the same country report adds that throughout most of Peru "the civilian authorities generally maintain effective control of the security forces." Even taking into account the expressed concerns for the respect of human rights in Peru"s institutions, I am satisfied that it was open to the tribunal to conclude that the applicants had failed to establish clear and convincing evidence of Peru"s inability to afford state protection.
[6] In summary, even if another panel might have reached a different conclusion concerning the credibility of the evidence, the applicants have not demonstrated any reviewable error in the tribunal"s analysis of their testimony and in its appreciation of the proof concerning state protection. For these reasons, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
July 26, 2000