Date: 20020813
Docket: IMM-3505-00
Neutral citation: 2002 FCT 855
Ottawa, Ontario, August 13, 2002
BEFORE: PELLETIER J.
BETWEEN:
LUCERO MICAELA BERDEJO COSSIO
Plaintiff
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
[1] Lucero Micaela Berdejo Cossio was a member of a secret society in Lima, Peru, the purpose of which was to investigate and report cases of students who had disappeared and were killed by the National Intelligence Service (NIS). The claimant's brother Enrique was the founder of this group, which had only 13 members. The group did its work in the greatest secrecy. Even the claimant's parents did not know of its existence. The claimant investigated the disappearance of a student named Paez. She had a contact with journalists who gave her information about Paez. In addition, she spoke to certain individuals who allegedly knew him, but did so furtively as to avoid attracting the attention of the security agencies.
[2] In early May 1997 Enrique told the group he suspected the authorities knew of their activities. He warned them that if anything happened they should go to the legislator Javier Diez-Canseco.[1] These words were prophetic, as the unfortunate Enrique was found dead at home by his wife on May 28, 1997. The death was reported in a regional newspaper, which noted that his death was the result of an accidental contact by 10,000-volt electrical wiring with a telephone. In addition to killing Enrique, the accident caused severe burns to three other people in the area. The report of the incident (Exhibit P-4) announced the government's intention to investigate this tragedy. However, the claimant believed that the National Intelligence Service ("the NIS") was involved in her brother's death.
[3] She was not reassured when in the days following her brother's death she found she was being watched. On June 7, when she tried to go to a meeting with Mr. Diez-Canseco, her car was cut off by a pick-up so that she had a collision with another car. Later in the same month, she found her tires had been cut after she saw the same pick-up stopped near her car. The claimant, who was terrified, decided to leave Lima and, through a friend, found a job as a social worker in a village twelve hours from Lima. She arrived there in June 1997 and stayed until March 1998, when she decided to return to Lima and resume her secret work.
[4] When she got back to Lima the claimant spoke to Mr. Diez-Canseco again to ask him to initiate an investigation into her brother's death. He said he would do what he could, but doubted he would be able to get the authorities to take action. The claimant also applied to the Inter-American Commission on Human Rights regarding her brother's death. The secretary of that organization asked her if she had evidence to support her suspicions. She had to reply that she only had suspicions. The secretary was unable to act without evidence. The claimant also went to Monsignor Cipriano, the Archbishop of Lima, who said he was powerless to act on political matters. Additionally, the claimant resumed her investigation about Paez, despite the fact that her secret group had ceased its activities after her brother's death. The claimant's activities resulted in anonymous threats being made to her. On July 28, 1998 two armed men burst into her apartment, beat her up and warned her to stop what she was doing. She noticed they were driving the pick-up that she had seen earlier.
[5] This was when she decided to give an interview to a journalist she knew, in order to raise the profile of her investigations. It was not in dispute that a report appeared in a regional newspaper discussing the claimant's political activities. That report (Exhibit P-7), which said it was based on information provided by the claimant's family, spoke of the series of charges the latter had made and other public acts of opposition to the government by her. The report appeared on September 12, 1998, and the same day she received an anonymous call advising her to let things alone. To avoid endangering her father, with whom she was living, she again left Lima, this time for a village near Cayamarca, one hour by air from Lima. She stayed there for five months, during which time she decided to go abroad so she would be in a better position to combat the lawlessness.
[6] She then returned to Lima in early March 1999 to renew her passport and do what was required so she could go abroad. On March 29 she received a visa to enter the U.S. On the same day, she was stopped by two armed men dressed in black. They forced her to go into her house with them, put her on her bed and tied her hands and feet. They knew that she was leaving Peru and threatened to kill her family if she spoke against Peru abroad. Her attackers began to strip her. She was terrified and fainted. When she woke later there were two condoms on her chest and pain in her genital area. She concluded that she had been raped.
[7] The next day she called a female friend, who came to her assistance. The friend prepared a statement that was filed with the Refugee Division and which corroborated the claimant's story. The claimant left Peru on April 28, 1999. She went to the U.S., where she lived for three months, before coming to Canada to claim refugee status when she crossed the border.
[8] The Refugee Division dismissed the claimant's refugee status claim. It considered that the claimant's brother's death was the basis of her claim. The Refugee Division did not doubt that he had died. However, in view of the report which indicated that his death resulted from an accident, the Refugee Division did not accept that the death was the work of the security agencies. In the Refugee Division's opinion, this conclusion was supported by the fact that the government initiated an investigation and that the other victims and her sister-in-law refused to speak about it. Additionally, the Division found it improbable that the claimant had continued her investigations about Paez after the secret group was dissolved.
[9] The Refugee Division found a contradiction between the fact that the claimant had first testified that she brought the information she had about the disappearance of Paez to Mr. Diez-Canseco's attention before her brother died, and second, that she learned of the existence of Mr. Diez-Canseco when her brother disclosed his suspicions that the authorities knew about their activities. Another contradiction lay in the fact that claimant testified that she did nothing specific to bring the security agencies' role in her brother's death to light, except bringing it to the attention of the Inter-American Commission on Human Rights, whereas the report about his death maintained that she started a series of accusations and protests against lawlessness and assassination. When this contradiction was put to her, the claimant testified that the newspapers often exaggerated the facts.
[10] Finally, the Division concluded that the claimant lacked a subjective fear due to the fact that she returned to Lima twice when she had been living in two villages some distance from the capital without problems. In addition, the fact that she did not claim refugee status in the U.S. during her three-month residence was inconsistent with a genuine fear of persecution.
[11] The claimant objected that the Refugee Division should not have questioned her credibility based on the actions of third parties, namely the prosecutors, who initiated an investigation, and the other victims and her sister-in-law who refused to speak to her. In addition, the claimant considered it was unfair for the Division to have attached no weight to documents she entered in evidence, in particular the letter from her female friend attesting to her rape and the report on her political activities (Exhibit P-7). Further, the Division failed to consider whether the content of Exhibit P-7 exposed the claimant to persecution, in view of the content of the report.
[12] The defendant supported the Refugee Division's decision, noting the inconsistencies in the claimant's testimony. The ascribing of her brother's death to the security agencies was not supported by any evidence. In fact, the evidence submitted by the claimant herself, namely the report of his death, indicated that his death resulted from an accident. What is more, the claimant's conduct was not that of a person who had a genuine fear of persecution.
[13] The courts have consistently held that it is the Refugee Division's function to assess the plausibility of a claimant's testimony. Similarly, the Refugee Division can rely on documentary evidence in preference to a plaintiff's testimony: Zhou v. Canada, [1994] F.C.J. No. 1087. The fact that there was no reference to evidence does not necessarily mean that the Refugee Division did not consider it in weighing the evidence: Hassan v. Canada, [1992] F.C.J. 946. Having said that, the Division cannot pass over in silence evidence which is relevant to a decisive aspect of the claimant's claim. This is what Simpson J. said in Gourenko v. Canada, [1995] F.C.J. No. 685:
[para4] In my view, a document need only be mentioned in a decision if, first of all, the document is timely, in the sense that it bears on the relevant time period. Secondly, it must be prepared by a reputable, independent author who is in a position to be the most reliable source of information. Thirdly, it seems to me that the topic addressed in the document must be directly relevant to an applicant's claim. For example, documents sent to or received by an applicant, or prepared for an applicant, or about an applicant, which bear on relevant issues would, in the ordinary course be mentioned in reasons. In addition, if a document is directly relevant to the facts alleged by an applicant, one would expect to see that document addressed in the Board's reasons. On the other hand, numerous other documents may be only marginally relevant. In my view, it is not reviewable error for the Board to fail to deal with such documents in its reasons.
[14] This is what Evans J. said in Ranganathan v. Canada, [1999] 4 F.C. 269 at para. 17:
[para17] Whether the Refugee Division is required as a matter of law to deal in its reasons with particular items of evidence before it depends, among other things, on the cogency of the evidence in question and on the importance to the disposition of the issues in dispute of the facts to which the evidence relates.
[15] If evidence could have a conclusive effect on the outcome of the claim, the Refugee Division must discuss that evidence in its reasons. In Ranganathan, the Refugee Division did not deal with the documentary evidence that showed that a northern Tamil could not reside in Colombo for more than three days. Evans J. held that the Refugee Division was wrong not to discuss this in its reasons:
[para22] If the Refugee Division had been satisfied that Ms. Ranganathan would not be permitted to remain in Colombo for more than three days, it would surely have found that Colombo was not a reasonably available safe place for her. The evidence was thus relevant to a material issue. In addition, the documentary evidence of police practice, and of the warning given by the police officers that the applicant must leave, is sufficiently cogent to require the Refugee Division to have considered it in its reasons. Accordingly, the Refugee Division's failure even to mention this issue in its reasons rendered its dismissal of the applicant's claim erroneous in law.[2]
[16] In the case at bar, the Refugee Division did not deal with the evidence that the claimant was raped by two NIS officers. The claimant's testimony on this point was supported by a sworn statement by her female friend Aurora Martinez (Exhibit P-2), who assisted her after the incident in question. This evidence was not binding on the Refugee Division, but if it accepted this it was evidence of persecution of the claimant because of her investigations into her brother's death. The Refugee Division dealt with the death of the claimant's brother as the basis of her claim, and concluded that it was unlikely he had been killed by the NIS. At the same time, if the Refugee Division accepted that the claimant was raped by two officers of that agency, it should have considered why she was of interest to the security agency, and this would have led to a different assessment of the evidence as to the cause of her brother's death. What matters is not whether the Refugee Division accepted or did not accept the evidence, but that it explained why it rejected the evidence, if it did, in view of its relevance to the plaintiff's claim. In not considering this evidence in its reasons, the Refugee Division made an error of law justifying intervention by this Court.
ORDER
The application for judicial review is allowed.
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"J.D. Denis Pelletier"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-3505-00
STYLE OF CAUSE: LUCERO MICAELA BERDEJO COSSIO
v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 12, 2001
REASONS FOR ORDER BY: Pelletier J.
DATE OF REASONS: August 13, 2002
APPEARANCES:
Michel Le Brun FOR THE PLAINTIFF
Michel Pépin FOR THE DEFENDANT
SOLICITORS OF RECORD:
Michel Lebrun FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
[1] This name appears in different forms in the record. The Refugee Division's reasons speak of Diez Causeco, while the translation of the claimant's Personal Information Form refers to Diez Canseco. However, the claimant clearly wrote Javier Diez-Canseco in her PIF.
[2] This conclusion was questioned by the Court of Appeal because the question of the three-day residence was not raised by the claimant, but the Court did not question the principle stated by Evans. J.