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W. (D.C.) (Re), Convention Refugee Determination Decisions

Publisher Canada: Immigration and Refugee Board of Canada
Author Immigration and Refugee Board
Publication Date 29 July 1991
Citation / Document Symbol [1991] C.R.D.D. No. 888 No. M90-06672 (T)
Type of Decision 888; M90-06672 (T)
Cite as W. (D.C.) (Re), Convention Refugee Determination Decisions, [1991] C.R.D.D. No. 888 No. M90-06672 (T), Canada: Immigration and Refugee Board of Canada, 29 July 1991, available at: http://www.refworld.org/cases,IRBC,3ae6b64dc.html [accessed 13 December 2017]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
 

W. (D.C.) (Re), Convention Refugee Determination Decisions [1991] C.R.D.D. No. 888 No. M90-06672 (T)

Immigration and Refugee Board of Canada
Convention Refugee Determination Division
Montréal, Quebec

Panel: U.Lalanne and M.T.N. Vo In camera

Heard: November 26, December 7, 1990, January 25, March 8, 1991

Decision: July 29, 1991

Chile (CHL)--Negative--Males--Agents of persecution--Exclusion clauses--Credibility--Standard of proof--Social group persecution--Prosecution-Torture--Inhuman treatment--Human rights violations--(Indexed).

Appearances:

Carmello Tutino, for the claimant(s).

Normand Leduc, Refugee Hearing Officer.

REASONS FOR DECISION

These are the supporting reasons in the decision regarding the claim to refugee status of Mr. xxxxxxxxxxxxxxxxxx, a citizen of Chile, who alleges a well founded fear of persecution by reason of his membership in a particular social group.

The evidence consisted of the claimant's Personal Information Form, his testimony and documents dealing with the socio-political situation in his country. It should be noted that since counsel for the claimant failed to submit a translation of the letter to the claimant from his mother within the specified deadline, we cannot consider this document an integral part of the evidence except for the paragraph duly translated during the hearing. we have reproduced the claimant's response to question 33 on his Personal Information Form in full below:

[Translation]

"In early October 1988, 1 had the opportunity to work as a driver for the xxxxxxxxxxxxxx unit of Chile.

I was hired because my brother-in-law, an inspector with the civilian police, had recommended me and because I had some martial arts skills and good experience as a driver.

I accepted this job because it would enable me to help my parents and because I liked the idea of working for the justice system.

I was unaware of the goals and activities of this unit, which was comprised of three men: xxxxxxxxxxxxxxxx, xxxxxxxxxxxxx and xxxxxxxxxxxxxxx. Our supervisor was xxxxxxxxxxxxxx, who is currently a senior police official.

The unit's job was primarily to keep under surveillance, arrest and search people. For a long time, my companions led me to believe that these people were offenders. But later I realized that they were union leaders and opponents of the military regime.

Many times, I witnessed my companions beating the people they arrested, making death threats and committing many other offences against individuals whose only crime was to hold differing opinions. I identified with these people because my parents and my brother had been persecuted by the regime.

I gradually realized the real reason for this repressive unit, in which I was indirectly involved because my job was to drive these police officers where they ordered me to go and to always remain in the car. Many times, we transported the people to private homes which, I believe, were secret prisons.

Around January 1989, the situation became more obvious to me. I was a witness to totally illegal arrests and interrogation sessions.

Several times, I sought to voice my opinion, but they told me to shut up. I was afraid because of the things I knew and also because my companions took great advantage of their authority.

I left my job in December 1989; I didn't resign officially but said that I was going on vacation with my family and then did not return.

Then came the change in government and the investigations into human rights abuses, abductions and the disappeared.

Just when I thought my life was going well because I had a very profitable store, my problems began.

In late March 1990, I received a visit from my old police colleagues. They ordered me to leave Santiago without providing any explanation and left. I completely ignored this order since, at any rate, I couldn't leave the store.

In mid-June 1990, they returned. However, this time there was a scuffle and they threatened me if I did not disappear.

The first few days of July 1990, I was afraid. I thought they were going to kill me because they aimed their weapons at me, so I thought that I had better leave if I wanted to live.

I had some savings and with this money I organized my departure and applied for a US visa.

Investigations are currently under way in Chile into the actions of the civilian police and I fear being considered part of this group of people who are accused.

For all these reasons, I am requesting that the Canadian government grant me Geneva Convention refugee status."

The question before the Refugee Division is to determine whether the claimant is a Convention refugee as defined in subsection 2(1) of the Immigration Act [as enacted by R.S.C., 1985, c. 28 (4th Supp.), s. 1], which stipulates as follows:

"2 (1)‘Convention refugee, means any person who

(a)by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i)is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii)not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b)has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act."

It is recognized in law that this definition contains two elements: one subjective, the other objective. The subjective element relates to the existence of a fear of persecution in the claimant's mind, while the objective element requires that such fear have a valid basis.

The burden obviously lies on the claimant to establish by means of credíble evidence both these aspects of his fear of persecution.

After analysing all the evidence, the refugee hearing officer's observations and the arguments of both the Minister's representative and counsel for the claimant, we conclude that the claimant is not a credible or trustworthy witness because the testimony he gave at the hearing was vague, imprecise, inconsistent and contradictory with respect to the basic elements of his claim to refugee status. He replied evasively and in a roundabout manner to straightforward, direct and specific questions in an obvious attempt to minimize his responsibility in the atrocities committed with his knowledge, in his presence, by three police officers against individuals who, according to them, were opponents of General Pinochet's regime.

Between October 1988 and December 1989, the claimant, then aged 22 and with fourteen years of schooling, worked as a driver for Chile's investigation police in Santiago [Exhibit A-1: Response to information request No. CHL 7368] and more specifically for and with three police officers whom he drove to the homes of individuals suspected of being opponents of the Pinochet regime. According to the claimant, when these police officers arrested a person, they forced him into their vehicle, humiliated, insulted, interrogated and beat him and if he was released, they would utter death threats against him. But, what could be more disturbing than the following excerpt from the claimant's testimony which very clearly describes the horror of his police companions' actions:

[Translation]

"Q.And what did you do with the individual then?

A.Sometimes we took him to another location.

Q.What do you mean by another location?

A.To... to... to apartments, homes, residences; I never went inside those places. Once we got there, I didn't know what they did to him.

Q.Did you take this individual back to his home?

A.No." [Transcript of the hearings of November 26 and December 7, 1990, p. 19]

Later in his testimony, specifically during the hearing of March 8, 1991, the claimant changed his version of events, stating that the people illegally confined by the three police officers were always taken to the same private house. How are we to believe the claimant particularly when on page 8 of his Personal Information Form we read the following?:

"Many times, we transported the people to private homes which, I believe, were secret prisons."

How are we to consider the claimant a credible, trustworthy witness when, when questioned by his own counsel, he testified in a vague and evasive manner about how he spent his time during his unspeakable job, as attests the following excerpt:

[Translation]

"Q.About what time did you go to the homes, to the peoples' homes?

A.In the evening, once... once the sun went down.

Q.Can you explain to the panel... can you give us a typical example of how you planned your week from Monday to Friday?

A.You mean what they planned, what happened to me when I reported for work, when I began driving the vehicle?

Q.You, let's assume, knew the routine. Start from the top, from the beginning; what did you do on Mondays?

A.On Mondays, I reported to work at 8 am to the police investigation academy-that was where they trained aspiring young detectives-and I met them. in the street. That was where I met the three men I mentioned earlier. We boarded, we got into the vehicle and they gave me, they gave me directions as to where to go. That was what I did; all I did was carry out the orders to drive to a particular location." [Idem, pp. 17 and 18]

The vagueness of the claimant's replies regarding his activities, at least during the day, indicate clearly that the claimant, who was hired by the police not only because of his qualifications as a driver, but also because of his knowledge of the martial arts, did not wish to reveal to the panel his real involvement in the mistreatment to which his three colleagues subjected their victims. Furthermore, at the hearing of March 8, 1991, the claimant's testimony regarding this matter hardly displayed the consistency and preciseness claimed by his counsel. Among other imprecisions, ambiguities and inconsistencies, the claimant even told the panel that during the day, while on the job, he did not know what he was doing. How are we to believe him then?

How can the panel believe that the claimant was limited to driving the torturers to the homes of their victims for fourteen months for an unhoped-for monthly salary, he said, of 200,000 pesos, paid to him in hard cash, when he contradicted himself within the space of a couple of seconds as to when he realized the criminal, barbaric, inhumane and machiavellian nature of the work of the three police officers, and we quote:

[Translation]

"Q.When did your problems with the group, with this group of people with whom you were working, begin?

A.I began this work for them. in early October 1988 and during the three months that followed...
At the beginning, I didn't really realize much of what was going on, but with time, after about nine or ten months, then I began to realize what was happening." [Idem, p. 31] (Emphasis added)

On the same subject, the claimant testified at the hearing of March 8, 1991 in such a vague and confusing manner that we do not believe him at all. He began by indicating that he had knowledge of the misdeeds of his associates four or five months after starting to work for them, but then testified that he did not know exactly, that one day he knew a little, that he managed to realize that something, that the following day he noticed nothing... Such statements contrast significantly with what he wrote on page 8 of his Personal Information Form, and we quote:

[Translation]

"Around January 1989, the situation became more obvious to me. I was a witness to totally illegal arrests and interrogation sessions."

According to the evidence, we believe that the claimant was aware of the criminal nature of his work right from the time he was hired by this police force. If it were otherwise, he would not have lied about this to his own parents or would not have concealed, at the very least, the fact that he was working in a general capacity for the police. It should also be pointed out that the claimant found this job through his brother-in-law, an inspector with this police force. Yet, he never attempted to discuss the irregularities of his job with him.

Moreover, the following excerpts from the claimant's testimony indicate to the panel that the claimant would still hold the position of driver today if it were not for the coming to power of the new government, of President Aylwin who won the elections of December 14, 1989, and we quote:

[Translation]

"Q.I understand … You were told not to talk about the details of your work; but why not say that you were working for the police in a general capacity?

A.No, I didn't reveal that I was part of the police out of a sense of self-protection, as a sort of way of keeping my job. I had never earned such a good salary … never had a job that paid so well. I had always had low-paying jobs of 30,000 or 40,000 pesos a month and then I was offered 200,000 pesos a month and I said to myself: It's best if you don't talk about the job because it could cause problems and all that. So, in the hope of keeping my job, which for the first time... I finally had something good.

Q.But after your supposed month of vacation, didn't... why didn't they call you back or why weren't they concerned that you were not coming back to the job?

A.That was when Aylwin's government came to power and began to speak of conducting all sorts of investigations, so I was afraid they would discover the activities of the unit in which I had worked." [Idem, pp. 47 and 50]

Moreover, the following lines taken from a letter to the claimant from his mother which were duly translated during the hearing indicate clearly that the claimant sought refuge in Canada in order to escape the law in his country:

[Translation]

"You could easily have been here if you had wanted, but your revolt against justice finally made you leave. You know that the people who were in charge in the past are still in power and that it is difficult to prosecute them."

These are but a few examples that led us to conclude that the claimant is neither credible nor trustworthy and that ipso facto he did not discharge the burden of proof on him to substantiate the subjective aspect of his fear of persecution.

Be that as it may, even if the claimant were credible, it would be impossible to apply in his favour the criterion of "reasonable chancel" or "serious possibility" of persecution as established by the Federal Court of Appeal in Adjei [Adjei v. M.E.I. (1989) 2 F.C. 680]. According to the evidence, the claimant did not and does not run any risk of being persecuted by the authorities of his country for any of the grounds set out in the definition of a "Convention refugee." However, this same evidence leads us to believe that criminal proceedings could be instituted against the claimant for activities which he carried out for one year and two months as part of Chilel's investigation police. Furthermore, if President Aylwin had not launched investigations into the wrongdoings of this police force for which the claimant worked for fourteen months, the claimant would not have left his country. In this respect, his Personal Information Form [Personal Information Form, p. 8] and his testimony before the panel [Exhibit A-I: Response to information request No. CHL 7368, p. 40] clearly speak for themselves.

The possibility that the claimant might be prosecuted for having committed reprehensible acts against his fellow citizens or, at the very least, having been an accomplice to such actions would not constitute legitimate grounds for claiming refugee status.

Moreover, the claimant has no right to avail himself of the provisions of the Geneva Convention because he fears reprisals on the part of Chile's investigation police and, more particularly, three of its members. It should be noted that by agreeing to accept lucrative payment for driving these police officers to the homes of their victims, whose mistreatment by these officers he regularly witnessed, the claimant willingly placed himself on the same side as the torturers, oppressors and agents of persecution. Immediately upon being hired as a driver, the three police officers informed him that there was a weapon at his disposal in the glove box of the vehicle he drove five or six days a week for fourteen months. What we find even more tragic is that he claimed to identify with these individuals whose physical and moral integrity were repeatedly violated in his presence by his three colleagues because his own parents and brother had been persecuted by General Pinochet's regime. Despite all this, for many months, the claimant preferred to let the "voice of money" drown out the "voice of his conscience."

The evidence, both "viva voce" and documentary [Exhibit A-1: Response to information request No. CHL 7368; Criminal Code of Canada, Sections 21.(1) (b), 267.1(a), 269.1(1) and 269.1(2)], lead us to believe that, for financial considerations, the claimant took part in serious nonpolitical crimes in Chile, including armed assault and torture, which under the Criminal Code of Canada are punishable by ten and fourteen years in prison, respectively. Hence, there is no doubt whatsoever in our minds that the exclusion clause set out in paragraph (b) of Section F of Article 1 of the of this Convention shall not apply to any person with respect to whom there are serious Convention applies to the claimant. This section reads as follows:

"F. 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."

The claimant, by carrying out the orders of the three members of the investigation police, is guilty of the same hideous crimes committed by these three officers and has violated the United Nations Charter which, in its preamble, stipulates as follows:

"WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
(….) to reaffirm. faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and (...) [See also Article 1.3 of the United Nations Charter].

We therefore also concluded that the exclusion clause provided for in Section F.(c) of Article 1 of the Convention applies to the claimant as well.

Since the claimant failed to discharge the burden of proof on him to establish his fear of persecution, either subjective or objective, and since the exclusion clauses in Article 1F.(b) and 1F.(c) of the Convention apply to him, the Refugee Division declares that the claimant, Mr. xxxxxxxxxxxxxxxxx, is not a "Convention refugee", as defined in subsection 2(1) of the Immigration Act.

MONTREAL, this 29th day of July, 1991.

"Ubald Lalanne,"

Concurred in by: "Marie Vo"

 


 

Copyright notice: This document is published with the permission of the copyright holder and producer Immigration and Refugee Board of Canada (IRB). The original version of this document may be found on the offical website of the IRB at http://www.irb-cisr.gc.ca/en/. Documents earlier than 2003 may be found only on Refworld.

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