Panigua v. Canada (Minister of Citizenship and Immigration)

BETWEEN:

JORGE ERNESTO PANIAGUA LEDEZMA, ET AL.

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

SIMPSON, J.

Let the attached transcript of my Reasons for Order delivered orally by telephone on Wednesday, the 5th day of November, 1997, now edited, be filed to comply with section 51 of the Federal Court Act.

(Sgd.) "Sandra J. Simpson"

Judge

Vancouver, B.C.

December 1, 1997

IMM-3785-96

FEDERAL COURT OF CANADA

B E T W E E N:

JORGE ERNESTO PANIAGUA LEDEZMA, ET AL

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

(Delivered orally by telephone on

Wednesday, November 5, 1997)

APPEARANCES:

Mr. P. Clement, Esq. for the Applicant

Mr. J. Brender, Esq. for the Respondent

The Applicants are seeking judicial review of a decision of the Immigration and Refugee Board (the "Board") dated August 16, 1996 (the "Decision") in which the Board found that the Applicants are not Convention refugees.

THE BACKGROUND

The Applicants are Jorge Ernesto Paniagua Ledezma (the "Applicant"), his wife Zulema Rosario Angulo de Paniagua (the "Female Applicant") and their son Rene Paniagua (the "Minor Applicant").

All the Applicants are Bolivian nationals seeking Convention refugee status in Canada. The Female Applicant is the Applicant's second wife; they were married in 1983. The Minor Applicant, age 11, is their son. The Female Applicant also has a daughter by her first marriage. The Applicant has two brothers who are senior members in the Bolivian military. However, they are not politically active.

The Applicant is now aged 46. He was a Bolivian army officer all his adult life from 1972 to 1993 when he left Bolivia for Canada. He joined the army from staff college as a sub-lieutenant and, by 1993, had been promoted to the rank of lieutenant-colonel. Throughout his career the Applicant was a member of the Accion Democratica Nacionalista (the "ADN"), a right-wing political party in Bolivia. Because involvement of a military officer in politics is officially illegal in Bolivia, the Applicant testified that his involvement with the ADN was "clandestine".

The Applicant's father, who was a career military man, was a personal friend of General Hugo Banzer ("Banzer"). Banzer was the head of the ADN and President of Bolivia from 1971 to 1978. As a result of the friendship between Banzer and the Applicant's father, Banzer took an interest in the Applicant's career and the Applicant testified that he and Banzer were personal friends.

THE FACTS

The following is a chronological account of the significant events which led to the Applicant's departure from Bolivia.

THE BOARD'S DECISION

a) Credibility

The Board accepted that military personnel in Bolivia are legally prohibited from engaging in political activity. Indeed, the Applicant testified that he did not report the threats against him and his family to the police because of his fear that his political activities would be exposed. However, the Board found that the Applicant presented contradictory evidence about his allegedly clandestine political activities when he testified that he attended a public political convention in 1989. The Board doubted that the Applicant could have been truly worried about disclosure of his political activity if he attended a political convention which was open to the public.

On another topic, the Applicant testified that he was appointed as the ADN's youth coordinator for the 1993 election and that he was responsible for the campaign. He also gave the Board the impression that he took a leadership role with adults as well as with the youth members of the party. The Board did not believe this testimony, for a number of reasons. The Board cited evidence showing that the maximum age for membership in the youth branch of the ADN was 20 years. In my view, this alone might not have justified a negative credibility finding because an older person might be entitled to be a coordinator, but the Applicant was also unable to describe his duties with the ADN during this election. He testified that he was very busy with the election and worked up to four hours a day, but he could not give any specifics of his duties. Further, his evidence about the role he played in the 1993 election was inconsistent with the Female Applicant's testimony. She stated that his medical condition was poor after the 1989 car accident, and that, although he was "taken account of" by the ADN in the 1993 campaign, his duties were far less extensive than they had been in 1989.

The Board concluded that, if the Applicant's mental and physical condition after the 1989 car accident was as poor as the Female Applicant alleged, and if the Applicant's demeanour at the hearing was indicative of his capabilities in 1993, it could not accept that he had worked in the responsible positions he described on behalf of the ADN in the 1993 election campaign.

As mentioned above, the Applicant also testified that he held important positions in the ADN during the 1989 election campaign. However, the Board noted that he was unable to correctly answer questions about Bolivian political affairs following the 1989 and 1993 elections that a political party worker would be expected to know. For example, he could not say how many seats were in the Bolivian Congress or how many ADN deputies were in the Congress after the 1989 and 1993 elections. He was also unable to say when in 1993 Banzer announced that he would not be a candidate for the presidency. Because the Applicant failed to answer these questions, the Board found it unlikely that he was politically active on behalf of the ADN.

Based on the foregoing, the Board rejected the Applicant's refugee claim because of a lack of credible and trustworthy evidence that he was being persecuted for his political beliefs.

b) Documentary Evidence

The Board found that there was no documentary evidence to support the Applicant's allegations that members of the ADN were being persecuted by the ruling MNR because of their political activities on behalf of the ADN.

Before the Board, counsel for the Applicant relied on documentary evidence which showed that the MNR government recently undertook mass arrests and declared a state of emergency. However, the Board found that the targets of these arrests were trade unionists, coca leaf growers and community leaders, and concluded that these people were not in situations analogous to that of the Applicant. These persons, the Board said, were not being targeted for their affiliation to a political party. The Board further noted that the ADN had entered into political alliances with the MNR in the past. The Board concluded that there was no documentary evidence showing systematic targeting of ADN members or supporters, and therefore no objective basis for a well-founded fear of persecution.

c) Exclusion

The Board concluded that the Applicant is excluded under Article 1F(a) of the 1951 UN Convention Relating to the Status of Refugees (the "Convention") for being an accomplice to crimes against humanity. The Board found that there was a long litany of human rights abuses that had occurred in Bolivia under successive military governments. The Board accepted the documentary evidence which demonstrated that the Bolivian military committed crimes against humanity in a consistent and widespread manner during the period of the Applicant's military career. In particular, the Board concluded that the government of Banzer had restricted union activity and constitutional liberties and had severely oppressed all political opposition.

The Board noted that the Applicant was a supporter of Banzer. The Board accepted that the Applicant was also a supporter of the other Bolivian military régimes which were in power during his military career. The Applicant testified that he was aware of the arrest of trade union leaders and demonstrators during Banzer's rule but that he did not have precise knowledge of how these people were treated while under arrest.

The Board accepted that the Applicant was part of or close to the leadership group in Bolivia, both militarily and politically. In the Board's view, his closeness to this leadership group as a senior military officer and political activist implicated him in the decisions and actions of the group. Because the Applicant was so implicated, he was found to be excludable under Article 1F(a) of the Convention as an accomplice to crimes against humanity.

The Board rejected the Applicants' argument that the Applicant was a relatively junior officer during Banzer's régime and that his posts in the military were primarily administrative in nature. In the Board's view, neither of these arguments absolve the Applicant from complicity in crimes against humanity as a member and supporter of Bolivian military régimes.

THE ISSUES

The Applicants allege: i) that the Board's credibility findings are not supported by the evidence; ii) that the Board erred in finding there was no objective basis for the Applicant's subjective fear of persecution; and, iii) that the finding that the Applicant was excluded was not supported by the evidence. I will deal with each issue in turn.

i) Credibility

I have reviewed the transcript and can find a clear evidentiary basis to support the Board's credibility findings. The Applicant's testimony gave the clear impression that he was an important contributor to the ADN's 1989 and 1993 campaigns, and the Board assessed his credibility in that context. For example, the Board asked the Applicant how many deputies sat in the Bolivian Congress; he answered 15 to 20 deputies when the correct answer was 130.

The Board was entitled, in my view, to take this approach, particularly when the Applicant was given an opportunity to explain his wrong answers and could not do so. The Board was also entitled to conclude that a military officer engaged in clandestine political activity would not attend an open party convention in La Paz. There is no doubt as well that the Applicant and Banzer had a close personal relationship and, in these circumstances, it was reasonable to expect that the Applicant would know when Banzer publicly announced the end of his career as a presidential candidate.

ii) Documentary Evidence

The Board accepted that the current MNR government was targeting trade unionists, coca leaf growers and community leaders. The Respondent says that it is perverse for the Board to conclude that, in these circumstances, an ADN political activist would not also be targeted. I do not agree. I think it was open to the Board to conclude that because the ADN and the MNR had been allies in the past, and because there were no reports of persecution of ADN members, there was no reason to believe that the MNR would target ADN activists for persecution.

iii) Exclusion

There is no argument about the applicable law; the only question is whether there was sufficient evidence to support a finding that the Applicant was an accomplice to crimes against humanity committed during the military dictatorships of Banzer from 1971 to 1978, and General Meza ("Meza") from July of 1980 to September of 1981.

The Board relied on Amnesty International reports for the 1970s and 1980s, and noted that they provide a long litany of human rights abuses in Bolivia. This is accurate, but, on a careful review, the reports show that it was the police and the SDS, an arm of the Ministry of the Interior, and not the military who for the most part were responsible. As well, there was no evidence that the military existed only for brutal purposes. It also appears that the crimes were often isolated humans rights abuses, as the Board said, and not necessarily those more egregious systemic offenses which are described as crimes against humanity.

While there is no question that the Banzer régime was repressive and that the Meza régime was worse, I have concluded that there was insufficient evidence before the Board to justify a finding that the Applicant was an accomplice in either case. I will deal with each régime in turn.

The Banzer Régime

Although Banzer encouraged the Applicant to attend military college, approved his promotions over the years and arranged his transfer to Argentina for medical care after his car accident in 1989, the Applicant testified that he was not close to Banzer at work and that their friendship was at a personal level. This makes sense. Banzer was a friend of the Applicant's father, he was not the Applicant's peer. Accordingly, given their age difference and the fact that the Applicant was only a lieutenant at the end of Banzer's dictatorship, it would be unreasonable to assume that the Applicant would be privy to Banzer's strategy or tactics.

I am concerned that the Board may have misunderstood the nature of the Applicant's relationship with Banzer. In its review of the facts, the Board noted in its reasons that the Applicant worked "undercover" for Banzer. This was an error as there was no such evidence. All the Applicant said was that he worked for the ADN on a clandestine basis. Indeed, there was no evidence to suggest that the Applicant, as a young army lieutenant, had the kind of access to Banzer in the military context which would justify a finding that he was an accomplice in crimes committed by the police or others, even if such crimes could be described as crimes against humanity.

The Meza Régime

There is no suggestion of a personal connection between the Applicant and Meza. Indeed, when Meza came to power, the Applicant refused to obey an order to arrest civilians. This, in turn, led to his apprehension and subsequent posting at a remote base on the Brazilian border. In these circumstances, there is insufficient evidence to support a finding that the Applicant was an accomplice. His mere membership in the military does not suffice to demonstrate a shared common purpose with Meza.

As a final note, I should observe that the Respondent submitted that, if I accepted the Board's credibility findings, its decision would stand and the issue of the exclusion did not need to be considered. As will be clear by now, I did not agree. Exclusion by Canada under Article 1F(a) of the Convention is a serious matter which could affect the Applicant for the rest of his life. In these circumstances, it is my view that an exclusion order should be reviewed to ensure that it is error-free, even if, as is the case here, the decision about the exclusion would not be dispositive of the judicial review application.

For all these reasons the application has been dismissed.

NAMES OF COUNSEL AND SOLICITORS OF RECORD

STYLE OF CAUSE: JORGE ERNESTO PANIAGUA LEDEZMA ET AL.

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

COURT NO.: IMM-3785-96

PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: October 31, 1997

REASONS FOR ORDER: SIMPSON, J.

Delivered orally by telephone on: November 5, 1997

DATED: December 1, 1997

APPEARANCES:

Mr. Patrick H. Clement for Applicant

Mr. James Brender for Respondent

SOLICITORS OF RECORD:

Roach, Schwartz & Associates for Applicant

Toronto, Ontario

George Thomson for Respondent

Deputy Attorney General of Canada