161. Owing to the different arguments adduced by the State, before beginning its analysis,
the Court considers it desirable to clarify that it does not have to determine the formal or
material admissibility of the request for asylum presented by the Pacheco Tineo family, which
was subject to the jurisdiction of the domestic authorities. The analysis that the organs of the
inter-American system must make is to determine whether the actions of the domestic
authorities called on to make that analysis or determination were compatible with the American
Convention.
B.3.1. Irregular entry and initial actions of the immigration authorities
162. The Court notes that, from the moment the presumed victims presented themselves to
SENAMIG, this organ began taking measures to deport them. There is no record that they were
granted the possibility of providing a detailed explanation as to why they should not be deported
in relation to their migratory situation; whether they were informed of their rights in this regard,
or whether they were expressly and formally informed of the charges against them. In other
words, the presumed victims were not notified officially of the opening of an administrative
proceeding against them, and they were not given official notice of the administrative charges
that they were accused of under the Immigration Regime.
B.3.2. Request for asylum and actions of CONARE
163. The Court notes that on February 21, 2001, CONARE made a summary decision that it
would not consider the request for refugee status presented by Mr. Pacheco Osco, without
interviewing or granting a hearing to the applicants.
164. Regarding this request, in its answering brief, the State acknowledged that, indeed, it
had “at least been asserted” before the Bolivian immigration authorities that the members of the
family had refugee status in Chile, and that the child Juan Ricardo was a Chilean national, but it
argued that, at no time, were documents presented that proved they were refugees and that
the administrative proceeding followed was in keeping with the Immigration Regime.
165. However, in its oral arguments, the State indicated that the Pacheco Tineo family had not
really applied for refugee status in 2001, nor had the State received any information that could
have complemented the supposed request, other than the said statement on repatriation, so
that the opening of a formal proceeding to evaluate an eventual request was not admissible. It
argued that the supposed request “did not contain basic elements that a request for asylum filed
before a State should have according to the UNHCR Handbook.” 229 It argued that UNHCR was
able to carry out its own procedure to determine refugee status and that, if it had done so,
UNHCR could have advised the State of the refugee status of the Pacheco Tineo couple during
their time in Bolivia. It argued that, in any case, it had been proved by the statements of the
couple before the Court that it was not their intention to request a new asylum in Bolivia, but
merely to be taken to Chile, or that they used the presumed request as “a defense
mechanism.”230 The State insisted that CONARE had not admitted a request for asylum and that
these facts explain the way in which it had proceeded.
229
The State argued that, “according to UNHCR, in the case of first requests, the applicant must communicate the
pertinent facts of the case. However, in the case of second requests for asylum, in other words, when refugee status has
ended, which occurred in this case, UNHCR indicates that in his request ‘the applicant will have to explain why he has
changed his opinion, and prove that there has been no essential change in the situation that originally led to his
becoming a refugee.’ In this case, the document that has been considered the request for asylum did not provide
information on the pertinent facts of the case, or even prove, in the slightest, that there had been no essential change in
the circumstances that had led to the first asylum.” In addition, it indicated that the State had not received any further
communication from UNHCR to complement its first communication and to request asylum formally, and it had not
received any document from the couple’s lawyer, or directly from the members of the family that could have
complemented the supposed request.
230
The State also argued that, “as applicants for asylum in several countries, presumably with refugee status in
Chile and applicants for a second time for asylum in Bolivia, it can reasonably be inferred that the Pacheco Tineo couple
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