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153.
The Commission has taken it is proven that on February 20, 2001, Rumaldo Juan
Pacheco Osco and Fredesvinda Tineo Godos visited the SENAMIG, that Mr. Pacheco Osco withdrew
from the offices, and that Mrs. Tineo Godos was deprived of liberty in the circumstances examined in the
preceding sections. In this regard, on February 21, 2001, the CEB-UNHCR program sent a
communication to the Bolivian immigration authorities stating that the Pacheco Tineo family had again
applied for recognition of refugee status in Bolivia. According to information provided by the state, this
application was settled in the afternoon of that same day, February 21, 2001, by the CONARE, which
rejected the claim.
154.
In first place, the Commission notes that the CONARE made a summary determination
without listening to the applicants by means of a hearing, interview, or any other mechanism. In that
regard, the Pacheco Tineo family did not have an opportunity to state the reasons why they were
requesting asylum, including, for example, the reasons that led them to present their statement of
"voluntary repatriation," whether or not there were new factors that threatened their lives or personal
liberty in Peru, among other aspects that have been gradually clarified in the proceeding before the
IACHR for the first time, since the petitioners did not have an opportunity to present them to the CONARE
before that entity turned down their application. In addition the Pacheco Tineo family were not given the
opportunity to present documentary or other evidence on each of these aspects, or to contest the
possible arguments against their application that could have been made by the immigration official which,
as the minutes furnished by the state show, formed part of the unfavorable decision on the application for
recognition refugee status.
155.
Furthermore, the Commission notes a lack of clarity with respect to the nature of the state
act whereby the CONARE made determinations regarding the inadmissibility of the new asylum claim.
The document furnished by the state consists of meeting minutes that have not been signed by any of the
persons named therein. Whatever the case, the Commission observes that if the act is a resolution or
some other administrative decision, it does not include the minimum grounds by which to understand, in a
proceeding of this nature, how the Bolivian state weighed the circumstances in which the Pacheco Tineo
family found themselves in February 2001. On the contrary, the above act merely states that the family
requested voluntary repatriation and, therefore, renounced the refugee status recognized some years
previously by Bolivia. However, the CONARE neither considered nor weighed the possibility that the
circumstances might have changed or that supervening events might have occurred in the three-year
interval between the statement of voluntary repatriation and their new application.
156.
Although the Commission lacks elements from which to determine with certainty the
reasons that led Rumaldo Juan Pacheco Osco to request voluntary repatriation, it is important to
establish that article 22(7) of the American Convention cannot be interpreted restrictively in the sense that
a voluntary repatriation in the past might prevent someone from subsequently seeking asylum. Both
article 22(7) and article 22(8) of the American Convention impose the obligation to make a serious
assessment of circumstances of potential risk to asylum seekers, without it being acceptable to presume
that no such risk exists because of a voluntary repatriation that occurred in the past.
157.
Therefore, the Commission considers that the determination made by the CONARE was
not sufficiently well grounded. This omission also shows that the CONARE did not seriously assess all the
circumstances of the Pacheco Tineo family at the time of the application and, therefore, the appraisal of
the potential risk was not adequate in light of the nature of the rights involved and the consequences that
could ensue from proceedings of this type.
158.
In addition to the foregoing, the Commission notes that the Pacheco Tineo family were
not notified of the CONARE decision so that they might attempt the available remedies against decisions
of this type and, therefore, have their situation reviewed. This failure to notify them also undermined their
possibility of interposing a judicial appeal to challenge any possible violations of due process, of the rights
to seek and be granted asylum, or of the principle of non-return.