Ottawa, Ontario, Thursday the 18th day of August 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
RUBEN JESUS CASTRO CHACON
JOSE PABLO CASTRO CHACON
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Ms. Maria Emilia Chacon Fernandez ("applicant") is a 47-year-old citizen of Costa Rica. The other applicants are two of her children, Ruben and Jose. They are also citizens of Costa Rica, and are, respectively, 19 and 16 years of age.
[2] Ms. Fernandez came to Canada on February 11, 2004 and made a claim for refugee status and protection on February 24, 2004. The basis for her claim was that she had been a victim of gender-related violence her whole life, and throughout her life she had been subject to severe physical, emotional and sexual abuse. On March 17, 2004, Ms. Fernandez' two sons came to Canada to request protection, and their claims were joined with hers.
[3] Ms. Fernandez' testimony before the Refugee Protection Division of the Immigration and Refugee Board ("RPD") described the physical abuse she had suffered at the hands of her former husband during their marriage, and how this abuse resulted in a number of miscarriages deliberately caused by her former husband. Ms. Fernandez also described the abuse suffered by her children at the hands of their father. Ms. Fernandez testified that she and her oldest daughter used to call the police for help, and the police would come, but would take her husband away and return him again in a couple of hours when he would beat Ms. Fernandez again. Ms. Fernandez said that she and her children lived in constant fear.
[4] Ms. Fernandez testified that at one point, her former husband was arrested for robbery, and served six months in jail. Upon his release there was a restriction order placed upon him that prohibited him from going to Ms. Fernandez' home or close to her, but her former husband broke the order and constantly went to her house, screaming obscenities and kicking the front door. Ms. Fernandez looked for refuge in other places, but her husband always found her and continued to make her life miserable.
[5] Ms. Fernandez also described another incident during which she was abducted by unknown individuals and sexually and physically abused. She went to the police station to make a report, but they did not believe her and told her it was probably her fault. She returned to the police station the next day, and the police said they would find the individuals. At that point she decided to leave the country. Ms. Fernandez claims that she is still worried about her children who remain in Costa Rica because their father continues to threaten them.
[6] The RPD denied the claims for protection and refugee status, and Ms. Fernandez and her two sons bring this application for judicial review of that decision.
[7] In reaching its decision, the RPD made no express findings of credibility. It acknowledged that Ms. Fernandez and her sons fear her former husband and that Ms. Fernandez suffered years of abuse at the hands of her former husband, including physical assaults resulting in five miscarriages. The RPD found, however, that the determinative issue was state protection. In so concluding, the RPD determined that there was objective, reliable documentary evidence that established that adequate state protection was available for Ms. Fernandez and her sons, noting that crime is investigated and prosecuted in Costa Rica. In regard to violence against women, the RPD found that the law provides for the promotion of education and training for police and others responsible for enforcing the law regarding domestic violence, and the documentary evidence indicates that this is carried out.
[8] The RPD found that the law provides protection measures for minors who are victims of domestic violence, and that the National Institute for Children will intervene in cases of abuse. The RPD noted documentary evidence about a number of special courts which deal with domestic violence in Costa Rica, and that these courts include judges, psychologists and social workers. There are also women's shelters and legal assistance for victims. Finally, the RPD relied upon evidence that the Women's Delegation provides follow-up concerning women's complaints related to sexual violence and will accompany women through the judicial process.
[9] Having regard to the totality of the evidence, the RPD found there was no clear and convincing proof that Costa Rica was not able to provide protection to Ms. Fernandez and her sons. It found, therefore, that there was no serious possibility that they would be harmed in Costa Rica, regardless of whether the harm feared amounted to persecution, risk to life, cruel and unusual treatment or punishment, or torture. On that basis, the RPD rejected the refugee claims and the claims for protection.
The Issues
[10] Ms. Fernandez raises two issues on this application. They are:
1. Whether the RPD failed to demonstrate the degree of knowledge, understanding and sensitivity required in cases involving domestic violence; and
2. Whether the RPD failed to consider the totality of the evidence before it and relied selectively upon evidence detrimental to the applicants' case.
Standard of Review
[11] In order to reach a conclusion with respect to the adequacy of state protection, the RPD is obliged to make certain findings of fact. Those findings of fact can only be set aside by this Court, if made in a perverse or capricious manner, or without regard to the material before the tribunal. See: Mugesera v. Canada(Minister of Citizenship and Immigration), 2005 SCC 40 at paragraph 38.
[12] Once those findings of fact are made, they must be assessed against the legal test articulated by the Supreme Court in Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 724, namely do the facts constitute "clear and convincing confirmation of a state's inability to protect" so as to rebut the presumption of state protection? This is a question of mixed fact and law. On the basis of the pragmatic and functional analysis conducted by my colleague Madam Justice Tremblay-Lamer in Chaves v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 232, I accept that the appropriate standard of review of the decision as to the adequacy of state protection is reasonableness simpliciter.
Did the RPD fail to demonstrate the required knowledge, understanding and sensitivity?
[13] The RPD stated in its reasons that "[i]n democratic Costa Rica, the claimants must do more than they did to seek protection. There were, and are, courses of action for the claimants". This statement is said, by Ms. Fernandez, to demonstrate a lack of responsiveness about what is known about women who have suffered domestic violence, and to constitute a reviewable error. The finding is also said to be perverse and capricious in light of the decision of my colleague Mr. Justice Campbell who wrote as follows in Griffith v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 240, at paragraphs 20 and 24:
20 Therefore, the Gender Guidelines suggest that to assess the actions of [...] women subjected to domestic violence, special knowledge is an essential tool to use in reaching a fair and correct judgment.
[...]
24 While expert testimony might not be considered practicable or necessary in some cases, in my opinion it is, nevertheless, incumbent on panel members to exhibit the knowledge required, and to apply it in an understanding and sensitive manner when deciding domestic violence issues in order to provide a fair result and avoid the risk of reviewable error in reaching findings of fact, the most important being the finding respecting the claimant's credibility.
[14] Having read the decision on the RPD carefully, I conclude that it did not err as alleged.
[15] The finding as to the sufficiency of the applicants' efforts to obtain protection was a statement that there were avenues of protection in Costa Rica that Ms. Fernandez and her children had not accessed or exhausted, and this finding was relevant to the issue of state protection. The RPD acknowledged the violence suffered by Ms. Fernandez and her children, but found that there was still an onus upon them to seek state protection, or to show why such protection was not available. As such, this statement does not demonstrate a lack of sensitivity or awareness on the part of the RPD regarding issues of domestic violence.
[16] In Griffith, supra, relied upon by Ms. Fernandez, Mr. Justice Campbell noted that, in cases involving domestic violence, knowledge, understanding and sensitivity are required in order to make findings of fact and to assess credibility. In the present case, the RPD did not challenge Ms. Fernandez' credibility, but rather believed Ms. Fernandez' story regarding domestic violence. Accordingly, I cannot see how it can be said that the RPD failed to demonstrate the required knowledge, understanding and sensitivity when it wholly accepted Ms. Fernandez' testimony.
Did the RPD fail to consider the totality of the evidence, and instead selectively rely upon evidence detrimental to the claim of the applicants?
[17] Ms. Fernandez largely relies upon one document to support this argument: Response to Information Request CR132983.E ("RIR") dated November 19, 1999. This document was not referred to by the RPD in its reasons. In the RIR, certain government officials are cited as expressing concern with respect to the current state of domestic violence in Costa Rica. Specifically, a defender of women's rights at the Ombudsman's Office is reported to say that the Law Against Domestic Violence was insufficient to stop the increase in domestic violence, as evidenced by the increased number of complaints made by abused women. Also reported are remarks of Gloria Valerín, then the Minister of Women's Affairs, who cited problems such as the prejudiced and sexist attitudes of judicial officials, reluctance by authorities to apply some provisions of the law, and the "limited" or "useless" police response to incidents of domestic violence. Ms. Valerín characterized domestic violence in Costa Ricaas a "national epidemic".
[18] Having reviewed the record before the RPD, I do not conclude that it failed to consider the totality of the evidence or that it ignored evidence corroborative of Ms. Fernandez' claim. While the RIR contains passages that support the applicants' claim, it also notes the ongoing effort of authorities in Costa Rica to address the problem of domestic violence, including the revision and enactment of relevant legislation. Ms. Valerín is also cited as saying that "women are becoming more aware that situations of domestic violence occur daily and have found [a]venues through which they raise their concerns". In addition, the RPD referred to more recent documentary evidence from which it could reasonably conclude that adequate state protection is available to Ms. Fernandez and her sons in Costa Rica. Specifically, the RPD's conclusions were supported by the 2002 U.S. Department of State report on Costa Rica, cited by the RPD, that reported:
The Government identified domestic violence against women and children as a serious societal problem. The National Institute for Women (INAMU), an autonomous institution created in 1998 that is dedicated to gender equality, received 63,990 calls on its domestic abuse hot line from January through October. During this same period, INAMU counseled [sic] 4,097 female victims of abuse in its San Jose office and accepted 194 women in INAMU-run shelters. INAMU maintained 41 offices in municipalities around the country and had trained personnel working in 32 of the country's 81 cantons.
The Office of the Special Prosecutor for Domestic Violence and Sexual Crimes prosecuted 448 cases related to domestic violence during the year, compared with 456 cases in 2001. INAMU reported that 24 women were killed in incidents of domestic violence during the year, compared with 11 in 2001.
The 1996 Law Against Domestic Violence establishes precautionary measures to help victims. At year's end, the Legislative Assembly was still debating a Bill to Qualify Violence Against Women as a Crime, which would classify certain acts of domestic violence as crimes and mandate their prosecution whether or not the victim pursued charges against the perpetrator. The authorities incorporated training on handling domestic violence cases into the basic training course for new police personnel. The domestic violence law requires public hospitals to report cases of domestic violence against women. It also denies the perpetrator possession of the family home in favor of the victim. Television coverage of this issue increased in news reporting, public service announcements, and feature programs. Reports of violence against women increased, possibly reflecting a greater willingness of victims to report abuses rather than an actual increase in instances of violence against women. The public prosecutor, police, and the Ombudsman all had offices dedicated to this problem. The law against sexual harassment in the workplace and educational institutions sought to prevent and punish sexual harassment in those environments.
[19] A more recent Information Request reported:
With the new Code of Criminal Procedures in 1998, the Ministry of Justice created the "Specialized Unit against Sexual Crimes and Intra-Family Violence" (ibid., 6). The Ministry also established a specific judicial police force that would be responsible for investigating domestic violence and sexual crimes (ibid.). The UNICEF report adds that there is a Care for Victims of Child and Adolescent Abuse Program that "provides specialized assistance to this population and supports them from the time they report the abuse to the Attorney's Office until the oral trial is finished" (ibid.).
[20] The RPD's conclusion with respect to the adequacy of state protection was consistent with Ms. Fernandez' testimony that:
- the police would come every weekend when called by Ms. Fernandez, her children or her neighbours; and
- the police were trying to arrest the person who attacked her.
[21] Having subjected the RPD's finding in respect of state protection to a somewhat probing examination, I conclude that it is supported by the evidence and that the RPD provided an analysis that reasonably led it from the evidence before it to its conclusion as to the existence of state protection. This is what is required when a decision is reviewed on the standard of reasonableness simpliciter.
[22] It follows that the application for judicial review will be dismissed.
[23] Counsel posed no question for certification, and I am satisfied that no serious question of general importance arises on this record.
ORDER
[24] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
"Eleanor R. Dawson"
______________________________
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7100-04
STYLE OF CAUSE: MARIA EMILIA CHACON FERNANDEZ ET AL. V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 26, 2005
FOR ORDER
APPEARANCES:
LUIS ANTONIO MONROY FOR THE APPLICANTS
ANSHUMALA JUYAL FOR THE RESPONDENT
SOLICITORS OF RECORD:
LUIS ANTONIO MONROY
BARRISTER AND SOLICITOR FOR THE APPLICANTS
TORONTO, ONTARIO
JOHN H. SIMS, Q.C.