Date: 20040426
Docket: IMM-4343-03
OTTAWA, Ontario, this 26th day of April, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
MARIA LEILA BERMUDEZ CASCANTE
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated April 25, 2003, which determined that the applicant is not a Convention refugee or a person in need of protection, because there is adequate state protection available to her in Costa Rica.
FACTS
[2] The applicant is a 35 year old female citizen of Costa Rica who arrived in Canada on February 1, 2002, and made a refugee claim on February 5, 2002. She bases her claim on the grounds of membership in a particular social group, which is women subject to domestic abuse. She alleges that she was physically and sexually abused by her former common-law spouse, Sergio Videl Barrantes, during a relationship which started in 1983, and which she ended in March 1989. She alleges that after the break-up Mr. Barrantes continued to harass her and began to harass her subsequent common-law partners. The applicant alleges that she complained to the police on many occasions but they did not respond because Mr. Barrantes had allegedly influenced them not to pursue the matter.
[3] The applicant alleges that each time she changed her residence Mr. Barrantes would find her and continue to harass her. She further alleges that Mr. Barrantes has friends within the police, that he is involved in narcotics trafficking and other criminal activity, and is therefore able to act against her with impunity. She decided to leave Costa Rica on January 25, 2002 after an incident when Mr. Barrantes allegedly arrived at her family home in a drunken state and began to beat her up, and threaten her with a gun.
[4] After the Board heard her claim on April 16, 2003, it decided that despite some documentary evidence indicating weaknesses in state protection and enforcement measures in Costa Rica, the claimant had not rebutted the presumption that state protection is available to her in Costa Rica. At page 4 of its reasons the Board states:
[...]
In his submissions, counsel cited information from the documentary evidence to indicate that, indeed, there are weaknesses in the state protection and enforcement measures in Costa Rica, and that the police are often not responsive to incidents of domestic violence. [...]
I note, however, that the documentary evidence also indicates that, as a democracy, Costa Rica has measures in place to protect gender rights, including protective measures to combat domestic abuse. In my opinion, the claimant's efforts at seeking protection in Costa Rica were not sufficient or reasonable, given the evidence that in Costa Rica there are other police, political and judicial institutions, such as the Ombudsman's office to which she could have turned for help.
[...]
[5] And at page 5 of its reasons, the Board outlines how the documentary evidence indicates the availability of state protection:
[...]
The documents provide an extensive outline of Costa Rican legislation, such as the Law Against Domestic Violence, and the temporary and immediate protection measures for women who need it, including access to a lawyer and shelter. There is information about the women's defense centres and legal offices and organizations dealing with the specific issue of violence against women, and informing abused women about their rights, and about services available to them. There are other entities such as the "National Plan for the Attention to and Prevention of Domestic Violence"; the "Center for Women and Family Development [sic] which has established a temporary shelter for women who have no independent means of support; the Feminist Centre for Information and Action which offers support to abused women; and the government's own Office for Women's Affairs within the Ombudsman's office. [emphasis in original]
[...]
[6] The Board also rejected the applicant's allegations that Mr. Barrantes has influence over the police, because it found that the Costa Rican government places great emphasis on the control of drug trafficking and the activities of drug dealers. At pages 6 - 7, the Board states:
[...]
On the specific issue of Sergio's influence with the police, I also find that the claimant does not have a valid subjective fear of harm. The documentary evidence indicates that the government places great emphasis on the control of drug trafficking and the activities of drug dealers and criminals such as Sergio. From the evidence, Sergio is already the subject of attention of the Judicial Investigative Police (OIJ). Therefore, I find it not plausible that a complaint by the claimant to an organization such as the Ombudsman's office or the OIJ would go unheeded. I find that, on a balance, the claimant would be assured of protection and positive action from these authorities, and that Sergio's perceived influence and friendship with some police officers is not a bar to obtaining that protection. [...]
ANALYSIS
[7] The sole issue raised by the applicant is whether the Board erred in finding that adequate state protection is available to her in Costa Rica. The applicant submits that her evidence, taken together with the documentary evidence, rebut the presumption of state protection. The applicant contends that the documentary evidence provides clear and convincing proof that institutions in Costa Rica, for the protection of women, lack the tools or resources required to protect women from domestic abuse. The applicant submits that the Board ignored this evidence without providing any explanation.
[8] The respondent submits that the Board did not err in preferring documentary evidence indicating the existence of state protection in Costa Rica, because it was the most recent documentary evidence before the Board. The respondent submits that the applicant relied on a synthesis of documentary evidence made available in 1999. The respondent submits that the applicant's submissions amount to a request for this Court to re-weigh and reassess the evidence.
[9] After reviewing the Board's decision and the evidence on record, I am unable to accept the applicant's submissions. I agree that the documentary evidence which the Board relied on is more recent than that which the applicant urges this Court to consider. I find no reason to conclude that the Board ignored evidence indicating weaknesses in state protection and enforcement measures, with respect to domestic abuse. On the contrary, the Board specifically acknowledged this evidence in its reasons but preferred the documentary evidence indicating that adequate state protection is available to the applicant. It is trite law that on judicial review, this Court is not to engage in a re-weighing of evidence before the Board, simply because this Court might have reached a different conclusion.
[10] The relevance of state protection was set out by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at para. 18, per La Forest J.:
International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.
[11] Also in Canada (MCI) v. Villafranca (1992), 150 N.R. 232, the Federal Court of Appeal states, per Hugessen J:
The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid (clearly not the case here) or that the government itself is in some way prevented from giving it.
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation.
[12] The Board reasoned that the applicant's efforts at seeking protection from local police were not sufficient or reasonable because, in Costa Rica, there are other police, political and judicial institutions, such as the Ombudsman's office to which she could have turned for help, and failed to do so. The Board also concluded that because the Costa Rican government places great emphasis on the control of drug trafficking and the activities of drug dealers and criminals such as Mr. Barrantes, it is not plausible that state protection would not be forthcoming to the applicant against a criminal like Mr. Barrantes.
[13] These conclusions were reasonably open to the Board, based on the evidence. The Government of Costa Rica is focussed on dealing with domestic abuse, and has established institutions and mechanisms beyond the local police for protecting women such as the applicant. The Board's finding that if the applicant had complained to the Ombudsman's office or the Judicial Investigative Police such complaint would not have gone unheeded, was reasonably open to the Board, and this Court cannot disturb this finding. This application for judicial review must therefore be dismissed.
[14] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4343-03
STYLE OF CAUSE: MARIA LEILA BERMUDEZ CASCANTE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, APRIL 21, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES BY: Mr. Hart A.Kaminker
For the Applicant
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Hart A.Kaminker
Barrister and Solicitor
425 University Avenue, Suite 500
Toronto, Ontario
M5G 1T6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20040426
Docket: IMM-4343-03
BETWEEN:
MARIA LEILA BERMUDEZ CASCANTE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER