Date: 20040114
Docket: IMM-437-03
Citation: 2004 FC 56
BETWEEN:
MARIA ELENA SOLIS CASTILLO,
ANGIE CRISTINA CALDERON SOLIS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
LAYDEN-STEVENSON J.
[1] These are my reasons for allowing, from the bench, the applicants' application for judicial review. Maria Elena Solis Castillo, a 47 year old Costa Rican woman, came to Canada with her 8 year old daughter and claimed refugee status immediately upon arrival. Her claim was based on the verbal, emotional, physical and sexual abuse she suffered at the hands of her common-law partner.
[2] The Refugee Protection Division of the Immigration and Refugee Board (RPD) determined that the applicants are not Convention refugees or persons in need of protection. The RPD identified the determinative issue as "whether state protection would be forthcoming" and concluded that the applicants failed to rebut the presumption of state protection.
[3] The applicants' counsel had submitted to the board eight documents relating to the issue of state protection, specifically with respect to societal attitudes, lack of protection, and lack of enforcement of legislation for the protection of women. Additionally, counsel made extensive oral submissions regarding the issue of state protection for female victims of domestic violence in Costa Rica and strenuously argued that state protection would not be forthcoming.
[4] In its decision, the RPD stated that it considered, among other things, the claimant's oral and written testimony, the representations of the counsel and the refugee protection officer, all of the evidence and particularly the documentary evidence. At page 8 of its decision, the board stated:
Based on the evidence adduced, the panel does not have any persuasive credible evidence to suggest that the police and the judiciary in Costa Rica would not have provided her state protection.
[5] Apart from its general statement to the effect that it had considered all of the evidence, the RPD did not refer to any of the documentary evidence or the oral submissions of the applicants' counsel. The applicants alleged that it is reviewable error for the board to fail to mention or consider material evidence that contradicts its central finding of fact on the existence of state protection.
[6] The applicants did not suggest that the RPD is required to address every piece of evidence before it. They conceded that there are circumstances where a statement that all the evidence was considered will suffice. They argued that where the determinative issue is state protection, documents indicating that state protection will not be forthcoming could not be any more important, relevant or compelling. The applicants maintained that their evidence called into question the capacity and will of the Costa Rican authorities to provide protection. How then can it be said that the evidence does not suggest that state protection is not available?
[7] Counsel for the respondent thoroughly and exhaustively analysed each piece of documentary evidence submitted by the applicants in an effort to justify the board's failure to refer specifically to the document or to assign it any weight. Had the RPD approached the evidence in the manner that counsel argued, I would have dismissed the application.
[8] However, there is evidence in the record that tends to show that there is little police protection available and that the enforcement of exclusion orders is ineffective. There is also evidence regarding the scarcity of resources designed to assist victims of domestic abuse and the fact that this violence is very common in Costa Rica. Finally, there is some evidence regarding societal and police attitudes that suggests that domestic violence is considered to be a private matter rather than a criminal one. It was open to the RPD, based on the totality of the evidence before it, to determine the weight to be assigned to this evidence. The difficulty is that it did not reference any of this evidence in its decision.
[9] The question of effective state protection was identified as the central issue. Where evidence that relates to a central issue is submitted, the burden of explanation increases for the board when it assigns little or no weight to that evidence or when it prefers specific documentary evidence over other documentary evidence. Here, there is virtually no indication that the RPD considered the applicants' documentary evidence or the submissions of their counsel in relation to the issue of state protection. The applicants were entitled to know that the board had not ignored these matters. A general statement that all of the evidence was considered, in the circumstances, does not suffice.
[10] These reasons are not intended, nor should they be construed, as constituting an opinion as to whether there exists effective state protection. It may well be that the RPD could have concluded, had it referred to the applicants' documentary evidence, that there was effective state protection available. It is its failure to explain why it discounted the applicants' evidence and referred solely to the evidence submitted by the refugee protection officer that creates the impression that it ignored evidence that went to the crux of the matter and it is for this reason that the application for judicial review was allowed.
[11] Counsel did not suggest a question for certification. This matter is fact specific. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.
Toronto, Ontario
January 14, 2004
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-437-03
STYLE OF CAUSE: MARIA ELENA SOLIS CASTILLO,
ANGIE CRISTINA CALDERON SOLIS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: JANUARY 14, 2004
PLACE OF HEARING: TORONTO, ONTARIO.
REASONS FOR ORDER BY: Layden-Stevenson J.
DATED: JANUARY 14, 2004
APPEARANCES:
Mr. Mordechai Wasserman
FOR THE APPLICANTS
Ms. Lisa Hutt
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Mordechai Wasserman
Toronto, Ontario
FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Docket: IMM-437-03
BETWEEN:
MARIA ELENA SOLIS CASTILLO, ANGIE CRISTINA CALDERON SOLIS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER