Date: 20041020
Docket: IMM-2910-03
Citation: 2004 FC 1463
Toronto, Ontario, October 20th, 2004
Present: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
ALBERTO SANDOVA ORTEGA, MARITA CASTILLO SERON,
CASTILLO MARILYN SANDOVAL
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated March 20, 2003, wherein it was decided that the respondents are Convention refugees.
[2] The applicant requests an order in the nature of certiorari quashing the Board's decision and referring the respondents' claims back for re-determination by a differently constituted panel of the Board.
Background
[3] Alberto Sandoval Ortega (the "principal respondent") is a citizen of Costa Rica. The respondents, Marita Castillo Seron and Marilyn Yariela Sandoval Castillo, also Costa Rican citizens, are the principal respondent's wife and daughter, respectively. Their claims to Convention refugee status are dependent on the principal respondent's claim.
[4] The basis of the principal respondent's refugee claim was that he fled Costa Rica, fearing that his life was in danger due to his union activities. He gained a reputation for standing up to management and helped to successfully bring forward a worker complaint regarding Christmas bonuses in 2001. The principal respondent had brought the complaint to the attention of SITRAP, a syndicate of agricultural plantation workers, who brought the issue to the attention of the plantation's general manager. As a result of the general manager's investigation into the problem, the plantation administrator was suspended.
[5] After this incident, the principal respondent started getting threatening phone calls and a few days later he was beaten up by three masked men. The principal respondent went to SITRAP's Deputy General Secretary, Jorge Luis Barbosa and described the threatening phone call and violent incident. He was told there was little the police could do without more information regarding the identity of the assailants. The principal respondent quit the Gigantes plantation and the union and started working for another plantation a few miles away.
[6] The principal respondent alleges that the threatening phone calls did not stop and that he feared for his life. His mother received phone calls that threatened both the principal respondent's life and that of his young daughter.
[7] On April 11, 2002 the principal respondent fled to Canada and sent his wife and daughter to live with his mother-in-law in Puerto Jimenes. The principal respondent's wife alleges that she continued to receive threatening phone calls, both at her mother's house and while she stayed with her sister. The phone calls threatened her and her daughter. The two female respondents fled to Canada on October 14, 2002.
[8] A hearing was held on March 7, 2003 to determine the three respondents' claims to Convention refugee status.
[9] By its decision dated March 20, 2003, the Board accepted the respondents' claims.
[10] This proceeding is the judicial review application brought by the Minister of Citizenship and Immigration (the "applicant") challenging the Board's decision that the respondents are Convention refugees.
Reasons of the Immigration and Refugee Board (Refugee Protection Division)
[11] The Board identified the key issues as the respondents' credibility and the availability of state protection in Costa Rica.
[12] First, the Board held that the respondents were credible because their testimony was given in a straight-forward and unembellished manner, devoid of any inconsistencies. Its two areas of concern regarding the respondents' testimony were resolved, so the Board believed that the respondents were telling the truth.
[13] Second, the Board held that the respondents could not have obtained protection from state authorities in Costa Rica. In reaching this conclusion, the Board noted that a recent public opinion poll indicated that a large percentage of the Costa Rican population has lost confidence in the court system and in the police. Furthermore, the Board noted that the principal respondent went to an authority figure, Jorge Luis Barbosa, Deputy General Secretary of SITRAB, for advice on his situation. Mr. Barbosa doubted the effectiveness of going to the police if the identity of the principal respondent's attackers were unknown, since the police would demand firmer evidence than the principal respondent could offer. The Board held that "the police could be approached but without any hope of success" and therefore it was not unreasonable for the principal respondent to have not gone to the police.
Applicant's Submissions
[14] The applicant does not take issue with the Board's positive credibility finding.
[15] The applicant submitted, however, that the Board "seriously eroded" the strict burden on the respondents to rebut the presumption that a democracy such as Costa Rica would offer them adequate state protection.
[16] Specifically, the applicant argued that the Board's finding regarding state protection is patently unreasonable for the following three reasons:
1. The Board erred by relying on a public opinion poll as clear and convincing evidence of the state's inability to protect the respondents;
2. The Board erred by not demanding that the respondents seek protection from the police or other state authorities; and
3. The Board failed to address any country condition documents that indicated that state protection is available in Costa Rica.
Public Opinion Poll
[17] The applicant argued that it was perverse for the Board to find that one poll of unknown statistical sampling demonstrates clear and convincing proof of Costa Rica's inability to protect the respondents.
Seeking State Protection
[18] The applicant submitted that the Board applied too low a standard regarding whether the principal respondent should have sought state protection. On the facts, the Board found that the police could be approached, but that it would not be fruitful because the principal respondent had no evidence that identified his assailants. In the applicant's view, it does not necessarily follow that the police have failed to protect the principal respondent by failing to prosecute an unknown assailant, and it is submitted that it was perverse for the Board to conclude that the police were unwilling or unable to protect the respondents on this basis.
[19] In support of this line of argument, the applicant cites Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780 (T.D.) and Syed v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 39 (T.D.).
[20] The applicant further submitted that the Board's "watering down" of state protection standards would allow every applicant to claim that their state is unable to protect him or her whenever the perpetrators of assaults are unidentified.
Treatment of the Documentary Evidence
[21] The applicant submitted that the Board erred in relying solely on one piece of documentary evidence regarding a violent incident in 1999 to conclude that trade unionists in Costa Rica face persecution. In the applicant's view, the author of that one report was of questionable objectivity, and the Board should have considered more up to date evidence.
[22] Furthermore, the applicant argued that the Board should have applied the principle set out by the Federal Court of Appeal in Adu v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 114 (C.A.) (QL), namely that the well-foundedness of a claim may be impugned by the failure of the documentary evidence to mention what one would normally expect it to mention.
[23] The applicant noted that the documentary evidence before the Board included the 2002 United States Department of State's Report on Human Rights in Costa Rica and a Report to the WTO General regarding labour conditions in Costa Rica, neither of which suggested there was rampant persecution against union members. The applicant submitted, therefore, that the Board erred in determining that one incident of violence was enough to demonstrate the inability of police to address violence against union activists.
[24] The applicant further submitted that the Board erred by failing to canvass any publicly available evidence that contradicted the idea of the Costa Rican state being unable to protect union members. While the applicant acknowledged that the Board is not required to cite in its reasons every piece of evidence it considered, it is submitted that the Board has an obligation to explain why contrary objective documentary evidence was accorded little weight in the circumstances of this case.
Respondents' Submissions
[25] The respondents agreed that the Board's findings regarding state protection should be reviewed on the standard of patent unreasonableness.
[26] The respondents submitted that the Board did not err in its findings regarding a lack of state protection in Costa Rica for these particular respondents and argued that the applicant has not established any basis for this Court's intervention.
[27] First, the respondents submitted that in essence, the applicant is asking this Court to re-weigh the evidence that was before the Board, and that this Court should decline to do so.
[28] The respondents emphasized that, as stated in Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.), the Board is not obligated to mention every piece of country condition documentation it considered. Furthermore, the respondents submitted that the applicant failed to cite any specific document that contradicts the Board's assessment that state protection would not be available to the respondents in their particular situation.
[29] The respondents argued it was open to the Board to refer to an opinion poll in assessing the reasonableness of their unwillingness to approach the state for protection.
[30] The respondents argued that once the Board determined that state protection was not available to them, it became moot whether they actually sought out state protection or not. Relying on Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the respondents stated that refugee claimants are not required in all cases to approach their state for protection. In this case, the respondents submitted, the Board properly concluded that it was not unreasonable for them to have not sought the protection of their home authorities because based on the documentary evidence, state protection was not available to them. The respondents argued that the Board did not err in this respect.
[31] The respondents requested that the judicial review application be dismissed.
Issue
[32] Did the Board err in finding an absence of state protection for the respondents?
Relevant Statutory Provisions
[33] The definition of Convention refugee is set out at section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which provides:
|
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
. . . |
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
. . . |
Analysis and Decision
[34] The test for a well-founded fear of persecution was set out by the Supreme Court of Canada in Ward, supra, at page 723:
More generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.
See also Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.), at p. 173. . . .
[35] The Board found the respondents to be credible and the applicant does not challenge the Board's findings on the subjective branch of the Ward, supra, test. The applicant argued that the respondents did not offer clear and convincing proof of the inability of Costa Rican authorities to protect them and therefore, the Board erred in concluding that the respondents' claim to Convention refugee status were well-founded.
[36] The applicant submitted three arguments why the Board erred in its finding on state protection, namely, the public opinion poll, the treatment of the documentary evidence and seeking state protection.
[37] I propose to deal first with the issue of seeking state protection. The Board's reasoning on the availability of state protection in Costa Rica reads as follows at pages 3 to 4 in its decision:
If then, the claimants have spoken the truth, as I find that they have, could they not have obtained protection in Costa Rica itself. We have two things to keep in mind here.
One is the perceptible lack of faith in the protective apparatus existing in Costa Rica. Twenty-seven percent of the population have lost fait in the nation's court system and thirty-seven percent have no confidence in the police.
The other is that the male claimant did immediately go to an authority figure for advice. He went to the SITRAB's Deputy General Secretary, Jorge Luis Barbosa. The latter doubted the effectiveness of going to the police if the identity of the aggressor was not known. Mere suspicion would not be enough, he said. The police would demand evidence firmer than the male claimant could offer. In short, the police could be approached but without any hope of success.
Barbosa, an experienced trade unionist, presumably knew what he was talking about. The claimant was a day labourer with a Grade 6 education. He did not question what Barbosa told him. He did not go to the police to find out independently if Barbosa was right. He simply accepted what Barbosa told him. In the circumstances, I do not think it was unreasonable that the male claimant did not go to the police.
[38] A review of the evidence establishes that the principal respondent did not go to the police to seek protection, instead he went to SITRAB's Deputy General Secretary who doubted the effectiveness of going to police if the identity of the aggressor was not known. The Board ruled that the police could be approached but without any hope of success. The Board went on to find that it was not unreasonable for the principal respondent to accept the advice he received from the Deputy General Secretary and it was not unreasonable for him not to approach the police.
[39] The Board accepted that it was not unreasonable for the principal respondent not to go to the police for protection, since he was advised by the Deputy General Secretary that since he did not know the identity of the aggressor or the person who was making the threatening phone calls, there would be no hope of success with the police. The Board did not state that the police would be unwilling to help or that the police were in collusion with the alleged persecutors. It is my opinion that the Board set too high a standard for state protection. In essence, the Board imposed a standard of near perfection on the Costa Rican police, instead of recognizing the underlying rationale of refugee protection is that it is intended to come into play where no alternative remains open to persons in the position of the respondents. In the present case, the respondents did not approach the police and there is no clear and convincing proof of Costa Rica's inability to protect the respondents, even if the police were unable to apprehend the principal respondent's attackers. As Gibson J. stated in Smirnov, supra, at paragraph 11:
. . . It is a reality of modern-day life that protection offered is sometimes ineffective. Many incidents of harassment and/or discrimination can be effected in a manner that renders effective investigation and protection very difficult. The use of unsigned correspondence that does not identify its source and of random telephone communications where the caller does not identify himself or herself are examples. A single incident of defacement of property is another. The applicants suffered from these types of incidents and received no satisfaction when they reported them to the militia or police. Random assaults, such as those suffered by the applicants, where the assailants are unknown to the victim and there are no independent witnesses are also difficult to effectively investigate and protect against. In all such circumstances, even the most effective, well-resourced and highly motivated police forces will have difficulty providing effective protection. This Court should not impose on other states a standard of "effective" protection that police forces in our own country, regrettably, sometimes only aspire to.
[40] I am of the view that the application for judicial review must be allowed as the Board applied too high a standard for state protection, and accordingly, the decision is patently unreasonable.
[41] I need not deal with the applicant's other arguments.
[42] The application for judicial review is therefore allowed and the matter is referred back to a differently constituted panel of the Board for re-determination.
[43] The respondents proposed the following question for my consideration for certification as a serious question of general importance:
Is there an independent obligation upon a refugee claimant to approach his state for protection where the government is not an agent of persecution?
[44] I have reviewed the proposed question for certification put forward by the respondents and the submissions of the parties. I am not prepared to certify this question as a serious question of general importance as the answer to this question will depend on the facts of each individual case.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed and the matter is referred back to a differently constituted panel of the Board for re-determination.
2. No serious question of general importance is certified.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2910-03
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
ALBERTO SANDOVA ORTEGA, MARITA
CASTILLO SERON, CASTILLO MARILYN
SANDOVAL
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 22, 2004
AND ORDER BY: O'KEEFE J.
APPEARANCES BY:
Jamie Todd
FOR THE APPLICANT
Lisa R. G. Winter-Card
FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE APPLICANT
Niren and Associates
Toronto, Ontario
FOR THE RESPONDENTS
FEDERAL COURT
Date: 20041020
Docket: IMM-2910-03
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
ALBERTO SANDOVA ORTEGA, MARITA CASTILLO SERON, CASTILLO MARILYN SANDOVAL
Respondents
REASONS FOR ORDER AND ORDER