Date: 20060511
Docket: IMM-4601-05
Citation: 2006 FC 571
BETWEEN:
Marcos Hugo ARAYA ATENCIO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[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 June 28, 2005, wherein
the Board found that the applicant is not a “Convention refugee” or a “person
in need of protection” as defined in sections 96 and 97 respectively of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
[2]
Marcos
Hugo Araya Atencio (the applicant) is a citizen from Costa Rica whose claim is
based on a fear of persecution and threats of being killed, or injured at the
hands of Juan Rafael Casasola Mora, a well-known criminal in Costa Rica.
[3]
The
Board found that Costa Rica is a long-standing, stable, constitutional
democracy with an independent judiciary providing effective means to deal with
individual criminal cases. With this in mind, the Board found that the
applicant had not taken reasonable steps to seek protection in Costa Rica, and
therefore did not rebut the presumption of state protection.
[4]
In
its reasons, the Board stated “I accept that the perpetrator initially targeted
the claimant and that the claimant bought a gun to protect himself. I also
accept that the perpetrator is a convicted drug dealer and is spending
considerable time incarcerated and has threatened to kill the claimant when he
gets out of jail.”
[5]
The
applicant submits that since the Board did not have any concerns with his
credibility, the Board erred in disbelieving his assertion that the state is
not willing to provide him with adequate protection.
[6]
The
applicant submits that in Moya v. Minister of Citizenship and Immigration,
2002 FCT 1147, the Federal Court stated the following:
[27] Here
again, I agree with the Applicant's memorandum of argument, paragraph 34:
"Given that the Tribunal stated that the Applicant's testimonial evidence
was without major contradictions and inconsistencies and that credibility was
not a live issue, it is patently unreasonable for the Tribunal to find that the
Applicant's aforementioned assertion that he could not obtain effective state
protection in Mexico non-credible."
[7]
Similarly,
according to the applicant, in the case at bar, there were no serious
credibility issues, and therefore it was patently unreasonable of the Board to
find his assertion that he could not obtain effective state protection to be
non-credible.
[8]
However,
in Hernandez v. Minister of Employment and Immigration (1994), 79 F.T.R.
198, at paragraph 6, the Federal Court pointed out that the presumption of
truth does not extend to the inferences that the claimant draws from the facts
he or she testifies to:
.
. . the presumption of truth that applies to the facts recounted by the applicant
does not apply to the deductions made from those facts . . .
[9]
Similarly,
the following was stated in Derbas v. Canada (Solicitor General), [1993] F.C.J. No. 829
(T.D.) (QL):
.
. . By accepting the applicant’s version of the events as fact, the Board was
certainly not bound to accept the interpretation he puts on those events. The
Board still had to look at whether the events, viewed objectively, provided
sufficient basis for a well-founded fear of persecution. . . .
[10]
The
weight of authority establishes that it is the Board who weighs evidence and
determines whether or not the state is willing and able to provide adequate
protection, not the applicant. This argument of the applicant’s that the Board,
finding him credible, was bound to accept his assertion that the state was
unable to provide him with adequate protection, is therefore untenable.
[11]
With
respect to state protection, the Supreme Court of Canada has held that the focus
of a refugee claim inquiry is whether there is a “well-founded fear of
persecution” and that “[b]oth the existence of the subjective fear and the fact
that the fear is objectively well-founded must be established on a balance of
probabilities” (Chan v. Canada (M.E.I.), [1995] 3 S.C.R. 593. See also Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689 and Rajudeen v. Canada (M.E.I.)
(1984), 55 N.R. 129 (F.C.A.)).
[12]
The
key component in determining whether a claimant’s fear is well-founded is the
state’s inability to protect. Moreover, the state’s inability to protect is the
crucial element in determining the objective reasonableness of the claimant’s
unwillingness to seek its protection (Ward, above).
[13]
Except
in situations where the state is in a situation of complete breakdown, states
must be presumed capable of protecting their citizens. This presumption can be
rebutted by “clear and convincing” evidence of the state’s inability to protect
(Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th)
532 (F.C.A.)).
[14]
In
Canada (M.E.I.) v. Villafranca, [1992] F.C.J. No. 1189 (QL), the Federal
Court of Appeal suggested that protection need not be perfect:
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. . . .
[15]
The
responsibility to provide international protection only becomes engaged when
national or state protection is unavailable to the claimant (Ward, cited
above).
[16]
According
to case-law, state protection can be available from state run or funded
agencies and not only from the police (Pal v. Minister of Citizenship and
Immigration, 2003 FCT 698; Nagy v. Minister of Citizenship and
Immigration, 2002 FCT 281; Zsuzsanna v. Minister of Citizenship and
Immigration, 2002 FCT 1206).
[17]
In
the case at bar, the Board stated the following:
.
. . I disagree with counsel’s position that the claimant exhausted all
reasonable avenues of protection and determine that TA2-14980 applies in the
case at bar. The availability of state protection in Costa Rica has been comprehensively analyzed in that case, and the
reasoning with respect to state protection applies to the facts of this claim.
As a result, I adopt the reasoning in TA2-14980.
[18]
The
Board determined that the applicant had not rebutted the presumption of state
protection as the applicant had only approached one police officer regarding
the information he had received that the perpetrator was planning on killing
him once he was released from prison, and the evidence before the Board
demonstrated that the state is able to protect its citizens from criminals in
similar situations.
[19]
In
my view, the
essential components of the applicant’s claim are the same as in case TA2-14980,
i.e. fear of revenge from criminals should he return to Costa Rica,
dissatisfaction with the handling of his complaint by local police and failure
to seek redress from the Ombudsman’s Office. The issue in TA2-14980 that forms
the basis of the Immigration and Refugee Board’s Jurisprudential Guide
is the determination of the availability of state protection.
[20]
In
my opinion, the Board was well advised to consider and apply the
jurisprudential guidelines in this case. This is not a situation where the
Board failed to demonstrate its independence, but rather, an instance where the
Board considered the guidelines and thereby ensured consistency in the
decisions rendered by the Board for similarly situated asylum claimants (Khon
v. Minister of Citizenship and Immigration, 2004 FC 143).
[21]
In
the case at bar, the Board assessed whether the applicant reasonably ought to
have accessed the avenues of redress that had not been accessed. The Board
reasoned that the applicant’s efforts at seeking protection from local police
were not sufficient because according to the documentary evidence on country
conditions in Costa Rica, there are other police, political and judicial
institutions, such as the Investigative Judicial Police (OIJ) and the
Ombudsman’s Office to which he could have turned for help, and he failed to do
so.
[22]
In
my opinion, these conclusions were reasonably open to the Board, based on the
evidence. The documentary evidence shows that the Government of Costa Rica is
concentrating on dealing with crime and has established institutions and
mechanisms beyond the local police for protecting individuals such as the
applicant. The Board’s finding that if the applicant had complained to the
Ombudsman’s Office or the OIJ, such complaint would not have gone unheeded, was
reasonably open to the Board.
[23]
It
is my opinion that, in light of the foregoing, the applicant’s allegations do
not warrant the intervention of this Court.
[24]
Finally,
to the extent that the Board’s appreciation of the facts is concerned,
including the documentary evidence, the applicant has failed to convince me
that the Board based its decision on an erroneous finding of fact that it made in
a perverse or capricious manner or without regard for the material before it
(paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c.
F-7).
[25]
For
all the above reasons, the application for judicial review is dismissed.
“Yvon
Pinard”
Ottawa,
Ontario
May
11, 2006
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