Date: 20050304
Docket: IMM-6200-04
Citation: 2005 FC 320
Ottawa, Ontario, the 4th day of March 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
ALFREDO CORRALES BOLANOS
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 by the Refugee Protection Division (the panel) dated June 17, 2004, denying Alfredo Corrales Bolanos (the applicant) the status of a Convention refugee or a person in need of protection pursuant to sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
RELEVANT FACTS
[2] The applicant is a citizen of Costa Rica. He was an assistant manager and managed two bars, a sweet shop, a restaurant and four cinemas. His problems allegedly began on July 15, 2003, following the dismissal of two employees he suspected of having committed theft at his bar and having sold drugs.
[3] Between July 15 and August 30, 2003, the day he left for Canada, the applicant alleged that he received several telephone calls with death threats, his car was vandalized and he was followed several times.
[4] He alleged that he went to a police station, but that they did not take his case seriously and told him he should go to the judicial investigation department. He did so, but he was told to record the telephone calls and wait for the investigation to begin. He decided to leave his country and come to Canada to claim refugee status.
ISSUES
[5] 1. Did the panel infringe the audi alteram partem rule in referring to jurisprudential guides and internal directives?
2. Did the panel err in its analysis of the State's inability to protect the applicant?
ANALYSIS
1. Did the panel infringe the audi alteram partem rule in referring to jurisprudential guides and internal directives?
[6] The applicant submitted that the audi alteram partem rule was infringed because the panel accepted internal directives as evidence. As the panel mentioned in its decision, paragraph 159(1)(h) of the Act states:
| Duties of Chairperson - Chairperson
159. (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson
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Présidence de la Commission - Fonctions
159. (1) Le président est le premier dirigeant de la Commission ainsi que membre d'office des quatre sections; à ce titre :
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| (h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties . . .
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h) après consultation des vice-présidents et du directeur général de la Section de l'immigration et en vue d'aider les commissaires dans l'exécution de leurs fonctions, il donne des directives écrites aux commissaires et précise les décisions de la Commission qui serviront de guide jurisprudentiel . . .
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[7] Further, the Immigration and Refugee Board's Policy on Use of Jurisprudential Guides indicates that the power given to the Chairperson is to assist members in carrying out their duties:
| Section 159(1)(h) of the Act gives the Chairperson two separate powers - 1) to issue guidelines and 2) to identify decisions as jurisprudential guides. The stated purpose for the exercise of both of these powers is the same - to assist members in carrying out their duties. [emphasis in original text]
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L'alinéa 159(1)h) de la Loi confère deux pouvoirs distincts au président : celui de donner des directives et celui de préciser les décisions qui serviront de guide jurisprudentiel. L'exercice de ces deux pouvoirs vise le même objectif : aider les commissaires dans l'exécution de leurs fonctions. (emphase dans le texte original)
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| The circumstances in which the Chairperson may consider exercising his or her authority to identify a decision as a jurisprudential guide are as follows:
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Les circonstances dans lesquelles le président peut envisager d'exercer son autorité en vue de préciser les décisions qui serviront de guide jurisprudentiel sont les suivantes :
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| * To address an issue of importance to the Board,
* To address an emerging issue,
* To resolve an ambiguity in the law, or
* To resolve inconsistency in decision-making.
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* Traiter de questions importantes pour la Commission
* Aborder une question d'actualité
* Dissiper une ambiguïté dans le droit
* Éliminer l'incohérence dans le processus décisionnel
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| A decision may be identified as a jurisprudential guide on either a question of law or a question of mixed law and fact.
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Une décision qui sert de guide jurisprudentiel peut porter sur une question de droit ou une question mixte de fait et de droit.
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[8] Since paragraph 159(1)(h) is based on subsection 65(3) of the old Immigration Act, I would add the comments of Richard J., as he then was, in Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.), at paragraph 20:
The Refugee Division has an important public interest mandate and a clear policy development role with respect to the application of the Convention refugee definition in so far as subsection 65(3) [as am. idem, s. 55] authorizes the Chairperson, following consultations, to issue guidelines to assist the members in carrying out their duties under the Act. For example, in March 1993, the Chairperson of the Immigration and Refugee Board issued guidelines relating to "Women Refugee Claimants Fearing Gender-Related Persecution," which prescribe the recommended form of analysis when determining whether a woman has a well-founded fear of gender-related persecution. The importance of such a policy development role in determining the extent of deference to be accorded to an administrative tribunal was recognized in Pezim [v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557]: "[w]here a tribunal plays a role in policy development, a higher degree of judicial deference is warranted with respect to its interpretation of the law."
[9] The applicant suggested that the references by the panel to his homosexuality and the fact that the panel used the jurisprudential guide on homosexuality (Exhibit A-2.3) to explain and justify its position constituted a breach of the audi alteram partem rule. The applicant submitted no evidence to the effect that use of that guide might entail such a breach.
[10] What is more, the panel discussed this issue obiter, following the comment by the applicant, and the panel's decision was not in any way based on this issue. In short, there is no basis for the argument.
[11] On the other questions discussed by the panel with reference to another jurisprudential guide (Exhibit A-2.2), the applicant was unable to persuade the Court that the panel had made any error justifying this Court's intervention.
[12] I accordingly find that the applicant's argument that there was an infringement of the audi alteram partem rule is unfounded.
2. Did the panel err in its analysis of the State's inability to protect the applicant?
[13] As to the applicant's second argument, that the panel erred in finding that protection was available from the authorities in Costa Rica, I adopt a portion of the panel's decision which clearly summarizes the circumstances of the case:
From his own testimony, it is clear that the first time that he approached a person in authority, his persecutors took fright and sped off. On the second occasion, he was told that he would be helped and that an investigation had been launched. The claimant did not wait for even two weeks, however, before leaving his country even though he knew that an investigation had been launched. He also did not give the names of the suspects, did not mention the incident that had made him decide to file a complaint (the fact that a car had followed him) and was mistaken about when the employees had been dismissed. It cannot be concluded from his testimony that the authorities in his country refused to help him. (See page 4 of panel's reasons for decision on June 17, 2004.)
[14] Where the governmental apparatus has not completely collapsed, it must be assumed that a State is capable of protecting its citizens. Further, to show that a State is unable to protect a refugee claimant, the claimant must establish by clear and persuasive evidence that the State is unable to protect him (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689).
[15] In Kadenko v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1376 (A-388-95), Décary J.A. says at paragraph 5:
When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.
[16] In the case at bar, the panel concluded first that protection was available in Costa Rica, and secondly, that the applicant had left less than two weeks after filing his complaint with the police station, thus not even giving the authorities a chance to complete their investigation.
[17] Accordingly, the panel did not err in concluding that the applicant had not discharged his burden of establishing on clear and persuasive evidence that Costa Rica was unable to protect him.
CONCLUSION
[18] For these reasons, the application for judicial review should be dismissed.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review be dismissed;
- No question for certification.
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"Pierre Blais"
Judge
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Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6200-04
STYLE OF CAUSE: ALFREDO CORRALES BOLANOS v. MCI
PLACE OF HEARING: Montréal
DATE OF HEARING: March 2, 2005
REASONS FOR ORDER AND ORDER BY: The Honourable Mr. Justice Blais
DATED: March 4, 2005
APPEARANCES:
Claudia Aceituno FOR THE APPLICANT
Edith Savard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Claudia Aceituno FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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