Date: 20050420
Docket: IMM-2738-04
Citation: 2005 FC 535
Ottawa, Ontario, April 20, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
OLMAN GAMBOA BADILLA
ALICIA ARIAS URENA
JOSELYN MARIA GAMBOA ARIAS
ELBER DELCARMEN GAMBOA ARIAS
TATIANA MARIA GAMBOA ARIAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Refugee Protection Division (RPD) of the Immigration and Refugee Board determined that the applicants (a Costa Rican family) are not Convention refugees or persons in need of protection. Its finding was premised on the availability of state protection in Costa Rica. They seek judicial review of that decision. I am satisfied that their application should be allowed.
BACKGROUND
[2] Mr. Badilla is the main applicant and Ms. Urena is his wife. The other applicants are their children. Mr. Badilla's claim was based on a fear of persecution at the hands of Ana Lidiet Toruno (Toruno) and the local police. The other four applicants' claims were based on their status as members of his family.
[3] Mr. Badilla was a successful salesman with many contacts in Costa Rica. His family was content and happy until the latter part of 2001. In August of that year, Toruno approached
Mr. Badilla with a plan to help individuals in Costa Rica access money allegedly donated by philanthropists from the United States. Toruno invited Mr. Badilla to assist her in identifying and soliciting individuals who would provide a thousand colones. She proposed to open an account containing each individual's money as well as the money donated from the United States.
[4] Approximately 2000 interested participants were identified through Mr. Badilla's contacts and through word of mouth. Toruno met with these people, in groups of 400 over five meetings, in August and September. At the meetings, Toruno explained her proposal, gathered the individuals' money and their national identification numbers, and instructed them to return to the meeting site on September 23rd for the distribution of bank cards that could be used to access the new accounts. Mr. Badilla was present at each meeting. On September 23rd, Toruno did not show up and no one received a bank card.
[5] After his attempts to locate Toruno failed, Mr. Badilla, on September 25th, lodged a complaint regarding her fraud with the police in Ciudad Neily. He did not go to the local police in Laurel because Toruno's father was an officer there. Although the police in Ciudad Neily accepted the complaint, Mr. Badilla heard nothing from them in the weeks and months that followed.
[6] In February of 2002, Mr. Badilla claims to have received (at his home) an unsigned letter containing death threats against his wife and children. He again went to the police in Ciudad Neily and was told that the note did not prove anything. At this time, Mr. Badilla also questioned the police about his fraud complaint.
[7] Toruno apparently learned that Mr. Badilla had denounced her to the police and, on
March 16, 2002, when Mr. Badilla was not at home, she went to the family's home (accompanied by two civil police officers) and threatened to kill Ms. Urena and the children. Mr. Badilla returned to the police in Ciudad Neily and tried to withdraw the fraud complaint, but the police would not allow it. He told the police that he was being threatened and that he and his family needed protection, but the police said that there was nothing they could do to protect him.
[8] In April of 2002, Mr. Badilla received anonymous calls from a person stating that his children would be killed. He claims that, as a result, he withdrew his children from school for two months. On October 20th, Mr. Badilla was stopped while driving his car through Perez Zeledon and was assaulted by two police officers from an unmarked car. He claims that they told him to stop trying to expose Toruno or risk harm to his children. Once again, Mr. Badilla claims to have gone to the police - this time to the central station - but they refused to help him.
[9] On November 5, 2002, the family's home was ransacked and the dog was slaughtered. When Mr. Badilla sought assistance from the Laurel police, they refused to help once they heard Toruno's name. The family left Costa Rica on November 19, 2002. They arrived in Canada and made their refugee claims the same day.
THE DECISION
[10] The RPD accepted that Mr. Badilla may have been threatened by Toruno (whose father is a long-standing, powerful police official with influence) and local police officers. It also accepted that Mr. Badilla attempted, on several occasions, to access state protection and was refused assistance. The RPD rejected Mr. Badilla's testimony regarding his attempt to seek help from the police at central station following the beating by police officers in October because this attempt was not contained in the personal information form (PIF) and Mr. Badilla could not satisfactorily explain the omission.
[11] The RPD rejected the family's claims for refugee protection on the basis that adequate state protection is available in Costa Rica. The board adopted the reasoning in TA2-14980 (the JG case), a decision of the RPD identified by the Chairperson under paragraph 159(1)(h) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) as determinative of the availability of state protection in Costa Rica with respect to claims of risk due to sexual orientation or general criminality.
[12] The board rejected the applicants' submission that the JG case was distinguishable because, in that case, the agents of persecution did not include police officers. The RPD discounted the distinction on the premise that the documentary evidence disclosed the existence of remedies to combat corruption within law enforcement branches in Costa Rica.
[13] The RPD found, based on the evidence before it and on the JG case, that Costa Rica is a country with "well-established infrastructure for accessing state protection and investigating failures in the system". The board specifically noted the existence of the Organismo Investigacion Judicial (OIJ) and the office of the Ombudsman, which had not been accessed or approached by Mr. Badilla. It also determined that in order to rebut state protection, more than five or six unsuccessful attempts to report to police within the immediate jurisdiction was required.
[14] Last, the RPD noted the psychological assessment regarding the family. Although the report stated that Mr. Badilla "apparently still continued to fear policemen and commented that he feels extremely nervous when police officers are around", the board concluded that Mr. Badilla does not have a psychological inability to seek state protection in Costa Rica.
ISSUES
[15] The issues identified by the applicants are set out under the sub-headings that follow.
LACK OF NEXUS
[16] The applicants submit that the RPD committed a reviewable error by rejecting their claims on the basis of lack of nexus to a Convention ground. Nexus was never identified as an issue, before or during the proceeding, and the RPD made no reference to it in its reasons, except on the first page, when it stated that nexus was not established. Accordingly, say the applicants, the RPD erred by failing to provide a basis for this conclusion in its reasons.
[17] The respondent contends that the RPD reasonably found that the applicants' claims did not have any nexus to the Convention refugee definition of persecution because they were victims of crime, a group that has consistently been rejected as one coming within the enumerated grounds. There was no need for the board to explicitly state that nexus was an issue because it is always an issue. In any event, says the respondent, even if the RPD erred in assessing the nexus issue, that finding was not central to the decision because it rests upon the finding of state protection.
[18] In my view, at the end of the day, nothing turns on the "nexus" issue. On the one hand, the applicants' counsel acknowledges that if no error exists with respect to the finding of state protection, the applicants cannot succeed. On the other hand, the respondent's counsel conceded, at the hearing, that if the board erred in its finding of state protection, the application must be allowed because the RPD did not undertake an analysis in relation to section 97 (protected persons) of IRPA.
FAILURE TO CONSIDER PSYCHOLOGICAL ASSESSMENT
[19] The applicants assert that the RPD erred in failing to consider the psychological report in relation to the issue of state protection. They note that the psychologist clearly states that
Mr. Badilla continues to fear policemen and that the board did not factor this into his ability to avail himself of state protection in Costa Rica.
[20] The respondent claims that the RPD simply preferred some documentary evidence over other such evidence, that this is a question of weight (a matter reserved to the board) and that the assessment of the psychological evidence and its impact on the issue of state protection is neither perverse nor capricious.
[21] I do not agree with the applicants that the RPD failed to take into account Mr. Badilla's psychological state. The board concluded that the report was of little value on the objective issue of state protection. It noted Mr. Badilla's continuing fear of the police, but found that he did not have a "psychological inability" to access state protection. This finding was reasonably open to the board.
STATE PROTECTION
[22] The applicants argue that the RPD erred when it concluded that Mr. Badilla "did not make reasonable efforts to pursue all the avenues open to him". The documentary evidence reveals that OIJ self-investigations have proven to be ineffective and that the Ombudsman's office has no enforcement mechanisms at its disposal. After accepting that Mr. Badilla attempted unsuccessfully to access police protection on five or six occasions, the board failed to explain why a seventh attempt to get help from yet another police station would have succeeded when the others had failed. Since the OIJ and the Ombudsman could not have assisted them, the applicants contend that it was unnecessary for them to go through the motions of seeking assistance from these bodies only to show their ineffectiveness.
[23] The applicants also submit that the RPD erred in relying upon the JG case. They reiterate that, in the JG case, the perpetrators were private entities whereas, here, the police were active agents of persecution. Additionally, in the JG case, the individual sought police assistance once and never returned whereas, here, Mr. Badilla made several attempts to access police protection.
[24] The respondent counters that the board's conclusion was based on the documentary evidence regarding country conditions in Costa Rica and that the preference of certain documentary evidence over other such evidence is a question of weight that attracts significant deference. The evidence regarding the OIJ referred to by the applicants is several years old and was not cited in the jurisprudential precedent JG case.
[25] With respect to the RPD imposing an unduly high requirement - to exhaust all avenues of state protection - the respondent refers to Kadenko v. Canada(Solicitor General) (1996), 143 D.L.R. (4th) 532 (F.C.A.) and claims that the impugned statement simply paraphrases the Kadenko requirements. Applying principles derived from the jurisprudence is not an error. Moreover, says the respondent, when read in context, the RPD understood the test to be whether it was "reasonable" for the applicants to seek other avenues of state protection.
[26] Regarding the use of the JG case, the respondent submits that the legislation specifically provides for the use of jurisprudential guidelines and that the court has historically endorsed such a practice.
[27] I find no fault with the board's conclusion that there exist effective avenues of state protection that were not accessed by the applicants. The documentary evidence does support the effectiveness of the Ombudsman's office in dealing with cases of police corruption. The applicants' documentary evidence regarding the OIJ was several years out-of-date and while it would have been preferable (particularly in view of its contents) for the RPD to mention it, the board was not obliged to do so. It was also open to the board to find, based on the unexplained discrepancy between Mr. Badilla's testimony and his PIF, that Mr. Badilla did not seek the assistance of the police at the central station after he was assaulted by the police officers in October, 2002.
[28] While I entertain some doubt as to whether the RPD properly stated the test to be applied to the applicants' efforts to access state protection, I am prepared to give it the benefit of the doubt regarding its enunciation of the test. However, I am not prepared to extend that benefit to its application of the test.
[29] The board referred to the applicants' efforts to distinguish the JG case from their circumstances. It then stated:
The documentary evidence before the JG panel and before this panel points to remedies to combat corruption within law enforcement branches in Costa Rica. I therefore determine that TA2-14980 applies in the case at bar since the availability of state protection in Costa Rica has been comprehensively analysed in that case and that reasoning applies to the facts of this claim. As a result, I adopt the reasoning in TA2-14980.
[30] In Koroz v. Canada (Minister of Citizenship and Immigration) (2001), 261 N.R. 71 (F.C.A.), the Federal Court of Appeal determined that a panel may "adopt the same reasoning of another panel" faced with the same documentary evidence as a basis for finding the existence of an internal flight alternative in the same country. The Court noted that this "does not mean that a panel can blindly adopt factual findings of other panels". Where the question is one of fact-finding "concerning general country conditions of approximately the same time, however, a panel may rely on the reasoning of an earlier panel on the same documentary evidence". Finally, the Court stated that where "the analysis of one panel on the same evidence on such a question commends itself to a later panel, there is no legal bar to the second panel relying on it".
[31] This reasoning has been held to apply equally to the issue of objective fear or state protection: Olah v. Canada(Minister of Citizenship and Immigration) 2001 FCT 382; Piber v. Canada (Minister of Citizenship and Immigration) 2001 FCT 769; Zambo v. Canada(Minister of Citizenship and Immigration) (2002), 23 Imm. L.R. (3d) 267 (F.C.T.D.).
[32] Paragraph 159(1)(h) of IRPA provides for jurisprudential guides. The provision states:
| Immigration and Refugee Protection Act,
S.C. 2001, c. 27
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
[...]
(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; and
|
|
Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
159.(1) Le président est le premier dirigeant de la Commission ainsi que membre d'office des quatre sections; à ce titre :
[...]
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;
|
[33] The policy on the use of jurisprudential guides (Policy No. 2003-01 effective March 21, 2003) provides, among other things, that:
Members are expected to follow the reasoning in a decision identified as a jurisprudential guide to the extent set out in the accompanying statement, unless there is reason not to do so, where the facts underlying the decision are sufficiently close to those in the case being decided to justify the application of the reasoning in the jurisprudential guide.
A member must explain in his or her reasoning why he or she is not adopting the reasoning that is set out in a jurisprudential guide when, based on the facts of the case, they would otherwise be expected to follow the jurisprudential guide. (my emphasis)
[34] In relation to the JG case (TA2-14980) the Chairperson's statement setting out the scope of the jurisprudential guide, as nearly as I can gather, is as follows:
Costa Rican claimants seeking protection due to their fear of criminality. The issue in this decision that forms the basis of the jurisprudential guide is the determination of the availability of state protection.
[35] Without detracting in any way from the value or benefit of the jurisprudential guides, it seems to me that they do not automatically negate or alleviate the board's obligation to compare the underlying facts of the jurisprudential guide with those of the matter that is before it. In the case at hand, the applicants pointed to what appear, at first blush, to be significant distinctions between the underlying facts in the JG case and those in relation to the applicants' circumstances. The RPD does not deal with the proffered distinctions, beyond citing them. The board provides no explanation (aside from the existence of documentary evidence) as to why it considers the factual foundations in the two cases to be such that the JG reasoning applies.
[36] Nor does the board explore Mr. Badilla's explanations regarding his failure to access the Ombudsman. The RPD refers to Mr. Badilla's comment that the office is located "in San Jose, a long way from where we are" and that he didn't "quite know what the Ombudsman's office was for". However, Mr. Badilla also stated - in response to the presiding member's question as to whether there was any reason why, if he went back to Costa Rica, he could not make a complaint with the Ombudsman's office - that he was afraid that Toruno "will hurt any of us" and "I'm worried that with all that happened to me, and the way the direct attacks were carried, if I start another process that's when they have the opportunity to hurt me". (Transcript at p. 28).
[37] In the recent case of Chaves v. Canada(Minister of Citizenship and Immigration) 2005 FC 193, Madam Justice Tremblay-Lamer stated at paragraph 15:
In my view, however, Ward, supra and Kadenko, supra, cannot be interpreted to suggest that an individual will be required to exhaust all avenues before the presumption of state protection can be rebutted (see Sanchez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 536 (T.D.) (Q.L.) andPeralta v. Canada (Minister of Citizenship and Immigration) (1996), 123 F.T.R. 153 (F.C.T.D.)). Rather, where agents of the state are themselves the source of the persecution in question, and where the applicant's credibility is not undermined, the applicant can successfully rebut the presumption of state protection without exhausting every conceivable recourse in the country. The very fact that the agents of the state are the alleged perpetrators of persecution undercuts the apparent democratic nature of the state's institutions, and correspondingly, the burden of proof. As I explained in Molnar v. Canada(Minister of Citizenship and Immigration), [2003] 2 F.C. 339 (T.D.), Kadenko, supra, has little application when the "[...] police not only refused to protect the applicants, but were also the perpetrators of the acts of violence"; Molnar, supra, at para 19.
[38] In footnote 3 to the above referenced paragraph, Justice Tremblay-Lamer continued:
Indeed, subsequent decisions distinguishing Molnar, supra add credence to this distinction: see T.C. v. Canada(Minister of Citizenship and Immigration), [2004] F.C.J. No. 1337 (Q.L.), and Bandula v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1341 (Q.L.). Note also that in T.C., supra, the applicant's testimony to the effect that the authorities inflicted the persecution was found non-credible.
[39] Mr. Badilla attempted several times, over the course of approximately one and one-half years, to access police protection. He went to two different police stations with respect to a variety of matters - the original complaint of fraud, a complaint that he and his family had received death threats (supported by the unsigned letter), a request for police protection after Toruno threatened the applicants in their home (accompanied by two civilian police), a complaint that he had been beaten by two police officers (the RPD determined that he did not report this incident) and a complaint that his home had been ransacked and his dog killed. The police did nothing to protect the family from continued threats.
[40] This evidence coupled with the board's acceptance of the fact that the police were among the perpetrators of the acts against the applicants, in my view, required the RPD to state why it considered the underlying facts of the JG case to be such that the reasoning contained therein applied equally to this matter. In so finding, I should not be taken to impose such a requirement in all cases. There will undoubtedly be situations where it is apparent that the factual foundations between two cases are similar. In such circumstances, I highly doubt that an analysis or explanation of the board's reasons for applying the jurisprudential guide would be required. However, in situations where there exist striking differences in the factual foundations and the board is specifically referred to those differences, in my view, the board is then required to address them.
[41] I also feel that it was incumbent on the RPD, in this instance, to specifically apply the test of whether, in the circumstances, the applicants reasonably ought to have been required to access those avenues of redress that had not been accessed. While the board notes the wealth of documentary evidence dealing with the effectiveness of the Ombudsman, there is no indication that it addressed the issue of whether there are meaningful and timely measures that the office can immediately implement to protect a complainant from further abuse by the police. This was one of Mr. Badilla's reasons for not seeking the assistance of that office.
[42] The RPD may well have had good reason to decide this matter in the manner in which it did. However, the applicants are entitled to the benefit of reasons and so, too, is the court sitting on judicial review of the decision. In the absence of any explanation or analysis on the noted issues, in my view, the finding regarding the existence of state protection is patently unreasonable and cannot be sustained.
[43] Counsel did not suggest a question for certification and this matter turns on its unique facts.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted for redetermination before a differently constituted board.
"Carolyn Layden-Stevenson"
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