Date: 20040123
Docket: IMM-5874-03
Citation: 2004 FC 104
Ottawa, Ontario, the 23rd day of January 2004
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
KARLA VANESSA BENAVIDES GUERRERO
(a.k.a. KARLA V. BENAVIDES GUERRERO)
HILLARY VANESSA SOLANO BENAVIDES
JUAN FRANCISCO SOLANO BRENES
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act and section 72 of the Immigration and Refugee Protection Act, upon leave being granted by this Court on October 24, 2003, of a decision of the Immigration and Refugee Board (the "Board"); Refugee Protection Division, dated July 11, 2003, wherein the Board dismissed the Applicants' claims to be "Convention refugees."
[2] The Applicants seek an order setting aside and referring back for a determination in accordance with such directions as this Honourable Court considers to be appropriate, the said decision of the Refugee Division.
[3] Pursuant to subsection 18(1) of the Act, the Court is able to grant this relief.
[4] The Respondent seeks that the Court dismiss the application for judicial review.
BACKGROUND
[5] Karla Benavides Guerrero (the "principal Applicant"), her spouse, Juan Solano Brenes (the "male Applicant"), and their minor daughter, Hillary Solano Benavides, (the "minor") are citizens of Costa Rica who claim to have a well-founded fear of persecution because of their membership in a particular social group. As well, they claim protection as persons who face a risk to their life or a risk of cruel and unusual treatment or punishment in Costa Rica.
[6] The Applicants are afraid of the male Applicant's father, Gregorio Solano. Gregorio Solano is a controlling and abusive person who ill-treated his family including the male Applicant, his mother and his siblings. Gregorio Solano considers the male Applicant, even as an adult, to have obligations and responsibilities to him as a father.
[7] Gregorio Solano is also a famous musician, and is well connected with the police and people in government in Costa Rica.
[8] The male Applicant was ill-treated by his father because he married secretly and because Gregorio Solano did not approve of his relationship with his spouse, who is the principal Applicant.
[9] Gregorio Solano personally and through accomplices has harassed and abused the Applicants. On one occasion the male Applicant made a report to the police at the office of the Organismo Investigacion Judicial (OIJ). The police took no action, but simply called him a "cry-baby," called him effeminate names and told him that the police would not get involved in a family matter.
[10] The police have also on two occasions persecuted the Applicants at the instigation of Gregorio Solano. They have attacked the male Applicant, sexually assaulted the principal Applicant and threatened the minor Applicant with sexual assault.
[11] All of the above was uncontradicted and not called into question whatsoever, in regard to credibility.
ISSUES
[12] Did the Board err in its assessment of the availability of state protection?
[13] Did the Board ignore evidence of similarly situated persons?
[14] Did the Board ignore the evidence of the psychological report?
Did the Board err in its assessment of the availability of state protection?
[15] The Applicants argue, essentially, that the Applicants need not seek state protection in situations where the police themselves are the agents of persecution. The Respondent submits that the Applicants needed to go to other authorities besides the police in search of aid.
[16] The Court of Appeal has ruled in Kadenko v. Canada (M.C.I.):
Where 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's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.
[17] In Kadenko, the agents of persecution were private individuals. Subsequently, the question has arisen whether such a heavy burden should also be imposed on individuals who have been persecuted by the police themselves. In some cases the Court has held that where the police are the agents of persecution, Applicants are not expected to seek protection from the police or any other institution. The Court has also found, however, that Applicants may need to seek protection through other authorities even when the police are the agents of persecution. That, in and of itself, requires specificity in respect of the degree of protection offered to victims of sexual assault. The Board Chairperson's (of the Board) Gender Related Guidelines would be of assistance in this specific assessment. Reference is made to the Refugee Protection Division-Information Package on Costa Rica (Respondent's Record under the heading of Affidavit of Emeline Layne, particularly, pages 100-135, in respect of women and minors).
[18] In this case, a case unto itself, the Board erred, when it stated that, as a general principal, it was not important whether the agents of persecution were the police or private individuals. In light of the Chairperson's Gender Related Guidelines, the Board had the obligation to assess whether the fact that the police were agents of persecution was important in light of the specific country conditions; in other words, could other governmental institutions have come to the assistance of the Applicants where this particular police unit, as described in uncontradicted evidence, did not, provide that assistance?
[19] The decision did not address evidence that members of the OIJ are not effectively investigated or punished when there are allegations of abuse. According to the evidence submitted by the Applicants, the police and the Civil Guard, again on several occasions and in two different parts of the country, at the instigation of Gregorio Solanos, arrested and beat the male Applicant's brother-in-law. Where evidence is directly relevant to the findings of the Board and contradicts it, (especially the Board's own documentary evidence that the police do engage in such acts), then it must be, at least, identified and addressed by the Board.
Did the Board ignore evidence of similarly situated persons?
[20] The Federal Court of Appeal in Salibian v. Canada (M.E.I.), clearly, states that "while modern refugee law is concerned to recognize the protection needs of particular claimants, the best evidence that an individual faces a serious chance of persecution is usually the treatment afforded similar situated persons in the country of origin." In this vein, Addulahi v. Canada (M.C.I.), advances the consideration that evidence that a person who is similarly situated has been granted refugee status is of limited value; however, evidence that a person who is similarly situated has been persecuted is important evidence that cannot be ignored.
[21] As the Applicants submitted evidence of the family of the male Applicant's sister to argue that this nuclear family is similarly situated, it was incumbent on the Board to, at least, address the evidence.
Did the Board ignore the evidence of the psychological report?
[22] The Board found that there was adequate state protection. Since the Board did not see the possibility that the Applicants would be persecuted, therefore, it cannot be said that the Board erred when it did not assess the psychological report in its reasons, although on the face of uncontradicted evidence, it would appear that it should have done so (if in fact the evidence is uncontradicted).
CONCLUSION
[23] Since the Board did not make any adverse credibility findings, it, in effect, accepted the credibility of the Applicants (M.B.K. decision specified, above), without any qualification. It is deemed by this Court that the conclusion of the Board was made without regard to the specific evidence of the case. Thus, it is singularly important to recognize that this is one case unto itself, not to be taken out of its particular context, in respect to its specific fact pattern. On the face of it, and it alone, the application for judicial review is allowed. This is due to an incorrect application of state protection by ignoring the uncontradicted evidence, both objective and subjective, which led to inadequate reasons, concluding there was sufficient state protection.
ORDER
THIS COURT ORDERS that:
1. The decision be set aside and that the matter be remitted for reconsideration;
2. No question was raised for certification.
"Michel M.J. Shore"
Judge
_______________________
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5874-03
STYLE OF CAUSE: Karla Vanessa Benavides Guerrero
(a.k.a. Karla V. Benavides Guerrero)
Hillary Vanessa Solano Benavides
Juan Francisco Solano Brenes v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 20, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Shore
DATED: January 23, 2004
APPEARANCES:
J. Byron Thomas FOR THE APPLICANT
Lisa Hutt FOR THE RESPONDENT
SOLICITORS OF RECORD:
J. BYRON THOMAS FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5874-03
STYLE OF CAUSE: Karla Vanessa Benavides Guerrero
(a.k.a. Karla V. Benavides Guerrero)
Hillary Vanessa Solano Benavides
Juan Francisco Solano Brenes v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 20, 2004
REASONS FOR ORDER BY: The Honourable Mr. Justice Shore
DATED: January 23, 2004
APPEARANCES:
J. Byron Thomas FOR THE APPLICANT
Lisa Hutt FOR THE RESPONDENT
SOLICITORS OF RECORD:
J. BYRON THOMAS FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
R.S.C. 1985, c. F-7 [the "Act"]
Applicant's Application Record, Memorandum of Fact and Law at 83, para. 37 (the "Applicant's Memorandum of Fact and Law").
Respondent's Application Record, Memorandum of Fact and Law at para. 20.
M.B.K. v. Canada (M.C.I.), [1997] F.C.J. No. 374 (T.D.) (QL)
[143 D.L.R. (4th) 532 at 534.]
[Nagy v. Canada (M.C.I.), [2002] F.C.J. No. 370 at paras. 10-15 (QL).]
Board's Decision, supra at 14.
Cepeda-Gutierrez v. Canada (M.C.I.), [1998] F.C.J. No. 1425 at para. 17 (QL).
[1990] F.C.J. No. 454 at para. 18 (C.A.) (QL)
[1996] F.C.J. No. 1433 (T.D.) (QL)
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