Carmona v. Canada (Minister of Citizenship and Immigration), 2004 FC 1298

Date: 20040914

Docket: IMM -1501-04

Citation: 2004 FC 1298

Calgary, Alberta, September 14, 2004.

Present:           The Honourable Mr. Justice von Finckenstein                                            

BETWEEN:

                 JUAN CARLOS PEREZ CARMONA, GRACIELA MORA ARAYA, and

                                              STEPHANNY ALEJA PEREZ MORA

                                                                                                                                            Applicants

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                          Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                The principal applicant, Graciela Mora Araya, is a 25 year old citizen of Costa Rica. Prior to coming to Canada, Ms. Araya was a police officer at the Juan Santamaria International Airport. In the course of her employment, she claims that she regularly witnessed corruption. However, after a 2002 incident, she claims that she and her husband began to receive threatening phone calls, as a result of which they began to fear for their lives. As a result, she claims that she and her family fled to Canada where they claimed refugee protection.

[2]                The Immigration Refugee Board (Board) on January 26^th, 2004, rejected the applicants' claims. It concluded that the principal applicant's failure to report the corruption and the threatening phone calls to the appropriate authorities undermined her credibility. In addition, it found that the applicants had failed to establish that they would be denied adequate state protection in Costa Rica.

ISSUE

[3]                Did the Board fail to consider relevant evidence or otherwise err in concluding that adequate state protection existed in Costa Rica?

STANDARD OF REVIEW

[4]                The standard of review for the Board's findings with regards to the availability of state protection is patent unreasonableness (Nawaz v. Canada (M.C.I.), [2003] F.C.J. No. 1584).

[5]                The applicants submit that it would not have been reasonable for them to seek state protection given that they feared persecution from the police.    In their support, they cite several judgments including Guerrero v. Canada (M.C.I.), [2004] F.C.J. No. 120. In addition, they submit that the Board failed to consider documentary evidence of extensive police corruption in Costa Rica. In particular they point to the fact that the Board referred to the Jurisprudential Guides issued by the IRB. These guides deal with the protection from gangs and the protection afforded to homosexuals but do not address the issue of state protection from corrupt police.

[6]                The onus is on an applicant to demonstrate that state protection either was not available or that it would not have been reasonable, given all of the circumstances of the case, for her to seek it (Guerrero, supra; Ward v. Attorney General of Canada, [1993] 2 S.C.R. 698).

[7]                In this case, the Applicants have failed to establish that the Board Member erred in concluding that state protection was not available. The documentary evidence which they refer to at pages 49-50 of the Application Record establishes no more than that there is an increasing problem with corruption in Costa Rica.

[8]                The applicant asserted but have provided no evidence that the Board did not consider all of the documentary evidence on the Record. The Board is presumed to have considered all of the evidence absent evidence to the contrary (Florea v. Canada (M.E.I.), [1993]_F.C.J. No. 598 (C.A.); Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.)).

[9]                The Jurisprudential Guides, while not addressing the issue of corrupt police, make general observation regarding the nature of Costa Rican democracy , the judiciary and law enforcement from which the Board was entitled to draw general conclusions. In the absence of evidence produced by the applicants , that state protection would not have been and will not be reasonably available by reason of police corruption, the Board's conclusion cannot be considered patently unreasonable.

[10]            Accordingly this application cannot succeed.

                                                                       ORDER

THIS COURT ORDERS that this application be dismissed.

                                                                                                                           "K. von Finckenstein"     

     F. C. J.

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-1501-04

STYLE OF CAUSE:                          Juan Carlos Perez Carmona, Graciela Mora

Araya, and Stephanny Aleja Perez Mora

Applicants

and

The Minister of Citizenship and Immigration

Respondent

PLACE OF HEARING:                    Calgary, Alberta

DATE OF HEARING:                      September 14, 2004

REASONS FOR ORDER AND ORDER : von Finckenstein J.

DATED:                                             September 14, 2004

APPEARANCES:

Ms. Lori O'Reilly                                                                      FOR APPLICANTS

Mr. Robert Drummond                                                              FOR RESPONDENT

SOLICITORS OF RECORD:

Ms. Lori O'Reilly

O'Reilly Law Office

Calgary, Alberta                                                                        FOR APPLICANTS

Morris A. Rosenberg

Deputy Attorney General of Canada     FOR RESPONDENT