Date: 20041110
Docket: IMM-9010-03
Citation: 2004 FC 1583
BETWEEN:
ROSAURA EUGENIA ZELEDON DIAZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons follow the hearing of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD determined the Applicant not to be a Convention refugee or a person otherwise in need of protection. The reasons for decision are dated the 16th of October, 2003.
[2] The Applicant is a young woman and a citizen of Costa Rica. She fears persecution in Costa Rica at the hands of her former common-law partner who she alleges is a trafficker in drugs, well connected to the police and to government officials. The Applicant alleges that at the hands of her former partner, she suffered severe physical, sexual and psychological abuse and that she was forced by him to act as a "carrier" of drugs.
[3] The Applicant twice sought police protection without any success. In respect of her first effort to seek protection, she wrote in her Personal Information Form:
The police did not believe me a word and as a result I have not get any police protection. Adrian [her former partner] was a very influential person in the community and he had too many connections in different public and government places. [as in the original]
[4] With respect to her second attempt to obtain police protection, she wrote:
On October 04, 2000 I went very determinated to report to the police that Adrian attempted to kill me but even I showed them (police) my wounds they asked me for witnesses other than my uncle. Worse than that the police said that was a domestic matter and that they considered no serious matter. [as in the original]
[5] With respect to her second attempt to obtain police protection, the Applicant testified before the RPD:
COUNSEL: What did you tell the second police?
CLAIMANT: I have been hit, before going to the police he had hit me, I had proof, I was cut. I went with one of my uncles, who also was threatened by him, because he was defending me. I couldn't even walk from the beating he gave me. And they didn't pay attention to me.
COUNSEL: And why would they not pay attention to you?
CLAIMANT: They told me no, they told me first of all, that they would not accept a witness from my own family, and that they would not accept a denunciation without a denunciation at the place I was living at. They told me after, or after they told me, that who knows where you fell, and now you are come here and make that kind of denunciation.
[6] The RPD made no finding regarding the credibility of the Applicant. In the absence of a negative finding, the RPD must be presumed to have found the Applicant credible. Rather, the RPD based its determination entirely on the issue of state protection. It wrote:
The determinative issue in this claim is the availability of state protection in Costa Rica to the claimant, as a person fearing domestic abuse in that country. I find that, on the evidence, and with reference to the relevant statutory provisions and the case law, the claimant has not rebutted the presumption that state protection is available to her in Costa Rica.
[7] I am satisfied that my decision in Elcock v. Canada (Minister of Citizenship and Immigration), which has a very similar factual background to this matter, is directly on point. At paragraph [15] of my reasons, I wrote:
In both Cuffy and D'Mello, the decisions of the CRDD that were under review, relying as they did on a conclusion that the applicant or applicants had failed to meet the onus on them to establish a lack of state protection, were quashed. I am satisfied that the same result must follow here and that the CRDD committed a reviewable error in failing to effectively analyse, not merely whether a legislative and procedural framework for protection existed, but also whether the state, through the police, was willing to effectively implement any such framework. Ability of a state to protect must be seen to comprehend not only the existence of an effective legislative and procedural framework but the capacity and the will to effectively implement that framework. [emphasis added]
[8] In Cuffy v. Canada (Minister of Citizenship and Immigration), Justice McKeown quoted from the reasons of Mr. Justice Teitelbaum in Kraitman et al. v. Canada (Secretary of State) where he wrote:
The police may have the ability to offer protection but when it chooses not to, this is equivalent to saying it is unable to provide protection to the Applicants.
[9] As was the case in the foregoing authorities, I am satisfied that the RPD here erred in a reviewable manner when it relied on the existence of an effective legislative and procedural framework in Costa Rica that is capable of providing protection to the Applicant while failing to give credence to the testimony of the Applicant, both written and oral, which the RPD must be presumed to have found credible, that the police were simply unwilling to protect her in the face of uncontradicted evidence that she had been the victim of physical violence.
[10] For the foregoing brief reasons, this application for judicial review will be allowed, the decision of the RPD that is under review will be set aside and the Applicant's application for Convention refugee or like protection will be referred back to the Immigration and Refugee Board for rehearing and redetermination.
[11] When advised of the Court's determination at the close of hearing, neither counsel recommended certification of a question. The Court is satisfied that no serious question of general importance arises on the facts of this matter. In the result, no question will be certified.
_____________________________
J.F.C.
Ottawa, Ontario
November 10, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-9010-03
STYLE OF CAUSE: ROSAURA EUGENIA ZELEDON DIAZ
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: NOVEMBER 3, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Gibson
DATED: NOVEMBER 10, 2004
APPEARANCES BY: Mr. J. Byron M.Thomas
Barrister and Solicitor
Toronto, ON M3B 6E3 For the Applicant
Mr. Drukarsk
Department of Justice
Toronto, Ontario For the Respondent
SOLICITORS OF RECORD: Mr. J. Byron M.Thomas
Barrister and Solicitor
Toronto, ON M3B 6E3
(416) 234-9171 For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario For the Respondent
Applicant's Application Record, page 27.
Applicant's Application Record, page 28.
Tribunal Record, page 184.
See: M.B.K. v. Canada (Minister of Citizenship and Immigration) [1997] F.C. J. No. 374 (Q.L.)(F.C.T.D.) at paragraph 9.
Applicant's Application Record, page 9.
[1999] F.C.J. No. 1438 (Q.L.)(F.C.T.D.).
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