IMM-4788-96
B E T W E E N:
MARIA
CECILIA ABARCA CORRALES
Applicant
-
and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR ORDER
REED, J.:
The applicant seeks to have a decision of the Convention
Refugee Determination Division of the Immigration and Refugee Board set aside.
That decision found her not to be a convention refugee.
The applicant comes from Costa Rica. She claims refugee
status on the ground that the state is unwilling or unable to protect her from
spousal abuse. The Board found she had been the victim of spousal abuse. The
interpretation of its reasons, after that finding, is the source of this
appeal. Counsel for the applicant argues that the Board found that the
claimant had had a well-founded fear of persecution, that the state was unable
or unwilling to protect her when she left Costa Rica in May of 1995, but that
there had been changed country conditions after that date and before the Board
hearing on July 3, 1996 (or the decision on December 2, 1996).
The Board summarized the applicant's evidence, concluded
that she had been a victim of spousal violence, and stated that it, next, must
determine to what extent there had been a failure of state protection. It
referred to the documentary evidence before it, drawing the following
conclusions of fact:
-women's
police stations have been in place in order to prevent family violence since
1987;
-women's
offices within government have existed since 1990 to promote actions and
programs for confronting violence against women;
-there
is recourse for victims to police bodies, judicial bodies, institutions such as
PANI and the Delegacion de la Mujer (women's office);
-
the Costa Rican women-and-violence movement is by far the most sophisticated in
the region;
-
the law of Real Social and Economic Equality provides the framework and
supportive political climate for the burgeoning public sector and NGO
initiatives that combat violence against women;
-
women may take their initiative: seek family's help; file charges with the
women's police, seek police intervention and receive referrals for legal
services, psychotherapy, couple counselling and women's support groups;
-
victims can obtain a restraining order;
-
there are projections for children's rights; and alimony and support laws on
March 26, 1996, a law was enacted against domestic violence which considered at
the forefront of steps to solve the problem.
While counsel for the applicant, in his written memorandum,
raised the argument that the Board's decision was not supported by the
documentary evidence, in oral argument, he focussed on the fact that the Board
had not considered whether compelling reasons existed for not returning the
applicant to Costa Rica. The applicable law is found in section 2(3) of the Immigration
Act. See, also, Yong-Gueico, et al. v. Minister of Citizenship and
Immigration (IMM-3413-96, July 14, 1997) and Minister of Employment and
Immigration v. Obstoj, [1992] 2 F.C. 739 (F.C.A.).
A review of the documentary evidence explains why the
Board's decision seems to be somewhat one sided and why factors such as the
existence of support groups, psychotherapy, and women against violence
organizations are included as relevant to the consideration of the state's
ability to protect. Much of the documentary evidence on the file is
self-congratulatory description of the progress that has been made by those
attempting to combat the tolerance of violence against women. Also, much of
the documentary evidence is very general in nature. The Board did not refer to
the negative passages in the documentary evidence but I could not find that the
conclusions it drew, overall, were not supported by that documentary evidence.
I turn then to counsel's "compelling reasons"
argument. In order for an inquiry under section 2(3) to be made, one must
first find changed country conditions in the absence of which the applicant
would be a convention refugee. The Board did not make such a determination in
this case. It proceeded as the Federal Court of Appeal indicated in Yusaf
v. Minister of Employment and Immigration (1995), 179 N.R. 11:
A change in the political situation in a
claimant's country of origin is only relevant if it may help in determining
whether or not there is, at the date of the hearing, a reasonable and
objectively foreseeable possibility that the claimant will be persecuted in the
event of return there.
Since the Board
never made a determination that the applicant was a Convention refugee, there
was no need for it to consider section 2(3). I must note that, in any event, I
am not persuaded that the harm and trauma suffered by the applicant could by
any stretch be considered to constitute "compelling reasons".
For the reasons
given the application will be dismissed.
"B.
Reed"
Judge
Toronto, Ontario
October 3, 1997
FEDERAL
COURT OF CANADA
Names
of Counsel and Solicitors of Record
COURT NO: IMM-4788-96
STYLE OF CAUSE: MARIA CECILIA ABARCA
CORRALES
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
DATE OF HEARING: OCTOBER 2,
1997
PLACE OF HEARING: TORONTO,
ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: OCTOBER
3, 1997
APPEARANCES:
Mr.
J. Byron M. Thomas
For
the Applicant
Mr.
Stephen Gold
For
the Respondent
SOLICITORS OF RECORD:
J.
Byron M. Thomas
402-5468
Dundas Street West
Etobicoke,
Ontario
M9B
6E3
For
the Applicant
George Thomson
Deputy
Attorney General
of
Canada
For
the Respondent
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