Date:
20121203
Docket:
IMM-2571-12
Citation:
2012 FC 1407
Ottawa, Ontario,
December 3, 2012
PRESENT: The
Honourable Mr. Justice Barnes
BETWEEN:
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MARISOL EUFEMIA ESPINOZA
JIMENEZ
MELIETH ARGERY
(A.K.A. MELIETH ESPINOZA
JIMENEZ)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application by Marisol Espinoza Jimenez and her daughter,
Melieth Espinoz Jimenez, challenging a decision by the Refugee Protection
Division of the Immigration and Refugee Board (Board) which dismissed their
claims for refugee protection.
[2]
The
Applicants’ claims to protection were based on their respective histories as
victims of domestic abuse and family violence. The Board took no issue with the
evidence of abuse in Costa Rica and in Canada, but dismissed both claims
on the basis that the presumption of state protection had not been rebutted.
[3]
The
Board’s treatment of the country condition evidence concerning state protection
was as follows:
[11] Furthermore, the contents of the most
recent and presently probative country documents before me are at worst mixed
and inconclusive, rather than preponderantly negative as they would need to be
for a successful claim for refugee protection in this context, when it comes to
state protection for women fearing violence in Costa Rica. While some of the
text in the most recent documents indicates that Costa Rican gender violence
state protection mechanisms are inadequate, other text in the same recent
documents tells a different story and indicates that Costa Rica has reasonably
functional state protection mechanisms available for women fearing domestic
violence, both in legislation and in practice.
…
[13] In my view, it would be far too problematic
for the surrogate notion of refugee protection if adequate state protection
presumptions were found rebutted in the face of documentary state protection
evidence this mixed and inconclusive, and in circumstances where the state has
never even been given one chance to protect the claimants.
[14] In this regard, I would emphasize that
there is no preference in this decision for some of the text in the above
footnoted recent documentary evidence over the other, or that evidence over
other evidence that I have not quoted. It is all credible and reliable
documentary evidence and there is, therefore, no rational basis for preference
of some of it over the other in either direction on the state protection
question. However, given that all of it exists in the record before me, I find
that it ends up leaving a mixed and inconclusive rather than a clearly negative
picture when it comes to state protection for the claimants and for women in Costa Rica. Mixed rather than clearly negative state protection pictures are quite
problematic for claimants who face an important burden to rebut an a priori
presumption of adequate state protection and who have made no prior effort to
seek home state protection, as in this case.
[4]
There
is an inherent inconsistency between a finding that all of the state protection
evidence was credible and reliable and the finding that the resulting picture
was mixed and inconclusive. The Board found that the most recent documents
indicated that gender related state protection mechanisms in Costa Rica are inadequate. The Board then referred to other evidence that “tells a different story”.
These two conclusions were only available to the Board by virtue of its failure
to weigh the supposedly conflicting evidence and to make appropriate evidentiary
choices. In almost every case involving state protection, the evidence will be
mixed. If the Board is entitled to avoid making evidentiary findings in the
face of conflicting evidence almost no one will successfully prosecute a
refugee claim.
[5]
The
evidence in the record was amendable to meaningful review and it was not as
mixed as the Board seemed to believe. That evidence indicated that Costa Rica had made reasonable efforts to create a legal framework for dealing with its
serious domestic violence problem. What was lacking was an adequate de facto
system of protection. According to the 2010 United States Department of State
Report for the year 2009 (cited by the Board) the authorities opened 10,510
cases of domestic violence but prosecuted only 245 cases and convicted only 119
of those accused. According to a 2011 United Nations Report, Costa Rica had also created a separate judicial system for the prevention of domestic violence
against women and opened more than 50,000 cases in 2009 alone. Nevertheless,
fewer than 5000 of those cases brought before a specialized court led to a
conviction and no sentencing data was available. This problem of impunity was
confirmed in a 2010 news report that stated that the majority of domestic
violence cases that end in a conviction do not lead to a jail sentence even for
repeat offenders. Another news report from 2011 stated that one in three women
in Costa Rica is a victim of physical violence. Other evidence in the record
indicated that fewer than 20 percent of protection requests were resolved in
favour of an applicant. Even the evidence cited by the Board did not support
its optimistic view. Rather, that evidence indicated that the responsible law
enforcement officials “did not apply the law” and, in some cases, actually
intimidated victims instead of helping them.
[6]
Given
this evidentiary record, it was not a reasonable response to conclude that the
state protection issue could not be resolved one way or the other. Virtually
all of the reliable third-party evidence before the Board indicated that Costa Rica does not have an adequate system for protecting women from violent abusers like
Ms. Jimenez’s spouse.
[7]
The
Board’s criticism of Ms. Jimenez’s failure to pursue state protection in Costa Rica is also troubling. She gave anecdotal evidence about the unwillingness of the
Costa Rican authorities to protect women from domestic abuse and she also
described a personal incident with the police where her concerns were dismissed
with laughter. She also testified that she feared that the prevailing culture
of impunity would put her at a greater risk if she complained.
[8]
In
the context of all of the available evidence the Applicant’s subjective fear of
retaliation cannot be said to lack an objective basis. Indeed, having
particular regard to the Applicant’s well documented psychological profile, the
severity of the abuse she had suffered over many years, and the gender
guidelines, it was unreasonable for the Board to describe this evidence as
“asserting only a subjective reluctance to engage the state”. This was a case
of profound and long standing domestic abuse involving a spouse who, according
to Ms. Jimenez, had threatened to kill her if she returned to Costa Rica. Far more sensitivity to the Applicants’ personal histories in the context of Costa Rica’s state protection record is required than was afforded to the Applicants. The
decision is accordingly set aside for re-determination on the merits by a
different decision-maker.
[9]
Neither
party proposed a certified question and no issue of general importance arises
from these reasons.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application is allowed and the
matter is to be re-determined on the merits by a different decision-maker.
"R.L.
Barnes"
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