Date: 20081107
Docket: IMM-1758-08
Citation:
2008 FC 1244
Ottawa, Ontario, November 7,
2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
JORLENY VARGAS CAMPOS, CARLOS ANDRES BRENES CAMPOS
AND KAROLINA LISETH BRENES CAMPOS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Jorleny Vargas
Campos, and her children Carlos Andres Brenes Campos and Karolina Liseth Brenes
Campos, are citizens of Costa Rica. They have all lived in Canada since
November 10, 1997, when they moved here to live with Ms. Vargas Campos’ fiancé,
a Canadian citizen.
[2] Ms. Vargas Campos’
husband has been unsuccessful in his efforts to have Ms. Vargas Campos and her
two children landed in Canada. This is because of
Ms. Vargas Campos' difficulties in getting formal legal custody of her two
children.
[3] This application for
judicial review does not relate to an application for humanitarian and
compassionate or other relief. Rather, in this application Ms. Vargas Campos
and her children challenge the decision of a Pre-Removal Risk Assessment (PRRA)
officer that they do not face more than the mere possibility of persecution if
they return to Costa
Rica. The
officer also found that Ms. Vargas Campos and her children were not likely to
face any of the risks contemplated by section 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act), such as a risk to life or
risk of torture, if they returned to Costa Rica.
[4] The situation of Ms.
Vargas Campos and her children is sympathetic. It is one that might attract
relief under the humanitarian and compassionate provisions of the Act. On this
application, however, the sole issue is whether it was unreasonable for the
officer to conclude that Ms. Vargas Campos and her children would not be at
risk in Costa
Rica, as
risk is defined in sections 96 and 97 of the Act. Those provisions, together
with subsection 25(1) of the Act are set out in the schedule to these reasons.
The Risk Alleged
[5] Ms. Vargas Campos' PRRA
application disclosed that her parents, grandmother, three brothers and a
sister live in Costa
Rica. Her
fear, and that of her children, is that Ms. Vargas Campos' ex-common law
spouse, an individual I will simply refer to as Mr. B, will harm them if they
return to Costa
Rica.
[6] Ms. Vargas Campos says
that shortly after she moved in with Mr. B, she learned that he was involved
with drugs and the local mafia, and that "he was working closely with the
police." Ms. Vargas Campos lived with Mr. B for three years and four
months, during which time she was regularly beaten and sexually assaulted. Her
neighbors would call the police. Ms. Vargas Campos says that even when she
reported the abuse to the police they did nothing. The only thing the police
would do would be to call an ambulance, or to take her to the hospital if they
believed she needed to be hospitalized. The officers who responded to her
calls, and the neighbours’ calls, were officers that she identified as being
associates of Mr. B.
[7] Ms. Vargas Campos left
Mr. B in July of 1996, and hid at her parents’ house. When Mr. B came to her
parents’ house looking for her, he threatened to kill everyone if Ms. Vargas
Campos did not return to him. According to Ms. Vargas Campos, the police did
nothing, even after her mother called them to report death threats.
[8] In August of 1996, Ms
Vargas Campos went to San
Jose to
find a job. She found a job at a hotel where she met her current husband.
From October of 1996 to January of 1997 they lived, with her children, in Nicaragua where her current
husband worked. In March of 1997, they all returned to Costa Rica, where they
lived until November of 1997, when they all moved to Canada. While in Costa Rica, Mr. B was unable to
find Ms. Vargas Campos because they lived in a "wealthy suburb."
According to Ms. Vargas Campos, Mr. B was, however, persistently calling her
mother in an effort to locate Ms. Vargas Campos. Also according to Ms. Vargas
Campos, in 2007 Mr. B apparently told her mother that he had "unfinished
business" with Ms. Vargas Campos.
The Officer's Decision
[9] After reviewing the
nature of Ms. Vargas Campos' claim to be a protected person, the officer
concluded as follows:
I
have carefully reviewed all the relevant evidence provided by the applicant and
I have also read the U.S. Department of State Country Report and a document
from Refworld. I am empathetic to the severe abuse suffered by the applicant
and her children, and the fact that mechanisms in place to deal with domestic
abuse are less than perfect in Costa
Rica. However, the
applicant has provided insufficient objective evidence that state protection is
not available to her in Costa
Rica. I have read the
evidence pertaining to measures adopted by the government such as laws
prohibiting domestic abuse and measures for protection against domestic
violence. The National Institute for Women provided legal and psychological
counseling, lodging and shelters and police receive training on how to handle
domestic abuse cases. The public prosecutor, police and ombudsman have special
offices dedicated to victim-assistance mechanisms. The determinative issue in
this particular case is whether state protection is forthcoming and the
applicant has provided insufficient evidence to rebut the presumption that Costa Rica is capable of protecting its citizens.
The
applicant’s statement indicated the police were friends with her ex-common law
spouse and would not take any action against him. However, the concept of risk
is forward looking, and I note these incidences occurred approximately 11 years
ago and the applicant has provided insufficient objective evidence that she
continues to be at risk from her ex-common law partner. Furthermore, the more
current objective evidence indicates the perception of police corruption is not
a serious problem. Each ministry had an internal disciplinary unit to
investigate charges of abuse and corruption against its officers. Citizens
could also file a complaint against police directly with the Judicial
Investigative Police or anonymously through its hotline.
I
have also considered affidavits written by family and friends, however give
them minimal weight as they have a vested interest in a favourable outcome to
the applicant’s request for protection. I give more weight to the objective
evidence that indicates Costa
Rica makes serious efforts
to protect its citizens. While I acknowledge protection is not always
successful the affidavits are not sufficient to establish that Costa Rica is unable to protect persons who are victims of domestic
abuse.
In
the absence of any other personal evidence, the country documentation leads me
to conclude the applicants face no more than a mere possibility of persecution
for any of the Convention grounds as per section 96 of the Immigration and
Refugee Protection Act (IRPA). The documentation also satisfies me the
applicants are not likely to face a risk of torture, a risk to life or a risk
of cruel and unusual treatment or punishment as per section 97 of IRPA.
Standard of Review
[10] On an application of
this nature, it is not the role of the Court to substitute its opinion for that
of the officer. Instead, the Court is to determine the degree to which the
officer's decision is to be scrutinized, and then to determine whether the
decision withstands that degree of scrutiny.
[11] In the present case, the
fundamental issue centers around the officer's conclusion that the
"determinative issue in this particular case is whether state protection
is forthcoming and the applicant has provided insufficient evidence to rebut
the presumption that Costa Rica is capable of protecting its citizens."
[12] Questions about the
adequacy of state protection are questions of mixed fact and law, reviewable on
the standard of reasonableness. See, for example, Rizvi v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 915 at paragraphs 16-21.
[13] Review on the standard
of reasonableness requires the Court to look to the process of articulating
reasons and to outcomes. This review is "concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law." See: Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190 at paragraph 47.
Applicable Principles of Law
[14] Before turning to the
officer's decision, there are a number of settled principles of law concerning
state protection that the officer was obliged to apply. A number of those
principles are:
1.
The
test of risk is forward looking.
2.
Refugee
protection is a form of surrogate protection. It is only to be invoked when
protection is unavailable from one’s home state, or when it would be
unreasonable to expect a claimant to seek protection. Therefore, in the
absence of a complete breakdown of the state apparatus, it is assumed that a
state is capable of protecting its nationals.
3.
To
rebut that presumption, a claimant must adduce “relevant, reliable and
convincing evidence which satisfies the trier of fact on a balance of
probabilities that the state protection is inadequate” in respect of the
applicant's own risk. See: Carillo v. Canada (Minister of
Citizenship and Immigration) (2008), 377 N.R. 393 at paragraph 30 (F.C.A.).
4.
The
more democratic a country, the heavier the burden is to rebut the presumption
of state protection. See: Hinzman v. Canada (Minister of
Citizenship and Immigration); Hughey v. Canada (Minister of
Citizenship and Immigration) (2007), 362 N.R. 1 at paragraphs 45-46
(F.C.A.).
5.
Local
failures to provide effective policing do not establish a lack of state
protection. "[W]here a state is in effective control of its territory,
has military, police and civil authority in place, and makes serious efforts to
protect its citizens from terrorist activities, the mere fact it is not always
successful at doing so will not be enough to justify a claim that the victims
of terrorism are unable to avail themselves of such protection." See: Canada (Minister of Employment
and Immigration) v. Villafranca (1992), 150 N.R. 232 at paragraph 7 (F.C.A.).
This quotation is equally applicable to victims of domestic abuse.
[15] Having set out these
principles, I turn to the errors the officer is alleged to have made.
The Alleged Errors
[16] The applicants frame the
issues in terms of subsection 18.1(4) of the Federal Courts Act, R.S.C.
1985, c. F-7. However, I understand the applicants to assert the following
errors:
1.
The
officer erred by relying upon the fact that 11 years had elapsed since the
incidents of abuse and violence occurred, in order to support her finding that
the applicants were no longer at risk. The applicants argue that by doing so,
the officer exceeded her jurisdiction because it was not the intention of
Parliament to grant the officer power to evaluate the effect of the passage of
time on the potential for future risk. Additionally, the evaluation of risk is
“in the eyes of the beholder.”
2.
The
officer erred by finding that affidavits sworn by Ms. Vargas Campos' mother and
three others were not sufficient to establish that Costa Rica is unable to protect
victims of domestic abuse on the ground that the deponents had a vested
interest in an outcome favorable to the applicants. The officer's
unwillingness to consider evidence favorable to the applicants shows the
officer's "impartiality [sic] and inability to decide the case based on
its merits".
3.
The
officer unreasonably concluded that state protection was available to the
applicants. In so concluding, the officer read the country condition
documentation in a selective fashion, and ignored evidence provided by the
applicants.
4.
The
officer erred by failing to complete Part 5 of the PRRA notes to file, and so
failed to consider the "common considerations".
5.
The
officer erred by relying upon the existence of a non-governmental organization,
specifically the National Institute for Women (INAMU).
6.
The
officer erred by stating that she was "empathetic" to the abuse
suffered by the applicants. If the officer was empathetic, the officer would
have come to a different conclusion.
7.
The
officer erred because, if she believed that Ms. Vargas Campos was not credible,
an oral hearing should have been held.
8.
The
officer erred by stating "the perception of police corruption is not a
serious problem".
Application of the Standard of Review to
the Decision
Did the officer err by finding that the
applicants provided insufficient evidence to establish that they continue to be
at risk from Ms. Vargas Campos' former common-law partner?
[17] The following analysis
subsumes errors numbered 1, 2 and 8 as set out above.
[18] The officer relied upon
the effluxion of time, the lack of objective evidence and evidence about the
treatment of corrupt police officers in order to reach her conclusion that Ms.
Vargas Campos and her family were no longer at risk from her former common-law
partner.
[19] The applicants have
failed to establish any reviewable error. Eleven years had elapsed since the
last episode of violence, and it is now over 12 years since Ms. Vargas Campos
left her abusive partner. While Ms. Vargas Campos argued in her PRRA
application that her mother had told her that Mr. B had made many death threats
and said that he had "unfinished business" with her, her mother did
not give that information in her affidavit which was provided to the officer.
That affidavit simply said that the mother was "afraid of the death threat
that her partner has made". No other details were provided in the
affidavit, and no other affidavit referred to any ongoing threats from Mr. B.
On this evidence, it was not unreasonable for the officer to find insufficient
evidence of any future risk.
[20] I know of no basis in
law for the submission that the officer exceeded her jurisdiction by evaluating
the effect of the passage of time on the reality of the current risk, nor do I
know of any basis for the submission that the reality of an objective risk
"is in the eyes of the beholder." This is the very question to be
decided by an officer on a PRRA application. This is distinguishable from
consideration of the existence of subjective fear on an application for refugee
protection.
[21] The officer was entitled
to give less weight to the affidavits of Ms. Vargas Campos' mother, former
neighbor and friends than to objective evidence from sources unrelated to Ms. Vargas
Campos. In any event, aside from the one reference in the mother’s affidavit
quoted above, the content of all of the affidavits was directed solely to past
treatment and not toward either current conditions or future risk. As such,
the affidavits were of less relevance to the issue of future risk than the
country condition documentation relied upon by the officer.
[22] The fact that the officer
gave these affidavits little weight is not evidence of any partiality,
unfairness or bias.
[23] Finally, the officer's
somewhat oblique reference to the "perception of police corruption"
was a reference to Ms. Vargas Campos' fear that Mr. B had friends or associates
in the police force. The officer then referred to the evidence before her
about the current measures in existence in Costa Rica to combat police corruption.
Was the officer's conclusion that adequate state
protection existed unreasonable?
[24] This is the third error
alleged above.
[25] The officer acknowledged
that the mechanisms in place to protect women and children in Costa Rica were "less than
perfect." However, relying upon the United States Department of State
Country Reports on Human Rights Practices in Costa Rica, issued on March 6, 2007 and RIR CRI43096.E,
the officer found that the applicants had not rebutted the presumption of state
protection. Specific information in those documents included:
● Costa Rica is a constitutional
democracy, whose most recent elections were free and fair.
● The police forces
generally were regarded as effective.
● The
government continued to identify domestic violence against women and children
as a serious and growing societal problem.
● The
law prohibits domestic violence and provides measures for the protection of
domestic violence victims including: training for new police personnel on the
handling of domestic violence cases, requiring hospitals to report cases of
domestic violence, and denying perpetrators possession of the family home. The
public prosecutor, police and ombudsman had offices dedicated to domestic
violence.
● Police can intervene
even in the absence of a restraining order.
[26] A March 2004 interview
with the Vice-Minister of the Ministry of Public Security (found in a document
submitted by the applicants) contained the following information:
● Costa Rica has a specialized
police force for domestic violence.
● Where
possible, cases of domestic violence are investigated by both a male and a female
officer.
● The
position of "promoter against domestic violence" has been created
within the police force, with one such position in each municipality. The
promoters “tend to the violence, take statistics and elaborate projects of
prevention".
● More
attention is being paid to repeat offenders. The courts have access to
"the Attorney General's criminal files of every one" so that the
Attorney General and the judge can better assess the risk posed by repeat
offenders.
[27] The officer’s reasons
for finding adequate state protection to exist are justified, transparent and
intelligible. There was evidence to support the officer’s findings so that the
conclusion falls within the range of permissible, acceptable outcomes. As
such, the decision was reasonable.
[28] As the officer noted,
there was evidence of less than perfect state protection. As well, the officer
did not refer to all of the documents submitted by the applicants. However, an
officer is not obliged to refer to every piece of evidence. Given the age and
the provenance of the documentary evidence not specifically cited by the
officer, I am not prepared to draw the inference that the officer ignored
evidence.
[29] I am satisfied that the
applicants' complaint is really a complaint in respect of the manner in which
the officer weighed the evidence.
The Other Alleged Errors
[30] The remaining errors can
be disposed of briefly.
[31] Error 4: The officer
did not check off any of the boxes in Part 5 of the PRRA notes. This is poor
practice. However, the officer went on to deal with all of the common
consideration factors in her reasons and fully assessed the risk asserted by
the applicants. There is no material error that arises from the failure of the
officer to check off the boxes.
[32] Error 5: The evidence
is not clear as to whether INAMU is a non-governmental organization. RIR CRI41541.FE
states:
According
to the law, the National Women’s Institute (Instituto Nacional de las Mujeres,
INAMU) is responsible for establishing policy on domestic violence, especially
with relation to the detection of cases of domestic violence, the procedures to
follow, and the preventive measures (Costa Rica. n.d.). Seventeen offices
divided amongst various government departments are responsible for enforcing
INAMU policy (ibid.). INAMU is also responsible for sensitizing and training
of police with regard to domestic violence (Associaciόn Alianza de Mujeres
Costarricenses 30 June 2003). Despite INAMU efforts, however, women who file
official complaints are not always treated well by police (ibid.).
[33] On that evidence, I find
no error on the part of the officer in referring to this organization as one
relevant to the existence of state protection.
[34] Error 6: In stating
that she was "empathetic" to the applicants’ situation, the officer
was doing no more, and no less, than expressing sympathy and sensitivity to the
applicants. Such expression of sentiment did not require a favorable outcome.
[35] Error 7: The officer
accepted the credibility of Ms. Vargas Campos' evidence.
Therefore, no oral hearing was required.
[36] For these reasons, the
application for judicial review will be dismissed. Counsel posed no question
for certification, and I am satisfied that no question arises on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The
application for judicial review is dismissed.
“Eleanor R. Dawson”
SCHEDULE
Subsection 25(1)
and sections 96 and 97 of the Immigration and Refugee Protection Act read
as follows:
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25. (1)
The Minister shall, upon request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative or on request of a foreign national outside
Canada, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
[…]
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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25.
(1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
de sa propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
[...]
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la nationalité
ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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