Date: 20060103
Docket: IMM-3003-05
Citation: 2006 FC 5
Ottawa, Ontario, January 3, 2006
PRESENT: THE CHIEF JUSTICE
BETWEEN:
HAYNNER ALBERTO BERMUDEZ BARRANTES,
HEINER ALBERTO BERMUDEZ MUNGUIA,
KEINER ALBERTO BERMUDEZ MUNGUIA AND
JULIA AZUCENA MUNGUIA DORAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Haynner Alberto Bermudez Barrentes, 31, and his two young children are citizens of Costa Rica. His common-law spouse, Julia Azucena Munguia Doran, is a citizen of Nicaragua. She also refers to herself as Roxana Vargas Cruz. She is the mother of the two minor applicants. This proceeding is an application for judicial review of the negative decision of the Refugee Protection Division which determined that these four applicants were neither Convention refugees nor persons in need of protection. The applicants were unrepresented at the refugee hearing.
[2] After a seven-month training period, Mr. Bermudez worked as a police officer in San José from September 2000 until June 2002. In March 2001, he was involved in the arrest of drug dealers. His photograph, with his name visible on his police badge, was published in a newspaper the day following this arrest.
[3] Mr. Bermudez alleges a well-founded fear of persecution as a result of two threatening anonymous telephone calls he received on December 7, 2003 which, in his view, were linked to his role as a police officer in the arrest of the drug dealers.
[4] At the time he received the threatening phone calls, Mr. Bermudez was self-employed as the owner of a fish store. He had ceased working as a police officer some seventeen months earlier. His personal information form contains no reference to the exchange with the chief of police.
[5] According to his personal information form, on the "next day" following the threatening phone calls, Mr. Bermudez obtained airline tickets for travel to Canada departing on December 19, 2003. At the refugee hearing, he testified that it was on December 9 that he met the chief of police to discuss the incident. The police chief advised Mr. Bermudez that it would be better if he could "disappear", reminding the applicant of the kidnapping and apparent murder in June 2002 of Osvaldo Madrigal Obando, the three-year old son of his former police partner.
[6] According to transcripts of Costa Rican television reports in June 2002, the director of the Judicial Investigation Organization stated that investigations were ongoing concerning the kidnapping of two other young children in March 2001 and February 2002, neither of whom was apparently related to police officers. He did not interpret the kidnapping of Osvaldo as a threat to a police agent but did not discard the possibility.
[7] In brief reasons, the member noted that the personal information form made no mention of any attempt to seek state protection in Costa Rica. The conversation with the chief of police was not disclosed until the refugee hearing. The evidence of Mr. Bermudez on this issue was not found to be credible. On my review of the record, I am satisfied that it was open to the panel member not to believe the applicant concerning the conversation with the chief of police.
[8] Once the panel member had discounted the applicant's allegations concerning his conversation with the chief of police, there was very little, if any, evidence of an attempt to seek state protection. It was not sufficient for Mr. Bermudez to rely on his own experience, expressed in very general terms, that police investigations were not effective. This testimony, absent any other credible evidence of seeking state protection after the threats and prior to leaving for Canada, does not meet the standard of "clear and convincing" evidence to rebut the presumption of the availability of state protection.
[9] In these circumstances, it was also appropriate for the panel member to rely on the Refugee Protection Division decision in C.Q.N.(Re), [2003] R.P.D.D. No. 6 (TA2-14980), as a jurisprudential guide concerning the availability of state protection for Costa Rican claimants seeking protection due to their fear of criminality. I am satisfied that the facts in this case and in the jurisprudential guide decision are sufficiently close for the panel member to rely on the latter. The country condition evidence in both cases was the same. Also, the absence of credible evidence that Mr. Bermudez sought state protection renders academic any attempt to distinguish the two cases on the basis of the state being "unwilling" as opposed to being "unable" to provide protection.
[10] Further, I am satisfied that the case law relied upon by the applicants (in particular, Bobrik v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1364 (QL) (T.D.); Badilla v. Canada (Minister of Citizenship and Immigration), 2005 FC 535; Torres v. Canada (Minister of Citizenship and Immigration), 2005 FC 660; and Shahzada v. Canada (Minister of Citizenship and Immigration), 2005 FC 1176) can readily be distinguished from the facts in this proceeding. In each of these cases, there were facts accepted as credible by the tribunal which were either the basis of a finding of an error in the analysis of state protection or an inappropriate application of the jurisprudential guide decision.
[11] In the end, the application for judicial review of Mr. Bermudez must fail because of the negative credibility finding concerning the subject matter of his alleged meeting with the chief of police leaving little, if any, credible evidence upon which the applicants could challenge the state protection analysis or the reliance on the jurisprudential guide decision.
[12] Similarly, the applicant Julia Azucena Munguia Doran has established no reviewable error in the member's determination that she had no objective basis to fear her return to Nicaragua as the result of serious incidents which occurred almost twenty years ago.
[13] For these reasons, this application for judicial review will be dismissed. I agree with counsel for the parties that this proceeding raises no serious question to be certified.
ORDER
THIS COURT ORDERS that:
This application for judicial review is dismissed.
"Allan Lutfy"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3003-05
STYLE OF CAUSE: HAYNNER ALBERTO BERMUDEZ BERRANTES ET AL v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 17, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Chief Justice Allan Lutfy
DATED: January 3, 2006
APPEARANCES:
Mr. Waikwa Wanyoike FOR THE APPLICANTS
Mr. Robert Bafaro FOR THE RESPONDENT
SOLICITORS OF RECORD:
WAIKWA WANYOIKE
Toronto, Ontario FOR THE APPLICANTS
JOHN S. SIMS, Q.C.
Deputy Attorney General of Canada FOR THE RESPOPNDENT
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