Alfaro v. Canada (Minister of Citizenship and Immigration), 2005 FC 92

Date: 20050120

Docket: IMM-6905-03

Citation: 2005 FC 92

Ottawa, Ontario, this 20th day of January, 2005

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                 OSCAR LUIS ALFARO ALFARO

                                                                                                                                            Applicant

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated August 18, 2003, wherein it was determined that the applicant is not a Convention refugee nor a person in need of protection.

[2]                The applicant requests an order quashing the Board's decision and referring his claim back for re-determination.

Background

[3]                The applicant, Oscar Luis Alfaro Alfaro, is a citizen of Costa Rica who claims a well-founded fear of persecution by reason of his political opinion and membership in a particular social group, namely, a law-abiding citizen being persecuted by drug smugglers. In addition, he claims to be a person in need of protection within the meaning of IRPA.

[4]                In the narrative portion of his Personal Information Form ("PIF"), the applicant stated that in San Jose, Costa Rica, he worked as a manager of a car rental agency. On December 1, 2001, he received a cell phone call asking if his company accepted cash deposits for car rentals. A two-week rental was arranged, to start the next day. On December 2, 2001, the applicant completed the paperwork and delivered the rental car to Mr. Adrian Font Calderon, an associate of the man who had called the applicant the previous day.

[5]                On December 10, 2001, Mr. Font reported to the applicant that the rental car had been stolen. The applicant made a police report and informed the rental company's owner. Two days later the car was found but the inside was dismantled.

[6]                The applicant alleged that as he was leaving work, around 7:00 p.m. on December 15, 2001, he was attacked by three strangers. His attackers questioned him about the whereabouts of the "merchandise", accused him of planning to steal their "merchandise", and of knowing too much about Mr. Font. The applicant alleged that his attackers beat him up and one of them said "kill him". When the applicant screamed and asked people nearby to call the police, the attackers ran off.

[7]                After being released from the hospital, the applicant reported the December 15, 2001 attack to the police, who patrolled his house and told him to call them if he felt that he was being followed.

[8]                On February 1, 2002, the police arrested Mr. Font and asked the applicant to identify him from a line-up, which he did on February 4, 2002. Mr. Font was charged with drug trafficking. The applicant was unable to identify the other individuals in the same line-up, or his attackers.

[9]                After Mr. Font's arrest, the applicant testified that he received threatening phone calls.

[10]            On March 12, 2002, the applicant requested to be put into a witness protection program. The police stated that no such protection was available.

[11]            After the December 2001 attack, the applicant quit his job, went into hiding, bought a gun to protect himself and began to make arrangements to leave the country.

[12]            The applicant left Costa Rica on March 14, 2002. He arrived in Canada the next day and claimed refugee protection upon arrival.

[13]            On August 11, 2003, the Board held a hearing into the applicant's claim.

Reasons of the Immigration and Refugee Board (Refugee Protection Division)

[14]            In a decision dated August 18, 2003, the Board determined that the applicant was neither a Convention refugee nor a person in need of protection within the meaning of IRPA.

[15]            The Board did not disbelieve the applicant's evidence, rather, it concluded that he had not provided clear and convincing evidence of Costa Rica's inability to protect him.

[16]            The Board noted documentary evidence which indicated that Costa Rican law enforcement officials were making increasing efforts to investigate and prosecute violent crimes as well as drug smuggling.

[17]            It was the Board's view that Costa Rica is a long-standing democracy that does provide protection to its citizens, and by the applicant's own admission had taken action and arrested Mr. Font. The Board went on to quote case law that established that even democracies cannot guarantee perfect state protection of its citizens at all times.

[18]            Furthermore, the Board held that the grounds for seeking protection that were relied on by the applicant, namely, being a law-abiding citizen caught unwillingly in a drug trafficking scheme, does not link him to real or imputed political opinion, or meet any of the criteria to qualify as a particular social group.

[19]            Finally, the Board concluded that the applicant was not a person in need of protection within the meaning of IRPA because Costa Rica provided him with adequate state protection.

[20]            This is the judicial review of the Board's decision

Applicant's Submissions

[21]            The applicant submitted that the Board ignored documentary evidence regarding the lack of state protection available in Costa Rica, and misconstrued the basis of his claim.

[22]            The applicant did not challenge the following findings of the Board:

1.          That the applicant's claim is not properly based on political opinion or membership in a particular social group.

2.          That when the applicant requested state protection after the December 2001 attack, the police provided adequate and effective protection.

[23]            The applicant did dispute, however, the Board finding that he is not a person in need of protection because Costa Rica provided him adequate state protection.

[24]            The applicant submitted that the Board erred in failing to mention in its reasons that his March 2002 request for state protection, which was made based on being a key state witness against Mr. Font and the threatening phone calls he received, was refused. The applicant pointed out that the Board, in fact, stated that when the applicant requested protection it was provided, when that was not the case.

[25]            By failing to consider that the applicant's second request for protection was denied, the applicant submitted that the Board failed to consider whether the applicant was deserving of international protection pursuant to paragraph 97(1)(b) of IRPA.

[26]            The applicant further submitted that the Board failed to assess relevant evidence regarding the lack of a witness protection program in Costa Rica, as well as admissions by the state that it is unable to adequately protect state witnesses, and that a protection program is needed.

[27]            In the applicant's view, the Board's failure to refer to the documentary evidence regarding Costa Rica's failure to protect state witnesses rebuts the presumption that it considered all of the evidence before it in reaching its decision.

[28]            The documentary evidence relied on by the applicant directly contradicts the finding of fact made by the Board, meaning that to discount it the Board was obliged to address it in its reasons. Failure to do so, in the applicant's view, gives rise to the inference that the Board made findings of fact without regard to the evidence.

[29]            The applicant submitted that the Board erred in concluding that he was not a person in need of protection because Costa Rica did not provide him with adequate state protection and asks for this Court's intervention.

Respondent's Submissions

[30]            The respondent submitted that the burden of showing that one is not able to avail oneself of state protection is not easily satisfied. The test is an objective one, and the burden to provide clear and convincing proof of the state's inability or unwillingness to protect lies with the refugee claimant.

[31]            The respondent further submitted that it is not enough that a democratic state, such as Costa Rica, is not always successful at its efforts to protect its citizens for international protection to be warranted.

[32]            The respondent submitted that the Board's conclusion that state protection was adequate was not inconsistent with the evidence before it. The applicant conceded that following the December 2001 attack, state protection was adequate, and only claimed that at a certain point in time the protection was no longer sufficient. No evidence was tendered that any attempts were made to carry out the threats communicated to the applicant after Mr. Font's arrest, or that state protection was insufficient at that point in time.

[33]            The respondent disputed the applicant's claim that the telephone threats received in February and March of 2002 constituted a "new, heightened risk" from drug smugglers.

[34]            The respondent submitted that the absence of a witness protection program does not, in and of itself, constitute inadequate state protection. Other measures are in place to protect Costa Rican citizens. Considered objectively and based on the evidence before the Board, the respondent submitted that it was not patently unreasonable for the Board to conclude that adequate state protection existed for the applicant in Costa Rica.

[35]            The respondent denied that the Board ignored documentary evidence before it. The Board is presumed to have considered all the evidence before it, unless the contrary is shown. In the respondent's view, the applicant's reliance on Exhibit P-9 as a critical document that should have been referred to by the Board, is misplaced. The respondent argued that the document states that witness protection is not urgently needed, that Costa Rica has already begun to institute such a program, that little information is available that protection of witnesses is not forthcoming, and that the document is general in nature and not case specific. The respondent argued that the document in question is not determinative or even central to the applicant's case and therefore, the Board's failure to specifically refer to it does not constitute an error.

[36]            Finally, the respondent submitted that this Court should not interfere with the Board's weighing of the evidence. In the respondent's view, the Board was entitled to prefer other documentary evidence regarding law enforcement against drug smuggling and violent crime over Exhibit P-9, and that no basis has been established for this Court's intervention.

[37]            In sum, the respondent submitted that the applicant did not provide clear and convincing proof that state protection in Costa Rica was ineffective. Rather, the evidence showed that the state is making serious efforts to protect its citizens, even though that protection is not perfect.

[38]            The respondent requested that this application for judicial review be dismissed.

Issue

[39]            Did the Board err in its conclusion that adequate state protection was available to the applicant in Costa Rica?

Relevant Statutory Provisions

[40]            Subsection 97(1) of IRPA defines a "person in need of protection" as follows:

Analysis and Decision

[41]            The sole issue in this case is the availability of state protection for the applicant in Costa Rica. The Board stated at page 2 of its decision:

The tribunal is of the opinion that Costa Rica is a long standing democracy that does provide effective protection to its citizens. Furthermore, the claimant has testified that the state had provided him with protection and arrested Mr. Font Calderon.

[42]            The applicant's trouble began when a Mr. Font rented a car from the rental agency where the applicant worked. Mr. Font reported the car stolen and it was found two days later, but the inside of it was dismantled. A few days later, as the applicant was leaving work , he was attacked by three strangers who accused him of planning to steal their "merchandise" and of knowing too much about Mr. Font. The applicant reported the attack to police who offered him assistance and patrolled his house. The police, after the applicant identified him, arrested Mr. Font and charged him with drug trafficking. The applicant received new death threats after Mr. Font was arrested, and went back to ask the police to put him in a witness protection program. The police told him that a witness protection program did not exist, but the police were still offering to patrol by his home.

[43]            The issue of the adequacy of state protection was addressed by the Federal Court of Appeal in Villafranca v. Canada (Minister of Employment and Immigration) (1992), 99 D.L.R. (4th) 334, leave to appeal to the Supreme Court of Canada dismissed, [1993] S.C.C. No. 76 (QL). The Federal Court of Appeal stated at page 337:

The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid (clearly not the case here) or that the government itself is in some way prevented from giving it.

No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. Terrorism in the name of one warped ideology or another is a scourge afflicting many societies today; its victims, however much they may merit our sympathy, do not become Convention refugees simply because their governments have been unable to suppress the evil. Where, however, the state is so weak, and its control over all or part of its territory so tenuous as to make it a government in name only, as this court found in the case of Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605, 14 Imm. L.R. (2d) 81, 126 N.R. 126, a refugee may justly claim to be unable to avail himself of its protection. Situations of civil war, invasion or the total collapse of internal order will normally be required to support a claim of inability. On the other hand, where 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 that 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.

It is obvious from this quote that state protection need not be perfect to be adequate under the Convention.

[44]            The applicant submitted that the Board ignored or misconstrued the applicant's evidence by stating that police protection was available when it in fact was denied. At page 2 of its decision, the Board stated:

The claimant agreed that state provided protection but felt that additional protection was needed. On March 12, 2002, three months following his initial complaint (Exhibit P-2), the claimant asked for witness protection since he had identified Mr. Front [sic] as the person who had rented the car. Furthermore, he described himself as a witness and that, as such, he is at risk because no such protection plan exists.

[45]            The Board, in this part of its decision, acknowledged that no state witness protection plan is available, and that the applicant felt that the protection offered by the state after he received the death threats was inadequate. These allegations were clearly considered before the Board decided that while the protection offered to the applicant was perhaps not perfect, it was adequate within the meaning of Villafranca, supra.

[46]            The applicant argued that the Board failed to mention in its decision and discount evidence that ran contrary to the facts it relied upon. The applicant stated that the Board failed to consider Exhibit P-9 which the applicant submitted showed that there is no state protection available for witnesses to a crime who report the crime to police or assist the police. Firstly, it must be noted that the Board has stated that there is no witness protection plan in Costa Rica. I have reviewed Exhibit P-9 and I note that it says there is no witness protection program. This does not conflict with the Board's finding. Secondly, the exhibit speaks of the availability of protection to a witness or assists the police in their investigation.

[47]            The report stated that information on this point was scarce in the sources consulted. It goes on to cite a case where police protection was supplied after an international outcry. The police in that case, appointed a 24 hour guard for the witness. The report does not say that state protection is not available for witnesses, but it does state that a witness protection plan is not available for witnesses.

[48]            I am of the view that the Board's decision on the availability of state protection is a decision that was reasonably open to it.

[49]            The application for judicial review is therefore dismissed.

[50]            Neither party wished to submit a serious question of general importance for my consideration for certification.

                                               ORDER

[51]            The application for judicial review is dismissed.

                                                                               "John A. O'Keefe"                

J.F.C.                     

Ottawa, Ontario

January 20, 2005

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-6905-03

STYLE OF CAUSE: OSCAR LUIS ALFARO ALFARO

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                     

PLACE OF HEARING:                                 Ottawa, Ontario

DATE OF HEARING:                                   August 10, 2004

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                     January 20, 2005

APPEARANCES:

Warren L. Creates

FOR APPLICANT

Susanne Pereira

FOR RESPONDENT

SOLICITORS OF RECORD:

Perley-Robertson, Hill & McDougall LLP

Ottawa, Ontario

FOR APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT