Date: 20040820
Docket: IMM-3993-03
Citation: 2004 FC 1158
BETWEEN:
EVER VARGAS MORA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
Simpson J.
[1] This is an application for judicial review of a decision of E.S. Schlanger, Member of the Immigration and Refugee Board (the "IRB"), dated May 12, 2003 (the "Decision") wherein it was determined that the applicant is not a Convention Refugee and is not a person in need of protection.
[2] The applicant is a 28-year old citizen of Costa Rica. His claim is based on a well-founded fear of persecution by the police because he is homosexual.
[3] At the end of July 2000, the applicant and a friend left a bar called "Azteca" in a small town in southern Costa Rica called Buenos Aires. They were intercepted by two police officers, who insulted them and started beating the friend. When the applicant intervened, they were both beaten and taken to a police station. At the station, two officers continued to beat and insult them. Both were raped. They were released in the morning, after the police threatened them, saying that, if they said anything, the police would kill them. They went to the hospital and told a doctor what had happened. A police officer came and took a report from a nurse. The applicant did not speak to the officer and did not follow up the report.
[4] On August 18, 2000, two police officers took the applicant out of a bar called "Cherries" and beat him badly on the street in front of the bar. Then, he was taken to the police station. There, four officers continued beating him and told him he had two weeks to take back the charges he had laid against the police.
[5] On September 16, 2000, at the bar "El Trebol", the applicant was again detained, beaten, and taken to Poli Deportivo park. There he was raped by two officers while two others held him. They threatened him, saying if he did not withdraw the charges, they would do something he would not forget. On September 17, 2000, he went to the hospital and told a doctor what had happened.
[6] On September 22, 2000, he was again taken by the police from a bar. This time, he managed to escape by pushing one of the officers and fleeing to a friend's house.
[7] After such significant abuse over such a short period, he decided to leave Costa Rica. He travelled to San José, stayed with relatives and then came to Canada on October 15, 2000. Eleven days later, he claimed refugee protection and alleged that, because the police threatened to hurt his family (he is separated from his wife and child) and find him wherever he went in Costa Rica, he fears persecution by the police throughout the country.
[8] Against this background, the issue is whether the applicant has discharged the burden of rebutting the presumption that state protection is available in Costa Rica.
[9] On the facts of this case, the applicant must fail. After the first assault in July of 2000, he did not speak directly to the police. A nurse gave the police his account of events. Although, it does appear that he asked that charges be laid because the charges became the subject of subsequent police threats, he did not follow up with the police about the charges in the two-week period before the second assault. It was reasonable to expect him to follow up because the documents show that complaints against the police have reduced in number since the implementation of the 1994 Police Code.
[10] After the vicious assaults on August 18 and September 16, 2000, he did not approach the police in another town to complain about the abuse.
[11] The IRB concluded as follows:
He claimed that he was afraid to follow up with the police or report to the Ministry of Security, the Ombudsman or the Constitutional Court because their processes take a long time. He fears that even if his abusers were to be incarcerated, they would come after him after their release. Considering the available recourses of protection, the panel finds that the claimant has not made reasonable efforts to avail himself of state protection. The claimant would be expected to do more than simply let a nurse provide information to the police on his behalf. Further, he ought to have reported the police misconduct to the Ombudsman, the Ministry of Security or the Constitutional Court.
[12] Based on the evidence, it was, in my view, open to the IRB to conclude that, because he had not approached the police, either in his town initially or elsewhere after the second assault, the applicant had not made sufficient efforts to seek state protection. For this reason, the application will be dismissed.
[13] However, I feel compelled to observe that I was not persuaded that the IRB had sufficient information before it to conclude that institutions other than the police offered meaningful state protection in the circumstances faced by the applicant. For his situation, state protection had to be accessible, affordable and capable of having an immediate remedial impact on the behaviour of the police in Buenos Aires.
[14] In looking at this issue, the IRB relied on the following information about the Ombudsman's office (the "Office"):
- the mandate of the Office includes persons with "a distinct sexual preference" as a vulnerable group
- the Office has a special protection directorate with a team of eight lawyers who assist vulnerable groups
- the Office received a complaint about police abuse and issued a recommendation to the Public Ministry asking that disciplinary action be taken against the police
- the Office has the power to make non-binding recommendations to the government
- the Office has a high degree of credibility with Costa Ricans and is not adverse to taking on tough issues. It recommended that the country's President stop making anti-gay remarks
- the Ombudsman is elected by the Legislative Assembly for a four-year renewable term
- the Office is independent
[15] However, the following questions were not answered:
- Does the Office have the power to prosecute or sue policemen on behalf of an individual who complains of abuse?
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