Date: 20070402
Docket: IMM-2445-06
Citation: 2007 FC 351
Ottawa, Ontario, April 2,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
LOAIZA BRENES, HEYLEEN
VILLEGAS LOAIZA, VALERIA ABIGAHI
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review concerns a Pre-Removal Risk Assessment (PRRA)
completed on March 2, 2006. The PRRA report concluded that the principal
Applicant, Heyleen Loaiza Brenes and her daughter, Valeria Abigahi Villegas
Loaiza, would not face more than a mere possibility of persecution or harm if
they were to return to Costa Rica. That finding was based on the availability
of state protection for victims of family violence in that country.
Background
[2]
Ms.
Brenes claimed to be at risk at the hands of her former common-law spouse,
Gilbert Villegas. Mr. Villegas is also the father of the minor Applicant, Valeria
Abigahi Villegas Loaiza. Ms. Brenes and Mr. Villegas lived together for a time
in the United
States.
Although Ms. Brenes had no status in the United States, her
daughter was born there and is an American citizen.
[3]
Ms.
Brenes alleged that she was physically and emotionally abused by Mr. Villegas
in the late 1990’s while they were living in the United States. This
culminated in a separation. By 2000 all of the parties had returned to Costa Rica and Mr.
Villegas had married someone else. Notwithstanding Mr. Villegas’ new
relationship, Ms. Brenes claimed that he continued to harass her. Much of that
strife seems to have been related to issues of access and child support. Ms.
Brenes came to Canada with her daughter on July 8, 2003 to stay with
her sister. She said that Mr. Villegas continued to harass her by telephone
from Costa
Rica
and, in the result, she applied for refugee protection.
[4]
Ms.
Brenes’ refugee claim was dismissed by the Immigration and Refugee Board
(Board) in a decision rendered on October 25, 2004. That claim for refugee
protection was based on the same history of family abuse that later formed the
basis of her application for a risk assessment. The Board rejected that claim
based on a finding of adequate state protection in Costa Rica. The Board’s
decision recited the availability of protective services for the victims of
domestic violence including an Office of the Special Prosecutor, the Ombudsman,
special domestic abuse courts, women’s shelters and legal assistance for abuse
victims.
[5]
The
PRRA decision, which is the subject of this application, took account of
country condition evidence which post-dated the refugee determination, and in
particular, a 2004 United States Department of State (DOS) report. That report
cited domestic violence as a particular problem in Costa Rica and the PRRA
officer acknowledged that evidence. Nevertheless, he came to the following
conclusion as to the overall significance of that evidence:
Nevertheless, the recent objective
evidence shows that there is adequate state protection available to those who
face a risk of domestic violence. As stated in DOS, the law prohibits domestic
violence and provides measures for the protection of domestic violence
victims. Criminal penalties range from 10 to 100 days in prison for aggravated
threats and up to 35 years in prison for aggravated homicide. During the year,
the autonomous National Institute for Women (INAMU) provided assistance to
5,866 women, including counselling and lodging for battered women in INAMU
shelters. INAMU also maintained a domestic abuse hotline, receiving 6,021
calls in 2003.
Furthermore, the DOS states that the Law
Against Domestic Violence establishes mechanisms to help victims. The
authorities incorporated training on handling domestic violence cases into the
basic training course for new police personnel. The law requires public
hospitals to report cases of domestic violence against women. It also denies
the perpetrator possession of the family home in favor of the victim. The
public prosecutor, police, and Ombudsman had offices dedicated to this
problem.
Indeed I acknowledge that state
protection is not perfect as illustrated by the news articles submitted in
counsel’s submissions that refer to specific incidents of domestic violence resulting
in grave circumstances. Nevertheless, based on the totality of the evidence
before me, I am persuaded that adequate state protection exists. In
acknowledge that state protection may not be perfect, I note that the Federal
Court of Appeal wrote in Villafranca concerning state protection,
No government that makes any claim to
democratic values or protection of human rights can guarantee the protection of
all its citizens at all times… where a state is in effective control of its
territory, has military, police and civil territory 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 satisfy a claim
that the victims of terrorism are unable to avail themselves of such
protection.
[6]
Ms.
Brenes’ concerns about the adequacy of the PRRA decision are all
evidence-based. She contends that the PRRA analysis of the evidence was
inadequate for failing to recognize that state protection for victims of
domestic violence in Costa Rica was not effective. She
also argues that the PRRA officer failed to state why certain evidence was
favoured over other contradictory evidence. She says, further, that the PRRA
officer took irrelevant matters into consideration such as the existence of
special police units dealing with the narcotics trade. Finally, she says that
the PRRA officer had a duty to carefully examine evidence that the legislative
framework in Costa Rica was considered by reliable sources to be inadequate to address
the well-identified problems of domestic abuse.
Issues
[7]
(a) What
is the appropriate standard of review for the issues raised in this proceeding?
(b) Did
the Board commit any reviewable errors in its decision?
Analysis
[8]
With
respect to the standard of review, I would adopt the pragmatic and functional
analysis carried out by Justice Richard Mosley in Kim v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No. 540, 2005 FC 437. In
that decision at para. 17, he held that, with respect to a PRRA decision, the
appropriate standard of review for questions of fact should generally be patent
unreasonableness, for questions of mixed law and fact, reasonableness
simpliciter, and for questions of law, correctness.
[9]
This
application fails to disclose any reviewable error by the PRRA officer. Ms.
Brenes’ concerns were thoroughly addressed during her refugee hearing. The
evidence she relied upon subsequently in the PRRA process did not add much to
bolster her assertion of personal risk in Costa Rica.
[10]
It
is clear from the PRRA decision that the officer did consider the evidence
submitted on behalf of Ms. Brenes which post-dated her unsuccessful refugee
claim. However, it found that that evidence failed to establish the level of
risk necessary to justify relief.
[11]
I
agree with the Respondent that the fact that spousal abuse is a serious problem
in Costa
Rica
is not sufficient to rebut the presumption of state protection. No country,
including this one, will ever have a perfectly effective system. Each case
must be examined within its own factual context beginning with the personal
circumstances of the claimant and the degree of the individual risk she faces.
This process requires that the PRRA officer sort through and weigh the
evidence. Some of that evidence will inevitably be contradictory. That was
the exercise conducted here and it is not for the Court to re-weigh or to
re-interpret the evidence where it reasonably supports the conclusion reached.
[12]
I
do not accept that the documented concerns about the adequacy of the
legislative framework for dealing with spousal abuse in Costa Rica necessarily
show that protection for victims is unavailable. The evidence indicated that
spousal assaults were treated as criminal acts. The fact that legislative
improvements had been identified does not render unreasonable the PRRA
officer’s conclusion that, notwithstanding the deficiencies, state protection
was still available and that serious efforts were being taken to address the problem.
[13]
The
arguments advanced on behalf of Ms. Brenes are almost identical to those raised
unsuccessfully in Fernandez v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1389, 2005 FC 1132 where
Justice Eleanor Dawson held at paras. 17 and 18:
17 Ms. Fernandez largely relies upon
one document to support this argument: Response to Information Request
CR132983.E ("RIR") dated November 19, 1999. This document was not
referred to by the RPD in its reasons. In the RIR, certain government officials
are cited as expressing concern with respect to the current state of domestic
violence in Costa
Rica.
Specifically, a defender of women's rights at the Ombudsman's Office is
reported to say that the Law Against Domestic Violence was insufficient to stop
the increase in domestic violence, as evidenced by the increased number of
complaints made by abused women. Also reported are remarks of Gloria Valerín,
then the Minister of Women's Affairs, who cited problems such as the prejudiced
and sexist attitudes of judicial officials, reluctance by authorities to apply
some provisions of the law, and the "limited" or "useless"
police response to incidents of domestic violence. Ms. Valerín characterized
domestic violence in Costa
Rica as a
"national epidemic".
18 Having reviewed the record before
the RPD, I do not conclude that it failed to consider the totality of the
evidence or that it ignored evidence corroborative of Ms. Fernandez' claim.
While the RIR contains passages that support the applicants' claim, it also
notes the ongoing effort of authorities in Costa Rica to address the problem of domestic
violence, including the revision and enactment of relevant legislation. Ms.
Valerín is also cited as saying that "women are becoming more aware that situations
of domestic violence occur daily and have found [a]venues through which they
raise their concerns". In addition, the RPD referred to more recent
documentary evidence from which it could reasonably conclude that adequate
state protection is available to Ms. Fernandez and her sons in Costa Rica. Specifically, the RPD's
conclusions were supported by the 2002 U.S. Department of State report on Costa Rica, cited by the RPD, that
reported:
The Government identified
domestic violence against women and children as a serious societal problem. The
National Institute for Women (INAMU), an autonomous institution created in 1998
that is dedicated to gender equality, received 63,990 calls on its domestic
abuse hot line from January through October. During this same period, INAMU
counseled [sic] 4,097 female victims of abuse in its San Jose office and accepted 194 women in
INAMU-run shelters. INAMU maintained 41 offices in municipalities around the
country and had trained personnel working in 32 of the country's 81 cantons.
The Office of the Special
Prosecutor for Domestic Violence and Sexual Crimes prosecuted 448 cases related
to domestic violence during the year, compared with 456 cases in 2001. INAMU
reported that 24 women were killed in incidents of domestic violence during the
year, compared with 11 in 2001.
The 1996 Law Against Domestic
Violence establishes precautionary measures to help victims. At year's end, the
Legislative Assembly was still debating a Bill to Qualify Violence Against
Women as a Crime, which would classify certain acts of domestic violence as
crimes and mandate their prosecution whether or not the victim pursued charges
against the perpetrator. The authorities incorporated training on handling
domestic violence cases into the basic training course for new police
personnel. The domestic violence law requires public hospitals to report cases
of domestic violence against women. It also denies the perpetrator possession
of the family home in favor of the victim. Television coverage of this issue
increased in news reporting, public service announcements, and feature
programs. Reports of violence against women increased, possibly reflecting a
greater willingness of victims to report abuses rather than an actual increase
in instances of violence against women. The public prosecutor, police, and the
Ombudsman all had offices dedicated to this problem. The law against sexual
harassment in the workplace and educational institutions sought to prevent and
punish sexual harassment in those environments.
[14]
As
in the Fernandez case, above, the evidence here also indicated that Ms.
Brenes had been successful in obtaining a Court Order to protect her from Mr.
Villegas shortly before she left Costa Rica to come to Canada.
[15]
I
also do not accept that the PRRA officer took irrelevant evidence into
account. The decision does refer to a police training and professionalism and
to the strength of democratic principles in Costa Rica. Those
references were taken from the DOS report submitted in evidence on behalf of Ms.
Brenes and the impugned passages were arguably relevant to the anticipated
willingness of the authorities to treat spousal abuse as a serious problem. I
agree that, in some countries, there may only be a weak correlation between the
existence of a constitutional democracy and a willingness by the state to take
effective measures against spousal abuse. However, the evidence indicated that
Costa
Rica
was taking measures to combat the problem and the PRRA officer was entitled to adopt
that evidence. Certainly his acceptance of it cannot be said to be
unreasonable.
[16]
This
application is, accordingly, dismissed.
[17]
Neither
party proposed a certified question and no issue of general importance arises
from this decision.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
"R. L. Barnes"
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