Date: 20070703
Docket: IMM-4648-06
Citation: 2007 FC 681
Ottawa, Ontario, July 3, 2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
GERARDA
CARRANZA BERMUDEZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
In its decision, the Immigration
and Refugee Board concluded that Ms. Gerarda Carranza Bermudez failed to rebut
the presumption of state protection. Costa
Rica is not in a state of civil war,
invasion, or internal collapse. The government is in effective control of its
territory, and has military, police and civil authority in place. The evidence demonstrates
that the Costa Rican government takes the problem of domestic violence very
seriously and is making serious efforts to protect victims of domestic
violence.
In respect to state protection in Costa Rica, the Immigration and Refugee Board
found:
Neither the
documentary evidence, nor the experience of her family with the authorities,
supports the claimant’s allegations of a lack of state protection. According to
documentary evidence, Costa Rica is a constitutional democracy governed by a
president and unicameral Legislative Assembly directly elected in free
multiparty elections every four years. Documents indicate there are a number of
recourses available in Costa Rica for the assessment, prosecution and granting
of remedies resulting from failure of law enforcement agencies to conduct their
work.
The same
document also reveals:
As of August,
the Ombudsman’s office had received 47 reports of police abuse of authority or
misconduct. Of these, 34 reports under investigation, 1 was determined to be
legitimate, and 12 were found to be without merit.
The document
goes on to state that each ministry had an internal disciplinary unit to
investigate charges of abuse and corruption against its officers. All new
police recruits received human rights awareness as part of their basic training
course. This illustrates that if there is a police misconduct or abuse, an
effective mechanism for lodging complaints exists through various channels
regarding violations of their civil and human rights.
[2]
In Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689, at paragraphs 49, 50 and 52, the Supreme Court
of Canada determined that the State is presumed to be capable of protecting its
citizens in the absence of a complete breakdown of the state. The danger that
this presumption will operate too broadly is tempered by a requirement that
clear and convincing proof of a state's inability to protect must be advanced.
An Applicant might advance testimony of similarly situated individuals
unassisted by state protection or the Applicant's testimony of past personal
incidents in which state protection did not materialize or the Applicant’s
personal experience as proof of a state’s inability to protect its citizens. An
Applicant can also provide country condition documentation to rebut the
presumption that a state is capable of protecting its citizens. (Reference is
also made to Avila v. Canada (Minister of Citizenship and Immigration), 2006 FC 359, [2006] F.C.J. No. 439 (QL), at
paragraphs 27 to 32.)
[3]
In Xue v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1728 (QL), Justice Marshall E. Rothstein
held that it was not erroneous to conclude that “clear and convincing”
confirmation required a higher standard of proof than the bottom end of the
broad category of a “balance of probabilities.” Specifically, he stated the
following:
[12] Having regard to the
approach expressed by Dickson C.J.C. in Oakes, i.e. that in some
circumstances a higher degree of probability is required, and the requirement
in Ward that evidence of a state's inability to protect must be clear
and convincing, I do not think that it can be said that the Board erred in its
appreciation of the standard of proof in this case. If the Board approached the
matter by requiring that it be convinced beyond any doubt (absolutely), or even
beyond any reasonable doubt (the criminal standard), it would have erred. However,
the Board's words must be read in the context of the passage in Ward to
which it was referring. Although, of course, the Board does not make reference
to Oakes or Bater, and while it would have been more precise for
the Board to say that it must be convinced within the preponderance of
probability category, it seems clear that what the Board was doing was imposing
on the applicant, for purposes of rebutting the presumption of state
protection, the burden of a higher degree of probability commensurate with the
clear and convincing requirement of Ward. In doing so, I cannot say that
the Board erred.
JUDICIAL PROCEDURE
[4]
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 (Board)
rendered on June 28, 2006, wherein it found the Applicant neither a Convention
refugee nor a person in need of protection pursuant to section 96 and
subsection 97(1) of the IRPA.
BACKGROUND
[5]
The Applicant, Ms. Bermudez is a 40
year old citizen of Costa Rica, who claims to be a Convention refugee because of her
membership in a particular social group, namely, women abused by their spouse,
under section 96 of the IRPA. In her refugee application, she also claimed to
be a person in need of protection, on the basis that she would face a risk to
her life, risk of torture or cruel and unusual treatment or punishment in
accordance with subsection 97(1) of the IRPA, should she be returned to Costa Rica.
[6]
Ms. Bermudez alleges that her
common-law spouse became abusive during her pregnancy in 1986. She also claims
that his behaviour changed for the better in 1989, but deteriorated again in
May 2003, when she confronted him about his alleged abuse of her 19 year-old
daughter from a previous relationship.
[7]
Thereafter, the Applicant claims
that her spouse “tricked her” to ride with him on his motorcycle, and caused an
accident, whereby she fell and lost consciousness. In her oral testimony, Ms.
Bermudez stated that her spouse threatened to kill her prior to the alleged
accident. Following this incident, the Applicant’s daughter moved to her
sister’s house.
[8]
Ms. Bermudez also alleges that her
spouse is a leader of drug dealers; however, she refused to go to the
authorities with this information because her spouse threatened her. Moreover,
she claims that she was afraid to seek police assistance as her spouse is
“wealthy and very well-connected with the police”.
[9]
In March 2004, the Applicant
entered Canada and claimed refugee status upon arrival.
DECISION
UNDER REVIEW
[10]
In its decision rendered on June
28, 2006, the Board determined that Ms. Bermudez’ refugee claim provided that
there was no objective basis for her claim for refugee status on any of the
enumerated Convention grounds. Thus, the Board found that she did not qualify
as a refugee under the IRPA. The Board also concluded that Ms. Bermudez’
removal to Costa Rica would not subject her personally to a risk to her
life, to a risk of torture or to cruel and unusual treatment or punishment.
ISSUES
[11]
(1) Did the Board err in its
finding on state protection?
(2) Did the Board err in ignoring evidence?
(3) Did the Board err in its credibility finding?
STATUTORY
SCHEME
[12]
Section 96 of the IRPA reads as
follows:
|
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.
|
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.
|
[13]
Subsection 97(1) of the IRPA
states the following:
|
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.
|
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.
|
STANDARD
OF REVIEW
[14]
In regard to state protection,
Justice Danièle Tremblay-Lamer in
Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193,
[2005] F.C.J. No. 232 (QL), at paragraph 11, after conducting a pragmatic and
functional analysis, determined that the assessment of state protection
involves the application of the law to the facts and as such is a question of
mixed law and fact, reviewable on the reasonableness simpliciter
standard. This being said, there is no reason to diverge from this standard in
the case at bar. As such, in what concerns state protection, a finding by the
Board will not be overturned where such a finding is supported by reasons that
can withstand a somewhat probing examination. (Canada (Director of Investigation and Research, Competition
Act) v. Southam Inc.),
[1997] 1 S.C.R. 748, at paragraph 56.)
[15]
In regard to credibility findings,
it is trite law that the Board has a well-established expertise in the
determination of questions of facts, particularly in the evaluation of an
applicant’s credibility. Under judicial review, this Court does not intervene
in findings of fact reached by the Board unless it is demonstrated that its
conclusions are patently unreasonable or capricious, made in bad faith or not
supported by the evidence. (Aguebor v. (Canada) Minister of Employment and
Immigration (F.C.A.), [1993] F.C.J. No. 732 (QL), at paragraph 4); Wen
v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 907
(QL), at paragraph 2); Giron v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 481 (QL); He v. Canada (Minister
of Employment and Immigration), [1994] F.C.J. No. 1107 (QL); Khan
v. Canada (Minister of Citizenship and Immigration), 2006 FC 839, [2006]
F.C.J. No. 1064 (QL), at paragraph 27.)
ANALYSIS
(1) Did the Board err in its finding on state
protection?
[16]
Ms. Bermudez argues that the Board
misstated the law on state protection made available for victims of domestic
violence in Costa Rica.
[17]
It is noted that, in Canada
(Attorney General) v. Ward, above, at
paragraphs 49, 50 and 52, the Supreme Court of Canada determined that the state
is presumed to be capable of protecting its citizens in the absence of a
complete breakdown of the state. The danger that this presumption will operate
too broadly is tempered by a requirement that clear and convincing proof of a
state's inability to protect must be advanced. An Applicant might advance
testimony of similarly situated individuals unassisted by state protection or
the Applicant 's testimony of past personal incidents in which state protection
did not materialize or the Applicant’s personal experience as proof of a
state’s inability to protect its citizens. An Applicant can also provide
country condition documentation to rebut the presumption that a state is
capable of protecting its citizens. (Reference is also made to Avila,
above, at paragraphs 27 to 32.)
[18]
Moreover, in Xue, above,
Justice Rothstein held that it was not erroneous to conclude that “clear
and convincing” confirmation required a higher standard of proof than the
bottom end of the broad category of a “balance of probabilities.” Specifically,
he stated the following:
[12] Having
regard to the approach expressed by Dickson C.J.C. in Oakes, i.e. that
in some circumstances a higher degree of probability is required, and the
requirement in Ward that evidence of a state's inability to protect must
be clear and convincing, I do not think that it can be said that the Board
erred in its appreciation of the standard of proof in this case. If the Board
approached the matter by requiring that it be convinced beyond any doubt
(absolutely), or even beyond any reasonable doubt (the criminal standard), it
would have erred. However, the Board's words must be read in the context of the
passage in Ward to which it was referring. Although, of course, the
Board does not make reference to Oakes or Bater, and while it
would have been more precise for the Board to say that it must be convinced
within the preponderance of probability category, it seems clear that what the
Board was doing was imposing on the applicant, for purposes of rebutting the
presumption of state protection, the burden of a higher degree of probability
commensurate with the clear and convincing requirement of Ward. In doing
so, I cannot say that the Board erred.
[19]
In its decision, the Board
concluded that Ms. Bermudez failed to rebut the presumption of state
protection. Costa Rica is not in a state of civil war, invasion, or internal
collapse. The government is in effective control of its territory, and has
military, police and civil authority in place. The evidence demonstrates that
the Costa Rican government takes the problem of domestic violence very
seriously and is making serious efforts to protect victims of domestic
violence. In respect to state
protection in Costa Rica, the
Board found:
Neither the
documentary evidence, nor the experience of her family with the authorities,
supports the claimant’s allegations of a lack of state protection. According to
documentary evidence, Costa Rica is a constitutional democracy governed by a president
and unicameral Legislative Assembly directly elected in free multiparty
elections every four years. Documents indicate there are a number of recourses
available in Costa Rica for the assessment, prosecution and granting of
remedies resulting from failure of law enforcement agencies to conduct their
work.
The same
document also reveals:
As of August,
the Ombudsman’s office had received 47 reports of police abuse of authority or
misconduct. Of these, 34 reports under investigation, 1 was determined to be
legitimate, and 12 were found to be without merit.
The document
goes on to state that each ministry had an internal disciplinary unit to
investigate charges of abuse and corruption against its officers. All new
police recruits received human rights awareness as part of their basic training
course. This illustrates that if there is a police misconduct or abuse, an
effective mechanism for lodging complaints exists through various channels
regarding violations of their civil and human rights.
Specifically,
with respect to domestic violence, the document states …
(Decision of
the Board, at page 3)
[20]
Consequently, the Board did not
make an unreasonable error in its findings on state protection in Costa Rica.
(2) Did the Board err in ignoring evidence?
[21]
Contrary to Ms. Bermudez’
allegations, the Board did not ignore or fail to weigh the evidence it had
before it. It is well established that the Board is assumed to have weighed and
considered all of the evidence unless the contrary is shown. Hence, the Court
has also ruled on numerous occasions that it is also within the Board’s
discretion to exclude evidence that is not material to the case before it.
The Board’s decision, not to admit evidence submitted before it or to refer to
each and every piece of evidence, does not amount to a reviewable error. (Yushchuk
v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1324 (QL), at paragraph 17.)
[22]
In fact, the Board has great
flexibility in terms of the evidence that it may consider. It is not bound by
any legal or technical rules of evidence and may rely on any evidence it
considers credible or trustworthy in the circumstances. (IRPA, subsection 173(c)
and (d), Thanaratnam v. Canada (Minister of Citizenship and Immigration), 2004 FC 349, [2004] F.C.J. No. 395 (QL), at
paragraph 7.)
[23]
The general documentary evidence
indicating that there are problems with the protection regime for victims of
domestic violence does not assist Ms. Bermudez since the Board recognized that
there were domestic violence issues in Costa
Rica:
The government
continued to identify domestic violence against women and children as a serious
and growing societal problem…
(Decision of
the Board, at page 4)
[24]
Nonetheless, in considering Ms.
Bermudez’s particular circumstances, the Board concluded that she failed to
demonstrate, with clear and convincing evidence, that she would not be able to
obtain state protection. The Board did not find that Costa Rica was
a state unable or unwilling to protect any victim of domestic violence. On the
contrary, the Board found that:
In this case,
the claimant’s own document, illustrates that, once a complaint was made
against the claimant’s spouse regarding his abuse of her daughter and his son,
steps were taken by the judicial system.
“It is ordered that the body of proof is forwarded to the local
Attorney General’s Office, for the investigation of the existence of a sexual
crime by… against the minor… Also, the body of proof is to be sent to the
National Foundation for the Child, based in Guipales, for them to proceed as it
may correspond.
...
Once the period for the ordered protection measures has expired, and
the interested party does not file for an extension of the period, then File
the dossier.
This clearly
illustrates that the Law Against Domestic Violence was applied, and protection
measures were granted for a period of six months.
(Decision of
the Board, at page 5)
[25]
Moreover, the decision of the Board
demonstrates that it considered the Applicant’s submissions relating to her having
sought state protection in order to obtain a protection order against her
spouse but was told that her file had been closed; however, it determined that
the Applicant failed to provide any document to substantiate her contention
that any effort was made to file an extension of the protection order. As such,
the Applicant’s allegation that state protection is not available in Costa Rica was unjustified,
given the evidence on country conditions, indicating that the state was
responding to the problem of domestic violence and that perpetrators of such
crimes were being prosecuted.
[26]
The onus was on Ms. Bermudez to
provide clear and convincing evidence to show that state protection would be
unavailable. The existence of documents suggesting that the situation in Costa Rica is
not perfect is not, by itself, clear and convincing confirmation that state
protection is unavailable, especially when there are numerous other documents
indicating that state protection is available. As stated in Pehtereva v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. No. 1491 (QL):
[12] In
addition, I am not persuaded that the tribunal ignored documentary evidence
provided by the applicant. That evidence, of newspaper and other articles with
translations to English where necessary, is not specifically referred to by the
tribunal, but in its decision it recorded its agreement with the Refugee
Hearing Officer's observations that the most reliable evidence was from
independent objective sources such as Human Rights Watch, Amnesty International
and the Department of State Country Reports as opposed to anecdotal, newspaper
articles. The sources referred to by the tribunal are sources regularly relied
upon by refugee claims tribunals as providing generally objective information
on country conditions. Reliance upon such sources cannot be characterized as
error; even if the newspaper articles submitted by the applicant provided
examples indirectly supportive of the applicant's claim, for it is trite law
that the weight to be assigned to given documents or other evidence is a matter
for the tribunal concerned. Even if the reviewing court might have assigned
different weight or reached other conclusions that provides no basis for the
reviewing court to intervene where it is not established that the tribunal has
been perverse or capricious or its conclusions are not reasonably supported by
the evidence. I am not persuaded that the tribunal's conclusions can be so
classified in this case.
[13] Finally,
the tribunal's decision does not set out in precise terms why it preferred
certain documentary evidence and not other evidence, but that does not
constitute error. Here, the applicant's concern is primarily that the
documentary and other evidence offered by the RHO was relied upon without
specifying why evidence of the applicant was not. But that preference of the
tribunal, related to evidence of the general circumstances within Estonia, of
which the applicant's experience was but an example. The general circumstances
based on documentary evidence from recognized sources provided the basis for
objectively assessing the applicant's expressed fear. In my opinion, the
tribunal did not err by ignoring evidence offered by the applicant, or by
failing to specify reasons for preferring other sources of evidence,
particularly in seeking an objective overview of circumstances within Estonia. Nor
am I persuaded that the tribunal misunderstood or misstated the evidence of the
applicant in any way significant for its ultimate finding that the applicant is
not a Convention refugee, because it found no serious possibility or reasonable
chance she would be persecuted for any reason set out in the definition of
Convention refugee should she return to Estonia.
[27]
The Court finds that the Board did
properly assess the objective and subjective facets of the Applicant’s claim.
Consequently, no error is found on this basis.
(3) Did the Board err in its credibility finding?
[28]
Ms. Bermudez argues that the Board
erred in its credibility finding. The Court disagrees, finding instead that the
Board was justified in arriving at such a conclusion and provided clear reasons
for its determination.
[29]
The Board noted significant
discrepancies in Ms. Bermudez’s testimony. First, the Board found that the
Applicant’s answers, with respect to why she failed to mention that her spouse
was going to kill her before her accident, were vague and unrelated. On this
note, the Board stated the following:
Soon after,
the claimant’s spouse allegedly tricked her to go with him on his motorcycle,
and caused an accident, whereby she fell and lost consciousness. In her oral
evidence she stated that he told her he was going to kill her; however, this
information is not contained in her Personal Information Form (PIF) narrative.
She was given several opportunities to explain why she had failed to mention
this in either her original PIF narrative, or in the amended one, that her
spouse had actually warned her before the accident that he was going to kill
her, but her answers remained vague and unrelated.
(Decision of
the Board, at pages 1 and 2.)
[30]
Second, it found that the
Applicant’s explanation, as to why she omitted to include in her narrative that
her common-law spouse had a lot of money, was well-connected to the police and
that he was a leader of drug dealers, was incompatible with her written
account. In this regard, the Board stated the following:
The claimant
stated that her spouse has a lot of money, is very well-connected with the
police, and she was too afraid of him to go to the authorities. There were some
additions to the claimant’s PIF narrative, the most significant one being that,
10 years ago, she learned her spouse was a leader of drug dealers.
When asked why
she had not included this in her narrative, the claimant said she was afraid
someone would tell her spouse. The panel finds her explanation for the omission
is incompatible with her written account, which already contains other highly
sensitive details.
How did the
claimant know her spouse was a leader of drug traffickers? She said that she
heard people call him “chief” on the phone, and that he gave his father a big
house; she also heard them talking of “disappearing” people. She did not go to
the authorities with this information because he threatened her. First, the panel
finds her deduction that her spouse was into drug trafficking to be based on
speculation. But more importantly, if she really believed for 10 years that her
spouse was a leader of drug traffickers, who talked of eliminating people, the
knowledge gave her more clout to report his abusive behaviour to the
authorities.
[31]
Consequently, in light of all the
evidence presented, the Board did not err in its credibility finding.
CONCLUSION
[32]
For all the above reasons, the
judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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