Date: 20050415
Docket: IMM-1142-04
Citation: 2005 FC 518
BETWEEN:
RODOLFO BARRANTES BARRANTES
ENELIA LEDEZMA JIMENEZ
ERIKA ROXANA BARRANTES LEDEZMA
ANDERSON BARRANTES LEDEZMA
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
HARRINGTON J.
[1] Were it not for a jurisprudential guideline issued by the Chair of the Immigration and Refugee Board with respect to State protection available in Costa Rica, I would have had no hesitation in dismissing the application for judicial review of Rodolfo Barrantes, his wife and children which is based on his being a taxi driver who experienced terrible encounters with criminals in Costa Rica. They believed he was a police informant.
[2] The Refugee Protection Division of the Immigration and Refugee Board held, based on caselaw from this Court, that fear of persecution as a victim of organized crime and a fear of personal vengeance does not constitute a fear of persecution for purposes of the United Nations Convention. That is correct.
[3] The Board then turned to Section 97 of the Immigration and Refugee Protection Act ("IRPA") which affords international protection to persons at risk to their life or to cruel or unusual treatment or punishment in their homeland. The Board held, quite correctly, that there is a presumption that the State is capable of protecting its citizens, a presumption which may be rebutted by "clear and convincing proof". The Board was satisfied that the protection in Costa Rica was adequate, although not necessarily perfect, and noted that when the State in question is democratic, as is Costa Rica, the claimant must show more than a simple visit to the police. The more democratic the State, the more the claimant must have done to exhaust recourses open to him, which in this case would include initiating legal proceedings or complaining to the ombudsman. Complaints were in fact made to the police who stated there was insufficient evidence to allow them to investigate. They were probably right.
[4] Let us now look at the guidelines. Section 159(1) of the IRPA authorizes the Chair to identify decisions of the Board as jurisprudential guides "to assist members in carrying out their duties".
[5] The Chair issued such a jurisprudential guide, decision TA2-14980, which dealt with State protection available to a witness to criminal activity in Costa Rica.
[6] The applicants do not question the right of the Chair to issue jurisprudential guides. Rather they say the accompanying published "Purpose of the Jurisprudential Guides" and "Policy on the Use of Jurisprudential Guides" placed undue institutional pressure on panel members making decisions and left them with the impression that the hearing was not fully impartial. The guide should not, they say, have applied to their case as it did not deal with the unique situation of Costa Rican taxi drivers and failed to mention that there is more than one school of thought in this Court as to whether one has to complain to other apparatus of the State if the police refuse to do anything.
[7] While I would have preferred the published purpose and policy with respect to jurisprudential guides be written with a lighter pen, I am satisfied that no undue pressure, and no appearance thereof, was placed on Board members which would influence them in their decision making.
[8] I would have preferred not to see "members are expected to follow the reasoning in the jurisprudential guides..." and if they don't "then they must explain this in their reasons...".
[9] However, the stated purpose of the guidelines is to assist and it is acknowledged that "a decision of any division of the IRB is not binding on a subsequent panel of that division."
[10] Mention was made of an earlier lead case intended to establish parameters for assessing Hungarian Roma applications for refugee status. It was suggested by the applicants that the lead case was truly a guide, and no more, in that the accompanying literature was not designed to encourage Board members to rule against applications. However, at the time it was actually argued that the lead case had exactly that goal in mind and therefore created a perception of bias. The matter was reviewed extensively by Campbell J. in Geza v. Canada (Minister of Citizenship and Immigration), 2004 FC 1039, [2004] F.C.J. No. 1401 (QL). In that case, there was even some evidence offered to support the proposition that there was a decline in acceptance rates for Hungarian Roma as a direct result of the lead case. Campbell J. said:
46. In my opinion, the evidence does not prove that the perceived decline in acceptance rates for Hungarian Roma was a direct result of the lead case. However, even if this direct result can be established, it does not act to support the allegation of apprehension of bias. If IRB members appropriately cite the evidence and findings in the lead case in deciding on the merits of a particular refugee claim, there can be no complaint. However, if IRB members choose to apply the lead case without doing the hard work to reach an independent analysis of the evidence and the law in a particular claim in an appropriate way, this does not contribute to a finding of apprehension of bias; it is erroneous decision making which is subject to correction on judicial review.
[11] I am satisfied that there is nothing in the language of the "Purpose of the Jurisprudential Guides" and "Policy on the Use of Jurisprudential Guides" which would lead me to a different conclusion in this case. I am satisfied that the Board did do the hard work necessary to reach an independent analysis of the evidence.
[12] The Board is specialized and, unlike this Court, is expected to have knowledge of and to take notice of country conditions. Efforts reasonably taken to achieve some sort of consistency are to be applauded, not discouraged. For instance, it would not do to have one panel member's terrorist organization be characterized by another member as a benevolent non-government organization.
[13] Yet, we should not take panel members as lacking in gumption and so weak of will that they will blindly follow a guideline.
[14] The same Minister has to deal with residency requirements under the Citizenship Act. There are three lines of jurisprudence in this Court. Yet, the printed form provided citizenship judges on which they may make their recommendations mentions only one. It is somewhat presumptuous of Citizenship and Immigration Canada to propose the Citizenship judge follow one case, rather than the other two. Indeed, in the residency requirements for citizenship there will be a presumption that the judge followed one case unless he or she scratched out parts of the printed form which were furnished, or used a blank sheet of paper. Nevertheless, the supply of this form, or in this case a guideline, does not infringe upon the independence of the decision maker (Canada (Minister of Citizenship and Immigration) v. Wall, 2005 FC 110, [2005] F.C.J. No. 146 (QL)).
[15] There was nothing to prevent the Board from taking a different approach to State protection in Costa Rica. The reasoning of the Board is sound. The fact that the Board accepted the reasoning and availability of State protection as stated in guideline decision TA2-14980 does not detract from its decision. Reference was also made to the US Department of State Country Report.
[16] For these reasons, the application will be dismissed. However, the applicant has until 22 April 2005 to submit a question or questions of general importance for certification, and the respondent has until 27 April 2005 to reply.
"Sean Harrington"
Judge
Ottawa, Ontario
April 15, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1142-04
STYLE OF CAUSE: RODOLFO BARRANTES BARRANTES,
ENELIA LEDEZMA JIMENEZ,
ERIKA ROXANA BARRANTES,
LEDEZMA ANDERSON BARRANTES LEDEZMA
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 13, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: APRIL 15, 2005
APPEARANCES:
Nancy Miles Elliott FOR APPLICANTS
Martin Anderson FOR RESPONDENT
SOLICITORS OF RECORD:
Nancy Myles Elliott FOR APPLICANTS
Markham, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney-General of Canada