Date: 20040831
Docket: IMM-7240-03
Toronto, Ontario, August 31st, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
MIGUEL VINDAS BADILLA
JANETH MARIA FERNANDEZ HIDALGO
(a.k.a. Yaneth Maria Fernandez Hidalgo)
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered Orally from the Bench
and Subsequently Edited andWritten for Precision and Clarification)
[1] The applicants are citizens of Costa Rica. They allegedly fear persecution at the hands of criminals who had been stealing from Mr. Badilla's employer. Mr. Badilla testified against one of these individuals in Court. After the individual was acquitted, Mr. Badilla says that the thief abducted him and beat him into unconsciousness. Mr. Badilla reported the matter to the police, but was advised against pressing charges as there were no witnesses.
[2] After this assault, the applicants say that they moved to another city. Shortly thereafter, Ms. Hidalgo was allegedly physically and sexually assaulted. The assailants were reportedly looking for Mr. Badilla, and had threatened to find and kill him. No complaint was made to the police following this assault, and the couple left for Canada a few weeks later.
[3] The Immigration and Refugee Board dismissed the applicants' claims, finding that even if it had found Mr. Badilla's evidence to be credible, the documentary evidence clearly indicated that state protection would have been available to the applicants in Costa Rica. I see no basis for interfering with this decision.
[4] The applicants submit that in coming to the conclusion that the couple should have sought the protection of the state, the Board failed to analyze the claim from Ms. Hidalgo's perspective. In this regard, the applicants rely on the decision of this Court in Silva v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1161. In my view, Silva is readily distinguishable from this case on its facts. In Silva, the Board found that the agents of persecution were representatives of the state, and that the applicants' unwillingness to seek state protection was reasonable in the circumstances. That is not the situation here, where the applicants allege that the agents of persecution were common criminals.
[5] Similarly, there is no merit to the applicants' submissions that the Board failed to consider the Gender Guidelines issued by the Chairperson of the Immigration and Refugee Board. A review of the Board's reasons discloses a clear statement on the part of the presiding member that the Gender Guidelines were considered.
[6] The Board noted that Costa Rica has a highly developed democratic government, and has put into place effective mechanisms for responding to complaints of police misconduct or inaction. In this context, the evidence adduced by the applicants was found to be insufficient to rebut the presumption that the state would be able to protect its citizens. I see no error on the part of the Board in coming to this conclusion, and accordingly, the application for judicial review is dismissed.
Certification
[7] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7240-03
STYLE OF CAUSE: MIGUEL VINDAS BADILLA
JANETH MARIA FERNANDEZ HIDALGO
(a.k.a. Yaneth Maria Fernandez Hidalgo)
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 31, 2004
REASONS FOR ORDER
AND ORDER BY: MACTAVISH, J.
DATED: AUGUST 31, 2004
APPEARANCES BY:
Luis Antonio Monroy For the Applicants
Kevin Lunney For the Respondent
SOLICITORS OF RECORD:
Luis Antonio Monroy
Barrister & Solicitor
Toronto, Ontario For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040831
Docket: IMM-7240-03
BETWEEN:
MIGUEL VINDAS BADILLA
JANETH MARIA FERNANDEZ HIDALGO
(a.k.a. Yaneth Maria Fernandez Hidalgo)
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER