OTTAWA, Ontario, this 9th day of November, 2005
PRESENT: THE HONOURABLE MR. JUSTICE ROULEAU
BETWEEN:
And
IAN SCHROEDER WONG
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for leave and judicial review, under s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated January 24, 2005. In the decision, the Board found that the applicants were not Convention refugees, or persons in need of protection. The primary issues on which the Board found that the applicants were not Convention refugees or persons in need of protection were state protection, credibility, and a lack of nexus between the claim and a Convention ground.
[2] The principal applicant ("PA"), Jennifer Arias Aguilar, is a 21-year-old citizen of Costa Rica. The applicant, Ian Schroeder Wong, is the PA's husband, and is a 23-year-old citizen of Costa Rica. His claim is based on the claim of the PA.
[3] The PA claims that she has been continually sexually harassed in Costa Rica. In September 2003, she was assaulted by two men with closed helmets riding a motorcycle, who fondled her and ripped a necklace she was wearing from her neck.
[4] In December 2003, she was abducted by a two men. She was forced into a vehicle, and sexually assaulted by a man in the back seat, while the second man drove. The PA managed to escape but the man in the back seat tore her purse in the process of her escape, her identification fell from her purse into the back seat of the vehicle. One of the men threatened the applicant as she ran away.
[5] The PA did not initially file a police report, but was eventually convinced by her husband and her mother to go to the police station and file a report. The report did not result in any positive identification or arrest, but the police were helpful, and followed up on the PA's claim by contacting her a few weeks following her report.
[6] On March 8, 2004, the PA was home alone. The men who had attacked her in December came to her home, and attempted to gain entry. She tried to use the phone but got no dial tone. She was able to keep the assailants out of the house, and scare them away by faking a cell-phone conversation with the authorities (she did not have a cell phone). She claims that an investigation by the phone company, after the incident, concluded that the phone lines had been interfered with from outside the home.
[7] As a result of the incident, the PA moved to her mother-in-law's home, which is approximately 15km from her mother's home. She contacted the police the morning after the second incident, and was informed that she could not be provided with personal protection by the police, but that the police would investigate, if she filed a second report. The PA attempted to contact other organizations to obtain personal protection, but was unsuccessful.
[8] On March 21, 2004, the applicants left Costa Rica, and flew to Toronto. On June 3, 2004, the applicants filed claims for Convention refugee status in Vancouver. Since the applicants' departure from Costa Rica, the PA's mother has moved from the family home. She states that a former neighbour told her mother that the home next to the former family home was broken into in the summer of 2004.
[9] On January 24, 2005, the applicants' claim was refused by the Board. The applicants now seek judicial review of the Board's decision.
[10] The Board found that the applicants are not Convention refugees, or persons in need of protection, because they do not have a valid Convention ground for claiming refugee status, and also because the state protection mechanisms exist in Costa Rica to deal with a situation such as the one faced by the PA. The Board also made comments on the PA's credibility with respect to the continued pursuit of the PA by the perpetrators, and the time lapse between the first incident, and the alleged second incident.
[11] The Board found that the initial incident alleged by the PA appears to have been a random act of violence which, when the PA escaped, resulted in the perpetrators seeking a vendetta to punish the PA. The Board found that no connection to a Convention ground was established by the PA's situation.
[12] The Board then went on to discuss the PA's credibility. The Board finds it implausible that the perpetrators would wait three months to attack the PA for a second time, and concludes that the PA's allegation with respect to the continued pursuit, "do not have a ring of truth to them" (Decision p. 2). The Board finds that the PA's allegations with respect to the continuing pursuit are not trustworthy on the balance of probabilities, and concludes that there is insufficient credible evidence to support her claim.
[13] The Board then moved from credibility to state protection. The Board finds that the actions of the police after the first incident were reasonable; the police took the report, investigated the allegations but she was unable to identify the assailants. The Board then cites Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689, in which the Supreme Court of Canada discusses the presumption of a state's ability to protect its citizens, absent a situation of complete breakdown. The Board notes that Costa Rica is a long standing constitutional democracy with an independent judiciary that makes serious efforts to protect its citizens, and which provides effective means to deal with instances similar to the allegation of the PA. The Board then distinguishes state protection from the personal protection sought by the applicant, and questions why the PA did not seek state protection after the alleged second incident.
[14] The Board concludes the discussion of state protection by noting that the actions taken by the police after the first incident was reasonable, and that the PA failed to satisfy her duty to seek protection following the alleged second incident. As Costa Rica is not in a state of complete breakdown, the Board finds that the PA has not rebutted the presumption that the state is able to protect a person in her situation.
[15] The Board notes that the PA provides documentary evidence to support her claim, but finds that the particular report referred to by the PA, "Report on the fact-find study of Costa Rica on the cause for the increase of the number of persons from Costa Rica arriving in Canada to claim refugee status", bears little relevance to the PA's claim, and also finds that the views expressed by the author, Francisco Rico-Martinez, are lopsided (from the perspective of a self professed refugee and human rights advocate). The Board comes to the conclusion that the PA has not rebutted the presumption that Costa Rica is able to protect its citizens, and finds that state protection exists in Costa Rica.
[16] The Board dismissed the claim of the PA, and, noting that her husband's claim was based on her own, dismissed the claim of the applicant husband.
[17] The applicants raise two issues for consideration:
a. whether the Board erred in assessing the plausibility and credibility of the applicant's claim; and
b. whether the Board erred in its analysis of state protection in Costa Rica.
[18] The applicants submit that the Board erred in finding that the second incident was not plausible. The applicants argue that the Board can make credibility and plausibility findings, so long as the findings are not so unreasonable to warrant the intervention of this Court; that the Board's findings must contain valid reasons after considering all the evidence. The applicants refer to the report submitted, detailing repairs to the phone line that was allegedly cut during the second incident; that this is sufficient evidence to prove that the incident occurred. The applicants submit that the Board's dismissal of the incident, on plausibility grounds, constitutes a reviewable error.
[19] The respondent argues that the applicants are merely trying to have the evidence re-weighed by the Court. The respondent cites Suresh v. Canada(Minister of Citizenship and Immigration) 2002 SCC 1, in which the Supreme Court of Canada cautioned against the re-weighing of evidence by a reviewing court relating to administrative law issues. The respondent submits that the credibility findings were not so unreasonable as to warrant judicial intervention, and therefore the Court must defer to the Board analysis of the credibility evidence.
[20] The applicants further submit that the PA did take all the steps reasonable to seek state protection before coming to Canada and making a refugee claim. The applicants submit that Ward, supra, also stands for the principle that, when state protection is not forthcoming, there is no requirement for the applicant to seek state protection. The applicants allege that there was no state protection available and, more particularly, there is little, if any, state protection for women in Costa Rica.
[21] The respondent counters with reference to two cases. In Canada (Minister of Employment and Immigration) v. Villafranca [1992] F.C.J. No. 1189 (FCA), the Federal Court of Appeal noted that state protection need only be available, and cannot be held to a standard of perfection. In Smirnov v. Canada(Secretary of State) [1995] 1 F.C. 780 (FCTD), Gibson J. cautioned against setting too high a standard for state protection, at para 11:
¶ 11 With great respect, I conclude that Madam Justice Tremblay-Lamer sets too high a standard for state protection, a standard that would, in many circumstances, be difficult to attain even in this country. It is a reality of modern-day life that protection offered is sometimes ineffective. Many incidents of harassment and/or discrimination can be effected in a manner that renders effective investigation and protection very difficult. The use of unsigned correspondence that does not identify its source and of random telephone communications where the caller does not identify himself or herself are examples. A single incident of defacement of property is another. The applicants suffered from these types of incidents and received no satisfaction when they reported them to the militia or police. Random assaults, such as those suffered by the applicants, where the assailants are unknown to the victim and there are no independent witnesses are also difficult to effectively investigate and protect against. In all such circumstances, even the most effective, well-resourced and highly motivated police forces will have difficulty providing effective protection. This Court should not impose on other states a standard of "effective" protection that police forces in our own country, regrettably, sometimes only aspire to.
[22] The respondent submits that the Board's findings on state protection were supportable given the reasonable behaviour of the police after the first incident and the failure to report the second incident; that the second incident does not absolve them of the duty to seek state protection and to file a police report in the second incident.
[23] The determinative issue in this claim is state protection. The Board focused its findings on three concerns: (a) Convention grounds; (b) credibility; and (c) state protection. I am of the opinion that, even if the first two concerns are waived, the Board's decision with respect to state protection was reasonable. If all the facts, as alleged are taken as true, and the principal applicant is placed under a Convention ground of member of a particular social group, a woman subjected to sexual assault, I find that the applicants have failed to meet the burden of showing that Costa Rica is unable to protect its citizens.
[24] The Board makes a reasonable finding that Costa Rica is a constitutional democracy that is making serious efforts to protect women. As stated in Villafranca, supra, the protection afforded by the state need not be perfect, but merely adequate. I agree with Gibson J.'s finding in Smirnov, supra, that caution must be exercised in a state protection analysis, so as not to impose too high of a standard on the state being reviewed.
[25] In the particular circumstances of the present case, the PA did avail herself of the state protection after the first incident, and filed a report. Unfortunately, a failure to identify the assailants led to an inability to resolve the matter. The police did advise the PA to report any further problems, and checked in with her a few weeks after filing the report. The actions of the police were reasonable, and more than adequate, given the PA's particular circumstances. As Gibson J. noted in Smirnov, supra, at para 11:
Random assaults, such as those suffered by the applicants, where the assailants are unknown to the victim and there are no independent witnesses are also difficult to effectively investigate and protect against. In all such circumstances, even the most effective, well-resourced and highly motivated police forces will have difficulty providing effective protection. This Court should not impose on other states a standard of "effective" protection that police forces in our own country, regrettably, sometimes only aspire to.
[26] Given the Supreme Court's decision in Ward, supra, and the Federal Court of Appeal's conclusion in Villafranca, supra, that state protection need not be perfect, but needs to be adequate, I am of the opinion that the Board did not err in the analysis of the state protection in Costa Rica.
[27] Given that state protection exists, the onus falls on the principal applicant to show that state protection was not available, given her particular circumstances. In the present matter, she was unable to identify her assailants when she filed her police report. As noted in Smirnov, supra, assaults involving unknown assailants are difficult to effectively investigate, police, and protect against. The Costa Rican police acted reasonably in the circumstances, and the onus of disproving state protection has not been met by the PA.
[28] Finally, the applicants' assertions that personal rather than general protection should be provided to the PA is without merit. The police acted immediately and reasonably after the PA filed her report. They even checked up on her a few weeks after the first incident. A duty to provide personal protection to every person who files a police complaint is unreasonable by the standards of any country, including both Canada and Costa Rica. The general state protection available in Costa Rica is adequate and available, and the applicants have failed to prove otherwise. The application for judicial review is dismissed
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1000-05
STYLE OF CAUSE: JENNIFER ARIAS AGUILAR and
IAN SCHROEDER WONG v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: September 15, 2005
REASONS FOR ORDER: Rouleau, J.
APPEARANCES:
Mr. Warren Puddicombe FOR APPLICANTS
SOLICITORS OF RECORD:
Elgin, Cannon & Associates
Vancouver, B.C. FOR APPLICANTS
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario