Date: 20050524
Docket: IMM-5213-04
Citation: 2005 FC 735
Ottawa, Ontario, the 24th day of May 2005
Present: Mr. Justice Rouleau
BETWEEN:
NIDIA CALVO CORDERO
OLIVIER RETANA GENTILINI
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division (panel), dated May 21, 2004, that neither Olivier Retana Gentilini (applicant) nor his wife Ms. Nidia Calvo Cordero (collectively, the applicants) are Convention refugees or persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act).
[2] Olivier Retana Gentilini and his wife Nidia Calvo Cordero are both citizens of Costa Rica. They lived without status in the United States, in North Carolina, between 1996 and 2001. Upon their return to Costa Rica, they were threatened by some people in the village who thought they had brought back a substantial sum of money from the United States.
[3] In January 2002, Mr. Retana Gentilini was working as a taxi driver. He alleges that he was threatened with a machete and that he received a number of telephone calls threatening him with forcible confinement and death.
[4] In early 2003, two of his co-workers were attacked and robbed. The applicant submits that his two co-workers looked like him and were driving automobiles that were the same colour as his; that the criminals were trying to attack him but had failed twice.
[5] The applicant alleges that he reported to the police station, but that the police were too busy and he was told that they were not able to respond to all requests.
[6] The applicants left Costa Rica on August 18, 2003. They arrived in Canada on the same day and filed their claim on September 19, 2003.
[7] The panel found that Costa Rica is a stable constitutional democracy equipped with an independent judiciary with effective means for solving individual cases of abuse, and that the burden was on the applicant, therefore, to establish that the State would not have guaranteed him protection. The panel was of the opinion that the applicants had not discharged the burden of proof, namely, that the State was neither willing nor capable of protecting them.
[8] The panel was also of the opinion that the applicants were targeted because they were perceived as people with money, which is unrelated to any of the five grounds set out in the Convention.
[9] The applicant claims that the panel erred in analyzing protection in a general way and in thinking that the applicants had to exhaust the recourses available to them with respect to their physical security, given the increasingly aggressive threats against them.
[10] The applicant further alleges that the panel did not reject most of his relevant evidence and did not question his credibility, yet it nevertheless dismissed his claim.
[11] After reading the book of authorities, the panel concluded as follows:
Since Costa Rica has long been a stable constitutional democracy with an independent judiciary that has effective means of resolving cases of individual abuse, it was the claimant's responsibility to show that the state did not protect him. The claimant has to do more than merely show that he approached members of the police force and that his approaches were fruitless. The more democratic a country's institutions are, the more a claimant must have done to exhaust the courses of action available to him.
The panel is of the opinion that the claimant has not discharged the burden of proof on him of showing that the state was unwilling or unable to protect him.
(See the reasons for the Panel's decision, at pages 2 and 3).
[Emphasis added]
[12] First of all, I am satisfied that the panel correctly determined that the applicants were not members of a social group within the meaning of the Convention.
[13] Furthermore, because the applicants have not met the onus of proving that police protection in Costa Rica was not sufficient, the panel was justified in concluding as it did.
[14] It should be noted that in order to qualify as a Convention refugee, an applicant must be part [translation] "of a group fearing persecution by reason of its race, religion, membership in a particular social group or political opinion. . . ." Applying the tests laid down in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Mr. Justice McKeown, in a case similar to this, stated:
The Ward case set up three categories of groups to which a claimant may be a member and base a claim to refugee status:
(i) groups defined by an innate or unchangeable characteristic (i.e., gender, linguistic background and sexual orientation);
(ii) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association (i.e., human rights activists); and
(iii) groups associated by a former voluntary status, unalterable due to its historical permanence (i.e., because one's past is an immutable part of the person).
... In my view, in developing the categories, the Court rejected a broad definition of a particular social group comprising basically any alliance of individuals who have a common objective or an interpretation which characterizes a social group merely by virtue of their common victimization as the objects of persecution. The applicants as wealthy persons or landlords are not part of a particular social group. (Mortera v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1319).
[Emphasis added]
[15] In the case at bar, the panel accepted as evidence that the applicants were victims of crime. But the panel reasonably concluded that once again the claims had no relationship to any of the grounds in the Convention refugee definition:
However, the case law indicates that individuals such as the applicants who are the targets of criminal acts cannot be considered members of a social group within the meaning of Canada v. Ward, [1993] 2 S.C.R. 689 (see Rizkallah v. M.E.I. (1992), 156 N.R. 1 (F.C.A.); Karpounin v. M.E.I. (1995), 92 F.T.R. 219; Soberanis v. Minister of Citizenship and Immigration (October 8, 1996), IMM-401-96; Vargas v. Canada (M.C.I.), 2002 FCT 1019, [2002] F.C.J. No. 1350 (T.D.) (QL) and Galvan v. Minister of Citizenship and Immigration
(April 7, 2000), IMM-304-99). The IRB did not err in reaching a similar conclusion, and its decision in this regard itself warrants the dismissal of the applicants' claim. (Hernandez v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 16 at para. 10)
ORDER
For the aforesaid reasons, the application for judicial review is dismissed.
"Paul Rouleau"
Judge
Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5213-04
STYLE: NIDIA CALVO CORDERO
OLIVIER RETANA GENTILINI v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 2, 2005
REASONS: The Honourable Mr. Justice Rouleau
DATED: May 24, 2005
APPEARANCES:
Michel Le Brun FOR THE APPLICANTS
Sherry Rafai Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANTS
Lasalle, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General
of Canada