Ottawa, Ontario, March 14, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
ERICK GERARDO ROJAS ELIZONDO
Applicants
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Johnny Herra Castro ("Mr. Herra") and Erick Gerardo Rojas Elizondo ("Mr. Rojas") (collectively "the Applicants") are citizens of Costa Rica who claim refugee protection in Canada on the basis of their sexual orientation. The Applicants are a homosexual couple who have lived together since 2001. In a decision dated December 2, 2004, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dismissed their claim. The primary basis upon which the claim was denied was that the Applicants failed to rebut the presumption of state protection. The Board also found that the treatment experienced by the Applicants did not, cumulatively, amount to persecution. The Applicants seek judicial review of the decision.
Issues
[2] This application raises the following issues:
- Did the Board err in its conclusion that state protection would be available to the Applicants?
- Did the Board err in failing to assess the cumulative effect, on the Applicants (and, in particular, on Mr. Herra) of the series of abusive incidents suffered by them and in failing to assess the impact that this would have on their ability to avail themselves of state protection?
Analysis
[3] The two issues raised by the Applicants are related and I will consider them together.
(a) Fundamental principles related to state protection
[4] It is a fundamental principle of refugee protection that a person who suffers persecution should turn to their own state for protection before accessing protection from another country. Accordingly, it is well established in Canadian jurisprudence that a refugee claimant must establish, with clear and convincing evidence, that the state is unable or unwilling to protect the claimant (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). The real question is whether it would have been reasonable in the circumstances to expect the person to seek the protection offered by his or her own government, rather than seek refuge in Canada (Hussain v. Canada (Minister of Citizenship and Immigration), 2003 FCT 406 at para. 7).
(b) Standard of review
[5] While there is some debate within the Federal Court jurisprudence as to the appropriate standard of review to be applied to decisions of the Board on state protection, I am prepared to accept the results of a pragmatic and functional analysis carried out by my colleague Justice Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193. In that case, Madam Justice Tremblay-Lamer determined that a standard of reasonableness simpliciter was the most appropriate on the issue of adequate state protection. For purposes of this application, I would agree with and adopt her reasoning at paras. 7-12. A decision satisfies the reasonable standard "if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 55).
(c) Obligation on Applicants to make efforts to access state protection
[6] The Applicants, by their own admissions, made little effort to engage the assistance of the police. In its decision, the Board referred to a number of avenues of redress open to the Applicants. Specifically, the Board described the local police, the Office of the Ombudsman, the courts, and the Ministry of Security.
[7] The Applicants submit that the Board failed to show evidence that would indicate how those institutions would respond to the specific threats encountered by the Applicants, including death threats, employment discrimination, neighbourhood graffiti and vandalism, police misconduct, and sexual harassment at the hands of authority figures (in this case, a priest and a psychologist who allegedly propositioned Mr. Herra). The Applicants submit that the types of persecution they face would be so numerous and varied that it would be impractical if not impossible to stem them all. The Applicants would have to commence multiple complaints and actions with several institutions, go into hiding, hire legal counsel, live apart, and cope with the ongoing harassment in the meantime. In the Applicants' view, this scenario represents a denial of basic human rights. In effect, the Applicants argue that, even if they had made better efforts, state protection would not have been forthcoming from the police in respect of all their problems.
[8] The first problem with this argument is that it is not incumbent on the Board to prove that the institutions of the state would respond to the specific threats. Rather, the Applicants bear the burden of rebutting the presumption of state protection. If the Applicants wished to rely on an argument that Costa Rica is incapable of responding to any of the individual incidents (such as the employment discrimination or the sexual harassment at the hands of priests), they should have put forward evidence to that effect. Their failure to do so does not mean that the Board must prove the contrary.
[9] Secondly, it appears to me that the level of protection demanded by the Applicants is simply not available to anyone anywhere. The Applicants are, in effect, asserting that they should be able to go to the police one time, report the litany of wrongs and receive a "guarantee" that each and every wrong will be stopped and prevented. Police and other state agencies, in any country, can only respond to specific incidents for which their assistance is sought. It follows that, wherever one lives, one may be required to "commence multiple complaints and actions with several institutions".
[10] As stated by the Federal Court of Appeal in Canada(Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm.L.R. (2d) 130, at 132-133:
No government that makes any claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation.
[11] Thus, it was reasonable for the Board to assess the availability of state protection in respect of the incidents described by the Applicants and to not require that the state provide perfect protection. However, within this framework, it was incumbent on the Board to examine both the evidence put forward by the individual Applicants and the objective documentary evidence and to reach conclusions that meet the standard of reasonableness simpliciter. I will move on to consider the Applicants' arguments that this standard was not met.
(d) the Ombudsman's Office
[12] The Applicants submit that the Board's decision is unreasonable since the Board relied on the Ombudsman's Office to provide effective protection to the Applicants.
[13] This argument might have merit if the Board had referred to and relied solely on the Office of the Ombudsman to provide protection to the Applicants (Bobrik v. Canada(Minister of Citizenship and Immigration), [1994] F.C.J. No. 1364 (T.D.) (QL). However, a review of the reasons of the Board shows that the Board did not commit this error.
[14] Mr. Rojas described, in his testimony, abuse at the hands of the police that occurred in 1990. He failed to report the more recent death threats to the police because of his earlier experience. The Board rejected this excuse.
According to documentary evidence, complaints of police abuse of authority or misconduct have declined as the government continued implementation of the 1994 Police Code and the Law for Strengthening the Civilian Police, which took effect on March 23, 2001. Furthermore, if police abuse or misconduct occurs, an effective mechanism for lodging complaints exists through the Ombudsman's Office . . .
[15] This passage demonstrates that the Board looked first at whether, objectively, the police abuses allegedly suffered by Mr. Rojas in 1990 would be repeated in 2004. A decline in the number of complaints regarding police abuse is evidence that demonstrates the availability, on a forward-looking basis, of protection from the police in Costa Rica. While the Board goes on to discuss the Ombudsman's Office and its handling of complaints, it does so in the context of describing an "effective mechanism" for dealing with rogue police officers whose behaviour might not meet with their statutory duties and not as the primary first line of protection. In other words, the Board, on the evidence before it, concluded that the kind of police abuse experienced by Mr. Rojas in 1990 is not likely to re-occur and, if it does, there is an effective Ombudsman's Office to consider a complaint. On this basis, it was not unreasonable for the Board to conclude that "the claimant ought to have pursued the options open to him" and that "[t]here is no persuasive evidence that indicates that if the claimant had pursued the available recourses through the Ministry of Security, the Courts or the Ombudsman . . . that the state would have been unable or unwilling to protect him." The Board's analysis within the given reasons leads the Board from the evidence before it to the conclusion at which it arrived. The decision that state protection is available to Mr. Rojas is not unreasonable.
(e) Ability of Mr. Herra to access state protection
[16] With respect to the issue of availability of state protection for Mr. Herra, the same documentary evidence and the same line of reasoning apply. That is, had Mr. Herra sought police protection for the death threats he allegedly received, effective, albeit not perfect, state protection would likely be available to him. The only remaining question for this particular Applicant is whether his individual circumstances made it unreasonable for him to seek state protection. Stated generally, is an individual excused from the obligation to seek state protection, that would have been reasonably forthcoming, on the basis of personal circumstances? I think that the answer to this question is "no".
[17] Mr. Herra claims to have suffered significant harm at the hands of his family, his in-laws, his neighbours, his employer and even at the hands of a priest and psychologist from whom he sought assistance. He claims that, because of the cumulative effects of this harm, it is not reasonable to expect him to seek out state protection. I do not agree.
[18] As discussed above, this is not a case where the state is unable or unwilling to provide protection; Mr. Herra's evidence was that he attempted to make only one police report with respect to the death threats. Nor is it a situation where a claimant has, on a number of occasions, been denied state protection. The police were not the alleged agents of persecution. The incidents that led to Mr. Herra's departure related to actions by his in-laws and neighbours and not by the police. What Mr. Herra is arguing is that, on the basis of his personal experiences as a homosexual, the conclusion should be reached that it is unreasonable to expect him to seek out state protection.
[19] In assessing the availability of state protection, the focus must be on the state's ability to protect. As quoted by Justice LaForest in Ward, above, at p. 723, Professor Hathaway stated the obligation in these words:
Obviously, there cannot be said to be a failure of state protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming:
[20] While Mr. Herra may find it difficult to approach the police or pursue other avenues of redress available to him, he is not excused from the obligation to do so. In this case, the government has not been given an opportunity to respond (except in one brief exchange) and the Applicants have failed to show that, if they or others in similar situations had engaged the authorities in a meaningful way, protection would not have reasonably been forthcoming. In these circumstances, it was objectively unreasonable for Mr. Herra not to have sought the protection of his home authorities.
Conclusion
[21] For these reasons, I conclude that the decision of the Board was not unreasonable. It is supported by the evidence. The Board had regard for the evidence before it and did not misapprehend or ignore any evidence. Although the Board appears to have accepted the Applicants' stories, the Applicants failed to rebut the presumption of state protection. On this basis, it was not unreasonable for the Board to reject their claim for protection.
[22] The Applicants requested that I certify the following question:
Is the failure to specifically address an issue raised by counsel in submissions an error of law, in situations where there is a dispute as to whether the Board had actually considered the issue raised?
[23] I believe that the Applicants are referring to their submissions that the Board failed to consider the cumulative impact of their treatment as a homosexual couple on the issue of whether they had suffered persecution. However, whether the treatment of the Applicants was persecution or discrimination was not the determinative issue in this application. Rather, the finding that the Applicants had failed to rebut the presumption of state protection was dispositive of the claim before the Board and before this Court. Accordingly, there is no need to consider this issue and the proposed question is not determinative of this application and no question will be certified.
THIS COURT ORDERS that:
- The application is dismissed; and
- No question of general importance is certified.
"Judith A. Snider"
__________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10496-04
STYLE OF CAUSE: JOHNNY HERRA CASTRO et al v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 16, 2006
APPEARANCES:
Mr. W. Alan Hart FOR THE APPLICANTS
Ms. A. Leena Jaakkimainen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. W. Alan Hart FOR THE APPLICANTS
Barrister & Solicitor
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada