Date: 20050706
Docket: IMM-6806-04
Citation: 2005 FC 951
BETWEEN:
JEINMY ALVAREZ CHAVES
JORDY QUIEL ALVAREZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons follow the hearing of an Application for Judicial Review of a decision of the Refugee Protection Division (the "RPD") of the Immigration Refugee Board wherein the RPD determined the Applicants not to be Convention refugees or persons otherwise in need of protection in Canada. The decision under review is dated the 8th of July, 2004.
[2] The Applicants are a woman (the "principal applicant") and her minor son. They are citizens of Costa Rica.
[3] The principal applicant was married at a very young age. She tells a tale of domination by her husband in Costa Rica amounting to psychological abuse. Her husband encountered allegedly politically motivated difficulties in Costa Rica which led him to flee to Canada where he claimed Convention refugee status. The principal applicant and her son followed and also made refugee claims.
[4] In Canada, the principal applicant's husband turned to physical violence against his wife. They separated.
[5] In written submissions to the RPD filed shortly before the date of the decision under review, counsel for the Applicants, by reference to evidence before the RPD, wrote:
Ms Alvarez obtained priority housing assistance and custody of her children..., but her husband kept abusing her and threatening her. The police were called. Ms Alvarez obtained a restraining order and a no-contact order, both of which he violated...He found out where she lived and kept her under surveillance there, thereby intimidating her.
Ms Alvarez also testified that her husband made explicit threats, after the separation, that if they went back to Costa Rica he would kill her with impunity.[1]
[Citations omitted]
[6] The principal applicant also provided evidence to the RPD regarding persons in Costa Rica that she considered to be similarly situated to herself. Once again in counsel's written submissions, by reference to the evidence before the RPD, counsel wrote:
I refer the member first to the evidence of Ms Alvarez as to the similarly-situated individuals she knows in Costa Rica. She testified as to her sisters and young female cousins who are being victimized by a sexual predator. In accordance with the law, they made a full report to the OIJ against the man. However, he intimidated them into withdrawing the complaint. Despite the laws supposedly in place to protect minors from such abuse, the girls were allowed to withdraw their charges against the man and no further investigation was ever made. The girls are still at risk. They are not being protected...
Secondly, Ms Alvarez also gave evidence of the experience of her own mother, who separated from her husband a long time ago. Her evidence is that her mother is still being threatened and victimized by her estranged husband and is unable to access protection, despite her continued reports to the police and courts. These efforts have continued even to the present time, after enactment of new domestic violence legislation. Her testimony is that it is all too easy for the perpetrator to avoid his obligations and evade the police, and the police make no serious efforts to have him comply...[2]
[Citations omitted]
[7] The RPD, in its decision, made no specific reference to the foregoing evidence that was before it.
[8] In Mendivil v. Canada (Secretary of State).[3], Justice Desjardins, wrote at paragraph 11:
...The Board members do not appear to have considered the possibility that persons specifically targeted, who may qualify as members of a particular social group, might still have good grounds for fearing persecution when a state is capable of protecting ordinary citizens but incapable of protecting members of that particular social group. In addition, I cannot be sure that the Board members appreciated the facts in their entirety, since they did not refer to the 1992 events. I remain in doubt as to whether the evidence as a whole was considered.
[9] In Torres v. Canada (Minister of Citizenship and Immigration)[4], my colleague Justice Russell wrote at paragraphs 16 and 17:
When I review the decision as a whole, it is not clear to me if, or where, the Board addressed the Applicant's expressed fear of the lack of police support and the difficulty of her taking advantage and having recourse to the existing legislative and procedural framework, of state protection in Nicaragua. It looks to me as though the Board never really engaged with the Applicant's concern that the police and other support groups could not provide effective protection. I believe her evidence was clear and convincing that they could not protect her against her father in the past and would not be able to do so in the future. The Board should have turned its mind to this issue and addressed it directly in its reasons.
I do not say, of course, that the decision would necessarily have been different if it had, but its failure to do so was a reviewable error and it would be unsafe to let the decision stand. The Board failed to effectively analyse, not merely whether a legislative and procedural framework for protection existed, but also whether the state, through the police and otherwise, was willing to effectively implement any such framework...
[10] In its decision under review, the RPD failed to analyse or even specifically mention:
first, the principal applicant's post-separation experience with her husband here in Canada in circumstances where the principal applicant had a restraining order and a no-contact order which proved ineffective;
secondly, the issue of adequacy of State protection in Costa Rica for the principal applicant in the face of the evidence of very explicit threats to her made by her husband, once again in the event of her return to Costa Rica;
and finally, the principal applicant's evidence regarding persons in Costa Rica that she considered would be similarly situated to herself if she were required to return to Costa Rica, in circumstances where her husband has now either returned there or, in all probability, is likely to shortly return. The RPD effectively relied entirely on a "state protection" and "changed country conditions" analysis without reference to the alleged special circumstances of the principal applicant and members of her immediate family.
[11] As Justice Russell noted in the quotation from his reasons in Torres, above, the foregoing is not to say that the decision would necessarily have been different if the RPD had specifically addressed the case-specific evidence of the principal applicant. Rather it is to say that its failure to do so was a reviewable error and it would be "unsafe" to let the decision here under review stand.
[12] For the foregoing reasons, this application for judicial review will be allowed. The decision under review will be set aside and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination.
[13] At the close of the hearing of this matter, counsel were advised of what the result would be. Neither counsel recommended certification of a question. The Court agrees that this matter turns on its very particular and unique facts. No question will be certified.
"Frederick E. Gibson"
J.F.C.
July 6, 2005
Toronto, Ontario
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6806-04
STYLE OF CAUSE: JEINMY ALVAREZ CHAVES
JORDY QUIEL ALVAREZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: JULY 5, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: JULY 6, 2005
APPEARANCES BY:
Patricia Wells For the Applicants
Kareena R. Wilding For the Respondent
SOLICITORS OF RECORD:
Patricia Wells
Toronto, Ontario For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent