Date: 1998----
Docket: IMM-2764-97
BETWEEN:
ROSE MARY TORO
STEFANY MARGOT CAMACHO
GERARDO ANIBAL TORO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
1 This is an application for judicial review of a June 10, 1997 decision of the Convention Refugee Division of the Immigration and Refugee Board [hereinafter Refugee Division] wherein the Refugee Division found that the applicants were not Convention Refugees.
FACTS
2 The primary applicant, Rose Mary Toro, the mother of the two minor applicants, is a citizen of Panama who bases her fear of persecution on the fact that she belongs to a particular social group.
3 The primary applicant first came to Canada in August 1988 and sought refugee status, but withdrew her claim in July 1989 when she moved to Costa Rica. She lived in Costa Rica until January 1990 when she moved back to Panama.
4 The primary applicant's father, Demetrio Rodriguez, was an ex-lieutenant of Military Intelligence during Manuel Noriega's regime. He was released from jail in September 1993 after being imprisoned for four years for allegedly participating in the assassination of Hugo Spadafora. Mr. Rodriguez was released when a jury found him innocent of the murder charge.
5 In March 1994, the primary applicant was accosted by two members of the Parti Révolutionnaire Démocratique [hereinafter PRD] who assaulted her and threatened her with death. They demanded to know the location of her father. Their concern was that they did not want her father to reveal what he knew about their military history since that would cause harm to their political career. Following this incident, she went to live with a friend but she continued to work at the same location.
6 In September 1994, the primary applicant received a note at work threatening her children unless she provided information about the whereabouts of her father.
7 The primary applicant contacted her father who told her to flee to Canada. The applicant left Panama and arrived in Canada on October 6, 1994 and demanded refugee status.
8 The Refugee Division provided several grounds to conclude that the applicants were not Convention Refugees. First, the Refugee Division found that the primary applicant failed to provide any evidence that she could not receive protection in Panama. She stated that she did not approach the police after the May 1994 incident because it was during elections and they could not guarantee protection. However, after the September 1994 incident, the elections were completed and yet the primary applicant chose to flee Panama rather than contact the police and seek their protection.
9 The Refugee Division considered the documentary evidence and concluded that Panama is a parliamentary republic with a democratic government. The Refugee Division also found that the police are available to help protect Panamanian citizens and the state apparatus was intact. Citing the principle in Ward v. Canada (M.E.I.), [1993] 2 S.C.R. 689 that the state is presumed to be able to protect its citizens, the Refugee Division concluded that there was no serious risk of persecution because the applicants could reasonably expect to benefit from state protection.
10 Furthermore, the Refugee Division held that it was unreasonable for the primary applicant to continue at the same job after she was threatened because that act is incompatible with the actions of one who is truly afraid.
11 The applicants seek judicial review of the decision of the Refugee Division.
SUBMISSIONS
1. The Applicants' Submissions
12 The applicants submit that the Refugee Division did not take into account the documentary evidence concerning the primary applicant's father. The applicants argue that the Refugee Division must not consider whether the average citizen could be protected, rather, the question is whether the state is capable of protecting the daughter of Demetrio Rodriguez. In this regard, the applicants cite several documents which state that the Panamanian authorities were searching for the primary applicant's father in connection with the kidnapping of Dr. Mauro Zuniga.
13 In addition, the applicants submit that they cannot seek protection from the authorities because it is the State who is persecuting the primary applicant.
14 On the second issue of the primary applicant's acts being irreconcilable with a well-founded fear of persecution, the primary applicant submits that she had to continue to work in order to care for her children, one of whom was not in Panama. She had no other family to rely on and she submits that the social safety net in Panama is non-existent. Moreover, she states that the first incident occurred near where she lived so she did not fear going to work as she had "partially" moved to a friend's home. It was only when the second incident occurred at work that she felt that she had to leave Panama.
2. The Respondent's Submissions
15 The respondent submits that there was no clear and convincing proof of the State's inability to protect the applicants. The respondent cites Ward, supra, for the presumption that the State can protect its citizens. The respondent also notes the documentary evidence which demonstrates that Panama is a parliamentary republic ruled by a democratic government. This evidence states that Panama possess mechanisms to help protect its citizens.
16 The respondent cites the decision in Canada (M.E.I.) v. Villafranca (1992), 99 D.L.R. (4th) 334 (F.C.A.) where the court described the test for determining whether state protection is available (at page 337):
The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid (clearly not the case here) or that the government itself is in some way prevented from giving it.
17 The respondent also cites the following statement from Kadenko v. Canada (M.E.I.) (1996), 143 D.L.R. (4th) 532 (F.C.A.) at page 534:
When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.
18 The respondent notes from the documentary evidence that there are organizations in Panama that help protect citizens' rights and that these organizations operate free of government interference.
19 Furthermore, the respondent remarks that in Kadenko, supra, the court ruled that the refusal of the police to intervene does not mean that the state is incapable of protecting its citizens. The respondent also notes that the primary applicant did not say that the police refused to help, rather, she said that she did not approach the police.
20 The respondent also submits that there is no evidence of persecution by the state of Panama. The evidence shows that President Ernesto Balladerès pardoned many former military personnel loyal to Manuel Noriega. In addition, the primary applicant's father was released after being found not guilty of murder. The Refugee Division is presumed to consider all the evidence including the fact that the applicant was a daughter of a military officer. The respondent submits that there is no evidence that the primary applicant was prevented from obtaining protection due to her father. Thus, the respondent submits that the applicants did not discharge their burden of proving that the Refugee Division's inferences were unreasonable or that the applicants could not receive protection from Panamanian authorities.
21 Finally, the respondent submits that the primary applicant's stated reason for remaining at her employment does not change the fact that the Refugee Division had good reason to find that her behaviour did not accord with a fear of persecution. The respondent cites the decision in Safakhoo v. Canada (M.C.I.), [1997] F.C.J. No. 440 (QL) (F.C.T.D.) where the court held that conduct inconsistent with a well-founded fear of persecution may properly be relied on by the Refugee Division in rejecting a refugee claim.
DISCUSSION
22 I agree with the Refugee Division's findings in this case. The applicants have not provided clear and convincing proof of the State's inability to protect them. The primary applicant has merely chosen not to approach the police or any other authorities. Given the documentary evidence showing the democratic apparatus in place in Panama, the primary applicant must do more than flee Panama when she feels threatened.
23 The applicant presented evidence that her father is sought by the Panamanian authorities, which evidence, at best, is contradictory, but there is no evidence that the applicants face any threat from the State. The only threats the primary applicant received came from the PRD. The primary applicant has not demonstrated any refusal or reluctance by the Panamanian authorities to protect her due to her familial background.
24 Finally, I believe that it was open to the Refugee Division to conclude that the primary applicant's failure to change employment following the first incident is incompatible with a well-founded fear of persecution especially after she claims to have received ten (10) to eleven (11) threatening telephone calls at her work between the first incident and the last incident, six months later. The primary applicant's submission that she felt safe at work but not at home is not sufficiently persuasive.
CONCLUSION
25 This application for judicial review is denied.
26 The parties informed the Court that they do not have a question for certification.
J.F.C.C.
OTTAWA, ONTARIO