Date: 20050118
Docket: IMM-752-04
Citation: 2005 FC 61
Toronto, Ontario, January 18th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
ROSMARY DE LA TRINIDAD RAMIREZ LOPEZ
(a.k.a. ROSMERY DE LA T RAMIREZ LOPEZ)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicant, a citizen of Costa Rica, claims Refugee Protection on the basis of gender persecution in Costa Rica.
[2] In her PIF, the Applicant, who is a young woman, sets out a detailed story of extreme violence against her by her "ex-boyfriend" who is 20 years her senior and a member of the Judicial Investigative Police of Costa Rica. The Applicant's evidence was accepted by the IRB as credible. It is important to clearly understand the extent of the violence suffered by the Applicant in determining whether the IRB committed a reviewable error in rejecting the Applicant's claim. The situation faced by the Applicant is as follows:
Sigifredo started to come home drunk late at night. And he would force me to have sex with him. I tolerated Sigifredo because I believed that it was my duty as his woman to have sex with him even if I didn't want to.
Sigifredo became increasingly jealous and he would go to pick me up at my work because he told me that I could go somewhere else with my friends.
On August 16, 2001 Sugifredo came home drunk and told me that he wanted to have sex with me, however he said he wanted to be kinkier and wanted to call a prostitute so we could have a threesome. I told him that I was not going to tolerate none of his dirty tricks and that I was going to leave him Sigifredo became furious and told me that if I believed that I was better than him, he grabbed me by my hair and pulled me into the bedroom and started to tear my dress off, he then proceed to rape me. I tried to fight him off this time, however he overpowered me. After he had finished he left the house and told me that he was going to go outside to be with a real woman who appreciated to be with him.
The next day early in the morning I went to see my family doctor, Giovanna Ambrosio where I received medical assistance. After seeing the Doctor I went directly to the police (Guardia Rural de Tibas) where I told the police officer who assisted me everything that Sigifredo had done to me. After hearing me the police officer told me that I was crazy if I wanted them to arrest an O.I.J. agent, the policeman told me that it was best for me to hire a lawyer and to let him advise me what my options were. After I left the police station I felt unsecured and unprotected and went directly to my mother's home and told her everything that was happening to me, including what the policeman told me.
My mother suggested that I take the policeman's advice, and that same day we went to see a lawyer by the name of Carlos Azofeifa. The lawyer told me that it was difficult to proceed legally against a member of the O.I.J. and that it was best for me to try to speak with Sigifredo to go for some family counselling or if I feared him to much to leave to another city.
After seeing the lawyer I went to my mother's home. At around 9:00 p.m. Sigifredo came with two men and after my mother opened the door they forced themselves inside and Sigifredo came directly to grab me by my arm. My father tried to defend me however he was beaten by the two men who came with Sigifredo at that moment I agreed to leave with Sigifredo, because I did not wanted to cause my family any problems. I told my father that I was going to be fine and that I was going to contact him afterwards. I parent's home with Sigifredo and his two friends and we went to directly to his house. Sigifredo started drinking and laughed about what happened at my parent's home.
The next day Sigifredo told me that I was his woman and that I should was [wash] my dirty clothes and home and not be telling anyone what happens inside his home. He also told me that he was informed that I had gone to the police to denounce him, but he said that he was not made because he feared of being arrested, but because those policemen know him and that I had ashamed him by telling them about our problems. He told me that if I ever tried to leave him again he was going to hurt my family and me.
On August 31, 2001 Sigifredo came home with his police friends and started drinking. They started to smoke marihuana. Sigifredo then called me to cook dinner for his friends. After about 30 minutes I brought the food to the living room and returned to the kitchen, I then noticed that Sigifredo was behind me and grabbed me from my wrist and twisted my arm backwards. He told me that I was a bitch and that he seen me flirt with his friends, he then grabbed me by my hair an took me to the bedroom where he started to beat me and raped me. He then told ne that I had to stay inside the bedroom until his friends left.
The next day I went to see my family doctor Giovanni Ambrosio because my hand became purple color and I was in total pain. The Doctor told me that I had suffered a tendon stretch and prescribed me with pain killers and told me to keep my arm in one position.
I knew that I could not continue living in the same situation and then I started to plan my escape.
(Applicant's Further Affidavit, pp. 21-23)
[3] The IRB, in effect, found that the Applicant had failed to rebut the presumption of state protection in Costa Rica. The substance of the IRB's decision is as follows:
In my opinion, regardless of whether the feared person is a police officer, the claimant has an obligation to present clear and convincing proof of confirmation of Costa Rica's inability to protect her. I find that she has not done so, as I note the Federal Court of Appeal's guidance in Kadenko on what efforts are expected of a person seeking protection, put in the following way:
"...when the state in question is a democratic state...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..."
The documentary evidence indicates that Costa Rica is a constitutional democracy with effective political and judicial systems, some with the specific responsibility of dealing with domestic violence, the rights of abused women, and the service available to them. Therefore, in this claim, the presumption of state protection applies. I find that the claimant has not shown that it would be unreasonable to expect her to make greater efforts at seeking protection in Costa Rica, and therefore, she has not provided the required clear and convincing evidence that no adequate protection is available to her in Costa Rica.
(Decision, pp. 3-4)
[4] On the evidence provided to the IRB by the Applicant, it is very difficult to understand what more the Applicant could have done to seek state protection. It is obvious that the predator with whom she was living was receiving protection from state authorities. Nevertheless, the IRB voiced an expectation that the Applicant should have done more.
[5] In my opinion, for this finding to stand, it must be responsive to the reality of the Applicant's situation. In the present case, a young woman is being preyed upon by an older power figure; she goes for help to the state's law enforcement agency and is summarily rejected. To say that she should have tried again with the police, or should have gone to some civilian agency to obtain criminal law enforcement, imagines that the result might be different. In my opinion, there would have to be some evidence to support this conclusion before she could be expected to make the effort.
[6] Therefore, I find it was incumbent on the IRB to specifically state what precise practical actions the Applicant could have taken. Since this was not done, I find that the decision is patently unreasonable.
ORDER
Accordingly, I set aside the IRB's decision and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-752-04
STYLE OF CAUSE: ROSEMARY DE LA TRINIDAD RAMIREZ LOPEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 17, 2005
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
APPEARANCES BY:
Byron Thomas For the Applicant
Martin Anderson For the Respondent
SOLICITORS OF RECORD:
Byron Thomas
Barristers and Solicitor For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20050118
Docket: IMM-752-02
BETWEEN:
ROSEMARY DE LA TRINIDAD RAMIREZ LOPEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER