Date: 20040123
Docket: IMM-5766-02
Citation: 2004 FC 112
Toronto, Ontario, January 23rd, 2004
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
MARICELA LOS ANGELES ALFARO ARGUEDAS
(a.k.a. Maricela Alfaro Arguedas) and
MEGAN ELENA CARVAJAL ALFARO, by her litigation guardian
MARICELA LOS ANGELES ALFARO ARGUEDAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicants, mother and daughter, citizens of Costa Rica challenge in this judicial review application the October 23, 2002 decision of the Refugee Protection Division of the Immigration and Refugee Board (the "tribunal") refusing to recognize them as refugees and finding they were in no need of protection. Mrs. Arguedas claimed she was a victim of domestic abuse at the hands of her former common-law partner since 1995.
[2] The tribunal did not take issue with Mrs. Arguedas's testimony except on one count. It rejected their refugee claims because it found state protection was available in Costa Rica. The tribunal noted that Mrs. Arguedas only once asked for police assistance and that was in May 1999 when police where summoned because her partner, being drunk, was throwing objects and breaking them. The police promised to come, but did not; she phoned back and they advised they were not coming because it was merely a domestic matter.
[3] The documentary evidence before the tribunal establishes that in 1996, the Legislative Assembly of Costa Rica passed a law against domestic violence. The thrust of the documentary evidence, the testimonial evidence, the affidavit evidence, and arguments before me were as to the effectiveness of that law and of the government and the police efforts in enforcing it.
[4] In particular, I mention the affidavit (Exhibit C-4) of Montserrat Sagot, Associate Dean of Graduate Studies and Women, in San Jose who comments on the 1996 law, states women do not know how to use it, asserts the police are not helpful at alleviating the lack of awareness about the law because of their lack of training, especially in rural areas. Dean Sagot describes the limitation of the law because it is not a criminal law, but one where judges are authorized to issue restraining and other orders against abusive male partners. Because it is not criminal law, she concludes the 1996 law is not effective.
[5] The tribunal addressed the point made by Dean Sagot which is also made in other documents referred to me by counsel for the Applicant. It wrote:
The panel does not disagree that Costa Rican law is imperfect, or that domestic violence continues in that country. However, the overall evidence shows that this democratic country is making "serious efforts" to protect its citizens from the problems of domestic abuse and are making some headway. The Costa Rican public prosecutor, the police and the Ombudsman all have offices dedicated to this problem. The Ombudsman's office is pressing for better application of the Law Against Domestic Violence and to ensure a better interpretation of its provisions, through a commission of government and non-governmental organizations established in 1998.
Furthermore, the Communications adviser to the Minister of Women's Affairs in San Jose stated that the Government Council's accord pertaining to the special request to be made to the police with regard to effective fulfilment of the Law Against Domestic Violence is being coordinated at the highest level of the government, that is within the Ministry of Security. The Ministry has taken charge of the domestic violence portfolio and has implemented a program of community policing, which entails training for male and female police officers to increase the awareness of the Law and its provisions of protection to victims.
[6] The tribunal mentioned the one time in May of 1999, Mrs. Arguedas called the police but they did not come. The tribunal stated such police behaviour was contrary to the 1996 law.
[7] The tribunal then noted, with that exception, she did not make any attempt to seek help in spite of being guided by the Manager of the Municipal Women's office of Brava Heredia. The evidence on this point is in an exhibit in the form of a letter filed by the Applicant in which the Manager writes she "Mrs. Arguedas was guided about steps to take to continue requesting protection for herself and her daughter." Mrs. Arguedas was examined and cross-examined before the tribunal on this aspect. She maintained she received no guidance. The tribunal preferred the written text of the letter. The tribunal further noted there were other organizations in Costa Rica dealing with the advancement of women and gender equality.
[8] The tribunal concluded on this point:
Furthermore, guided by Villafranca and Kadenko, the panel finds that because Costa Rica is a democracy and persons who are subjected to domestic violence have several areas where protection can be sought in Costa Rica, it would be expected of the claimant to do more than just file one complaint to the police station. The panel also notes that the guidance given by the Municipal Women's Office was to take steps to continue requesting protection for herself as well as for her daughter.
...
The panel finds that the claimant simply did not exhaust all courses of action open to her in attempting to avail herself and her daughter of state protection in Costa Rica. Since Costa Rica is a democracy and since there is no persuasive evidence that suggests the police would have not offered the claimant protection, consequently, the claimant had not met the burden of establishing "clear and convincing" proof of a lack of state protection.
[9] The issue in this case is whether the tribunal properly determined the underlying facts which underpin the concept of state protection in refugee law. It does not call for an assessment of the content of state protection. In such a case as this, the Applicant must show a breach of section 18.1(4)(d), that is, the tribunal made a finding of fact in a perverse or capricious manner or without regard to the evidence before it.
[10] The thrust of the Applicants' argument is that the 1996 law is not being applied and is not effective and the tribunal erred in not so finding. He argues Mrs. Arguedas sought protection and was refused. It was reasonable for her to conclude protection would be forthcoming in the future.
[11] According to her counsel the tribunal erred in assessing her claim by ignoring the evidence and did not take into account she was from a rural area in Costa Rica where the documentary evidence shows the police have received no training in human rights matters.
[12] As counsel for the Respondent argues, the onus upon the Applicants is set out by the Supreme Court of Canada in Ward v. Canada (Attorney General) (1993), 2 S.C.R. 689. The Applicants must provide clear and convincing proof of Costa Rica's inability to protect them.
[13] A review of the documentary evidence canvassed by the tribunal persuades me it did not err. It is true the application of the new 1996 law on domestic violence was uneven, but perfection is not required as was expressed by the Federal Court of Appeal in Canada (Minister of Employment and Immigration) v. Villa Franca, [1992] F.C.J. No. 1189.
[14] A review of the state apparatus in Costa Rica in relation to the problem of domestic violence meets the standards required for state protection in by refugee law. The tribunal enumerated those elements in its reasons.
[15] I believe the tribunal took into account Dean Sagot's criticism of the current law when it considered tis imperfections and proposals for reform and I note the documentary evidence shows Costa Rica's Criminal Code covers serious manifestations of domestic violence.
[16] I also think the tribunal was correct in finding Mrs. Arguedas did not sufficiently seek the protection of Costa Rica which is a functioning democracy. Justice Decary wrote the following in Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. 4th 532:
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.
[17] It was within the tribunal's purview to find Mrs. Arguedas did not follow up on the advice she received from the Women's Centre in the municipality where she lived.
[18] Finally, the evidence does not support the Applicants' argument, the abuse she suffered happened when she was residing after 1999 in rural Costa Rica with her mother.
ORDER
THIS COURT ORDERS that this judicial review application is dismissed. No certified question was proposed.
"François Lemieux"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5766-02
STYLE OF CAUSE: MARICELA LOS ANGELES ALFARO ARGUEDAS (a.k.a. Maricela Alfaro Arguedas) and MEGAN ELENA CARVAJAL ALFARO, by her litigation guardian MARICELA LOS ANGELES ALFARO ARGUEDAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 21, 2004
REASONS FOR ORDER
AND ORDER BY: LEMIEUX J.
APPEARANCES BY:
Mr. Ricardo Aguirre
FOR THE APPLICANTS
Mr. John Loncar
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ricardo Aguirre
Barrister and Solicitor
Centre for Spanish-Speaking Peoples
Toronto, Ontario
FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040123
Docket: IMM-5766-02
BETWEEN:
MARICELA LOS ANGELES ALFARO ARGUEDAS (a.k.a. Maricela Alfaro Arguedas) and MEGAN ELENA CARVAJAL ALFARO, by her litigation guardian MARICELA LOS ANGELES ALFARO ARGUEDAS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER