Ottawa, Ontario, March 14, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ALTAMIRANO CARRASCO, LIZETTE, &
ARROYO ALTAMIRANO, KIMBERLY J.
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O'KEEFE J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated March 15, 2005, which determined that the applicants are not Convention refugees or persons in need of protection.
[2] The applicants seek an order setting aside the decision of the Board and referring the matter for re-determination by a differently constituted panel.
Background
[3] Liman Arroyo Benavides, (the principal applicant), together with his wife, Lizette Altamirano Carrasco, and their 5 year old daughter, Kimberley J. Arroyo Altamirano (collectively the applicants), are citizens of Costa Rica who are claiming refugee status in Canada on the basis of a fear of persecution at the hands of drug traffickers in Costa Rica. They allege a lack of adequate protection from the police in Costa Rica.
[4] According to the narrative portion of the applicants' Personal Information Form (PIF), the principal applicant and his wife were visiting her father's farm in October 2003 when they came across a group of armed men in a forested area of the property. The principal applicant confronted the men, who explained that they were growing marijuana. The men threatened to kill the principal applicant if he told anybody what they were doing. The principal applicant stated that he recognized one of the men as a known drug trafficker who had evaded the police following a major drug investigation. On a couple of occasions after that, the principal applicant encountered the same drug trafficker, who repeated the threats to the principal applicant.
[5] The principal applicant did not experience any further problems until he returned to his wife's father's farm in April 2004 and went into a nearby town to pick up some supplies. He passed strange men on horses and he heard three gun shots being fired from behind. He informed the police of this incident, and also told them about the threats that he had received. The police told him they needed more information and witnesses, and they did not take a report. After this incident, the applicants came to Canada.
[6] The applicants' claim for refugee protection was heard on September 16, 2004 and March 8, 2005. The Board dismissed their claim in a decision dated March 15, 2005. This is the judicial review of that decision.
Reasons for the Board's Decision
[7] The Board stated that the determinative issue is whether adequate state protection is available in Costa Rica. The Board stated that the test of adequate state protection is not one of perfect protection, but that the government is making serious efforts to protect its citizens.
[8] The Board considered the documentary evidence concerning the conditions in Costa Rica. The Board noted that Costa Ricais a functioning and stable constitutional democracy, with functioning police and independent judicial institutions. The Board further noted that the Costa Rican authorities are making serious efforts to protect their citizens from criminal activities and have begun to build a witness protection program in 2003 and taken other steps to protect witnesses. The Board stated that the principal applicant did not request witness protection prior to leaving Costa Rica and he has not established on a balance of probabilities that protection would not be provided to him if the circumstances warranted such protection.
[9] The Board stated that the principal applicant did not contact the authorities regarding the possible illegal activities of the drug trafficking group or the threats he received. He thus failed to assist the authorities in a manner that would enable them to provide protection to the applicants. The Board stated that given that the drug trafficker encountered by the principal applicant was known and sought by the police, it is reasonable to expect that the police would have conducted a further investigation had the principal applicant reported what he saw to the police.
[10] The Board stated that given the principal applicant's alleged experiences and fear of the drug traffickers, it was implausible that he would go to the police to make a vague complaint about shots being fired in the mountains. The Board noted that there were no consequences at the farm as a result of the principal applicant reporting to the police. The Board was therefore not persuaded that the principal applicant would have been in any greater danger if he had also told the police about what he saw in the mountains.
[11] The Board found that the police response to the principal applicant's complaint was reasonable, in light of the vagueness of his report.
[12] The Board noted that the applicants asserted that there was police corruption. The Board found that this assertion was not a reasonable basis for not going to the police, as there were state mechanisms available for lodging complaints about police misconduct, with appropriate recourses in the event of a violation.
[13] The Board held that there were state mechanisms in place to provide the applicants with adequate protection from criminals, including drug traffickers, and the applicants had failed to maximize this protection. The Board held that the applicants did not present clear and convincing proof to rebut the presumption that a state is able to provide adequate state protection to its citizens. The applicants' refugee claims were therefore refused.
Issue
[14] The applicants raised the following issues:
1. Was the Board's finding on state protection patently unreasonable as it ignored relevant evidence of similarly situated individuals in Costa Rica?
2. Did the Board err by equating a willingness to protect with the adequacy of state protection?
3. Did the Board's failure to provide a complete transcript record of the proceedings result in a breach of natural justice?
[15] I would frame the issues as follows:
1. Did the absence of a complete transcript result in a breach of natural justice?
2. Did the Board err in concluding that adequate state protection was available to the applicants?
Applicants' Submissions
[16] The applicants submitted that evidence of similarly situated individuals who were let down by state protection arrangements can rebut the presumption of state protection (see Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 50). The applicants submitted that there was documentary evidence before the Board that Costa Rica was unable to provide adequate protection to individuals similarly situated to the applicants who would require the assistance of a witness protection program were they to provide information to the state authorities for the prosecution of crime. The applicants submitted that the Board erred by ignoring or selectively referring to this evidence and by failing to take into account the applicants' particular circumstances.
[17] The applicants submitted that the complicity of the police in criminal activities provided a reasonable basis for the applicants' expectation that approaching the authorities for protection would be futile.
[18] The applicants submitted that the Board misconstrued the evidence when it stated that the government of Costa Rica has taken steps to protect witnesses outside of a witness protection program.
[19] The applicants submitted that the Board erred in equating the willingness of the state to protect its citizens with the adequacy of protection. The correct test is whether the state actually provides protection and not merely indicates a willingness to help. It was submitted that the evidence cited by the Board only indicated efforts undertaken by the state to protect, but did not suggest whether protection is adequate for similarly situated individuals.
[20] The applicants submitted that the Board made an error when it stated in its reasons that "The principal claimant did not contact the authorities at any time regarding the possible illegal activities of this group or the threats he allegedly received". It was submitted that contrary to this statement, the principal claimant stated in his PIF the following: "Before I left the village I went to the police to inform about this incident and also told about the treats [sic]. Until now I do not know what happened."
[21] The applicants submitted that the incomplete transcript of the proceedings is unfair and results in a breach of natural justice because the missing portions of the transcript are crucial to the determinative issue of state protection (see Goodman v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 102 at paragraphs 68 to 70 (T.D.)). The applicants submitted that without a complete record of what transpired, this Court is not in a position to assess whether the Board made a reviewable error.
Respondent's Submissions
[22] The respondent submitted that the Board did not err by ignoring evidence of persons similarly situated to the applicants who failed to receive state protection because of a lack of a witness protection program. It was submitted that the Board did address the issue of a witness protection program. The Board noted that there was no formal witness protection program in Costa Rica but the government had recognized this as a problem and had begun to build such a program.
[23] The respondent acknowledged that there was conflicting evidence concerning the degree to which the applicants reported their experiences to the police; however, this did not amount to a reviewable error because the Board's analysis and finding on state protection did not hinge on whether the applicants had reported the trafficker's threats to the authorities. It was submitted that, despite having found that the applicants did not report the trafficker's threats to the authorities, the Board specifically addressed this as a possibility in the reasons, and thus, any previous error of fact made by the Board on this point is not sufficient to amount to a reviewable error (see Rohm and Haas Canadian Ltd. v. Canada (Anti-Dumping Tribunal) (1978), 91 D.L.R. (3d) 212, 22 N.R. 175 (F.C.A.), which held at paragraph 5 that in order to set aside a decision because of an erroneous finding of fact, that decision must be "based" on the erroneous finding). Specifically, the Board held that:
Given the degree of interest the authorities had already demonstrated in the trafficker, had he reported what he saw to the police, it is reasonable to expect that they would have conducted a further investigation which may well have led to the trafficker's arrest.
[24] The respondent submitted that the onus was on the applicants to demonstrate that the police were unwilling to act. The applicants were required to do more than simply say that they did not know what happened after they spoke to the police. The respondent submitted that while the applicants contended that the police would not have acted due to corruption, the Board rejected this contention by citing documentary evidence that there are mechanisms available for lodging complaints about police misconduct with appropriate recourses in the event of a violation.
[25] The respondent submitted that a decision will be set aside where the absence of a full transcript of the hearing results in a denial of natural justice, in that the applicants are denied the ability to present a ground of review that would otherwise have been available (see Canadian Union of Public Employees, Local 301 v. Montreal (City of), [1997] 1 S.C.R. 793 at paragraphs 81 to 83). The applicants have not filed affidavit evidence to indicate what would have been in the transcript to support their allegations of a reviewable error. The respondent submitted that the applicants have therefore not established that the unavailability of the full transcript amounted to a denial of natural justice.
[26] The respondent submitted that the decision of the Board was not based upon whether the applicants had reported the threats of the traffickers to the police. Even without having made such a report to the police, the Board still held that the applicants had not rebutted the presumption of state protection. The Board noted that the government of Costa Rica has political, judicial and law enforcement institutions and an infrastructure capable of protecting its citizens from criminals.
[27] The respondent submitted that it was reasonable for the Board to conclude that the applicants had failed to meet the onus upon them to provide clear and convincing evidence that the state of Costa Rica could not provide protection from the criminal elements they feared.
Analysis and Decision
[28] The Board's decision in this case is based upon the availability of state protection. The portion of the transcript dealing with state protection is missing. The principal applicant was still testifying at the end of the available transcript. The Board, in its decision, referred to the principal applicant's evidence as being "extremely vague."
[29] In Canadian Union of Public Employees, Local 301 v. Montreal (City of), [1997] 1 S.C.R. 793, Justice L'Heureux Dubé set out at paragraph 81, the test for whether the absence of a transcript violates the rules of natural justice:
In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice. Where the statute does mandate a recording, however, natural justice may require a transcript. As such a recording need not be perfect to ensure the fairness of the proceedings, defects or gaps in the transcript must be shown to raise a "serious possibility" of the denial of a ground of appeal or review before a new hearing will be ordered. These principles ensure the fairness of the administrative decision-making process while recognizing the need for flexibility in applying these concepts in the administrative context.
[30] In Goodman v. Canada(Minister of Citizenship and Immigration) (2000), 185 F.T.R. 102 (T.D.), Justice Lemieux stated at paragraph 75:
In my view, in this case, the following factors should be considered in determining whether the transcript hearing gap in the CRDD proceedings amounts to a serious possibility that Mr. Goodman will be denied a ground for review:
(1) the grounds for review advanced;
(2) the importance of the impugned findings to Mr. Goodman's refugee claim;
(3) the basis upon which the CRDD arrived at its conclusions or findings and by this I mean did the CRDD base its conclusions on findings of incredibility, or findings of fact or as a matter of legal interpretation;
(4) what was the subject matter of the transcript gaps (was it direct evidence or cross-examination or, as in Hayes, supra, conversations between the trial judge and legal counsel as well as the judge's charge to the jury) and the significance of the transcript gap to the impugned findings, that is, how material was the subject matter or content of the transcript gap and what reliance did the tribunal place on it;
(5) what other means did the tribunal use to fill the gap; and
(6) what other means were available to the Court to determine what went on at the hearing.
[31] Applying the applicable law in the present case, I am of the opinion that the absence of the full transcript results in a denial of natural justice. I am unable to assess the evidence presented by the applicant on the availability of state protection and I do not know what transpired at the hearing.
[32] The application for judicial review is therefore allowed and the matter is referred to a different panel of the Board for re-determination.
[33] Because of my disposition on Issue 1, I will not deal with the remaining issue.
[34] Neither party wished to submit a serious question of general importance for certification for my consideration.
JUDGMENT
[35] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for re-determination.
ANNEX
Relevant Legislation
Paragraph 95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) provides that refugee protection is conferred on a person who is determined by the Board to be a Convention refugee or a person in need of protection.
| 95. (1) Refugee protection is conferred on a person when
. . .
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or |
95. (1) L'asile est la protection conférée à toute personne dès lors que, selon le cas :
. . .
b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; |
Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1930-05
STYLE OF CAUSE: ARROYO BENAVIDES, LIMAN ALTAMIRANO
CARRASCO, LIZETTE, &
ARROYO ALTAMIRANO, KIMBERLY J.
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 2, 2006
APPEARANCES:
| Jeinis S. Patel
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| Sally Thomas
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SOLICITORS OF RECORD:
| Jeinis S. Patel Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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