Date: 20030812
Docket: IMM-3342-02
Citation: 2003 FC 968
Ottawa, Ontario, this 12th day of August, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
ANA ISABEL CERDAS SOLANO
JOSE LUIS PORTUGUEZ CERDAS
ANDREA MARIA PORTUGUEZ CERDAS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
Introduction
[1] The applicants, Ana Isabel Cerdas Solano, Jose Luis Portuguez Cerdas, and Andrea Maria Portuguez Cerdas, seek judicial review of the June 18, 2002, decision of the Refugee Division of the Immigration and Refugee Board (the "Board"). The Board held that the applicants were not Convention refugees.
Facts
[2] Ana Isabel Cerdas Solano, (the applicant) is a 42-year old woman from Costa Rica. She states that she is persecuted by her ex-husband and claims refugee status on the ground of "particular social group" - women who are victims of domestic violence. Her two children, Jose Luis Portuguez Cerdas and Andrea Maria Portuguez Cerdas, also claim refugee status based on her claim. The applicant was appointed as designated representative for her minor child, Andrea.
[3] The applicant was married on March 17, 1977, (at the age of 16) to Mr. Jose Franciso Portuguez Badilla. The applicant became pregnant a month after her marriage. A pattern of abuse began after the marriage, as she states that she was regularly raped and physically abused by her husband. Mr. Badilla also drank excessively. The applicant stated that her husband would not let her leave the house, failed to give her any money, and threatened to kill her if she left him.
[4] In May of 1977 the applicant and her husband moved to the United States. Domestic conditions did not improve, as the applicant was isolated and she continued to receive abuse from her husband. On December 25, 1977, the applicant sought help from a neighbour, who took her to the hospital to deliver her first child, Gisela. Her husband did not come to the hospital and was not at home when she returned with the new baby. On his return, her husband told the applicant that he did not want to hear any crying from the new baby. Mr. Badilla did not give the applicant money for milk or clothing, and she was not able to seek help since they had no telephone. The applicant told her husband that she wanted to return to Costa Rica.
[5] Mr. Badilla finally consented to let the applicant return to Costa Rica, and gave her two tickets to depart on July 25, 1979. The applicant and her child returned to her parents in Costa Rica. By this time, she was pregnant and gave birth to her second child on September 2, 1979.
[6] The applicant complained to the police upon her return to Costa Rica, but was told that there was no proof concerning her husband and that he was outside the country. Consequently, the applicant received no help with her situation. She worked as a seamstress and domestic cleaner. Her parents told her that she needed to get her own place.
[7] The applicant's mother received word that Mr. Badilla was returning to Costa Rica. Her parents told her that she should return to live with him. The applicant asked for help from a centre for abused women, and requested help for her children and money for her education. She did not receive any assistance. A month later, the applicant's husband returned to Costa Rica and asked her to forgive him. He found a house for the family. The applicant became pregnant for a third time (in 1985) and her husband returned to his old ways and began abusing her again. The applicant sought help from a domestic abuse group in 1986, since her husband did not respond to a "summons" from the group, no help was forthcoming.
[8] On the birthday of her son Jose Luis, on September 23, 2000, the applicant called the police when her husband arrived at the house in a drunken state and threw a bottle at her. She states that the police did not attend. Mr. Badilla threatened Luis with a knife. After this incident, the applicant's husband asked again for her forgiveness.
[9] The applicant discovered that in February 2001 her third child, Andrea, had been physically and sexually abused by Mr. Badilla. Her son Jose Luis witnessed the incident and confronted his father. The applicant moved the family from their home to a place outside San José between March and May 2001. She sent her daughter to Canada on April 3, 2001. On May 19, 2001, her son Luis left Costa Rica for Canada. The applicant herself arrived in Canada on September 6, 2001, and claimed refugee status the next day.
Board's Decision
[10] The Board reviewed the applicant's story of abuse detailed in her PIF narrative and as summarized above.
[11] The Board stated that at the hearing the issue of state protection was raised. The Board noted that Costa Rica was a democratic country with an independent judiciary and effective police force.
[12] The Board stated that the applicant testified that she had complained in 1979 and 1986, but that she did not have confidence in the Costa Rica justice system and that she was afraid of her husband.
[13] The Board stated that the documentary evidence shows that Costa Rica has made real and sustained efforts to address violence against women, including establishing help for victims and ensuring more effective policing of domestic crimes. The Board also noted that the sexual exploitation of children is a crime punishable by 2-10 years in prison and that there exists a 24-hour hotline dedicated to minors victimized by sexual abuse.
[14] The Board concluded that Costa Rica is making a serious effort to help victims of domestic and sexual violence. The Board stated that the applicant had not met the burden of showing that she could not receive protection from the state as against crimes committed by her husband against her and her children. Consequently, the Board found that the applicant and her children are not Convention refugees.
Issue
[15] Did the Board commit a reviewable error in concluding that the state of Costa Rica would adequately protect the applicant from abuse by her husband?
Standard of Review
[16] A review of the Board's application of the "state protection" jurisprudence to the applicant's case involves a question of mixed fact and law. On questions of mixed fact and law, the standard of review is reasonableness simpliciter: Cihal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 577 (QL); Balogh v. Canada (Minister of Citizenship and Immigration) 2002 FCT 809, [2002] F.C.J. No. 1080 (QL).
Analysis
[17] The applicant submits that the Board should have taken into account the fact that she sought, but did not receive, help in 1979 and 1986. She also notes that her phone calls for assistance went unheeded and submits that she had no expectation of receiving any assistance from the state. Further, the applicant notes that she feared the response of her husband to any complaints. She states that she was a victim of conjugal violence at a time when there were no laws concerning this specifically. The applicant submits that she lived separately from her husband for several years, but despite that separation continued to suffer from his violence.
[18] The Board did not dispute the applicant's story, but rather concluded that she did not meet the definition of Convention refugee because she did not demonstrate that Costa Rica could not adequately protect her from her husband's violence.
[19] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court held that in order to rebut the presumption of state protection, a refugee claimant must provide clear and convincing confirmation of a state's inability to protect. The Court stated at page 726 of its reasons that the presumption of state protection reinforces the underlying rationale of international protection as a surrogate that comes into play where no alternative remains to the claimant.
[20] I am of the view that the Board's decision concerning the ability of the state of Costa Rica to protect the applicants is not unreasonable, and consequently not reviewable.
[21] As stated in the Board's decision, the documentary evidence shows that the Costa Rican government now views violence against women and children as a serious societal problem and has instituted a number of laws and programs designed to protect women in the applicant's position. The evidence states that a 1996 Law Against Domestic Violence instituted measures to aid the victims of domestic violence. The authorities are now specially trained to deal with domestic abuse situations and female victims are given priority to possession of the family home. Moreover, the documentary evidence cited by the Board states that Government efforts to give effect to the law "against domestic violence" is being coordinated at the highest level of government, notably within the Ministry of Security.
[22] The evidence establishes that the applicant complained to the police in 1979, to a domestic violence group in 1986, and called the police in 2000. In 1979, the police stated that they could do nothing because they had no evidence and because the applicant's husband was living in the United States. The applicant's 2000 complaint was made when she called the police during her son's birthday party, but when the police did not come she did not follow up by filing an official complaint. At the hearing, the applicant confirmed that she did not bring any formal complaints between 1996 and 2000. She did not complain to the police in 2001 on discovering the sexual abuse of her daughter. While the Board made no adverse credibility findings, it did find that the applicant had not made official complaints, that she had not divorced her husband, and that she did not suffer abuse during the period May-September 2001, when she lived apart from her husband in San José.
[23] On the whole, I am satisfied that the evidence supports the contention that progress is being made in Costa Rica concerning the domestic abuse of women and children. I find the Board's conclusion, that the applicant did not exhaust the protection of the state of Costa Rica, to be reasonable. The applicant filed no formal complaint after the 1996 legislative reforms and enactment of initiatives designed to combat domestic violence. Consequently, I find that the Board did not err in finding that the applicants had not rebutted the presumption of state protection and in concluding that they are not Convention refugees.
Conclusion
[24] The application for judicial review will be dismissed.
[25] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the June 18, 2002, decision of the Refugee Division of the Immigration and Refugee Board is dismissed.
2. No serious question of general importance will be certified.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3342-02
STYLE OF CAUSE: Ana Isabel Cerdras Solano et al. v. MCI
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: May 27, 2003
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: August 12, 2003
APPEARANCES:
Mr. Jorge Colasurdo FOR APPLICANT
Ms. Annie Van Der Meerschen FOR RESPONDENT
SOLICITORS OF RECORD:
Jorge Colasurdo FOR APPLICANT
2002 - 502 Bélanger St. East
Montréal, Québec H2S 1G4
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Montréal, Québec, H2Z 1X4