TA5-15326

IMMIGRATION AND REFUGEE BOARD LA COMMISSION DE L'IMMIGRATION (REFUGEE PROTECTION DIVISION) ET DU STATUT DE RÉFUGIÉ (SECTION DE LA PROTECTION DES RÉFUGIÉS) IN PRIVATE HUIS CLOS TA5-15326 CLAIMANT(S) DEMANDEUR(S) XXXXX XXXXX XXXXX DATE(S) OF HEARING DATE(S) DE L'AUDIENCE January 6, 2006 DATE OF DECISION DATE DE LA DÉCISION June 28, 2006 CORAM CORAM Suparna Ghosh FOR THE CLAIMANT(S) POUR LE(S) DEMANDEUR(S) M. Silcoff Barrister and solicitor REFUGEE PROTECTION OFFICER AGENT DE PROTECTION DES RÉFUGIÉS N/A DESIGNATED REPRESENTATIVE REPRÉSENTANT DÉSIGNÉ N/A MINISTER'S COUNSEL CONSEIL DE LA MINISTRE N/A "You can obtain, within 72 hours, a translation or a copy of these reasons for decision in the other official language by writing to the Editing and Translation Services Directorate of the IRB, 344 Slater Street, 14th floor, Ottawa, Ontario, K1A 0K1 or by sending a request to the following e-mail address: translation.traduction@irb.gc.ca or to facsimile number (613) 947-3213." "Vous pouvez obtenir la traduction ou une copie de ces motifs de décision dans l'autre langue officielle dans les 72 heures, en vous adressant par écrit à la Direction des services de révision et de traduction de la CISR, 344, rue Slater, 14e étage, Ottawa (Ontario) K1A 0K1, par courrier électronique à l'adresse suivante : translation.traduction@cisr.gc.ca ou par télécopieur au (613) 947-3213." The claimant, XXXXX XXXXX XXXXX, is a 40 year-old female from Costa Rica, who claims to be a Convention refugee because of her membership in a particular social group, namely, women abused by their spouse. In addition, she claims to be a person in need of protection from a danger of torture, or risk to life, or cruel and unusual treatment or punishment. Counsel's submissions dated June 14, 2006, and the Chairperson's Gender Guidelines1 have been considered. DETERMINATION The Refugee Protection Division (RPD) has determined that the claimant is not a Convention refugee or a person in need of protection. For reasons which follow, the panel finds there is no objective basis for her claim. ANALYSIS Alleged incidents According to the claimant, she was in a common-law relationship with XXXXX since 1985, and he became abusive after she became pregnant in 1986. His behaviour changed for the better from 1989, but deteriorated again in XXXXX 2003, when she confronted him after witnessing him abusing her 19 year-old daughter from a previous relationship. Soon after, the claimant's spouse allegedly tricked her to go with him on his motorcycle, and caused an accident, whereby she fell and lost consciousness. In her oral evidence she stated that he told her he was going to kill her; however, this information is not contained in her Personal Information Form (PIF) narrative. She was given several opportunities to explain why she had failed to mention this in either her original PIF narrative, or in the amended one,2 that her spouse had actually warned her before the accident that he was going to kill her, but her answers remained vague and unrelated. After the event, the claimant's daughter moved to her sister's house, and the claimant came to Canada in XXXXX 2004. Objective basis The claimant stated that her spouse has a lot of money, is very well-connected with the police, and she was too afraid of him to go to the authorities. There were some additions to the claimant's PIF narrative,3 the most significant one being that, 10 years ago, she learned her spouse was a XXXXX XXXXX XXXXX XXXXX. When asked why she had not included this in her narrative, the claimant said she was afraid someone would tell her spouse. The panel finds her explanation for the omission is incompatible with her written account, which already contains other highly sensitive details. How did the claimant know her spouse was a XXXXX XXXXX XXXXX XXXXX? She said that she heard people call him "XXXXX on the phone, and that he his father a big house; she also heard them talking of "disappearing" people. She did not go the authorities with this information because he threatened her. First, the panel finds her deduction that her spouse was into XXXXX XXXXX to be based on speculation. But more importantly, if she really believed for 10 years that her spouse was a XXXXX XXXXX XXXXX XXXXX, who talked of eliminating people, the knowledge gave her more clout to report his abusive behaviour to the authorities. Neither the documentary evidence, nor the experience of her family with the authorities, supports the claimant's allegations of a lack of state protection. According to documentary evidence,4 Costa Rica is a constitutional democracy governed by a president and uni-cameral Legislative Assembly directly elected in free multiparty elections every four years. Documents indicate there are a number of recourses available in Costa Rica for the assessment, prosecution and granting of remedies resulting from failure of law enforcement agencies to conduct their work. The same document also reveals: As of August, the Ombudsman's office had received 47 reports of police abuse of authority or misconduct. Of these, 34 reports still remain under investigation, I was determined to be legitimate, and 12 were found to be without merit. The document goes on to state that each ministry has an internal disciplinary unit to investigate charges of abuse and corruption against its officers. All new police recruits received human rights awareness as part of their basic training course. This illustrates that if there is police misconduct or abuse, an effective mechanism for lodging complaints exists through various channels regarding violations of their civil and human rights. Specifically, with respect to domestic violence, the document states: Women The government continued to identify domestic violence against women and children as a serious and growing societal problem. The law prohibits domestic violence and provides measures for the protection of domestic violence victims. Criminal penalties range from 10 to 100 days in prison for aggravated threats and up to 35 years in prison for aggravated homicide. Between January and December, the autonomous National Institute for Woman (INAMU) provided assistance to 6,967 women, including counseling and lodging for battered women to INAMU shelters. During that same period, INAMU reported that 35 women and girls were killed in incidents of domestic violence, compared with 20 victims during 2004. INAMU also maintained a domestic abuse hotline. During the year authorities arrested more than 9,300 suspects for domestic violence, representing a 24 percent increase compared with 2004. The Office of the Special Prosecutor for Domestic Violence and Sexual Crimes for the San Jose area investigated 1,118 cases. The Law Against Domestic Violence established a number of victims-assistance mechanisms including basic training for new police personnel on handling domestic violence cases, that required public hospitals to report cases of domestic violence against women, and denied perpetrators possession of the family home in favour of the victim. The public prosecutor, police, and ombudsman had offices dedicated to this problem. The law defines various types of rape and provides sanctions dependent upon a victim's age and other factors such as an assailant's use of violence or position of influence over the victim. The law provides for sanctions from 10 to 18 years in prison for rape and 2 to 10 years in prison for statutory rape. The judiciary effectively enforced rape law and provided due process for both victim and defendant. According to INAMU, the rape law applies in the same manner to spousal rape, although spousal rape cases are much more difficult to prove. INAMU reported that there have been only three convictions for spousal rape. Through September 2004 judicial authorities reported approximately 5,708 cases of sex crimes. Approximately 17 percent of the prison population was serving sentences as a result of convictions related to sex crimes. Adolescent girls between 14 and 16 years of age were particularly vulnerable, and constituted the largest single age group of rape victims. During the year, 91 rape cases were reported by 14 to s6 year old girls, out of 424 cases reported to OIJ Police. Authorities acknowledged that many known rape cases were not investigated due to reluctance by the victim or family of the victim to press charges against perpetrators. In this case, the claimant's own document5 illustrates that, once a complaint was made against the claimant's spouse regarding his abuse of her daughter and his son, steps were taken by the judicial system. "It is ordered that the body of proof is forwarded to the local Attorney General's Office, for the investigation of the existence of a sexual crime by ... against the minor... Also, the body of proof is to be sent to the National Foundation for the Child, based in Guipales, for them to proceed as it may correspond. ... Once the period for the ordered protection measures has expired, and the interested party does not file for an extension of the period, then File the dossier. [Emphasis added] This clearly illustrated that the Law Against Domestic Violence was applied, and protection measures were granted for a period of six months. The claimant said that when her mother went to the Attorney General's office, she was told the file had been closed. However, she was not able to provide any document to substantiate her contention that any effort was made to file for an extension of the protection order, and that the case was closed. According to the documentary evidence, it is stated:6 According to a national survey on violence against women, produced by the University of Costa Rica's (Universidad de Costa Rica, UCR) Women's Studies Research Centre (Centro de Investigación en Estudios de la Mujer, CIEM) in May 2004, 58 per cent of the 908 women interviewed for the survey stated that they had suffered at least once incident of physical or sexual violence in the last 16 years (3). The survey also reported that despite public campaigns, changes in national legislation, and new services available to victims of violence, very few victims lodged formal complaints or made their situation publicly known (CIEM May 2004, 5). Accordingly, regarding the abuse of the claimant by her spouse, the authorities cannot be blamed for inaction, if action is not taken by a victim to approach the authorities. In addition, with respect to XXXXX XXXXX XXXXX XXXXX, which the claimant's spouse was allegedly involved in, the panel has reviewed other Reasons of the RPD, together with the Jurisprudential Guides7 and adopts its reasons with respect to the availability of state protection in Costa Rica. Clearly, the above documents, and the court order against her spouse, refute the claimant's contention that her spouse's police connections would have negated any efforts on her part to complain to the authorities. The panel believes the claimant is very distraught.8 However, the above documents highlight that there is serious and concerted effort in Costa Rica to deal with the issue of domestic violence, abuse and actions of the police. As per Martinez,9 her psychological state does not have relevance with respect to the issue of state protection, and whether the fear is objectively well founded. The protection available does not have to be perfect but adequate, as enunciated in Zalzali.10 A Federal Court of Appeal decision on the issue of state protection endorses the principle that when the state in question is a democratic one, as Costa Rica is, claimants must exhaust all courses of action open to them.11 As stated in Ward,12 the claimant is required to adduce clear and convincing evidence to rebut the presumption that the state had the ability to protect him. The panel finds the presumption of state protection in this case has not been rebutted. Under the circumstances, the panel finds there is no serious possibility of the claimant being persecuted on any of the enumerated Convention grounds if she returns to Costa Rica. The panel also finds the claimant is not a person in need of protection pursuant to sections 97(1)(a) or 97(1)(b) of the Immigration and Refugee Protection Act. CONCLUSION Therefore, the Refugee Protection Division has determined that the claimant is not a Convention refugee or a person in need of protection. "Suparna Ghosh" Suparna Ghosh DATED at Toronto this 28th day of June, 2006. REFUGEE PROTECTION DIVISION / SOCIAL GROUP / DOMESTIC VIOLENCE / GUIDELINES / JUDICIAL SYSTEM / STATE PROTECTION / RELATED CASES / FEMALE / NEGATIVE / COSTA RICA 1 Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution: November 1996, as continued in effect on June 28, 2002, pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act. 2 Exhibit C-1(a). 3 Exhibit C-1(a). 4 Exhibit C-2, item 3, R-1 RPD Information Package, March 2006, item 2.1, U.S. Department of State Report, Country Reports on Human Rights Practices 2005, Costa Rica, March 8, 2006. 5 Exhibit C-1, item 1. 6 Exhibit C-2, item 4, CRI43096.E, November 2004. 7 Exhibit R-1, Jurisprudential Guides, referring to RPD TA2-14980, Schlanger, March 20, 2003. 8 Exhibit C-3. 9 Martinez, Luis Amado Contreras v. M.C.I. (F.C., no. IMM-3662-05), Noël, March 17, 2006; 2006 FC 343. 10 Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (F.C.A.); (1991), 14 Imm. L.R. (2d) 81; 126 N.R. 126(F.C.A.) 11 Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4TH) 532 (F.C.A.) 12 Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689, 103 D.L.R. (4th), 1, 20 IMM.l.r.(2d) 85; --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 7 TA5-15326 TA5-15326