MB7-00112

RAD File / Dossier de la SAR : MB7-00112 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision September 15, 2020 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person who is the subject of the appeal Lobat Sadrehashemi Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Kamal Gill Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. XXXX XXXX XXXX XXXX is a citizen of Colombia and of Costa Rica. [2] Mrs. XXXX: - fled Colombia in XXXX 2007 after witnessing a murder and being threatened by the Revolutionary Armed Force of Colombia (FARC); - relocated in November to an area a further 6 hours away than the original April 2007 Costa Rican destination after witnessing the murder of a friend's relative and being warned not to discuss it; - obtained her Costa Rican citizenship in 2011; - took up a relationship with a physically and psychologically abusive Colombian man allegedly part of a gang and a paramilitary group in January 2015; - fled to Mexico City in XXXX 2015 after receiving a visit from three individuals seeking him out; - was intercepted in Mexico where she was sexually exploited for several months; - was helped by a client who arranged for her to board a boat crossing into the United States on XXXX XXXX XXXX 2015; - learned in October 2015 that a friend of hers had been murdered, received a call on October 15 from her ex-boyfriend threatening to kill her and another from a friend confirming he was in Houston; - made her way towards Canada on XXXX XXXX, 2015, counting on the help of two strangers who took her in and directed her to various social services and a lawyer; [3] The Refugee Protection Division (RPD) found Mrs. XXXX to be a Convention refugee with a well-founded fear of persecution in Costa Rica and Colombia by reason of her membership in the particular social group of women fearing harm from their domestic partners. [4] The Minister of Immigration, Refugees and Citizenship and Minister of Public Safety (Minister) appealed the decision claiming the RPD erred in its determination that it would be unreasonable for the Respondent to seek state protection. [5] The first Refugee Appeal Division (RAD) panel ordered the matter be referred back for re-determination to a differently constituted RPD panel concluding the RPD had erred in its assessment of Mrs. XXXX credibility. [6] The Federal Court granted the application for judicial control of the decision, determining the RAD had breached Mrs. XXXX right to procedural fairness and ordering its return to another RAD panel, in effect this present one, for re-determination. [7] The determinative issue is adequacy of state protection in Costa Rica. DECISION [8] I dismiss the appeal and confirm the RPD decision that the Appellant is a Convention refugee. ANALYSIS [9] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [10] The Minister's arguments are to the effect the RPD erred in that: - it sparsely analyzed state protection, misapplying its test, failing to provide adequate analysis of it, focusing solely on Mrs. XXXX subjective basis for not seeking it as opposed to whether it is objectively available in Costa Rica; [11] For her part, the respondent argues: - the RPD made no such error, finding that in Mrs. XXXX particular situation it would have been unreasonable to attempt to get state protection; - documentary evidence on Costa Rica does not demonstrate adequate state protection for victims of domestic violence with evidence suggesting inroads insufficient to establish adequate protection availability; [12] State protection is presumed to exist. Except where a state admits its inability to protect its citizens, the burden rests on the appellant to show clear and convincing evidence that state protection would not be reasonably forthcoming. In the present situation this could be achieved by showing similarly situated individuals were let down by the state protection arrangements or by demonstrating the occurrence of past personal incidents in which state protection did not materialize.2 [13] The RPD concluded Mrs. XXXX was justified in not contacting the police. It based its conclusion on Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution. The appellant accepts the RPD's conclusion as it pertains to the subjective basis for the fear but considers it failed to address the objective availability of state protection. [14] Residing in Costa Rica since 2007, Mrs. XXXX had firsthand experience with its police force's functioning. When she witnessed the murder of a friend's uncle and was threatened, she left the region to an area 6 hours away. At that time, no efforts were undertaken to inform the police given the feared consequences for doing so. Eight years later she is the victim of domestic abuse at the hands of a particularly violent spouse with alleged ties to paramilitary and organized crime. In addition to news stories heard, she testified knowing a friend who was equally victim of domestic abuse and saw that police efforts undertaken were of little use. [15] Keeping in mind her own past experience and that of which she had firsthand knowledge, her failure to report incidents to the police are credibly explained. Furthermore, actions subsequently taken by her spouse in pursuing her in the United States are indicative of the correctness of her fears. Both the appellant and respondent mentioned objective information contained in both the current and National Documentation Packages in place at the time3 which speaks of efforts undertaken to address domestic violence. [16] It highlights inroads having been made to address the issue. Appellant clearly underscores the statistical results of these actions, paining to explain how there are so few cases proceeded with compared to the number opened. Mrs. XXXX explanations for not having approached the police are credible and the objective evidence does not speak of veritable availability of state protection although efforts have been undertaken to put such a system in place. [17] Notwithstanding the particulars of her situation and the fact she personally knew someone who had done so with little results, requiring Mrs. XXXX to seek out police protection to demonstrate its inefficiency is inappropriate. [18] The RPD found Mrs. XXXX testimony to be credible and considered her personal situation, in light of the Chairperson's Guidelines, a sound basis for explaining her actions. [19] Mrs. XXXX personal situation is qualified by the respondent as exceptional. She was aware of her spouse's criminal background and paramilitary skills, was witness to his past violent behaviour and suspected he was sought out by other questionable individuals. Past country condition experience along with knowledge of other acquaintances' treatment when making use of state protection was sufficient to convince Mrs. XXXX of the risks she would be confronted by if she chose to take a similar path. [20] In light of the foregoing, I consider correct the RPD's decision that Mrs. XXXX has a well-founded fear of persecution in Costa Rica and Colombia and that in her particular situation state protection was not available. CONCLUSION [21] I dismiss the appeal and confirm the RPD decision that the Appellant is a Convention refugee. (signed) Me Richard Sheitoyan Richard Sheitoyan September 15, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 3 Archive - National Documentation Package, Costa Rica, 13 May 2016, tab 5.3: Costa Rica. Social Institutions and Gender Index 2014. Organisation for Economic Co-operation and Development; and National Documentation Package, Costa Rica, 31 October 2019, tab 5.3: ?Costa Rica. Social Institutions and Gender Index 2019. Organisation for Economic Co-operation and Development. 7 December 2018. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-00112 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français