CITIZENSHIP AND IMMIGRATION
Status in Canada
Convention Refugees
Judicial review of finding of Refugee Protection Division (RPD) of Immigration and Refugee Board applicants not Convention refugees, persons in need of protection because of alleged availability of state protection in Costa Rica— Principal applicant’s claim based on fear of persecution at hands of Ana Lidiet Toruno and local police in Costa Rica—Principal applicant successful salesman, approached by Toruno to take part in plan to help individuals in Costa Rica access money allegedly donated by philanthropists from U.S.—Principal applicant invited to assist Toruno in identifying, soliciting individuals who would provide money —Plan involved opening bank accounts with persons’ money and money donated from U.S.—Principal applicant identifying, meeting about 2000 interested participants with Toruno—Individuals instructed to show up at meeting site for distribution of bank cards to access new accounts—Toruno failing to show up at meeting as promised—Bank cards not received, distributed to individuals attending meeting— Principal applicant lodging fraud complaint against Toruno with police in another city—Not going to local police because Toruno’s father long‑standing powerful police official— Nothing done—Principal applicant later receiving death threats against wife, children in unsigned letter—After learning complaint lodged, Toruno showing up at principal applicant’s home, threatening to kill family, wife—Principal applicant approaching police numerous times but no protection, help provided—RPD adopting reasoning in previous refugee decision identified by Chairperson as (JG) under Immigration and Refugee Protection Act, s. 159(1)(h) regarding availability of state protection in Costa Rica—At refugee hearing, applicants submitting JG distinguishable because agents of persecution not including police officers but private entities whereas police active agents of persecution in present case—RPD finding documentary evidence showing Costa Rica having well‑ established infrastructure for accessing state protection, investigating failures in system—Also finding principal applicant failing to approach Organismo de Investigacion Judicial (OIJ) and office of Ombudsman in Costa Rica—Despite reasonableness of RPD’s finding applicants not accessing all avenues of state protection, RPD not properly applying test regarding applicants’ efforts to access state protection—Incumbent on RPD to determine whether applicants reasonably ought to have been required to access avenues of redress not explored—Jurisprudential guides not automatically negating Board’s obligation to compare underlying facts of JG with those of case before it—Board providing no explanation why considering factual founda-tions in two cases to be such that JG reasoning applying to applicants’ case—Also not exploring principal applicant’s explanations regarding failure to access other avenues of redress, such as Ombudsman—Case law establishing that where agents of state are source of persecution and where applicant’s credibility not undermined, applicant may successfully rebut presumption of state protection without exhausting every conceivable recourse in country—Evidence showing principal applicant making several attempts to access police protection but police doing nothing to protect family from continued threats—If factual foundations between two cases apparently similar, doubtful Board required to explain reasons for applying JG to second case—But if striking differences in factual foundations, and Board specifically referring to differences, Board required to address them— Board not addressing issue whether Ombudsman’s office having meaningful, timely measures to protect complainant from further police abuse—Board’s finding state protection existed was patently unreasonable—Application allowed— Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 159.
Badilla v. Canada (Minister of Citizenship and Immigration) (IMM‑2738‑04, 2005 FC 535, Layden‑Stevenson J., order dated 20/4/05, 15 pp.)