Decision MA1-10302 (Persuasive Decision, In Private)

Claimant(s): XXXXXXXXXXXXXX
Date(s) of Hearing: August 5, 2002
Place of Hearing: Montreal
Date of Decision: August 27, 2002
Panel: M^e Gilles Éthier
Claimant's Counsel: M^e Sabine Venturelli
Refugee Protection Officer: Myriam De Bailleul
Designated representative: n/a
Minister's Counsel: n/a

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The claimant, Ms. XXXXXXXXXXXXXX, is a 28-year-old citizen of Costa Rica. She claims refugee status on the ground that she risks being killed in her country by a young hoodlum whom she saw commit a murder. She alleges that she belongs to the social group of "women who are victims of threats and violence in Costa Rica," and that, by reason of her membership in this particular group, she risks persecution in her country.

The claimant also claims to be a person in need of protection because of the young hoodlum's death threats against her.

ALLEGED FACTS

The claimant worked in a small XXXX in Cartago. She often finished work very late because she had to close the cash. Around 11:30 p.m. on XXXX, 2001, she was waiting alone at the bus stop, which was two blocks away from the XXXX, for the last bus to take her home.

She saw two young men whom she recognized because they sometimes begged her for stale bread. They had a bad reputation in the neighbourhood, and she described them as "drug addicts." One was named XXXXXX and the other XXXXXX.

Seeing that they seemed to be arguing, the claimant tried to go unnoticed, moving away a few dozen metres. Suddenly, she heard a gunshot. Turning around, she saw XXXXXX fall to the ground and XXXXXX run away.

The claimant went home in a taxi and related to her parents what had happened. They told her not to tell anyone because of the bad reputation of XXXXXX and his gang of hoodlums.

Two weeks later, XXXXXX came into the XXXX and threatened her, telling her to keep quiet if she wanted to ensure she and her family stayed alive.

She stated that she had no further direct contact with XXXXXX, except that he would sometimes pass in front of the XXXXXX. However, in August 2001 she started receiving anonymous threats over the telephone and in letters, ordering her to keep quiet if she did not want her two children to be killed.

The claimant obtained a passport on XXXXX, 2001 and fled Costa Rica on XXXXX, 2001. She arrived in Canada that same day but did not ask for international protection until September 17, 2001.

The claimant stated that she never filed a complaint with the Costarican police because she was afraid that XXXXXX would retaliate. She stated that she could not have lived safely in another part of Costa Rica because it is a very small country and, since she was the sole supporter of her two children and her parents, she did not have the means to leave her house in Cartago and then rent a place in San Juan or elsewhere.

ISSUES TO BE RESOLVED

Are the claimant's statements credible?

Does the claimant belong to a "particular social group" within the meaning given by the Supreme Court of Canada in Ward?¹ Does she risk persecution by reason of her affiliation with this group?

If not, does she meet all of the criteria set out in section 97(1)² in order to be recognized as a person in need of protection?

ANALYSIS

1- Identity

The claimant satisfactorily established her identity by submitting her passport and national identity card as evidence.

2- Credibility

The claimant testified convincingly: she gave precise answers and her written narrative did not contradict her oral testimony.

However, at first glance, it did not seem plausible that the young hoodlum, XXXXXX, would have waited two weeks before warning the claimant against any attempt to compromise or expose him. Was it not in the murderer's best interest to quickly ensure the silence of the only eyewitness to his crime? Similarly, it does not seem very logical to believe that he would have waited five months before threatening her again, as there does not seem to have been any reason for a sudden series of threats after such a long time. And this series of anonymous calls and letters on an almost daily basis, between XXXX, 2001 and the date the claimant left the country on XXXXX, 2001 is like a scene from an operetta because this uninterrupted flood of threats, strangely enough, is in stark contrast to the earlier silence of the persecuting agent.

However, taking into consideration the claimant's obvious sincerity, there is reason to give her the benefit of the doubt regarding the alleged facts, despite reservations based on what seem to be exaggerations about the threats.

The panel therefore accepts that the claimant witnessed a murder; that she said nothing to the police and that her life was threatened by a young hoodlum from Cartago, who would certainly not want to go to prison.

3- Membership in a social group

Through her lawyer, the claimant submitted that she was a member of the particular social group of "women who are victims of threats and violence in Costa Rica" and that she risked persecution by reason of this membership.

It is true that the documentary evidence produced indicates to what point violence against women, especially domestic violence, constitutes a serious problem in Costa Rica, a country that is, moreover, highly renowned for its democratic values and the genuine efforts of the authorities and institutions in respecting human rights. Documents A-4 and A-12 provide ample evidence of this.

Nevertheless, even though Costa Rica's situation illustrates the vulnerability of women in a society that is still very chauvinistic, this case has nothing in common with a typical case of domestic violence. Here, the claimant is in danger because a murderer does not want to be betrayed. She is personally targeted because of her actions, because she witnessed a crime being committed.

In considering everything from the persecutor's point of view, one has to conclude that the claimant was targeted simply because she was an unwanted witness, and not because she belonged to a group.

Claiming that the claimant is affiliated with the group of women who are victims of threats and violence in Costa Rica amounts to saying that she risks persecution because she is a victim of persecution, whereas, in Canadian law, it is now well established that the persecution must be based on the affiliation with a social group, and not that the social group must be made up of persecuted persons. It is the membership in the social group that must give rise to the persecution.

Therefore, according to all the evidence, the claimant does not risk being persecuted based on the fact that she is a member of a group, because her problem is too individual in nature.

She is afraid of revenge or criminal pressure directed at her, but not persecution within the meaning of the definition of a refugee.

4- Protection

Even if there existed a nexus with one of the five grounds for persecution, the claimant could not qualify as a refugee because she did not seek the protection that is assumed to have been available in her country, since she never made a complaint to the authorities.

She alleged that she did not do this because she was afraid of XXXXXX, who, she said, was part of the mafia. When she was asked to provide more details about this, she stated that XXXXXX's gang of hoodlums included three girls and five guys.

The panel considers that this is not a mafia and that a gang of delinquent youths such as this did not likely constitute an insurmountable problem for the police in her country.

5- Risk to life

All of the evidence presented by the claimant leads to the conclusion that a number of the requirements of section 97(1)(b) defining a person in need of protection applied in her case, except for the major requirement regarding the need to be subject to a risk to her life in every part of her country, according to subparagraph (ii) of section 97(1)(b) and, as noted above, the fact that she did not seek the protection of her country.

The claimant was personally issued a death threat. Because of this threat, she does not want to return to her country. Other people from her country are not usually faced with such a threat, and it is certainly not the result of lawful sanctions or deficiencies in health or medical care.

However, considering the person who issued the death threat against the claimant, it is very difficult to believe that this threat would exist everywhere in that country. In fact, according to the evidence, this individual is a young drug-using hoodlum from a Cartago neighbourhood who begs for bread, hassles the local people and enjoys scaring young schoolgirls, according to what the claimant said. Of course, he allegedly killed one of his friends, but can we believe that he would be capable of following the claimant all over Costa Rica? The evidence presented is far from being reasonably convincing in this respect, especially as the claimant herself never tried to get protection from the police in her country.

The claimant pointed out that she needed to work at the XXXXXX as the sole supporter of her family, that it would have been difficult to find a well-paying job elsewhere, considering the economic conditions of the country, and that she did not have the financial means to give up her house in Cartago and find rental accommodation in a big city or elsewhere in Costa Rica.

Apart from the fact that she nevertheless undertook an expensive trip to Canada, this argument is not relevant in this case because, with regard to subparagraph (ii) of section 97(1)(b), the real test is to determine whether the claimant faces a risk to her life everywhere in her country. If she does not establish that this is the case, and it turns out that she is not reasonably subject to this risk everywhere in Costa Rica, the claimant will have failed in her claim. On this point, the Act places emphasis on facing a risk to life in every part of that country, and not on whether it was reasonably convenient and safe to seek protection elsewhere in that country.

The evidence does not therefore allow us to conclude that the claimant has discharged the burden of proof on her to establish all the facts required to be recognized as a person in need of protection under section 97(1)(b).

6- Torture

The above determination is strengthened by the fact that nothing in the evidence allows us to conclude that the claimant would risk torture in Costa Rica, within the meaning of Article 1 of the Convention Against Torture.

DETERMINATION

For these reasons, the panel determines that the claimant, Ms. XXXXXXXXXXXXXX, is not a "Convention refugee" or a "person in need of protection."

M^eGilles Éthier

Endnotes

1. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, pp. 725-726.
2. Immigration and Refugee Protection Act, S.C. (2001), ch. 27, section 97 reads in part as follows:

   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.