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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 applicants claim based on fear of persecution at hands of Ana Lidiet Toruno and local police in Costa RicaPrincipal 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 TorunoIndividuals instructed to show up at meeting site for distribution of bank cards to access new accountsToruno failing to show up at meeting as promisedBank cards not received, distributed to individuals attending meeting Principal applicant lodging fraud complaint against Toruno with police in another cityNot going to local police because Torunos father long‑standing powerful police official Nothing donePrincipal applicant later receiving death threats against wife, children in unsigned letterAfter learning complaint lodged, Toruno showing up at principal applicants home, threatening to kill family, wifePrincipal applicant approaching police numerous times but no protection, help providedRPD 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 RicaAt 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 caseRPD finding documentary evidence showing Costa Rica having well‑ established infrastructure for accessing state protection, investigating failures in systemAlso finding principal applicant failing to approach Organismo de Investigacion Judicial (OIJ) and office of Ombudsman in Costa RicaDespite reasonableness of RPDs finding applicants not accessing all avenues of state protection, RPD not properly applying test regarding applicants efforts to access state protectionIncumbent on RPD to determine whether applicants reasonably ought to have been required to access avenues of redress not exploredJurisprudential guides not automatically negating Boards obligation to compare underlying facts of JG with those of case before itBoard providing  no  explanation why considering factual founda-tions in two cases to be such that JG reasoning applying to applicants caseAlso not exploring principal applicants explanations regarding failure to access other avenues of redress, such as OmbudsmanCase law establishing that where agents of state are source of persecution and where applicants credibility not undermined, applicant may successfully rebut presumption of state protection without exhausting every conceivable recourse in countryEvidence showing  principal  applicant making several attempts to access police protection but police doing nothing to protect family from continued threatsIf factual foundations between two cases apparently similar, doubtful Board required to explain reasons for applying JG to second caseBut if striking differences in factual foundations, and Board specifically referring to differences, Board required to address them Board not addressing issue whether Ombudsmans office having meaningful, timely measures to protect complainant from further police abuseBoards finding state protection existed was patently unreasonableApplication 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.)

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