Decision TA0-15870 (Revoked Jurisprudential Guide (2011), In Private)

Claimant(s): XXXXXXXXXXXXXX
Date(s) of Hearing: 12 November 2002, 27 March 2003
Place of Hearing: Toronto
Date of Decision: 31 March 2003 (amended April 9, 2003, amended May 27, 2003)
CORAM: E.S. Schlanger
For The Claimant(s): Pamila Bhardwaj Pohani
Barrister and Solicitor
Refugee Protection Officer: L. Sokoloff (12 November 2002)
Designated Representative: n/a
Minister's Counsel: n/a

XXXXXXXXXXXXXXXXX alleges that he is a 25-year-old citizen¹ of Costa Rica. He claims to have a well-founded fear of persecution at the hands of the police and homophobic members of society at large because of his membership in a particular social group, that being homosexuals. He alleges that state protection would not be available to him if he returned to Costa Rica.

The claimant alleged that from XXXXX 1999 until XXXXXX 2000, he experienced various assaults from policemen because of his sexual orientation. He alleged that he had been beaten, verbally abused, injured, detained for three days, and robbed by them. He alleged that on two occasions he was fired from his work because of his sexual orientation. The last time that he was fired was in 1999. He alleged that on XXXXXXXXX, 2000, he left Costa Rica for Canada where he made his refugee claim.

The determinative issue in this claim is whether state protection would be forthcoming. In making this assessment, the panel considered the claimant's oral and written testimony, all the submitted evidence, and counsel's submissions. The panel closely perused the documentary evidence pertaining to sexual minorities, the police, mechanisms for lodging complaints of police abuse, recourses for victims of violence and discrimination, and the level of democracy in Costa Rica.

The extensive documentary evidence indicates that there is a thriving gay community in Costa Rica, and that the community is not the target of systemic persecution by the authorities or by society at large. Gay-oriented resorts, businesses, and organizations continue to exist in Costa Rica, and there are a number of gay-oriented Web sites including The Gay and Lesbian Guide to Costa Rica, which compiles information on gay organizations, including personal accounts of life and levels of tolerance or incidents in the country, gay-oriented businesses, publications, discussion groups and bulletin boards.² There are many homosexual organizations, two magazines ¾ Gente 10 and Del Mismo Sexo ¾, and a community paper called Gayness.³The report contains a link and references to the Asociación Creativa de Empresarios (ACES), on which it states: "The LesBiGay Business Group ACES has ongoing projects to promote Costa Rica as the wonderful gay/lesbian tourist destination that it is, as well as projects that support the well-being of the local gay communities in Costa Rica."⁴ A Web site called Gaymocracia is dedicated to information on the political and human rights situation of members of the lesbian, bisexual, gay, and transgender community in Costa Rica.⁵

The Director of the Agua Buena Human Rights Association in San José, Richard Stern, a clinical psychologist and former leader of the now defunct gay organization Triángulo Rosa, stated that he was unaware of any cases involving gay men being harassed, assaulted, raped or extorted to pay a bribe by police.⁶ A further April 2002 check of various media sources and organizations in Costa Rica and abroad could also not find such evidence among reports published between 2000 and 2002.⁷ Mr. Stern further stated that Costa Rica has a "live and let live" attitude towards gays and that discrimination is not a government or police policy. He also spoke of the difficulties that gay adolescents who are dependent on their families, the school, and the church experience until they are able to accept their sexual identity.⁸ He stated that in 1997 the Supreme Court outlawed bar raids and ordered that the government provide the new AIDS medication to 500 people, most of them gay men.⁹ He also recognizes the existing paradox between the legally protected and thriving lives of gays in Costa Rica supported by peer culture but condemned and vilified by a national culture.¹⁰

The panel noted that in 1998, the Archbishop of San José, a local priest and the President of the country have, on separate occasions, spoken against gay festivals and gay tourism in Costa Rica.¹¹ However, this anti-gay rhetoric prompted formal complaints before the Supreme Court against the Archbishop and the priest and before the Human Rights Ombudsman against the President by a group of gay organizations and non-gay supporters.¹² Furthermore, the Ombudswomen's Office criticized the President and the Archbishop for having violated laws when they made these anti-gay remarks.¹³

A sign of growing public acceptance of gays is that presidential candidates, Antonio de Santi and Miguel Corrales, have both been interviewed by the gay press and have each indicated that they uphold a position of balance and respect toward the gay community.¹⁴

The Ombudsman of Costa Rica includes persons with a "distinct sexual preference" as one of the various vulnerable groups that face or could face a violation of their rights.¹⁵ The Ombudsman reports that its special protection directorate, with a team of eight lawyers, assists vulnerable groups to achieve full enjoyment of their rights before state institutions and with society.¹⁶ The latest report of this directorate indicates that a complaint regarding discriminatory attitudes of local government officials was favourably resolved by the Office of the Ombudsman.¹⁷ A complaint raised in 1998 by the Movimiento Gay-Lésbico 5 de Abril regarding a homophobic statement made by the President of Costa Rica, prompted the Ombudsman to issue a recommendation to the President asking him to act according to his constitutional mandate, and ensure that all state institutions practice tolerance towards alternative lifestyles and respect the fundamental rights of all persons without exception.¹⁸ In a 1999 complaint of police abuse in the form of arbitrary detention, as well as verbal and physical abuse in Alajuela, the Ombudsman issued a recommendation to the Public Ministry asking for disciplinary action against the police officers involved in the abuse, the addition of sensitivity training at the National School of Police, and a special effort involving the Alajuela police command and other institutions under the Ministry's jurisdiction for more inclusive practices.¹⁹

In addition to the Ombudsman, the Constitutional Court can help protect rights of sexual minorities if they are threatened.²⁰ There are also the following non-government organizations involved in assisting in these endeavours: Centre for Research and Promotion of Human Rights in Central America (CIPAC), Agua Buena, Movimiento 5 de Abril and the Latin American Institute of Health Education and Prevention.²¹ The years of repression against sexual minorities from the late 1980s to the early 1990s motivated many owners of bars that catered to the gay and lesbian population to organize for political action against repression of their clientele, and that is how many of the groups fighting for the rights of sexual minorities emerged.²²

With regards to the police in general, complaints of police abuse of authority or misconduct have declined as the government continued implementation of the 1994 Police Code and the Law for Strengthening the Civilian Police which took effect on March 23, 2001.²³ Furthermore, if police abuse or misconduct occurs, an effective mechanism for lodging complaints exists through the Ombudsman's Office which serves as a recourse to citizens who have complaints about violations of their civil and human rights and about deficiencies in public and private infrastructure.²⁴ It investigates complaints and, when appropriate, initiates suits against officials.²⁵ The Ombudsman is elected by the Legislative Assembly for a four-year renewable term.²⁶ His office is part of the legislative branch ensuring a high degree of independence from the executive branch.²⁷ The law provides for a functional, administrative, and judicial independence of the Ombudsman's Office.²⁸

According to correspondence from the Executive Director²⁹ of the Central American Human Rights Research and Promotion Centre (CIPAC) of San José, although the Ombudsman's Office has a high degree of credibility with Costa Ricans, their decisions are not binding, as it is the state that decides whether their recommendations are accepted. The panel finds that this would not detract from the efficacy of the Ombudsman's work, as it is their role to investigate and refer serious cases of abuse to the Public Prosecutor. There is no persuasive evidence before the panel that the Public Prosecutor does not prosecute cases of police misconduct or abuse of authority concerning complaints from sexual minorities. The panel further notes that, according to the International Lesbian and Gay Association's "World Legal Survey",³⁰ decisions made by the Ombudsman are legally binding Triángulo Rosa (press release, March 1996).

Furthermore, the previously cited Web site Gaymocracia provides the following information on recourses³¹ available to sexual minorities who have been the victims of various forms of discrimination and violence: 1) a person who has been extorted or blackmailed by police officers can lodge a complaint with the Ministry of Security (Ministerio de Seguridad); 2) a person detained without a warrant issued by a judge can submit a writ of habeas corpus to the Constitutional Court, in fact any person who considers that he/she was unjustly detained or that his/her physical integrity has been threatened may present a writ of habeas corpus against the authority who committed this violation; 3) a person who has been discriminated in the workplace can file a complaint with The Ministry of Labour; 4) a person who has been denied health care services or medications may lodge a recourse of amparo (recurso de amparo) before the Constitutional Court; 5) a person whose right other than those covered by the writ of habeas corpus, have been violated or threatened by a person, an authority or an institution may also lodge a recourse of amparo before the Constitutional Court; and 6) a person subjected to physical violence must file a complaint with the Judicial Investigative Police (OIJ). The panel therefore finds that the Costa Rican government is making serious efforts to protect all its citizens including sexual minorities.

In the case at bar, the claimant stated that he did not report the incidents of police abuse that he experienced to any state authorities because 1) Triángulo Rosa members would warn gays at gatherings he attended that they should not trust the police, and 2) consequently he preferred to keep the matter to himself in order to protect himself. He feared that if he filed a complaint against policemen and an investigation was undertaken, he would suffer police reprisals. Given the various remedies available to deal with police abuse or misconduct, the panel did not find the claimant's reasons for his lack of effort to seek state protection to be persuasive, and finds that the claimant ought to have pursued the options open to him, by reporting the police misconduct and abuse to the Ombudsman, the Ministry of Security or the Constitutional Court.

Costa Rica³² is a longstanding, stable, constitutional democracy, with an independent judiciary providing effective means to deal with individual cases of abuse. The more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him.³³ There is no persuasive evidence that indicates that if the claimant had pursued the available recourses through the Ministry of Security, the Courts or the Ombudsman, with respect to the incidents which he alleged caused him to have a well-founded fear of persecution, that the state would have been unable or unwilling to protect him.

The panel also considered the claimant's allegation of persecution based on having been fired twice in 1999 because of his sexual orientation. However, the panel notes that he was employed continuously at the computer department of San José's XXXXX XXXXXXXX from XXXXXX 1999 until XXXXXX 2000 when he came to Canada. Question 18 of his Personal Information Form³⁴ (PIF) also shows a steady pattern of employment since 1992. There is no persuasive evidence that the claimant suffered employment discrimination amounting to persecution. Further, if he had been discriminated at work because of his sexual orientation, or fired because of it, he had the option of pursuing the matter through a complaint to the Labour Board.

The panel also considered the claimant's allegation of fearing the possible discrimination and physical abuse of homophobic society at large. However, the claimant did not present persuasive evidence pertaining to himself to suggest that he experienced discrimination amounting to persecution at the hands of society. The panel finds that homosexuals in Costa Rica are not the target of systemic persecution by society, and that consequently the claimant's fear of society is not objectively well-founded.

The panel notes that the claimant has been sponsored as a member of the family class by his same sex common-law partner, XXXXXXXXXXXXXXXXXXXXXX. However, family reunification is not within the mandate of the Refugee Protection Division (RPD).

Given the finding of available state protection for the claimant, the panel finds that he is not a Convention refugee and that he is not a person in need of protection pursuant to sections 97(1)(a) and (b) of the Immigration and Refugee Protection Act (IRPA).

Accordingly, the panel rejects the claim of XXXXXXXXXXXXXXXXXX for refugee protection.

E.S. Schlanger
DATED at Toronto this 31^th day of March, 2003.

Endnotes

1. Exhibit M-1, a certified true copy of the claimant's passport was submitted by Immigration.
2. Exhibit R-4, item 3, pg. 189, Response to Information Request CRI32520.E, August 10, 1999, DIRB, IRB.
3. Ibid.
4. Ibid.
5. Exhibit R-4, item 3, pg. 186, Response to Information Request CRI37558.E, 31 July 2001, DIRB, IRB.
6. Exhibit R-4, item 3, pg. 191, Response to Information Request CRI33829.E, 29 February 2000, DIRB, IRB.
7. Exhibit R-4, item 3, pg. 177, Response to Information Request CRI38707.E, 26 April 2002, DIRB, IRB.
8. Supra, footnote 6.
9. Supra, footnote 6, Francisco Madrigal of CIPAC also refers to bar raids in Costa Rica being "unconstitutional".
10. Exhibit R-4, item 3, pgs. 184-185, "Costa Rica Political Progress Cultural Lag", Gender Watch, The Gay and Lesbian Review, August 31, 2001, attachment to Response to Information Request CRI 38683.E, June 7, 2002.
11. Supra, footnote 2.
12. Ibid.
13. Ibid.
14. Supra, footnote 10.
15. Exhibit R-4, item 3, pg. 180, Response to Information Request CRI38683.E, 7 June 2002, DIRB, IRB.
16. Ibid.
17. Ibid.
18. Ibid.
19. Ibid.
20. Ibid.
21. Ibid.
22. Ibid.
23. Exhibit R-4, item 2.1, U.S. Department of State, Country Reports on Human Rights Practices, Costa Rica, 2001, March 4, 2002.
24. Ibid.
25. Ibid.
26. Ibid.
27. Ibid.
28. Ibid.
29. Exhibit R-4, item 3, pg. 166, Response to Information Request CRI40270.E, October 11, 2002, DIRB, IRB.
30. Exhibit R-4, item 4, pg. 194.
31. Exhibit R-4, item 3, p. 166, Response to Information Request CRI40017.E, 10 September 2002, DIRB, IRB.
32. Supra, footnote 23.
33. Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4^th) 532 (F.C.A.).
34. Exhibit C-1.