JORGE ALBERTO MARTINEZ MELENDEZ LILLIAM LUCIA BLANCO ARAYA ADRIAN ALBERTO MARTINEZ BLANCO ROY ESTEBAN MARTINEZ BLANCO CINDY STEPHANIE MARTINEZ BLANCO through their litigation guardian LILLIAM LUCIA BLANCO ARAYA Applicants - v. -, 2003 FCT 346

DATE: 20030326 IMM-4206-01 Neutral citation: 2003 FCT 346 BETWEEN: JORGE ALBERTO MARTINEZ MELENDEZ LILLIAM LUCIA BLANCO ARAYA ADRIAN ALBERTO MARTINEZ BLANCO ROY ESTEBAN MARTINEZ BLANCO CINDY STEPHANIE MARTINEZ BLANCO through their litigation guardian LILLIAM LUCIA BLANCO ARAYA Applicants - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR ORDER BLANCHARD J. [ 1 ] The applicants are Jorge Martinez Melendez, his wife, Lilliam Lucia Blanco Araya, and their three children.

They seek judicial review of the August 3, 2001 decision of the Immigration and Refugee Board (the "Board") in which it held that they were not Convention refugees. Facts [ 2 ] The principal applicant, Jorge Martinez Melendez (the "applicant"), claims that he has a well-founded fear of persecution as a consequence of being the subject of a politically-motivated prosecution for embezzlement in his native Costa Rica. [ 3 ] The applicant is a lawyer who became involved with the Partido Liberacion National ("PLN"), a national political party in Costa Rica.

He participated in the electoral campaign of 1993-1994 in support of the PLN. The PLN won the elections and assumed power in May 1994. [ 4 ] The applicant became an advisor to Vice President Grynspan, whose portfolio included housing and human settlement. He states that he worked as a consultant after 1994 and was paid by non-governmental companies. [ 5 ] In 1995, the applicant represented the Vice President in managing a new social program, controlled by the Social Coordination Committee (the "Committee") of the Institution of National Housing.

The object of the program was to help poor residents clear their titles to residential land by paying off their debts. In 1995, the Committee made a unanimous decision to authorize payments from the Social Compensation Fund to non-governmental organizations. As one of the seven committee members, the applicant voted in favour of this decision. [ 6 ] In September 1997, the applicant quit his duties as a consultant in order to dedicate himself to another national election. The PLN lost the elections and the new government took power in May 1998. [ 7 ] The new government investigated Committee spending.

It raised allegations that high ranking leaders of the previous government, including Vice President Grynspan and President Figueres, had improperly used Committee funds for the benefit of the PLN's electoral campaign. [ 8 ] On August 22, 1998, the applicant's three brothers were detained and made to sign declarations against the applicant that implicated him in the affair. The applicant presented himself to the office of the Attorney General and was also detained.

He states that he was pressured to provide information implicating the president and vice president, which he refused to do. [ 9 ] The applicant was detained for six months without bail in the Penal Institution of San Sebastian, where he withstood adverse living conditions. His health suffered. The applicant made at least two habeas corpus applications to the Supreme Court, but they were unsuccessful. The applicant was not charged with any offences during his detention.

The applicant states that, during this time, members of the PLN attempted to approach the applicant in jail to tell him to keep quiet concerning confidential information about the

PLN regime and party. [ 10 ] In January 1999, the applicant finally provided the information about the PLN's electoral campaign, which was then used by the regime against the former President and Vice President. On February 19, 1999, the applicant was released on bail. The applicant states that the PLN leadership entered into an agreement with the government to make him the scapegoat for the political scandal. [ 11 ] On November 26, 1999, the applicant travelled to Canada with his family, fearing for his life.

He requested Convention refugee status on arrival on November 27, 1999. [ 12 ] The Costa Rican authorities have since his departure from Costa Rica laid criminal charges against the applicant. The applicant believes that the charges are politically motivated and designed to discredit his refugee claim in Canada. He states that he will face persecution and torture if he returns to Costa Rica.

The Board's Decision [ 13 ] In determining the applicant's refugee claim, the Board considered whether the Costa Rican government's pursuit of the applicant was a legitimate criminal prosecution or a politically motivated campaign that amounted to persecution. The Board also considered whether any extra-legal threats against the applicant amounted to "a serious possibility of persecution". [ 14 ] Following the decision of the Federal Court of Appeal in Minister of Employment and Immigration v.

Satiacum , the Board stated that "there is a presumption that Costa Rica's proceedings against the applicant will be politically and otherwise neutral, fair, and meet minimum international standards". This presumption is subject to rebuttal by the claimant, on a balance of probabilities, by establishing "exceptional circumstances". [ 15 ] The Board stated that the presumption is significant because "properly constituted tribunals in the place where the events are alleged to have taken place are much better situated to receive and consider the relevant evidence".

However, the Board stated that it must consider "whether or not the judicial process to which an accused might be subjected is properly constituted" and whether "there is evidence that shows that the accused will be subjected to disproportionate punishment for political, religious or other convention-related reasons". [ 16 ] The Board noted that the applicant stated that he is innocent of the allegations against him and that he was being made a scapegoat by the former political establishment.

As well, the Board noted that the applicant asserted that the prosecutors were politically motivated and that the courts were not independent. [ 17 ] The applicant called a number of witnesses at the hearing. Mr. Duarte, an acquaintance of the applicant and the prison chaplain at the Penal Institution of San Sebastian, testified about crowded and uncivilized living conditions at the prison. This testimony was accepted by the Board. [ 18 ] The applicant's brother, José Martinez, a lawyer, testified about his involvement in representing his brother.

The Board accepted his evidence, but stated that this was "subject to the recognition that his situation was not one that lent itself to detached objectivity" given his relationship to the applicant and three brothers involved in the affair. [ 19 ] Mr. Madriz, a lawyer and former university professor, testified about aspects of the Costa Rican legal system.

However, because he was counsel for the applicant, the Board assigned limited weight to parts of his evidence, namely "inferences ... drawn from events, with respect to motivation of other parties or whether their actions are 'fair'". [ 20 ] In considering whether the Costa Rican judicial process is independent and neutral, the Board noted that it did not have the benefit of seeing the submissions, decisions and reasons from the habeas corpus applications. The applicant's brother, José Martinez, testified that this material was available, but it was not produced.

Although the Board did not draw a negative inference, it took into account the absence of this evidence in considering the issue of judicial neutrality. [ 21 ] After considering material relating to the structure and functioning of the judiciary, the Board concluded that Costa Rica has an independent judiciary by international standards.

The Board noted that the United States Department of State describes Costa Rica as "generally effective", with a constitutionally-independent judiciary and a Supreme Court that supervises the lower tribunals. [ 22 ] The Board rejected the applicant's suggestions that the appointment of judges for eight-year terms compromised the independence of the judiciary.

The eight-year term was not considered to be ideal, although not inherently flawed, given that the non- renewal of a judicial term was subject to a two-thirds vote of the National Assembly. [ 23 ] The Board considered that habeas corpus applications are taken directly to the Constitutional Chamber of the Supreme Court.

The Board also noted that Duarte's recollection of a habeas corpus success rate of 50% in Costa Rica was consistent with that of an independent judiciary. [ 24 ] The Board considered the evidence of José Martinez that Judge Villalobos, the judge who authorized the applicant's preventative detention, had stated that there was no legal basis for the detainment, but that "he did not want to put his job at risk". The Board noted that "Judge Villalobos' comments, if true, are truly disturbing, as they suggest a complete abdication of responsibility".

However, the Board went on to note that the fact that habeas corpus applications proceed directly to the Constitutional Chamber took the matter out of Judge Villalobos' hands. In absence of any documentation regarding the habeas corpus applications - available to the claimant but not produced in evidence - the Board declined to impugn the magistrates' decisions. (Judges sitting on the Supreme Court are referred to as magistrates.) [ 25 ] The applicant also stated that he had met with politicians while in detention without counsel present despite his requests for representation.

The Board held that, while this may potentially constitute violation of an important right, it did not find that the applicant was prejudiced, since he had made no admissions of wrongdoing. [ 26 ] José Martinez testified that there was a five-month delay before the decision on the first habeas corpus application was rendered, much longer than the 48-hour requirement. The Board also considered this to be a potentially serious denial of a right, however, because of the absence of habeas corpus documentation the Board declined to draw any conclusions from this delay.

The Board also noted that the application was denied in any event. [ 27 ] The applicant also complained of intimidation by the public prosecutor, who had told him that if he provided information implicating senior politicians he would be released. José Martinez also testified to hearing this comment. The Board did not consider this to be an indicator of a flawed judicial system, since prosecutors are known to be partial and to seek to verbally intimidate interviewees.

In addition, the Board noted that the ultimate decision regarding the applicant's detention rested with the Constitutional Chamber of the Supreme Court rather than the prosecutor. Thus, any overzealousness could be corrected by an independent judiciary. [ 28 ] The applicant argued that the routine denial of his habeas corpus applications indicated bias on the part of the judges.

However, in the absence of better information about how the courts decided these matters, the Board stated that this factor did not add weight to the applicant's allegation of bias. [ 29 ] The Board considered the applicant's six-month detainment without the laying of charges. Mr. Duarte testified that the following traditional factors in favour of refusing bail did not apply to the applicant: lack of known address; a history of flight; known delinquency; and enough evidence to sustain charges. The applicant argued that these factors did not apply to him and therefore the detention was arbitrary.

The Board rejected this "check box" approach, stating that it is reasonable to assume that judges will take into account a number of factors when assessing these elements, such as the seriousness of the penalty that might flow from charges. In addition, the Board stated that it did not have enough evidence to determine whether the applicant should have been detained.

It noted the absence of habeas corpus documentation, that "may have assisted the panel to better understand the legal and factual rationale of the Costa Rican judicial system in detaining the applicant without charges for six months". [ 30 ] The Board held that the applicant had not rebutted the presumption of judicial neutrality and had therefore failed to show that he is experiencing persecution for a Convention ground: "the continuing detention and prosecution of the applicant cannot be said to be by reason of his political opinion but they can be said to be by reason of a judicial determination that there is merit in pursuing the prosecution". [ 31 ] The Board accepted that "there are politicians involved in these actions, and that they may be seeking in whole or in part to tarnish the reputation of their opponents and bolster their electoral fortunes".

But the Board was satisfied having regard to the fact that the matter is now being dealt with by a judicial system that it deemed to be independent and which contained "adequate internal corrective mechanisms". [ 32 ] The Board considered whether any extra-legal threats amounted to persecution, in relation to the applicant's claims that he was subject to suspicion and threats by members of the PLN. The Board held that if there had been threats made against the applicant and his family, they would have been carried out in the eight month period between his release and his departure for Canada.

It found no "increased likelihood" of harm to the applicant should he be returned to Costa Rica, considering that all the political damage had been done before his departure. [ 33 ] As a result of the negative findings on the questions of state persecution and extra-legal persecution, the Board determined that the applicant did not meet the legal grounds for refugee status. Given that the claims of the applicant's family rested on his, they were also determined not to be Convention refugees.

The Board declined to analyze whether there were reasons for considering that the applicant has committed "serious non-political crimes" in view of its earlier determination on refugee status. Issues [ 34 ] A. Did the Board err in finding that the applicant would not face persecution if returned to Costa Rica even though it drew no adverse inferences and did not disbelieve the applicant and witnesses? B. Did the Board err in failing to consider that, even if ultimately acquitted, the applicant would in the interim be subject to punishment and ill-treatment that would constitute persecution?

Standard of Review [ 35 ] The applicant argues that the Board erred in failing to consider that the applicant's interim detention may nonetheless constitute persecution, assuming his eventual acquittal. The applicant submits that this is a question about what is the correct proposition

of law, which may be abstracted from questions of fact. The applicant therefore argues that the appropriate standard of review is correctness. [ 36 ] The respondent submits that the question is one of mixed fact and law and the standard is reasonableness, since the question is about whether the applicant's treatment by the Costa Rican authorities satisfies the definition of persecution. [ 37 ] In Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. , 1997 CanLII 385 (SCC) , [1997] 1 S.C.R. 748, [1996] S.C.J.

No. 116 (QL), the Supreme Court commented on the nature of a question of mixed fact and law, at QL para. 37: In short, as the level of generality of the challenged proposition approaches utter particularity, the matter approaches pure application, and hence draws nigh to being an unqualified question of mixed law and fact. ...

Of course, it is not easy to say precisely where the line should be drawn; though in most cases it should be sufficiently clear whether the dispute is over a general proposition that might qualify as a principle of law or over a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future. [ 38 ] I am not convinced that the issue raised by the applicant qualifies as a question of law as described by the Court in Southam, supra .

I find that the circumstances of this case are fact-driven, particular to the applicant, and not likely to be of interest to judges and lawyers in the future. I agree with the respondent that the issues presented in this judicial review concern questions of mixed fact and law. I therefore find that the appropriate standard of review is reasonableness. Analysis A.

Did the Board err in finding that the applicant would not face persecution if returned to Costa Rica even though it drew no adverse inferences and did not disbelieve the applicant and witnesses? [ 39 ] The applicant submits that his evidence indicates that he did not commit any crimes and that the public money under his control was distributed in a legal fashion. He states that he was detained without being charged, and then left the country because he felt that he would not receive a fair trial.

He submits that the Board made absolutely no adverse findings of credibility and did not disbelieve either the applicant or his witnesses. In addition, the applicant notes that the Board accepted that there are politicians involved who may be seeking to "tarnish the reputation of their opponents and bolster their electoral fortunes".

In view of this, the applicant argues that the Board committed a reviewable error in concluding as it did and in finding that he would not be persecuted if returned to Costa Rica. [ 40 ] I find the applicant's statement that no adverse credibility findings were made by the Board to be simplistic, for it ignores the fact that the tribunal mentioned throughout its reasons the absence of documentation related to the habeas corpus applications.

The tribunal stated that the failure to produce this documentation had a negative impact on the applicant's claim, because it was thereby unable to examine the reasoning for the decision making of the Costa Rican court. For example, at pages 8 and 9 of its reasons the Board stated: One of the recurring concerns expressed in these reasons is that the panel has not had the benefit of the court material from Costa Rica, in particular the submissions, decisions and reasons on the applications for habeus corpus. The claimant's brother José testified that this material was available.

The panel had requested the material but it was not produced. (Emphasis added) Similarly, at pages 24 and 25, the Board noted: ....The applications, the decisions, and the reasons for decision of the Constitutional Chamber are all available to the claimant but were not produced in evidence.

In the absence of those documents, it is difficult for us to assess the reasoning of the court, to determine what issues were addressed and how , including whether or not Judge Villalobos' comments were complained about to the Constitutional Chamber. ...(Emphasis added) At page 22, the tribunal stated: A five-month delay in the habeus corpus application is also potentially a serious denial of a right. However, the panel does not have the benefit of the habeus corpus documentation that is available to the claimant.

Without the benefit of the documentation we don't know if the application raised new or serious issues. We also note that the application was denied. (Emphasis added) At page 25, the tribunal stated: Various judicial decisions were put in writing, including some of the initial decisions around the preventative detention and the final decision with respect to habeus corpus. These documents are particularly important in this context, where they may have assisted the panel to better understand the legal and factual rationale of the Costa Rica judicial system in detaining Martinez without charges for six months.

Their absence is a consideration when finding that the presumption of neutrality has not been rebutted. (Emphasis added) [ 41 ] While it is true that the Board did not raise credibility issues concerning the evidence of the applicant and the witnesses, it is not clear that the Board wholeheartedly accepted all such evidence. Concerning the evidence of José Martinez, the Board stated, at page 5 of its reasons, "...Not only was he counsel, which can detract from objectivity, but he is also the brother of three of the main suspects in the scandal.

As such, his evidence has been assessed with care." Similarly, the Board stated that the evidence of former counsel Guido Madriz was not considered "to be in a position of detached objectivity on all matters".

[ 42 ] The Board did accept that there may be politicians involved who are seeking to profit politically from the investigation and trial. However, the Board also stated that "the analysis cannot end there" because the ultimate arbiter of the charges, the judiciary, must be assessed for its independence and "the politics become extraneous". [ 43 ] As required by Canada (Minister of Employment and Immigration) v. Satiacum , (1989), 99 N.R. 171 , the Board considered the presumption that the Costa Rican judicial system is fair and neutral.

In Satiacum, supra , MacGuigan J.A. stated, at p. 177: In all but the most extraordinary circumstances all the events leading up to a prosecution and all of the events of a trial in a free and independent judicial system must be taken to be merged into the judicial process and not open to review by a Canadian tribunal .

Extraordinary circumstances would be those, for example, which tended to impeach the total system of prosecution, jury selection or judging, not discrete indiscretions or illegalities by individual participants which, even if proved, are subject to correction by the process itself. (Emphasis added) [ 44 ] I have considered the evidence and the exhaustive analysis of the Costa Rican judiciary conducted by the Board.

I find that the Board did not commit a reviewable error in coming to the conclusion that the overall system is fair and independent and that any political interference would be corrected by the judicial system. The onus is on the applicant to rebut the presumption of judicial neutrality. The Board did not err in finding that the applicant failed to do so. [ 45 ] The respondent submits that the applicant's argument only goes to weight of the evidence, which is within the tribunal's jurisdiction, and that the decision is reasonable and therefore not subject to review. I agree.

It is open to the Board weigh the evidence, as it did, concerning the omission of habeas corpus documentation and the cogency and reliability of the witnesses' testimony. [ 46 ] In addition, the Board concluded that the detention and prosecution of the applicant was not persecution, but rather was based on the alleged illegal activities surrounding the public scandal with respect to embezzlement of public funds. The applicant confirmed that he provided information to the Costa Rican authorities not only to secure his release from detention, but also to assist the prosecution.

At the hearing, the applicant stated: [After a couple of months of detainment] I decided to collaborate and to negotiate my freedom. And then, I was then taken directly to an office where the prosecutor would interrogate me and that took time, it took days.

I provided certain information and afterwards they carried out the public scandal that I alluded earlier to, and then they forced me to work for them, to help them as far as organizing documents and everything they had their hands on -sorting and then in December - December '98, January '99, and finally they let me go. (Emphasis added) The applicant implicitly acknowledges by his own statement that illegal activity occurred. This testimony bolsters the Board's conclusion that the prosecution occurred because it was warranted. Given all the evidence, the Board's conclusion, in this respect, is not unreasonable. B.

Did the Board err in failing to consider that, even if ultimately acquitted, the applicant would in the interim be subject to punishment and ill-treatment that would constitute persecution? [ 47 ] The question whether the applicant's interim detention, assuming eventual acquittal, constitutes persecution must be answered with a view to the context of the detention. In Rajudeen v. Canada (Minister of Employment and Immigration) [1984] F.C.J. No. 601 , the Federal Court of Appeal defined "persecution" with the aid of dictionary

definitions, at 133-134: The Living Webster Encyclopedic Dictionary defines "persecute" as: " To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship ." The Shorter Oxford English Dictionary contains inter alia, the following

definitions of "persecution": A particular course or period of systematic infliction of punishment directed against those holding a particular (religious belief); persistent injury or annoyance from any source . (Emphasis added) [ 48 ] Being held against one's will in adverse prison conditions without legal grounds could arguably constitute persecution, as defined above. However, this is not the end of the analysis.

Assuming without deciding that the applicant's interim prison conditions are sufficiently severe to constitute persecution, the applicant must link the persecution with a Convention ground in order to successfully claim refugee status. Thus, the applicant must show that the persecution he would most likely experience on return to Costa Rica is linked to his political status as a PLN member. [ 49 ] The Board found that the applicant's detention was linked to alleged wrongdoings which eventually led to a prosecution that if found to be warranted, or if unfounded, curable by the judicial system.

I find that this conclusion is not unreasonable. Since the detention is not linked to the applicant's "political opinion", it cannot be said to have a nexus to a Convention ground. The applicant's claim for Convention refugee status cannot succeed. As a result, the applicant's second argument must fail. [ 50 ] The applicant further argues that his eventual acquittal may run contrary to the Board's finding that the prosecution appears to be warranted. To assume an acquittal at this point is pure speculation and is not helpful to the applicant.

This is not a question that can be answered, nor was it required to be answered by the Board. In my view, on the evidence, the Board's conclusion that the applicant's alleged fear of persecution was based not on political affiliation but rather on a warranted prosecution is reasonable. [ 51 ] It seems clear that the applicant would be detained should he be returned to Costa Rica. The applicant himself says so, and

the documentary evidence shows that the terms of the applicant's bond include the condition that he not leave Costa Rica. Should he be detained upon his return, I am of the opinion that it would likely be the result of his failure to abide by his bond conditions, rather than because "political interests still wished him detained prior to the presidential elections to discredit his party" as stated by the applicant.

Given the applicant's admitted breach of the bond and the Board's finding concerning the merit of the prosecution, a potential re- incarceration upon his return to Costa Rica cannot be said to be based on persecution. Conclusion [ 52 ] I find that the Board's decision was not unreasonable and, as such, does not warrant the intervention of this Court. Accordingly, the judicial review is dismissed. [ 53 ] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven (7) days of receipt of these reasons.

Each party will have a further period of three (3) days to serve and file any reply to the submission of the opposite party. Following that, an order will be issued. "Edmond P. Blanchard" Judge Ottawa, Ontario March 26, 2003 FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-4206-01 STYLE OF CAUSE: Jorge Martinez Melendez et al. v. MCI PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: November 7, 2002 REASONS FOR ORDER AND ORDER: Blanchard J. DATED: March 26, 2003 APPEARANCES : Mr. Lorne Waldman FOR APPLICANTS Ms.

Catherine Vasilaros FOR RESPONDENT SOLICITORS OF RECORD : Jackman, Waldman & Associates FOR APPLICANTS 281 Eglinton Avenue East Toronto, Ontario, M4P1L3 Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada Department of Justice Toronto, Ontario, M5X 1K6