Date: 20051011
Docket: IMM-8843-04
Citation: 2005 FC 1363
Ottawa, Ontario, October 11, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
WENDER MAGNO RIBEIRO
(a.k.a. Wender Magno Ribeiro Do Prado)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Wender Magno Ribeiro is a citizen of Brazil who claims to be a Convention refugee or a person in need of protection. He brings this application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("RPD" or "Board") dismissing such claim.
[2] Mr. Ribeiro alleges that he grew up in a very turbulent household. His father was a violent alcoholic, a compulsive gambler and an adulterer. Mr. Ribeiro says that when he turned 10 years of age he used to react strongly against his father and this led to many beatings from his father. Ultimately, his father abandoned the family. Notwithstanding this abandonment, altercations between Mr. Ribeiro's father and mother continued. Mr. Ribeiro's father refused to divorce his wife and has threatened to kill his wife and children if his wife tries to obtain a divorce. Mr. Ribeiro and his family called the police many times over the years when his father would abuse his mother, but the police never intervened effectively and instead tried to reconcile Mr. Ribeiro's parents. Mr. Ribeiro says that his father always told the police that he would try to do better and would change, yet no change ever occurred. According to Mr. Ribeiro, his father killed a man in 2003, but he was not convicted of any offence.
[3] When Mr. Ribeiro was 19 years old he moved to Sao Paulo, approximately 600 kilometres from the town where he grew up and lived with his mother. While living in Sao Paulo he returned to his mother's home many times in order to protect her when disputes flared between his father and mother.
[4] After living in Sao Paulofor four years, Mr. Ribeiro came to Canada. While here, he has been told by his cousin that his father killed another man in January of 2004. Mr. Ribeiro testified that he fears returning to Brazil because his father has told him he will kill him if he intervenes again to help his mother.
[5] The RPD found that Mr. Ribeiro did not have a well-founded fear of persecution in Brazil as a victim of an abusive father. The RPD did not believe it was plausible that Mr. Ribeiro would fear that his father would kill him or harm him now that he is an adult who lived away from his family for at least four years in Brazil before coming to Canada. The RPD found no credible and trustworthy evidence that Mr. Ribeiro's father had harmed him or tried to kill him while he was living in Sao Paulo. In the Board's view, if Mr. Ribeiro was a minor and still lived with his father, then perhaps the domestic abuse could be seen to be persecution. However, now that Mr. Ribeiro has grown into a man and has no reason to live with his father or to have any contact with him, the Board did not believe that Mr. Ribeiro had a well-founded fear in Brazil. In short, the RPD saw no reason why Mr. Ribeiro's father should kill him or harm him should Mr. Ribeiro return to Brazil.
[6] The RPD also reasoned that, if it was wrong on the issue of well-founded fear of persecution, it believed that Mr. Ribeiro could reside in another location in Brazil, away from his abusive father, and that it would be reasonable for Mr. Ribeiro to live in either Sao Paulo or Rio de Janeiro.
[7] Accordingly, because it did not find Mr. Ribeiro's fear to be plausible, and because he had an internal flight alternative in Brazil, the RPD found that Mr. Ribeiro was neither a Convention refugee nor a person in need of protection.
[8] From this description of the Board's decision it may be seen that, aside from finding Mr. Ribeiro's fear of his father to be implausible, the Board did not otherwise impugn Mr. Ribeiro's credibility. Thus, it accepted his testimony that:
• Mr. Ribeiro's father is a violent person who in the past had threatened to kill both Mr. Ribeiro and his mother;
• Mr. Ribeiro's father had killed two people in the recent past;
• in the past, the police have not intervened effectively in order to assist Mr. Ribeiro's mother when she was threatened by her husband;
• while in Sao Paulo, Mr. Ribeiro returned home too many times to remember in order to protect his mother.
[9] In that circumstance, I conclude that in deciding Mr. Ribeiro's claim as it did, the Board misapprehended the basis of his claim and failed to deal with Mr. Ribeiro's testimony that it was the exercise of what he views to be his filial responsibility to protect his mother that would put him at risk if he returned to Brazil. The failure to deal with the basis of Mr. Ribeiro's claim amounted to a failure to address the material part of Mr. Ribeiro's claim and is a reviewable error.
[10] This is not to say that the Board was obliged to accept Mr. Ribeiro's claim. It could, for example, have rejected the truth of his testimony. However, the Board was obliged to demonstrate that it understood the basis of Mr. Ribeiro's claim. It failed to do so, which is a reviewable error. This failure is fatal not only to the decision about the existence of a well-founded fear of persecution, but also to the decision about an internal flight alternative.
[11] I have considered the submissions of counsel for the Minister that, in substance, the Board found that Mr. Ribeiro had no subjective fear because he continued to put himself at risk by returning to help his mother. There are, I believe, three answers to the submission. First, the Board made no finding that Mr. Ribeiro's testimony was not credible with respect to the matters set out above. As the Federal Court of Appeal noted in Shanmugarajah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 583, at paragraph 3 "it is almost always foolhardy for a Board in a refugee case, where there is no general issue is to credibility, to make the assertion that the claimants had no subjective element in their fear". Second, bounds of family loyalty may lead a person to engage in dangerous conduct that otherwise could be viewed as conduct inconsistent with a lack of subjective fear. See, for example, Mohammadi v. Canada(Minister of Citizenship and Immigration), 2003 FC 1028 at paragraphs 14 and 15. Third, on the basis of the evidence the RPD accepted, for Mr. Ribeiro to have no well-founded fear of persecution in Brazil he would have to avoid travelling out of Sao Paulo or Rio de Janeiro in order to avoid conflict with his father while assisting his mother. Just as the Convention does not require a claimant to return to his country of origin and avoid political activity that might attract a risk of persecution (see, for example, Islam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 135 (T.D.)), I do not accept that the Convention or the Immigration and Refugee Protection Act, S.C. 2001, c. 27 would require a son to avoid protecting his mother in order to keep himself safe.
[12] I have also considered whether, as counsel for the Minister submitted, remitting this matter for redetermination before the Board would be futile because the result is inevitable. I am persuaded, however, that the Board would not be bound in law to reject the claim. The outcome of Mr. Ribeiro's claim depends in largest measure upon the Board's assessment of his credibility. The assessment of the credibility of Mr. Ribeiro's testimony is an exercise the Board did not engage in. That, coupled with the failure of the Board to demonstrate awareness of the basis of Mr. Ribeiro's claim, require that the claim be remitted for redetermination by a differently constituted panel of the RPD.
[13] Counsel posed no question for certification and I agree that no question arises on this record.
ORDER
[14] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision of the RPD dated September 22, 2004 is hereby set aside.
2. The matter is remitted for redetermination before a differently constituted panel of the RPD.
"Eleanor R. Dawson"
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