Date: 20050412
Docket: IMM-2995-04
Citation: 2005 FC 491
Toronto, Ontario, April 12th, 2005
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
ANTONIO LUIZ DE MELLO BORGES
ELIANA BARBOSA BORGES
KAYO BARBOSA DE MELLO BORGES
HANNAH BARBOSA DE MELLO BORGES
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Orally delivered from the bench and subsequently written for precision and clarification)
[1] The Principal Applicant, Antonio Luiz de Mello Borges (the "Applicant") is a 47 year old citizen of Brazil. His wife, Eliana Barbosa Borges and his two children, Kayo and Hannah Barbosa de Mello Borges are basing their claims on the Principal Applicant's reasons for claiming refugee status.
[2] The Applicant divorced his first wife in 1986. The Applicant claims his wife's family began threatening his life and prevented him from seeing his son, all because this was the only divorce in their family to date. He claims he notified the police but because his wife's uncle was the Chief of Police, the police did not assist him.
[3] In 1989, the Applicant remarried and by reason of the threats in 1991, he and his new wife decided to move to Miami. In 1996, they sold $74,000 worth of computers to a Mr. Neves and a Mrs. Alves (whose husband was Congressman Alves, a powerful political figure in Brazil) against payment of Mrs. Alves' credit card. When Mr. and Mrs. Alves began divorce proceedings, the credit card payment for the $74,000 was not honoured. The Applicant, however, obtained proof from the Swiss bank from which the credit card was paid that Congressman Alves had an account which held $15 Million.
[4] When the Applicant began enlisting others to help him recover the money, Mr. Alves' personal secretary called the Applicant, said he would be paid and asked him to keep quiet. Mr. Neves visited the Applicant several times in Miami and told him he would suffer the consequences if he said anything about the $15 Million in the Swiss account as it would hurt Mr. Alves' electoral chances.
[5] Mr. Alves ran for Vice-President of Brazil in 2002 but details of his Swiss account became public and he withdrew his nomination. He remains a member of Congress. The Applicant continued to receive threatening phone calls and claims he fears for his life and the political and judicial system in Brazil is corrupt. The Applicant arrived in Canada on August 15, 2003 and made a refugee claim the same day.
[6] The Board rejected his application finding, in essence, that:
- he fears Congressman Alves but not the Brazilian state, thus there is no nexus to s.96 of IRPA;
- he did not seek state protection in Brazil;
- he did not rebut the availability of state protection and therefore the effectiveness of state protection is not an issue; and
- he stayed twelve years in the US, yet never sought protection there.
[7] While the Board found the Applicant generally credible and found he testified in an open and straightforward fashion, it concluded that there was no nexus between the Applicant's story and s.96 of IRPA. Equally, the Board was not convinced he faced a threat under s.97 of IRPA, nor that state protection was unavailable to him. In addition, and in the alternative, the Board found it totally unconvincing that he would not seek protection in the US merely because he had been threatened in that country.
[8] There is nothing unreasonable with regard to the Board's finding. It is up to the Applicant to establish his claim under s.96 or s.97 of IRPA. Here there was no nexus to s.96 and his counsel at today's hearing solely relied on s.97. However, to establish a s.97 threat the Applicant must first establish the threat and then the non availability of state protection (see Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3).
[9] Even if one accepts that he is threatened by Congressman Alves or his supporters, the Applicant never sought protection in Brazil or the US. As a result, there was nothing unreasonable regarding the Board's finding that his experience with his former matrimonial dispute does not constitute evidence of a lack of state protection.
[10] All the documentary evidence regarding the deficiencies of the Brazilian justice system that the Applicant produced (and the Board allegedly ignored) are not relevant in the absence of any attempt to seek state protection or in the absence of a credible and plausible explanation therefore.
[11] Finally, the alternative reason provided by the Board is dispositive of this matter. The Applicant's failure to make a claim for 12 years while residing in the US completely undermines the threat alleged by the Applicant.
[12] Accordingly, I see no reason for interfering with the Board's decision and this application will be dismissed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2995-04
STYLE OF CAUSE: ANTONIO LUIZ DE MELLO BORGES
ELIANA BARBOSA BORGES
KAYO BARBOSA DE MELLO BORGES
HANNAH BARBOSA DE MELLO BORGES
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 11, 2005
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: APRIL 12, 2005
APPEARANCES BY:
Mathew Jeffery FOR THE APPLICANTS
David Tyndale FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mathew Jeffery
Barrister and Solicitor & Notary Public
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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