Date : 20050421
Docket : IMM-3344-04
Citation : 2005 FC 536
BETWEEN :
Victor Norberto FERNANDEZ
Alicia Susana DE FERNANDEZ
(A.k.a. Alicia Susana PECILE)
Applicants
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for a judicial review of a decision by the Refugee Protection Division (RPD) dated March 23, 2004, wherein the claim of Victor Norberto Fernandez and Alicia Susana Fernandez, the applicants, were rejected; the RPD having concluded that they were neither Convention refugees nor persons in need of protection.
[2] The applicants are citizens of Argentina. The male applicant owned a pizza business in Buenos Aires.
[3] He alleged that between January 11th, 2001 and March 16th, 2001 he experienced robberies by individuals he could not identify. When he could not provide money, he was beaten and threatened. They tried to extort money from him offering protection. On October 29th, 2001, he alleges that he and his son were kidnapped. He was beaten; his son was able to escape and warn authorities. His assailants were informed that the police was near so they released him; following this incident, the applicants and their son were again threatened. The kidnapping incident was reported to the police.
[4] The male applicant closed his business in November and went to live elsewhere until they were able to leave the country. He and his son sought refuge at his sister's home. In December 2001, the female applicant went to the United States of America and returned in February 2002. In September 2002, the applicants came to Canada and claimed refugee protection in November 2002. They had previously gone to the United States in April 2002 and spent five months with the male applicant's sister.
[5] The RPD found that the applicants were not convention refugees and did not have a well-founded fear of persecution for convention reason in Brazil. She found applicant to be credible except for some exceptions that she pointed out.
[6] The RPD explained that the applicants fear criminality, which is not one of the grounds set out in the definition, therefore there is no nexus to their claim.
[7] On the issue of state protection, the RPD found that there is a presumption that states are capable of protecting their citizens and the applicants failed to rebut that presumption. They testified that they reported the robberies and extortion to the police but they did not provide police reports. As to the kidnapping, the RPD determined that the male applicant's testimony was credible.
[8] Moreover, the RPD found that the applicants' actions did not reflect a subjective fear of persecution. The female applicant went to the USA and returned to Brazil and remained two months before they left for the USA for five months and then travelled to Canada where they remained for two months before claiming refugee status.
[9] Further the RPD declared, in the alternative, that even if the applicants had a well founded fear of persecution, they would be an IFA available to them. In the RPD's view, they could have lived elsewhere in Brazil; they went to live in the sister's home without incident.
[10] Finally, on s. 97, the RPD found that since there is state protection available, the applicants were not personally subjected to any risk.
[11] The applicants submit the following issue:
Whether the Board based its decision on a erroneous finding of fact made in a perverse manner and without regard for the material presented, by deciding their claim with respect to whether the Applicants would be persecuted in Brazil, when their refugee claim was made with respect to Argentina?
[12] Essentially, the applicants argues that since the RPD decided the case with respect to Brazil, it demonstrated that it ignored the applicants evidence and based the decision on evidence not before it. This failure to analyse country conditions in Argentina resulted in faulty conclusion as to state protection and IFA, two elements of the decision.
[13] According to the respondent, the fact that the panel identified the country as being Brazil instead of Argentina is a mistake of inadvertence and "had no bearing on the analysis (...)". The RPD accurately described every other aspect of the applicants' claim, thus it cannot be argued that the RPD ignored the applicants' evidence.
[14] The respondent submits that the applicants did not show that the RPD erred when it found that they have not rebutted the presumption of state protection. Further, the applicants did not challenge the RPD's finding that they did not encounter problems for several months when they simply move several kilometres away.
[15] Also, it is the respondent submission that the applicants did not provide any explanation for the male applicant's inconsistencies in his testimony.
[16] In their reply memorandum, the applicants submits that the respondent did not produce evidence to support its theory that it was a mistake of inadvertence. Further, they argue that if the country can be so easily interchanged, it offends the notion of a fair hearing on the facts of each case.
[17] In this case, the applicants claimed refugee protection pursuant to s. 97 of the IRPA only. Consequently, only the analysis under that section of the Act should have been entertained by the RPD. However, the RPD did an analysis under s._96 as well as under s. 97 and the respondent provided some submissions on issues regarding s. 96.
[18] It is evident from the reasons of the RPD that it made a mistake in identifying the applicants' country of origin as Brazil rather than Argentina. The RPD have to assess the risk faced by the applicants in relation to their country.
[19] As was decided in Popovic. v Canada, "the availability of state protection is country-specific". Even if that decision was decided in a slightly different context (H & C), the remarks on an officer confusing the country of the applicant is relevant.
[20] The respondent argues that it was an inadvertent error and has no bearing on the analysis. In my opinion, there were doubts, when I read Brazil in the RPD's decision (written several times), that the analysis on the risks faced by the applicants in Argentina was not properly assessed. Thus, the confusion on the country has an impact on the analysis and the decision cannot stand.
[21] The application for judicial review is granted, the officer's decision quashed and the matter returned to a different officer for redetermination.
Rouleau J.
JUDGE
OTTAWA, Ontario
April 21, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS : IMM-3344-04
STYLE OF CAUSE : Victor Norberto Fernandez, Alicia Susana De Fernandez (A.k.a. Alicia Susane Pecile) v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 14, 2005
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: April 21, 2005
APPEARANCES:
Ms. Patricia Wells FOR THE APPLICANTS
Mr. Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD:
Patricia Wells
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT
Personal Information Form (PIF), p.29 and 55 of the tribunal record
[2001], F.C.J. no 900 (T.D.)
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