De Matos Correira v. Canada (Minister of Citizenship and Immigration), 2005 FC 1060

Date: 20050803

Docket: IMM-5151-04

Citation: 2005 FC 1060

BETWEEN:

OSVALDO DE MATOS CORREIRA JR

(A.K.A. Osvaldo De Matos Correia Jun)

LARISSA BELTRAN CORREIA

(a.k.a. Correia, Larissa Beltran)

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

O'KEEFE J.

[1]     This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (AIRPA@), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the ABoard@), dated May 19, 2004, wherein it was determined that the applicants are neither Convention refugees nor persons in need of protection.

[2]    The applicants requested an order quashing the decision that the applicants are not Convention refugees or persons in need of protection and an order remitting the matter back for redetermination by a different panel.

Background

[3]    The applicants, Osvaldo De Matos Correira Jr. (a.k.a. Osvaldo De Matos Correia Jun) (the "principal applicant") and Larissa Beltran Correia (a.k.a. Correia, Larissa Beltran) his daughter (the "minor applicant"), are citizens of Brazil.

[4]    The principal applicant was baptized as a Jehovah's Witness in 1981. The applicant stated that a tenet of his religious beliefs is that he is to maintain neutral with regards to conflicts between nations. This includes firing weapons.

[5]    Military service is compulsory in Brazil. When he was due to join the army, the principal applicant submitted a request for exemption based on his religious convictions. The exemption was granted but the applicant alleged that as a result, he lost all his rights as a Brazilian citizen including the right to vote and further, he could not get a position in any government department.

[6]    The principal applicant also stated that he does not feel Brazil is a safe environment for his daughter. He stated that as a result of the increase in violence in Brazil, her life was in danger even when she travels to and from school.

[7]    The applicants arrived in Canada on June 19, 2003 and made claims for Convention refugee protection on July 31, 2003.

[8]    The claims were heard on February 18, 2004 and dismissed on May 19, 2004.

[9]    This is the judicial review of that decision.

Reasons of the Board

[10]                        The Board stated:

The panel accepts the claimants' identity as citizens of Brazil on the basis of the passports submitted by the claimants at the hearing. The panel also accepts that the claimants are adherents of the Jehovah Witness faith.

The issues in this claim are credibility and delay.

In his Personal information Form (PIF) narrative, the claimant states that because he is a Jehovah Witness, he asked for an exemption from military service, which was granted. He goes on to say that because of that, all his rights as a Brazilian citizen have been suspended by the Ministry of Justice. He gave that as a reason why he does not feel secure in Brazil. The panel notes that Brazil issued passports to the claimants. They have national identity cards (NIC), which entitle them to medical care and education. He says that he expects protections because he pays taxes, another right. He says that he cannot get a government job but he never applied for one. He put in a bid for a government contract, which he did not get and he presumed that it was because of his religion. He finally said he could not vote but then he never registered. He said he was not entitled to register but he also said that he is still waiting for the suspension of his civil rights. He obtained the exemption from army service in 1984. A declaration by the South-East Military Command states that he is waiting for the suspension of his political rights, not his civil rights.

The panel finds that presently, the claimant is entitled to all the rights of a citizen. Barring a claimant, who is a citizen from voting and from otherwise participating in the political process does not constitute persecution, where the claimant enjoys numerous other rights. The panel finds that even if the claimant receives a suspension of his political rights in the future, this would be discrimination, which falls short of persecution.

The claimants arrived in Canada on June 19, 2003 and did not claim for Convention refugee status until July 31, 2003. The principal claimant testified that the intention was for them to stay in Canada but they did not know that they could claim for refugee status. Nevertheless, within three to four weeks, he consulted a lawyer and then it took a few more weeks to make the claims. Delay points to a lack of subjective fear of persecution, the reasoning being that someone who was truly fearful would claim refugee protection at the first opportunity, even if they have a visa. The panel notes that the refugee system should not be used to shortcut the immigration process.

The claimant stated that since his divorce, his fifteen-year-old daughter was under his care and responsibility. He blames the justice system in his country and the way criminals are punished there for an increase in violence. He is concerned for her safety when he goes to work and she is alone in school. He says her life is in danger when she goes back and forth to school. His conclusion is that Brazil is not a safe place to live and raise his daughter. He worries about her safety and well-being and he wants to live in a country where there is a secure future for her, where she will be safe at home, in school and the city.

The panel understands that every parent wants all that for their children but none of these concerns falls within s.96 or 97(1) of the IRPA. The claimant's fear of crime is not connected to a Convention ground. According to section 97(1)(b)(ii) of the Act, protection is limited to those who face a specific risk that is not faced generally by others in and from the country. The risk must not be an indiscriminate or random risk faced by the claimant and others. The risk of harm feared by the claimant is one faced generally by others in his country. The Refugee Protection Division (RPD) has a specific legal mandate that does not extend its protection to people such as this claimant.

Having considered all three protection grounds under ss.96 and 97(1) of the Act, the panel finds that there is no serious possibility that the claimant will be harmed in Brazil, regardless of whether the alleged harm would amount to persecution, a risk to his life, cruel and unusual treatment of punishment, or torture. Since the claim of the claimant's child is based on his, her claim also must fail.

Issues

[11]                        The issues are:

1.         Did the Board err in its finding that Brazil's conscription law is not persecutory for the principal applicant?

2.         Did the Board err in its finding of delay undermining subjective fear?

3.         Did the Board err in finding generalized risk for the principal applicant's daughter?

Applicants' Submissions

[12]                        The applicants submitted that the Board erred in its assessment of the persecutory nature of Brazil's conscription law for the principal applicant. The alternative service offered in Brazil does not meet international law standards and that failure grounds the principal applicant's claim to protection. He qualifies as a conscientious objector according to Canadian case law. The applicant submitted that there is no appropriate, non-combatant alternative in Brazil.

[13]                        The applicants further submitted that the loss of political rights such as the right to vote by failure to perform military service constitutes persecution in that it involves a violation of a basic human right (see Sauve v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519). The principal applicant was deprived of the right to vote because of his conscientious objection to performing military or alternative service and that this deprivation constitutes serious harm amounting to persecution.

[14]                        The applicants submitted that the limiting of the principal applicant's access to public employment cannot be justified as the objectives behind this limitation in Brazilian law are not "sufficiently important to justify limiting his equality rights" (Sauve, supra). The state cannot properly have as an objective, the encouragement of its citizens who are conscientious objectors to forego their beliefs and perform military or alternative service to thereby maintain access to employment by the state. In any event, the U.N. has declared unacceptable and arguably persecutory any discrimination for example, in voting or employment, against conscientious objectors.

[15]                        The applicants submitted that the Board erred in failing to consider that the applicants had legal status as visitors for six months when they claimed protection and so were not removable from Canada at that time.

[16]                        The applicants further submitted that the Board erred in not assessing the minor applicant's risk in terms of her age, gender and occupation. That analysis might have led to the Board finding her risk to be distinct from that of the general population.

Respondent's Submissions

[17]                        The respondent submitted that all of the principal applicant's arguments regarding compulsory military service are inapplicable to his specific personal circumstances. The applicant was granted an exemption from the military service 20 years ago and none of his rights have yet been suspended.

[18]                        The respondent submitted that a delay in making a refugee claim is relevant when assessing the existence of subjective fear. Conversely, possession of a visitor's visa does not normally displace a presumption that a bona fide refugee would claim protection at the first available opportunity.

[19]                        The respondent submitted that there were no circumstances alleging any risk to the applicant's daughter and thus, the Board could not have considered any.

Relevant Statutory Provisions

[20]                        Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows: