Date: 20110613
Docket: IMM-3449-10
Citation: 2011
FC 676
Ottawa, Ontario,
June 13, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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ANA EMILIA ZOEGA RODRIGUES
BEXIGA (a.k.a. ANA EMILIA ZOEGA
RODRIGUES BEXI)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated May 26, 2010, wherein the applicant was determined not
to be a Convention refugee or person in need of protection under sections 96
and 97 of the Act.
[2]
The applicant requests that the decision of the Board be set aside
and the claim remitted for redetermination by a different member of the Board.
Background
[3]
Ana
Emilia Zoega Rodrigues Bexiga (the applicant) was born on August 16, 1963 and
is a citizen of Brazil.
[4]
The
applicant married in February 1986 and she and her husband were practicing
Catholics. In 2005, the applicant converted to Islam.
[5]
In
March 2005, the applicant’s husband became angry with her over the decision to convert
to Islam. The applicant left to stay with her mother but returned to live with
her husband after he apologized.
[6]
Subsequently,
the applicant’s husband became violent with her on a regular basis. During one
incident, the applicant’s neighbours called the police. The applicant’s husband
was held for a few hours but released without being charged.
[7]
The
applicant left Brazil and stayed in the United States and Mexico for several
months, but returned to Brazil in March 2006 hoping that the situation had
improved.
[8]
Her
husband continued to be violent and the applicant separated from him in June
2006. In December 2007, the applicant’s husband surprised her walking in the
street; he choked her and threatened to kill her.
[9]
At
no point did the applicant approach the police for assistance.
[10]
The
applicant left Brazil for Canada in January 2008 and claimed refugee
protection.
Board’s Decision
[11]
The
Board found that the determinative issue was state protection.
[12]
The
Board reviewed the legal principles of state protection, noting the presumption
and the onus on the applicant to provide clear and convincing evidence of the
state’s inability to protect her.
[13]
The
Board reviewed the current country conditions in Brazil. It
acknowledged that violence against women is a serious problem. However, the
Board found that Brazil is making serious efforts to combat violence
against women. The measures noted by the Board included: a hotline for female
victims, domestic and family violence courts in 22 of 26 states, police stations
focused only on crimes against women and legislation named the Maria de Penha Law
enacted August 2006 which increases punishment for domestic violence and
requires health workers to contact police in cases of domestic violence. The
Board acknowledged that in the police stations focused on crimes against women,
the quality of services varied and is limited in isolated locations. The Board
found that the Maria de Penha Law is making a difference.
[14]
The
Board found that the applicant had never approached the police and it noted her
explanation was that she did not believe the police would help her because she
saw cases in the media of women going to the police and not receiving help. The
Board noted the applicant’s testimony that her sister approached the police for
help and did not receive it. The applicant also testified that going to the
police would further anger her husband.
[15]
Ultimately,
the Board found that the applicant had not rebutted the presumption of state
protection. The Board found the applicant had not taken all reasonable steps in
the circumstances to access protection from the authorities in Brazil. The Board
found that the applicant’s documentary evidence and testimony did not establish
the unwillingness or inability of the police to provide adequate protection to
victims of domestic violence.
Issues
[16]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the Board err in
finding that there was adequate state protection?
3. Did the Board fail
to apply the Gender Guidelines?
Applicant’s Written Submissions
[17]
The
applicant submits that the Board erred in its state protection analysis. The
Board was required to assess the quality of the state’s efforts to provide
protection as efforts alone are not determinative of protection. The Board must
determine whether those efforts do result in protection and assess the adequacy
of the protection. The effectiveness of protection measures remains a relevant
consideration.
[18]
There
was evidence before the Board that impunity and a lack of resources affected
the ability of the state to provide protection. The Board made no reference to
any measures taken to address these deficiencies in the criminal justice
system. The Board also did not provide reasons for dismissing this evidence
which contradicted its findings. It further failed to provide evidence for the
finding that problems with implementation and enforcement of domestic violence
laws are not generalized. This constitutes inadequate reasons.
[19]
The
applicant submits that she provided information of similarly situated
individuals which was discounted by the Board as evidence of a lack of state
protection. This was an error as the evidence of her sister’s experience
demonstrated that making a complaint against an abusive partner will not result
in protection.
[20]
Finally,
the applicant argues that the Board failed to take note of the applicant’s
ex-husband’s influential connections in Brazil which will
affect the ability for her to personally access state protection.
[21]
The applicant submits that the Board did not apply the
Board’s Chairperson’s Guidelines on Women Refugee Claimants
Fearing Gender-Related Persecution (the Gender Guidelines)
in a sensitive manner. This is evidenced in the Board’s failure to understand
why it was difficult for the applicant to report the abuse and threats by her
husband to the police.
Respondent’s Written Submissions
[22]
The
respondent submits that the Board applied the correct principles regarding
state protection. The Board noted the presumption of state protection and that
the applicant must approach the state for protection where state protection
might reasonably be forthcoming; a failure to do so will usually be fatal to a
claim.
[23]
The
Board further properly considered the documentary evidence. The Board gave
concrete examples of the efforts that the Brazilian government is making to
combat the problem of domestic violence. The evidence the Board considered
demonstrated that these efforts have found positive results. The Board noted
that problems with the domestic violence laws exist, but found that they are
not generalized and Brazil is addressing the deficiencies in the
administration of criminal justice.
[24]
The
applicant improperly submits that the test for state protection is
effectiveness. Rather, the Board need only assess whether there is adequate state
protection available for the applicant, which the Board did.
[25]
The
applicant failed to seek help from local authorities and she did not provide
clear and convincing evidence that Brazil was unable or unwilling
to protect her.
[26]
The
respondent submits that the Board also properly considered and applied the
Gender Guidelines. There was no need for the Board to do more than refer to the
Gender Guidelines in this case as the applicant had not raised any particular
vulnerabilities which would make her unable to approach the state for
protection.
Analysis and Decision
[27]
Issue
1
What is the
appropriate standard of review?
Where
previous jurisprudence has determined the standard of review applicable to a
particular issue, the reviewing court may adopt that standard (see Dunsmuir
v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[28]
It
is firmly established that assessments of the
adequacy of state protection raise questions of mixed fact and law and are
reviewable against a standard of reasonableness (see Hinzman, Re, 2007
FCA 171 at paragraph 38).
[29]
In
reviewing the Board’s decision using a standard of reasonableness, the Court
should not intervene unless the Board has come to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47).
[30]
Issue
2
Did the Board
err in finding that there was adequate state protection?
The onus is on a refugee claimant to rebut the presumption of state
protection, not on the Board to provide evidence of adequate state protection
(see Ward v Canada (Minister of Employment and Immigration), [1993] 2 S.C.R. 689, [1993] SCJ No 74 (QL) at paragraph 51).
[31]
As the applicant did not approach the police for
assistance following any of the incidents of abuse and threats from her
ex-husband, she had to provide clear and convincing evidence that Brazil was unable or unwilling to protect
her.
[32]
The
applicant submits that she did provide this evidence, but that the Board did
not assess the adequacy of state protection in Brazil or whether
the state’s efforts to combat domestic violence result in real protection. I
disagree.
[33]
The
Board reviewed the applicant’s testimony of similarly situated individuals. It
was open to the Board to conclude that the applicant’s subjective assertion
that the police would do nothing based on cases she had seen in the media was
not sufficient to overcome the presumption of state protection (see Victoria
v Canada (Minister of Citizenship and Immigration), 2009 FC 388 at
paragraphs 17 to19).
[34]
Further,
the Board acknowledged the applicant’s testimony that her sister had approached
the police regarding threats. It was reasonable for the Board to weigh this
evidence and not find it persuasive due to lack of detail about the event.
Board members have considerable discretion in deciding how much weight should
be afforded to the evidence (see Velychko v Canada (Minister of
Citizenship and Immigration), 2010 FC 264 at paragraph 26). It is not
the position of this Court to reweigh the evidence.
[35]
Finally,
the Board assessed the documentary evidence on protection for victims of
domestic violence in Brazil and reviewed concrete examples of forms of
protection available to victims of domestic violence. These included police
stations focused on only crimes against women as well as government created and
funded special courts for domestic violence which include public defenders
positions and free legal assistance.
[36]
Based
on the above, it was reasonable for the Board to find that the applicant had
not presented clear and convincing evidence of Brazil’s inability
or unwillingness to provide protection.
[37]
The
Board’s conclusion that the applicant had not convinced it that there would not
be adequate state protection was transparent, intelligible and justified and
within the range of acceptable outcomes as per the standard of reasonableness
in Dunsmuir above, at paragraph 47.
[38]
Issue
3
Did the Board
fail to apply the Gender Guidelines?
The Gender Guidelines directly
address the issue of domestic violence and state protection. Only if the applicant
can demonstrate that it was objectively unreasonable for her to approach the
state for protection, will the fact that she did not do so not defeat her
claim. The decision maker should consider “social, cultural, religious, and economic context in which
the claimant finds herself.” The Board specifically noted this fact. However,
the
applicant did not raise specific social, cultural or religious factors which
would affect her ability to approach the police. She indicated that she did not
approach the police because she did not believe they would assist her.
[39]
I do not
find that the Board failed to consider and apply the Gender Guidelines.
[40]
Given
the above analysis, I would therefore dismiss the judicial review.
[41]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[42]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001, c 27
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72. (1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those countries;
or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.(1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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