Date: 20110120
Docket: IMM-3669-10
Citation: 2011 FC 63
Ottawa, Ontario, January 20, 2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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THABATA PORTO GOMES SOUSA
KAUE GOMES SOUSA DE OLIVEIRA
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Applicants
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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]
The
present application for judicial review seeks to have a decision of the
Immigration and Refugee Board, Refugee Protection Division (the “Board”)
quashed and sent for redetermination. Leave was granted by Justice Campbell on
October 19, 2010. In his decision of June 10, 2010, the Board member denied Thabata
Porto Gomes Sousa and Kaue Gomes Sousa de Oliveira (the “Applicants”) status as
Convention Refugees or persons in need of protection under the regime of the Immigration
and Refugee Protection Act (“IRPA”).
[2]
Thabata
Porto Gomes Sousa (the “Principal Applicant”) alleges that she was the victim
of domestic violence by her former spouse, Marcus, a man the evidence reveals
to be violent and in prey to psychiatric issues and substance abuse problems.
The Principal Applicant left her former spouse with her son, but returned to him
upon learning that he had been admitted to a drug addiction treatment facility.
However, Marcus escaped from the facility and renewed his threats towards the
Principal Applicant. The Principal Applicant went to the police station to
report the threats. The police advised her that not much could be done and
that, at best, Marcus would only be condemned to paying a fine or making a
charitable donation.
[3]
During
the course of the events, the Applicants moved in with Marcus’ parents and
Marcus, in an attempt to salvage the relationship. During the course of this
stay, Marcus attacked the Principal Applicant, who then called the police. Her
father-in-law, a man involved in the “animal game”, a popular form of illegal
gambling in Brazil, proceeded
to hang up the phone when the Principal Applicant was making the call. Upon
receiving an inquiry by the police about the events, her father-in-law
instructed the police that the matter had been solved, and that it was nothing
but a couple’s quarrel. The father-in-law then threatened the Principal
Applicant and made reference to the fact that he had connections within the
police.
[4]
The
Board member focused on the following elements to conclude that the Applicants
were not Convention Refugees or persons in need of protection:
a. The
Principal Applicant did not present sufficient evidence to rebut the
presumption of State Protection as set out in Canada (Attorney
General) v Ward, [1993] S.C.R. 689;
b. Marcus’
father’s influence with the police was not deemed sufficient to influence the
police’s decision to investigate a crime;
c. Although
the evidence was mixed on this subject, several means for protection and
programs were presented by the Board in support of the conclusion on sufficiency
of state protection; and
d.
State
protection in Brazil was found to
be sufficient, particularly since the state adopted a statute, namely the Maria
Da Penha law, which criminalizes domestic violence.
Standard
of Review
[5]
The
determinative issue in this case is that of the sufficiency of state
protection, a question that is to be reviewed under the standard of
reasonableness, as it is a mixed question of fact and law (Dean v Canada
(Citizenship and Immigration), 2009 FC 772; Flores Dosantos v Canada
(Citizenship and Immigration), 2010 FC 1174; Dunsmuir v New Brunswick,
2008 SCC 9). The application of the Gender Guidelines is a question that
is to be reviewed on the standard of reasonableness (Correa Juarez v Canada (Citizenship
and Immigration), 2010 FC 890; Montoya Martinez v Canada (Citizenship
and Immigration), 2011 FC 13).
Analysis
[6]
The
Board’s decision in regards to the sufficiency of state protection is
unreasonable, in that it failed to adequately address the Gender Guidelines
and made an unreasonable plausibility finding.
[7]
It
is clear that subjective reticence to engage with state authorities is not
sufficient to rebut the presumption of state protection (Canada (Attorney
General) v Ward, [1993] S.C.R. 689). However, this case is not as in Dean v
Canada (Citizenship
and Immigration), 2009 FC 772, at paragraph 21, where “the applicant
demonstrated only a subjective reticence to file a complaint but did not show
any denial or lack of state protection”. In this case, proper consideration of
the Gender Guidelines may have led to a finding that this reticence to
engage the proper authorities was more than subjective.
[8]
However,
this Court is not mandated to make a finding of fact on this issue. It only
notes that beyond the simple mention of the Gender Guidelines in the
beginning of the Board’s reasons, these were not considered in respect to the
Principal Applicant’s reticence to engage with authorities, particularly after
her father-in-law’s threats. Surely, the situation commanded that the Gender
Guidelines receive more particular attention, as the Principal Applicant
was a victim of domestic violence that was condoned by her father-in-law, who
threatened her and made reference to his contacts within the police. It was
unreasonable for the Board not to analyze the Gender Guidelines in light
of the Principal Applicant’s situation.
[9]
Moreover,
the Board made an implausibility finding in regard to these threats and Marcus’
father’s influence on the police, at paragraph 14 of its decision:
“I am not persuaded that Marcus’ father
has any influence over the decisions of the police to investigate crimes.
Although Marcus’ father was involved in an illegal betting operation that
required weekly payments to a corrupt police officer, there was no persuasive
evidence present to indicate that the police would not investigate Thabata’s
allegations if they were rePortod to them or that Marcus’ father had the
influence to convince the police to charge Thabatha with a crime instead of
Marcus.”
[10]
The
case law is clear: implausibility findings must only be made in the clearest of
cases (Valtchev v Canada (Minister of
Citizenship and Immigration), 2001 FCT 776 (TD)). In this case, the Board’s
conclusion in regards to Marcus’ father went beyond what the evidence supported.
Furthermore, in concluding that Marcus’ father’s influence on the police was
limited, the Board failed to adequately consider the Principal Applicant’s
reasons for not seeking state protection.
[11]
Hence,
the Board’s decision in regards to the sufficiency of state protection is
flawed in two aspects. Firstly, it failed to adequately assess the Gender
Guidelines in order to fully address the reasons for which state protection
was not sought, and secondly, it made an unreasonable plausibility finding,
thus depriving the Applicants of a full and proper assessment of the reasons
for which state protection was not sought. As such, the decision falls outside
the range of acceptable outcomes defensible in fact and in law. The proper
remedy is to send the matter for redetermination before a newly constituted
panel of the Board.
[12]
No
question for certification was put forth by the parties, and none arises.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
- The application for judicial
review is granted. The matter is to be sent for redetermination before a newly
constituted panel of the Board. No question is certified.
“Simon
Noël”
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