Date: 20080204
Docket: IMM-848-07
Citation: 2008
FC 150
Toronto, Ontario, February 4, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
EMANUEL
CORREIA DE VASCONCELOS MELO
and FABIO WILSON
DE MELO CARNEIRO
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Applicants,
both citizens of Brazil, seek refugee protection based on detailed stories of growing
up in Brazil as homosexual males, and the
threats, violence and mistreatment that they received as a result. Their
personal information forms (PIFS) and the evidence they provided at their
hearing before the Refugee Protection Division of the Immigration and Refugee
Protection Board (RPD), details incidents of physical attacks, harassment,
discrimination and bias. One major incident of violence took place at the hand
of the Applicant Melo’s father, who is police commissioner.
[2]
After
coming to Canada on student visas, the
Applicants remained after their visas lapsed. They testified that they were frightened
of being deported but they were unaware that they were eligible to make refugee
claims. After they found out that people in their position had made successful
claims, they submitted claims for protection.
[3]
The RPD’s
decision rejecting the Applicants’ claim (the Decision) was issued on January
31, 2007, after a brief hearing. The RPD did not make a negative credibility
finding with respect to the Applicants, and, therefore, it is presumed to have
accepted all of their evidence. The primary reason given by the RPD for
rejecting their claim is that it found that there is state protection prospectively
available for the claimants in Brazil. In addition, the RPD held
that the Applicants lacked subjective fear because of their delay in making
their claim. The Applicants argue that both of these findings were made in
error.
[4]
The
standard of review applicable to RPD findings of whether an applicant has
rebutted the presumption of state protection has been established to be
reasonable simpliciter: a pragmatic and functional analysis was
undertaken by Justice Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and
Immigration), 2005
FC 193, [2005] F.C.J. No 232, and her finding has been confirmed in several decisions
(see eg. Diaz De Leon v. Canada (Citizenship and Immigration) 2007 FC 1307 at para. 21). The
RPD’s factual findings regarding subjective fear are reviewable on the standard
of patent unreasonableness (De (Da) Li Chen v. M.C.I, 49 Imm. L.R. (2d) 16).
[5]
On the
issue of state protection, the RPD’s key finding is as follows:
The panel is also cognizant of the fact
that the father of one of the claimants is a police officer. However, the
claims are now 22 and 31 years old respectively. The panel finds the
documents on sexual orientation issues above illustrate that while the system
is flawed, and more needs to be done socially and institutionally to ensure
that the initiative materialize, there is a serious an concerted effort being
made by the government to address these issues, and claimants are
required to approach these avenues before seeking international protection.
In view of the above, the panel is not
convinced within a preponderance of probabilities, as it must be, that Brazil
would not be reasonably forthcoming with serious efforts to protect the
claimant, if they were to return to Brazil
and seek protection. As stated in Ward, the claimant is required to
adduce clear and convincing evidence to rebut the presumption that the state
had the ability to protect him. The panel finds the presumption of state
protection in this case has not been rebutted.
[Emphasis added]
(RPD Decision, p.7)
[6]
In
reaching this finding, I find that the RPD erred in several ways: it only
addressed the legal position of homosexuals in Brazil rather than their real
life situation; it selectively relied on documentary evidence without addressing
evidence that contradicts its conclusions; and, even though no negative
credibility finding was made, it dismissed the Applicants’ experiences of
persecution and their explanation as to why it was unreasonable for them to
approach the authorities for protection.
[7]
In the Decision,
the RPD focuses on the legal position of homosexuals and the positive
legislative changes that are being made in Brazil to combat violence against them. For
example, it notes that some judges have recognized gay marriages, that there
have been convictions of people who have attacked gays, and that, by a court
decision, surviving partners of a gay relationship are able to gain their
partner’s pension benefits. However, the question that the RPD fails to address
is whether the legislative changes have in fact resulted in any meaningful
protection for homosexuals in Brazil. This is an error; regardless
of what positive legislative advancements are being made, it is the operational
level that must be considered (see eg. Neto v. Canada (Minister of Citizenship and
Immigration) 2007
FC 664; [2007] F.C.J. No. 893 (QL) para. 9.
[8]
While
approving all the legislative initiatives that are taking place in Brazil, the RPD failed to address striking
contradictory evidence that demonstrates that state protection in Brazil is inadequate. Quoting from
the Immigration and Refugee Board’s own information sources on country
conditions, the Decision reads:
Research directed by the Grupo Gay da
Bahia (Gay Group of Bahia, GGB), based on newspaper reports (Grupo Dignidade 29
Nov. 2005), established that the number of murders of homosexuals in Brazil increased 27 per cent in 2004 compared
to 2003 (GGB 28 Nov.
2005; O Globo 19 May 2005). According to GGB's study, there were 158 registered
deaths in 2004 versus 125 in 2003 (ibid.). In correspondence with the Research
Directorate, a representative of the Grupo Dignidade (Group Dignity) noted that
"[t]here are no official statistics as to hate crimes against people due
to their sexual orientation ... since not all the country's newspapers are
monitored and only those reports that specifically mention the victim's sexual
orientation are included" (29 Nov. 2005).
[Emphasis added]
(RPD Decision, p.4)
In addition, the RPD failed to mention numerous media
articles and other reports presented by the Applicants as evidence that the
situation for homosexuals in Brazil is precarious. Although the
RPD is presumed to have assessed all the information presented to it, it is an
error for the RPD to selectively rely upon evidence and fail to mention
evidence that directly contradicts the conclusions that it reached (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration),[1998] F.C.J. No.1425
(QL) at para 15; Cejudo Lopez v. Canada (Citizenship and Immigration)
2007 FC 1341 at para. 24 (Lopez)).
[9]
Another
error made by the RPD is that it did not address the persecution recounted in
the PIFS and the testimony of the Applicants. As the RPD accepted the
Applicants’ evidence as truthful, when addressing the state protection issue,
the RPD was bound to take into account their experiences. The Applicants’
evidence is directly contradictory to the RPD finding that they should have
approached the authorities for protection and that, if they had, protection
would have been forthcoming. As was recently confirmed by the Federal Court of
Appeal, in Hinzman v. Canada (Minister of Citizenship and Immigration) 2007
FCA 171, [2007] F.C.J. No. 584 (QL) at para. 46, the burden on an applicant to
rebut the presumption of state protection is heavier in situations where an
applicant comes from a country that is a democracy and in which the government
functions under a series of checks and balances. Therefore, in these situations
a claimant must show that he or she undertook more than usual effort to seek
out the avenues of protection available. However, if an applicant is able to
demonstrate with reliable evidence that, in his or her particular situation,
state protection does not exist, or that it would have been unreasonable to
approach these avenues, this will be enough to rebut the presumption (Carrillo
v. Canada (Citizenship and Immigration) 2007 FC 320 at para. 15).
[10]
The
Applicant argues that the RPD erred in law when it stated that the claimants
were required to approach internal avenues of protection before seeking
international protection. I agree that the RPD misstated the law in this
respect. The jurisprudence is clear that a claimant is not required to seek
protection in his or her home state in all circumstances. Rather, the
circumstances of each case must be considered contextually to determine whether
it would have been reasonable to do so. If a claimant can demonstrate that it
would be objectively unreasonable to seek protection in the circumstances, a
failure to so is not determinative on the state protection issue (Lopez,
supra at para. 24-26; Diaz De Leon v. Canada (Citizenship and Immigration) 2007 FC 1307 at para. 33);
De Araujo Garcia v. Canada (Citizenship and Immigration) 2007 FC 79 at para. 29.
[11]
In the
present case, the Applicants did not seek out state protection before they left
Brazil, however they provided
reliable evidence to explain why this was a reasonable course of action. The
Applicants presented documentary evidence stating that the police are corrupt
in Brazil and are known to target
homosexuals. The Applicant Melo also explained the reason why they did not go
to the police after his father , a police commissioner, beat up the Applicant
Carneiro:
In Brazil, things work the following way. Had I
gone to the Police and told them that my father beat me up because I was gay,
they would say ‘Great, he didn’t do anything wrong’ or, in case they had written
a report to register that, I’m sure that nothing would have happened. I’m sure
about that…I know about incidents that happened to gay people and well the
police were the perpetrators.
(Tribunal Record, pp. 262-263)
[12]
In addition,
the Applicants tendered a psychologists report for the Applicant Melo attesting
to the psychological problems that he experiences as the result of his harsh
treatment in Brazil. The RPD held that this
document has no relevance on the state protection issue:
The panel understands the emotional
impact of rejection by one’s family. However, psychologists’ opinions have no
relevance with respect to the issue of state protection and the issue of
whether the fear is objectively well founded.
(RPD Decision, p.7)
I agree with the Applicants that this statement is
incorrect. In reaching a contextual assessment of whether it is reasonable for
an applicant to have sought state protection, evidence with respect to an applicant’s
mental state can be very relevant. In failing to address the Applicants’
explanations for not seeking out state protection, including evidence of their
psychological condition, I find that the RPD erred.
[13]
As I have
found that the RPD erred in several ways in undertaking the state protection
analysis, I find that the RPD’s state protection determination is unreasonable.
[14]
Although
the finding regarding state protection formed the core of the Decision, the RPD
made an ancillary finding on subjective fear which has the effect of defeating
the Applicants’ claim:
The panel finds that the delay in making a
claim and living here illegally for about 26 months, thereby risking
deportation to the very country where they allegedly fled from, belies a
well-founded fear for persecution of need for protection, and indicates an
absence of subjective fear.
(RPD Decision, p. 2)
I find that the RPD’s conclusion that there was no
subjective fear on the part of the Applicants is nothing more than an unsubstantiated
assertion and, therefore, is patently unreasonable.
[15]
The Applicants provided significant evidence as
to why there was a delay of approximately two years between the time that they
arrived in Canada and the time
they submitted their refugee claim. Indeed, the RPD notes their explanation in
its reasons, namely, that they did not go to immigration because they did not
know anything about making refugee claims; were scared of being deported; and,
once they found out they were eligible, they submitted their claim.
[16]
Without
being rebutted by a negative credibility finding, it is presumed that the Applicants’
evidence is true (Maldonado v. M.E.I., [1980] 2 F.C 302 (C.A.)). If
the RPD did have credibility concerns, then, as a result of the presumption of
truthfulness, the RPD was required to state its reasons for doubting the
Applicants’ testimony in clear and unmistakable terms (Valtchev v. Canada (Minister of Citizenship and Immigration), [2001]
F.C.J. No. 1131 at paras. 6- 8).
[17]
The RPD
did not make a negative credibility finding; therefore, its conclusion that the
Applicants lacked subjective fear has no foundation in the evidence.
[18]
As the
RPD’s findings on state protection and subjective fear fail, I find the
Decision is rendered in reviewable error.
ORDER
Accordingly, I set aside the RPD's
decision and refer the matter back to a differently constituted panel for re-determination.
“Douglas
R. Campbell”
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