Date: 20060810
Docket: IMM-5000-05
Citation: 2006 FC 962
Ottawa, Ontario, August 10,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
DOLORES
AMORIM MARQUES GONTIJO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant is a fifty-year-old female citizen of Brazil who claimed
refugee status on the grounds of being a woman abused by her common-law spouse.
The Immigration and Refugee Board (Board) rejected her claim on the basis that
there was no subjective fear and, in any event, that there was state protection
for her in Brazil. This is the
judicial review of this negative decision.
II. Facts
[2]
The
Applicant was in a three-year common-law relationship with a citizen of Portugal who was
living illegally in Canada. She was also in Canada illegally.
[3]
The
common-law relationship was permeated with abuse – a fact accepted by the
Board. Physical abuse started in April 2003, involved seven separate instances,
and culminated in an incident on January 20/21, 2005. As a result of this last
incident, the police were called, and her common-law spouse arrested. As a
consequence of this police involvement, immigration authorities learned of the
Applicant’s illegal status. In response, she claimed refugee protection.
III. Analysis
[4]
The
Board may well have had grounds for finding the Applicant’s subjective fear
questionable but such finding, even on the standard of review of patent
unreasonableness, must be supported by the facts put in evidence.
[5]
In
rejecting the element of subjective fear, the Board, undermining her claim that
she stayed in the abusive relationship because of love, held that she was a
very well-educated woman, had sought the assistance of a community centre after
the first incident of physical abuse, and had given her passport to the centre
so that her spouse could not burn it.
[6]
The
fact of seeking assistance from the community centre and the timing thereof,
“after the very first incident of physical abuse”, was described as an
important fact. It was, however, incorrect. The Applicant sought assistance
from the centre in January 2003 not April. The correct evidence might suggest
that she was attempting to regularize her status which would impact on the
credibility assessment.
[7]
Under
the circumstances, given the importance the Board attached to the seeking of
assistance from the centre, this factual error goes to the root of the
credibility finding which as a result cannot be sustained.
[8]
The
Board also found that the existence of state protection in Brazil was
determinative. While there may be some debate as to whether the standard of
review on this issue is “reasonableness” or “patent unreasonableness” (Larenas
v. Canada (Minister of Citizenship and Immigration), 2006 FC 159, [2006]
F.C.J. No. 218 (QL); Chaves v. Canada (Minister of Citizenship and
Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL); Nawaz v. Canada
(Minister of Citizenship and Immigration), 2003 FC 1255; [2003] F.C.J. No.
1584 (QL); Ali v. Canada (Minister of Citizenship and Immigration), 2004
FC 1449, [2004] F.C.J. No. 1755 (QL)), even adopting the more deferential
standard of patent unreasonableness, this finding cannot stand.
[9]
The
Applicant argues that the Board erred in its application of the legal test by
adopting the test of whether Brazil was making “serious efforts” to address
spousal abuse/state protection. The Applicant argues that the test should be
whether the state has been “effective” in its state protection.
[10]
For
purposes of this case, the different tests are immaterial. Even the “serious
efforts” test requires some element of reality in addressing the particular
problem of that aspect of state protection. The “effectiveness” test raises
issues as to what standards are to be applied and a host of other concerns
which are not necessary to address in this case.
[11]
The
Board speculated that the Applicant had no basis for concern that her spouse
would track her to Brazil. This was because he would have trouble getting
through Brazilian immigration authorities with a possible Canadian criminal
record. Given that the spouse was a Portuguese citizen likely to be deported
because of his illegal status and conduct, the Board erred by failing to consider
the likelihood of his entry from Portugal rather than Canada. Further,
there was no evidence of immigration formalities in Brazil which would
ground this finding.
[12]
While
the Board acknowledged that evidence of state protection for abused women in Brazil was mixed,
the government had acted to combat violence against women. The Board relied on
the 2004 U.S. Department of State Country Report on Human
Rights Practices in Brazil in support of its
conclusion that state protection was available. That finding flies in the face
of the U.S. Department of State Report conclusion that:
According to government officials and NGO
workers, the majority of criminal complaints regarding domestic violence were
suspended without a conclusion.
[13]
It
may be open to the Board to reach a conclusion that state protection exists but
it is impossible to understand how it did so in this case given the evidence on
state protection and the Board’s acceptance and reliance on the U.S. Department
of State Report without addressing the above admission by Brazilian government
officials.
[14]
Therefore,
the conclusion on state protection is patently unreasonable. This application
for judicial review will be granted, the Board’s decision quashed and the
matter referred back to a differently constituted panel for a new
determination.
[15]
For
reasons touched upon earlier in this decision, I will not certify a question in
respect of the test of “serious efforts” and “effectiveness”.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is granted, the Board’s decision is quashed and
the matter is to be referred back to a differently constituted panel for a new
determination.
“Michael
L. Phelan”
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