Date: 20050425
Docket: IMM-3105-04
Citation: 2005 FC 559
Vancouver, British Columbia, Monday, the 25th day of April, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
GUSTAVO BERTOLINO VANDERLEI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently written for clarification and precision)
[1] The Applicant is a 27 year-old citizen of Brazil. He claims he has been persecuted in Brazil as a result of his homosexuality and cannot live openly as a homosexual. His adoptive mother told him that if he was a homosexual she would throw him out of the house. He lived with his sister for two years and then returned to his mother's house. At the age of 20, the Applicant began to feel depressed and claims he eventually attempted to take his life. He also suffered insults and physical abuse throughout his school years, particularly in university.
[2] The Applicant claims to have had extensive problems with fellow employees and various jobs he has held. Following a visit to a gay bar in Sao Paulo, the Applicant claims he and his friend were waiting for a taxi and two police officers saw them kiss. The police pushed the Applicant and his friend up against a wall and then took them to a detention centre where they were placed in separate rooms and berated for four hours about their sexual preference.
[3] The Applicant states there is no security from prejudice in Brazil and, although the laws protecting homosexuals do exist, they are not enforced. He claims that every two days a hate crime is committed against a homosexual. The Applicant obtained a visitor's visa to Canada on April 19, 2002, and arrived in Toronto on April 21, 2002.
[4] The Board accepted that the Applicant is a homosexual but stated that the societal discrimination he faced did not amount to persecution. The Board accepted that there were serious problems in Brazil with regard to the treatment of homosexuals, but found that the government had passed a law providing for prison sentences or fines for acts of discrimination based on sexual orientation, and noted several other forms of progress in the area of discrimination due to sexual orientation. It also noted that the Applicant had not gone to the police to file a complaint following any of the incidents that occurred. It concluded that the Applicant had not established the basis for either subjective or objective fear of persecution.
[5] The Applicant argues that:
a) the Board erred by referring selectively to the documentary evidence submitted and only noting the areas of progress, not the areas of regression. In his submission, Brazil today is a hotbed of homophobia and leads all other countries in terms of murder per capita of homosexuals; and
b) the Board misinterpreted his evidence regarding subjective fear of persecution.
[6] Both sides agree that the applicable standard of review is patent unreasonableness (see Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17.)
[7] Looking at the points raised by the Applicant in reverse order, I find it difficult to agree with the Applicant. As stated by Dawson J. in De Baez v. M.C.I., 2003 FCT 785:
The dividing line between persecution and discrimination may be difficult to establish. It is in every case a question of mixed fact and law. The conclusion of the CRDD as to the existence of discrimination or persecution may be set aside by this Court only if perverse or capricious, or made without regard to the evidence.
[8] In this case, the Applicant when questioned about his fear replied as follows:
RPO: Who do you fear in Brazil?
CLAIMANT: Some friends. Some relatives.
RPO: Anyone else?
CLAIMANT: No.
RPO: Which friends are those?
CLAIMANT: Some friends from school that live close to my home.
RPO: So, they live in which city?
CLAIMANT: In the same city, Ribeirao Pires.
RPO: Which relatives do you fear?
CLAIMANT: Well, two cousins.
INTERPRETER: He's using the masculine here.
RPO: Okay. So, two male cousins?
CLAIMANT: Yes.
RPO: Anyone else?
CLAIMANT: No.
RPO: Sir, did you ever go to the police when you were in Brazil?
CLAIMANT: No.
RPO: Why?
CLAIMANT: I do not go to the police because not to have problems because if I gone to the police, I would have even more problems at home and with my family.
RPO: Why would you have more problems?
CLAIMANT: The biggest problem that I have is with my mother.
[Certified Tribunal Record, Transcript, at 347]
RPO: What do you think could happen to you if you went back to Brazil today?
CLAIMANT: I do not have even any idea as to what could happen to me.
RPO: What do you mean by that?
CLAIMANT: When I left the house, I left my house, I left leaving behind a lot of upset and a lot of fights because of all of this.
RPO: So do you think you could still live safely in Brazil today?
CLAIMANT: No. I do not believe I could because first of all if I go back and I cannot go back to my home.
RPO: First of all. Secondly?
CLAIMANT: I go back to my old life, there's not much to do.
[Certified Tribunal Record, Transcript, at 348-349]
[9] And, in reply to why he did not seek police protection, he answered quite ambiguously:
CLAIMANT: There would be more upset because I had a big enough problem with my family for being gay. If I go to the police to try and get help, I don't know what the attitude of my family would be.
RPO: So you are saying that you fear your family basically, because if you went to the police, your family would be upset at you?
CLAIMANT: Yes, correct.
RPO: Do you think the police would help you?
CLAIMANT: I do not think so.
RPO: Why not?
CLAIMANT: The police situation in Brazil is very disorganized. Its so-the police are so confusing. If you go to the police you don't know whether you will get help and especially towards gays.
[Certified Tribunal Record, Transcript, at 348]
[10] The fear expressed by the Applicant and his history of having been berated by police for his sexual orientation do not meet the requirement of persecution. As stated in Rajudeen v. Canada (1985), 55 N.R. 129, by Stone J.A.:
Obviously, an individual cannot be considered a "Convention refugee" only because he has suffered in his homeland from the outrageous behaviour of his fellow citizens. To my mind, in order to satisfy the definition the persecution complained of must have been committed or been condoned by the state itself and consist either of conduct directed by the state toward the individual or in it knowingly tolerating the behaviour of private citizens, or refusing or being unable to protect the individual from such behaviour.
[11] The answers given by the Applicant show that he fears his family, but he has not demonstrated by his own testimony that he fears the police or the toleration by police of any violence against him.
[12] On the basis of these answers, there was nothing patently unreasonable in the Board's finding that: "The panel finds that the societal attitude directed against him does not amount to persecution even if considered cumulatively."
[13] Given this conclusion, there is no need for me to consider the second leg of the Applicant's argument.
[14] Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
(Sgd.) "K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3105-04
STYLE OF CAUSE: GUSTAVO BERTOLINO VANDERLEI
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, ON
DATE OF HEARING: April 12, 2005
REASONS FOR ORDER AND ORDER: von FINCKENSTEIN J.
DATED: April 25, 2005
APPEARANCES:
Mr. Mario D. Bellissimo for Applicant
Ms. Marissa Bielski for Respondent
SOLICITORS OF RECORD:
Ormston, Bellissimo, Younan for Applicant
Toronto, ON
John H. Sims, Q.C. for Respondent
Deputy Attorney General of Canada
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