Date:
20120608
Docket:
IMM-7071-11
Citation:
2012 FC 722
Ottawa, Ontario, June 8, 2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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SANDRA MARIA ALVES
DIAS
PEDRO NASCIMENTO
DIAS
STEFANNY SAMARA NASCIMENTO DIAS
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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
Applicants (Sandra Maria Alves Dias and her children Pedro Nascimento Dias and
Stefanny Samara Nascimento Dias) seek judicial review of their negative
determination from the Refugee Protection Division of the Immigration and
Refugee Board (the Board), dated September 23, 2011. The Board found they
were neither Convention refugees nor persons in
need of protection within the
meaning of sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27.
[2]
For
the following reasons, their application is dismissed.
I. Facts
[3]
The
Applicants are citizens of Brazil. They fled their home country for the United
States of America (US) on February 15, 2005. They remained there without
status until entering Canada and making a refugee claim on January 8, 2010.
[4]
Sandra
(or the Principal Applicant) claimed that her husband Paulo began abusing drugs
and alcohol and physically assaulted her on a regular basis. When she went to
live with her mother in a gated condominium complex, she believes Paulo
attempted to enter but, since she had informed security guards about him in
advance, he was not permitted to do so. This prompted her to leave for the US.
II. Decision
Under Review
[5]
The
Board concluded that the Principal Applicant’s failure to claim in the US during her five years without status indicated a lack of subjective fear. The
determinative issues, however, remained that of an Internal Flight Alternative
(IFA) and the availability of state protection.
[6]
Despite
the Principal Applicant’s testimony that it would be difficult to relocate in
Brazil with her children and Paulo would be motivated to find her as he is still
“leading the same life” involving drugs, the Board found the Applicants had an
IFA in Rio de Janeiro. It was noted:
Considering the passage of time, the fact that Paulo
did not harm the claimants after they left him, that he authorized the minor
claimants to leave Brazil with Sandra, and considering his personal situation,
it is unlikely that the agent of persecution would pursue the claimants if they
were to return to Brazil. I find that it is even more unlikely that he would
pursue them in Rio de Janeiro.
[7]
The
Board also found that the Applicants had not provided clear and convincing
evidence that, on a balance of probabilities, there is inadequate state
protection in a democratic Brazil. The Principal Applicant made no effort to
seek state protection by reporting the assaults. She claimed Paulo threatened
her and she thought he would take revenge if she sought a restraining order. The
Board was not persuaded, however, that the police would not investigate her
allegations if reported to them. It found that “Sandra’s responses regarding
the effectiveness of state protection were not persuasive, since they were
largely unsubstantiated and not consistent with documentary evidence.”
[8]
It
was acknowledged that Brazil has had some difficulties in the past addressing
crime and corruption that exists within the security forces, but that, on the
whole, these issues were being addressed by the state. The evidence showed
that “Brazil has had many notable successes in its attempts to curb crime and
corruption and many of their initiatives have been effective.” Specific to the
issue of domestic violence, the Board stated “[t]he success in the initial
implementation of the new laws is evident by the number of Brazilians who are
aware of the new laws and agree with their efficacy and by the increase in the
number of clients served by the Center for Women’s Services.”
[9]
Finally,
the Board addressed whether it would be objectively unreasonable or unduly
harsh for the Applicants to move to Rio de Janeiro. It found that this would
not be the case. Since they were able to adjust to life in a new country, it
would be much easier to readjust to life in a different locale in their home
country. The Board acknowledged the psychological report referring to the
Principal Applicant’s post traumatic stress disorder and other symptoms as well
as the chronic adjustment disorder with anxiety experienced by Steffany. Regardless,
treatment for those conditions would be available to the Applicants should they
return to Brazil.
III. Issues
[10]
This
general issue before this Court is the reasonableness of the Board’s decision.
IV. Standard of Review
[11]
Questions
where the legal issues cannot be easily separated from the factual issues
generally attract a standard of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 51). More specifically, this
standard applies to findings regarding state protection (Mendez v Canada (Minister of Citizenship and Immigration), 2008 FC 584, [2008] FCJ No 771 at paras
11-13) and an IFA (Rodriguez Diaz v Canada (Minister of Citizenship and
Immigration), 2008 FC 1243, [2008] FCJ no 1543 at para 24).
[11]
[12]
This
Court is concerned with whether the decision demonstrates the existence of
justification, transparency and intelligibility or, to put it another way,
falls within a range of possible, acceptable outcomes defensible in respect of
the facts and law (Dunsmuir, above at para 47).
V. Analysis
[13]
The
Principal Applicant takes issue with the Board’s finding regarding her failure
to seek protection in the US. The Board stated at paragraph 12 of its reasons:
Sandra did not pursue any avenues of protection
while in the USA for almost five years. I find her actions to be unreasonable
for a person fearing persecution in her home country. Sandra did not even ask
an immigration consultant or lawyer about any prospect for protection, even
though it was not likely that there was any risk in asking. These are not
actions consistent with a person who fears returning to her home country. From
these actions I draw an adverse inference with respect to Sandra’s subjective
fear. I am persuaded that if Sandra was genuinely fearful of returning to Brazil, she would have made some attempt to normalize her status in the USA. I conclude that her
failure to claim in the USA indicates a lack of subjective fear.
[14]
The
Principal Applicant contends that she testified to her understanding that only
one percent of those seeking asylum in the US would be granted it and she was
too fearful of being deported to Brazil. She implies that since the Board did
not identify any credibility issues associated with her testimony as a victim
of domestic violence, it failed to consider the totality of her evidence in not
seeking protection in the US.
[15]
I
cannot accept the Applicants’ position that the Board’s reasoning was
unreasonable in the circumstances. As is evident in the above passages and at
other points in the decision, her stated fears of being deported to Brazil from the US were given detailed consideration by the Board. It was nonetheless found that
her actions in not asking about the possibility of seeking protection in five
years without status were not consistent with someone truly fearing to return
to their home country and this called into question her subjective fear. Moreover,
the Board addressed the issue of subjective fear, but still considered the
state protection and IFA findings determinative.
[16]
The
Board’s reasoning is consistent with relevant jurisprudence. The Applicants
were expected to make a claim at the first possible opportunity (see Jeune v
Canada (Minister of Citizenship and Immigration), 2009 FC 835, [2009] FCJ
no 965 at para 15). More recent cases of this Court stress that absent a
satisfactory explanation for the delay in seeking protection, it “can be fatal
to such a claim, even where the credibility of an applicant’s claims has not
otherwise been challenged” (Velez v Canada (Minister of Citizenship and
Immigration), 2010 FC 923 at para 28). While the Principal Applicant
explained that she was fearful, the Board did not consider this testimony
sufficient to address the concerns raised regarding her subjective fear.
[17]
The
Applicants further contests the Board’s analysis of state protection in
faulting her for not going to police despite her belief that this would
aggravate the situation. In support of this position, she points to concerns
regarding the lack of adequate state protection for victims of domestic violence
in documentary evidence.
[18]
She
is not, however, relieved of her obligation to attempt to seek state
protection. She made no effort to do so in this instance. In Bolanos v Canada (Minister of Citizenship and Immigration), 2011 FC 388, [2011] FCJ no 497 at
para 60, Justice James Russell commented:
[60] […] The Applicant cannot, in my view, argue
that state protection is inadequate in Mexico because, as a vulnerable woman,
she is reluctant to seek it. She may well have subjective fears in this regard,
but if the state can, objectively speaking, provide adequate protection for
women in her position then she has not rebutted the basic presumption that
state protection is available to her.
[19]
Such
reasoning is applicable to the Applicant’s case. Irrespective of the Principal
Applicant’s belief that an attempt to seek protection in Brazil would merely aggravate the situation, this does not address her failure to rebut the
presumption of state protection. The Board’s conclusions in this regard were
appropriate based on the evidence. It was noted that the Applicants “did not
take all the reasonable steps in the circumstances to seek protection in Brazil before seeking international protection in Canada. Sandra made no effort at all to seek
state protection in Brazil. She did not report Paulo’s physical assaults or
threats to police at any time.”
[20]
The
Applicants do raise some interesting arguments regarding the Board’s treatment
of documentary evidence specific to the issue of state protection for victims
of domestic violence in Brazil. They insist that the Board ignored certain
negative and contradictory information on this issue and point to particular
relevant examples.
[21]
Despite
concerns regarding the failure to specifically mention some negative country
documentation on the issue of domestic violence, the overall conclusion that Brazil is capable of providing adequate state protection to the Applicant, if she had
requested it, remains reasonable in the circumstances.
[22]
Similarly,
I consider the Board’s determination regarding an IFA an acceptable outcome in
light of the facts and law. The Board specifically addressed the Applicants’
psychological report and accepted the conditions identified in it. The Board
found that “should the claimants return to Brazil, treatment for their
conditions would be available to them.” This ensured that would not be objective
unreasonable or unduly harsh to expect the Applicants to move to Rio de Janiero
as an IFA. Even though the Applicants anticipated a more favourable
assessment, having considered all relevant evidence, the Board’s approach was
reasonable.
VI. Conclusion
[23]
Accordingly,
this application for judicial review is dismissed
JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed.
“
D. G. Near ”
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