Date: 20070621
Docket: IMM-4061-06
Citation: 2007 FC 664
Toronto, Ontario, June 21, 2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
JOAO
REIS NETO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Joao
Reis Neto is a young gay man from Brazil, who claims to fear
persecution in that country at the hands of his grandfather, who had previously
abused him. He also claims to fear the Brazilian police, as well as Brazilian
society at large, both of whom, he says, are extremely homophobic.
[2]
While
accepting that Mr. Neto is gay, and had indeed been the victim of abuse and
sexual violence while living in Brazil, the Refugee Protection
Division of the Immigration and Refugee
Board nevertheless rejected his claim on
the basis that adequate state protection was available to him in that country.
[3]
Mr.
Neto now seeks to challenge this decision, arguing that the Board’s state
protection finding was based upon a selective reading of the country condition
information. He also asserts that the Board erred in refusing to assign any
probative value to the country condition information that he produced in
support of his claim.
[4]
For
the reasons that follow, I am satisfied that the Board’s state protection
analysis was patently unreasonable. As a consequence, the application for
judicial review will be allowed.
Standard of Review
[5]
While
I am satisfied that the Board’s decision cannot survive scrutiny, even under
the patent unreasonableness standard advocated by the respondent, I am
nevertheless satisfied that a determination by the Refugee Protection Division
that adequate state protection is available to a claimant in his or her country
of origin is one that is properly reviewable against the standard of
reasonableness. In this regard, I adopt the pragmatic and functional analysis
carried out by Justice Tremblay-Lamer in Chaves v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 232, 2005 FC 193.
Analysis
[6]
There
are three different problems with the Board’s analysis in relation to the state
protection issue.
[7]
Although
the Board was provided with a substantial body of documentary evidence
regarding conditions for gays and lesbians within Brazil, the Board
focussed its analysis on two IRB documents: namely, the Brazilian portion of a
“World Legal Survey” published by the International Lesbian and Gay
Association, and a press report from the Latin America Press.
[8]
In
its analysis, the Board quoted a series of extracts from these documents,
primarily directed to the general proposition that Brazil is making sincere
efforts, primarily through the enactment of legislation, to increase the level
of protection available to gays and lesbians in that country.
[9]
However,
while the Board spends considerable time discussing the legislative efforts
being made in Brazil to combat homophobia, no real consideration is given to
whether these actions have in fact translated into any meaningful protection
being available for gays and lesbians in that country. This is an error: see,
for example, Franklyn v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1249, at paras. 21 and 24.
[10]
Secondly,
amongst the extracts from the documentary evidence quoted by the Board to
support its conclusion that adequate state protection was available to Mr. Neto
in Brazil is the statement that “Although homosexuality is not illegal, the
police use the pretext of ‘safeguarding morality and public decency’ and
‘preventing outrageous behaviour’ to stop, arrest, and bring gays to trial”.
[11]
While
seemingly accepting that the Brazilian police are involved in the persecution
of gays, the Board then goes on to conclude that state protection is
nonetheless available to gays and lesbians. It seems to me that the Board’s
finding that state protection is available from the police requires further
explanation, given the Board’s apparent acceptance that the police are
themselves agents of persecution.
[12]
Finally,
and perhaps most egregiously, the Board dismissed, virtually out of hand, all
of the documentary country condition evidence adduced by Mr. Neto outlining the
nature and extent of the dangers faced by gays and lesbians in Brazil. In so
doing, the Board stated:
The panel has considered the
documentary evidence submitted by counsel on the claimant’s behalf, together
with counsel’s submissions, and agree[s], to some extent, that prejudices
against homosexuals do exist in Brazil as in a lot of countries all over the
world. The documentary evidence cited by the Immigration and Refugee Board
(IRB) herein, is drawn from a variety of reliable and independent sources, none
of who have any vested interest in whether or not, the claimant is determined
to be a Convention refugee. The panel assigns far greater probative value to
this documentary evidence. To that extent they are free of bias.
[13]
It
should firstly be noted that the evidence in question is not evidence relating
specifically to Mr. Neto’s personal circumstances, nor was it prepared by
relatives, friends, or others who could at least arguably have a “vested
interest in whether or not, the claimant is determined to be a Convention
refugee”. Rather, it consists of precisely the same type of documentary
evidence (namely studies by NGOs and press reports) as was provided by the Immigration
and Refugee Board itself.
[14]
Most
problematic, however, is the fact that one of the articles relied upon by Mr.
Neto was a report from the International Lesbian and Gay Association describing
Brazil as the “World Champion in the Murder of Homosexuals”. With all due
respect, it was simply perverse for the Board to accept as reliable a report
from the International Lesbian and Gay Association provided by the IRB, and to
reject a second International Lesbian and Gay Association report, this one produced
by Mr. Neto, on the basis that it did not come from a reliable and independent
source.
[15]
While
conceding that the Board’s finding in this regard was “problematic”, the
respondent submits that the application for judicial review should nonetheless
be dismissed, as any re-determination of the claim would inevitably lead to the
same result.
[16]
I
do not agree. While there are undoubtedly problems with Mr. Neto’s claim, I
cannot say that the outcome of the case is so free from doubt as to render a
re-hearing futile: see Yassine v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 949 (F.C.A.), and Mobil Oil Canada Ltd.
v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202.
Conclusion
[17]
For
these reasons, the application for judicial review is allowed.
Certification
[18]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different panel of the Refugee Protection Division for re-determination; and
2. No serious question
of general importance is certified.
“Anne Mactavish”
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