Ottawa, Ontario, August 10, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
DOLORES AMORIM MARQUES GONTIJO
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[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.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5000-05
STYLE OF CAUSE: DOLORES AMORIM MARQUES GONTIJO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: Phelan J.
APPEARANCES:
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Ms. Maureen Silcoff
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Ms. Linda Chen
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SOLICITORS OF RECORD:
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MS. MAUREEN SILCOFF Barrister & Solicitor Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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