Federal Court Decisions

 

 

 

Date: 20070220

Docket: IMM-1978-06

Citation: 2007 FC 190

Ottawa, Ontario, February 20, 2007

PRESENT:     The Honourable Mr. Justice Shore

 

 

BETWEEN:

MARIA ISABEL RIBEIRO DA COSTA SOARES

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

INTRODUCTION

[1]               The Refugee Protection Division determined that the Applicant lacked a subjective fear due to an inordinate delay of three years in claiming refugee status in Canada. Furthermore, the Immigration and Refugee Board found that adequate state protection was available to the Applicant in Portugal and that the Portuguese government was making serious efforts to protect victims of domestic violence. Subsequent to the consideration of the Board’s decision, no basis exists for the intervention of the Court.

JUDICIAL PROCEDURE

[2]               This is an application for judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) rendered on March 29, 2006, wherein it found the Applicant neither a Convention refugee nor a person in need of protection pursuant to section 96 and subsection 97(1) of IRPA. 

 

BACKGROUND

[3]               The Applicant, Ms. Maria Isabel Ribeiro Da Costa Soares, is a 37 year old citizen of Portugal. In July 1990, Ms. Da Costa Soares married Mr. Jose Carlos Morino Soares. They lived with her parents and had two daughters.

 

[4]               Ms. Da Costa Soares alleges that she is a victim of domestic violence and that she had endured physical abuse during a period of eleven years, at the hands of her husband.

 

[5]               In 2001, the Applicant told her father of the alleged abuse and he forced her husband out of the home. The couple divorced in July 2002; nonetheless, she alleges that he continued to follow and make threatening telephone calls to her. In his threats, she alleges, he claimed that he would take the children away and kill her for ending the relationship. The Applicant, however, refused to seek police assistance as she alleges that her former husband had “friends with influence”. Moreover, she did not believe the police would be able to provide her with protection as a victim of domestic violence.

 

[6]               In August 2002, one of Ms. Da Costa Soares’ friends connected her with a relative in Canada. The Applicant fled Portugal, leaving her children in her parents’ custody. Ms. Da Costa Soares entered Canada with a six months visitor’s visa and when her visa expired, she continued to reside in Canada, without status for three years, until November 2005.

 

[7]               While living in Canada, the Applicant began a relationship with another man and had a child on February 8, 2004. When her former husband found out about her new relationship and that she had given birth, the Applicant alleges that he informed one of their daughters that he was going to kill her. 

 

[8]               In November 2005, Canadian authorities discovered that Ms. Da Costa Soares was residing in Canada without status. The Applicant, only then made a refugee application on the basis of membership in a particular social group, namely, women abused by their former spouse, under section 96 of IRPA. In her refugee application, she also claimed to be a person in need of protection, on the basis that she would face a risk to her life, risk of torture or cruel and unusual treatment or punishment in accordance with subsection 97(1) of IRPA, should she be returned to Portugal.

 

DECISION UNDER REVIEW

[9]               In its decision rendered on March 29, 2006, The Board determined that Ms. Da Costa Soares’ refugee claim provided insufficient credible or trustworthy evidence that she feared persecution on the basis of any of the enumerated Convention grounds. Thus, the Board found that she did not qualify as a refugee under the IRPA. The Board also concluded that Ms. Da Coasta Soares’ removal to Portugal would not subject her personally to a risk to her life, to a risk of torture or to cruel and unusual treatment or punishment.

 

ISSUES

[10]           1) Did the Board breach rules of procedural fairness by rejecting certain untranslated documents?

2) Did the Board err in its finding on state protection?

3) Did the Board err in the application of the Chairperson’s Guidelines on gender-related persecution (Women Refugee Claimants Fearing Gender-Related Persecution Guidelines)?

4) Did the Board err by drawing a negative inference in respect of the consideration of the Applicant’s subjective fear of persecution?

 

STATUTORY SCHEME

[11]           Section 96 of IRPA reads as follows:

 

 

[12]           Subsection 97 (1) of IRPA states the following:

STANDARD OF REVIEW

[13]           In respect of the alleged breach of procedural fairness, the proper standard of review is correctness. As such, the Court must examine the particular circumstances of the case in order to determine whether the decision-maker respected the principles of procedural fairness. If the Court determines a breach of procedural fairness occurred, it must return the decision to the first instance decision-maker for a redetermination. (Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC 565, [2005] F.C.J. No. 693 (QL), at para. 9; Canada (Attorney General) v. Fetherston), 2005 FCA 111, [2005] F.C.J. No. 544 (QL); Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] F.C.J. No. 8 (QL), at para. 15; Demirovic v. Canada (Minister of Citizenship and Immigration), 2005 FC 1284, [2005] F.C.J. No. 1560 (QL), at para. 5; Trujillo v. Canada (Minister of Citizenship and Immigration), 2006 FC 414, [2006] F.C.J. No. 595 (QL), at para. 11; Bankole v. Canada (Minister of Citizenship and Immigration), 2005 FC 1581, [2005] F.C.J. No. 1942 (QL), at para. 7.)

 

[14]           In regard to state protection, Justice Danièle Tremblay-Lamer in Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL), at paragraph 11, after conducting a pragmatic and functional analysis, determined that the assessment of state protection involves the application of the law to the facts and as such is a question of mixed law and fact, reviewable on the reasonableness simpliciter standard. This being said, there is no reason to diverge from this standard in the case at bar. As such, in what concerns state protection, a finding by the Board will not be overturned where such a finding is supported by reasons that can withstand a somewhat probing examination. (Canada (Director of Investigation and Research, Competition Act) v. Southam Inc.), [1997] 1 S.C.R. 748, at para. 56.)

 

ANALYSIS

1)   Did the Board breach the rules of procedural fairness by rejecting certain untranslated documents?

 

 

[15]           Ms. Da Costa Soares argues that she was denied a fair hearing because the Board did not grant her postponement to provide translations of key documents from Portuguese to English in support of her refugee claim; furthermore, the Applicant contends that the Board committed a breach of procedural fairness by ignoring rules 28, 29, 30 and 37 of the Refugee Protection Division Rules, SOR/2002-228 (RPD rules) by failing to consider the relevance, importance, and probative value of untranslated documents when determining whether to admit them into evidence.

 

[16]           Firstly, rule 28 (1) of the RPD rules requires all documents filed to be translated into English or French:

[17]           Rule 29(4)(a) of the RPD rules requires documents to be filed 20 days before the hearing:

 

 

[18]           Rule 30 of the RPD rules requires the Board to consider a series of factors in deciding whether to admit documents that are not filed on time in accordance with rule 29 :

 

[19]           The same factors apply to an application to have the Board consider post-hearing evidence under rule 37 of the RPD rules:

 

[20]           In the case at bar, rules 29, 30 and 37 of the RPD rules do not apply as these rules apply to a situation where a claimant has failed to disclose documentation in a timely manner consistent with the procedure set out in rule 29(4) of the RPD rules. It is important to note that the decisions cited by the Applicant, namely Ahmmed v. Canada (Minister of Citizenship and Immigration), 2005 FC 1433, [2005] F.C.J. No. 1758 (QL); S.B. v. Canada (Minister of Citizenship and Immigration), 2005 FC 791, [2005] F.C.J. No. 985 (QL); Khan v. Canada (Minister of Citizenship and Immigration), 2005 FC 1351, [2005] F.C.J. No. 1652 (QL); Ayalogu v. Canada (Minister of Citizenship and Immigration), 2006 FC 380, [2006] F.C.J. No. 484 (QL), are to be distinguished from the present case as they all apply to documents that were not disclosed in a timely manner.

 

[21]           The Applicant did not fail to comply with the 20-day disclosure rule, rather she attempted to submit into evidence, untranslated Portuguese documents, contrary to rule 28(1) of the RPD rules; therefore, the factors which are set out in rule 30 and 37 of the RPD rules have no bearing on the Board’s discretion with regard to admission of the documents at issue.

 

[22]           Secondly, it is trite law that the onus is on a claimant to present sufficient credible and trustworthy elements to establish the material elements of a claim. Although this Court has held that an unrepresented litigant is entitled to every possible and reasonable leeway to present a case in its entirety and that strict and technical rules should be relaxed for unrepresented litigants, this Court has also ruled on numerous occasions that it is also within the Board’s discretion to exclude evidence that is not material to the case before it. The Board’s decision, not to admit evidence submitted before it or to refer to each and every piece of evidence, does not amount to a reviewable error. (Yushchuk v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1324 (QL), at para. 17.)

 

[23]           In fact, the Board has great flexibility in terms of the evidence that it may consider. It is not bound by any legal or technical rules of evidence and may rely on any evidence it considers credible or trustworthy in the circumstances. (IRPA, subsection 173(c) and (d), Thanaratnam v. Canada (Minister of Citizenship and Immigration), 2004 FC 349, [2004] F.C.J. No. 395 (QL), at para. 7.)

[24]           Moreover, with respect to the articles pertaining to the lack of state protection for women who are victims of domestic violence in Portugal, it appears from the Board’s decision, that it conducted a proper analysis of the documentary evidence pertaining to the country conditions of Portugal. (Decision of the Board, at pages 2 and 3).

 

[25]           The Court finds that the Board did properly assess the objective and subjective facets of the Applicant’s claim and did not err by refusing to admit certain untranslated pieces of evidence.

 

2)   Did the Board err in its finding on state protection?

[26]           Ms. Da Costa Soares argues that the Board erred by misstating the law on state protection and by concluding, as she alleges inaccurately in regard to the Board’s finding, that there is an absolute obligation on a refugee claimant to approach his/her government for protection before international protection can be engaged; furthermore, the Applicant contends that the Board erred by drawing a negative inference from her failure to seek police protection in Portugal.

 

[27]           In its decision, the Board found the following with respect to state protection:

The claimant stated that she never complained to police because they do not help in domestic violence cases. Moreover, her husband has friends among the police, and told her it would be useless to complain; for the same reason, she did not seek a restraining order against her husband. She did not mention this in her Personal Information Form (PIF) narrative, for it slipped her mind. She did not go to any organization, because there were none in the area where she lived.

 

According to the documentary evidence on women, it is stated in part:

 

Domestic and other violence against women was a problem. The Association for Victim Support (APAV), a nonprofit charitable organization that provided confidential and free services to victims of any type of crime nationwide, received 7,515 requests for assistance via its toll free hotline and at its offices in 13 cities during the year. The individuals seeking help (nearly 86 percent of whom were women) reported 13,511 crimes, more than 80 percent involving domestic violence. According to the women’s rights NGO, Union of Women Alternative and Response (UMAR), their husbands or partners killed 47 women during the year. The Commission for Equality and Women’s Rights ran 14 safe houses for domestic violence and also had a 24 hours-a-day, 7 days-a-week phone service.

 

The law provides for criminal penalties in cases of violence by a spouse, and the judicial system prosecuted persons accused of abusing women; however, traditional societal attitudes still discouraged many battered women from using the judicial system. Under the law, perpetrators of domestic violence may be barred from contact with their victims, and, in extreme cases, the police may order the immediate expulsion of a perpetrator from the victim’s dwelling. The law defines domestic violence as a public crime, which gives police and the courts more leverage to prosecute such cases, and removes some of the burden on the abused women to file charges, since any interested party has the ability to files charges in domestic violence cases.

 

The law specifically makes rape, including spousal rape, illegal, and the Government enforced these laws effectively.

 

As also endorsed in the claimant’s document, the above are illustrations of efforts initiated and implemented by the state to improve the situation of abused women in Portugal. A Federal Court of Appeal decision on the issue of state protection endorses the principle that when the state in question is a democratic one, claimants must exhaust all courses of action open to them. As stated in Ward, the claimant is required to adduce clear and convincing evidence to rebut the presumption that the state had the ability to protect her. The panel finds the presumption of state protection in this case has not been rebutted.

 

 

[28]           Contrary to Ms. Da Costa Soares’s assertions, the Board did not state that there is an absolute requirement that all claimants approach law enforcement agencies for protection regardless of their personal circumstances. In fact, whether refugee claimants are required to approach their government before seeking international protection depends on whether it is unreasonable that a claimant did not seek state protection and whether protection would have been forthcoming had they gone to the authorities for help.

 

[29]           It is to be noted that, in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at paragraphs 49, 50 and 52, the Supreme Court of Canada determined that the State is presumed to be capable of protecting its citizens in the absence of a complete breakdown of the state. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced. A claimant might advance testimony of similarly situated individuals unassisted by state protection or the claimant's testimony of past personal incidents in which state protection did not materialize or the claimant’s personal experience as proof of a state’s inability to protect its citizens. A claimant can also provide country condition documentation to rebut the presumption that a state is capable of protecting its citizens. (See also Avila v. Canada (Minister of Citizenship and Immigration), 2006 FC 359, [2006] F.C.J. No. 439 (QL), at paras. 27 to 32.)

 

[30]           The evidence showed that the Portuguese government takes the problem of domestic violence very seriously and is making serious efforts to protect victims of domestic violence.

[31]           Thus, the Board did not err in its assessment of state protection in Portugal. On the contrary, the decision of the Board demonstrates that the Board considered the Applicant’s submissions relating to her not having sought police protection; however, it determined that the Applicant’s failure to approach the police for protection was unjustified given the evidence on country conditions indicating that the police were responding to the problem of domestic violence and perpetrators of such crimes were being prosecuted.

 

3)   Did the Board err in the application of the Chairperson’s Guidelines on gender-related persecution?

 

[32]           The Applicant argues that the reasoning of the Board clearly demonstrates that the Board did not pay attention to the Guidelines on gender-related persecution and did not apply them to the facts and circumstances of her particular situation.

 

[33]           It is important to note that the Board, in its decision, did consider and follow the Guidelines on gender-related persecution, as the Board’s analysis follows the Guidelines’ format of examination.

 

[34]           It is well established that refugee claims should be interpreted with awareness to possible gender discrimination. Where it is claimed that gender discrimination persecution exists, there must be evidence of a harm that violates the claimant.

 

[35]           The Guidelines on gender-related persecution, enacted by the Board, provide a useful approach to determining questions of risk of persecution faced by women fleeing domestic violence. The Federal Court has described the Guidelines as “...a positive, enlightened, and necessary effort by the Immigration and Refugee Board to ensure knowledgeable and sensitive consideration of the evidence of women claiming refugee status because of violence within a relationship” (Griffith v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1142 (QL), at paragraph 2-3 and 18-20). The Guidelines apply to decision of the Board and delegates of the Minister of Citizenship and Immigration.

 

[36]           The fact that violence against women is universal is irrelevant when determining whether gender-specific crimes constitute persecution. The real issues in claims of gender discrimination are firstly, whether the discrimination in issue constitutes a serious violation of a fundamental human right, and, secondly, in what circumstances can the gender discrimination be said to result from the non-existence of effective state protection. Women have an internationally protected right to protection from domestic violence and failure to provide such protection constitutes a form of gender-related discrimination.

 

[37]           In this case, the Board explicitly made reference to the Guidelines on gender-related persecution in its reasons; furthermore, a close examination of the Board’s reasons reveal that it fully considered the Applicant’s explanation as to why she did not approach the police for protection and why she did not have confidence in Portugal’s criminal justice system. That being said, the Board did not find these explanations persuasive because the documentary evidence on country conditions in Portugal established that state protection would have been forthcoming had the Applicant sought the help of the police. (Decision of the Board, at pages 2-3.)

 

[38]           Given the evidence that state protection for victims of domestic violence is available in Portugal, the Court finds that the Board did not err in its application of the Guidelines on gender-related persecution. (Sy v. Canada (Minister of Citizenship and Immigration), 2005 FC 379, [2005] F.C.J. No. 462 (QL); Diallo v. Canada (Minister of Citizenship and Immigration), 2004 FC 1450, [2004] F.C.J. No. 1756 (QL).)

 

4)   Did the Board err by drawing a negative inference in respect of the consideration of the Applicant’s subjective fear of persecution due to the substantial delay in claiming refugee status?

 

 

[39]           The Applicant argues that the Board erred by drawing a negative inference with respect to her subjective fear of persecution on the basis of the substantial delay in her claiming refugee status, without considering her reasons for not making a refugee claim sooner after her arrival in Canada.

 

[40]           A delay in claiming refugee status is “an important factor which the Board is entitled to consider in weighing a claim for refugee status”. (See also: Huerta v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 271 (QL).)

 

[41]           Thus, it is clear from the Board’s reasons that it did not ignore the explanations advanced by Ms. Da Costa Soares to justify her delay in claiming refugee status. Rather, the Board found those explanations to be inadequate and unsatisfactory considering the very lengthy and substantial delay of three years before the Applicant made her refugee claim and the fact that the Applicant only applied for refugee status after the Canadian authorities discovered she was illegally in Canada in November 2005. Consequently, the Board did not err in its determination.

 

[42]           The Applicant’s substantial delay of three years in claiming refugee status, only after having been discovered by Canadian authorities, was, in and of itself, most significant to lead the Board to conclude that the Applicant lacked a subjective fear of persecution. (Ilie v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1758 (QL), by Justice Andrew Mackay; Gamassi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1841 (QL), by Justice Yvon Pinard.)

 

CONCLUSION

[43]           For all the above reasons, the judicial review is dismissed.

 

JUDGMENT

 

THIS COURT ORDERS that

 

1.                  The application for judicial review be dismissed;

2.                  No serious question of general importance be certified.

 

 

“Michel M.J. Shore”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-1978-06

 

STYLE OF CAUSE:                          MARIA ISABEL RIBEIRO DA COSTA SOARES

                                                            v. THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

 

 

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      February 12, 2007

 

REASONS FOR JUDGMENT:       SHORE J.

 

DATED:                                             February 20, 2007

 

 

 

APPEARANCES:

 

Mr. Leigh Salsberg	FOR THE APPLICANT
Mr. Robert Bafaro	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

JACKMAN & ASSOCIATES Toronto, Ontario	FOR THE APPLICANT
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT