Docket: IMM-8373-04
Ottawa, Ontario, this 17th day of August, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Mr. Claudio Cabral Nascimento, made a claim for protection in Canada based on his membership in a particular social group, that being a gay man. The Applicant believes that, as a homosexual, he is a target of a gang called "skinheads", whose intention is to "exterminate" homosexuals. He was threatened on one occasion and assaulted on a second occasion by an unidentified individual. The Applicant reported the assault to the police and was interviewed by a police officer who took no action. In a decision dated August 19, 2004, a panel of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), determined that the Applicant was not a Convention refugee nor a person in need of protection. The determinative factor in the Board's decision was that the Applicant "has not done enough to seek protection from the state which could have been made available". The Applicant seeks judicial review of this decision.
[2] The issue in this application is whether the Board erred in concluding that the Applicant had failed to rebut the presumption of state protection.
[3] There was a difference of opinion on the appropriate standard of review in this case. The Respondent submits that the standard is the most deferential - patent unreasonableness (Hovarth v. Canada (Minister of Citizenship and Immigration), 2001 FCT 583; Alli v. Canada (Minister of Citizenship and Immigration), 2002 FCT 479; Ye v. Canada (Minister of Citizenship and Immigration), 2002 FCT 201). However, in Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 232, Justice Tremblay-Lamer, after undertaking a pragmatic and functional analysis, concluded that the appropriate standard of review when dealing with state protection is reasonableness simpliciter. For purposes of this decision, I will adopt her conclusion.
[4] In Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at para. 47, Justice Iacobucci outlined the application of a reasonableness standard:
¼The standard of reasonableness basically involves asking "After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?" This is the question that must be asked every time the pragmatic and functional approach in Pushpanathan, supra, directs reasonableness as the standard. Deference is built into the question since it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage de novo in its own reasoning on the matter ¼ [emphasis added]
[5] In the context of a determination of state protection, the "somewhat probing examination" should satisfy the Court that the Board was aware of and applied the correct legal test. In this case, the Board stated that the Applicant "must provide clear and convincing proof of the state's inability to protect and it is the claimant's responsibility to approach the state for protection in situations in which it might reasonably be forthcoming". This, in my view, is a succinct and correct statement of the test for state protection as set out in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at para. 25. In other words, the Board began its analysis with an awareness that a claimant should not have to risk his life to seek ineffective state protection (Ward, at para. 48).
[6] Having asked itself the correct legal question on state protection, the Board's task at that point was to review the evidentiary basis for the rebuttal of the presumption of state protection. To rebut the presumption of state protection, a claimant might advance testimony of similarly situated individuals let down by the state's protection mechanisms or personal incidents where state protection did not materialize. Where a claim is made against a democracy with effective political and judicial systems, the failure of particular members of the police to furnish protection is insufficient to demonstrate a lack of state protection (Kadenko v. Canada (Minister of Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532; 206 N.R. 272 (F.C.A.), leave to appeal dismissed May 8, 1997, S.C.C. file no. 25689). Finally, I note that a government's efforts at protecting its citizens does not have to be perfect (Canada (Minister of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232 (F.C.A.)) and that, "absent a situation of complete breakdown of state apparatus . . . it should be assumed that the state is capable of protecting a claimant"(Ward, at para. 50).
[7] At this stage of my review, a "somewhat probing" examination does not consist of a de novo review of the evidence. In a judicial review, the reviewing judge is not to re-evaluate and re-weigh the evidence as though she is the trier of fact. It is not open to the reviewing court to reverse a decision because it would have arrived at a different conclusion.
[8] The Board's analysis of the issue, leading to its findings under both s. 96 and s. 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), consists of the following elements and findings:
_ The Applicant only attempted to obtain assistance from one police officer on one occasion when he received a minor injury. He was unable to identify his assailant and, therefore, the police officer did not help him.
_ In response to an example of a similarly situated individual (that is, a man who was killed in the Applicant's neighbourhood) raised by the Applicant, the Board noted the evidence that two persons were convicted of this offence and sentenced to 21 years in prison.
_ The Board accepted that there was "discrimination"against homosexuals in Brazil.
_ The Board noted that San Paolo has a law protecting against discrimination on the basis of sexual orientation.
_ The Board acknowledges isolated incidents involving of the murder of homosexuals in Brazil.
_ The Board notes that there are "millions" of homosexuals living in Brazil" and that "Many of them are living in the open, and are not facing a serious possibility of death".
[9] In summary, the Board concluded that the Applicant had not done enough to seek protection which could have been available from the state. Having reviewed the reasons of the Board and the evidence before it, I am satisfied that the Board weighed the evidentiary basis of the Applicant's claim that state protection would not have been available to him, as a gay citizen of Brazil. In short, the evidence, as a whole, does not show a breakdown of the state's apparatus and, thus, an inability of Brazil to protect its gay citizens.
[10] The Applicant argues before me that the Board failed to consider the evidence showing that the police participate in and are complicit in acts of violence against gays and that the Board erred by failing to take this danger into account. There are several reasons why this argument must fail.
[11] I begin by stating that the fact that some of the documentary evidence was not mentioned in the Board's reasons is not fatal to its decision (Hassan v. Canada (Minister of Employment and Immigration), (1992) 147 N.R. 317 (F.C.A.)). However, the more important a particular document is to the evidentiary basis of the claim, the greater the duty on the Board to deal explicitly with that evidence. But, in my view, where the claimant does not identify or make an argument to which the documents relate, the Board does not err when it fails to explicitly address the documents that relate to this unidentified portion of his claim.
[12] In this case, had the Applicant stated a fear of the police in his submissions or alleged that the police were unwilling to help him because, as an institution, they do not assist homosexuals and relied on specific evidence to support that claim, the Board may have been obliged to specifically address the evidence presented on the issue. In this case, the Applicant did not, at any time, state that he feared the police in Sao Paolo or, in general, in Brazil. Nor does he allege that his assailant was a state agent. Final submissions by his counsel at the Board hearing focused on two documents only and did not raise the issue now raised by the Applicant of the complicity of police in acts of aggression against gays in Brazil. In this case, the Board's reasons are responsive to the case presented to it. That is sufficient.
[13] Further, even with this evidence, it was still open to the Board to conclude that the Applicant had failed to show lack of state protection. As was stated in Villafranca:
where a state is in effective control of its territory, has military, police and civil authority in place, and makes serious efforts to protect its citizens from terrorist activities, the mere fact that it is not always successful at doing so will not be enough to justify a claim that the victims of terrorism are unable to avail themselves of such protection.
[14] In my view, the situation in Brazil fits this description. While the evidence demonstrates problems with some members of the police, it does not show that the state has lost control of its police.
[15] Thus, I conclude that the Board has considered and weighed all of the evidence before it, including the documents now highlighted by the Applicant.
[16] The Applicant submits that the Board's statement that there were "millions of homosexuals living in Brazil" is unsupported by the evidence. I agree; there is simply no basis for the Board to conclude that there are "millions of homosexuals". However, the point of the statement was not the exactness of the population number; rather, the Board was noting that many gays in Brazil live openly and without serious problems. The documentary evidence supports this statement. Any error in the precise number of homosexuals is irrelevant to the overall decision.
[17] With respect to the submission of the Applicant that the Board failed to conduct a s. 97 analysis, I note that the Applicant made no separate submissions directed to the risk he faces included in this provision. His one stated fear was of the "skinheads"who target homosexuals. Under s. 97, as under s. 96, the Applicant is required to demonstrate the inability of Brazil to protect him. He failed to meet that burden with respect to s. 96. Accordingly, there was nothing before the Board that could have resulted in a different outcome or that required separate analysis by the Board for purposes of s. 97. Even if the Board erred in not undertaking a clear s. 97 analysis, there would be no purpose served by sending this matter for re-determination.
[18] In conclusion, I am satisfied that the reasons, when taken as a whole, stand up to a "somewhat probing" examination. The application for judicial review will fail.
[19] The question of the appropriate standard of review for determinations of state protection may not be finally determined by this Court, and may be a question of general importance. The parties agreed that, if I determined that the decision was unreasonable but not patently unreasonable, the situation would warrant certification of a question on the correct standard of review. However, given my conclusion that the decision met the lower standard of reasonableness simpliciter, the question is not determinative of the application before me. Accordingly, no question will be certified.
ORDER
This Court orders that:
1. The application is dismissed; and
2. No question of general importance is certified.
______________________________
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: CLAUDIO CABRAL NASCIMENTO v. THE M.C. & I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 28, 2005
AND ORDER: The Honourable Madam Justice Snider
APPEARANCES:
Mr. Michael F. Battista FOR APPLICANT
Mr. David Tyndale FOR RESPONDENT
SOLICITORS OF RECORD:
Watson Jordan Battista FOR APPLICANT
Barristers & Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada