Toronto, Ontario, June 21, 2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
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”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4061-06
STYLE OF CAUSE: JOAO REIS NETO v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 20, 2007
REASONS FOR JUDGMENT
APPEARANCES:
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Karina A.K. Thompson
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Vanita Goela |
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SOLICITORS OF RECORD:
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ROBERT BLANSHAY Barristers & Solicitors Toronto, Ontario
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JOHN H.SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |
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