Date: 20050414
Docket: IMM-4097-04
Citation: 2005 FC 506
Toronto, Ontario, April 14th, 2005
Present: The Honourable Mr. Justice Strayer
BETWEEN:
MARIA ROSA DE ALMEIDA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review to set aside a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board (the "Board") dated March 31st, 2004. That decision rejected a claim by the claimant for status as a refugee or a person requiring protection.
[2] The claimant is a Brazilian. She was unmarried and in 1996 her "boyfriend" (I shall refer to him as her "partner") moved in with her. They lived together for three years but because he started drinking heavily and became physically and emotionally abusive to her, she told him to move out. He did, but threatened to come back and she believes that he did return at least once and killed her dog. She was afraid to live alone and went to stay with her brother in the same city of Campinas. After a while there she moved a long distance away to Brasilia but her former partner came to Brasilia and was seen by one of her nephews. She moved to her brother-in-law's farm in Tocantins, and then went back to Brasilia and then to Campinas. She decided to move to Canada in early 2001. She went to the Canadian Consulate and applied for a Visitor's Permit for Canada telling the Visa Officer that she wanted to come to Canada for a two month visit. She gave the name of her former partner as a spouse and explained that he was not going to Canada with her because he had to work. This information was of course inaccurate. Once in Canada she claimed refugee status. She asserts that she is afraid to return to Brazil because she is afraid that her former partner will find her and abuse her. While she never reported his threats or abusive conduct to the police while in Brazil, she says that the police will do nothing to protect her as they do not take much interest in domestic violence.
[3] The Board drew a "negative inference" about her credibility based on the misinformation she gave when obtaining a visitor's permit. It was unable to find an objective basis for her fear of being found and abused by her former partner, having regard to the size of Brazil and the existence of several large cities. It discounted the ability of her partner to find her attributing his previous successful pursuit to the fact that he knew where her relatives lived and could assume that was where she would be. The Board also questioned that this man who is said to be unemployed could afford to pursue her. The Board also concluded that she had not met the burden on her of demonstrating that state protection would not be available to her. In doing so it laid some emphasis on the fact that she had never asked the police for protection and therefore could not persuasively demonstrate she could not have such protection. Further, the Board took note of documentary materials which demonstrated that while there were problems with domestic violence in Brazil the situation was improving.
[4] The claimant attacks the Board's decision on essentially three grounds. First her Counsel argues that by drawing a negative inference as to the claimant's credibility because of the misinformation she provided to the Visa Officer it relied on an irrelevant consideration which tainted the whole decision. He referred to the Court of Appeal decision in Fajardo v. Canada (1993), 157 N.R. 392 at 394 where that Court said that one could not draw a negative inference as to credibility from the fact that a claimant had lied to a Visa Officer to conceal his or her intent of making a refugee claim once in Canada: the Court observed that this is something that all but "the most naive applicant for a visitor's visa" would do in order to obtain quickly a visitor's visa allowing departure for Canada where the refugee claim could then be made in the safety of Canada. I agree with Counsel for the claimant that this was not a proper inference to draw as to the credibility of her subsequent refugee claim. It was an irrelevant consideration and patently unreasonable.
[5] Upon careful examination of the entire decision of the Board, however, I am not satisfied that this mistake is fatal to the ultimate decision. The decision turns essentially on the Board's conclusion as to the lack of an objective basis for the fear and the failure of the claimant to bring forward sufficient facts to rebut the presumption of the availability of state protection. The Board does not question her version of events in Brazil as described by her but concludes that they do not add up to a convincing demonstration of probable future persecution there by her ex-partner. On the other hand the Board takes note of documentary material showing growing governmental concern in Brazil about violence to women, the presence now of Women's Police Stations, of shelters for women, etc. In describing this material the Board gives a balanced view showing that it has taken into account the negative aspects of this situation as well.
[6] The claimant attacks the decision in part on the basis that it wrongly finds her to have an internal flight alternative: improper because it does not specify where in Brazil this alternative lies. Reliance is placed on decisions such as Rabbani v. Canada (1997), 125 F.T.R. 141, where it was said by this Court that a person in Afghanistan being sought by one major warring faction could not be said to have an internal flight alternative unless the Board could identify an area that would be permanently safe for him, the situation constantly changing with various factions gaining and losing territory. Although the Board here in its description of the issues states one of them to be internal flight alternative, in fact it does not again refer to that concept. Instead it concludes that, given the size and population of Brazil, and the fact that the claimant is only in danger from one person in the whole country, there is not sufficient objective grounds for the fear of persecution or abuse.
[7] The claimant of course challenges the way in which the Board weighed the objective evidence as to the availability of State protection. I am unable to say that it reached its factual conclusions in a perverse or capricious manner or without regard to the material before it.
I will therefore dismiss the application for judicial review.
ORDER
THIS COURT ORDERS that the application for judicial review be dismissed.
"B.L. Strayer"
D.J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4097-04
STYLE OF CAUSE: MARIA ROSA DE ALMEIDA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 13, 2005
REASONS FOR ORDER
AND ORDER BY: STRAYER J.
DATED: APRIL 14, 2005
APPEARANCES BY:
Michael Korman FOR THE APPLICANT
Neeta Logsetty FOR THE RESPONDENT
SOLICITORS OF RECORD:
Otis & Korman
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT