Date: 20050427
Docket: IMM-3108-04
OTTAWA, Ontario, April 27th, 2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
MARIA MADALENA MENDES BRITO AKA MARIA MADALENA MENDES BRITO SANTOS, DANILO TEODORO BRITO, MURILO TEODORO BRITO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board dated March 3, 2004 in which the applicants were found not to be Convention refugees or persons in need of protection because they have adequate state protection available in Brazil. The principal applicant is a victim of domestic violence.
FACTS
[2] The principal applicant (applicant), Maria Madalena Mendes Brito, is a 41 year-old Brazilian national. She claims a well-founded fear of persecution on the basis that she was subject to domestic violence while living in Brazil. The applicant has two sons, aged 17 and 13, whose claims for refugee status are dependent on the success of their mother's claim.
[3] The applicant alleges that shortly after her wedding in 1985, her husband began to physically abuse her. The abuse continued over the course of their 12-year marriage. Following their separation in 1997 and divorce in 1999, the applicant was repeatedly threatened by her ex-husband. At the hearing, the applicant testified that she telephoned the police once, in 1997, to report the abuse. The officer asked the applicant to come to the police station to file a formal complaint, however, the applicant refused to do so because she was too embarrassed, and did not want the police to arrest her husband.
[4] In 2003, the applicant obtained permission from her ex-husband to bring the children to Canada for a short vacation. The applicants arrived on March 3, 2003 and made a claim for refugee protection on March 11, 2003. The applicant fears that, if returned to Brazil, her ex-husband will harm her for having fled the country with the children and having deceived him.
THE DECISION
[5] The Board rejected the applicant's claim for protection on the basis that she had not rebutted the presumption of state protection. It found that while protection for victims of domestic abuse is not perfect, the documentary evidence establishes that Brazil considers domestic abuse a serious issue and has undertaken a number of initiatives to assist victims of abuse. For example, the United States Department of State Report (2002) indicates that most major centres had assigned special police officers to deal with crimes against women and that "women's stations" had been set up to provide counselling and shelter. Similarly, an "IRB Information Request" dated October 2003 and written by the Board's research directorate indicated that the new federal government had formulated a national plan to combat domestic violence, under which more personnel were to be trained, more shelters to be built and criminal sanctions for perpetrators to be increased.
[6] Based on the documentary evidence, the Board concluded that it was reasonable to expect the applicant to have sought the assistance of authorities. Although the applicant had telephoned the police on one occasion to report the abuse, this was found to be insufficient because she did not file a formal complaint or provide the police with further details. The police had offered to assist the applicant, however, she chose not to avail herself of that assistance.
ANALYSIS
[7] The sole issue raised is whether the Board erred in finding that adequate state protection is available to the applicant in Brazil. The applicant contends that the documentary evidence before the Board demonstrates that authorities in Brazil often fail to intervene in domestic situations and that institutions for the protection of women lack adequate resources. She submits that this evidence belies the conclusion that state protection is available in Brazil and that the Board erred by ignoring this contradictory evidence without providing any explanation.
[8] The respondent submits that the Board did not err in preferring documentary evidence indicating the existence of state protection in Brazil, because it was the most recent evidence before the Board. The respondent states that the applicant is attempting to have the Court re-weigh the evidence, which is not the proper function of the Court.
[9] In Chaves v. Canada, [2005] F.C.J. No. 232, Justice Tremblay-Lamer, applying the pragmatic and functional approach, determined that the appropriate standard of review for questions of state protection is reasonableness simpliciter. Therefore, the Court will intervene with the Board's decision if the reasons cannot stand up to a somewhat probing examination.
[10] After reviewing the Board's decision and the evidence on the record, I conclude that the Court's intervention is not warranted. Much of the evidence highlighted by the applicant relates to the failure of police to intervene when human rights abuses are perpetrated by fellow officers. This information is not relevant to the present case because the applicant's former husband is not a member of a police force or similar institution. Other evidence relied on by the applicant (for example, an IRB Information Request from October 2000) predates the documents referred to by the Board in its decision. In my view, it was appropriate for the Board to rely on the most recent evidence in order to determine the current state of affairs in Brazil and there was no need to refer specifically to the earlier documentation. See Acosta v. Minister of Citizenship and Immigration, [1995] F.C.J. No. 1291 at paragraph 18.
[11] The other evidence cited by the applicants indicates that while there remain weaknesses in state protection, Brazil has put in place a number of mechanisms to assist victims of domestic abuse. In my view, based on all of the evidence, it was reasonably open to the Board to conclude that adequate state protection is available to the applicant. There is nothing to indicate that the Board ignored relevant evidence when it concluded that state protection was available. Moreover, the applicant's own experience with the police reinforces the availability of state protection. The police were willing to assist the applicant when she telephoned in 1997, however, it was her decision not to avail herself of that assistance.
[12] For the foregoing reasons, the application for judicial review must be dismissed.
[13] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3108-04
STYLE OF CAUSE: MARIA MADALENA MENDES BRITO ET AL
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, APRIL 19, 2005
REASONS FOR ORDER BYÀ
AND ORDER: KELEN J.
DATED: WEDNESDAY, APRIL 27, 2005
APPEARANCES BY: Mr. Jonathan Otis
For the Applicants
Mr. John Provart
For the Respondent
SOLICITORS OF RECORD: OTIS & KORMAN
Barristers & Solicitors
Toronto, Ontario
For the Applicants
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20050427
Docket: IMM-3108-04
BETWEEN:
MARIA MADALENA MENDES BRITO ET AL
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER