Date: 20060221
Docket: IMM-1277-05
Citation: 2006 FC 231
Ottawa, Ontario, February 21, 2006
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
RENATA GUEDES DE PAIVA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1] This is a judicial review of a negative decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), rendered on January 25, 2005. The Board found that the Applicant is neither a Convention refugee nor a person in need of protection.
[2] The Applicant seeks an order setting aside the decision of the Board and referring the matter back for re-determination by a differently constituted panel.
2. Background Facts
[3] The Applicant, a citizen of Brazil from the State of Pernambuco, is trained and works as a nurse. The Applicant visited Canada between March and November 2001 and states that her problems began in December 2001 after she returned to Brazil. She substituted for a friend in a hospital in Recife in her home State of Pernambuco, where she met a surgeon named Anderson Carvalho. They dated, were intimate and he asked her to marry him in January 2002. She declined. He was extremely jealous of her, and assaulted her both physically and verbally. He repeatedly humiliated her in front of others and his aggression towards her escalated. In April 2002, she informed him that the relationship was over. He reacted angrily and stated that she belonged to him and that the relationship was not over.
[4] The Applicant claims that Dr. Carvalho seemed to become a stalker and continued to look for her. She could not have peace and, as a result, decided to move to another city, thinking that if he did not know her whereabouts he would forget about her. She sought employment in the interior of Pernambuco, in the small city of Tonciambo.
[5] Two incidents occurred which led the Applicant to claim refugee status in Canada:
(1) Dr. Carvalho approached the Applicant at a bus stop in Recife in May 2002 and told her that they would spend a week together and if she moved again he would find her. No violence was involved in this incident. The Applicant reported this incident to the police. She stated that the police told her they could not do anything as she did not have any proof.
(2) Dr. Carvalho forced the Applicant into his car in Tonciambo on June 12, 2002. He raped the Applicant and held her for several days, until the following Sunday. The Applicant did not report the incident to the police, nor did she tell her parents. She only shared the incident with one female friend.
[6] After these incidents, Dr. Carvalho continued to call her. The Applicant then left her job and came to Canada on July 31, 2002, on a visitor's visa to seek refugee protection.
[7] The Applicant's refugee claim was heard in Toronto on December 20, 2004. The Applicant was represented by counsel. No Refugee Protection Officer participated at the hearing. The Board rendered its decision on January 25, 2005, dismissing the Applicant's claim.
[8] The Applicant applied for leave to judicially review the Board's decision. Leave was granted on July 28, 2005.
3. Impugned Decision
[9] The Board found the Applicant to be credible. The Board also found that the Applicant had proven a lack of state protection in Pernambuco, her home state. However, the Board found that the Applicant had an internal flight alternative (IFA) elsewhere in Brazil, namely in Sao Paulo or Rio de Janeiro.
[10] With respect to state protection, the Board wrote that the Applicant had stated that she did not report the second incident to the police because she was released on a Sunday and it would have been awkward logistically to report the incident. Further, she stated that as a nurse she had a great deal of experience helping women who were victims of domestic abuse. The Applicant stated that reporting merely continues the suffering of these women, at the police station and in court. The Board reviewed the documentary evidence and held that that evidence largely corroborated the Applicant's story. As a consequence, the Board found that the Applicant had met her burden of proving that the state was "unable to protect her in the State of Pernambuco".
[11] With respect to an internal flight alternative, the Board held that it is not unreasonable in the circumstances, including those particular to the Applicant, for the Applicant to seek refuge in another part of Brazil. Although the Board accepted the Applicant's statement that if she works as a nurse, Dr. Carvalho might be able to find her anywhere in Brazil given his involvement in the medical system, the Board took the view that there was no serious possibility that Dr. Carvalho would seek her out in another part of the country, such as Sao Paulo or Rio de Janeiro.
[12] The Board also accepted that Dr. Carvalho seemed to be a man with some ability as a stalker. The Board noted, however, that he likely had the ability to come to Canada but had made no attempt to find her in the 2½ years she had been in Canada.
[13] Regarding the Applicant's claim under section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), the Board again found that Dr. Carvalho is not likely to seek her out in another part of Brazil far from the State of Pernambuco. In consequence, the Board held that the Applicant has an IFA. Further, the Board held that she could enlist the assistance of her employers to protect her in her new location.
[14] The Board concluded that the Applicant was neither a Convention refugee nor a person in need of protection.
4. Issue
[15] The following issue is raised in this application:
A. Did the Board ignore, misconstrue or misapprehend the evidence in determining that the Applicant had an internal flight alternative?
5. Standard of Review
[16] The Court should not intervene unless the Board bases its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it: Federal Courts Act, R.S.C. 1985, c. F-7, paragraph 18(1)(4)(d). Ignoring, misconstruing or misapprehending the evidence can result in erroneous findings of fact. The Federal Court of Appeal has held that the appropriate standard of review for findings of fact by the Board is patent unreasonableness: Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL).
6. Analysis
[17] This case turns on whether the Board erred in finding that the Applicant has an IFA in another part of Brazil such as Sao Paulo or Rio de Janeiro.
[18] It is settled law that the idea of an IFA is "inherent" in the definition of a Convention refugee. If claimants are able to seek safe refuge within their own country, there is no basis for finding they are unable or unwilling to avail themselves of the protection of that country. If the possibility of an IFA is raised, as in the instant case, the claimant must demonstrate on a balance of probabilities that there is a serious possibility of persecution in the area alleged to constitute an IFA: Thirunavukkarasu v. Canada(Minister of Employment and Immigration) (C.A.) [1994] 1 F.C. 589.
[19] The Board found the Applicant to be credible and accepted her evidence regarding Dr. Carvalho and the incidents that caused her to leave Brazil and seek protection in Canada. Based on her evidence, which the Board also found to be corroborated by documentation on country conditions in Brazil, it found that the Applicant had met her burden of showing that the state is unable to protect her in the State of Pernambuco.
[20] Implicit in the idea of the existence of an IFA is the notion of state protection in those areas said to provide the Applicant with an IFA. The Board must be satisfied on a balance of probabilities that there is no serious possibility of persecution in the area alleged to constitute an IFA. For our purposes, the Board did identify areas within Brazil outside the State of Pernambuco, particularly Sao Paulo or Rio de Janeiro, as constituting an IFA. The difficulty is that the Board failed to explain why things would be different in those areas than in the Applicant's home state of Pernambuco. The Board essentially based its finding regarding state protection on documentary evidence in the "RPD Information Package on Brazil" which was revised in March 2004. The Board specifically relied on three documents. The evidence in these documents deals more generally with domestic violence throughout Brazil and how the state responds. While two of the documents do highlight the situation in Sao Paulo and in Rio de Janeiro, none specifically reference the situation in the State of Pernambuco. It is useful to briefly review this evidence.
[21] The first document, BRA41713.E prepared in October 2003, states that: "Experts agreed that the level of protection available to victims of domestic violence is insufficient. However, a number of sources also indicated that the authorities have responded to concerns voiced by the women's movement by taking some positive steps to deal with this problem." The Response details procedures taken by the state and criticisms that remain of Brazil's efforts to protect women from male violence.
[22] The second document, BRA38669.E prepared in March 2002, cites a 2001 article which states that while violence against women is a crime in Brazil, the law considers domestic violence to be a minor offence which can be punished by such sentences as food donations to the needy or volunteer service. The article states that many women are so humiliated by the police and threatened by their partner that they do not follow through with placing charges. The article also states that although Sao Paolo has a Women's Police Station, it only has one public shelter for women fleeing domestic violence, in a city of 15 million.
[23] Finally, BRA35562.E prepared in October 2003, cites a 1999 Country Report which states that the most pervasive violations of women's rights involved sexual and domestic violence, both of which are widespread and vastly underreported. Between 1994 and 1998, the number of rapes reported in Rio de Janeiro increased 45 percent. In rural areas, abused women have little recourse since there are no specialized offices available to them. Men who commit crimes against women are unlikely to be brought to trial.
[24] Apart from indicating that abused women in rural areas have little recourse, the documentary evidence relied on by the Board does not paint a significantly different picture for women who are victimized in those areas of Brazil alleged to constitute an IFA for the Applicant. The specific references to Rio de Janeiroindicate that rapes are on the increase between 1994 and 1998 and that Sao Paulo only has one public shelter for women fleeing domestic violence.
[25] It was open to the Board, based on the documentary evidence, to find no state protection in the State of Pernambuco. In my view the Board could not, on this same evidence, conclude that state protection is available in other areas of Brazil. This is because the documentary evidence relied on by the Board does not indicate that abused women would be treated differently in the other areas.
[26] Moreover, the Board accepts the Applicant's evidence in respect to the futility of reporting domestic abuse incidents to the police. At pages 2-3 of its reasons, the Board wrote:
More seriously, when questioned by counsel, she told us that she had a great deal of experience as a nurse in trying to obtain redress for women who are victims of domestic abuse. She says that reporting is merely foreseeing a continuation of the suffering. "They suffer when the initial incident occurs, they suffer at the police station; they suffer when the matter goes to court."
The panel has had an opportunity to review response to information requests and response to information requests [sic]. The panel accepts the evidence of the claimant of this area, especially in view of the fact that it is largely corroborated by these three responses to information requests. (footnote omitted)
Having accepted this to be the case in respect to the incidents in Recife and Tonciambo both in the State of Pernambuco, the Board fails to explain why things would be any different elsewhere. As stated above, it certainly is not clear from the documentary evidence relied on by the Board that circumstances are significantly better for women in the areas alleged to constitute an IFA.
[27] The Board's decision is essentially based on its finding that there is no possibility of Dr. Carvalho seeking out the Applicant in another part of the country such as Sao Paulo or Rio de Janeiro. However, I do not find that conclusion to be supported by the evidence. The Board in its reasons accepted the Applicant's evidence that Dr. Carvalho had spoken of her to friends, and found that "[H]e would seem to be a man with some ability as a stalker". The Board further stated in its reasons, "[T]he claimant correctly points to his [Dr. Carvalho] involvement with the medical fraternity in Brazil, which means that if she practices as a nurse, he might well be able to find her anywhere in Brazil." It is difficult to reconcile these findings of the Board with its conclusion that Dr. Carvalho would not "... do again what he did in June of 2002." There is simply no evidence to support such a conclusion. The fact that he did not pursue her in Canada for the 2½ years she has been here does not establish that he would not do so in Brazil, his own country where it is accepted he is an influential surgeon. This is particularly so where the Board acknowledges and accepts that he has the ability to find her anywhere in Brazil and stalk her, and that he has been asking about her. There is no evidence on the record to support the Board's finding that there is no possibility of him seeking her in another part of the country. Indeed, the Board's own findings of fact clearly point to an opposite conclusion, namely that Dr. Carvalho has the ability to stalk and find the Applicant anywhere in Brazil.
[28] In my view, the Board's determinative finding that there is no possibility of Dr. Carvalho seeking out the Applicant in another part of the country such as Sao Paulo or Rio de Janeirois erroneous and perverse since it was made without regard for the material before it. Further, since the country documentation fails to establish that conditions are any different in the areas alleged to constitute an IFA than in the state of Pernambuco where the Board found there to be no state protection, it follows that the Board's finding of an IFA for the Applicant cannot stand.
[29] In the result, since the Applicant's claim was rejected on the sole basis of the existence of an IFA, the Board's decision will be set aside.
7. Conclusion
[30] For the above reasons, the application will be granted. The Board's decision is quashed and the matter is returned to the Board for re-consideration before a differently constituted panel in accordance with these reasons.
[31] The parties have had the opportunity to raise a serious question of general importance as contemplated by paragraph 74(d) of the IRPA, and have not done so. I am satisfied that no serious question of general importance arises on this record. I do not propose to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is granted.
2. The Board's decision is quashed and the matter is returned to the Board for re-consideration before a differently constituted panel in accordance with these reasons.
3. No question is certified.
"Edmond P. Blanchard"
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