BETWEEN:
(A.K.A. Osvaldo De Matos Correia Jun)
LARISSA BELTRAN CORREIA
(a.k.a. Correia, Larissa Beltran)
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (AIRPA@), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the ABoard@), dated May 19, 2004, wherein it was determined that the applicants are neither Convention refugees nor persons in need of protection.
[2] The applicants requested an order quashing the decision that the applicants are not Convention refugees or persons in need of protection and an order remitting the matter back for redetermination by a different panel.
Background
[3] The applicants, Osvaldo De Matos Correira Jr. (a.k.a. Osvaldo De Matos Correia Jun) (the "principal applicant") and Larissa Beltran Correia (a.k.a. Correia, Larissa Beltran) his daughter (the "minor applicant"), are citizens of Brazil.
[4] The principal applicant was baptized as a Jehovah's Witness in 1981. The applicant stated that a tenet of his religious beliefs is that he is to maintain neutral with regards to conflicts between nations. This includes firing weapons.
[5] Military service is compulsory in Brazil. When he was due to join the army, the principal applicant submitted a request for exemption based on his religious convictions. The exemption was granted but the applicant alleged that as a result, he lost all his rights as a Brazilian citizen including the right to vote and further, he could not get a position in any government department.
[6] The principal applicant also stated that he does not feel Brazil is a safe environment for his daughter. He stated that as a result of the increase in violence in Brazil, her life was in danger even when she travels to and from school.
[7] The applicants arrived in Canada on June 19, 2003 and made claims for Convention refugee protection on July 31, 2003.
[8] The claims were heard on February 18, 2004 and dismissed on May 19, 2004.
[9] This is the judicial review of that decision.
Reasons of the Board
[10] The Board stated:
The panel accepts the claimants' identity as citizens of Brazil on the basis of the passports submitted by the claimants at the hearing. The panel also accepts that the claimants are adherents of the Jehovah Witness faith.
The issues in this claim are credibility and delay.
In his Personal information Form (PIF) narrative, the claimant states that because he is a Jehovah Witness, he asked for an exemption from military service, which was granted. He goes on to say that because of that, all his rights as a Brazilian citizen have been suspended by the Ministry of Justice. He gave that as a reason why he does not feel secure in Brazil. The panel notes that Brazil issued passports to the claimants. They have national identity cards (NIC), which entitle them to medical care and education. He says that he expects protections because he pays taxes, another right. He says that he cannot get a government job but he never applied for one. He put in a bid for a government contract, which he did not get and he presumed that it was because of his religion. He finally said he could not vote but then he never registered. He said he was not entitled to register but he also said that he is still waiting for the suspension of his civil rights. He obtained the exemption from army service in 1984. A declaration by the South-East Military Command states that he is waiting for the suspension of his political rights, not his civil rights.
The panel finds that presently, the claimant is entitled to all the rights of a citizen. Barring a claimant, who is a citizen from voting and from otherwise participating in the political process does not constitute persecution, where the claimant enjoys numerous other rights. The panel finds that even if the claimant receives a suspension of his political rights in the future, this would be discrimination, which falls short of persecution.
The claimants arrived in Canada on June 19, 2003 and did not claim for Convention refugee status until July 31, 2003. The principal claimant testified that the intention was for them to stay in Canada but they did not know that they could claim for refugee status. Nevertheless, within three to four weeks, he consulted a lawyer and then it took a few more weeks to make the claims. Delay points to a lack of subjective fear of persecution, the reasoning being that someone who was truly fearful would claim refugee protection at the first opportunity, even if they have a visa. The panel notes that the refugee system should not be used to shortcut the immigration process.
The claimant stated that since his divorce, his fifteen-year-old daughter was under his care and responsibility. He blames the justice system in his country and the way criminals are punished there for an increase in violence. He is concerned for her safety when he goes to work and she is alone in school. He says her life is in danger when she goes back and forth to school. His conclusion is that Brazil is not a safe place to live and raise his daughter. He worries about her safety and well-being and he wants to live in a country where there is a secure future for her, where she will be safe at home, in school and the city.
The panel understands that every parent wants all that for their children but none of these concerns falls within s.96 or 97(1) of the IRPA. The claimant's fear of crime is not connected to a Convention ground. According to section 97(1)(b)(ii) of the Act, protection is limited to those who face a specific risk that is not faced generally by others in and from the country. The risk must not be an indiscriminate or random risk faced by the claimant and others. The risk of harm feared by the claimant is one faced generally by others in his country. The Refugee Protection Division (RPD) has a specific legal mandate that does not extend its protection to people such as this claimant.
Having considered all three protection grounds under ss.96 and 97(1) of the Act, the panel finds that there is no serious possibility that the claimant will be harmed in Brazil, regardless of whether the alleged harm would amount to persecution, a risk to his life, cruel and unusual treatment of punishment, or torture. Since the claim of the claimant's child is based on his, her claim also must fail.
Issues
[11] The issues are:
1. Did the Board err in its finding that Brazil's conscription law is not persecutory for the principal applicant?
2. Did the Board err in its finding of delay undermining subjective fear?
3. Did the Board err in finding generalized risk for the principal applicant's daughter?
Applicants' Submissions
[12] The applicants submitted that the Board erred in its assessment of the persecutory nature of Brazil's conscription law for the principal applicant. The alternative service offered in Brazil does not meet international law standards and that failure grounds the principal applicant's claim to protection. He qualifies as a conscientious objector according to Canadian case law. The applicant submitted that there is no appropriate, non-combatant alternative in Brazil.
[13] The applicants further submitted that the loss of political rights such as the right to vote by failure to perform military service constitutes persecution in that it involves a violation of a basic human right (see Sauve v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519). The principal applicant was deprived of the right to vote because of his conscientious objection to performing military or alternative service and that this deprivation constitutes serious harm amounting to persecution.
[14] The applicants submitted that the limiting of the principal applicant's access to public employment cannot be justified as the objectives behind this limitation in Brazilian law are not "sufficiently important to justify limiting his equality rights" (Sauve, supra). The state cannot properly have as an objective, the encouragement of its citizens who are conscientious objectors to forego their beliefs and perform military or alternative service to thereby maintain access to employment by the state. In any event, the U.N. has declared unacceptable and arguably persecutory any discrimination for example, in voting or employment, against conscientious objectors.
[15] The applicants submitted that the Board erred in failing to consider that the applicants had legal status as visitors for six months when they claimed protection and so were not removable from Canada at that time.
[16] The applicants further submitted that the Board erred in not assessing the minor applicant's risk in terms of her age, gender and occupation. That analysis might have led to the Board finding her risk to be distinct from that of the general population.
Respondent's Submissions
[17] The respondent submitted that all of the principal applicant's arguments regarding compulsory military service are inapplicable to his specific personal circumstances. The applicant was granted an exemption from the military service 20 years ago and none of his rights have yet been suspended.
[18] The respondent submitted that a delay in making a refugee claim is relevant when assessing the existence of subjective fear. Conversely, possession of a visitor's visa does not normally displace a presumption that a bona fide refugee would claim protection at the first available opportunity.
[19] The respondent submitted that there were no circumstances alleging any risk to the applicant's daughter and thus, the Board could not have considered any.
Relevant Statutory Provisions
[20] Section 96 and subsection 97(1) of IRPA define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
|
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
Analysis and Decision
[21] Standard of Review
The standard of review on findings of credibility is patent unreasonableness. A finding on the issue of delay is a question of mixed fact and law and therefore, the standard of review on that issue is reasonableness simpliciter.
[22] Issue 1
Did the Board err in its finding that Brazil's conscription law is not persecutory for the principal applicant?
The principal applicant stated at the hearing before the Board that the only specific rights he claimed not to have in Brazil as a conscientious objector were the right to work for the government and the right to vote.
[23] Work for the Government
The testimony of the principal applicant with respect to working for the government included the following exchange:
RPO: And from 1984 to when you left in 2003 did you ever apply to for a job with the government?
Claimant: Yes.
RPO: What job did you apply for?
Claimant: To render services.
RPO: No, but did you apply for employment as a government employee?
Claimant: No.
[24] The incident referred to by the principal applicant was his failure to win a bid for a government contract, and he presumed that he did not get the contract because of his religion. There was no evidence to support this presumption. I am of the opinion that the principal applicant did not establish that his failure to obtain a government contract was due to his religion. With respect to employment with the government, he had not applied. No basis for persecution has been shown in this respect.
[25] Voting
Part of the Brazilian Constitution reads as follows:
Title II Chapter I Article 5.VIII: . . .no one shall be deprived of any rights by reason of religious belief or political conviction, unless he invokes it to exempt himself from a legal obligation required of all and refuses to perform an alternative obligation established by law.
Chapter IV Article 14 paragraph 2: Foreigners may not register to vot, nor may conscripts during their period of compulsory military service.
Article 15: Deprivation of political rights is forbidden, the loss or suspension of which rights may only occur in cases of . . .IV. Refusal to comply with an obligation imposed upon everyone or render an alternative service, according to Article 5. VIII.
[26] The principal applicant, in order to show his current status in Brazil, obtained the following letter from the Brazilian Ministry of Defence (army):
In order to obtain a passport I declare that the citizen Osvaldo De Matos Corriera Junior, class of 1966, son of . . . applied for his exemption to perform the Compulsory Military Service and the Alternative Service, due to religious belief, and he is waiting for the suspension of his Politicial Rights by the Ministry of Justice - San Paolo, October 18, 2002.
[27] I am of the view that this letter shows that the principal applicant's right to vote has not been taken away from him. The principal applicant's testimony was that he never registered to vote. I would also note that the applicant obtained his exemption from army service in 1984. The principal applicant's right to vote, despite the passage of many years, has not been taken away from him and hence, it cannot amount to persecution.
[28] Issue 2
Did the Board err in its finding of delay undermining subjective fear?
The applicants delayed six weeks after arriving in Canada to claim refugee protection. The Federal Court of Appeal has held that the mere fact that there was a delay in making a claim, while relative, is not a decisive factor (see Saez v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 317). As well, the tribunal must consider the explanations offered for the delay (see Hue v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 283).
[29] A review of the Board's decision shows that the Board did take delay into account, but it does not appear to be a determinative element of the Board's decision. The Board noted the principal applicant's explanation but found it unacceptable. I am of the view that the Board did not make a reviewable error in this respect.
[30] Issue 3
Did the Board err in finding generalized risk for the principal applicant's daughter?
The applicants submitted that the Board erred in failing to assess the minor applicant's risk in terms of her age, gender and occupation. I disagree. There was no evidence (either documentary or testimony) before the Board which identified any aspect of the alleged risk to the minor applicant that was not a generalized risk. The principal applicant's testimony on the alleged risk to the minor applicant was as follows:
RPO: When your counsel was asking you questions you said that it's not safe to bring your daughter up in Brazil. What does that mean?
Claimant: In all respects I'm alone to bring her up and the large cities, including the one where I lived, Sao Paolo, they have a lot of violence to offer and that worried me a lot due to the fact that I had to work, she had to go to school alone and I realized that that was very risky for me and for her as well, especially for her.
Presiding Member: Why especially?
Claimant: Because she's a young woman. She is defenceless.
RPO: And why couldn't you move to a smaller city?
Claimant: Because my work was in Sao Paolo.
RPO: And how many Jehovah's Witnesses are there in Brazil, if you know?
Claimant: About 600,000 Jehovah's Witnesses.
RPO: How many people in your congregation?
Claimant: Average of 100 people.
RPO: And of those 100 how many did not serve in the military?
Claimant: I don't know.
RPO: Okay. Those who did not serve in the military are they still in Brazil?
Claimant: A lot of them, yes.
RPO: And how is it they are able to continue living in Brazil?
Claimant: I don't know.
RPO: Who exactly do you fear in Brazil?
Claimant: I fear the lack of security that I might need and when I need it I may not have anything to count on.
RPO: What does that mean?
Claimant: Unfortunately today Brazil is a very violent country, especially the large cities like the one where I lived and the police system is not so efficient to the point where they can provide safety to us and I asked myself many times, I don't have all the rights of ordinary citizen so to what extent am I safe or secure here?
RPO: When you say that safety or security might not be available to you what are you referring to?
Claimant: For example, military security or military police.
RPO: Why would that not be available to you?
Claimant: I don't know if that would be or not. I never needed it, so I don't know.
RPO: And who does Larissa fear in Brazil?
Claimant: Sorry?
RPO: Who does Larissa fear in Brazil?
Claimant: Larissa fears the violence because we hear a lot about rape and violence and a lot of young females they lose their lives because life is called a psycho, there are so many psychos (ph).
[31] I am of the opinion that there was no evidence before the Board that would lead it to any conclusion other than there was a generalized risk. The Board therefore did not commit a reviewable error.
[32] The application for judicial review is therefore dismissed.
[33] The parties shall have five days from the date of this decision to submit any proposed serious question of general importance for my consideration for certification and a further three days for any reply.
"John A. O'Keefe"
Toronto, Ontario
July 29, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5151-04
STYLE OF CAUSE: OSVALDO DE MATOS CORREIRA JR
(A.K.A. Osvaldo De Matos Correia Jun)
LARISSA BELTRAN CORREIA
(a.k.a. Correia, Larissa Beltran)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER OF: O'KEEFE J.
APPEARANCES:
Marina Stefanovic FOR RESPONDENT
SOLICITORS OF RECORD:
Ronald Shacter
Toronto, Ontario FOR APPLICANTS
John H. Sims, Q.C.