Da Costa Soares v. Canada (Minister of Citizenship and Immigration), (2007) 308 F.T.R. 280 (FC)

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: February 12, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 308 F.T.R. 280 (FC);2007 FC 190

Da Costa Soares v. Can. (M.C.I.) (2007), 308 F.T.R. 280 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. MR.013

Maria Isabel Ribeiro Da Costa Soares (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1978-06; 2007 FC 190)

Indexed As: Da Costa Soares v. Canada (Minister of Citizenship and Immigration)

Federal Court

Shore, J.

February 20, 2007.

Summary:

The applicant was a citizen of Portugal. The applicant made a refugee claim under s. 96 of the Immigration and Refugee Protection Act (IRPA) on the basis of membership in a particular social group, namely, women abused by their former spouse. She also claimed to be a person in need of protection under s. 97(1) of the IRPA. The Refugee Protection Division of the Immigration and Refugee Board found that the applicant was neither a Convention refugee nor a person in need of protection. The applicant applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1321.2

Admission - Refugee protection - Convention refugees and persons in need of protection - Guidelines - The applicant, a citizen of Portugal, made a refugee claim under s. 96 of the Immigration and Refugee Protection Act (IRPA) on the basis of membership in a particular social group, namely, women abused by their former spouse - She also claimed to be a person in need of protection under s. 97(1) of the IRPA - The Refugee Protection Division of the Immigration and Refugee Board rejected the claims - The applicant applied for judicial review - The applicant argued that the Board did not pay attention to the Guidelines on gender-related persecution and did not apply them to the applicant's situation - The Federal Court rejected the argument - The Board's analysis followed the Guidelines' format of examination and the Board explicitly referred to the Guidelines on gender-related persecution in its reasons - Further, the Board fully considered the applicant's explanation as to why she did not approach the police in Portugal for protection, but it did not find those explanations persuasive because the documentary evidence on country conditions in Portugal established that state protection would have been forthcoming had the applicant sought the help of the police - Given the evidence that state protection for victims of domestic violence was available in Portugal, the court found that the Board did not err in its application of the Guidelines on gender-related persecution - See paragraphs 32 to 38.

Aliens - Topic 1323.2

Admission - Refugee protection - Convention refugees and persons in need of protection - Persecution - Protection of country of nationality - The applicant, a citizen of Portugal, made a refugee claim under s. 96 of the Immigration and Refugee Protection Act (IRPA) on the basis of membership in a particular social group, namely, women abused by their former spouse - She also claimed to be a person in need of protection under s. 97(1) of the IRPA - The Refugee Protection Division of the Immigration and Refugee Board rejected the claims - The Board found, inter alia, that adequate state protection was available in Portugal - The applicant applied for judicial review, arguing that the Board erred by concluding that there was an absolute obligation on a refugee claimant to approach their government for protection, and by drawing a negative inference from the applicant's failure to seek police protection in Portugal - The Federal Court rejected the argument - The Board did not state that there was an absolute requirement that claimants approach law enforcement agencies for protection regardless of circumstances - Whether refugee claimants were required to approach their government for protection depended on whether it was unreasonable that a claimant did not seek state protection and whether protection would have been forthcoming - The Board did not err in its assessment of state protection in Portugal - The Board determined that the applicant's failure to approach the police for protection was unjustified given the evidence indicating that the Portuguese government was making serious efforts to protect victims of domestic violence - See paragraphs 26 to 31.

Aliens - Topic 1327

Admission - Refugee protection - Convention refugees and persons in need of protection - Time for claim to refugee status - The applicant, a citizen of Portugal, made a refugee claim under s. 96 of the Immigration and Refugee Protection Act (IRPA) on the basis of membership in a particular social group, namely, women abused by their former spouse - She also claimed to be a person in need of protection under s. 97(1) of the IRPA - The Refugee Protection Division of the Immigration and Refugee Board rejected the claims - The Board determined that the applicant lacked a subjective fear of persecution due to the inordinate delay of three years in claiming refugee status after she arrived in Canada - The applicant applied for judicial review, arguing that the Board erred by drawing a negative inference based on her delay in claiming refugee status - The Federal Court rejected the argument - The applicant's substantial delay of three years in claiming refugee status, and the fact that she made her claim only after Canadian authorities discovered that she was in Canada without status, was, in and of itself, most significant to lead the Board to conclude that the applicant lacked a subjective fear of persecution - See paragraphs 39 to 42.

Aliens - Topic 1331

Admission - Refugee protection - Convention refugees and persons in need of protection - Evidence - [See Aliens - Topic 4087 ].

Aliens - Topic 4087

Practice - Hearings - Translation of documents and decisions - The Refugee Protection Division of the Immigration and Refugee Board found that the applicant was neither a Convention refugee nor a person in need of protection pursuant to ss. 96 and 97(1) of Immigration and Refugee Protection Act - The applicant applied for judicial review, arguing that she was denied a fair hearing because the Board did not grant her a postponement to provide translations of key documents in support of her claim from Portuguese to English - The applicant further argued that the Board breached procedural fairness by ignoring rules 28, 29, 30 and 37 of the Refugee Protection Division Rules (RPD rules) by failing to consider the relevance, importance, and probative value of the untranslated documents when determining whether to admit them into evidence - The Federal Court rejected the argument - Rules 29, 30 and 37 of the RPD rules did not apply as those rules applied to situations where a claimant failed to disclose documentation in a timely manner - The applicant did not fail to comply with the 20-day disclosure rule, rather she attempted to submit untranslated documents contrary to rule 28(1) of the RPD rules - The Board properly assessed the objective and subjective facets of the applicant's claim and did not err by refusing to admit certain untranslated pieces of evidence - See paragraphs 15 to 25.

Cases Noticed:

Adu v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 326; 2005 FC 565, refd to. [para. 13].

Fetherston v. Canadian Food Inspection Agency (2005), 332 N.R. 113; 2005 FCA 111, refd to. [para. 13].

Canada (Attorney General) v. Fetherston - see Fetherston v. Canadian Food Inspection Agency.

Thamotharem v. Canada (Minister of Citizenship and Immigration) (2006), 285 F.T.R. 45; 2006 FC 16, refd to. [para. 13].

Demirovic v. Canada (Minister of Citizenship and Immigration) et al., [2005] F.T.R. Uned. 783; 2005 FC 1284, refd to. [para. 13].

Trujillo v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 310; 2006 FC 414, refd to. [para. 13].

Bankole v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 945; 2005 FC 1581, refd to. [para. 13].

Chaves v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 115; 2005 FC 193, refd to. [para. 14].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 14].

Ahmmed v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 862; 2005 FC 1433, dist. [para. 20].

Behaz v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. A12; 2005 FC 791, dist. [para. 20].

Khan et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 842; 2005 FC 1351, dist. [para. 20].

Ayalogu v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 213; 2006 FC 380, dist. [para. 20].

Yushchuk v. Minister of Employment and Immigration (1994), 83 F.T.R. 146 (T.D.), refd to. [para. 22].

Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 166; 2004 FC 349, refd to. [para. 23].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 29].

Avila v. Canada (Minister of Citizenship and Immigration) (2006), 295 F.T.R. 35; 2006 FC 359, refd to. [para. 29].

Griffith v. Canada (Minister of Citizenship and Immigration) (1999), 171 F.T.R. 240 (T.D.), refd to. [para. 35].

Sy v. Canada (Minister of Citizenship and Immigration) (2005), 271 F.T.R. 242; 2005 FC 379, refd to. [para. 38].

Diallo v. Canada (Minister of Citizenship and Immigration) (2004), 259 F.T.R. 273; 2004 FC 1450, refd to. [para. 38].

Huerta v. Ministre de l'Emploi et de l'Immigration (1993), 157 N.R. 225 (F.C.A.), refd to. [para. 40].

Ilie v. Canada (Minister of Citizenship and Immigration) (1994), 88 F.T.R. 220 (T.D.), refd to. [para. 42].

Gamassi v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2000), 194 F.T.R. 178 (T.D.), refd to. [para. 42].

Counsel:

Leigh Salsberg, for the applicant;

Robert Bafaro, for the respondent.

Solicitors of Record:

Jackman & Associates, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on February 12, 2007, at Toronto, Ontario, before Shore, J., of the Federal Court, who delivered the following decision on February 20, 2007.