Monday, August 01, 2011

Gomes Sousa—failure to assess gender issues in state protection

Gomes Sousa v. Canada (Citizenship and Immigration), 2011 FC 63 (CanLII)

Judge: Justice Noël

Date heard: January 17, 2011

Date decided: January 20, 2011

Counsel for Gomes Sousa: Laura Setzer

Counsel for Minister: Helene Robertson

Place of Hearing: Ottawa, Ontario

The applicant and her son (the minor applicant) were nationals of Brazil. They fled the abuse of the applicant’s former spouse, Marcus, who had substance abuse and other psychiatric issues. The applicant had complained to the police but was told there was little they could do (paras. 1-2). The applicant initially had some support from her parents-in-law, but they blocked the involvement of the police because the father-in-law was himself involved in criminal activity, and he subsequently threatened the applicant (para. 3).

The Court determined that main issue was sufficiently of state protection and the application of the Gender Guidelines (para. 5).

The Court relied on Dean v Canada(Citizenship and Immigration), 2009 FC 772 for the proposition that while a subjective unwillingness to go to the authorities was not, itself, sufficient to rebut state protection, circumstances may be such that they do not. The judge noted that in this case: “proper consideration of the Gender Guidelines may have led to a finding that this reticence to engage the proper authorities was more than subjective” (para. 7). The Court notes that the RPD failed to consider the Gender Guidelines when analyzing the applicant’s failure to approach the police (para. 8).

The RPD found that the applicant’s narrative about the father-in-law was implausible; the judge noted that “implausibility findings must only be made in the clearest of cases” (citing Valtchev v Canada(Minister of Citizenship and Immigration), 2001 FCT 776) (paras. 9-10). The decision concluded:

Hence, the Board’s decision in regards to the sufficiency of state protection is flawed in two aspects. Firstly, it failed to adequately assess the Gender Guidelines in order to fully address the reasons for which state protection was not sought, and secondly, it made an unreasonable plausibility finding, thus depriving the Applicants of a full and proper assessment of the reasons for which state protection was not sought. As such, the decision falls outside the range of acceptable outcomes defensible in fact and in law. The proper remedy is to send the matter for redetermination before a newly constituted panel of the Board. (para. 11)


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