Date: 20120516
Docket: IMM-7347-11
Citation: 2012 FC 589
Toronto, Ontario, May 16,
2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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MOTLALEPULA TUMISANG AND
LONE TUMELO TUMISANG
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns a decision of the Refugee Protection Division of
the Immigration and Refugee Board (RPD) rejecting a claim for refugee protection
based on a well-founded fear of gender-related domestic violence. In doing so,
I find that the RPD failed to properly apply the Chairperson’s Guidelines on
Women Refugee Claimants Fearing Gender-related Persecution (the Guidelines).
[2]
The
evidence presented with respect to the Applicant’s claim has three components:
a history of abuse in relation to two partners in Botswana; an arson attack on
her home presumed to be at the hands of her then common-law partner, which
caused her to flee Botswana for Canada; and the contents of a psychological
report which goes to prove that the abuse and attack suffered by the Applicant
have left her in a very vulnerable mental state. Principle findings made by the
RPD in the decision under review are that the Applicant’s credibility is not in
issue, and nor is the nature of her claim on Convention grounds, namely women
victims of domestic violence.
[3]
The
RPD rejected the Applicant’s claim on the central finding that, should she
return to Botswana, she would receive state protection. In making the finding
of the availability of state protection the RPD purported to apply Guideline
4, which states as follows:
When considering whether it is
objectively unreasonable
for the claimant not to have sought the protection of the state, the
decision-maker should consider, among other relevant factors, the social,
cultural, religious, and economic context in which the claimant finds herself.
If, for example, a woman has suffered gender-related persecution in the form of
rape, she may be ostracized from her community for seeking protection from the
state. Decision-makers should consider this type of information when
determining if the claimant should reasonably have sought state protection.
In determining whether the state is
willing or able to provide protection to a woman fearing gender-related persecution, decision-makers
should consider the fact that the forms of evidence which the claimant might
normally provide as "clear and convincing proof" of state inability
to protect, will not always be either available or useful in cases of
gender-related persecution.
[Footnotes removed] [Emphasis added]
In purporting to apply the Guideline,
the RPD provided a backward and forward-looking analysis resulting in the
conclusion that it is reasonable for the Applicant to seek state protection:
After reviewing the
documentary evidence, the panel determines that Botswana is aware of police
corruption and has the means to deal with it effectively. The panel concludes
that it was not reasonable for the claimant, a woman with post-secondary
education and years of being a self-employed businessperson, not to seek
police protection because of perception of corruption in their ranks.
[Emphasis added] (Decision,
para. 16)
[4]
The
psychological report was placed before the RPD to establish that it would be
unreasonable to expect the Applicant, in her present mental state, to seek
state protection if she were to return to Botswana. The only recognition given
to the contents of the report is the RPD’s comment that the Applicant suffers
“from chronic adjustment disorder, among other symptoms” (Decision, para. 5).
Indeed, the report provides the following expert evidence:
During waking hours, Ms.
Tumisang experiences surges of threat and vulnerability in association with
reminders of her traumatic past. Ms. Tumisang feels as if she were in imminent
danger. The response is accompanied fear and startle. The response is
elicited by environmental stimuli, such as men who resemble her former
partners, crowds, people who are arguing or shouting, a knock at the door, a
telephone ringing, television programs and movies that depict domestic
violence, loud noises, standing in the shower stall, and questions about her
past. The response often arises spontaneously when Ms. Tumisang is alone and
not absorbed in activity. Ms. Tumisang avoids going out of her home and does
not ride the subway when unaccompanied by another person. She avoids men
who resemble her former partners, police officers, crowds, and people who are
arguing or shouting. She does not watch television programs or movies that
depict domestic violence. She tries not to think or talk about her past. She
is vigilant for signs of danger across situations.
[Emphasis added] (Tribunal Record, p. 138)
[5]
In
describing the Applicant as a “woman with a post-secondary education and years
of being a self employed businessperson”, I find that the RPD concluded, as a
fact, that there is no impediment to the Applicant seeking state protection
upon return to Botswana. Given the critical evidence of the Applicant’s
current mental state, and given that the evidence is relevant to the
critical issue of the availability of state protection, and given that, in my
opinion, the Guideline required the RPD to consider this evidence, and
given that the evidence was apparently ignored by the RPD in reaching the
decision under review, I find that the decision is made in fundamental error of
fact.
[6]
As
a result, I find that the decision under review to be made in reviewable error.
ORDER
THIS COURT
ORDERS that:
The decision
under review is set aside and the matter is referred back to a differently
constituted panel for redetermination.
There is no
question to certify.
“Douglas
R. Campbell”
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