Date:
20121029
Docket:
IMM-804-12
Citation:
2012 FC 1253
Ottawa, Ontario,
October 29, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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LULU LERATO TSIAKO
ALVIN KATLEGO TSIAKO
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Applicants
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and
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MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated December 21, 2011, wherein the applicant was determined to be
neither a Convention refugee within the meaning of section 96 of the Act nor a
person in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicant requests that the Board’s
decision be set aside and the application be referred back to the Board for
redetermination by a different panel.
Background
[3]
Lulu
Lerato Tsiako (the principal applicant) and her son are citizens of Botswana. They fled due to fear of violence at the hands of the principal applicant’s
abusive ex-partner.
[4]
The
principal applicant was in a relationship with her ex-partner beginning in
2003. The relationship was initially happy, but he turned abusive. The couple’s
inability to have a child was a source of conflict. Her partner began drinking
and turned violent, and the abuse included assault, rape and death threats.
[5]
The
principal applicant complained to the police but was told it was a family
matter which did not warrant intervention. She and her son decided to flee Botswana. They arrived in Canada on August 6, 2010. Their hearing before the Board was on
October 28, 2011.
Board’s Decision
[6]
The
Board made its decision on December 21, 2011. The Board summarized the
applicants’ allegation and identified state protection and internal flight
alternative (IFA) as the determinative issues in its negative decision.
[7]
The
Board considered and rejected the possibility that the principal applicant’s
son would be able to acquire South African citizenship and therefore be
ineligible for protection.
[8]
The
Board identified inconsistencies in the evidence of both the principal applicant
and her son in relation to the availability of state protection and to the
son’s occupation. The Board found that the principal applicant’s fear of
persecution was not well founded since she provided no evidence the agent of
harm was still actively pursuing her.
[9]
The
Board set out the principles of state protection and found that the principal applicant
had not rebutted the presumption of protection, as the police responded to the
vandalism of her automobile and laws against rape in Botswana are effectively
enforced, with reference to the U.S. Department of State report.
[10]
Finally,
the Board found it was reasonable for the principal applicant and her son to
seek refuge elsewhere within Botswana. Since there was no evidence the agent of
harm was still pursing the principal applicant or would be willing to travel to
Francistown or Maun, an IFA was available. Therefore, the applicants’ claim
was rejected.
Issues
[11]
The
applicants submit the following points at issue:
1. Did the Board err
in its finding on state protection?
2. Did the Board err
in its failure to apply Guideline 4, Women Refugee Claimants Fearing
Gender-related Persecution? (the Gender Guideline)?
[12]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in its failure to apply Guideline 4, Women Refugee Claimants Fearing
Gender-related Persecution? (the Gender Guideline)?
3. Did the Board err
in its state protection findings or in its IFA findings?
Applicants’ Written Submissions
[13]
The
applicants submit that reasonableness is the appropriate standard of review.
[14]
The
Board did not provide reasons for preferring the country conditions evidence
indicating state protection was available to that indicating it was
unavailable. This is a reviewable error. The United States Department of State
report relied on by the Board also identified violence against women as a
continuing problem, but the Board merely cherry-picked the parts of the report
favourable to its conclusion.
[15]
The
Board made no reference to the Gender Guideline. This is proof the guideline was
not considered. The Board’s questioning during oral testimony also did not take
the guideline into consideration.
Respondent’s Written Submissions
[16]
The
respondent submits the appropriate standard of review is reasonableness.
[17]
The
respondent emphasizes that the Board accepted the credibility of the principal applicant
and her son but rejected the claim on state protection and IFA. There is no
evidence the principal applicant asked the state for protection aside from the
vandalism of her car which was investigated by the police. Even if the local
police did not provide adequate protection, this does not establish a lack of
protection for the state on the whole.
[18]
IFA
findings are findings of fact and should be given deference. The applicants
provided no evidence to refute the IFA.
[19]
The
respondent argues the Board did properly consider country conditions evidence,
including contrary evidence. The principal applicant alleged she had
experienced abuse from her partner starting in 2004 but only went to the police
when her car was vandalized in 2010.
[20]
The
Court has made clear that a failure to explicitly mention the Gender Guideline
is not necessarily an error. The Board was appropriately sensitive and
courteous during the hearing. A proper application of the Gender Guideline does
not dictate a certain result. Even if the Board erred in explicitly discussing
the Gender Guideline, the determinative findings were with respect to state
protection and an IFA and would therefore have been unaffected by this error.
Analysis and Decision
[21]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[22]
The
weighing of evidence and the interpretation and assessment of evidence are
reviewable on a standard of reasonableness (see Oluwafemi v Canada (Minister of Citizenship and Immigration), 2009 FC 1045, [2009] FCJ No 1286 at
paragraph 38).
[23]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; and Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 59). As the Supreme Court held in Khosa
above, it is not up to a reviewing court to substitute its own view of a
preferable outcome, nor is it the function of the reviewing court to reweigh
the evidence (at paragraph 59).
[24]
Issue
2
Did the Board err in its
failure to apply Guideline 4, Women Refugee Claimants Fearing Gender-related
Persecution? (the Gender Guideline)?
The Gender Guideline is a
very important tool for the Board to use in evaluating refugee claims rooted in
domestic violence. However, the principal applicant has not pointed to any
discrete error in the decision which is the result of a failure to apply that
Guideline. Furthermore, the Guideline is most important when assessing
credibility, which played little role in the outcome here.
[25]
The
respondent is correct that the Board need not explicitly mention the Guideline
(see Shinmar v Canada (Minister of Citizenship and Immigration, 2012 FC
94 at paragraph 19, [2012] FCJ No 100). Upon reviewing the decision and the
transcript of the hearing, I can find no insensivity or impermissible reasoning
pertaining to the principal applicant’s status as a victim of domestic violence.
Therefore, the applicants’ argument on this point fails.
[26]
Issue
3
Did the Board err in its
state protection findings or in its IFA findings?
The applicants argue that
the Board failed to explain why it preferred the country conditions evidence
favourable to a finding of state protection over that not favourable to such a
finding, since evidence of both types were contained in the US Department of
State report. The applicants point to excerpts from the report indicating that
spousal rape is not recognized as a crime and other evidence that Botswana is not adequately enforcing its laws prohibiting other forms of abuse.
[27]
The
Board is presumed to have considered all of the evidence before it (see Oprysk
v Canada (Minister of Citizenship and Immigration), 2008 FC 326 at
paragraph 33, [2008] FCJ No 411).
[28]
It
is to be noted that when the principal applicant went to the police about her
car, the police attempted to help her.
[29]
Because
of my finding on IFA in the next paragraph, I will not deal further with the
state protection issue.
[30]
It
is important to remember that the Board also made a finding that the applicants
had two different IFAs in Botswana. These findings were not questioned by the
applicants. Accordingly, this is sufficient to defeat the claim for refugee
protection as a person cannot be considered to be a refugee or a person in need
of protection if a valid IFA exists for him or her in his or her own country.
The onus rests with the applicants to show that the IFA is not valid. They have
not done so.
[31]
As
a result, the application for judicial review must be dismissed.
[32]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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.
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