Date:
20121030
Docket:
IMM-851-12
Citation:
2012 FC 1267
Ottawa, Ontario,
October 30, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
LIZELDA KAMBANDA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
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 January 5, 2012, 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]
The
applicant is a citizen of Namibia. She claimed refugee protection in Canada due to a fear of persecution at the hands of her abusive former partner.
[4]
The
applicant began a relationship with Kandjimbi Kakahona in January 2010. The
applicant and her daughter began cohabiting with Kakahona two months later,
eventually moving into the applicant’s mother’s home. Kakahona was jealous,
controlling and assaulted the applicant. The applicant’s mother forced Kakahona
to leave her home. Kakahona continued to threaten to kill the applicant and
attempted to set the home on fire.
[5]
The
applicant arrived in Canada in September 2010. She gave birth to her son from
her relationship with Kakahona in Toronto. She made a claim for refugee status.
[6]
Her
claim was heard by the Board on December 16, 2011.
Board’s Decision
[7]
The
Board rendered its negative decision on January 5, 2012. The Board began by
summarizing the applicant’s allegations.
[8]
The
Board found that the applicant had not established a serious possibility of persecution
on a Convention ground or a risk of death or cruel and unusual punishment or
torture upon return to Namibia. The Board therefore rejected her claim.
[9]
The
Board identified credibility and state protection as the determinative issues.
The Board considered the Gender Guidelines when determining the claim.
[10]
On
credibility, the Board noted that while the applicant described three police
complaints in her oral evidence, her Personal Information Form (PIF) narrative
only described one. The Board did not accept the applicant’s explanation of
forgetting to mention the other two visits to a police station, the phone call
to the police station after the third complaint or her visit to the Women &
Children Protection Unit (WCPU). The applicant also omitted from her narrative
the fact that the police stated they would investigate the complaint. There was
also a discrepancy in the dates of the police complaints which the applicant
could not explain.
[11]
In
the Board’s view, a claimant complaining to the police against her persecutor
is an important element of the claim. Therefore, it was reasonable to assume
the applicant would have wanted the Board to be aware of the additional police
complaints. The Board acknowledged that a claimant’s memory could be affected
by abuse, but noted that the applicant did remember to recount one police
complaint and that the events took place approximately one year before the
hearing.
[12]
The
Board drew an adverse credibility inference against the applicant and found
that on a balance of probabilities, there was insufficient evidence to
establish that the applicant went to the police at all. Therefore, the Board
found there was not enough credible evidence to determine if the applicant was
a Convention refugee or a person at risk.
[13]
On
state protection, the Board recited the legal principles of state protection
and found that as Namibia was a democracy, the presumption of protection
applied.
[14]
The
Board found that the applicant had not provided clear and convincing evidence
that state protection in Namibia was inadequate. The Board did not accept the applicant’s
evidence that she complained to the police three times. Even if the Board
accepted that testimony, she still did not make a complaint with the national
police commissioner. The Board described the applicant’s evidence of women in
her neighbourhood who were not protected in similar fact situations to be vague
at best and found there was insufficient evidence to establish whether these
situations actually occurred.
[15]
Even
if the Board accepted the applicant’s testimony that she complained to the police
three times, this did not amount to an exhaustion of avenues of protection as
she did not make a complaint to the national police commissioner and by her own
testimony, her complaint was still being investigated when she fled Namibia.
[16]
The
Board reviewed country conditions evidence relating to Namibia’s efforts to protect women from domestic abuse. The Board found that law enforcement was
responsible for investigating criminal complaints and referring victims of
violence to appropriate agencies such as WCPU and that magistrates could grant
protection orders to protect victims from domestic violence. The Board found
that the WCPU provided such services as police protection, offering a
sympathetic ear to victims of abuse, providing temporary shelter and assisting
with arresting and prosecuting perpetrators.
[17]
The
Board went on to review legislation criminalizing domestic violence and marital
rape in Namibia and making protection orders available. The Board described the
availability of shelters as described in a response to request for information.
The Board identified two non-governmental organizations dedicated to providing
services to victims of domestic abuse.
[18]
The
Board acknowledged that one source indicated the police do not like getting
involved in family matters, but found the police have a duty to protect members
of the public and that there was a complaints mechanism for police who did not
carry out their duties.
[19]
In
conclusion, the Board found that adequate state protection was available due to
Namibia’s serious efforts to protect women from domestic violence and that the
applicant did not take the initiative to secure available protection in
Namibia. Therefore, her claim was rejected.
Issues
[20]
The
applicant submits the following point at issue:
1. Did the Board err
regarding the credibility findings of the applicant?
2. Did the Board err
in its conclusion that the Namibian authorities would be reasonably forthcoming
with serious efforts to protect the applicant?
3. Did the Board err
when it failed to examine the contrary documentation on country conditions in Namibia?
[21]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in rejecting the applicant’s claim?
Applicant’s Written Submissions
[22]
The
applicant’s affidavit indicates that she in fact visited the police four times
before leaving Namibia: one each in June, July, August and September 2010. She
failed to mention the September visit in the hearing because she was not asked
about it.
[23]
The
applicant submits that reasonableness is the appropriate standard of review.
[24]
The
applicant first submits that the Board erred in its credibility finding, as the
failure to mention all the incidents in her PIF is not a fundamental enough
reason to doubt her overall credibility. The Board ignored the legal
presumption that sworn testimony is accurate. Plausibility findings should only
be made in the clearest of cases. The Board failed to fully examine the issues,
instead focusing on a single aspect. What is plausible or implausible should be
determined by examining documentary evidence, which the Board failed to do.
[25]
On
the issue of state protection, the Board failed to consider the applicant’s
past experience seeking protection from the police and their failure to provide
such protection. The Board never acknowledged the police report the applicant
placed in evidence. The threshold to establish the incapacity of Namibia to provide protection should be lowered given the applicant’s past negative
experiences with the police. The Board did not refute the applicant’s statement
that she sought police protection, rather, it was the number of times that was
disputed. The Board should have considered that the police may have the ability
to offer protection without choosing to act on that ability. The Board should
have considered the applicant’s evidence of similar fact situations. The Board
failed to put weight on the applicant’s evidence of the lack of state
protection.
[26]
The
question of state protection is a question of degree. While the Namibian
government has made effort to protect women, the documentary evidence shows the
problem of domestic violence is still widespread. The applicant’s persecutor is
undeterred by the laws implemented to deter domestic violence. This Court has
recognized persecution may originate from sections of the population that do
not respect the standards established by the laws of the country concerned.
[27]
On
the issue of contrary documentary evidence, the applicant submits the Board
failed to mention parts of the response to information request document
indicating protection was inadequate and that there was a high rate of domestic
violence in Namibia. The applicant argues the fact that primary assistance for
victims of domestic violence comes from non-governmental organizations is
evidence of the failure of state protection. The Board failed to consider that
the efforts made by Namibia could have no impact on a woman’s fear of
gender-related persecution, as described in the Gender Guidelines. The Board
failed to consider the applicant’s particular circumstances as someone who had
been refused police protection in the past. The Board thoroughly examined the
positive aspects of the country conditions report but only provided two
instances of the negative aspects and provided a merely pro forma country
condition analysis.
[28]
The
Gender Guidelines require that the Board must take into consideration the applicant’s
gender and puts the onus on the Board to consider the evidence relating to the
failure of the state to provide protection to the applicant. The Guidelines
further state that if an applicant was able to demonstrate it was objectively
unreasonable for her to seek the protection of the state, then her failure to
approach the state for protection will not defeat her claim. The fact that the applicant
did or did not seek protection from non-government groups is irrelevant to the
assessment of the availability of state protection. The Board failed to
effectively address the evidence relating to state protection in relation to
the applicant’s gender.
Respondent’s Written Submissions
[29]
It
was open to the Board to draw a negative inference from the inconsistencies in
the applicant’s evidence regarding her alleged interactions with the police. It
is proper and reasonable for a panel to decide adversely with respect to an
applicant’s credibility on the basis of contradictions and inconsistencies with
an applicant’s story.
[30]
The
Board identified three inconsistencies in the applicant’s evidence: the number
of police visits, the descriptions of police interaction and the description of
the WCPU referral. It is well established that the Board may find that PIF
omissions result in a lack of credibility.
[31]
The
Board’s finding that the applicant did not rebut the presumption of state
protection is determinative of her claim. Given the finding that the
applicant’s evidence regarding her alleged attempts to contact the police were
not credible, it was open to the Board to find that she had failed to rebut the
presumption.
[32]
The
proper test for state protection is a determination of whether it is adequate,
rather than effective. The onus to rebut the presumption remains on the
applicant at all times. Clear and convincing evidence is required, which the
applicant failed to provide.
[33]
The
Board did not err in holding that the applicant’s evidence of similarly situated
persons was insufficient and did not err in finding such evidence was not clear
and convincing.
[34]
The
applicant has not indicated what documentary evidence was before the Board that
was not addressed. The onus is on the applicant to provide evidence that it was
objectively reasonable for her not to seek the assistance of the state.
[35]
The
Board is a specialized tribunal and expert in its field. It is not open to this
Court to substitute its own view of matters of fact for those of the Board.
[36]
The
Board reviewed the country condition documentation at length and reasonably
determined that the evidence indicated state protection would be available. The
Board did not err by giving little weight to the statement filed with the
police by the applicant. The Board noted the information given in the statement
was inconsistent with the applicant’s testimony. The Board is presumed to have
taken all of the evidence into consideration and explicitly noted evidence that
the Namibian police do not always like to become involved in family matters.
The fact that documentary evidence led the Board to a different conclusion than
the applicant’s does not mean it was ignored.
[37]
The
Board explicitly stated that it considered the Gender Guidelines. There is no
indication the applicant experienced any difficulty in testifying. The
Guidelines are directed towards the conduct of a fair hearing and the applicant
has not overcome the presumption that the Board took into consideration all of
the evidence before it. A refugee claimant bears the onus of proving her claim.
Analysis and Decision
[38]
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).
[39]
It
is established jurisprudence that credibility findings, described as the
“heartland of the Board’s jurisdiction”, are essentially pure findings of fact
that are reviewable on a reasonableness standard (see Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116 at paragraph 7,
[2003] FCJ No 162; Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraph 46, [2009] 1 S.C.R. 339; Demirtas v Canada (Minister of
Citizenship and Immigration), 2011 FC 584 at paragraph 23, [2011] FCJ No
786). Similarly, 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 at paragraph 38, [2009]
FCJ No 1286).
[40]
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; Khosa above, 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).
[41]
Issue
2
Did the Board err in
rejecting the applicant’s claim?
On the issue of
credibility, deference is owed to the Board due to its expertise and the
centrality of an oral hearing to credibility determinations. In this case, the
Board identified several discrepancies between the applicant’s PIF narrative,
oral testimony and the written record of her complaint to the police.
[42]
The
Board is entitled to consider inconsistencies when assessing a claimant’s
credibility (see Selvam v Canada (Minister of Citizenship and Immigration),
2007 FC 513 at paragraph 29, [2007] FCJ No 695). However, the inconsistencies
must be rationally related to the applicant’s credibility and must be major
enough by themselves to call into question the applicant’s credibility (see Fatih
v Canada (Minister of Citizenship and Immigration), 2012 FC 857 at
paragraph 69, [2012] FCJ No 924). Not every kind of inconsistency will
reasonably support a finding of credibility, since a microscopic examination of
peripheral issues would be improper (see Gebremichael v Canada (Minister of Citizenship and Immigration), 2006 FC 547 at paragraph 37, [2006] FCJ No
698).
[43]
In
this case, the inconsistencies identified by the Board are highly relevant to the
applicant’s claim and central to the issue of state protection, since they
pertain to the extent to which she sought protection before leaving Namibia. It is not a “microscopic examination” for the Board to highlight differences
between a PIF narrative, oral testimony and documentary evidence. The applicant
provided little explanation for these discrepancies and it was therefore
reasonable for the Board to draw negative inferences. Little more than a year
had passed between the submission of the PIF and the applicant’s hearing. She
was represented by counsel in preparing her PIF.
[44]
The
applicant is correct that there is a presumption that sworn testimony is true (see
Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT
776 at paragraph 6, [2001] FCJ No 1131). This is only a presumption, however,
and the Board is able and expected to reject that presumption in the face of
evidence undermining credibility, such as major inconsistencies.
[45]
The
credibility finding was not made without reference to documentary evidence, as
the inconsistency between the text of the police complaint and the applicant’s
oral testimony was one of the inconsistencies identified.
[46]
In
her affidavit, the applicant states there were actually four police complaints.
In a judicial review, the only evidence considered should be that before the
decision maker under review. Therefore, I cannot consider this evidence.
[47]
Therefore,
I do not find the credibility determination to be unreasonable.
[48]
On
the issue of state protection, the applicant first argues the Board did not
properly consider the applicant’s previous experience with the police. Since I
found above that the credibility finding was reasonable, this argument fails.
[49]
The
applicant additionally argues the Board failed to properly consider country
conditions evidence that contradicted the finding of state protection. The
applicant points to negative excerpts from the response to request for information
document the Board relied on in its finding.
[50]
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). However, the more important the evidence that
is not mentioned, the more willing a court may be to infer from silence that
the tribunal made a finding of fact without regard to the evidence (see Pinto
Ponce v Canada (Minister of Citizenship and Immigration), 2012 FC 181 at
paragraph 35, [2012] FCJ No 189).
[51]
Here,
the unmentioned evidence highlighted by the applicant includes the number of
units of the WCPU, the number of cases of gender-based violence reported each
year and flaws in the protection order system.
[52]
The
applicant argues the number of gender-based violence cases is high, but
provides no independent evidence of this claim, as the source document of that number
makes no such comment. The number of units of the WCPU, for a population of two
million, is equally difficult to analyze in the abstract and the applicant
points to no independent source corroborating her claim that this is an
insufficient number. Finally, the flaws in the protection order system were
repeated verbatim by the Board at paragraph 33 of its decision.
[53]
The
applicant argues that the Board should have inferred from the existence of
non-governmental organizations providing services to victims of domestic abuse
that the state was unable to do so. Such an inference would mean there is no
country in the world that offers adequate state protection given the ubiquity
of such organizations in Canada and elsewhere.
[54]
The
applicant argues that the Board failed to consider her personal circumstances
in the context of state protection. Those personal circumstances, however, were
duly considered by the Board but rejected at the credibility stage. As that
credibility finding stands, she cannot argue that the Board was wrong to not
consider her personal evidence at the state protection stage.
[55]
For
all of these reasons, the applicant has not established the Board failed to
consider any of evidence relevant to state protection.
[56]
On
the issue of the proper application of the Gender Guidelines, the applicant
first argues that the Board did not heed the Guidelines’ warning that
ostensibly positive changes in country conditions may have no impact on a
woman’s fear of gender-related persecution. As described above, I find that the
Board properly considered all the country conditions evidence before and did
not assume that all changes are effective, as evidenced on one point by the Board’s
consideration of evidence about the flaws in the protection order regime.
[57]
The
Guidelines also establish that an applicant may demonstrate it is objectively
unreasonable for her to seek the protection of her state. There is, however, no
indication the Board was unaware of this principle, given its thorough analysis
of state protection based on country conditions evidence apart from the
applicant’s own experience.
[58]
The
Guidelines are a very important tool in considering refugee claims based on
gender-related persecution, but they do not guarantee success to every applicant.
I find no evidence that the Guidelines were contradicted in this case.
[59]
Based
on these findings, the application for judicial review is dismissed.
[60]
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
|
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.
|
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.
|
Email this Content