Date: 20110408
Docket: IMM-4636-10
Citation: 2011 FC 442
Ottawa, Ontario, April 8,
2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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SHEILA MONKIE LESHIBA
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Applicant
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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 JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
The
Applicant seeks judicial review of a decision by the Immigration and Refugee
Board (Board) denying her refugee and protection claims despite accepting that
she had been beaten and intimidated by an ex-boyfriend.
II. FACTUAL
BACKGROUND
[2]
Ms.
Leshiba is a citizen of Botswana and claimed fear of
persecution by her ex-boyfriend.
[3]
The
incidents relied upon were the threat of a beating, two actual assaults and an
attempt to burn her out of her home. These incidents occurred between 2002 and
2008, each being approximately two years apart.
[4]
During
that time frame, the Applicant went to South Africa twice but
refused to seek protection there because of violence in that society.
[5]
After
the attempted arson, the Applicant decided to come to Canada but waited
over a year before doing so while she obtained sufficient funds for her
departure.
[6]
The
Applicant had reported the assaults and attempted arson to police but the most
that occurred was that the perpetrator was held overnight. He was never charged
with any offence.
[7]
The
Board found the Applicant to be credible and to have a genuine fear of the
perpetrator. However, the Board recognized the difficulty in drawing the line
between persecution and harassment. In this case, the Board found that there
was no serious risk that she would be persecuted if she returned to Botswana.
[8]
The
Board concluded that the threats were infrequent, sporadic and seemingly random
as well as being separated by quite lengthy periods of time (with one
exception).
[9]
The
Board also noted that the Applicant had lived unharmed for 13 months after the
last incident in 2007. Between then and her departure for Canada she went to South Africa twice. The
Board found her explanation for delaying her departure from Botswana to be
unreasonable. Her delay combined with such factors as never being contacted at
her workplace by the perpetrator, her biding her time to obtain funds, and her
open and undisturbed living were inconsistent with a well-founded fear of
persecution.
[10]
The
Board acknowledged the documentary evidence that violence against women was
prevalent but accepted that Botswana had taken steps to
address this problem with new anti-violence laws which gave the Applicant the
tools to address her particular problem. State protection was held to be
adequate.
III. ANALYSIS
[11]
As
the Applicant has raised the issue of the correct legal test for persecution,
that is a question of law for which the standard of review is correctness (Dunsmuir
v New
Brunswick,
2008 SCC 9). The application of that legal test to the facts of the case and
the Board’s state protection analysis are matters of mixed fact and law for
which the standard of review is reasonableness (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12).
A. Legal
Test
[12]
The
Board was correct to apply the dicta of Ward (Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689) in respect of “persecution” and
“sustained or systemic violation of basic human rights”.
[13]
A
fair reading of the Board’s reasons confirms that it asked the right question
in applying the law: did the acts committed amount to a sustained or systemic
violation. The phrase “systemic and sustained” appears to be a
typographical error and is of no importance given the articulation of the
applicable law and the analysis of the facts and law. That error came in
quoting Ward, above, but the correct test is articulated in other places
in the decision.
[14]
The
Applicant asserts that the Board wrongfully relied upon the requirement for
repeated acts and failed to consider systemic violence. It was argued that the
violence in this case is systemic because it was aimed at a woman.
[15]
Having
laid out the proper legal test, the matter of determining whether there is a
well-founded fear of persecution requires an examination of the evidence to
determine if an applicant faces a serious possibility of persecution where
persecution is understood to mean “sustained or systemic violation of basic
human rights”.
[16]
There
is no suggestion in the Board’s reasoning that a single act of violence could
not be persecution, as clearly it can. Nor did the Board conclude that
repetitive or sustained acts alone would be persecution. The frequency of offending
acts is a relevant consideration in the context of the seriousness of the acts
themselves and the specific facts of each case.
[17]
The
Board took into consideration the incidents of assault in 2002 and 2007, the
attempted arson in 2007, and a threat to the daughter in 2009 after the
Applicant had left Botswana. It was reasonable for the Board to take into
consideration the delay in departure and the absence of any contact from the
perpetrator during that time as part of its analysis of the possibility of future
harm.
[18]
It
was open to the Board on these facts to conclude that the Applicant did not
have an objective basis for fear of future persecution. There is no
inconsistency in this conclusion and the Board’s acceptance of the facts
alleged or of the Applicant’s subjective fear.
[19]
This
finding effectively disposes of the Applicant’s claim. The Board’s conclusions
as to adequacy of state protection are an alternative finding.
[20]
That
finding suffers from a failure to analyse the effectiveness of state protection
under Botswana’s new legislative
scheme to address domestic violence. It is not sufficient to rely solely on the
legislation without considering whether the legislative intent is actually
being implemented. This is a particular challenge with new legislation which requires
training of police, prosecutors and judges and education of the public to truly
be fully implemented. The Board did not actually consider current effectiveness
of state protection and its likely improvement under the new legislation.
IV. CONCLUSION
[21]
However,
whatever the difficulties with state protection may be, the central decision is
reasonable. This judicial review will be dismissed with no question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed.
“Michael
L. Phelan”
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