Date:
20130308
Docket:
IMM-3950-12
Citation:
2013 FC 251
Ottawa, Ontario,
March 8, 2013
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
|
|
MILLIE ITUMELENG MOTHUDI
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated 22 March 2012 (Decision), which refused the Applicant’s application to be
deemed a Convention refugee or a person in need of protection under sections 96
and 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 32-year-old citizen of Botswana. She seeks protection in Canada from her ex-partner.
[3]
The
Applicant met her ex-partner at university in 2004. In June 2005, the Applicant
found out she was pregnant. Her mother did not approve, so the couple never
married but the Applicant moved in with her ex-partner. The Applicant’s son was
born on 22 February 2006 and she dropped out of university to care for him.
[4]
The
Applicant’s ex-partner first began abusing her while she was pregnant. He would
drink a lot, insult her, and assault her. On 12 December 2006, he came home
very drunk and stabbed the Applicant. The Applicant sought help, and reported
the incident to the police.
[5]
About
two months later the ex-partner assaulted the Applicant again, and she went to
the police. She realized that there was no report on file for the stabbing
incident, and that her ex-partner must have had someone helping him from inside
the police force.
[6]
On
another occasion, the ex-partner saw the Applicant with a man in a restaurant.
She knew that when she got home he would be very angry. Her son was staying at
her mother’s house at the time, so she picked him up and went to stay at a
relative’s house in another village.
[7]
The
Applicant’s mother provided her with funds to flee the country. She arrived in Canada on 1 February 2011 and claimed refugee protection on 8 February 2011. A hearing was conducted on 21 February 2012.
The RPD refused the Applicant’s claim for protection on 22 March 2012.
DECISION UNDER
REVIEW
[8]
The
determinative issue in the Decision was the existence of an Internal Flight
Alternative (IFA), but the RPD also took issue with the Applicant’s credibility
and subjective fear of persecution. In making the Decision, the RPD followed
the Chairperson’s Guidelines for Women Refugee Claimants Fearing
Gender-Related Persecution.
Credibility
[9]
The
RPD thought that the Applicant testified in a relatively straightforward
manner, but had two specific concerns with respect to her credibility.
[10]
In
her Personal Information Form (PIF) narrative, the Applicant said that she
reported the stabbing incident in 2006 to the police, but she did not mention
anything about seeking medical attention. In her PIF, she states “then I knew I
had to go seek help, I reported him to the police.” During the hearing, the Applicant
testified that she sought medical attention at a hospital. The RPD asked the
Applicant why she did not say in her PIF that she sought medical attention. She
replied that she did not know why she did not mention it. The RPD did not think
this was a reasonable explanation; the Applicant is a well-educated woman and
fluent in English. The instructions on the PIF form explicitly instruct
claimants to state whether any medical attention was received. The RPD found
that this omission diminished the Applicant’s credibility.
[11]
During
the hearing, the Applicant testified that when she was in Gaborone she went to
the local police station to try to report the abuse she had suffered. The Gaborone police informed her that she would have to make a police report in the district
where the abuse took place. When asked why this was not included in her PIF,
the Applicant said that she forgot. Again the RPD did not think this was a
reasonable explanation, as the instructions for the PIF ask for details of any
steps taken to obtain protection from any authorities in the home country. The
RPD thought that this was an attempt by the Applicant to embellish her claim,
and that it further diminished her credibility.
Subjective Fear of Persecution
[12]
On
the Applicant’s journey to Canada, she had to travel through the United States. The RPD asked the Applicant why she did not make a refugee claim upon
arrival in the U.S. She testified that it was not her plan to make a claim in
the U.S. because it was a rough country and people there are racist, and that
she wanted to come to Canada because she heard it was a good place to live. The
RPD did not accept this explanation as reasonable and felt that if she
genuinely feared for her life in Botswana she would have claimed refugee
protection at the earliest opportunity. The RPD believed that this undermined
the Applicant’s subjective fear of persecution, but that the Decision
ultimately turned on the availability of an IFA.
Internal Flight Alternative
[13]
The
RPD found that an IFA exists for the Applicant in either Francistown or Serowe.
It reviewed the two-prong test for whether a viable IFA exists: there must be
no serious possibility of the Applicant being persecuted in the IFA; and it
must be reasonable for the Applicant to seek refuge there.
[14]
The
RPD noted that the Applicant has been out of Botswana for over a year, and that
there is no reason to think she would have to inform her ex-partner of her
return. The Applicant provided no evidence that he continues to look for her.
Her child has remained safely with a friend 20 kilometres away from where her
ex-partner lives, yet he has not found him. The Applicant said that Botswana is small and because she attended university she would be recognizable, but the
RPD found no objective evidence that her ex-partner still wants to harm her. In
any case, the RPD found that state protection would be available to the
Applicant.
[15]
The
RPD found no persuasive evidence that any influence the ex-partner might have
with the police would extend beyond his local community. The documentary
evidence indicated that police in Botswana require more training for
gender-based violence, but that the government is seriously working to remedy
this problem. For example, police officers now receive human rights training
and the Botswana Police Service has developed a handbook regarding human rights
that is distributed throughout the country.
[16]
The
United Nations High Commissioner for Refugees (UNHCR) report says that poor
dissemination of information about laws and programs to help victims of
domestic violence is part of the problem. The report says that victims may go
to court to obtain restraining orders, but legal costs are the main obstacle.
The RPD pointed out that the Applicant’s mother provided her with financial
assistance to come to Canada, and there was nothing to indicate her mother
would not be able to assist her with legal costs if necessary. Also, once the
Applicant found employment she would be able to cover her own legal costs.
[17]
Applicant’s
counsel submitted that under customary law, husbands can treat their wives as
legal minors. However, the Applicant was never married to her ex-partner.
Therefore, the RPD did not think the Applicant would come under the customary
law referred to by counsel. The documentary evidence also indicates that
non-governmental support services are available to victims of gender-based
violence.
[18]
The
RPD noted that it had to be sensitive to that fact that the Applicant would be
travelling as a woman on her own. She had already travelled all the way to Canada where she knew no one, so the RPD thought it reasonable to assume she would be able
to assimilate at an IFA. The Applicant provided letters from her mother, as
well as close friends, so it assumed she would continue to receive support from
these people. The Applicant’s education was well beyond that of the average
citizen of Botswana, and she is fluent in English. The evidence showed she had
experience as a sales associate, and that women in Botswana are increasingly
able to access credit and be paid equally with men. Based on the above, the RPD
found there were no serious social or economic barriers to the Applicant
relocating.
[19]
The
RPD concluded that, on a balance of probabilities, an IFA exists in either Francistown or Serowe. Therefore, the Applicant’s claim was rejected.
STATUTORY
PROVISIONS
[20]
The
following provisions of the Act are applicable in this proceeding:
|
Convention refugee
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
[…]
Person in Need of Protection
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
[…]
|
Définition
de « réfugié »
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;
[…]
Personne à
protéger
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.
[...]
|
ISSUES
[21]
The
Applicant raises the following issues in this application:
a.
Did
the RPD commit an error of law or fact?
b.
Did
the RPD proceed on improper principles, base its Decision on irrelevant
considerations, or ignore critical evidence?
c.
Did
the RPD make a wrong assessment of the IFA?
STANDARD
OF REVIEW
[22]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[23]
In
Aguebor v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review
on a credibility finding is reasonableness. Further, in Elmi v Canada (Minister
of Citizenship and Immigration), 2008 FC 773, at paragraph 21, Justice Max
Teitelbaum held that findings of credibility are central to the RPD’s finding
of fact and are therefore to be evaluated on a standard of review of
reasonableness. Finally, in Negash v Canada (Minister of Citizenship and
Immigration), 2012 FC 1164, Justice David Near held at paragraph 15 that
the standard of review on a credibility determination is reasonableness. The
standard of review on the first issue is reasonableness.
[24]
In
Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94,
the Federal Court of Appeal held at paragraph 36 that the standard of review on
a state protection finding is reasonableness. This approach was followed by
Justice Luc Martineau in Bibby-Jacobs v Canada (Minister of Citizenship and
Immigration), 2012 FC 1176, at paragraph 2. Further, in Chaves v Canada (Minister of Citizenship and Immigration), 2005 FC 193, Justice Danièle
Tremblay-Lamer held at paragraph that the standard of review on a state
protection finding is reasonableness. The standard of review on the second issue is
reasonableness.
[25]
The
existence of an IFA is a matter of mixed fact and law, and is reviewable on a
reasonableness standard (see Davila v Canada (Minister of Citizenship and
Immigration), 2012 FC 1116 at paragraph 26; Nzayisenga v Canada
(Minister of Citizenship and Immigration), 2012 FC 1103 at paragraph 25; M.A.C.P.
v Canada (Minister of Citizenship and Immigration), 2011 FC 81 at
paragraph 29). The standard of review on the third issue is reasonableness.
[26]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration)
v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
ARGUMENTS
The Applicant
Credibility
[27]
The
Applicant submits the RPD was unreasonable in its assessment of her
credibility. The Applicant testified that she visited the hospital after the
stabbing in 2006, and though she did not include this specifically in her PIF
she did submit a medical report from the hospital as well as an affidavit from
a friend, Otto C. Kablay, wherein he says that the Applicant was treated at a
hospital for her injuries.
[28]
The
Applicant submits that, based on her testimony and the supporting documentary
evidence, it is clear she went to the hospital after she was stabbed. Her PIF
says that “she knew she had to seek help,” which easily could have included
treatment at the hospital. The Applicant submits that the mere fact that she
did not specifically say that she went to the hospital does not invalidate her
testimony or credibility.
[29]
In
M.M. v Canada (Minister of Employment and Immigration), [1991] FCJ No
1110 (FCA), the Federal Court of Appeal held that it is an error for the RPD to
ignore documentary evidence and important aspects of a claimant’s testimony
while focusing on inconsistencies that are not central to the claim. Further, a
finding that there are minor inconsistencies in the Applicant’s story or that
parts of her story are exaggerated is not enough to reject all of the evidence
(Armson v Canada (Minister of Employment and Immigration), [1989] FCJ No
800 (FCA)).
[30]
The
RPD did not indicate it had taken the doctor’s report or affidavit of Mr.
Kablay into account. The RPD did not indicate any concerns with these documents,
and therefore it erred by ignoring this evidence (Owusu-Ansah v Canada
(Minister of Employment and Immigration), (1989) 8 Imm LR (2d) 106 (FCA); Canadian
Imperial Bank of Commerce v Rifou, [1986] 3 FC 486 (CA); Padilla
v Canada (Minister of Employment and Immigration), (1991) 13 Imm LR (2d) 1
(FCA)).
[31]
The
RPD also thought that the Applicant’s testimony about attending at the police
station in Gaborone was an attempt to embellish her claim. However, the
Applicant explained in her PIF about her attempts to go to the police and how
she realized that her report of the stabbing was not on file. The Applicant
submits that the fact that she did not say that this took place in Gaborone and that the police told her to go back to the station where the abuse took place
does not mean that she omitted to explain her attempts to seek protection in
her own country. She also submits that this should not detract from her
credibility, as it is not a central part of her claim.
[32]
The
Applicant further submits that the RPD made an unreasonable assessment of her
trip to Canada. The Applicant left for Canada the same day she arrived in the U.S.; she simply transited through the U.S. on her way to Toronto. Had she stayed in the U.S. for some time it might be argued that she should have made a claim there. However, the
Applicant explained in her testimony that her destination was Canada, and that she preferred Canada over the U.S. Immediately upon arriving in the U.S. she boarded a bus for Canada. It was unreasonable for the RPD to simply ignore this fact.
Internal Flight Alternative
[33]
In
making its IFA finding, the RPD said that “if the claimant does not wish to
inform others of her presence in either of these two cities there is no reason
to believe that her location would be found out.” This means that the RPD
essentially expected her to live in hiding, which is unreasonable. In Huerta
v Canada (Minister of Citizenship and Immigration), 2008 FC 586, the Court
had the following to say on point at paragraph 29:
The Applicant’s evidence is that she did relocate to
Queretaro in 2004, but was tracked down by her common-law spouse, a trained
police interrogator, who assaulted the Applicant’s mother, and forced her to
disclose the Applicant’s new location. The Board did not expressly address
these circumstances in considering the IFA in its reasons. But the Board did
qualify its finding by stating that an IFA existed for the Applicant in Mexico, provided she took reasonable precautions and not reveal her new location to
relatives and friends. Not to be able to share your whereabouts with family or
friends is tantamount to requiring the Applicant to go into hiding. It is also
an implicit recognition that even in these large cities, the Applicant is not
beyond her common-law spouse’s reach. In these particular circumstances, this
cannot constitute an IFA for the Applicant. The Board’s finding of an IFA does
not fall within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law in the circumstances. As a result, the decision
with respect to an IFA is unreasonable and must be set aside.
[34]
The
Applicant also submits that the RPD erred in its state protection analysis. She
explained that her initial police report was not documented and that she tried
to follow up but the police kept telling her to check back later. The Applicant
also said in her PIF that she did not know whether her ex-partner had “one or
more” people working for him from inside the police force. The Applicant
submits that the RPD erred by ignoring this part of her PIF. The Applicant also
said in her oral testimony that she went to the police in Gaborone and was
turned down.
[35]
There
was also documentary evidence before the RPD stating that domestic violence is
not considered a serious crime in Botswana and that the legal system’s response
to domestic violence remains inadequate. The evidence also says that police
officers require more specific training in domestic violence. As stated in Owusu-Ansah,
above, it is an error for the RPD to ignore material evidence.
[36]
The
RPD failed to consider the totality of the evidence of state protection before
it. The RPD referred to the documentary evidence, but ignored the information
on how domestic violence is treated by the police in Botswana. The RPD discussed
the government’s efforts to deal with domestic violence, but did not mention
how the documentary evidence says that even after the Domestic Violence Act
was passed in 2008 domestic violence was still not considered a serious crime,
and that support services are primarily available only in urban areas. The fact
that the government of Botswana is taking steps to ameliorate protection for
victims of domestic violence is not enough to establish the existence of state
protection, as these services are only available in urban centres. It was an
error for the RPD to ignore portions of the documentary evidence that is
directly relevant to her claim and which could be said to materially affect the
claim (Kaur v Canada (Minister of Citizenship and Immigration), [1999]
FCJ No 1015). Further, the RPD ignored the fact that the Applicant had someone
persecuting her from within the police force when it conducted its state
protection analysis.
[37]
The
Applicant also submits that it was unreasonable for the RPD to find that she
was never married and thus that she would not come under customary marriage
law. The Applicant said that she and her ex-partner lived together, and that
she was in a common-law relationship. The RPD did not consider the meaning of a
common-law relationship, and had it done so it may have reached a different
conclusion.
The Respondent
Credibility
[38]
The
Respondent submits that it was reasonable for the RPD to find that the
Applicant’s failure to claim refugee protection in the U.S. undermined the well-foundedness of her fear. Failure to claim is an important factor which the
RPD is entitled to consider when weighing a claim for refugee status (Espinosa
v Canada (Minister of Citizenship and Immigration), 2003 FC 1324 at
paragraph 16). It was reasonable for the RPD to note that if the Applicant
truly feared for her life then she would have applied for protection at the
first available opportunity, and that her failure to do so is inconsistent with
a subjective fear of persecution.
[39]
The
Applicant said that she did not claim protection in the U.S. because it is a little rough and there is racism and xenophobia. The RPD simply did
not find this explanation persuasive; it is entitled to use common-sense to
determine the plausibility of an explanation and the negative inferences
outlined above are reasonable (Nnawuihe v Canada (Minister of Citizenship
and Immigration), 2005 FC 775 at paragraph 33).
[40]
The
Applicant also said in her oral testimony that she went to a hospital for
medical attention and that she tried to report her agent of harm to the police
in Gaborone but they would not let her. The Respondent submits that the RPD
rightly found that these were important omissions, and that the latter went
directly to the issue of state protection. The RPD also noted that the
Applicant submitted an amended PIF with the assistance of counsel, and that
this information was still not included. If a refugee claimant fails to mention
important facts, and then later describes the events in oral testimony, this
may legitimately be considered by the RPD to be an inconsistency indicating a
lack of credibility (Kaleja v Canada (Minister of Citizenship and
Immigration), 2011 FC 668 at paragraph 18; Nyayieka v Canada (Minister
of Citizenship and Immigration), 2010 FC 690 at paragraph 11; Zupko v
Canada (Minister of Citizenship and Immigration), 2010 FC 1319 at paragraph
32).
Internal Flight Alternative and State
Protection
[41]
The
RPD’s finding of an IFA is determinative of the Applicant’s claim (Thirunavukkarasu
v Canada (Minister of Employment and Immigration), (1994) 1 FC 589 (FCA) at
paragraph 2).
[42]
The
Respondent points out that a state is presumed capable of protecting its
citizens (Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at
paragraph 89). The onus was on the Applicant to adduce evidence to satisfy the
RPD on a balance of probabilities that state protection is inadequate (Carillo,
above, at paragraph 28). The RPD noted that gender violence is a problem in Botswana, but that the documentary evidence indicated that the state has undertaken serious
efforts to address the problem and provide adequate protection and services for
victims.
[43]
The
RPD determined that, considering the Applicant’s personal circumstances, it
would not be unreasonable for her to seek refuge in Francistown or Serowe, and
that there is no serious possibility that she would be persecuted there. The
Applicant testified that her ex-partner came to her mother’s house once looking
for her, and that neighbours reported seeing a car that may have been his. She
also testified that her child has remained safely with a friend only two
kilometres from where the ex-partner lives. It was reasonable for the RPD to
conclude that there was no evidence that the alleged agent of harm still wants
to hurt her or would travel to do so.
[44]
The
RPD noted the Applicant’s education is far beyond that of the average citizen
of Botswana, and she provided no evidence that she would be unable to receive
support from her friends and family members, including her mother who assisted
her with travelling to Canada. Based on her age, education, work experience,
language, and support network, the RPD reasonably found there are no serious
social or economic barriers to the Applicant relocating to an IFA.
[45]
The
Respondent points out that the RPD is presumed to have read all the documentary
evidence, and the fact that it did not cite every document is not enough to
rebut the presumption that it weighed and considered all the evidence (Florea
v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 at
paragraph 1). There is no indication that the RPD ignored contradictory
evidence; it acknowledged that gender-violence is a problem in Botswana, and that there are concerns, for example, with legal costs as obstacles for women
seeking to access justice. It also acknowledged problems with the dissemination
of information, and that state protection efforts are not always perfect.
[46]
The
Respondent submits that the RPD clearly did take into account the important
contradictory evidence. The Applicant’s position amounts to a disagreement with
how the documentary evidence was weighed. This is not a proper basis for the
Court to intervene (Giannaros v Canada (Minister of Social Development),
2005 FCA 187 at paragraph 12).
ANALYSIS
[47]
The
Decision is slightly odd in two respects. First of all, the RPD raises a number
of credibility and subjective fear concerns, but then says that “Regardless of
my concerns regarding the claimant’s credibility, I find that the claim turns
on a viable internal flight alternative.” A reading of the Decision as a whole
suggests that the credibility and lack of subjective fear findings have no
impact on the final decision.
[48]
Secondly,
in its IFA considerations, the RPD makes an alternative state protection
finding:
There is no objective evidence before me that the
alleged agent of harm, Mr. Mathe, still wants to hurt the claimant, or that he
would travel to Francistown or Serowe to do so. In any case, I find that the
claimant has state protection available to her.
[49]
Against
this general backdrop, I do not think I need to address the Applicant’s
concerns about credibility and subjective fear because they are not the basis
for the Decision.
[50]
As
regards the IFA, there is no suggestion that the RPD intends that the Applicant
live in hiding. Francistown and Serowe are large urban centers, and each is a
considerable distance from Moshupa where the Applicant resided with her
ex-partner. He would have no knowledge of her whereabouts in Francistown or
Serowe and there is no evidence that he continues to look for her. Also, there
was no objective evidence that the ex-partner still wants to hurt her or that
he would travel to Francistown or Serowe to do so. Hence, the first prong of
the Rasaratnam test was satisfied and the Applicant has raised no real
argument as to unreasonableness in this regard. The Applicant seeks to rely
upon the decision of Justice Edmond Blanchard in Huerta, above, but I
have to agree with the Respondent that the facts of that case — where the
applicant had previously relocated to the proposed IFA, but was tracked down by
her common-law spouse who was a trained police interrogator who had assaulted
the applicant’s mother — are very different from the present case. Here, the
ex-partner has done nothing more than go to the Applicant’s mother’s house
after the Applicant left, and there is a complete dearth of evidence as to
whether he is even interested in pursuing the Applicant, let alone whether he
has the means.
[51]
The
RPD’s assessment of the second prong of the Rasaratnam test is also
reasonable. The RPD clearly states why, in all of the circumstances, it would
not be unreasonable to expect the Applicant to relocate to Francistown or
Serowe, and the Applicant essentially takes no issue with the RPD’s findings in
this regard.
[52]
This
means that the RPD’s finding on the determinative issue of IFA is reasonable
and that the Decision cannot be set aside.
[53]
The
Applicant takes issue with some of the RPD’s findings on state protection, but
even if there were a problem in that regard, the Decision stands on the IFA
ground alone. The Applicant does not need to call upon state protection because
there is no objective evidence that the alleged agent of harm still wants to
hurt the Applicant, or that he would travel to Francistown or Serowe to do so.
[54]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
Email this Content