Date:
20130417
Docket:
IMM-4049-12
Citation:
2013 FC 385
Ottawa, Ontario,
April 17, 2013
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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KEITUMETSE ISRAEL, IKOKETSENG ISRAEL, FERGUSON ISRAEL and PEARL MICHELLE ISRAEL
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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
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division (the RPD) rendered on April 10, 2012 denying Keitumetse Israel (Ms.
Israel), Ikoketseng Israel (Mr. Israel), Ferguson Israel and Pearl Michelle
Israel’s (the minor Applicants) claims under section 96 and subsection 97(1) of
the Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA].
[2]
For
the reasons that follow this application is allowed.
II. The facts
[3]
The
Applicants are citizens of Botswana.
[4]
In
1999, Ms. Israel entered into a relationship with William Camm (Mr. Camm).
Shortly thereafter, Ms. Israel discovered that Mr. Camm was abusive.
[5]
In
2000, Mr. Camm told Ms. Israel that he wanted to have a baby. Ms. Israel refused because she was planning to further her studies. Mr. Camm sexually assaulted
Ms. Israel and she became pregnant with the minor Applicant Pearl Michelle, as
a result. Mr. Camm abandoned Ms. Israel after she became pregnant and failed to
provide any financial support. Pearl Michelle was born on August 31, 2000. Mr.
Camm and Ms. Israel had no contact until 2003.
[6]
Ms.
Israel met Mr. Israel at school in 2001.
[7]
In
2003, Mr. Camm called Ms. Israel and told her he wanted to contribute
financially to assist in the upbringing of Pearl Michelle. Ms. Israel travelled 100 km from Francistown to the village of Lethakane where Mr. Camm lived. When Ms.
Israel met Mr. Camm in his home, he told her that he heard that she was in a
new relationship and demanded that she leave her partner because their
relationship had never truly ended.
[8]
When
Ms. Israel told him that their relationship ended when he left in 2000, Mr.
Camm punched, kicked and strangled her with a towel. Ms. Israel managed to escape and went to a police station to report the assault. Mr. Camm was
arrested and fined 50 Pula (roughly $6 CAD).
[9]
In
2006, Mr. Camm located Ms. Israel at the hospital where she was employed as a nurse.
He told her that both his parents had died, he had lost his job, and that he
had no one to take care of him. He wanted to get back together with her. When
Ms. Israel refused because she was in a happy relationship, Mr. Camm threatened
to hurt her and kill her if she reported him to the police.
[10]
Frightened,
Ms. Israel feigned she needed time to reflect and applied for an emergency
transfer to another hospital. She received her transfer immediately and moved
to Palapye, approximately 300 km south of Francistown.
[11]
Ms.
Israel did not hear or see from Mr. Camm for almost 4 years. On May 7, 2007,
Ms. Israel gave birth to the minor Applicant, Ferguson, and on December 18,
2010, she married Mr. Israel.
[12]
In
September 2010, Mr. Camm found Ms. Israel again. He confronted her at her home
and physically assaulted and threatened her. Mr. Israel was present at the time
but was unable to overcome him. Mr. Camm gave Ms. Israel one month to break up
with her husband and come back to him.
[13]
Neither
Ms. Israel nor Mr. Israel reported the assault to the authorities because they
felt it would make matters worse.
[14]
On
December 25, 2010, Mr. Camm approached Ms. Israel in her backyard. Yet again he
insisted she get back together with him and assaulted her when she refused. Mr.
Israel heard the commotion outside, confronted Mr. Camm and was thrown to the
ground.
[15]
The
Applicants did not report this incident to the police either. Ms. Israel took time off work because of stress and contacted a friend living in Canada who agreed to provide her with accommodation. Ms. Israel said she knew she did not need a
Visa to enter Canada and wanted to keep her options open in case she needed to
flee the country quickly.
[16]
Ms.
Israel returned to work on January 17, 2011. On January 19, 2011, Mr. Camm
confronted the married couple once more at their home demanding Ms. Israel return to him. He punched and took off his shirt to strangle her. Mr. Israel attacked Mr. Camm but was overpowered. Fortunately, a group of men passing by
intervened. Mr. Camm ran away.
[17]
Soon
after the incident, on January 24, 2011, Ms. Israel flew to Calgary. She made a
claim for refugee protection on February 3, 2011. Mr. Camm continued to pursue
Ms. Israel after she left. Mr. Israel fled to Canada with Pearl and Ferguson on March 27, 2011, after Mr. Camm had threatened him if he did not disclose Ms. Israel’s whereabouts.
III. The impugned
decision
[18]
The
determinative issue for the RPD in this case is Ms. Israel’s failure to rebut
the presumption of state protection in Botswana.
[19]
In
arriving at that conclusion, the RPD considered: 1) the fact that Botswana has been multiparty democracy since its independence in 1996 and that its security
forces report to civilian authorities; 2) Ms. Israel’s own experience with
state protection after the attack in 2003; and 3) Ms. Israel’s failure to seek
out state protection after subsequent attacks.
[20]
The
RPD held that while Ms. Israel was not satisfied with the punishment Mr. Camm
received after the first assault, this does not mean that state protection is
inadequate in Botswana. The RPD incorrectly indicated in its decision that Mr.
Camm was fined 50,000 pula instead of 50.
[21]
On
the subject of Ms. Israel’s reluctance to seek out state protection, the RPD
determined that Ms. Israel’s reasons (i.e. that it would only fuel Mr. Camm’s
anger and that she did not believe it would prevent further assaults given the
response she received on the first occasion) were unacceptable.
[22]
The
RPD noted that Ms. Israel did not hear from Mr. Camm for three years after his
arrest and found that this fact suggests that reporting him to the police would
not have fuelled his anger. Consequently the RPD found that Ms. Israel’s
subjective belief was not supported by the objective evidence.
[23]
Regarding
Ms. Israel’s position that the police’s intervention would not be more
effective than on her first complaint, the RPD noted that “[d]oubting the
effectiveness of state protection when she did not really test it does not
rebut the presumption of state protection […]” (Rio Ramirez v Canada (Minister
of Citizenship and Immigration), 2008 FC 1214 at para 28).
[24]
The
RPD determined that Ms. Israel adduced insufficient credible evidence to
conclude that state protection would not have been forthcoming. In fact, the
RPD found that Ms. Israel’s previous experience indicates the opposite. As to
the evidence presented that domestic violence is viewed as a private matter in Botswana and that authorities refuse to be involved, the RPD found that this was of limited
relevance because it did not view the case as a “domestic matter”.
[25]
The
RPD concluded that “whether considered under section 96 or 97, [its] finding
that state protection would be available to the [Applicants] is fatal to both”
(RPD Reasons, para 42).
IV. Legislation
[26]
Section
96 and subsection 97(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 provide as follows:
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Immigration
and Refugee Protection Act, SC 2001, c 27
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Loi
sur l'immigration et la protection des réfugiés, LC 2001, c 27
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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
(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.
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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;
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.
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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.
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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.
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V. Issues
and standard of review
A. Issue
•
Did
the Board err in finding that the Applicants failed to rebut the presumption of
state protection?
B. Standard
of review
[27]
The
standard of review for a state protection finding is reasonableness (Carillo
v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at para 36;
Lozada v Canada (Minister of Citizenship and Immigration), 2008 FC 397
at para 17; Trinidad Reyes v Canada (Minister of Citizenship and
Immigration), 2012 FC 926 at para 14).
[28]
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” (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47 [Dunsmuir]; Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 59).
VI. Parties’
submissions
A. Applicant’s
submissions
[29]
Ms.
Israel alleges the RPD committed a number of reviewable errors in its state
protection analysis.
[30]
First,
the RPD erred in concluding that Botswana provided adequate protection after
Ms. Israel reported the 2003 assault. At the hearing, Ms. Israel testified that both she and her sister had tried but were unable to obtain a copy of
the police documents related to the 2003 assault. The police indicated they had
no knowledge about Ms. Israel’s complaint. Ms. Israel testified that
consequently police must have been lying when they stated that Mr. Camm had
been charged. Ms. Israel claims that the RPD committed a reviewable error by
failing to mention or analyse this important evidence which contradicted its
findings.
[31]
Ms.
Israel also alleges that the RPD erred when it concluded that the police’s
response to her complaint was adequate because it misapprehended the evidence
she adduced. Contrary to what the RPD indicated in its reasons, Ms. Israel did not testify that Mr. Camm was brought before a court or that he was fined 50,000
pula. Rather, Ms. Israel explained that when she phoned the police they told
her that Mr. Camm had been given a 50 pula fine for an admission of guilt.
Given the significant difference between the RPD’s understanding and the actual
fine as stated by the police, Ms. Israel claims that the RPD’s assessment
constitutes a reviewable error since it goes to the heart of the RPD’s state
protection analysis (i.e. whether Ms. Israel was justified in not seeking out
state protection for subsequent assaults).
[32]
Ms.
Israel submits that she adduced credible evidence of “similarly situated
individuals” at the hearing and that the RPD erred in dismissing it as not
credible without any explanation or analysis. Citing Hilo v Canada (Minister of Employment and Immigration) (1991), 130 NR 236 (FCA) [Hilo], Ms. Israel argues that the RPD is required to explain its credibility findings in clear and
intelligible terms.
[33]
Ms.
Israel also takes issue with the RPD’s finding that this case is not a
“domestic matter”. Ms. Israel submits that the RPD wrongly focussed on the
current state of her relationship with Mr. Camm to conclude that the abuse she
suffered was not domestic in nature. This finding lead the RPD to assign little
weight to the evidence presented establishing that authorities in Botswana regard “domestic abuse” as a private matter and refuse to be involved. Ms. Israel underlines that the genesis of the violence she experienced was her initial
relationship with Mr. Camm. He was abusive while they were together and that
abuse continued because of her refusal to renew that relationship.
[34]
Finally,
Ms. Israel alleges that the RPD should not have used its own viewpoint instead
of that of the authorities in Botswana to determine whether she was a victim of
domestic abuse or not. Relying on Hilo, above, Ms. Israel submits that
“when determining whether an applicant belongs to a protected group as defined
under […] 3(2)(d) of the IRPA, the Tribunal must make that
determination from the point of view of the agent of persecution, and not from
the point of view of the Tribunal” (Applicant’s Memorandum, para 21).
[35]
Ms.
Israel also relies on paragraph 80 of Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689 [Ward] to claim that she belongs to a particular social
group as defined in that Supreme Court decision and that the RPD failed to take
notice or evaluate her claim on that basis.
B. Respondent’s
submissions
[36]
The
Respondent submits the RPD’s state protection finding was reasonable. The RPD
did not err in failing to address Ms. Israel’s evidence that the police were
unable to produce a record of the 2003 assault eight years after the fact. The
Respondent argues there exists any number of reasons to explain that the police
could not find a record and the RPD was under no obligation to address Ms. Israel’s inference that the police had lied to her in 2003.
[37]
The
Respondent acknowledges that in its decision, the RPD misstated the amount Mr.
Camm was fined for the 2003 assault but contends that a review of all the
evidence adduced indicates that the error was merely typographical and not
determinative. The Respondent claims that the RPD was aware that the fine was
minimal and that Ms. Israel considered it far too lenient. If, on the other
hand, the misstatement constituted a misapprehension of the evidence, the
Respondent insists that the error was not so significant that it requires the
decision to be quashed.
[38]
On
the issue of the RPD’s treatment of the evidence adduced by Ms. Israel of similarly situated individuals in Botswana, the Respondent argues that the RPD’s failure
to proceed to an in depth analysis does not necessarily mean that said evidence
was ignored. In addition, the Respondent claims that the issue was not
determinative in the RPD’s state protection analysis which focussed far more on
“the context in which the assaults occurred and the personal experience of the
[PA] in reporting [the] assault, having it followed up on and the resulting
fine” (Respondent’s Further Memorandum, para 42).
[39]
The
Respondent submits that when reading the RPD’s decision as a whole, one can
conclude that the RPD did not find the experiences of other individuals
presented by Ms. Israel as “similar” because they involved domestic violence
whereas the RPD concluded the case at bar was not a domestic matter. The
Respondent argues that its finding was reasonable and supported by the facts.
For one, all but one of the assaults occurred at least three years after Ms. Israel and Mr. Camm had separated. Second, the assaults and threats were not of a private
nature. Mr. Camm assaulted and threatened Mr. Israel, as well as Ms. Israel.
[40]
Finally
the Respondent alleges that the RPD was not required to evaluate whether the
case was a domestic matter from the point of view of the authorities in Botswana. The Respondent points out that while the viewpoint of persecutors is relevant in
cases where claimants are being persecuted by the state for political activity;
that is not applicable in this instance as the agent of persecution is a
private individual. The Respondent also notes the absence of evidence adduced
before the RPD related to the Botswanan authorities’ viewpoint on domestic
violence.
VII. Analysis
•
Did
the Board err in finding that the Applicants failed to rebut the presumption of
state protection?
[41]
The
Court finds that the Board erred in finding that the Applicants had failed to
rebut the presumption of state protection for the following reasons. The case
law is clear. A claimant can adduce evidence to rebut the presumption of state
protection. In the present case the RPD based its refusal of Ms. Israel’s claim on the basis that she failed to rebut that presumption. In Ward,
cited above, at para 57, the Supreme Court set out the types of evidence
required to refute this presumption:
The issue that arises, then, is how, in a practical
sense, a claimant makes proof of a state's inability to protect its nationals
as well as the reasonable nature of the claimant's refusal actually to seek out
this protection. On the facts of this case, proof on this point was
unnecessary, as representatives of the state authorities conceded their
inability to protect Ward. Where such an admission is not available, however,
clear and convincing confirmation of a state's inability to protect must be
provided. For example, a claimant might advance testimony of similarly
situated individuals let down by the state protection arrangement or the
claimant's testimony of past personal incidents in which state protection did
not materialize. Absent some evidence, the claim should fail, as nations
should be presumed capable of protecting their citizens. Security of nationals
is, after all, the essence of sovereignty. Absent a situation of complete
breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a
claimant. [Emphasis added].
[42]
In
the case at bar, Ms. Israel claims to have provided evidence of “similarly
situated individuals let down by the state protection arrangement [and] […] testimony
of past personal incidents in which state protection did not materialize”. On
the subject of her own experience of seeking state protection, she argues that
adequate state protection did not materialize because the penalty Mr. Camm
received was far too lenient. The RPD disagreed. In fact, it found that Ms.
Israel’s past experience suggested that adequate state protection would have
been forthcoming to her and that her failure to seek it out was fatal to her
claim.
[43]
Ms.
Israel testified that Mr. Camm received a fine of 50 pula (roughly $6 CAD)
for admitting to her assault. The RPD indicated in it reasons that Mr. Camm
received a fine of 50,000 pula (roughly $6000 CAD). The Court finds that Ms.
Israel’s testimony clearly established that adequate state protection did not
materialize after her 2003 assault. A six dollar fine for a brutal assault
(which included strangulation) is obviously inadequate. If the RPD’s error was
merely typographical then the Court finds that its assessment of the police’s
response was unreasonable. If its error was a misapprehension of the evidence
then it had a direct influence on its conclusions regarding the police’s
response to Ms. Israel’s 2003 complaint.
[44]
Ms.
Israel also proffered evidence at the hearing of two similarly situated
individuals (her sister and a neighbour) who were not provided adequate state
protection. The RPD dismissed this evidence as not credible without any
explanation or analysis. At paragraph 40 of its reasons, the RPD noted that
“there is no credible evidence of similarly situated individuals who did not
receive state protection”. It is basic tenet of the law on credibility findings
that a tribunal must provide a clear explanation for such conclusions:
“That said, it is insufficient, as a matter of law,
for the RPD to simply state that it considered the applicants' evidence to be
incredible. The RPD is obliged to give reasons in clear and unmistakable terms
for rejecting a claim on the ground of credibility. See: Armson v. Canada (Minister of Employment and Immigration) (1989), 9 Imm L.R. (2d) 150 (F.C.A.); Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236
(F.C.A.); Wilanowski v. Canada (Minister of Employment and Immigration)
(1993), 154 N.R. 205 (F.C.A.)” (Vila v Canada (Minister of
Citizenship and Immigration), 2005 FC 41 at para 5).
[45]
The
Court rejects the Respondent’s argument that the RPD did not assign any weight
to Ms. Israel’s evidence of similarly situated individuals because they were
not “similarly situated”. The RPD may have found Ms. Israel’s experience was
distinct from her neighbour and sister, it did not do so. The RPD clearly
indicated that it did not accept Ms. Israel’s evidence of similarly situated
individuals because it was not credible but offered no explanation for its
finding. A review of the hearing transcript also offers no indication as to why
the RPD concluded that Ms. Israel’s evidence was not credible.
[46]
The
Respondent contends that even if the RPD erred in failing to provide a clear
explanation for its credibility finding, the error should not overturn the
decision because “ those facts were not central to the Board’s decision”
(Respondent’s Further Memorandum, para 42). The Respondent asserts that in
coming to its decision on the existence of state protection, the RPD “primarily
relied on the context in which the assaults occurred and the personal
experience of [Ms. Israel] in reporting an assault, having it followed up on,
and the resulting fine” (Respondent’s Further Memorandum, para 42). The Court
disagrees. After closely reviewing the evidence presented and the transcript of
the hearing, it is clear that this is a case of domestic abuse and gender
related violence. The RPD refused to accept the basic tenet of Ms. Israel’s domestic violence claim and did not provide reasons for refusing to accept this
fact. Consequently, the RPD rejected the evidence adduced by Ms. Israel to substantiate her position that the state of Botswana had failed to protect her sister and
neighbour (both similarly situated individuals as per Ward). Given the
RPD’s error and the consequential failures in the treatment of the evidence
adduced by Ms. Israel, the Court finds that the decision cannot stand.
[47]
In
view of the RPD’s error, its conclusion that the Applicants are not persons in
need of protection because they have failed to rebut the presumption of state
protection does not “fall within the range of possible outcomes” (Dunsmuir,
cited above, at para 47).
JUDGMENT
THIS
COURT’S JUDGMENT is that this application is allowed and that
there is no question of general importance to certify.
"André F.J.
Scott"
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