Date:
20130508
Docket:
IMM-7403-12
Citation:
2013 FC 483
Ottawa, Ontario,
May 8, 2013
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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NGESEUAKO HENGUVA
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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
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision of the
Refugee Protection Division of the Immigration and Refugee Board [the Board]
dated July 4, 2012 wherein the Board determined that the applicant is not a
Convention refugee or person in need of protection.
FACTS
[2]
The
applicant is a 23 year-old citizen of Namibia. She alleges the following facts
in support of her claim:
- After
the applicant’s grandfather passed away in November 2010, her eldest uncle
became the new head of the family and he pressured her to marry her cousin. The
applicant refused. She believed this cousin to be 50 or perhaps even 70 years
old;
- This
cousin began to visit the applicant constantly and ask her to marry him. On one
visit, he asked if he could sleep with her. This made the applicant afraid,
particularly because her cousin would often touch her inappropriately;
- The
applicant went to the police in December 2010, but they told her they could not
do anything to help her because they could not interfere with the traditional
way;
- Because
the applicant’s family continued to pressure her to marry her cousin, she
decided to come to Canada; and
- The
applicant’s uncles have told the applicant’s mother that if the applicant does
not marry her cousin as soon as she returns to Namibia, both she and her mother
will lose the financial support of the family.
DECISION OF THE
BOARD
[3]
The
Board based its negative decision on the following findings:
- Parts
of the applicant’s testimony were not credible;
- The
applicant’s fear of being ostracized by her family and not being financially
supported by her uncle if she continued to refuse to marry her cousin was not
sufficiently serious to amount to persecution. The Board noted that as a
22-year-old adult it would be reasonable to assume that the applicant could
find a job and live independently in Namibia if necessary;
- The
applicant met both prongs of the test for an internal flight alternative [IFA],
as on a balance of probabilities i) it was unlikely that her uncle and cousin
would be able to locate her in Walvis Bay, which has a population of 42,015 and
ii) it was not objectively unreasonable for the Board to expect the claimant to
seek refuge in Walvis Bay; and
- Having
considered the country conditions in Namibia and all the circumstances of the
case, based on a balance of probabilities, adequate state protection would be
available to the applicant if she were to return to Namibia.
ISSUES
1. Did the Board make an
unreasonable finding regarding the lack of persecution faced by the applicant?
2. Did the Board misconstrue
the legal test for an IFA?
3. Did the Board make an
unreasonable determination regarding the availability of state protection?
STANDARD OF
REVIEW
[4]
The
findings of the Board regarding the lack of persecution faced by the applicant
and the availability of state protection are questions of mixed fact and
law and are reviewable on the reasonableness standard (Kemenczei v Canada
(Minister of Citizenship and Immigration), 2012 FC 1349 at paras 21-22). A
reasonable conclusion is one that “falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 at para 47).
[5]
The
issue of the legal test for the availability of an IFA is a question of law and
is reviewed on the correctness standard (Onyenwe v Canada (Minister of Citizenship and Immigration), 2011 FC 604 at para 9).
ARGUMENTS AND
ANALYSIS
1. Did the Board make an
unreasonable finding regarding the lack of persecution faced by the applicant?
[6]
The
applicant argues that the Board unreasonably found that the treatment faced by
the applicant did not amount to persecution. The Board failed to acknowledge
that the forced marriage feared by the applicant was itself the harm that
needed to be assessed, rather than the applicant’s fear that she would be
ostracized by her family. Moreover, the Board failed to take into
account the cultural environment, her traditional family and the impact upon
the applicant should she be ostracized from her family and community.
[7]
According
to the respondent, the evidence was not that the applicant would be forced into
an unwanted marriage. Rather, she said in her personal information form
narrative that she would be pressured by her family to marry her cousin and
ostracized if she refused to do so. Thus, it was reasonable for the Board to
find that the harm did not rise to the level of persecution.
[8]
The
Board’s analysis of whether the applicant’s fear could be considered
persecution consisted of only the following two paragraphs:
20
There
is general jurisprudence that to be considered persecution, the mistreatment
suffered or anticipated must be serious and in order to determine whether
particular mistreatment could qualify as “serious” it is necessary to examine
how a claimant maybe [sic] harmed and to what extent the subsistence,
employment, expression or exercise of that interest may be compromised. This
approach has been approved in the courts, which equates the notion of a serious
compromise of interest with a key denial of “a core human right”.
21
It
would appear from the claimant’s testimony that if she refuses to follow her
Uncle and marry her Cousin that she will “be ostracized and not supported by
the Uncle.” However, the claimant is twenty-two years old, an adult and it
would be reasonable to assume that she could if necessary find a job and live
independently in Namibia. The Board finds that this treatment is not serious
enough to amount to persecution. In addition, the Board finds that being
ostracized by her family, of which some are her agents of persecution, does not
amount to persecution.
[9]
In
my opinion, in
deciding whether the applicant’s fear could amount to persecution, the Board
failed to assess or even acknowledge that the applicant’s primary fear was that
she would be forced to marry her cousin. The ostracism the applicant alleged
was a side issue flowing from her main fear of a forced marriage. The applicant
stated in her personal information form narrative that her uncles told her she
“had” to marry her cousin and that she was “disobeying tradition” by refusing
to do so. She said she came to Canada because her family “kept pressuring” her
to marry her cousin.
[10]
I
disagree with the respondent that being “pressured” to marry her cousin is not
the same as being “forced” to do so. The Oxford English Dictionary
(online: www.oed.com) defines the verb “pressure” as “[t]o apply pressure to,
esp. to coerce or persuade by applying psychological or moral pressure”.
Considering the totality of the evidence and this definition of the verb
“pressure”, I am satisfied that the applicant was indeed being “forced” to marry
her cousin.
As
the Board did not address whether the direct harm of forced marriage amounted
to persecution, I agree with the applicant that the Board’s analysis on this
point was unreasonable.
2. Did the Board misconstrue
the legal test for an IFA?
[11]
As
for the Board’s IFA finding, the applicant maintains the Board incorrectly
articulated the test and erroneously incorporated the issue of state protection
into its IFA analysis.
[12]
The
respondent asserts that the Board clearly relied on and applied the appropriate
standard and test for an IFA and specific words and phrases should be read in
context in a way to ensure harmony and internal consistency.
[13]
At
paragraph 24 of its decision, the Board correctly articulated the first prong
of the test for an IFA (Rasaratnam v Canada (Minister of Employment and
Immigration), [1992] 1 FC 706 (FCA); Thirunavukkarasu v Canada (Minister
of Employment and Immigration), [1994] 1 FC 589 (FCA));:
24
The leading case on IFA directs the Board to use a two-pronged test when considering
an IFA. First, the Board must be satisfied that, on a balance of probabilities,
no serious possibility of persecution exists, or, in this case, that a claimant
would not be subjected personally, on a balance of probabilities, to a risk to
life or a risk of cruel and unusual treatment or punishment or a danger of
torture, in that part of the country where the IFA exists. […]
[14]
However,
in my view the Board misconstrued the test for an IFA. As the applicant
underlines, the Board considered that the applicant had not approached the
authorities in Walvis Bay for protection prior to leaving Namibia as part of its IFA analysis. In fact, the Board devoted five paragraphs of its IFA
analysis to this consideration, which the Board identified as “an important IFA
sub-issue”. After looking at this “sub-issue”, which the Board acknowledged
overlapped with its state protection analysis, the Board concluded that it
would not be objectively unreasonable for the Board to expect the applicant to
seek refuge in Walvis Bay.
[15]
It
is trite law that the issue of state protection is distinct from the issue of
an IFA. The Board’s intermingling of these two questions in its application of
the test for an IFA was incorrect.
[16]
I
also agree with the applicant that the Board erred by requiring that the
applicant show that her uncle and cousin “would be able” to find her in Walvis Bay as part of its analysis, as this held the applicant to a higher standard than
that of a “serious possibility of persecution”.
3. Did the Board make an
unreasonable determination regarding the availability of state protection?
[17]
Finally,
I am of the view that the Board also erred in its state protection analysis.
The Board’s conclusion that adequate state protection would be available to
applicant if she were to return to Namibia and seek it was based on
the following findings:
- The
applicant’s testimony regarding what happened to other victims of forced
marriages and domestic violence was vague and the applicant’s reasons for not
going to the police more than once were not compelling; and
- The
applicant did not utilize the avenues available to her to seek state protection
before asking for international protection, such as complaining about the poor
police service she received to the Police Commissioner of the Namibian Police,
pursuing the matter through the criminal or civil courts, seeking help from
government and non-government agencies, and moving to a women’s shelter.
[18]
As
submitted by the applicant, the Board’s state protection analysis failed to take
into account the adequacy of the state protection available to the applicant to
protect her from forced marriage. State protection need not be perfectly
effective (Hernandez v Canada (Citizenship and Immigration), 2007 FC
1211 at para 13, citing Burgos v Canada (Minister of Citizenship and
Immigration), 2006 FC 1537 at para 36). However, any efforts undertaken by
the government of Namibia to protect victims of forced marriage must actually
translate into adequate state protection at the operational level (EYMV v Canada (Minister of Citizenship and Immigration), 2011 FC 1364 at para 16). While
the Board canvassed remedies available to women facing domestic violence, the
Board failed to analyze whether the remedies available to victims of domestic
violence are available to victims of forced marriage.
[19]
Further,
contrary to Guideline 4: Women Refugee Claimants Fearing Gender-Related
Persecution, the Board found that the applicant would be able to access
service and protection from non-governmental organizations, such as women’s
shelters and women’s support groups. The fact that a claimant did or did not
seek protection from non-governmental groups is irrelevant to the analysis of
state protection. The jurisprudence of this Court is clear that the police force
is presumed to be the main institution mandated to protect citizens and that
other governmental or private institutions are presumed not to have the means
nor the mandate to assume that responsibility (Katinszki v Canada (Minister
of Citizenship and Immigration), 2012 FC 1326 at para 15).
[20]
Therefore,
in my opinion the Board’s state protection assessment was also unreasonable.
CONCLUSION
[21]
This
application for judicial review is granted, the decision is quashed and the
matter is referred back to be re-determined by a differently constituted panel.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. This
application for judicial review is granted;
2. The
decision is quashed and the file is sent back to a differently constituted
panel for re-determination; and
3. No
question is certified.
“Danièle
Tremblay-Lamer”
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