Date:
20130524
Docket:
IMM-5920-12
Citation:
2013 FC 542
Ottawa, Ontario,
May 24, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
|
|
NGARIPUE MUVANGUA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms
Ngaripue Muvangua, originally from Namibia, claimed refugee protection in Canada based on her fear of mistreatment by an abusive uncle to whom she had been promised
in marriage. A panel of the Immigration and Refugee Board dismissed Ms
Muvangua’s claim, concluding that she could live safely in Walvis Bay, Namibia because she could obtain state protection there.
[2]
Ms
Muvangua argues that the Board erred by failing to apply the correct test for state
protection. She asks me to overturn the Board’s decision and order another
panel to reconsider her application.
[3]
I
agree that the Board erred and will allow this application for judicial review
on that basis. Ms Muvangua raised a number of other issues arising from the
Board’s decision, but I need not deal with those.
II. The Board’s Decision
[4]
The
Board concluded that Ms Muvangua could avoid mistreatment by moving from Windhoek to Walvis Bay. In other words, she had a viable internal flight alternative (IFA)
in Walvis Bay. There, state authorities would be “reasonably forthcoming with
serious efforts” to protect her. Given that Ms Muvangua had failed to approach
authorities in Walvis Bay for protection, the Board found that she had failed
to rebut the presumption that the state of Namibia could protect her.
[5]
Further,
the Board concluded that it would be reasonable for Ms Muvangua to relocate to Walvis Bay. She is able-bodied, well-educated, and resourceful. After all, she managed to
make her way to Canada and find employment in Fort McMurray, Alberta.
[6]
Therefore,
the Board found that Ms Muvangua had not made out her refugee claim.
III. Did the Board err?
[7]
When
issues of state protection or IFA arise, the real question is whether the
claimant meets the definition of a refugee. A refugee is a person who has a
well-founded fear of persecution in his or her country of origin and who cannot
obtain protection there. If state protection is available, the claimant’s fear
of persecution is not well-founded. Similarly, if the person can move within
the country either to avoid persecution or to obtain state protection, his or
her fear is not well-founded. In refugee cases, the essential question to be
answered, after considering all of the evidence – including the evidence
relating to the state’s capacity to protect the claimant, whether in the
particular location he or she fled or elsewhere in the country – is whether the
claimant has shown that he or she likely faces a reasonable chance of
persecution in the country of origin. If so, the claimant meets the definition
of a refugee.
[8]
In
my view, the Board made two errors. First, it faulted Ms Muvangua for not
seeking state protection in Walvis Bay, even though she had never been there.
This was simply not a relevant factor to consider in deciding whether Ms Muvangua
faced a reasonable chance of persecution in Walvis Bay.
[9]
Second,
the Board found that state authorities would respond to Ms Muvangua’s
circumstances with “serious efforts” to protect her. Whether the authorities
might make serious efforts would not directly answer the fundamental question
of whether Ms Muvangua’s claim was well-founded. Rather, the Board had to
decide whether the evidence relating to the state resources actually available
to Ms Muvangua indicated that she would probably not encounter a reasonable
chance of persecution in Namibia.
[10]
In
light of these errors, the Board’s conclusion that Ms Muvangua had not made out
her refugee claim was unreasonable. I must, therefore, allow this application
for judicial review.
IV. Conclusion and
Disposition
[11]
The
Board erred in its treatment of the issues of IFA and state protection.
Accordingly, I must allow this application for judicial review and order a new
hearing before another panel. Neither party proposed a question of general
importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed and a new hearing before a different
panel is ordered.
2.
No
question of general importance is stated.
“James W. O’Reilly”
Email this Content