Docket:
IMM-10060-12
Citation: 2013 FC 1052
Ottawa, Ontario, October
18, 2013
PRESENT: The Honourable Madam Justice Strickland
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BETWEEN:
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KAVIJENENE KAMBURONA
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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]
The Applicant seeks judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (Board), dated September 7, 2012, in which it concluded that she was not
a Convention refugee nor a person in need of protection under sections 96 or 97,
respectively, of the Immigration and Refugee Protection Act, SC 2001, c
27 (IRPA). This application is brought pursuant to section 72 of the IRPA.
Background
[2]
The Applicant is a citizen of Namibia. She claims that her father, without her consent, arranged her marriage to Mr. Kamarukua
Weya. Mr. Weya lives in her community, is a Namibian police officer, and is
seen to be well off.
[3]
On September 10, 2010, the Applicant’s father
sent her to Mr. Weya’s house on an errand. Mr. Weya sexually assaulted her,
beat her and held her against her will for three weeks until she escaped.
[4]
When the Applicant’s father protested, Mr. Weya demanded
the return of money given to the Applicant’s father. Her father then attempted
to find and return the Applicant to Mr. Weya. She fled to Canada on October 19, 2010 and claims that she is afraid to return to Namibia as she fears Mr. Weya who has the ability to use police resources to find her and
because of corruption within the Namibian police force.
[5]
On September 7, 2012, the Board denied the
Applicant’s claim for refugee protection (Decision). This is the judicial
review of that Decision.
Decision Under
Review
[6]
The Board found that the Applicant was not a
Convention refugee, nor was she a person in need of protection.
[7]
The determinative issue was the availability of
an Internal Flight Alternative (IFA). The Board found that the Applicant had
an IFA in Walvis Bay.
[8]
The Board found that the Applicant did not rebut
the presumption of state protection in Walvis Bay with clear and convincing
evidence. It stated that the reasons for this were that the Applicant had
never approached Namibian police or a women’s shelter in Walvis Bay for
protection. Further, that the documentary evidence indicated that Namibia now has sophisticated state protection mechanisms available for women fearing
domestic abuse, both in legislation and in practice. The Board then quoted
extensively from that evidence. It found that while the documents provided by
the Applicant further illustrated the extent of domestic violence and forced
marriage issues in Namibia, they did not alter the overall state protection
picture. The Board found that among the protection mechanisms available, Namibia has shelters with trained police officers. One of the shelters is located in Walvis Bay which houses a “Women and Child Protection Unit” of the Namibian police. The
Board stated that the Applicant had never requested protection at a police
station or at a shelter in Walvis Bay.
[9]
The Board stated that in its view:
[…] it would be too
problematic for the surrogate notion of refugee protection if putative IFA
state protection presumptions were found rebutted in the face of recent
documentary state protection evidence this positive, in circumstances where a
claimant has not yet taken full advantage of the prospective protection
mechanisms available to her as in this case, and where the last chance the
state was given to protect the claimant occurred outside the putative IFA.
[10]
The Board found that the IFA state protection
issue was whether Namibian authorities in Walvis Bay could be reasonably
expected to provide the Applicant with serious efforts at protection if she
were to return to Namibia, and whether they could provide her with de facto
effective or de facto guaranteed protection from her husband. The Board found
that one cannot rebut the presumption of state protection simply by asserting a
subjective reluctance to engage it. It noted that the Applicant is an
able-bodied adult female and that it was objectively reasonable to assume that
she could seek protection from authorities in Walvis Bay.
[11]
The Board considered that the Applicant came
from a traditional situation and marriage. However, the documentary evidence
indicated that Namibian law and state do not approve of forced marriages
regardless of the tradition. Therefore, her traditional marriage itself was
insufficient to establish a prospective lack of state protection in Walvis Bay.
[12]
The Board also considered the failure of the Windhoek police to provide the Applicant with protection in response to her father’s one
complaint in the past. However, the Board noted that this failure occurred
some time ago and a local failure to provide protection does not amount to a
lack of putative IFA state protection unless it is part of a broader, current
and applicable state pattern, which the Board found was not established. Nor
would the Applicant’s circumstances constitute “undue hardship” within the
meaning of IFA law.
[13]
Given that the Applicant did not rebut the
presumption of state protection in Walvis Bay, the Applicant was found not to
face a risk to life, a probable danger of torture, or a probable risk of cruel
or unusual treatment or punishment in Walvis Bay.
Issues
[14]
The Applicant submits that the issues in this
application are as follows:
1. Whether
the Board misapprehended the facts and/or failed to take relevant evidence into
consideration;
2. Whether
the Board proceeded on improper principles and based its decision on erroneous
findings of fact made in a perverse or capricious manner without regard for the
material before it;
3. Whether
the Decision is unreasonable, including the finding that the Applicant has a
viable IFA in Namibia.
[15]
In my view, the issue to be decided in this
application is whether the Board erred in finding that Walvis Bay was a viable
IFA. However, a preliminary issue not directly raised by the parties in their
submissions but which the Court requested that they address at the hearing is
whether the Board applied the correct legal test for an IFA.
Standard of
Review
[16]
An exhaustive analysis is not required in every
case to determine the proper standard of review. Courts must first ascertain
whether the jurisprudence has already determined in a satisfactory manner the
degree of deference to be accorded to a decision-maker with regard to a
particular category of question (Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 53 [Khosa];
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]
at paras 57 and 62).
[17]
Setting out the basic test for determining IFA
is a question of law for which the Board is not entitled to deference (Estrada
Lugo v Canada (Minister of Citizenship and Immigration), 2010 FC 170 at
para 31 [Estrada Lugo]). Whether the Board identified the correct test
is to be determined on the correctness standard (Golesorkhi v Canada (Minister of Citizenship and Immigration), 2008 FC 511 at para 8).
[18]
The standard of review applicable to factual
issues relating to an IFA is reasonableness (Diaz v Canada (Minister of Citizenship and Immigration), [2008] FCJ No 1543 (QL) (TD) at para 24; Mendoza Velez v Canada (Minister of Citizenship and Immigration), 2013 FC
132 at para 24; Estrada Lugo, above, at
para 31). Thus, the issue of whether the Applicant rebutted state protection
in Walvis Bay and the Board’s application of the IFA test is reviewable on a
standard of reasonableness.
IFA Legal Test
[19]
As the issue of the identification and application
of the correct legal test is dispositive, I will address it at the outset.
[20]
In its written submissions, the Applicant did
not directly raise the question of the correct IFA test, but pointed to the
UNHCR Guidelines on International Protection, “Internal Flight or Relocation
Alternative”, which includes the statement that international law does not
require threatened individuals to exhaust all options within their own country
before seeking asylum. For its part, the Respondent asserted only that the
test is well settled, citing Immigration Law and Practice, Vol 1,
loose-leaf, 2nd ed (Markham, Ont: LexisNexis, 2005) (updated June
2012) and Rasaratnam v Canada (Minister of Employment and Immigration),
[1991] FCJ No 1256 at para 10 (CA), in support of that statement.
[21]
At the hearing before me the Applicant referred
to Tjipuravandu v Canada (Minister of Citizenship and Immigration), 2013
FC 927 [Tjipuravandu] which set out the IFA test, and in which Justice Annis also noted that it was possible that the Board had misstated
the test for an IFA. Justice Annis stated that there is no requirement that an
applicant have already sought state protection in the designated IFA. Rather,
that the IFA is determined by the Board and, thereafter, it is incumbent upon
the applicant to establish, on the balance of probabilities, that there is a
serious possibility that he or she will be persecuted in the location proposed
as an IFA (Alvapillai v Canada (Minister of Citizenship and Immigration),
[1998] FCJ No 1160 (QL)). However, based on the remainder of the Board’s
reasons in that case, Justice Annis was satisfied that the Board had not
misdirected itself on the issue.
[22]
The Applicant points out that in the present
case, in the course of its reasons, the Board made three statements suggesting
that the Applicant should have sought protection in Walvis Bay before making a
refugee claim. Thus, the Board misunderstood and misdirected itself in the
application of the IFA test which, unlike Tjipuravandu, above, affected
the outcome of its Decision.
[23]
The Respondent submits that in order for this
Court to interfere with the Board’s Decision it must find that, from start to
finish, the Decision is flawed by the Board’s misinterpretation of the IFA test.
Taking the Decision as a whole, however, it is apparent that the Board directed
itself to the documentary evidence and made its Decision on the basis of that
evidence. This is a situation like Tjipuravandu, above, and, therefore,
the Decision may stand despite an apparent error as to the IFA legal test.
[24]
In my view, the Respondent’s position cannot
succeed.
[25]
It is correct that the following two-part
disjunctive test for determining whether there is not an IFA is well-settled
and continues to be applied:
(1) The Board must be satisfied, on a balance of
probabilities, that there is no serious possibility of the claimant being
persecuted in the proposed IFA; or,
(2) Conditions in the proposed IFA must be such that it would
not be unreasonable, upon consideration of all the circumstances, including
consideration of a claimant’s personal circumstances, for the claimant to seek
refuge there.
(Thirunavukkarasu
v Canada (Minister of Employment and Immigration), [1993] FCJ No 1172 (QL)
(CA); Rasaratnam v Canada (Minister of Employment and Immigration), [1991]
FCJ No 1256 (QL) (CA); Tjipuravandu, above, at para 14; Huerta
Morales v Canada (Minister of Citizenship and Immigration), 2009 FC 216 at paras
5 and 6).
[26]
Although the Board found the determinative issue
to be whether a viable IFA existed for the Applicant, nowhere in its Decision
does it specifically state the legal test to be met in that regard.
[27]
At paragraph 9 of the Decision, the Board found that
the Applicant had not rebutted the presumption of state protection in Walvis Bay. The first reason it provided for this determination was that:
[10] The claimant
has never approached Namibian police or a woman’s shelter in Walvis Bay for
protection.
[Emphasis added]
[28]
The Board then conducted a survey of and made
findings concerning the documentary evidence on country conditions, at the
conclusion of which it stated:
[14] Among the
protection mechanisms available, it is important to note for this case that Namibia does have shelters with trained police officers. Furthermore, one of these shelters
is located in Walvis Bay and, indeed, it does house a unit of the Namibian
police. Again, to date, the claimant has never requested protection at a
police station in Walvis Bay or at a shelter in Walvis Bay.
[15] In my view,
it would be too problematic for the surrogate notion of refugee protection if
putative IFA state protection presumptions were found rebutted in the face of
recent documentary state protection evidence this positive, in circumstances
where a claimant has not yet taken full advantage of the prospective protection
mechanisms available to her as in this case, and where the last chance the
state was given to protect the claimant occurred outside the putative IFA.
[Emphasis added]
[29]
In my view, it is clear that the Board both
misstated and misapplied the test for IFA. As noted above, there is no
requirement that the Applicant have already sought protection in the designated
IFA. The IFA is determined by the Board and, thereafter, it is incumbent upon
the Applicant to establish, on a balance of probabilities, that there is a
serious possibility that she will be persecuted in the location proposed as an
IFA.
[30]
In that regard, Justice O’ Keefe’s comments in Estrada
Lugo, above, are directly on point in the present case:
[35] The test
for the existence of an IFA set out in Thirunavukkarasu above, is a two
pronged test, but it is a test in which the refugee claimant need only defeat
one of the prongs. Both prongs can be successfully defeated without a refugee
having lived in or even traveled to the proposed IFA. A refugee claimant may
defeat prong one by establishing that there is a serious possibility of being
persecuted or subjected, on a balance of probabilities, to persecution or to a
danger of torture or to a risk to life or of cruel and unusual treatment or
punishment in the proposed IFA. Alternatively, a claimant can defeat prong two
by establishing that conditions in the IFA are such that it would be
unreasonable in all the circumstances for the claimant to seek refuge there.
[36] The Board
must not only state the correct test but it must also apply the correct test.
Adding an additional requirement in the application of the test will cause the
Board to run afoul of the reasonableness standard. Adding the requirement that
the applicants must have tried living in another, safer region of the country
demonstrates a misunderstanding of the legal test for an IFA. As noted above,
this was an error.
[37] The
respondent submitted that it would not be proper to send the matter back for
redetermination as the Board also applied the proper two prong test for an IFA
and the new decision would necessarily be the same. I do not agree.
[38] When the
Board’s decision is reviewed, it becomes obvious that the Board considered the
failure to try to live in the IFA a very important factor in denying the
applicants’ claim for refugee protection. I cannot determine whether the
Board’s decision would have been the same had the Board applied only the proper
factors for assessing an IFA. This is a decision to be made by the Board not by
the Court.
[31]
This same view was expressed by Justice Snider
in Ramirez Martinez v Canada (Minister of Citizenship and Immigration),
2010 FC 600:
[6] The
following statements in the decision reflect a misapplication of the IFA test:
I am of the view that
the claimants had an obligation to at least try to find a safe haven in
their own country before abandoning it altogether and unless it were patently
unreasonable for them to do so, their failure to try will be fatal to their
claims.
I find that the
claimants clearly had an obligation to relocate, in this case to Mexico City, and if in the chance they were to have problems with Mr. Ybarra or anyone
else, to approach the state before seeking Canada’s protection.
I find that the
claimants had the onus to move to an IFA, in this case specifically in Mexico City, before leaving the country. The claimants have
not discharged their responsibility of showing that the risk of harm they fear
would be faced in every part of Mexico pursuant to section 97(1)(b) of the
IRPA. [Emphasis added.]
[7] According
to Thirunavukkarasu, under the first part of the IFA test, the
Applicants need to show, on a balance of probabilities, that there is a serious
possibility of persecution throughout the country, including the alleged IFA
(above, at para. 5). This burden is only triggered when the Board has warned
the claimant that an IFA is going to be raised. As such, the Court of Appeal in
Thirunavukkarasu recognized that, “in some cases the claimant may not
have any personal knowledge of other areas of the country” (above, at para. 9).
This means that the potential IFA might not have crossed the Applicants’ mind
until it was raised. Thus, the test is for the Applicants to show that, even in
the proposed IFA of Mexico City, they will likely face persecution. The
test is not, as the Board stated, for the Applicants to have attempted, or
tried living in Mexico City, and show that they did face persecution. It
is incorrect to say that there is an onus on the Applicants to move to Mexico City, prove that it is dangerous to live there, and – only thereafter – seek
surrogate protection in Canada. Such a requirement is not contained in any of
the jurisprudence dealing with IFA.
[8] The Board’s
approach to the test was rejected by Justice Rothstein in Alvapillai v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 108, 45 Imm. L.R.
(2d) 150, at paragraph 3, where he stated:
The viability of an
IFA is to be objectively determined and it is not open to an applicant, simply
for his own reasons, to reject the possibility of resettlement in his own
country, if he can do so without fear of persecution; see Thirunavukkarasu v.
Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.) at
597-599. However, the way in which the panel has characterized the IFA test
here is not correct. The panel seems to be saying that it is up to an
individual, before he seeks the surrogate protection of Canada, to test the viability of an IFA in his own country. The logical conclusion of this
proposition is that an applicant is obliged to test the IFA and suffer
persecution before making a refugee claim in Canada. This cannot be correct.
There is no onus on an applicant to personally test the viability of an IFA
before seeking surrogate protection in Canada. [Emphasis added.]
[Emphasis in original
decision of Justice Snider]
[32]
The Respondent submits that the wording of
paragraphs 14 and 15 of the Decision indicates only that the Board was trying
to suggest that there may be cases, unlike this one, where a claimant had
sought protection in an IFA location before seeking refugee protection. I
cannot agree.
[33]
In my view, reading the Decision as a whole (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708 at para 14), the Board misunderstood and misapplied
the IFA test and, like Estrada Lugo, above, considered the Applicant’s
failure to try to live in Walvis Bay to be a significant factor in denying her
claim for refugee protection. It is, therefore, distinguished from Tjipuravandu,
above. Because the standard of correctness permits no deference to the
decision-maker for errors of law, the matter must be returned to the Board. And,
in any event, the application of the IFA test by the Board was unreasonable for
the reasons set out above.
[34]
Given my conclusion that the Board erred in
stating and applying the legal test for an IFA, this analysis need not proceed
further. However, I would also note that the law is clear that the Board has
an obligation to assess IFA through the personal circumstances of the claimant (Vega
v Canada (Minister of Citizenship and Immigration), 2013 FC 487 at para
20). However, in this case the Board failed to directly assess whether the Applicant
could reasonably obtain state protection when the agent of persecution, Mr.
Weya, is also a Namibian police officer. The Decision was also unreasonable in
that basis.
[35]
The application for judicial review must be
allowed and the matter is referred to a different panel of the Board for
redetermination.
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