Docket: IMM-5964-14
Citation:
2015 FC 1087
Ottawa, Ontario, September 17, 2015
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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ALVISIA KAHUURE
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision by the Immigration and Refugee Board, Refugee Protection Division (the
Board) dated July 22, 2014 in which it was determined by the Board that the
applicant is not a Convention Refugee and is not a person in need of protection
(the Decision).
[2]
For the reasons which follow, the application is
dismissed.
I.
The Decision Under Review
[3]
The applicant arrived in Canada from her home
country of Namibia on October 6, 2011. She immediately made a refugee claim at
the airport in Toronto. The basis for her claim was that she had a “well-founded fear of persecution in the hands of former
common-law spouse” and she was in a particular social group of women
forced to stay in an abusive relationship. She also claimed she was in danger
of torture or to a risk to her life or to a risk of cruel and unusual treatment
or punishment due to her refusal to remain in an abusive relationship.
[4]
The Board reviewed the specifics of the
applicant’s fear as set out in her Personal Information Form (PIF). In
summary, the applicant and her former common-law spouse moved in together in
July 2004, had a baby in February 2005, and although he promised to marry her
he did not. Then in April 2010 she came home and found him in their bedroom
with another woman and after she confronted him he beat her up. She claims his
behaviour completely changed after that date and he would come home drunk, he
would say he owned her and he was abusive. But, her parents and his parents
wanted her to stay in the relationship.
[5]
In March 2011 the applicant said she was not
interested in the relationship. Her former common-law spouse threatened to
kill her and he beat her up. The applicant then moved to her parents’ home and
entered into a relationship with a female friend. One day her former
common-law spouse discovered them on the couch kissing whereupon she claims he
savagely beat her. She did not report it to the police because being a lesbian
is illegal in Namibia. Her family disowned her. She took refuge at her church
and her pastor suggested she leave Namibia. Her girlfriend then suggested she
come to Canada because there was no visa requirement and she did.
[6]
The Board hearing took place on two dates –
February 27, 2014 and July 22, 2014. Oral reasons were rendered on July 22,
2014 followed by written reasons on September 9, 2014.
[7]
The Board found the applicant was not credible
as she had lied about various aspects of her claim on three occasions. She
first lied to the immigration officer as shown in the Port of Entry notes, she
then lied in her PIF and she lied again at the first stage of the hearing
before the Board before it was adjourned.
[8]
The Board determined during questioning that
despite the Applicant’s confirmation that her son was born in Namibia his birth
certificate stated he was born in England. The hearing was adjourned to enable
the Minister to intervene. During the adjournment period the Minister
determined through biometric information that the applicant had arrived in
England in 2004 and stayed there for approximately six years. In 2005 she gave
birth to her son in England.
[9]
The Board found the applicant lied when she did
not disclose at any time, in writing or during the hearing, that she had lived
in the United Kingdom, specifically England, from May 2004 until sometime in
2010. She also lied about where her son was born and compounded the lie with
further denials when challenged with contrary evidence during the hearing.
[10]
The Board found as a result of the extent of
these lies that the applicant had no credibility. As a result, they doubted
her claim that she had been beaten by her former common-law spouse or forced
into a marriage with him or pressured into marrying him by her own family or
his family or him. In this respect, the Board quoted from the decision of
Justice Shore in Navaratnam v. Canada (Citizenship and Immigration),
2015 FC 274 at para. 1:
An applicant who trifles with the truth in
legal proceedings cannot expect to be successful; thus, a Court may discredit
even true statements, not knowing where the truth begins and ends, and a
climate of uncertainty then prevails.
The Board found that if the Minister had not
intervened, the applicant would have perpetuated the lie about her son and not
told the truth.
[11]
Notwithstanding the finding that the applicant
lacked credibility, the Board then considered whether the applicant qualified
for refugee protection pursuant to Sections 96 and 97(1) of the Immigration
and Refugee Protection Act, (the Act) S.C. 2001, c.27 which states:
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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.
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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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.
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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[12]
The Board reviewed the applicant’s claim that
state protection was not available to her in Namibia and summarized the various
documents they reviewed in that respect. The Board found that “the objective evidence reveals that problems exist in
Namibia, but Namibia is a functioning democratic state and there has been no
breakdown of the state or its judicial authority.”
[13]
The applicant had not approached the police and
did not avail herself of any of the various agencies established to provide
emergency support to victims of domestic abuse. The Board’s finding was that
the applicant did not demonstrate that she had made meaningful efforts to
utilize the available avenues of state protection and could not show that those
avenues would not be forthcoming.
[14]
The Board then explored whether there was an
Internal Flight Alternative available to the applicant if she returned to
Namibia. Walvis Bay was suggested by the Board but the applicant testified
that her former common-law spouse would find her there and stated that he had
influence with the police. While the Board did not find that to be credible
they also pointed out that as there was state protection available she could access
help in Walvis Bay if that was true.
[15]
The Board summarized its findings as follows in
the conclusion:
[41] I found you not credible with respect
to an IFA, and I find you not credible with respect to the availability of
state protection. You are not credible with respect to fearing for your safety
because you did not ask for refugee protection when you were in the United
Kingdom, and most importantly, you are not credible when you lied to me about
not being in England at all, and that only came to light as I said because of
the Minister’s intervention.
II.
ISSUES
[16]
The applicant submits there are two issues:
1.
Did the Board err in its finding that the
applicant’s claim lacked credibility?
2.
Did the Board err in its finding that there is
an availability of State Protection for the applicant in Namibia?
[17]
I will also consider a third issue which is
whether the Board erred in finding there was an Internal Flight Alternative.
III.
Standard of Review
[18]
It is not in dispute between counsel that the
applicable standard of review is reasonableness when dealing with the decision
of the Board with respect to credibility, the findings on state protection and
that there is an available Internal Flight Alternative.
[19]
The Board is dealing with its home statute and
has a significant degree of expertise in that respect. Therefore, I will
proceed on the basis that reasonableness is the standard of my review.
IV.
Analysis
A.
Credibility Finding
[20]
It is has been held that significant omissions
in a claimant’s PIF affect that person’s credibility: Tekin v Canada
(Minister of Citizenship and Immigration), 2003 FCT 357 at para 12.
[21]
The applicant acknowledges that jurisprudence of
this Court recognizes the Board is a specialized tribunal and is in the best
position to gauge the credibility of the applicant. Nonetheless, I am urged to
find the explanation offered by the Applicant, that she was afraid, should have
been taken into account by the Board but that it was not considered and
therefore the finding cannot stand.
[22]
The Board did not ignore this explanation it
simply did not accept it as valid as can be seen from the following statement
in the Decision:
[18] Your only explanation for not being
forthcoming about being in the UK was you were afraid of your ex – common law
partner, and that frankly is not a reasonable explanation for not being
truthful. I want to remind you that when you signed your Port of Entry notes,
you affirmed that everything was complete, true, and correct. You did the same
thing when you signed your PIF, and you certainly affirmed that at the first
session of the hearing, when I swore you in.
[23]
The Board was in the best position to assess the
applicant’s credibility and to make the finding that the applicant’s
explanation was not believable given the preponderance of evidence before the Board.
[24]
The Board was aware of, considered and applied
the reasoning from Navaratnam (see above) to find that nothing the
applicant said could be relied upon after she “willingly
lied” to the Board.
[25]
I am satisfied that the credibility findings of
the Board were properly made and should not be set aside.
B.
State Protection
[26]
Although the applicant lied throughout the
immigration process from the date of her arrival until the date of her hearing
the Board still considered her claim that she was a Convention Refugee although
it correctly noted her claim could have been dismissed for lying in her
documents.
[27]
The Board considered the applicant’s claim that
Namibia could not provide state protection and that she feared for her life
because her former common-law partner was actively looking to harm or kill her
if she returned. Other than this baldly-asserted claim by the applicant there
was no evidence before the Board substantiating the applicant’s story.
[28]
The Board noted the applicant never approached
the police with respect to her allegations of abuse. This cast further doubt
on her claim.
[29]
The applicant has been found to be not
credible. That finding taints her evidence and rightly causes the Board to be
sceptical of her claims. She needs more than bald assertions and her existing
paperwork. In Hamid v. Canada (MEI) (1995), F.C.J. No. 1293 at para 21
after concluding the refugee applicant had fabricated his story and was not
credible, Justice Nadon said:
21. . . Put another way, where the Board is
of the view, like here, that the applicant is not credible, it will not be
sufficient for the applicant to file a document and affirm that it is genuine
and that the information contained therein is true. Some form of corroboration
or independent proof will be required to “offset” the Board’s negative
conclusion on credibility.
This passage was cited with approval by
Hughes, J. in Giron v. Canada (Citizenship and Immigration), 2008 FC
1377 at para. 11.
[30]
There is no corroboration of the fear of harm
which her former common-law spouse might cause her.
[31]
In addition, counsel for the applicant urged me
to find the Board ignored the sexual orientation of the applicant and that in
Namibia this would have resulted in her persecution. However, before the Board
the applicant stated when questioned that she was only afraid of her former
common-law partner and she was not afraid of living her life as a
lesbian in Namibia. There was therefore no reason for the Board to consider
the applicant’s sexual orientation with respect to its analysis of State
Protection.
[32]
The Board reviewed various documents from
reputable third parties dealing with the government of Namibia and the rule of
law. The conclusion drawn by the Board based on that evidence was that
although problems exist in Namibia and there is police corruption “it is a functioning democratic state and there has been no
breakdown of the state or its judicial authority.”
[33]
The examination of a claim under subsection
97(1) of the Act requires an inquiry that is particular to the applicant and
proceeds on the basis of the evidence adduced by them “in
the context of a present or prospective risk” to the Applicant. (Sanchez
v. Canada (Minister of Citizenship and Immigration), 2007 FCA 99 at para.
15) (Emphasis in the original).
[34]
The Board found the applicant was unable either
to displace the presumption of state protection or show any specific harm would
occur to her. I am satisfied the Board carefully analysed the documentary and
other evidence and made a sound decision in this case with respect to the
availability of state protection and the lack of a specific prospective harm to
the applicant.
C.
Internal Flight Alternative
[35]
The Board also found there was a reasonable
Internal Flight Alternative available to the applicant by her returning to Walvis
Bay. This was disputed by the applicant, who had no specific examples but
rather a generalized fear that somehow her former common-law spouse would want
to find her, and could find her, and that he “has
influence with the police”.
[36]
The Board noted Walvis Bay has a large
international community and is a thriving tourist resort. They determined that
if the applicant did not tell her former common-law spouse she was there he
would not know she was, but even if he did learn of her presence and he wanted
to harm her there was state protection available. The Board also considered
information with respect to various organizations in Namibia which provide
services to victims of domestic violence and sexual abuse. It found the
applicant could avail herself of their services if necessary.
[37]
In their analysis of an available internal
flight alternative the Board considered the evidence before it and the
applicant’s submissions, but the Applicant’s lack of credibility coupled with
only a generalized “fear” of personal harm could
not persuade the Board that Walvis Bay was not an available Internal Flight
Alternative. This finding by the Board was fully supported by the evidence
before it.
V.
Finding
[38]
The Board conducted a thorough review of the
claims of the applicant and provided detailed reasons for rejecting them
primarily based upon the lack of credibility of the Applicant but supplemented
with an analysis of various documents attesting to the country conditions in
Namibia.
[39]
The applicant could point to no reviewable error
by the Board. Any one of the three distinct findings made by the Board was
determinative of the issue before it. All three were properly considered and
each was reasonably resolved against the applicant.
[40]
The reasons provided by the Board were transparent,
understandable and justified. I see no basis upon which I should intervene.
The Decision falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law. The Decision is well supported by
the evidence and is entirely reasonable.
[41]
The application for judicial review is therefore
dismissed.
[42]
Neither counsel suggested there was a question
to be certified nor would there seem to be any issue of general importance in
this case.
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