Date: 20120214
Docket: IMM-5382-11
Citation: 2012
FC 210
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa,
Ontario, February 14, 2012
PRESENT: The Honourable
Mr. Justice de Montigny
BETWEEN:
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Botoka RAMOKATE
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application under section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA), for judicial review of a
decision dated July 15, 2011, by the Refugee Protection Division of the
Immigration and Refugee Board (the panel), which determined that the applicant
is neither a Convention refugee nor a person in need of protection under
sections 96 and 97 of the Act.
[2]
For
the following reasons, I find that the panel’s decision is reasonable and that
the application for judicial review must therefore be dismissed.
I. Facts
[3]
The
applicant, Botoka Ramotake, is a citizen of Botswana. She states that she
began going out with one Thomas Dubani in July 2006. When he lost his job
in June 2008, he became jealous and threatened to kill her. The applicant filed
a complaint with the Botswanan authorities, who intervened quickly, ordering
Mr. Dubani to stop threatening the applicant. As a result of this police
intervention, Mr. Dubani discontinued his threats.
[4]
In
March 2009, the applicant permanently ended her relationship with Mr. Dubani.
He allegedly then repeated his death threats. The applicant promptly filed
another complaint against Mr. Dubani with the authorities, who immediately
arrested him.
[5]
Fearing
that he would be released and carry out his threats, the applicant left her
child with her sister and decided to flee her country to take refuge in Canada.
Shortly after she arrived here, the applicant found out from her sister that Mr. Dubani
had been released and had threatened her.
II. Impugned decision
[6]
The
panel noted that the applicant had not presented clear and convincing evidence
that the Botswanan authorities could not protect her on her return. On the
contrary, they demonstrated that they wanted and were able to protect her
against Mr. Dubani because they intervened each time the applicant filed a
complaint.
[7]
On
the other hand, the panel found that in recent years the Botswanan government
has established a number of statutes, institutions and measures to protect
female victims of domestic violence. The panel considered all the documentary
evidence and acknowledged that the situation was not perfect, in light of, notably,
the lack of financial resources, limited access to legal aid and lack of
information about the available recourses. However, the panel concluded that
this documentary evidence had to be assessed based on the applicant’s specific
situation.
III. Issue
[8]
The
only issue in this case is whether the panel erred by finding that state protection
in Botswana was adequate.
IV. Analysis
[9]
State
protection is a question of mixed fact and law that falls within the panel’s
expertise. As such, it is subject to a reasonableness standard (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Hinzman v. Minister of
Citizenship and Immigration, 2007 FCA 171 at paragraph 38, 282 DLR (4th)
413).
[10]
The
jurisprudence clearly establishes that a state is presumed to be capable of
protecting its citizens unless there is such a breakdown of its institutions that
they are no longer able to ensure order and safety. Next, the protection
provided by the state must be adequate but does not need to be perfect. Last,
the onus is on the claimant to show on a balance of probabilities that the
state is incapable of protecting the claimant (see Canada (Attorney General)
v. Ward, [1993] 2 S.C.R. 689 at page 725; Carrillo v. Canada (Minister of
Citizenship and Immigration), 2008 FCA 94 at paragraph 30, [2008] 4 FCR
636; Canada (Minister of Employment and Immigration) v Villafranca,
[1992] FCJ No 1189 at paragraph 7, 99 DLR (4th) 334; Sanchez v Minister of
Citizenship and Immigration, 2008 FC 134 at paragraphs 10‑12, 165 ACWS
(3d) 336; De Lourdes Gonzalez Duran v Minister of Citizenship and
Immigration, 2011 FC 855 at paragraphs 13 and 15).
[11]
The
tribunal gave a number of reasons for finding that the Botswanan state was
capable of protecting its citizens who are facing domestic violence. First, in
2008, the government enacted the Domestic Violence Act, which enables
victims of domestic violence to obtain immediate protection against their
abuser. Second, police officers now take a course on human rights as part of
their training at police college. It also appears that the police are
determined to arrest and lay charges of uttering death threats against any man
who threatens his spouse’s life, and the authorities enforce the laws against
rape. Last, the evidence establishes that the police have a good relationship
with the employees of a battered women’s shelter.
[12]
It
is true that the documentary evidence refers to certain weaknesses in the
protection provided to female victims of domestic violence, as the panel acknowledged.
The general situation that prevails in the country must, however, be assessed
in light of the applicant’s personal experience. She is no doubt correct in
submitting that the panel was required to assess the applicant’s fear of
persecution and the protection she could receive from the authorities in her
country prospectively. That being said, she had to explain why the past would
not be an indication of the future. In other words, she had to convince the
panel that her situation had changed to such an extent that in the future she
could no longer have access to the protection the police had provided to her in
the past. I concur with my colleague, Mr. Justice Russell Zinn, when
he wrote in Sandoval v Minister of Citizenship and Immigration, 2008 FC
868 at paragraph 16, 168 ACWS (3d) 1050:
The Federal Court of Appeal in Carrillo held that one
seeking to rebut the presumption of the adequacy of state protection must
adduce “relevant, reliable and convincing evidence” which, on the balance of
probabilities, satisfies the trier of fact that the state protection is
inadequate. Where, as in this case, protection was sought and provided, an
applicant will have a challenge to show that it was an aberration unless there
has been some material change in personal or state circumstances. Here
there was no such evidence.
[13]
The
situation is the same in this case. The applicant did not explain why the
protection she was entitled to in the past would not be provided if she were to
return to her country. At most, her counsel submitted that her persecutor could
be even more determined as a result of his arrest and incarceration. However,
this is pure speculation. It is just as plausible that, since the authorities
successfully protected her in the past, they could do the same if she requested
their services. In fact, it may well be that the applicant’s departure impeded
the police investigation and caused them to release Mr. Dubani for lack of
evidence, as the panel noted.
[14]
Taking
into consideration all these circumstances, the applicant did not discharge her
burden of establishing on a balance of probabilities that she will not have
access to state protection on her return to Botswana. For this reason, the
application for judicial review must be dismissed. No question will be
certified.
JUDGMENT
THE COURT
RULES that the application for judicial review is dismissed. No
question is certified.
“Yves
de Montigny”
Certified
true translation
Mary
Jo Egan, LLB
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