Date:
20120928
Docket: IMM-9736-11
Citation: 2012 FC 1147
Ottawa, Ontario, September 28, 2012
PRESENT: The Honourable Mr. Justice
Zinn
BETWEEN:
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DESERE
KATJIUANJO
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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 is a citizen of Namibia who claims protection from her first cousin, Richard. Her family wants her to marry him but
she says that he was aggressive towards her, and harassed, beat, and raped
her.
[2]
The Refugee Protection Division of the Immigration and Refugee Board
dismissed her claim on two independent bases: credibility and the adequacy of
state protection.
[3]
In my view, some of the specific findings of the Board that led it to
determine that the applicant was not credible are unreasonable; however, its
state protection analysis was reasonable and on that basis this application
must be dismissed.
[4]
The Board found that, “though not perfect,” Namibia is both “willing and able to protect women.” By going to the same local police
station only twice, failing to report her treatment to other or higher
authorities and failing to avail herself of several state-run programs for
assaulted women, the applicant “did not fully take the initiative to
secure available protection in Namibia” during her ten years of alleged abuse.
[5]
The applicant says that she had a subjective fear of the police and,
citing the Supreme Court in Ward v Canada (Minister of Employment &
Immigration), [1993] 2 S.C.R. 689, submits that it would defeat the purpose
of international protection to require her to risk her life to demonstrate the
lack of state protection.
[6]
The respondent submits, citing Flores Carrillo v
Canada (Minister of Citizenship and Immigration), 2008 FCA 94 [Flores Carrillo],
that the applicant was required to do more than show that she went to
some members of the local police force and that those efforts were
unsuccessful. The following passages from Flores Carrillo are, in my
view, applicable to the applicant’s situation:
[33] The Board found that the respondent had failed to make
determined efforts to seek protection. She reported to police only once during
more than four years of alleged abuse: appeal book, at page 45.
[34] In addition, the Board concluded based on the evidence
before it that the respondent did not make additional effort to seek protection
from the authorities when the local police officers allegedly did not provide
the protection she was seeking. She could have sought redress through National
or State Human Rights Commissions, the Secretariat of Public Administration,
the Program Against Impunity, the General Comptroller’s Assistance Directorate
and the complaints procedure at the office of the Federal Attorney General:
appeal book, at page 49.
[35] Finally, the Board noted the respondent’s omission to
make a complaint about the involvement of the abuser’s brother, who allegedly
is a federal judicial police officer, when the evidence indicates that
substantial, meaningful and often successful efforts have been made at the
federal level to combat crime and corruption: appeal book, at pages 46 and 49.
[36] Considering the principles relating to the burden of
proof, the standard of proof and the quality of the evidence needed to meet
that standard defined as a balance of probabilities against the factual
context, I cannot say that it is an error or unreasonable for the Board to have
concluded that the respondent has failed to establish that the state protection
is inadequate.
[7]
The applicant agrees that the Board did a credible job analyzing the
laws in Namibia aimed at the protection of women, but submits that it failed to
do the same with respect to its analysis of the adequacy or effectiveness of
those laws. I disagree.
[8]
The record before the Court shows that the Board examined a number of
country condition documents and while they show that state protection is not
perfect, that is not the test. In my view, the following passages from two of
these reports serve as illustrations supporting the Board’s finding on the
adequacy of state protection:
The law defines rape in broad terms
and allows for the prosecution of spousal rape. Numerous cases of rape were
prosecuted during the year, and the government generally enforced rape
penalties, which provide for sentences of between five and 45 years’
imprisonment. According to police statistics for 2009, 11,882 cases of
gender-based violence were reported, 1,036 of which involved rape.
Source: 2010 US DOS Report on Namibia
(published April 8, 2011)
The upswing in [reported] rape cases
could also be attributed to the increasing number of police stations
established since Namibia’s independence in 1990, when 75 stations existed.
This number had increased to 106 stations by 2005, including 26 sub-stations
and 15 Woman and Child Protection Units, and meant it was easier for people to
report crimes. About 60 percent of the country’s two million people reside in
rural areas.
Most rapes (68 percent) were reported
and the arrest rate was 70 percent, and served as an illustration that most
rapists were known to their victims, the report said, which also said 13
percent of the rapists were males under the age of 18.
If those arrested for rape, 40 percent
resulted in criminal trial, while one third of reported rape cases were
withdrawn by the complainant. One of the reasons cited for withdrawal of
charges was that complainants resorted to compensation under customary law,
although this action could be pursued in tandem with criminal charges.
The conviction rate of rapists is 16
percent, the report said, which “could be improved but Namibia is doing a much better job than other countries. South Africa only has a 7 percent
conviction rate, Germany 21 percent,” Hubbard said.
Source: UN Integrated Regional
Information Networks Report (June 4, 2007)
[9]
The record supports the Board’s finding that the steps the applicant
took in Namibia did little or nothing to rebut the presumption that she was
able to avail herself of government programs and initiatives aimed at protecting
women, and that they were able to protect her.
[10]
For these reasons, the applicant has failed to demonstrate that the
Board’s decision is unreasonable.
[11]
Neither party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this
application is dismissed and no question is certified.
"Russel W. Zinn"
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