Date:
20121210
Docket:
IMM-2114-12
Citation:
2012 FC 1452
Ottawa, Ontario,
December 10, 2012
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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DAMALIE NUNDWE
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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
I. Overview
[1]
In
2010, Ms Damalie Nundwe fled Ethiopia for Canada out of fear of her abusive
husband. She filed an application for refugee protection, but a panel of the
Immigration and Refugee Board dismissed it. The Board found that Ms Nundwe was
eligible for citizenship in Uganda, where she was born, and that she did not
present credible evidence of a well-founded fear of persecution there.
[2]
Ms
Nundwe argues that the Board’s decision was unreasonable because it overlooked
important evidence that she provided at her hearing, and ignored documentary
evidence showing that state protection is rarely available in Uganda to women who report domestic violence. She asks me to quash the Board’s decision and
order another panel to reconsider her application.
[3]
I
agree that the Board’s decision was unreasonable and must, therefore, allow
this application for judicial review.
[4]
Originally,
Ms Nundwe contested the Board’s finding that she could obtain Ugandan
citizenship. However, she now concedes that point. Accordingly, the sole issue
is whether the Board’s decision was unreasonable.
II. The Board’s Decision
[5]
Since
Ms Nundwe has Malawian citizenship through her husband, and had to relinquish
her Uganda citizenship when she married, the Board originally embarked on a
hearing into Ms Nundwe’s claim against Malawi. She had not concentrated on Uganda in her personal information form (PIF).
[6]
However,
once the Board realized that Ms Nundwe was eligible for Ugandan citizenship, it
adjourned the hearing to allow her to provide evidence in relation to her fear
of harm in Uganda.
[7]
The
Board accepted that Ms Nundwe was a victim of domestic abuse. However, it was
not satisfied that she was at risk in Uganda. Her family was there and could
provide support. While Ms Nundwe had testified that her family did not want her
to leave her husband, the Board found that that contention was belied by the
fact that she had left her husband in Addis Ababa to visit her family on two
occasions in 2008 and 2009 for a number of weeks. If her family opposed her
decision, she would not have returned to them. In any case, the fact that they
might disapprove of her conduct did not amount to persecution.
[8]
In
addition, the Board noted that Ms Nundwe did not try to obtain a divorce while
she was in Uganda. Instead, she went back to her husband in Ethiopia.
[9]
While
Ms Nundwe testified that her husband could seek her out and cause her harm in Uganda, she did not provide any evidence that he would be immune from penal consequences if
he did so.
[10]
Finally,
the Board found that Ms Nundwe could seek state protection in Uganda if her husband caused her harm. Uganda has enacted the Domestic Violence Act, which
criminalizes domestic violence. State protection is not perfect, but it is
adequate.
[11]
Accordingly,
the Board dismissed Ms Nundwe’s claim.
III. Was the Board’s
decision unreasonable?
[12]
Ms
Nundwe’s evidence regarding the risk to her in Uganda included the following
information:
• She
was born in Uganda and, until 2008, had Ugandan citizenship and a Ugandan
passport.
• When
she visited her family on two occasions in 2008 and 2009, they urged her to go
back to her husband, in part because her husband had paid a bride price for
her. This created an obligation for her to remain with her husband, even if he
mistreated her. The family feels that she has disgraced them by leaving her
husband. They feel the same way about her son, who remains in Uganda.
• She could
not obtain a divorce in Uganda while her husband was in Ethiopia.
• Her
husband has strong connections in Uganda, including with her own family. He
travels there often for meetings. In fact, he visited her family in 2011 and
was looking for her. He will continue to look for her because she has disgraced
him.
• She
could not go to the police because they are corrupt and regard domestic
violence as a family matter. They would contact her family to find out why she
was leaving her husband. She knows of other women who have gone to police in
similar circumstances. They police simply speak to the husband and urge the
wife to go home.
• She
could not move elsewhere in Uganda because she would have language difficulties
in other regions.
[13]
In
addition, the documentary evidence before the Board showed that:
• violence
against women is widespread in Uganda;
• in most
cases, the perpetrator is an intimate partner;
• two-thirds
of households experience domestic violence;
• due to
police insensitivity, few women report gender-based violence;
• law
enforcement officers rarely intervene in domestic violence cases because
wife-beating is considered a husband’s prerogative.
[14]
None
of this documentary evidence was cited by the Board.
[15]
The
Minister argues that the Board’s decision was reasonable. It properly
recognized that Ms Nundwe did not display a subjective fear of mistreatment in Uganda as she had travelled there to visit her family. She did not present evidence that
her husband would pursue her in Uganda. He did not follow her there in 2008 or 2009
when she visited her family. Further, the Board reasonably found that adequate
state protection is available to victims of domestic violence in Uganda. In fact, Ms Nundwe had never approached the police, so she failed to present clear
and convincing evidence that protection was unavailable.
[16]
I
disagree with the Minister’s position.
[17]
In
2008 and 2009 Ms Nundwe simply visited her family in Uganda. There was no
reason why her husband should have followed her there. The fact that he did not
do so does not mean that he would not pursue her if she separated from him. Her
evidence was that he could easily travel there, had numerous contacts, and
obviously knew where her family resided. In fact, he went looking for her there
in 2011. Indeed, if Ms Nundwe were in Uganda, her husband could likely count on
the family’s help to find her and take her back to Ethiopia.
[18]
On
the subject of state protection, Ms Nundwe gave testimony about how similarly
situated women had been treated by police. Her evidence on that subject was
supported by the documentary evidence before the Board. The Board did not
analyze that evidence. In my view, the Board failed to consider whether Ms
Nundwe had met her evidentiary burden to provide clear and convincing proof of
a lack of state protection.
[19]
Accordingly,
I find that the Board’s decision does not provide a justification for its
conclusion. The outcome does not represent a defensible result based on the
facts and the law. It was unreasonable.
IV. Conclusion and
Disposition
[20]
The
Board failed to appreciate the evidence relating to Ms Nundwe’s fear of
mistreatment by her husband in Uganda. It also failed to consider the
documentary evidence that supported her fear. Accordingly, the Board rendered
an unreasonable decision. I must, therefore, allow this application for
judicial review and order a new hearing before a different panel of the Board.
[21]
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.
2.
A
new hearing is ordered before a different panel of the Board.
3.
No
question of general importance is certified.
“James W. O’Reilly”
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