Date:
20130305
Docket:
IMM-4015-12
Citation:
2013 FC 219
Ottawa, Ontario,
March 5, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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RUTH MORENAKANG MMONO
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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. INTRODUCTION
[1]
The
Applicant, a female citizen of Botswana, claimed refugee protection on the
basis of fear of her common law spouse. Her claim was denied by a member
[Member] of the Immigration and Refugee Board [Board]. This is the judicial
review of the Board’s decision.
II. FACTS
[2]
The
Applicant’s claim is based on a continuing violence against her by her common
law husband, including verbal abuse, threats, assaults and sexual assault. She
made five police reports but no action was taken.
[3]
When
the Applicant arrived in Canada, she claimed that she knew no one here.
However, she had a telephone number and an address in her diary which turned
out to be her first cousin in Nova Scotia where she was expected to stay.
[4]
As
a result of the requisite immigration medical examination, she was found to be
HIV positive. She believes she contracted HIV from her common law spouse.
[5]
The
Member denied the Applicant’s claim based on credibility. There was no
documentary or photographic evidence of her common law relationship. There were
inconsistencies in her account of attending at the police station to file a
complaint. There was no evidence of filing any complaints to police. There were
contradictions whether she had sought medical assistance for the sexual
assault.
[6]
The
Member further found inconsistencies and self-serving statements in a letter
concerning police reporting. The Applicant’s explanation for the Nova Scotia address and telephone number was nonsensical. Finally, the Member was unable to
find a causal link between her HIV condition and the facts of this case.
[7]
The
Member found that in view of the documentary lacuna and the contradictions in
her evidence, the Applicant had failed to establish an objective fear of
persecution.
[8]
Despite
the Applicant claiming that there are eight issues in this case, there are but
two:
(a) Was
the decision sustainable?
(b) Did
the Member fail to consider all possible grounds for claiming refugee status?
III. ANALYSIS
[9]
The
standard of review of the first issue is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190) and for the second issue, it is
correctness (Saha v Canada (Minister of Citizenship and Immigration),
2009 FC 304, 176 ACWS (3d) 499).
[10]
There
is no basis and none show that the IRB Guideline 4, Women Refugee
Claimants Fearing Gender-Related Persecution: Guidelines Issued by the
Chairperson Pursuant to Section 65(3) of the Immigration Act, effective
date: November 13, 1996 [Gender Guidelines] were misapplied. The real problem with
the Guidelines is the Respondent’s submission that the Gender Guidelines
do not apply unless the material elements of the case are made out. The Gender
Guidelines apply throughout the process (N (F) v Canada (Minister of Citizenship and Immigration), 182 FTR 294, [2000] FCJ No 738 (Fed
TD).
[11]
There
are a number of adverse credibility findings. While there may be some arguable
points on some of the findings, when looked at as a whole, there is no basis
for Court intervention.
[12]
The
Applicant argued that the Member failed to consider all the grounds for a
refugee claim even if the claimant did not raise it. That is the effect of Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, 103 DLR (4th) 1.
[13]
The
Board is not required to make a claimant’s case or advance a grounds for a
claim that an applicant did not contend.
[14]
However,
the Court of Appeal did require the Board to consider evidence that obviously
emerged from the evidence.
… As this Court recently said in Pierre-Louis
[sic] v. M.E.I., [F.C.A., No. A-1264-91, April 29, 1993.] the Refugee
Division cannot be faulted for not deciding an issue that had not been argued
and that did not emerge perceptibly from the evidence presented as a whole. [Ibid.,
at 3.] Saying the contrary would lead to a real hide-and-seek or guessing game
and oblige the Refugee Division to undertake interminable investigations to
eliminate reasons that did not apply in any case, that no one had raised and
that the evidence did not support in any way, to say nothing of frivolous and
pointless appeals that would certainly follow.
Guajardo-Espinoza v Minister of Employment and
Immigration (F.C.A.),
161 NR 132, 1993 CarswellNat 306, para 5
[15]
The
Applicant raised the issue of being infected with HIV. The Board only considered
her condition as not providing a causal link in her narrative of abuse,
assaults and sexual assault. The Board did not consider, in light of the mixed
evidence of the state’s ability to care for HIV patients, how the Applicant
would be affected by her HIV condition in Botswana.
IV. CONCLUSION
[16]
Therefore,
this judicial review will be granted on this limited point and the matter
returned to the same Member (if possible) for a consideration of this aspect of
the Applicant’s case in the overall context of the evidence.
In the event
this new consideration cannot be accomplished by the Member, the Applicant will
be entitled to a new determination.
[17]
There
is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted in part, the decision is suspended and the matter is to be determined
by the Member in accordance with these Reasons or, as provided in the Reasons,
the decision is quashed and the matter is to be referred to a different Member
for a new determination.
“Michael L. Phelan”
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