Date:
20130430
Docket:
IMM-7018-12
Citation:
2013 FC 452
Ottawa, Ontario,
April 30, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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EVELINE NDJAVERA
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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 seeks to set aside a decision of the Refugee Protection Division of
the Immigration and Refugee Board of Canada (the Board) that the applicant is
neither a Convention refugee nor a person in need of protection pursuant to
sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001,
c 27
(IRPA).
[2]
The
applicant is a young woman who alleges she has been forced to marry her
stepfather in Namibia. The applicant testified that her mother became
paralyzed after a serious accident and that she is now compelled by custom to
fulfill her mother’s “wifely role” and ensure that her stepfather’s wealth
stays in the family. She testified that her stepfather paid a bride price for
her and that he has repeatedly raped her.
[3]
For
the reasons that follow, the decision is unreasonable. Accordingly, the
application is granted.
Credibility
[4]
The
Board rejected the applicant’s claim on the basis of credibility, a finding
that is generally entitled to substantial deference. In this case however, the
Board’s assessment of credibility is flawed.
[5]
The
Board emphasized the lack of corroborating evidence that the applicant’s
stepfather is a tribal police officer and that her mother is paralyzed.
[6]
There
is no general requirement for corroboration and it would be an error to make a
credibility finding based on the absence of corroborative evidence alone: Dundar v Canada (Citizenship and
Immigration), 2007 FC 1026, paras 19-22.
[7]
If
there is a valid reason to question the claimant’s credibility, the Board may
draw a negative inference from a failure to provide corroborative evidence that
would reasonably be expected. Much depends on the type of evidence at issue
and whether it relates to a central aspect of the claim. Corroborative
evidence is most valuable when it is independently generated by a neutral
source. It may be unreasonable to expect a refugee claimant to generate or
collect documentation not already available before fleeing. Furthermore, when
the alleged assailant controls the documents at issue, as here, it would be
unreasonable to expect an applicant to obtain it. In this case, there is no
basis to believe that the applicant would have access to her mother’s medical
records or her stepfather’s police credentials.
[8]
Here,
the record contains a photograph of a woman in a wheelchair, apparently the
applicant’s mother. Additionally, there is a letter from a friend in Namibia, explaining that the applicant had stayed at her home when fleeing her stepfather’s
until her family came and forced her to return. This friend states that the
applicant’s stepfather is a police officer. The Board’s reasons are silent
with respect to this evidence.
[9]
There
are two other aspects to the Board’s reasoning regarding corroboration that
render it unsound. First, the veracity of the applicant’s testimony as to her
mother’s disability was not raised or challenged during the hearing. Second,
the fact that the applicant’s stepfather is a tribal police officer was a
collateral point, not germane to the applicant’s principle claim for relief.
[10]
The
Board’s plausibility finding is also unreasonable. Plausibility findings
should only be made in the clearest of cases, when the applicant’s testimony is
outside of the realm of what could reasonably be expected or when the
documentary evidence demonstrates that the events could not have taken place as
alleged.
[11]
The
Board must exercise caution in assessing plausibility: Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776, para 7. Refugee
claimants come from diverse backgrounds and the events described in their
testimony are often far removed from the ordinary life experience of
Canadians. What appears implausible from a Canadian perspective may be
ordinary or expected in other countries. Furthermore, there are many commonly
held assumptions regarding domestic violence and gender-based persecution,
which is why the Chairperson’s Guidelines on Women Refugee Claimants Fearing
Gender-Related Persecution (Gender Guidelines) is a crucial analytical aid.
[12]
The
applicant testified that her uncle took her young child in order to coerce her
into marrying her stepfather. The applicant testified that she unsuccessfully sought
assistance from the police and the Traditional Authority to regain custody of
her child and stop the forced marriage.
[13]
The
Board considered it implausible that the applicant would not have done more,
namely complaining to the Commissioner of Police or hiring a lawyer to commence
legal proceedings. The Board stated that assuming the applicant’s story is
true, she did not receive “good service” from the police and should have
complained.
[14]
The
Board erred in making this plausibility finding without adequate regard to the
applicant’s age, culture, background and prior experiences: Cooper v Canada
(Citizenship and Immigration), 2012 FC 118, para 4. As set out in the
Gender Guidelines, a claimant’s steps in seeking state protection must be
assessed with regard to “the social, cultural, religious, and economic context
in which the claimant finds herself.”
State Protection
[15]
The
Board’s finding on state protection is closely related to its credibility
analysis.
[16]
It
is a foundational principle of refugee law that states are presumed to be
willing and able to provide adequate protection for their citizens: Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689. Refugee protection is
intended for exceptional circumstances, where a claimant can produce clear and
convincing evidence that state protection is inadequate, on a balance of
probabilities: Flores Carrillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94.
[17]
The
applicant provided such evidence, in stating that the police considered her complaints
a “family matter” and that the Traditional Authority sent her away with the
instruction to obey her family.
[18]
The
Board found that if the applicant’s story was true, she could have gone to the
police commissioner or hired a lawyer, despite the applicant’s testimony that
she was not aware of other avenues for assistance. The Board emphasized that
she hired a lawyer for her refugee claim in Canada, without acknowledging her
testimony that this lawyer was provided to her.
[19]
The
Board ignored the applicant’s testimony that it was shameful to seek police
protection from rape. Again this is contrary to the Gender Guidelines: “If,
for example, a woman has suffered gender-related persecution in the form of
rape, she may be ostracized from her community for seeking protection from the
state.”
[20]
The
Board fairly considered the country condition evidence which provides that
spousal rape is illegal in Namibia and that forced marriage is contrary to the
Constitution. This is relevant, but not determinative in analyzing state
protection. The written law may not always be enforced, especially when it
conflicts with deeply held traditions.
[21]
The
Board selectively quoted from the country condition evidence, ignoring
statements that women in Namibia may be forced into marrying a family member or
a deceased family member’s husband. The evidence states that marriage is a
practice between families, not individuals, and that polygamy is permitted.
All of this is highly relevant.
Internal Flight Alternative
[22]
Finally,
the Board found that the applicant had an internal flight alternative in Walvis Bay, a city six hours away from her village by car. The Board’s analysis of this
issue flowed directly from its earlier findings and so it cannot be sustained.
[23]
The
Board stated that the applicant could reasonably be expected to obtain custody
of her child before relocating, relying on its flawed state protection and
credibility analysis. The Board also rejected the applicant’s testimony that
her stepfather could find her in Walvis Bay because of his position as a tribal
police officer. As previously set out, the Board did not accept that her
stepfather holds this position.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to the Immigration Refugee Board for
reconsideration before a different member of the Board’s Refugee
Protection Division. There is no question for certification.
"Donald J.
Rennie"
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