Date: 20130828
Docket: IMM-9735-12
Citation: 2013 FC 912
Toronto, Ontario, August 28, 2013
PRESENT: The Honourable Madam Justice
Mactavish
BETWEEN:
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PATRICIA HENGUVA
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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]
Patricia Henguva’s refugee claim was rejected by
the Refugee Protection Division of the Immigration and Refugee Board on the
basis that there was an internal flight alternative [IFA] available to her in
Namibia. While the Board accepted that Ms. Henguva had been victimized by a
member of a powerful tribal family in her home town, it was nevertheless
satisfied that state protection would be available to Ms. Henguva in the city
of Walvis Bay.
[2]
At the conclusion of the hearing I advised the
parties that I was granting the application for judicial review on the basis
that the Board applied the wrong test for state protection. These are my
reasons for coming to that decision.
Analysis
[3]
The Board started its state protection analysis by
noting that states need only provide adequate state protection and do not have
to provide perfect protection. This is the correct formulation of the test: Carillo
v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008]
F.C.J. No. 399.
[4]
However, the Board then went on to restate its understanding of the test
in its own words, stating “in other words, home states only need to make
serious efforts at protection and do not have to provide de facto
effective or de facto guaranteed protection” [my emphasis].
[5]
In Harinarain v Canada (Minister of Citizenship and Immigration),
2012 FC 1519, [2012] F.C.J. No. 1637, precisely
the same language was used by the Board to describe the test for state
protection. This Court found that in so doing, the Board erred. The Court
observed that “[t]he use of the phrase “in other words” in the passage was
incorrect. It went on to observe that “‘adequate protection’ and ‘serious
efforts at protection’ are not the same thing.” The Court stated that adequate
protection “is concerned with whether the actual outcome of protection exists
in a given country, while [serious efforts] merely indicates whether the state
has taken steps to provide that protection”: all quotes from para. 27.
[6]
I agree with the respondent that the use of the phrase “serious efforts”
in a state protection analysis will not automatically result in a Board
decision being set aside, and that regard must be had to the decision as a
whole in determining whether or not the Board applied the proper test.
[7]
However, the use of the phrase “serious efforts” in this case is not
merely an injudicious choice of language at one point in an otherwise proper
analysis. Having mis-stated the test, the Board went on to identify the issue
before it as being “only whether Namibian authorities in Walvis Bay can
reasonably be expected to provide the claimant with serious efforts at
protection …” [my emphasis].
[8]
Having incorrectly framed the issue before it, the Board then proceeded
to discuss whether Ms. Henguva faced a forward-looking risk were she to return
to Namibia and live in Walvis Bay. The Board concluded its analysis with the
ultimate finding that “I am not persuaded that … Namibian authorities would not
be reasonably forthcoming with serious efforts to protect the claimant”:
at para. 21 [my emphasis].
[9]
It is thus clear from reading the decision as a whole that the Board did
not understand or apply the correct legal test in assessing the state
protection available to Ms. Henguva in Namibia. As a consequence, the
application for judicial review is allowed.
[10]
Before closing, I note that this Court and the
Federal Court of Appeal have repeatedly stated that it is an error for the
Board to focus on the efforts made by a government to protect its citizens
without considering whether those efforts have actually translated into
adequate state protection: see, for example, E.B. v Canada (Minister of
Citizenship and Immigration), 2011 FC 111, [2001] F.C.J. No. 135, at para.
9; J.B. v Canada (Minister of Citizenship and Immigration), 2011 FC
210, [2011] F.C.J. No. 358 at para. 47; Wisdom-Hall v Canada (Minister of Citizenship and Immigration), 2008 FC 685, [2008] F.C.J. No. 851, at para.
8; Koky v Canada (Minister of Citizenship and Immigration), 2011 FC 1407,
[2011] F.C.J. No. 1715 (QL), at para. 60; Tomlinson v Canada (Minister of Citizenship and Immigration), 2012 FC 822, [2012] F.C.J. No. 955 at paras.
21-28; E.Y.M.V. v Canada (Minister of Citizenship & Immigration),
2011 FC 1364, [2011] F.C.J. No. 1663, at para. 16; Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008] F.C.J. No. 399. Given the clear judicial guidance that has been provided on
this issue, it is troubling to see the Board continue to make
the same error.
Conclusion
[11]
For these reasons, the application for judicial review is allowed. I
agree with the parties that the case does not raise a question for
certification.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that this application for judicial review is allowed,
and the matter is remitted to a differently constituted panel for
re-determination.
“Anne L. Mactavish”
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