Date:
20130830
Docket:
IMM-6597-12
Citation:
2013 FC 927
Ottawa, Ontario,
August 30, 2013
PRESENT: The
Honourable Mr. Justice Annis
BETWEEN:
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REAGEN TJIPURAVANDU
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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]
This
is an application for judicial review, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], of a decision that the
applicant was not a Convention refugee or a person in need of protection.
Background
[2]
Mr.
Tjipuravandu was born in Namibia in 1981. He grew up in a rural village. He
stated that when he was sixteen, his parents arranged a marriage with a cousin,
and he left school and went to work on the family cattle farm. He has one
daughter. His family followed a traditional belief system but the applicant had
become interested in Christianity while at school. He refused to become more
deeply involved in traditional rituals and ultimately stopped practicing them
completely.
[3]
When
the applicant’s father became aware of his Christian faith, he was furious. He
reported the applicant to the community leaders and alleged that the applicant
had desecrated the holy fire shrine by bringing the Bible into the shrine. The applicant
was summoned by the community leaders and told that he did not have any choice
but to listen to what his father said and follow through with it.
[4]
The
applicant fled his village without his wife and daughter and hitchhiked to Windhoek. He moved in with a half-brother there until November 2009. When his father
arrived with members of the village council, he resisted being taken back to
the village to be initiated into the traditional religion.
[5]
The
applicant went to the police in Windhoek to lay a complaint against his father
and community traditional leaders. The police declined to assist because the matter
was a traditional one.
[6]
The
applicant then turned to his pastor in Windhoek, who bought him a ticket to Toronto. He arrived in Canada on January 30, 2011 and claimed asylum at the airport.
Impugned
decision
[7]
The
Refugee Protection Division [the Board] heard the case on May 25, 2012 and
rendered its decision on June 1, 2012. The Board accepted Mr. Tjipuravandu’s
story, but found that he was not a refugee because he had a viable Internal
Flight Alternative [IFA] in Walvis Bay, Namibia.
[8]
It
also found that the applicant had not rebutted the presumption of state
protection in Walvis Bay with clear and convincing evidence and, from questions
put to him at the hearing, had not demonstrated that his traditional Herero
community family situation established a prospective lack of protection in
Walvis Bay and would force him to live in hiding in that location.
Issues
[9]
The
issues are:
a. Did
the Board misapprehend the basis of the applicant’s claim?
b. Did
the Board err in confusing the test for state protection with the test for an
IFA?
c. Did
the Board err in concluding that there was a viable IFA?
Standard of
review
[10]
A Board’s
determinations on state
protection and IFA
involve questions of fact and are reviewable on the more deferential standard
of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 53).
Analysis
Did
the Board misapprehend the basis of the applicant’s claim?
[11]
The
applicant argues that in his application for refugee protection, he stated his
fear of persecution based on conversion to Christianity. Religious opinion is
one of the listed grounds in section 96 of IRPA. He claims that the Board made
no mention of this and made its decision based on “domestic violence” and
“forced marriage”.
[12]
I
find that that the Board was clearly aware of the basis of the claim, as was
made clear by its questioning. The Board noted that he did not say either in
his Personal Information Form [PIF] or in his oral evidence that he had had a
problem practising his religion; rather his narrative indicates that he was at
risk primarily from his father with the support of community leaders. The
applicant stated that he was afraid of “his father and the traditional leaders”.
I agree with the respondent that the Board reviewed the risk raised by the
applicant.
[13]
I
also agree that in any event, the Board’s findings on state protection and IFA
nullified the requirement to engage in an analysis of the objective basis for
the alleged religious persecution. See Hinzman v Canada (MCI), 2007 FCA
171 at para 42.
Did the Board err in
confusing the test for state protection with the test for an IFA?
[14]
In
Huerta Morales v Canada ( MCI), 2009 FC 216 [Huerta
Morales], Zinn J. pointed out that the law relating to an IFA is closely
bound up with the notion of state protection, describing both forms of
protection at paragraphs 5 and 6 as follows:
[5] Canadian
law relating to state protection has been stated and developed in a decade and
a half of Federal Court jurisprudence interpreting and applying the seminal
exposition of the issue in Canada (Attorney General) v. Ward, 1993 CanLII 105
(SCC), [1993] 2 S.C.R. 689. In that decision Justice LaForest stressed the
surrogate nature of refugee protection; it is only the failure of the foreign
state to protect that will engage Canadian responsibility. Absent a situation
of total breakdown of state institutions, the ability of the foreign state to
provide protection is presumed. The surrogacy principle has raised various
issues relating to the intensity of the presumption of state protection and the
type of evidence that can demonstrate a failure thereof. The following
principles have been articulated in this respect:
(i) The stronger the democratic
institutions of the foreign state in question, the heavier the burden will be
on the claimant to rebut the presumption: Kadenko v. Canada (Solicitor
General), (1996), 206 N.R. 272 (F.C.A.).
(ii) A refugee claimant must make reasonable
efforts to seek domestic state protection, but needn’t exhaust every
conceivable recourse: Chaves v. Canada (Minister of Citizenship and
Immigration), 2005 FC 193 (CanLII), 2005 FC 193.
(iii) Evidence sufficient to rebut the
presumption must be “clear and convincing”: Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171 (CanLII), 2007 FCA 171.
(iv) An absence of perfect or ideal
protection in the foreign state will not engage Canada’s surrogate role; “adequacy,”
not effectiveness per se, is what matters: Canada (Minister of Citizenship and
Immigration) v. Carillo, 2008 FCA 94 (CanLII), 2008 FCA 94.
[6]
The law relating to an IFA, is closely bound up with the notion of state
protection. Justice Kelen in Farias v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1035 (CanLII), 2008 FC 1035, recently summarized the
legal principles in this area at paragraph 34 of his Judgment.
1.
If IFA will be an issue, the Refugee Board must give notice to the refugee
claimant prior to the hearing (Rasaratnam, supra, per Mr. Justice Mahoney at
paragraph 9, Thirunavukkarasu) and identify a specific IFA location(s) within
the refugee claimant's country of origin (Rabbani v. Canada (MCI), reflex,
[1997] 125 F.T.R. 141 (F.C.), supra at para. 16, Camargo v. Canada (Minister of
Citizenship and Immigration) 2006 FC 472 (CanLII), 2006 FC 472, 147 A.C.W.S.
(3d) 1047 at paras. 9-10);
2.
There is a disjunctive two-step test for determining that there is not an IFA.
See, e.g., Rasaratnam, supra; Thirunavukkarasu, supra; Urgel, supra at para.
17.
i.
Either the Board must be persuaded by the refugee claimant on a balance of
probabilities that there is a serious possibility that the refugee claimant
will be persecuted in the location(s) proposed as an IFA by the Refugee Board;
or
ii.
The circumstances of the refugee claimant make the proposed IFA location
unreasonable for the claimant to seek refuge there;
3.
The applicant bears the burden of proof in demonstrating that an IFA either
does not exist or is unreasonable in the circumstances. See Mwaura v. Canada (Minister of Citizenship and Immigration) 2008 FC 748 (CanLII), 2008 FC 748 per Madame
Justice Tremblay-Lamer at para 13; Kumar v. Canada (Minister of Citizenship and
Immigration) 2004 FC 601 (CanLII), 130 A.C.W.S. (3d) 1010, 2004 FC 601 per Mr.
Justice Mosley at para. 17;
4.
The threshold is high for what makes an IFA unreasonable in the circumstances
of the refugee claimant: see Khokhar v. Canada (Minister of Citizenship and
Immigration), 2008 FC 449 (CanLII), 2008 FC 449, per Mr. Justice Russell at
paragraph 41. In Mwaura, supra, at para. 16, and Thirunavukkarasu, supra, at
para. 12, whether an IFA is unreasonable is a flexible test taking into account
the particular situation of the claimant. It is an objective test;
5.
The IFA must be realistically accessible to the claimant, i.e. the claimant is
not expected to risk physical danger or undue hardship in traveling or staying
in that IFA. Claimants are not compelled to hide out in an isolated region like
a cave or a desert or a jungle. See: Thirunavukkarasu, supra at para. 14; and
6.
The fact that the refugee claimant has no friends or relatives in the proposed
IFA does not make the proposed IFA unreasonable.
The refugee claimant probably
does not have any friends or relatives in Canada. The fact that the refugee
claimant may not be able to find suitable employment in his or her field of
expertise may or may not make the IFA unreasonable. The same may be true in Canada…
[Emphasis
added]
[15]
The
Board carried out an extensive analysis of the “presently probative country
documents” and concluded they were “positive when it comes to state protection
for persons fearing domestic violence in Namibia”, clearly indicating that the
state now has “sophisticated state protection mechanisms available for persons
fearing domestic violence in both legislation and in practice”.
[16]
After
doing so, the Board summarized the situation in respect of IFA, noting that with
respect to Walvis Bay it was a sub-issue of state protection, as follows at
paragraphs 14 and 15 of its reasons:
[14] Among the protection mechanisms available,
it is important to note for this case that Namibia does have shelters with
trained police officers. Furthermore, one of these shelters is located in Walvis Bay and, indeed, it does house a unit of the Namibian police. Again, to date, the
claimant has never requested protection at a police station in Walvis Bay or at
a shelter anywhere in Namibia.
[15] According to refugee protection law,
states only need to provide adequate protection and do not have to provide
perfect protection: in other words, states only have to make serious efforts at
protection and do not have to provide de facto effective or de facto
guaranteed protection [Canada (Minister of Employment and Immigration) v.Villafranca
(1992) 18 Imm. L.R. (2d) 130 (F.C.A.)]. Therefore, the IFA state protection
sub-issue here is only whether Namibia authorities in Walvis Bay can be
reasonably expected to provide the claimant with serious efforts at protection
if he were to return to Namibia and live there, and not whether those
authorities can be reasonably expected to provide the claimant with de facto
effective or de facto guaranteed protection from his father and the traditional
community leaders. Furthermore, one cannot rebut the presumption of state
protection by asserting only a subjective reluctance to engage it [Camacho
v. Canada (M.C.I.), 2007 FC 830], and doubts about the effectiveness of
state protection without having tested it do not rebut the presumption either [Ramirez
v. Canada (M.C.I.), 2008 FC 1214].
[Emphasis added]
[17]
Although
this was not raised by the applicant, it is arguable that the Board misstated
the test for an IFA at paragraph 14 described above. There is no requirement
that the applicant have already sought protection in the designated IFA. The
IFA is determined by the Refugee Board and thereafter it is incumbent upon the
applicant that on a balance of probabilities there is a serious possibility
that he will be persecuted in the location proposed as an IFA (see Alvapillai
v Canada (MCI), [1998] FCJ No 1160 (QL), 45 Imm LR (2d) 150 (TD)). However,
the remainder of its reasons, including paragraph 15, indicates that the Board
did not misdirect itself on this issue.
Did
the Board err in concluding that there was a viable IFA?
[18]
I
do not find that the Board erred in principle in focusing on the state
protection aspect of Walvis Bay being an IFA. For that matter, given the evidence
before the Board, it was reasonable for it to conclude that simply by asking
the police at Windhoek for protection on only one occasion, the applicant
failed to rebut the presumption that state protection was adequate in a clear
and convincing fashion.
[19]
The
applicant argued that the Board’s analysis was microscopic, speculative and
inadequate in its conclusions on an IFA, inasmuch as there is no effective
state protection for victims of traditional religious practices in Namibia. This submission does not respond to the requirement that he demonstrate that the
IFA will not provide suitable protection. Indeed, when questioned on the issue
in chief, the applicant was unable to provide a suitable answer.
[20]
In
the present case, the applicant has stated that he fears that his family would
track him down in Walvis Bay and continue to persecute him by forcing him to
carry out the traditional religious observances which are contrary to his
Christian faith. His testimony on the issue was far from convincing, even to
his own counsel, as may be seen from the excerpt from his testimony as follows:
COUNSEL: All right, you will note… You testified
earlier when you were asked whether you contacted the police [sic] said
you did go to the police in Windhoek and they declined to assist you. Now, if
for any reason you return to Namibia and move to Walvis Bay to live and if for
any reason your father or the community leader comes after you, is there any
reason why you cannot go to the police in Walvis Bay and seek for protection?
CLAIMANT: No ways because the police is… is not
dealing with… it is traditional so there is no way I can go to the police.
COUNSEL: The… part of the documentary evidence on Namibia shows that Walvis Bay is not one of those traditional homelands for the Herero’s, which is
your tribe…
CLAIMANT: Um-hum.
COUNSEL: … so I am just wondering if it is not part
of the traditional Herero homelands why do you think that the police in Walvis
Bay would not be different from possibly police in Windhoek of the predominantly
Herero homelands?
CLAIMANT: If I understand the question maybe… all
the… the rules are the same of the police…
COUNSEL: Okay
CLAIMANT: so they will definitely not help me if I
go to the police, they will send me back. So there is no way they can help me,
the police no way they can help me.
[21]
The
threshold for finding that relocation to an IFA is unreasonable is a high one. An
applicant must provide actual and concrete evidence of conditions which would
jeopardize his life and safety in traveling there (Huerta Morales,
above, at para 6). There was no actual concrete evidence of conditions that
would jeopardize the applicant’s life and safety. See Ranganathan v Canada (MCI), [2001]
2 FC 164, 2000 CanLII 16789 (FCA) at para 15. In the
circumstances of this case, the applicant had the burden of presenting evidence
of a failure of state protection and did not meet that burden.
[22]
The
Board applied the two-pronged IFA test that there must be no serious
possibility of persecution in the proposed IFA and that it must not be
unreasonable for the applicant to seek refuge in the IFA. See Rasaratnam v Canada (MEI), [1992] 1 FC 706 (FCA) at para 10.
[23]
The
Board carried out a thorough analysis and provided reasons why it considered
that there existed a viable IFA. The argument that the Board failed to carry
out a “close analysis” which would have demonstrated that the government and
authourities did not implement and enforce the Namibian laws amounts to a
request that the Court reweigh the evidence, which as stated, is not a ground
for judicial review. See Brar v Canada (MEI), [1986] FCJ No 346 (QL)
(FCA).
Conclusion
[24]
The
Board’s decision was not unreasonable. The decision falls within the range of possible,
acceptable outcomes that are defensible in facts and in law. For these reasons,
the application is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is dismissed.
“Peter Annis”
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