Docket: IMM-408-14
Citation:
2015 FC 383
Toronto, Ontario, March
26, 2015
PRESENT: The
Honourable Mr. Justice Hughes
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BETWEEN:
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VERONIKA PENOUW
NAMWEYA
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Applicant
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and
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THE MINSITER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is a judicial review of a decision of a
Member of the Refugee Protection Division dated December 19, 2013 wherein the
Applicant’s claim for refugee protection in Canada was rejected.
[2]
The Applicant is an adult female citizen of Namibia. In September 2011, she left Namibia and, transferring planes in Germany, entered Canada on September 16, 2011 and made a claim for refugee protection the next day.
She claimed years of abuse while living with her sister and a niece and
nephew. It was not physical abuse but emotional abuse. Her sister died in a
car accident; the niece and nephew continued to abuse her. She reported the
abuse to the local police and ran away to the Namibian capital, Windhoek, where she stayed for a period of time with a friend. The friend could not afford
to keep her so she came to Canada. In her PIF, she did not mention that she
was HIV positive although later she claimed to be HIV positive since 2007, a
matter which she says caused family rejection and loss of customers in her retail
clothing business.
[3]
The Member rejected her claim for refugee
protection finding her failure to disclose her HIV condition in her original
PIF created a negative inference. Most importantly, the Member found that the
Applicant failed to take reasonable steps to avail herself of state protection
and failed to satisfy the Board that state protection was inadequate.
[4]
The Applicant, in her initial materials, raised
a number of issues including the absence of a transcript of the December 4th
hearing. That transcript since has been provided. As to the allegation that an
inadequate section 97 analysis was conducted, that point has been dropped.
[5]
Applicant’s Counsel raised three remaining
points in oral argument:
1.
Was there a breach of procedural fairness from the
Board’s failure to reference the transcript from the first hearing?
2.
Did the Officer fail to conduct an
individualized section 97 assessment?
3.
Are the Member’s credibility findings
reasonable?
[6]
Respondent’s Counsel raised two issues:
1.
Credibility;
2.
Adequacy of state protection.
[7]
I will address credibility first. Counsel for
each of the parties took me to numerous documents signed by the Applicant such
as a PIF and revised PIF, as well as various places in the transcript of the
hearings where the Applicant clearly gave contradictory and inconsistent
evidence. The Member afforded her several opportunities to explain or clarify
but nothing satisfactory was provided. I am satisfied that the finding that
the Applicant was not credible was reasonable. This finding permeates all the
other issues.
[8]
The Member found that the Applicant did not
adequately rebut the presumption of state protection in Namibia. Her evidence as to her encounters with the police was contradictory. Clearly, she did not
seek protection, whether from the police or any other state or private agency,
in Windhoek during her stay there. The decision of Chief Justice Crampton of
this Court in Ruszo v Canada (Minister of Citizenship and Immigration),
2013 FC 1004 at paragraph 32 is important:
32 An
applicant for refugee protection is required to demonstrate that he or she took
all objectively reasonable efforts, without success, to exhaust all courses of
action reasonably available to them, before seeking refugee protection abroad.
…
[9]
Clearly, the Applicant has failed to do so in
this case. On this ground alone, this application must fail.
[10]
No party requested a certified question.
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