Federal Court Decisions

 

Date: 20130308

Docket: IMM-3950-12

Citation: 2013 FC 251

Ottawa, Ontario, March 8, 2013

PRESENT:    The Honourable Mr. Justice Russell

 

 

BETWEEN:

	MILLIE ITUMELENG MOTHUDI
		Applicant
	and
	THE MINISTER OF CITIZENSHIP AND IMMIGRATION
		Respondent

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

INTRODUCTION

 

[1]               This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC­ 2001, c. 27 (Act) for judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated 22 March 2012 (Decision), which refused the Applicant’s application to be deemed a Convention refugee or a person in need of protection under sections 96 and 97 of the Act.

BACKGROUND

[2]               The Applicant is a 32-year-old citizen of Botswana. She seeks protection in Canada from her ex-partner.

[3]               The Applicant met her ex-partner at university in 2004. In June 2005, the Applicant found out she was pregnant. Her mother did not approve, so the couple never married but the Applicant moved in with her ex-partner. The Applicant’s son was born on 22 February 2006 and she dropped out of university to care for him.

[4]               The Applicant’s ex-partner first began abusing her while she was pregnant. He would drink a lot, insult her, and assault her. On 12 December 2006, he came home very drunk and stabbed the Applicant. The Applicant sought help, and reported the incident to the police.

[5]               About two months later the ex-partner assaulted the Applicant again, and she went to the police. She realized that there was no report on file for the stabbing incident, and that her ex-partner must have had someone helping him from inside the police force.

[6]               On another occasion, the ex-partner saw the Applicant with a man in a restaurant. She knew that when she got home he would be very angry. Her son was staying at her mother’s house at the time, so she picked him up and went to stay at a relative’s house in another village.

[7]               The Applicant’s mother provided her with funds to flee the country. She arrived in Canada on 1 February 2011 and claimed refugee protection on 8 February 2011. A hearing was conducted on 21 February 2012. The RPD refused the Applicant’s claim for protection on 22 March 2012.

DECISION UNDER REVIEW

[8]               The determinative issue in the Decision was the existence of an Internal Flight Alternative (IFA), but the RPD also took issue with the Applicant’s credibility and subjective fear of persecution. In making the Decision, the RPD followed the Chairperson’s Guidelines for Women Refugee Claimants Fearing Gender-Related Persecution.

Credibility

[9]               The RPD thought that the Applicant testified in a relatively straightforward manner, but had two specific concerns with respect to her credibility.

[10]           In her Personal Information Form (PIF) narrative, the Applicant said that she reported the stabbing incident in 2006 to the police, but she did not mention anything about seeking medical attention. In her PIF, she states “then I knew I had to go seek help, I reported him to the police.” During the hearing, the Applicant testified that she sought medical attention at a hospital. The RPD asked the Applicant why she did not say in her PIF that she sought medical attention. She replied that she did not know why she did not mention it. The RPD did not think this was a reasonable explanation; the Applicant is a well-educated woman and fluent in English. The instructions on the PIF form explicitly instruct claimants to state whether any medical attention was received. The RPD found that this omission diminished the Applicant’s credibility.

[11]           During the hearing, the Applicant testified that when she was in Gaborone she went to the local police station to try to report the abuse she had suffered. The Gaborone police informed her that she would have to make a police report in the district where the abuse took place. When asked why this was not included in her PIF, the Applicant said that she forgot. Again the RPD did not think this was a reasonable explanation, as the instructions for the PIF ask for details of any steps taken to obtain protection from any authorities in the home country. The RPD thought that this was an attempt by the Applicant to embellish her claim, and that it further diminished her credibility.

Subjective Fear of Persecution

[12]           On the Applicant’s journey to Canada, she had to travel through the United States. The RPD asked the Applicant why she did not make a refugee claim upon arrival in the U.S. She testified that it was not her plan to make a claim in the U.S. because it was a rough country and people there are racist, and that she wanted to come to Canada because she heard it was a good place to live. The RPD did not accept this explanation as reasonable and felt that if she genuinely feared for her life in Botswana she would have claimed refugee protection at the earliest opportunity. The RPD believed that this undermined the Applicant’s subjective fear of persecution, but that the Decision ultimately turned on the availability of an IFA.

Internal Flight Alternative

[13]           The RPD found that an IFA exists for the Applicant in either Francistown or Serowe. It reviewed the two-prong test for whether a viable IFA exists: there must be no serious possibility of the Applicant being persecuted in the IFA; and it must be reasonable for the Applicant to seek refuge there.

[14]           The RPD noted that the Applicant has been out of Botswana for over a year, and that there is no reason to think she would have to inform her ex-partner of her return. The Applicant provided no evidence that he continues to look for her. Her child has remained safely with a friend 20 kilometres away from where her ex-partner lives, yet he has not found him. The Applicant said that Botswana is small and because she attended university she would be recognizable, but the RPD found no objective evidence that her ex-partner still wants to harm her. In any case, the RPD found that state protection would be available to the Applicant.

[15]           The RPD found no persuasive evidence that any influence the ex-partner might have with the police would extend beyond his local community. The documentary evidence indicated that police in Botswana require more training for gender-based violence, but that the government is seriously working to remedy this problem. For example, police officers now receive human rights training and the Botswana Police Service has developed a handbook regarding human rights that is distributed throughout the country.

[16]           The United Nations High Commissioner for Refugees (UNHCR) report says that poor dissemination of information about laws and programs to help victims of domestic violence is part of the problem. The report says that victims may go to court to obtain restraining orders, but legal costs are the main obstacle. The RPD pointed out that the Applicant’s mother provided her with financial assistance to come to Canada, and there was nothing to indicate her mother would not be able to assist her with legal costs if necessary. Also, once the Applicant found employment she would be able to cover her own legal costs. 

[17]           Applicant’s counsel submitted that under customary law, husbands can treat their wives as legal minors. However, the Applicant was never married to her ex-partner. Therefore, the RPD did not think the Applicant would come under the customary law referred to by counsel. The documentary evidence also indicates that non-governmental support services are available to victims of gender-based violence.

[18]           The RPD noted that it had to be sensitive to that fact that the Applicant would be travelling as a woman on her own. She had already travelled all the way to Canada where she knew no one, so the RPD thought it reasonable to assume she would be able to assimilate at an IFA. The Applicant provided letters from her mother, as well as close friends, so it assumed she would continue to receive support from these people. The Applicant’s education was well beyond that of the average citizen of Botswana, and she is fluent in English. The evidence showed she had experience as a sales associate, and that women in Botswana are increasingly able to access credit and be paid equally with men. Based on the above, the RPD found there were no serious social or economic barriers to the Applicant relocating.

[19]           The RPD concluded that, on a balance of probabilities, an IFA exists in either Francistown or Serowe. Therefore, the Applicant’s claim was rejected.

STATUTORY PROVISIONS

[20]           The following provisions of the Act are applicable in this proceeding:

 

ISSUES

[21]           The Applicant raises the following issues in this application:

a.                   Did the RPD commit an error of law or fact?

b.                  Did the RPD proceed on improper principles, base its Decision on irrelevant considerations, or ignore critical evidence?

c.                   Did the RPD make a wrong assessment of the IFA?

 

STANDARD OF REVIEW

[22]           The Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.

[23]           In Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review on a credibility finding is reasonableness. Further, in Elmi v Canada (Minister of Citizenship and Immigration), 2008 FC 773, at paragraph 21, Justice Max Teitelbaum held that findings of credibility are central to the RPD’s finding of fact and are therefore to be evaluated on a standard of review of reasonableness. Finally, in Negash v Canada (Minister of Citizenship and Immigration), 2012 FC 1164, Justice David Near held at paragraph 15 that the standard of review on a credibility determination is reasonableness. The standard of review on the first issue is reasonableness.

[24]           In Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94, the Federal Court of Appeal held at paragraph 36 that the standard of review on a state protection finding is reasonableness. This approach was followed by Justice Luc Martineau in Bibby-Jacobs v Canada (Minister of Citizenship and Immigration), 2012 FC 1176, at paragraph 2. Further, in Chaves v Canada (Minister of Citizenship and Immigration), 2005 FC 193, Justice Danièle Tremblay-Lamer held at paragraph that the standard of review on a state protection finding is reasonableness. The standard of review on the second issue is reasonableness.

[25]          The existence of an IFA is a matter of mixed fact and law, and is reviewable on a reasonableness standard (see Davila v Canada (Minister of Citizenship and Immigration), 2012 FC 1116 at paragraph 26; Nzayisenga v Canada (Minister of Citizenship and Immigration), 2012 FC 1103 at paragraph 25; M.A.C.P. v Canada (Minister of Citizenship and Immigration), 2011 FC 81 at paragraph 29). The standard of review on the third issue is reasonableness.

[26]           When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa 2009 SCC 12 at paragraph 59.  Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

ARGUMENTS

The Applicant

            Credibility

 

[27]           The Applicant submits the RPD was unreasonable in its assessment of her credibility. The Applicant testified that she visited the hospital after the stabbing in 2006, and though she did not include this specifically in her PIF she did submit a medical report from the hospital as well as an affidavit from a friend, Otto C. Kablay, wherein he says that the Applicant was treated at a hospital for her injuries.

[28]           The Applicant submits that, based on her testimony and the supporting documentary evidence, it is clear she went to the hospital after she was stabbed. Her PIF says that “she knew she had to seek help,” which easily could have included treatment at the hospital. The Applicant submits that the mere fact that she did not specifically say that she went to the hospital does not invalidate her testimony or credibility.

[29]           In M.M. v Canada (Minister of Employment and Immigration), [1991] FCJ No 1110 (FCA), the Federal Court of Appeal held that it is an error for the RPD to ignore documentary evidence and important aspects of a claimant’s testimony while focusing on inconsistencies that are not central to the claim. Further, a finding that there are minor inconsistencies in the Applicant’s story or that parts of her story are exaggerated is not enough to reject all of the evidence (Armson v Canada (Minister of Employment and Immigration), [1989] FCJ No 800 (FCA)).

[30]           The RPD did not indicate it had taken the doctor’s report or affidavit of Mr. Kablay into account. The RPD did not indicate any concerns with these documents, and therefore it erred by ignoring this evidence (Owusu-Ansah v Canada (Minister of Employment and Immigration), (1989) 8 Imm LR (2d) 106 (FCA); Canadian Imperial Bank of Commerce v Rifou, [1986] 3 FC 486 (CA); Padilla v Canada (Minister of Employment and Immigration), (1991) 13 Imm LR (2d) 1 (FCA)).

[31]           The RPD also thought that the Applicant’s testimony about attending at the police station in Gaborone was an attempt to embellish her claim. However, the Applicant explained in her PIF about her attempts to go to the police and how she realized that her report of the stabbing was not on file. The Applicant submits that the fact that she did not say that this took place in Gaborone and that the police told her to go back to the station where the abuse took place does not mean that she omitted to explain her attempts to seek protection in her own country. She also submits that this should not detract from her credibility, as it is not a central part of her claim.

[32]           The Applicant further submits that the RPD made an unreasonable assessment of her trip to Canada. The Applicant left for Canada the same day she arrived in the U.S.; she simply transited through the U.S. on her way to Toronto. Had she stayed in the U.S. for some time it might be argued that she should have made a claim there. However, the Applicant explained in her testimony that her destination was Canada, and that she preferred Canada over the U.S. Immediately upon arriving in the U.S. she boarded a bus for Canada. It was unreasonable for the RPD to simply ignore this fact.

Internal Flight Alternative

[33]           In making its IFA finding, the RPD said that “if the claimant does not wish to inform others of her presence in either of these two cities there is no reason to believe that her location would be found out.”  This means that the RPD essentially expected her to live in hiding, which is unreasonable. In Huerta v Canada (Minister of Citizenship and Immigration), 2008 FC 586, the Court had the following to say on point at paragraph 29:

The Applicant’s evidence is that she did relocate to Queretaro in 2004, but was tracked down by her common-law spouse, a trained police interrogator, who assaulted the Applicant’s mother, and forced her to disclose the Applicant’s new location. The Board did not expressly address these circumstances in considering the IFA in its reasons. But the Board did qualify its finding by stating that an IFA existed for the Applicant in Mexico, provided she took reasonable precautions and not reveal her new location to relatives and friends. Not to be able to share your whereabouts with family or friends is tantamount to requiring the Applicant to go into hiding. It is also an implicit recognition that even in these large cities, the Applicant is not beyond her common-law spouse’s reach. In these particular circumstances, this cannot constitute an IFA for the Applicant. The Board’s finding of an IFA does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law in the circumstances. As a result, the decision with respect to an IFA is unreasonable and must be set aside.

 

 

[34]           The Applicant also submits that the RPD erred in its state protection analysis. She explained that her initial police report was not documented and that she tried to follow up but the police kept telling her to check back later. The Applicant also said in her PIF that she did not know whether her ex-partner had “one or more” people working for him from inside the police force. The Applicant submits that the RPD erred by ignoring this part of her PIF. The Applicant also said in her oral testimony that she went to the police in Gaborone and was turned down.

[35]           There was also documentary evidence before the RPD stating that domestic violence is not considered a serious crime in Botswana and that the legal system’s response to domestic violence remains inadequate. The evidence also says that police officers require more specific training in domestic violence. As stated in Owusu-Ansah, above, it is an error for the RPD to ignore material evidence.

[36]           The RPD failed to consider the totality of the evidence of state protection before it. The RPD referred to the documentary evidence, but ignored the information on how domestic violence is treated by the police in Botswana. The RPD discussed the government’s efforts to deal with domestic violence, but did not mention how the documentary evidence says that even after the Domestic Violence Act was passed in 2008 domestic violence was still not considered a serious crime, and that support services are primarily available only in urban areas. The fact that the government of Botswana is taking steps to ameliorate protection for victims of domestic violence is not enough to establish the existence of state protection, as these services are only available in urban centres. It was an error for the RPD to ignore portions of the documentary evidence that is directly relevant to her claim and which could be said to materially affect the claim (Kaur v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 1015). Further, the RPD ignored the fact that the Applicant had someone persecuting her from within the police force when it conducted its state protection analysis.

[37]           The Applicant also submits that it was unreasonable for the RPD to find that she was never married and thus that she would not come under customary marriage law. The Applicant said that she and her ex-partner lived together, and that she was in a common-law relationship. The RPD did not consider the meaning of a common-law relationship, and had it done so it may have reached a different conclusion.

The Respondent

            Credibility

[38]           The Respondent submits that it was reasonable for the RPD to find that the Applicant’s failure to claim refugee protection in the U.S. undermined the well-foundedness of her fear. Failure to claim is an important factor which the RPD is entitled to consider when weighing a claim for refugee status (Espinosa v Canada (Minister of Citizenship and Immigration), 2003 FC 1324 at paragraph 16). It was reasonable for the RPD to note that if the Applicant truly feared for her life then she would have applied for protection at the first available opportunity, and that her failure to do so is inconsistent with a subjective fear of persecution.

[39]           The Applicant said that she did not claim protection in the U.S. because it is a little rough and there is racism and xenophobia. The RPD simply did not find this explanation persuasive; it is entitled to use common-sense to determine the plausibility of an explanation and the negative inferences outlined above are reasonable (Nnawuihe v Canada (Minister of Citizenship and Immigration), 2005 FC 775 at paragraph 33).

[40]           The Applicant also said in her oral testimony that she went to a hospital for medical attention and that she tried to report her agent of harm to the police in Gaborone but they would not let her. The Respondent submits that the RPD rightly found that these were important omissions, and that the latter went directly to the issue of state protection. The RPD also noted that the Applicant submitted an amended PIF with the assistance of counsel, and that this information was still not included. If a refugee claimant fails to mention important facts, and then later describes the events in oral testimony, this may legitimately be considered by the RPD to be an inconsistency indicating a lack of credibility (Kaleja v Canada (Minister of Citizenship and Immigration), 2011 FC 668 at paragraph 18; Nyayieka v Canada (Minister of Citizenship and Immigration), 2010 FC 690 at paragraph 11; Zupko v Canada (Minister of Citizenship and Immigration), 2010 FC 1319 at paragraph 32).

Internal Flight Alternative and State Protection

[41]           The RPD’s finding of an IFA is determinative of the Applicant’s claim (Thirunavukkarasu v Canada (Minister of Employment and Immigration), (1994) 1 FC 589 (FCA) at paragraph 2).

[42]           The Respondent points out that a state is presumed capable of protecting its citizens (Canada (Attorney General) v Ward, [1993] 2 SCR 689 at paragraph 89). The onus was on the Applicant to adduce evidence to satisfy the RPD on a balance of probabilities that state protection is inadequate (Carillo, above, at paragraph 28). The RPD noted that gender violence is a problem in Botswana, but that the documentary evidence indicated that the state has undertaken serious efforts to address the problem and provide adequate protection and services for victims.

[43]           The RPD determined that, considering the Applicant’s personal circumstances, it would not be unreasonable for her to seek refuge in Francistown or Serowe, and that there is no serious possibility that she would be persecuted there. The Applicant testified that her ex-partner came to her mother’s house once looking for her, and that neighbours reported seeing a car that may have been his. She also testified that her child has remained safely with a friend only two kilometres from where the ex-partner lives. It was reasonable for the RPD to conclude that there was no evidence that the alleged agent of harm still wants to hurt her or would travel to do so.

[44]           The RPD noted the Applicant’s education is far beyond that of the average citizen of Botswana, and she provided no evidence that she would be unable to receive support from her friends and family members, including her mother who assisted her with travelling to Canada. Based on her age, education, work experience, language, and support network, the RPD reasonably found there are no serious social or economic barriers to the Applicant relocating to an IFA.

[45]           The Respondent points out that the RPD is presumed to have read all the documentary evidence, and the fact that it did not cite every document is not enough to rebut the presumption that it weighed and considered all the evidence (Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 at paragraph 1). There is no indication that the RPD ignored contradictory evidence; it acknowledged that gender-violence is a problem in Botswana, and that there are concerns, for example, with legal costs as obstacles for women seeking to access justice. It also acknowledged problems with the dissemination of information, and that state protection efforts are not always perfect.

[46]           The Respondent submits that the RPD clearly did take into account the important contradictory evidence. The Applicant’s position amounts to a disagreement with how the documentary evidence was weighed. This is not a proper basis for the Court to intervene (Giannaros v Canada (Minister of Social Development), 2005 FCA 187 at paragraph 12).

 

ANALYSIS

[47]           The Decision is slightly odd in two respects. First of all, the RPD raises a number of credibility and subjective fear concerns, but then says that “Regardless of my concerns regarding the claimant’s credibility, I find that the claim turns on a viable internal flight alternative.” A reading of the Decision as a whole suggests that the credibility and lack of subjective fear findings have no impact on the final decision.

 

[48]           Secondly, in its IFA considerations, the RPD makes an alternative state protection finding:

There is no objective evidence before me that the alleged agent of harm, Mr. Mathe, still wants to hurt the claimant, or that he would travel to Francistown or Serowe to do so. In any case, I find that the claimant has state protection available to her.

 

 

[49]           Against this general backdrop, I do not think I need to address the Applicant’s concerns about credibility and subjective fear because they are not the basis for the Decision.

[50]           As regards the IFA, there is no suggestion that the RPD intends that the Applicant live in hiding. Francistown and Serowe are large urban centers, and each is a considerable distance from Moshupa where the Applicant resided with her ex-partner. He would have no knowledge of her whereabouts in Francistown or Serowe and there is no evidence that he continues to look for her. Also, there was no objective evidence that the ex-partner still wants to hurt her or that he would travel to Francistown or Serowe to do so. Hence, the first prong of the Rasaratnam test was satisfied and the Applicant has raised no real argument as to unreasonableness in this regard. The Applicant seeks to rely upon the decision of Justice Edmond Blanchard in Huerta, above, but I have to agree with the Respondent that the facts of that case — where the applicant had previously relocated to the proposed IFA, but was tracked down by her common-law spouse who was a trained police interrogator who had assaulted the applicant’s mother — are very different from the present case. Here, the ex-partner has done nothing more than go to the Applicant’s mother’s house after the Applicant left, and there is a complete dearth of evidence as to whether he is even interested in pursuing the Applicant, let alone whether he has the means.

[51]           The RPD’s assessment of the second prong of the Rasaratnam test is also reasonable. The RPD clearly states why, in all of the circumstances, it would not be unreasonable to expect the Applicant to relocate to Francistown or Serowe, and the Applicant essentially takes no issue with the RPD’s findings in this regard.

[52]           This means that the RPD’s finding on the determinative issue of IFA is reasonable and that the Decision cannot be set aside.

[53]           The Applicant takes issue with some of the RPD’s findings on state protection, but even if there were a problem in that regard, the Decision stands on the IFA ground alone. The Applicant does not need to call upon state protection because there is no objective evidence that the alleged agent of harm still wants to hurt the Applicant, or that he would travel to Francistown or Serowe to do so.

[54]           Counsel agree there is no question for certification and the Court concurs.

JUDGMENT

THIS COURT’S JUDGMENT is that

 

1.                  The application is dismissed.

2.                  There is no question for certification.

 

“James Russell”

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                         IMM-3950-12

 

STYLE OF CAUSE:                        MILLIE ITUMELENG MOTHUDI

 

                                                            -   and   -

 

                                                              MINISTER OF CITIZENSHIP AND IMMIGRATION                                                                                   

                                                          

PLACE OF HEARING:                  Toronto, Ontario

 

DATE OF HEARING:                    February 7, 2013

                                                           

 

REASONS FOR JUDGMENT

AND JUDGMENT:                         HON. MR. JUSTICE RUSSELL

 

DATED:                                            March 8, 2013

 

 

APPEARANCES:   

 

Kingsley I. Jesuorobo                                                                         APPLICANT

                                                                                                                    

Charles J. Jubenville                                                                            RESPONDENT                                  

 

                              

                                                                                                                                                                                                                                                                                                                                                                                                                                         SOLICITORS OF RECORD:    

 

Kingsley I. Jesuorobo                                                                         APPLICANT

Barrister and Solicitor

Toronto, Ontario                                                                                

 

William F. Pentney                                                                             RESPONDENT

Deputy Attorney General of Canada