TB1-17925

RPD File No. / N° de dossier de la SPR : TB1-17925 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Claimant(s) XXXX XXXX Demandeur(e)(s) d'asile Date(s) of Hearing April 26, 2013 Date(s) de l'audience Place of Hearing Toronto, Ontario Lieu de l'audience Date of Decision May 22, 2013 Date de la décision Panel Michael Sterlin Tribunal Counsel for the Claimant(s) Peter Obuba Kalu Barrister & Solicitor Conseil(s) du (de la/des) demandeur(e)(s) d'asile Tribunal Officer N/A Agent(e) du tribunal Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre [1] XXXX XXXX (the "claimant") is a citizen of Botswana. She claims protection under ss. 96 and 97 of the Immigration and Refugee Protection Act (IRPA).1 ALLEGATIONS [2] The claimant has three children. She fears her spouse XXXX XXXX. She married on XXXX XXXX XXXX 2000, and had two children from a previous relationship. However, problems started when he lost his job in XXXX 2010. He started to beat her. On XXXX XXXX, 2010, he beat her and her daughters. [3] On XXXX XXXX XXXX 2011, he assaulted and raped her, and threatened her with death. She reported to the police, but they did not help. [4] She moved out to her parents' but he kept calling and threatening her with death, and she went to the police, who did not help. On XXXX XXXX XXXX 2011, he came to his parents' house and beat and threatened her. Thus, she fled to Canada. DETERMINATION [5] The panel finds the claimant to not be a Convention refugee under Section 96, as she does not have a well-founded fear of persecution in Botswana on any of the five Convention grounds. The panel also finds that the claimant is not a person in need of protection under section 97, as, on a balance of probabilities, her removal to Botswana would not subject her personally to a risk to life or to a risk of cruel and unusual treatment or punishment, or to a danger of torture. The panel's reasons are as follows. ANALYSIS [6] The panel considered the issues of credibility. The panel has considered all of the evidence and submissions, including counsel's post-hearing submission, including of documents, dated May 1, 2013 (the "Submission"), and also the Chairperson's Gender Guidelines.2 Identity [7] The claimant's identity as a citizen of Botswana has been established by her testimony and the copy of the identity page of her Botswana passport, in Exhibit R/A-2. Credibility [8] The Panel has concerns in regard to various documents submitted. In Exhibit C-2, there are copies of the Birth Certificates of the claimant's older two children, two girls. The Panel accepts that they are genuine. The problem is that they indicate the claimant's husband ("her husband" or "the husband" herein) to be the father of the girls, and there is no indication therein that he is the adoptive father, as the claimant has alleged. These documents, while apparently issued in 2011, indicate that when the births were originally registered, in the 1990's, the claimant's husband was the father. However, as per the claimant, he was not, as she claims he only adopted them in 2001. [9] The claimant attempted to explain this by saying that around 2011, when she procured these birth certificates just before she left Botswana for Canada, Botswana changed its registration system to allow for this. Counsel was not able to supply any documentation to verify this. As the Panel indicated at the hearing, the Panel examined item 3.9 of Exhibit R/A-1 in this regard, and found nothing to directly support this proposition, although it is indicated there were changes made to increase security of identity of the cards for citizens. The claimant indicated that she turned in her daughters' old birth certificates, which would have named the alleged true biological father, when she got the new ones. [10] Thus, for whatever reason, there is only one document on file to show that the husband is not the father of the two girls. This is the Adoption Order in Exhibit C-2. Unfortunately, the claimant could provide no original of this document, indicating it was scanned and e-mailed from Botswana. The claimant indicated at the hearing that she could provide the e-mail which would show that this document was indeed e-mailed to her as she indicated, but none was provided with the Submission, since, it was indicated, the e-mail had been deleted. The Panel finds it puzzling that the claimant would say at the hearing that the e-mail could be provided, but later indicate that it was deleted. [11] Thus, there is reason to believe that the husband is in fact not the adoptive father of the girls, but in fact the actual, biological, father. However, the Panel cannot be certain enough of this to make a finding, thus it must accept the claimant's allegation on this. [12] In Exhibit R/A-2, the Port of Entry (POE) Notes, IMM 5611, question 43, the claimant indicated to Immigration: "I am afraid of him because I have been emotionally assaulted and raped by him". However, she indicated in her PIF Narrative and at the hearing that in addition, he physically assaulted as well as raped her. She was thus asked why she omitted in the POE Notes to say that he beat her, and she replied by saying that she thought she did say that. It was again pointed out to her that she apparently had not, and she was asked to confirm that she read her statement at the POE before signing. All she could say was that it was "scary", which is an inadequate explanation. Thus, the Panel finds the omission of the beatings at the POE to be a significant omission, from which the panel makes a negative inference as to credibility. [13] The claimant indicated that she took no steps to divorce her husband, even from Canada. When asked why, she cited the cost, which counsel indicated could be over $1,000. It is possible that cost could be a deterrent. On the other hand, the Panel might have expected the claimant to take steps to legally separate herself from the man she said has repeatedly abused her, and from whom she fled across the ocean, now that she is free to do so in Canada. The panel will not make any negative inference as to credibility from this, it will simply note that her claim may have been stronger had she been able to document that she is taking steps to disassociate herself from her husband, whom she says she has no plans to ever return to. The Panel incidentally notes that in the POE Notes she gave a different reason for not divorcing him, that she did not have the courage. However, the Panel neglected to question the claimant on this potential inconsistency at the hearing. [14] The claimant indicated that her husband beat her about 2-3 times per week, from XXXX 2010 to XXXX 2011. That is most likely over 100 beatings, a very significant amount. However, she only complained to the police after all these alleged beatings, in XXXX 2011 (that is, after saying she first called the police in XXXX 2010, which the Panel will attribute to confusion). She was asked why she would not complain to the police of so many beatings, but just, apparently, continue to take them. She said it was because he apologized, and she felt she had to try to keep the relationship going. The Panel can appreciate, as per the Gender Guidelines, that a woman may indeed have such a sentiment. However, the sheer vast number of these beatings makes this proposition difficult to accept. The claimant could not document any of these beatings except by the hospital and police report in regard to the alleged beating of XXXX XXXX XXXX 2011, discussed below. The Panel would have expected the claimant to at least make some effort to protect herself before allowing herself to be beaten some 100 times. The Panel notes that the claimant did not suggest that recourse to the police would not be helpful. In fact, there is an indication that she believed it could be helpful, as she alleged that she did in fact finally complain to the police, twice in fact. She did not allege that she investigated any shelter or potential help from any other organization. The Panel thus finds that the claimant made insufficient efforts to avail herself of the protection of her own state before coming to Canada. The Panel finds that if the claimant were truly beaten some 100 times in 10 months, then she would have reported her husband to the police, tried to take shelter, or do something to put herself out of harm's way. It is entirely possible that if the claimant had reported her husband to the police after the first beating, or after a few beatings, then he may have been constrained from beating her again. [15] The claimant testified that the husband beat her daughters twice, in XXXX and XXXX 2010. She was asked why she only mentioned one such beating in the Narrative, the XXXX 2010 alleged beating, and all she could say was that she did so indicate in her Narrative. However, she did not. All she wrote was that he abused them in XXXX, but specifically wrote that he beat them up in XXXX. From this, thus, the panel makes a negative inference as to credibility, albeit a minor one as there is a possibility "abuse" could include beating up. [16] In Exhibit C-2 there is a police and medical report. There are some evidentiary issues with these. The claimant was asked who sent her these documents, and she said her mother. However, on the packing slip on the envelope examined at the hearing, the claimant's daughter XXXX was indicated as sender. When asked to explain, the claimant said she asked for the documents from her mother, and she did not notice who sent it. However, she had said her mother sent them, so from this the panel makes a negative inference as to credibility. [17] Further, the police report, the original of which was examined at the hearing, has original handwriting on it. However, the form itself is not original, but a copy, as indicated by the lines on the left side. The claimant could not explain why this would be, and the Panel would expect an official police report to not be written on a photocopy. Thus, the Panel has doubts as to the genuineness of these important documents, and for this reason assigns these documents lesser weight than it otherwise would. [18] The claimant indicated that she complained to the police again after her husband threatened her after, but could not provide any report in regard to this alleged complaint, because, she said, she did not follow up to get such a report. Thus, this second and final recourse to the authorities remains undocumented. She as well did not report to the police the alleged attack of XXXX 2011, which she says caused her to leave her children and country, because, she said, she was discouraged. [19] The claimant alleged in her Narrative that she left her children with her mother. However, it turns out that they are now with the allegedly abusive husband, whom she alleges in fact regularly abused these same children. When asked why they are with him, she said he took them from her mother's. However, her mother did not take any legal action to get the children back, since, she said, her mother felt the husband had a legal right to them, and if the claimant could have at least provided documents which might show that her mother contested this, then the claimant could have corroborated her allegation that the children are with the abusive husband against her will. However, no legal action was taken. This is further indication that the husband is not abusive as the claimant alleges. The claimant in addition claims to have no knowledge as to the welfare of her children, or whether her husband is abusing them, and the Panel would expect the claimant to be keenly concerned and informed about this, and not drawing a complete blank like she says she is. [20] Considering all the above, the panel finds that the claimant's evidence, overall, has not been credible, and is insufficient to support the claimant's claim for refugee protection. With respect to state protection, the Panel has found that the claimant made woefully inadequate efforts to access same in Botswana before she came to Canada. The Panel does note that as per the documents before the Panel, state protection for abused women in Botswana may not be, generally, adequate, for a number of reasons. There is, though, some level of and attempt at state protection in Botswana, as evidenced by the fact that, as per the claimant's evidence, they at least took her report and promised to help, although she says they did not. However, there is some progress, for example, since in 2008 the Domestic Violence Act was passed. It sets out detailed mechanisms by which persons can complain about domestic violence, and sets out powers of the authorities may arrest, detain and remove persons. It also indicates that despite the new law, problems remain. [21] The issue here, though, is that the claimant refused to seek state protection until the very end, even if her evidence were to be believed. The Panel stresses again that this failure to access state protection was not due to perceived weaknesses therein, but due to the claimant's personal reasons. Her utter failure, until the very end, to seek any help is simply no believable. This is a credibility finding rather than a finding on state protection. CONCLUSION [22] For the foregoing reasons, the panel finds the claimant to not be a Convention refugee under s. 96 nor a person in need of protection under s. 97. For these reasons, the claim is rejected. (signed) ' M. Sterlin ' M. Sterlin May 22, 2013 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, sections 96, 97(1) (a) and 97(1) (b). 2 Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, March 9, 1993, Update, November 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RPD.15.7 (May 18, 2010) Disponible en français RPD.15.7 (May 18, 2010) Disponible en français RPD File No. / N° de dossier de la SPR : TB1-17925 RPD File No. :TB1-17925