Date: 20040915
Docket: IMM-3559-03
Citation: 2004 FC 1248
Ottawa, Ontario, this 15th day of September, 2004
Present: The Honourable Justice James Russell
BETWEEN:
JOY NOSA
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision made by a Pre-Removal Risk Assessment Officer ("Officer") dated April 16, 2003 ("Decision"), and communicated to the Applicant on April 29, 2003 by a letter dated April 22, 2003.
BACKGROUND
[2] The Applicant is a female citizen of Nigeria who was born on April 7, 1965. On October 5, 2002, she married Kelly Obas, a citizen of Nigeria, who was found to be a Convention refugee by the former Convention Refugee Determination Division on May 14, 2002.
[3] The Applicant entered Canada for the first time on January 23, 1997 and claimed refugee status. At that time she was married to John Edosa and came to Canada because, as she stated, "John Edosa and I were being persecuted by the Nigerian government." She returned to Nigeria in March of 1997, having been advised by Mr. Edosa that "he had been set free and that the problem facing us was now over." The Applicant did not advise Canadian Immigration authorities that she was leaving Canada, although she had been issued a conditional departure order.
[4] The Applicant returned to Canada on December 18, 2001 and tried to assert a claim to Convention refugee status. When she entered Canada she was found to be ineligible to make a claim because she had not obtained confirmation of her departure from Canada Immigration prior to her departure in 1997. The Applicant stated in her response to Items 51 and 53 of her PRRA application that she fled Nigeria in December of 2001 because her husband at that time, John Edosa, had died on October 15, 2001. She stated that, pursuant to cultural practices within her ethnic group, the Edo tribe, widows are subjected to treatment which the Applicant described with the words "persecution" and "torture."
[5] The Applicant said that the family of Mr. Edosa forced her to perform various "burial rites" immediately after his death. She was required to wear a black dress for at least a year. She said that she was subjected to "hardship and dehumanizing treatment" for seven days. She described the situation as follows:
I was made to sit and sleep on the bare floor; eat with my left hand despite the fact that I was a right handed person, and with unwashed plates used in serving me food while the rite lasted. This was followed by making me to drink the water used in bathing the body of the deceased, coupled with the ceremonial oath of eating the Kola-nut with pubic hair and nails taken from the body of the deceased, to sweat on it and eat. And on the final day of the rite, I was stripped naked at about 3 or 4 am early in the morning and asked to walk around a couple of streets shouting some incantations seven times. All this hardship and torture I was made to perform by my late husband's family.
[6] The Applicant went on to describe how, within weeks after the performance of the burial rite, she and her child were "given" to her late husband's brother, Chief Ogie Edosa. As the Applicant stated, "I was to be his wife." She fled to her parents' home, but they refused to let her stay, urging her to return to her late husband's family who, they said, now "owned" her.
[7] The Applicant said that, on November 29, 2001, six men forcibly abducted her from her parents' home and brought her back to Chief Edosa's house. She says she was forcibly confined to a room where her hands were tied to the rail of a wooden bed. She says she was raped by Chief Edosa nearly everyday for a period of two weeks. She says that she escaped with the assistance of one of Chief Edosa's wives who helped her to flee to a safe place that had been arranged by her mother. From there she made arrangements to leave Nigeria.
[8] The Applicant described her situation in Canada as follows:
Since I have been in Canada, I have grown close to and I have married Mr Kelly Itua Obas, who was found to be a Convention Refugee on May 14th 2002 by the then CRDD. Kelly and I were married on October 5th 2002. Attached hereto is a copy of my husband's Personal Information Form. I fear that in addition to the problems that I have referred to in the paragraphs above, that if I were to be required to return to Nigeria, that the same people who persecuted him, i.e. the State Security Service and police, would persecute me, simply because I am his wife.
[9] The Applicant was served with notification that the Department of Citizenship and Immigration would entertain an application for a Pre-Removal Risk Assessment ("PRRA"). The Applicant's PRRA Application form was delivered to 6855 Airport Road on January 29, 2003.
[10] Further evidence and submissions from the Applicant were delivered to 6855 Airport Road on February 12, 2003 and February 13, 2003. Both are dated February 12, 2003. In the first package, counsel expressly requested that the PRRA Officer give consideration to conducting an oral interview with the Applicant. The Applicant's counsel wrote as follows:
Please note that Ms. Nosa has not been before the CRDD. She initiated a claim to refugee status when she arrived in Canada in 1997, but departed three months later, prior to the adjudication of the claim. Because Ms. Nosa did not notify Canada Immigration of her departure in 1997, she was deemed to be ineligible to initiate a refugee claim upon her arrival in December of this past year.
For this reason, we urge the officer charged with PRRA determination to give serious consideration to the circumstances set out in Section 167 of the Regulations with respect to determining if an oral hearing is required. The applicant would be pleased to attend, as would I, at a mutually agreeable date.
[11] On April 2, 2003, prior to the rendering of the Decision, the Applicant's counsel forwarded by fax a copy of an email message containing a letter from an expert, Dr. Patience Elabor Idemudia, Ph.D., Associate Professor of Sociology at the University of Saskatchewan, on the situation of Edo women in Nigeria. On April 7, 2003, the original letter containing the same text as the April 2 letter was delivered to 6855 Airport Road by courier. Professor Elabor-Idemudia wrote as follows:
My name is Dr. Patience Elabor-Idemudia and I am Professor of Sociology at the University of Saskatchewan. I am an African Canadian who comes originally from Nigeria and Edo State in particular. I am quite familiar with the traditional practices of Edo people regarding widowhood by virtue of being from that culture and by virtue of years of teaching courses on the family that explore cross-cultural dimensions including those in Africa. Additionally, I am also a member of the Women's Rights Watch group in Nigeria and have been very involved with advocating for Widowhood Rights in Nigeria and Edo State. A bill was recently passed (in 2002) in Edo state to ensure that the abuse of widows in Nigeria is curtailed. The framework for successful implementation of the bill is currently being worked out.
I have read Ms. Joy Nosa's story of the death of her spouse and her subsequent ordeal in the hands of her in-laws. Her experience is not uncommon among Edo people in Nigeria whose reaction to the death of a relative often results in blaming a surviving spouse. The burial rites tend to punish such a surviving widow by subjecting her to humiliating and unpleasant treatment similar to those described in Ms. Nosa story. The unpleasant treatment administered to the widow is seen as atonement for whatever role she may have played in the death of her spouse. There is no burden of proof (other than being a female survivor) required for the illtreatment to be administered. It is interesting to note that similar standards are not applied to widowers because they are males and more valued.
If the circumstances iterated in Ms. Nosa's story under which she fled from Nigeria are true (and which I believe to be possible), she is most likely to face further persecution and hardship if she is made to return to the Nigeria. This is because she is now regarded as a traitor who has defied the customary/traditional practices of her family of procreation and, therefore, deserves to be punished without any questioning from her family of orientation and the law. It is this fact that informed interest groups to lobby and pressure lawmakers to pass the Widowhood Rights Law in Edo State. Many widows have suffered under the guise of tradition and continue to suffer in the hands of in-laws upon the death of their spouses. Some have actually been maimed or killed in the process without any consequence for the perpetrators of such acts.
On the issue of going to the police or law enforcement agents in Nigeria, it is a waste of time to do so as justice only goes out to those who have money to bribe the law enforcement agents. Ms. Nosa did the right thing in escaping the country if her brother-in-law, Mr. Edosa is as powerful and connected as she claims. Hired assassins are quite common in Nigeria and if a person feels aggrieved enough to want to eliminate a perceived offender, he or she can do so through the use of hired assassins. Moreover, cases reported to the police in Nigeria take very long to investigate and in the interim, anything can happen to the complainant including mysterious death.
Based on the account of Ms. Nosa's ordeal, I find her to be deserving of consideration for asylum here in Canada. The passing of the Widowhood Rights in Edo State is no guarantee that its implementation will be adequately administered right away as the framework for implementation is still being developed. In the time being, widowhood cases are being handled on a case-by-case basis that is still experimental. It is difficult to evaluate how successful the new law is in helping widows in view of its relative newness.
[12] The evidence of Professor Elabor-Idemudia is nowhere referred to in the text of the Officer's reasons, although the Officer states that, among the sources consulted, she has considered the "Submissions of the applicant in their entirety." However, the sentence identified below, appears in the Officer's summary under the heading "Risks Identified by the Applicant":
The applicant, Joy NOSA, alleges that if she is returned to Nigeria she will suffer humiliating and unpleasant treatment by her in-laws because of the death of her husband. She is most likely to face further persecution and hardship as she is now regarded as a traitor who has defied the customary/traditional practices of her family.
[13] The text of Professor Elabor-Idemudia's letter uses the following distinctive phrasing:
... she is most likely to face further persecution and hardship if she is made to return to the Nigeria. This is because she is now regarded as a traitor who has defied the customary/traditional practices of her family of procreation and, therefore, deserves to be punished without any questioning from her family of orientation and the law.
DECISION UNDER REVIEW
[14] The Officer determined that the Applicant would not be subject to risk of persecution, torture, or risk to life of cruel and unusual treatment or punishment if returned to Nigeria because: (i) there was no objective basis; (ii) there would be adequate state protection; and (iii) in any event, an internal flight alternative was available to the Applicant.
[15] The Applicant alleged that she would be subjected to death rituals, and forced to marry Chief Edosa, the brother of her dead husband. In concluding that there was no objective basis for the Applicant's fears, the Officer noted that the documentary evidence revealed that death rituals occur immediately after the death of the spouse and may continue for up to one year. Furthermore, the state of Edo has enacted laws to protect widows from death rituals. Additionally, the Officer noted that the documentary evidence provided that forced marriages did not occur in the state of Edo. The Officer also noted the fact that the Applicant was now married to a Canadian citizen who has lived in Canada since 1991.
[16] Accordingly, the Officer concluded that, given the documentary evidence, the Applicant's fear that she would be subjected to death rituals and forced to marry was not objectively well-founded.
[17] The Officer further determined that adequate and meaningful state protection would be available to the Applicant. In this regard, the Officer noted that the Applicant had failed to demonstrate that she had complained to or sought protection from any available avenue of recourse in Nigeria prior to leaving for Canada. The Officer noted, in particular, that laws had been enacted in Edo state to protect widows from death rituals, and generally that Nigeria is a democratic state possessing political and judicial institutions capable of protecting its citizens, and that the Nigerian government has made serious efforts to orchestrate protection for its citizens and continues to improve the standard of protection.
[18] The Officer alternatively concluded that the Applicant had a viable internal flight alternative. In this regard, the Officer noted that the Applicant had the option of living elsewhere in Nigeria, and that the documentary evidence disclosed that there were many major cities in Nigeria other than Benin. The Officer noted that by taking up residence outside of Benin she could avoid her deceased husband's relatives. The Officer also noted that there was insufficient evidence to indicate that the deceased husband's family would even know of her return or her whereabouts. Accordingly, the Officer was satisfied that there existed no serious possibility of persecution in some other part of Nigeria and that it would not be unduly harsh to expect the Applicant to move to another less hostile part of the country before seeking refugee status abroad.
[19] With respect to the grounds of protection set out in s. 97 of the Immigration and Refugee Protection Act ("IRPA"), the Officer held that ss. 97(1)(a) did not apply because there was no evidence of torture inflicted by or at the acquiescence of the state, and that the Applicant had not met the requirements of ss. 97(1)(b) due to the availability of state protection and, in the alternative, the availability of an internal flight alternative.
ISSUES
[20] The Applicant raises the following issues:
Did the Officer err in law in that she ignored and therefore failed to consider one of the grounds of risk identified by the Applicant, i.e. risk that she might face from the same agents of persecution identified by her husband who was found by the former CRDD to be a Convention refugee on May 17, 2002?
Did the Officer err in law in that she ignored the evidence of Professor Elabor-Idemudia, a professor of Sociology at the University of Saskatchewan, which evidence addressed the very issues which the Officer considered to be critical in reaching her conclusion that "Nigeria can afford state protection to the applicant?"
Did the Officer err in law in that she misinterpreted and/or drew incorrect inferences from documentary evidence before her?
Did the Officer err in law in that she did not conduct an oral interview of the Applicant?
ARGUMENTS
Applicant
Ignoring Ground of Risk
[21] The Applicant says that the Officer erred in law because she ignored and failed to consider a very important ground of risk identified by the Applicant. The Applicant stated in her Response to Item 53-54 of the PRRA Application Form, delivered on February 12, 2003, that an additional reason why she feared to return to Nigeria was her status as the wife of a man she had married in Canada who had been found to be a refugee by the CRDD on May 14, 2002. She stated as follows:
Since I have been in Canada, I have grown close to and I have married Mr. Kelly Itua Obas, who was found to be a Convention Refugee on May 14th 2002 by the then CRDD. Kelly and I were married on October 5th 2002. Attached hereto is a copy of my husband's Personal Information Form. I fear that in addition to the problems that I have referred to in the paragraphs above, that if I were to be required to return to Nigeria, that the same people who persecuted him, i.e. the State Security Service and police, would persecute me, simply because I am his wife.
[22] The Applicant submits that the submission package delivered on February 12, 2003 contained a copy of Mr. Obas' Personal Information Form as well as the Notification of Decision wherein Kelly Obas was determined to be a Convention refugee. Counsel's package delivered February 13, 2003 contains the following submissions with respect to this ground of risk:
As well, Ms. Nosa is the wife of a Canadian citizen who was found to be a Convention refugee on May 14th 2002. It will be seen from the Personal Information Form of Kelly Obas, attached hereto that Mr. Obas was persecuted by agents of the state, including agents of the National Security Forces. This being the case, it is submitted that Ms. Nosa has nexus to the grounds of political opinion and membership in a particular social group on account of her status as the wife of Mr. Obas, whose fear of persecution has been held by the CRDD to be well-founded.
...
[23] The Applicant also says that, as the spouse of a Convention refugee from her own country who has been persecuted by agents of the state, she faces harm from the state of a kind and severity that also comes within Hathaway's first tier of his hierarchy of harm. It can only be inferred that there is more than a mere possibility that the treatment meted out to Kelly Obas while he was detained and imprisoned would be imposed upon Ms. Nosa. The Department of State Reports on Human Rights for 2001 confirm that the state does commit human rights abuses. In any event, this is implicit in the CRDD finding that Mr. Obas is a Convention refugee.
[24] The Officer is required to present her decision in the form of a template that contains a section entitled "3 Risks Identified by the Applicant". Nowhere in that section does the Officer make any mention of any risk that might affect the Applicant as a result of her status as the spouse of Kelly Obas. Although the Officer acknowledges the existence of the marriage, nowhere in the text of the Officer's written reasons is any mention made of this ground of risk.
[25] The letter delivered to the Applicant dated April 22, 2003, notifying her that her PRRA application had been rejected stated in its first paragraph as follows:
In accordance with the Immigration and Refugee Protection Act and the Regulations, your application for a Pre-Removal Risk Assessment (PRRA) has been reviewed carefully in order to determine if you are at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment.
[26] But the Applicant says that failure to consider a ground in respect of which abundant evidence has been presented, and strong representations have been made, is a dereliction from the duty of care which is either implicit in the statutory responsibilities of a PRRA officer and/or which the Officer purported to apply. The Officer erred in law in failing to exercise her jurisdiction to make a determination based upon a ground of risk expressly identified by the Applicant. This amounts to a failure to exercise jurisdiction.
Ignored Expert Evidence
[27] The Applicant also says that the Officer erred in law in that she ignored the evidence of an expert who offered an opinion with respect to issues that the Officer expressly or impliedly identified as determinative of the Applicant's PRRA application. It cannot be reasonably concluded that the Officer had no familiarity with Professor Elabor-Idemudia's letter, given that the Officer incorporated into her reasons wording that is virtually identical to a passage in that letter. Hence, the Applicant submits that the Officer acted with perverse and capricious disregard for evidence before her which was of the utmost relevance to the only ground of risk identified by the Applicant that the Officer did consider.
[28] The Applicant points out that this Court has held that a decision-maker errs when he or she ignores evidence that is cogent and relevant to the decision to be made. Mr. Justice Rouleau set out the relevant criteria for determining when omission of mention of evidence will result in reviewable error in the case of Toth v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1518, as follows:
...
Finally, my examination of the Certified Tribunal Record indicates that the panel erred in law in giving no weight to the psychological evidence of Ms. Frizzell that was properly before it, and by failing to give reasons for rejecting the totality of this expert's evidence. This Court has stated that while a tribunal is not required to refer explicitly to, or to analyse, every item before it in evidence that tends to negate a finding of fact that a tribunal has made, much depends upon the relevance and cogency of the evidence, and upon its importance to the ultimate decision on the fact to which the evidence relates. Thus, the Court will not require the CRDD panel to accept the psychiatric evidence as a whole but only to give it proper consideration.
In the case at bar, I am satisfied that in making its finding to give no weight to the expert report of Ms. Frizzell, the panel did not come to grips in its reasons with the content of that report and did not explain why it dismissed it. A careful review of Ms. Frizzell's report and the transcript of her viva voce evidence at the hearing can only lead me to conclude that the report had such cogency that it was a fatal error for the panel not to have expressly addressed this evidence in its reasons.
...
[29] The Applicant says that the letter from Professor Elabor-Idemudia had sufficient relevance, cogency, and "importance to the ultimate decision on the fact to which [it] relates" that the Officer's failure to consider it at all amounts to the kind of "fatal error" to which Mr. Justice Rouleau refers in Toth.
[30] The Officer states in her Decision that "further documentary evidence reveals that three states, Enugu, Edo and Oyo have enacted laws protecting widows from some of the punitive and harmful rites they go through." But Professor Elabor-Idemudia made the following point:
The passing of the Widowhood Rights in Edo State is no guarantee that its implementation will be adequately administered right away as the framework for implementation is still being developed. In the time being, widowhood cases are being handled on a case-by-case basis that is still experimental. It is difficult to evaluate how successful the new law is in helping widows in view of its relative newness.
[31] The Applicant says that the Officer quotes from the DOS Report for Nigeria with respect to the adequacy of the police force and thereafter presents unattributed information with respect to the adequacy of the judiciary. The Officer also quotes from the Nigerian Constitution pointing out that it prohibits torture, inhuman or degrading treatment as well as discrimination in the application of law on the basis of gender, ethnicity, and religion. The Officer comes to the conclusion that "based on all the evidence before me, I find that Nigeria has adequate and meaningful state protection available to its citizens," and says that "Nigeria can afford state protection to the Applicant." Professor Elabor-Idemudia, however, does not believe that adequate protection is available to the Applicant:
On the issue of going to the police or law enforcement agents in Nigeria, it is a waste of time to do so as justice only goes out to those who have money to bribe the law enforcement agents. Ms. Nosa did the right thing in escaping the country if her brother-in-law Mr. Edosa is as powerful and connected as she claims. Hired assassins are quite common in Nigeria and if a person feels aggrieved enough to want to eliminate a perceived offender, he or she can do so through the use of hired assassins. Moreover, cases reported to the police in Nigeria take very long to investigate and in the interim, anything can happen to the complainant including mysterious death.
[32] The Applicant submits that the Officer erred in that the evidence of Professor Elabor-Idemudia was sufficiently compelling that, for the Decision to have conformed to the standard set out in Toth, the Officer should have "come to grips with its content" and provided reasons why she did not accept its conclusions.
Insufficient Evidence About Edo State
[33] The Applicant further says that the Officer erred in that her reasons disclose a perverse and capricious disregard for the evidence before her. For example, the Officer states that "further documentary evidence reveals that three states, Enugu, Edo and Oyo have enacted laws protecting widows from some of the punitive and harmful rites they go through." The Officer goes on to discuss the situation in Oyo State and then the situation among the Igbo. Although the Applicant stated that she is of Edo ethnicity and that she has always lived in Edo State, the Officer does not refer to any documentary evidence which deals specifically with laws protecting women in Edo state. Hence, the Officer did not provide sufficiently clear and detailed reasons for her finding that persons similarly situated to the Applicant enjoy state protection.
Failure to Disclose Documentary Evidence
[34] The Applicant points out that the Decision makes reference to documentary evidence the source of which is not disclosed and which is presented as if it were the Officer's own words. At the bottom of page 4 of the Decision, after including a quotation from the Nigerian Constitution, the Officer commences a paragraph flush with the margin beginning with the words "According to the Report on Sexuality Information... ." The Applicant assumes that the Officer is following the convention that text that is not indented and not distinguished with quotation marks or footnotes is that of the author of a given document. However, the paragraph commencing at the bottom of this page is not footnoted and, although it purports to be the original observation or paraphrase of the Officer herself, it is not. The identical paragraph is to be found on page 1 of IRB Info Request NGA32948.E.
[35] In the case of Zrig v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1037, this Court held that a CRDD panel erred when it very selectively presented and relied upon country condition documentation to deny the refugee claim of an applicant from Tunisia. The Court stated as follows on this issue at paras. 3 and 4:
The large number of extracts from the documentary evidence reproduced in the panel's decision were the principal evidence which led it to doubt the applicant's credibility and to condemn the activities of the El-Nahdha group in which he had important responsibilities. Accordingly, it is clear that the content of these extracts had a determining influence on the whole decision.
A comparison between the complete documents and the passages cited in the decision indicates significant omissions, whether of punctuation, words or complete phrases, the effect of which is to confuse the reader or even to mislead him as to the true source of the information, the identity of the author of certain words and the very existence of views opposed to those set out. In view of the extensive and cogent documentation submitted to the panel on the general situation of human rights in Tunisia, in particular Exhibits P-8, P-10, P-11, P-13, P-17, P-19, P20, P-21 and A-12, the selection and reproduction of the documentary evidence made by the panel lead me to conclude that it intended to present only the position of the Tunisian authorities and ignored important points in the evidence of opposed positions contained in the record.
[36] This Court found in the case of Kazi v. Canada (The Minister of Citizenship and Immigration), [2002] F.C.J. No. 223 that a PCDO committed a reviewable error when her findings of fact were compared to, and found not to be supported by, the DOS Country Reports on Human Rights Practices upon which the PCDO purported to rely. The Court stated as follows at para. 23:
In this case I am of the view the PCDO's findings of fact were patently unreasonable because many of the material findings of fact she made cannot be supported by the evidence: in some cases, the PCDO ignored or misconstrued the evidence and in others, she based the findings on assumptions without any evidentiary foundation.
[37] The Applicant says that if patent unreasonableness is the standard to be applied to the Decision of the Officer, then the Kazi decision is authority for the proposition that the errors made by the Officer in her determinations in respect of the Applicant, cited above, constitute reviewable error.
Oral Hearing
[38] The Applicant also says that the Officer erred in law when she failed to exercise her jurisdiction to consider whether an oral hearing should be conducted in respect of the Applicant's allegations of risk. In the PRRA decision template, item 7, the Officer indicates that she considered whether an oral hearing was required. But the Applicant says that the Officer neglected to give any consideration to the risk identified by the Applicant with respect to her status as the wife of a person who had been found to be a Convention refugee in Canada. It follows that the Officer failed to ask herself the questions required of her by s. 113 of the IRPA, and s. 167 of the Regulations which read as follows:
| 113. Consideration of an application for protection shall be as follows:
...
(b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;
167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:
(a) whether there is evidence that raises a serious issue of the applicant's credibility and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would justify allowing the application for protection.
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113. Il est disposé de la demande comme il suit_:
...
b) une audience peut être tenue si le ministre l'estime requis compte tenu des facteurs réglementaires;
167. Pour l'application de l'alinéa 113b) de la Loi, les facteurs ci-après servent à décider si la tenue d'une audience est requise :
a) l'existence d'éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne la crédibilité du demandeur;
b) l'importance de ces éléments de preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments de preuve, à supposer qu'ils soient admis, justifieraient que soit accordée la protection.
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[39] While the legislation is clear that it is not mandatory for a PRRA officer to conduct an oral hearing, the legislation requires that an officer must apply, in the case of each applicant, the criteria set out in IRPA and its Regulations in order to determine whether a hearing is required. The ground of risk identified by the Applicant as flowing from her status as the wife of Kelly Obas involved significant credibility issues, was central to the determination, and, if true, would have justified a positive determination by the Officer.
[40] Had the Officer applied the statutory test and taken into consideration that the Applicant had never before had her credibility tested, as she had not appeared before the CRDD or RPD, and that the facts upon which this ground of risk was based occurred after the Applicant's most recent arrival in Canada, and that the CRDD had found that the husband's claim was well-founded, a decision to conduct an oral hearing should have been viewed as a reasonable possibility.
Respondent
[41] The Respondent says that the fact the Officer made no reference in her notes to the Applicant's stated fear of return to Nigeria due to her recent marriage to a successful Nigerian refugee claimant does not constitute a reviewable error. The Applicant's fear on this basis was clearly lacking any evidentiary foundation and is without merit. Accordingly, the Officer did not err in failing to record it in the notes as one of the "identified risks." Furthermore, the Officer clearly considered this aspect of the Applicant's case, as the notes indicate that the submissions of the Applicant were considered in their entirety.
[42] The Respondent denies that the Officer ignored, misconstrued or misapplied Professor Elabor Idemudia's letter dated April 1, 2003.
[43] The Respondent says that even the Applicant concedes that it cannot reasonably be argued that the Officer ignored this letter, as portions of it appear to be directly quoted in the notes. The Applicant nonetheless argues that the Officer erred in respect to the weight afforded to the letter. The fact that the Officer chose to rely upon and prefer other documentary evidence does not establish that there has been a reviewable error.
[44] As stated by Thurlow, C.J. as he then was, in Brar v.Canada (Minister of Employment and Immigration), [1984] F.C.J. No. 19 (F.C.A.):
In our opinion, the points argued by counsel for the Applicant raise only questions of credibility and of the weight of evidence and afford no legal basis upon which this Court could properly interfere with the decision of the Immigration Appeal Board.
See: Castro v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 787
[45] The Respondent says that the Officer did not err in failing to provide an oral hearing. The central issues in this case were state protection and the viability of an internal flight alternative, neither of which justified the need for an oral hearing, or met the test set out in s. 167 of the Immigration and Refugee Protection Regulations.
ANALYSIS
[46] The Decision is based upon three separate and distinct grounds: a) no objective basis for the Applicant's fear of persecution and/or risk of torture, death or cruel and unusual treatment; b) the availability of adequate state protection; and c) the availability of an internal flight alternative.
[47] Nowhere in her submissions does the Applicant directly challenge the Officer's finding that an internal flight alternative was available to her. This means that the Officer's position on this issue must stand.
[48] The various grounds of review raised by the Applicant attack the "no objective fear" and "adequate state protection" findings. They do not, with one possible exception, attack the alternative flight alternative finding.
[49] That possible exception is the allegation by the Applicant that the Officer failed to consider one of the grounds of risk identified by the Applicant: i.e. that she would face the same agents of persecution identified by her present husband (the State Security Service and police) who was found to be a Convention refugee on May 17, 2002.
[50] The Respondent's answer on this ground is that the Officer did not err in failing to record this risk in the notes but, in any event, the Officer "clearly considered this aspect of the Applicant's case, as the notes indicate that the submissions of the Applicant were considered in their entirety."
[51] In view of the fact that the Officer had before her the Personal Information Form of the Applicant's husband, Mr. Obas, and the favourable determination that he had been granted refugee protection in Canada, I do not regard the Respondent's arguments on this issue as adequate. The Officer's failure to identify, consider and explain her position on this separate risk was patently unreasonable and a reviewable error. She failed to exercise her jurisdiction and she ignored cogent evidence of risk and/or failed to give reasons for rejecting it.
[52] The issue is, then, whether this failure by the Officer is fatal to a Decision that contains a separate finding on internal flight alternative that goes unchallenged by the Applicant.
[53] I am of the view that it is fatal because the feared agents of persecution (the State Security Service and the police) might well have had a material impact upon the Officer's views concerning the availability of an internal flight alternative. I believe it would be unsafe if this matter is not fully considered.
[54] Hence, I am of the view that the Officer committed a reviewable error when she failed to record, consider and address the Applicants asserted risks based upon her fear of persecution from the agents who had persecuted her husband, Mr. Kelly Itua Obas, who has been found to be a Convention refugee.
[55] Because I have decided this matter on a narrow ground, I have considered whether, upon return, the grounds for reconsideration should be correspondingly narrow. However, the wisdom of both counsel has persuaded me that I should not impose limitations in this way.
[56] At the beginning of the hearing, Respondent's counsel made the now regular request that the style of cause be amended to reflect the fact that on December 12, 2003, the Governor in Counsel transferred various duties from the Minister of Citizenship and Immigration to the Canada Border Services Agency and the Pre-Removal Risk Assessment function had been transferred to the CBSA which is presided over by the Solicitor General of Canada. This amendment to the style of cause has the consent of the Applicant. Counsel for the Respondent kindly provided the Court with a separate draft order to deal with this issue, but I think it best if we deal with all matters in one order.
ORDER
THIS COURT ORDERS that
1. The style of cause in IMM-3559-03 is amended as follows:
"The Minister of Citizenship and Immigration" is removed and the "Solicitor General of Canada" is added.
2. The Application is allowed and the matter is returned for reconsideration by a different officer.
3. There is no question for certification.
"James Russell"
JFC
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3559-03
STYLE OF CAUSE: JOY NOSA v. SOLICITOR GENERAL OF CANADA
DATE OF HEARING: June 17, 2004
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Russell
DATED: September 15, 2004
APPEARANCES BY: Mr. Clifford Luyt For the Applicant
Ms. Bridget O'Leary
For the Respondent
SOLICITORS OF RECORD: Ms. Patricia Ann Ritter Toronto, Ont. For the Applicant
Ms. Bridget O'Leary
Department of Justice Ontario Regional Office.
130 King St. W. Suite 3400, Box 36 Toronto,Ont.
M5X-1K6
For the Respondent
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