Date: 20011025
Docket: IMM-6503-00
Neutral citation: 2001 FCT 1159
BETWEEN:
LYDIA ORITSEWEYINMI ADODO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated December 5, 2000, wherein the Board determined that the applicant was not a Convention Refugee.
[2] The issue is whether the Board erred by misconstruing the documentary evidence on female genital mutilation (FGM) and the applicant's evidence with respect to her three sisters, and the evidence with respect to the National Chairman of the Volleyball Association.
[3] The Board stated, with respect to the National Chairman:
She claims that she was allowed to attend in Canada for the competition because of Alhaji's close relationship with the National Chairman of the volleyball association. She did not know the National Chairman's last name, she did not know his full-time job or where he lived, despite the fact that she was on the team.
This is an error because she stated twice in the transcript the National Chairman's first name and his last name. Furthermore, in my view, it is not a proper inference to say she did not know the National Chairman because of the fact that she was on the national volleyball team in Nigeria and the junior world cup competition in Saskatoon and that she did not know where the Chairman lived or his full-time job. This is a patently unreasonable inference, particularly in light of the fact that the Board did not even acknowledge that she did know the National Chairman's first and last name.
[4] The Board's findings with respect to the three sisters not being circumcised were probably open to it. The applicant testified that the two older sisters were married. She also testified that her father had died after the two sisters were married. However, to say the sisters were not circumcised because of the father's opposition to it is an inference which the Board need not draw. The youngest sister is twelve and it is doubtful that her not being circumcised is relevant to the applicant's fear of being forced to undergo female genital mutilation should she return to Nigeria. In any event, the Board did not make a reviewable error in referring to the sisters not being circumcised based on the evidence before the Board.
[5] The Board did make an error with respect to the documentary evidence on female genital mutilation. The Board stated, at page 2:
The documentary evidence before the panel states that "Itsekiri people in general do not practice female genital mutilation (FGM)".
The Board then referred to a specific exhibit, NGA35426.E dated November 3, 2000, which was before the Board. The evidence cited by the panel for this statement is in Response to Information Request NGA35426.E. This document reads:
NGA34047.E of 20 April 2000 states that the Itsekiri people in general do not practice FGM
[6] While the Research Directorate of the Immigration and Refugee Board certainly stated the foregoing with respect to NGA34047.E, in NGA35426.E it is clearly wrong. NGA34047.E states as follows:
Generally, however, about 40 per cent of women from the Hausa, Yoruba and Ibo, Efik, Shuwa, and most population groups except the Itsekiri of Cross Rivers State undergo female genital mutilation (FGM) (WHO 1998; FGM Nework 1982). However, Country Reports 1999 reports that although estimates vary, between 40 and 60 per cent of the Nigerian female population is subjected to FGM and "according to local experts, the actual prevalence may be as high as 90 percent. Nevertheless, most agreed that the number of young girls now subjected to FGM is declining (Feb 2000, 333).
It is agreed that the applicant is not from Itsekiri of Cross Rivers State. She is from the Delta Region, about 150 kilometers from Cross Rivers State.
[7] It must be remembered that the applicant claimed a serious possibility of persecution in Nigeria for two reasons: 1) because of a forced marriage to Alhaji, a Muslim or 2) because of being forced to be circumcised. In my view the Board may very well have been innocently misled by the Research Directorate's summary of NGA34047.E but it was clearly wrong. This is central to her claim. In my view this is a reversible error. I do not deny that the decision is based on several inconsistencies and implausibilities found by the Board. However, because of the error with respect to the documents on FGM and the National Chairman, it is not possible for me to state that there was no misapprehension of the evidence by the Board. I would uphold the part of the Board's reasoning related to the denial that the applicant was going to be forced to enter a forced marriage to Alhaji but I cannot uphold the Board's statement that:
... the panel does not have sufficient trustworthy or credible evidence before it to find that the claimant faces a serious possibility of persecution in Nigeria, ... because of being forced to be circumcised by her Itsekiri family members.
In my view, I should not speculate on what the Board would have found had it not considered document NGA35426.E.
[8] The application for judicial review is allowed. The decision of the Board dated December 5, 2000, is quashed. The matter is returned to the Board for redetermination by a differently constituted panel.
"W. P. McKeown"
JUDGE
TORONTO, ONTARIO
October 25, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-6503-00
STYLE OF CAUSE: LYDIA ORITSEWEYINMI ADODO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, OCTOBER 10, 2001
PLACE OF HEARING: OTTAWA, ONTARIO
REASONS FOR ORDER BY: MCKEOWN J.
DATED: THURSDAY, OCTOBER 25, 2001
APPEARANCES: Mr. Bola Adetunji
For the Applicant
Ms. Mary Matthews
For the Respondent
SOLICITORS OF RECORD: Bola Adetunji
Barrister & Solicitor
Carlton on the Park
Suite 313-120 Carlton Street
Toronto, Ontario
M5A 4K2
For the Applicant
Morris Rosenberg
Deputy Attorney General
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011025
Docket: IMM-6503-00
Between:
LYDIA ORITSEWEYINMI ADODO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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