Date: 20100517
Docket: IMM-3463-09
Citation: 2010 FC 541
Ottawa, Ontario, May 17, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ROSELINE AANU IJIOLA AWOLOPE
JOSEPH IYANUOLU IJIOLA AWOLOPE
BLESSING IJIOLA AWOLOPE
GRACE MARIA IJIOLA AWOLOPE
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the negative decision of the Applicants’ Pre-Removal Risk Assessment (PRRA),
dated May 25, 2009 (Decision), which refused the Applicants’ application to be
deemed Convention refugees or persons in need of protection under sections 96
and 97 of the Act.
BACKGROUND
[2]
The
Principal Applicant and three of her children are citizens of Nigeria. The Principal
Applicant fled from Nigeria to the United States with her two daughters
and one son. The Applicants stayed in the U.S. for approximately three months
before coming to Canada in March, 2005.
[3]
Since
her arrival in Canada, the Principal
Applicant has given birth to her fourth child, another son. He is not under a
removal order from Canada. As such, he is not
included in this application.
[4]
The
Applicants claimed refugee status upon their arrival in Canada. The Principal
Applicant alleged that her two daughters would be victims of Female Genital
Mutilation (FGM) as well as Facial Tribal Markings (FTM) upon returning to Nigeria. The Principal
Applicant’s sons would also be victims of FTM upon their return to Nigeria. The Principal
Applicant further alleged that her life is in danger upon return to Nigeria because her
ex-husband’s family has threatened to kill her for refusing to have the FGM and
FTM rituals performed on the children at birth. The Applicants also allege that
their family’s involvement in politics in Nigeria may place them at risk.
[5]
The
Applicants also sought a section 25 exemption from statutory requirements so
that they may apply for permanent resident status from within Canada on the basis of
humanitarian and compassionate grounds. This application was denied and is
currently before the Court for review.
[6]
The
Applicants filed a PRRA application in July, 2006 which was denied. However,
judicial review of that decision was allowed. A further negative PRRA decision
was rendered on May 25, 2009.
[7]
The
Applicants have been issued two stays of removal, one in November, 2006 and in
the other in July, 2009.
DECISION UNDER REVIEW
[8]
The
Officer noted that the Applicants had submitted documentation with regard to their
establishment in Canada. The Officer stated that she did not “give
consideration in this application to evidence where the applicants have not
indicated how it relates to the risks that they submit exist for them in Nigeria.” Nor did the Officer
consider any evidence that predates the RPD decision or could have been made
available for the RPD decision where the Applicants did not indicate why it was
not reasonably available at that time.
[9]
The Officer
noted that the risks alleged by the Applicants were essentially the same risks
as were considered by the RPD, and that a PRRA is not an opportunity to reargue
or reassess the RPD’s findings.
[10]
The
RPD found that credibility was a determining factor and also noted that no
adverse action had occurred between the birth of the Principal Applicant’s
second daughter and the time the Applicants left Nigeria. The RPD found that this inaction on the
part of the Principal Applicant’s in-laws was “indicative of lack of real
desire on their part to harm the [Applicants] and therefore a lack of objective
basis for the subjective fear of the [Applicants.]” The RPD also found the
Principal Applicant’s testimony with regard to her trip to the United States before arrival in
Canada to be “vague and lacking in details.”
[11]
In
summary, the RPD determined that “based on all the evidence, I do not find the
claimants’ allegations credible and I am not convinced that their lives are
threatened in Nigeria. Even if I
had found the claimants credible, I find that they did not claim in the USA.”
[12]
While
the Officer considered a letter written by the Principal Applicant’s
step-brother, she determined that he had not indicated any first-hand
information with regard to the Principal Applicant’s life of isolation in Nigeria after the
birth of the children. Moreover, “the letter [was] written by a person who is
not disinterested in the outcome of this application.” The Principal
Applicant’s step-brother also stated that her father had received threats from
her husband’s family who had vowed to kill her for her failure to comply with
the tribal rituals. However, the Officer found that the author of the letter
had not indicated how he became aware of the threats, how or when they were
delivered, or whether he witnessed them. Furthermore, the Officer found that
“this is information that could reasonably have been presented to the RPD and
that neither the [Principal Applicant] nor her brother have indicated otherwise.”
The Officer assessed this letter to be of low probative value.
[13]
The
Officer also considered an e-mail submitted by the Applicants, in which the
author stated that the Principal Applicant’s father-in-law “continues to blame
[her] for various misfortunes and illnesses suffered by your ex-husband and the
death of his uncle Dejo.” Furthermore, the father-in-law’s family had suffered
beatings due to his brother’s (that is, the Applicant’s ex-husband’s uncle)
change of political parties. However, the Officer found this e-mail to be
“vague and lacking in details.” The Officer noted that the e-mail did not
include any information regarding the beatings suffered by the family including
“which family members were beaten, when it occurred or why he believes the
attackers to be affiliated with a political organization.” The Officer also
noted that updated submissions had not referred to threats or attacks based on
the political activities of family members. The author of the e-mail also
failed to indicate having first-hand knowledge of any threats from the
Principal Applicant’s father-in-law.
[14]
The
Applicants’ evidence also included a letter from the Principal Applicant’s
ex-husband which explained that his family blames her, and her unwillingness to
have her children circumcised or marked, for the death of his uncle and his own
illness. The letter also states that if he divorces her and disowns the
children that “this will eventually eradicate the death of people in my family
completely.” While giving this evidence some weight, the Officer found that the
letter did not indicate that the Principal Applicant’s ex-husband “expects or
needs to have the children circumcised.” The Officer further noted the reason
for divorce included on the proffered divorce order was verbal abuse on the
part of the Principal Applicant, and not that she had refused to have the
children circumcised or scarred. With regard to this letter, the Officer
determined that “by divorcing his wife and disowning his children [Mr. Awolope]
will eradicate the misfortunes of his family. He does not indicate that further
action will be necessary.”
[15]
Further
submissions of the Applicants included a letter from the Principal Applicant’s
family physician in which the physician notes that the Principal Applicant has
experienced sleeplessness, anxiety and “maternal anguish for her children.” The
Officer found this letter to be of low probative value, since the doctor does
not indicate whether the Applicants would be at risk upon their return to Nigeria.
[16]
The
Officer applied similar considerations to a psychologist’s letter submitted by
the Applicants, which discussed the Principal Applicant’s depression. The
Officer found that the psychologist “relied on the [Principal Applicant’s]
observations to reach her diagnosis.” Furthermore, the Officer noted that “the
psychologist’s report does not indicate as to what type of treatment the
applicant requires in order to recover – aside from remaining in Canada.”
[17]
The
Officer also gave low probative value to the letter written by the Reverend of
the Applicant’s church in Ontario. Although the Reverend
had written about belief in oracles, markings and circumcisions that is
prevalent in Nigeria, he had not indicated having first-hand knowledge of
either “country conditions in Nigeria or the circumstances of
the applicants in Nigeria.” Moreover, the Reverend had failed to indicate
whether he based his beliefs on information other than that provided by the
Principal Applicant herself. The Officer found “his statements regarding the
[Principal Applicant’s] children to be speculative, vague and lacking in
details.”
[18]
The
Officer also considered the letter written by the Pastor of the Principal
Applicant’s church in Nigeria who wrote that the Principal
Applicant had told the church elders she had problems with “certain members of
her husband’s family.” The Principal Applicant then asked the church for money
to help her travel to the U.S, and phoned the church upon her arrival there.
Although this evidence could have reasonably been submitted to the RPD, the
Officer considered it nonetheless. While the Applicants alleged that the church
had provided them refuge prior to leaving, the Officer noted that the letter
contained “no references in the declaration to the applicants staying at the
church or with any church member or the pastor arranging the airline tickets
and passport.” The Officer also noted that “the author has not indicated that
he or any of the other church members have first hand information regarding the
[Principal Applicant’s] circumstances other than her statements.”
[19]
The
Officer then examined country conditions and noted that the Nigerian
Demographic and Health Survey had reported a decline in the number of women
being subject to FGM in recent years. Moreover, she noted that the federal
government in Nigeria had publicly
opposed FGM and that the procedure was banned in several states. Furthermore,
the Ministry of Health and other groups in Nigeria have
implemented projects focussing on the health hazards of FGM and have worked to eradicate
the practice, but financial and logistical obstacles have resulted in limited
contact with health care workers on the medical effects of FGM.
[20]
The
Officer then considered the United Kingdom Home Office Country of Origin
Information Report: Nigeria, (December 2008), which found that “in theory it is
not difficult for a woman to relocate within Nigeria and in this
way find physical safety.” The Officer also noted that a bill on FGM had been
created in Nigeria, but that
further steps had to be taken before the president could sign this bill into
law.
[21]
The
Officer acknowledged the Applicants’ evidence that FGM was more prevalent
within the Yoruba ethnic group. However, the Officer noted that “objective
evidence indicates that when circumcised, Yoruba girls are in early infancy.”
[22]
The
RPD had questioned the Principal Applicant as to why her husband’s family did
not pursue the girls’ circumcisions at the time of birth and found that the Principal
Applicant was not credible. It also noted her failure to make a claim in the United
States.
The Officer found that the Applicants provided little new evidence to overcome
the RPD’s findings. While the Officer acknowledged documentary evidence that
supports the customs of FGM and FTM in Nigeria, she noted that “there is
insufficient new evidence to support that the applicants are similarly situated
persons,” and further, “that there is insufficient new evidence to support that
the [Principal Applicant] is of interest to her ex-husband’s family.”
[23]
The
Principal Applicant failed to explain to the Officer why her concerns with
regard to her family’s political affiliations could not have reasonably been
heard and considered by the RPD. Furthermore, the Applicants had not
demonstrated that they continue to be involved in politics or are at risk for any
such involvement. Indeed, the Officer determined that the Principal Applicant’s
submissions were vague and lacking in details as to her family’s involvement in
politics, and that there was little evidence to support that their political
activity is such that she or her children are of interest to the authorities or
other political parties.
[24]
Based
on her findings, the Officer determined that there is less than a possibility
that the Applicants face persecution in Nigeria pursuant to
section 96 of the Act, and that no substantial grounds exist to believe that
the Applicants face a risk of torture or cruel and unusual treatment or
punishment pursuant to section 97 of the Act.
ISSUES
[25]
The
issues on this application can be summarized as follows:
1.
Did
the Officer err by ignoring pertinent evidence, including previous decisions, reasons
and factual findings made the Federal Court?
2.
Did
the Officer err in failing to properly consider the best interest of the
children?
3.
Did
the Officer apply the wrong legal test in considering the PRRA application?
STATUTORY PROVISIONS
[26]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the protection
of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in
need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
Consideration of application
113. Consideration of an application for protection shall be as
follows:
(a) an applicant
whose claim to refugee protection has been rejected may present only new
evidence that arose after the rejection or was not reasonably available, or
that the applicant could not reasonably have been expected in the
circumstances to have presented, at the time of the rejection;
|
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
Examen de la demande
113. Il est disposé de la demande comme il suit :
a) le demandeur
d’asile débouté ne peut présenter que des éléments de preuve survenus depuis
le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils
l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de
s’attendre à ce qu’il les ait présentés au moment du rejet;
|
STANDARD
OF REVIEW
[27]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable to
the 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.
[28]
In Dunsmuir,
above, the Supreme Court ruled that questions of law may be reviewable on a
reasonableness standard, if they are not “legal questions of central importance to the legal
system as a whole and outside a decision-maker’s specialized area of
expertise.” See Dunsmuir, above, at paragraphs 55 and 60. Jurisprudence
of this Court, however, has determined that an officer’s application of the
correct test in an assessment risk is reviewable on a standard of correctness.
See, for example, Zambrano v. Canada (Minister of Citizenship and Immigration), 2008 FC 481, [2008]
F.C.J. No. 601. As stated by Justice Dawson in, Zambrano,
Having regard to the absence of a privative clause, the relative
lack of expertise on the part of an officer to appreciate whether he or she has
applied the wrong test at law, and the importance of ensuring that officers
apply the test that Parliament has prescribed, I conclude that the question of
whether the officer applied the correct test is reviewable on the correctness
standard.
As such, correctness is the appropriate
standard in considering whether the Officer applied the correct legal test and
legal threshold.
[29]
The
remaining issues brought before the Court by the Applicant require a more deferential
standard of review. These issues concern weight assigned to evidence, the
interpretation and assessment of evidence, and whether the officer had proper
regard to all of the evidence when reaching a decision. Such issues are
reviewable on a standard of reasonableness. See N.O.O. v. Canada (Minister
of Citizenship and Immigration), 2009 FC 1045, [2009] F.C.J. No.
1286.
[30]
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”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene 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 Applicants
Previous Decisions
[31]
In
the judicial review undertaken of the Applicants’ first PRRA, Justice Mandamin
found that the officer erred by being selective in reviewing the documentary
evidence. One example given by Justice Mandamin was the exclusion of the rate
of FGM in Ondo state. The Court held that the Officer erred in “making no
reference to the Ondo state where the Applicant is from,” since documentary
evidence showed that “the prevalence of Female Genital Mutilation at 90-98% in Ondo State.”
[32]
Hence,
the Officer failed to consider the Applicants’ PRRA application in accordance
with the judgment given by Justice Mandamin. The Officer erred by giving no
consideration to the situation in Ondo state.
[33]
Justice
Mandamin also determined that the officer in the first PRRA had erred in concluding
the existence of an internal flight alternative. The Applicants submit that a
similar error was made in the case at hand.
[34]
Furthermore,
the Applicants contend that the Officer erred in failing to consider the
findings of fact made by Justice O’Keefe upon granting the Applicants a stay of
removal. Justice O’Keefe noted that “the applicant’s children would also be
subject to having ritual markings placed upon their faces.” Further, Justice O’Keefe
noted that “there is evidence that the two female children would most likely
undergo FGM when they are returned to Nigeria via the United
States.”
[35]
While
the Officer is not bound by the previous decisions of the Federal Court, the
Applicant submits that the Officer erred in failing to consider the country
condition findings made by the Court in these instances. Indeed, the Officer
erred in either ignoring these factual findings, or else by failing to explain
why she rejected them.
[36]
The
Applicants submit that the potential harm they face has not changed since the
factual findings were made by Justices O’Keefe and Mandamin. Rather, the
Applicants contend that the potential for harm has increased due to the birth
of a Canadian son who “would also receive these tribal facial markings if the
Applicants are sent back to Nigeria.”
[37]
The
risk to the Applicants has also increased due to the tragedy that has befallen
the family of the Principal Applicant’s husband. This tragedy has been blamed
on the Principal Applicant’s decision not to have her daughters circumcised or
all of her children scarred. The Officer erred by ignoring the evidence of
increased risk to the Applicants due to the misfortunes that have befallen the
family of the Principal Applicant’s ex-husband.
Evidence
[38]
The
Officer further erred by finding that there was insufficient evidence to
support that the Principal Applicant risked harm from her ex-husband’s family.
The Applicants submit that, in coming to her conclusion, the Officer “ignored
weighty evidence, selectively picked evidence to suit the Officer’s conclusions
and…made factual conclusions which were diametrically opposed to the actual
evidence.”
Letter from
Brother-in-law and Letter from Ex-Husband
[39]
The
Principal Applicant’s brother-in-law gave evidence to support the threat of danger
faced by the Principal Applicant. He swore that “her in-laws have vowed that
whenever she turns up they would make her pay the price with her own life for
the calamity she brought to their family because of her refusal to conform to
their traditions and social mores.” Further evidence was given by the Principal
Applicant’s ex-husband who had warned her to “watch out for my family for they
will surely retaliate on you any time you are around in the country.” The
Applicants submit that these pieces of evidence, in combination, constitute
sufficient evidence of risk.
[40]
The
Officer also erred by selectively relying on certain portions of evidence; for
example, the letter from the Principal Applicant’s ex-husband. The Officer
discounted the importance of this document because it did not support the claim
of risk made by the Principal Applicant. However, the Officer ignored a
paragraph of the same letter which, according to the Applicants, confirms that
the Principal Applicant “is in mortal danger from his side of the family” if
she ever returns to Nigeria.
Step-Brother’s
Affidavit
[41]
The
Applicants submit that the Officer also erred in placing such low probative
value on the step-brother’s affidavit, since the affidavit “clearly sets out
that the step-brother lives in Nigeria and that he was making
the sworn declaration based on his personal knowledge.” The Officer also erred
by requiring “unreasonably specific and arbitrary content to be within the
affidavit.” Furthermore, the Officer failed to consider the cultural difference
and conditions in Nigeria where the affidavit was sworn.
Letter from
Pastor
[42]
The
Officer unreasonably discounted other pieces of evidence as well, including the
letter from the Applicants’ Nigerian Pastor. The Officer found that there was
no indication that the Pastor had either first-hand knowledge of the country
conditions in Nigeria or the circumstances of the Applicants; however, the Pastor
himself is from Nigeria and is very familiar with FGM and FTM customs.
Moreover, he is also very familiar with the Applicants’ circumstances.
Best
Interests of the Children
[43]
Finally,
the Applicants contend that the Officer failed to properly consider the best
interest of the children and whether there would be a physical risk of tribal
mutilation to the Canadian-born child, or a physical risk of female mutilation
and tribal markings to the non-Canadian children.
[44]
A
legally binding international human rights instrument to which Canada is signatory
is determinative of how the Act must be interpreted and applied. See De
Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA
436, [2005] F.C.J. No. 2119. As such, in failing to properly consider the best
interests of the children, the Officer violated section 3(3)(f) of the
Act, and articles 3 and 9 of the International Convention of the Rights of
the Child, 28 May 1990, 1577 UNTS 3.
The Respondent
[45]
The
Respondent submits that the PRRA process is not an appeal of an RPD decision,
but is rather an opportunity for a “deportable individual” to adduce new evidence
for an assessment of new risk developments from the date of the refugee
hearing. See, for example, Hausleitner v. Canada (Minister of
Citizenship and Immigration), 2005 FC 641, [2005] F.C.J. No. 786 at
paragraphs 30-32.
[46]
The
Applicants failed to adduce new evidence that supported their allegations of
risk. Rather, the Applicants simply reiterated the same risks on their PRRA
application that were heard previously by the RPD. The new evidence provided by
the Applicants was of low probative value and was not sufficient to displace
the findings of the RPD.
[47]
Nothing
in the Officer’s Decision is inconsistent with Justice Mandamin’s reasons
allowing judicial review. In this instance, the Officer clearly considered the
prevalence of FGM in the southern states of Nigeria, and also
the more general practice of FGM within the Yoruba ethnic group.
[48]
The
Applicants contend that the Officer erred in failing to consider the prevalence
of FGM within a certain portion of the country. However, statistics with regard
to the prevalence of FGM within a certain area of Nigeria are
irrelevant, since the Applicants’ claim is with regard to fear of actions to be
taken by the Principal Applicant’s in-laws.
[49]
The
Officer reasonably determined that the risks alleged by the Applicants were not
well-founded and concluded that there was no new evidence upon which to
displace this finding. Indeed, the Applicants bore the onus of adducing new
evidence to prove risk. The Respondent contends that new evidence must be
rejected if it does not prove that the relevant facts on the date of the
protection decision are materially different from the facts as found by the
RPD. See, for example, Raza v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, [2007] F.C.J. No. 1632.
[50]
The
Applicants failed to adduce any evidence that could have resulted in the
approval of their PRRA application. The letters provided by family members do
not evidence any new risk to the Applicants. Furthermore, the country condition
evidence does not indicate any increase in risk. Rather, they demonstrate a
diminution of risk since 2005 when the RPD made its decision.
ANALYSIS
[51]
The
Applicants have raised a wide range of issues for the Court to examine. I have
reviewed them all. For the most part, I do not think that the Officer committed
reviewable errors in reviewing and weighing the relevant new evidence or in
reaching her general conclusion that there is insufficient evidence to show
that the children are at risk of FGM or FTM. The Applicants are essentially
asking the Court to re-weigh the evidence on this issue and to reach a
conclusion that favours them. That is not the role of the Court in judicial
review proceedings. See Legault v. Canada (Minister of Citizenship and
Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 at paragraph 11.
[52]
However,
the Officer also concludes that “there is insufficient new evidence to support
that the PA is of interest to her ex-husband’s family.” This finding does raise
a concern.
[53]
The
Respondent argues that since the Applicants’ fear was of actions being taken by
the paternal grandparents, statistics on the prevalence of FGM in a particular
part of Nigeria are
irrelevant to the disposition of the Applicants’ claim. What is at issue is
whether the stated fears of actions by the paternal grandparents have any
possibility of materializing.
[54]
On
this issue, the Applicants introduced new evidence in the form of a letter from
Mr. Thompson O. Awolope, the Principal Applicant’s ex-husband. The Officer
relies upon this letter because Mr. Awolope says he is divorcing his wife and
disowning his children and this means that “this will eventually eradicate the
death of people in my family completely.”
[55]
The
Officer says Mr. Awolope “does not indicate that further action will be
necessary.” It is unclear what interpretation the Officer is placing upon Mr.
Awolope about eradicating death in his family. He appears to be saying that
this means the children will not need to be marked or circumcised, and the act
of disowning his wife and children means that the children need no longer fear FGM
and FTM.
[56]
So
the Officer clearly accepts that the letter comes from Mr. Awolope, and that
its contents can be relied upon for some kind of conclusion about the risks
faced by the children.
[57]
Yet
the same letter also says that the Principal Applicant should “watch out for my
family for they will surely retaliate on you any time you are around in the
country.”
[58]
There
is no mention of this aspect of the letter in the Decision and no explanation
as to why some parts of the letter can be relied upon for conclusions that do
not favour the Applicants, while other parts that do favour the Applicants can
be disregarded.
[59]
The
Respondent argues that the risks from the grandparents do not “have any
possibility of materializing.” Mr. Awolope’s letter – a document relied upon by
the Officer – is directly relevant to this issue. Yet what it contains on point
is entirely disregarded. The Officer cannot rely upon the letter to uphold a
conclusion of no risk and ignore it when it contradicts the same finding. See,
for example, Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No. 1425,
and Devi v. Canada (Minister of Citizenship and Immigration), 2007 FC
149 at paragraph 11.
[60]
The
Officer’s failure to deal with this aspect of the letter may well have been an
oversight, and I am not suggesting that the Officer should have accepted what
Mr. Awolope’s letter said about what his family would do to the Principal
Applicant. However, this evidence contradicts (and is highly material to) the
Officer’s general conclusion that there is insufficient evidence to support
that the Principal Applicant is of interest to her ex-husband’s family. In my
view, then, the Decision is unreasonable on the very point that the Respondent
says is at issue and it must be returned for reconsideration.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James
Russell”
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