Date: 20120208
Docket: IMM-3151-11
Citation: 2012 FC 186
Ottawa, Ontario,
February 8, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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ESTHER OBOH
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Applicant
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and
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THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant challenges the decision of a
Pre-Removal Risk Assessment Officer who rejected her application for permanent
residence from within Canada
based on humanitarian and compassionate grounds.
[2]
The applicant is a citizen of Nigeria. On February 19, 2006, she arrived
in Toronto and claimed refugee
status based on a fear of persecution from the father of her unborn twins who
she claimed was trying to force her to have an abortion. The Immigration and
Refugee Board dismissed the application for refugee status, concluding that the
applicant contrived the entire story about the supposed father trying to force
her to have an abortion. Leave to judicially review that decision was refused
on January 23, 2007.
[3]
On March 8, 2007, the applicant filed an
application for permanent residence based on humanitarian and compassionate
grounds, seeking an exemption from the requirement that her permanent residency
application be filed outside of Canada. On August 27, 2010, the applicant was notified of her right to
file a Pre-Removal Risk Assessment (PRRA) application which she did on September
3, 2010. The PRRA application was refused and leave for judicial review was denied.
[4]
In a letter dated March 3, 2011, the officer
rejected the applicant’s claim for humanitarian and compassionate relief. In
this application for judicial review of the officer’s decision, the applicant
has argued that there are several problems with the decision. After
considering both parties’ submissions and the evidence before me, I have
concluded that the officer’s conclusion with respect to the best interests of
the children concerned is unreasonable. Consequently, the application must be
allowed.
[5]
The applicant gave birth to twins after her
arrival in Canada. She is the
mother of two Canadian children, a boy and a girl. The applicant submitted
that they were at risk of female genital mutilation (FGM) and scarification should
they have to go to Nigeria with
their mother while she applied for residency from outside of Canada.
[6]
The documentary evidence indicates that the risk
of FMG in Nigeria varies based
on region, ethnicity and age. Based on these factors, the officer concluded that
the risk to the applicant’s Canadian born daughter is such that “the applicant
has failed to demonstrate that her children would personally be subject to the
alleged risks of scarification and female genital mutilation.” On the contrary,
I find that the evidence accepted by the officer clearly shows that the female
child is personally at risk of FGM based on the evidence outlining these
factors. It may be that the risk she faces is not as great as that of other
girls in Nigeria, but that is
neither the requirement nor the standard against which the daughter’s risk is
to be assessed.
[7]
The following is a summary of the evidence
relating to each of the three identified factors.
Region
[8]
The officer stated that the applicant “comes
from Edo, a south-western state, and the evidence indicates that in that
region, it is the Yoruba and Ibo who are most affected.”
[9]
The Immigration and Refugee Board of Canada
Response to Information Request NGA103520.E (RIR) referenced by the officer
states that the regions where FGM is most frequently practised are the
south-east and south-west areas of Nigeria. The applicant comes from the region of Nigeria where it states that FMG is most frequently carried out; 53.4
percent of girls are subjected to this practise. Further, as noted by the officer,
looking at the country as a whole, the RIR states that “30% of girls have been
subjected to female mutilation in Nigeria.”
[10]
Accordingly, the region from which the applicant
hails indicates that her daughter is at the highest risk of FGM.
Ethnicity
[11]
As noted above, the officer stated that “the
evidence indicates that in [Edo],
it is the Yoruba and Ibo who are most affected” whereas the applicant is a
member of the Esan.” While true, this statement ignores the evidence that
those, like the Esan, who are classified as “others” in the RIR experience FGM
at a rate of 14 percent. While this rate is less than the Yoruba (58.4%) and the
Igbo (51.4%), it is a significant rate of FGM that the officer, in my view, unreasonably
discounted as it was less than the rates of FGM experienced by girls from other
tribes.
Age
[12]
The officer stated that as the applicant’s daughter
will soon be older than four years of age, her risk of FMG is lessened because
the majority of such procedures are generally done between the ages of a few
weeks and four years. However, the evidence does not state that no girl is
subjected to FGM after the age of four. In fact, the evidence relied on by the
officer indicates that a child is at greater risk of FGM after age five than
she is between the ages of one and four. The RIR states: “With respect to the
age at which FGM takes place, the results of the NDHS survey indicate that
82.54 percent of women underwent FGM before 1 year of age; 1.6 percent between
1 and 4 years of age; and 12.5 percent after age 5.”
Other Evidence
[13]
In my view, the officer also discounted the
affidavit evidence provided by the applicant, which states that there is family
pressure being brought to bear to have the female child undergo the
“traditional procedure”, because he considers this evidence to be
self-serving. That might have been a reasonable assessment but for the fact
that the applicant herself was subjected to FGM by her family. This fact strongly
supports the applicant’s allegation of family pressure. Such pressure ought to
have been given significant weight, but it was not.
Conclusion
[14]
For these reasons, I find that the officer’s
decision and conclusions are not justified, transparent nor intelligible, and
do not fall “within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law” as required by Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47. Consequently, the decision must be set
aside.
[15]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is allowed, the application is
returned for determination by a different officer and no question is certified.
"Russel W. Zinn"
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