Date: 20090914
Docket: IMM-5096-08
Citation: 2009 FC 906
OTTAWA, Ontario, September 14, 2009
PRESENT: The Honourable Louis S. Tannenbaum
BETWEEN:
JOY ITOHAN OKPIAIFO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the September 15, 2008 decision of
Pre-Removal Risk Assessment (“PRRA”) Officer A. Mazzotti.
Background
[2]
The
Applicant is a thirty-five year old citizen of Nigeria. In March
2003 she entered into an arranged marriage. After she became pregnant, her
husband’s parents requested that the Applicant undergo female circumcision
prior to delivering her child. The Applicant had heard of the serious risks
associated with this procedure, which is also known as female genital
mutilation (“FGM”), and refused to accede to the requests. Her husband
supported her decision and her parents attempted to appeal to the community elders,
but they were rebuffed.
[3]
The
stress of this situation began to take a toll on the Applicant, who says she
began to suffer certain complications related to her pregnancy. She fled Nigeria for the United
States,
arriving on July 9, 2004. She arrived in Canada on August
27, 2004. She gave birth to her daughter on September 10, 2004.
[4]
The
Applicant filed an application for refugee protection, which was denied on
September 8, 2005 upon the basis of credibility and due to her failure to file
for refugee protection elsewhere prior to entering Canada. Leave to
judicially review this decision was denied on March 27, 2006.
[5]
On
December 21, 2005, the Applicant gave birth to her second child, who was
fathered by another man. The Applicant states that subsequently, her husband
divorced her and now demands that their daughter be returned to Nigeria to face
FGM. She provided a letter from her former husband dated November 29, 2005 in
support of this fact. She also provided a letter from her father dated July
17, 2006 indicating that he was being threatened and harassed by her husband
and his family.
[6]
The
Applicant’s PRRA application was based upon her membership in a particular
social group, that being women at risk of FGM in Nigeria.
[7]
The
Officer concluded that much was being done to combat the practice of FGM in
Nigeria, that the Applicant could relocate to a more ethnically diverse area
such as Lagos or to Edo or
Osun, where the practice had been banned, and that ultimately, State protection
would be available to the Applicant if she returned.
Issues
[8]
The
issues are as follows:
1. Did
the Officer err in respect of his conclusions regarding the adequacy of State
protection?
2. Did
the Officer err in failing to properly consider the evidence of risk raised by
the Applicant?
Standard of Review
[9]
In
Rosales v. Canada (Minister of
Citizenship and Immigration), 2008 FC 257, Justice Gibson noted that
the standard of patent unreasonableness applies to determinations of fact
within the context of a state protection analysis. The two deferential
standards of review have since merged into the single standard of
reasonableness: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at
para. 45. I conclude that a finding respecting the adequacy of state
protection and the availability of an internal flight alternative (“IFA”)
should be subject to the standard of reasonableness.
[10]
Whether
the Officer failed to consider the evidence before him is a question of fact
and thus also appropriately made subject to review on the standard of
reasonableness: Kim v. Canada (Minister of
Citizenship and Immigration) et al. (2005), 272 F.T.R. 62
at para. 20 (F.C.).
Law and Argument
1. Did the Officer err
in respect of his conclusions regarding the adequacy of State protection?
[11]
The
Applicant argues that the Officer’s finding as to the adequacy of State
protection was directly contradicted by the evidence before him. She submits
that the evidence reveals that despite opposition by the authorities to the
practice of FGM, the federal police refuse to become involved in stopping it,
as they consider the practice a family matter.
[12]
The
Respondent argues that the State is presumed to be capable of protecting its
nationals absent clear and convincing proof to the contrary. The burden rests
with the Applicant in this regard: Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689. The Respondent submits that the Applicant has failed to
rebut this presumption. In addition, when there is evidence, as there is in
this case, upon which an officer could reasonably conclude that State
protection would be available, the Court should not intervene in a decision to
that effect: Jahan v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 987 (F.C.T.D.).
[13]
The
simple fact that an applicant can point to some evidence that supports her
argument does not mean that an officer has erred by reaching a conclusion
contrary to that evidence. It is often the case that the documentary evidence
before an officer will conflict. It is therefore the officer’s duty to weigh
that evidence and to reach a reasonable conclusion upon the basis of all of the
information before him.
[14]
An
officer should be afforded considerable deference in undertaking this task and
his decision should not be disturbed if it falls within a range of possible and
acceptable outcomes, defensible on the facts and law: Selliah v. Canada
(Minister of Citizenship and Immigration), 2004 FC 872 at para. 16; Dunsmuir,
at para. 47.
[15]
Further,
while the Applicant argues that the Officer failed to provide an example of a
situation in which the FGM law has been enforced in Nigeria, I note that the
burden is on the Applicant to rebut the presumption of State protection, and
not upon the Officer to establish its existence: Flores Carrillo v. Canada
(Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 at paras.
18-19, 38 (F.C.A.).
[16]
The
Officer supported his conclusion respecting the adequacy of State protection by
reference to the evidence before him, including that which revealed that the
Applicant possessed an IFA in Nigeria. I find that the
Officer’s decision is reasonably supported by the evidence and as such, can see
no basis to intervene on this ground.
2. Did the Officer err
in failing to properly consider the evidence of risk raised by the Applicant?
[17]
The
Applicant argues that the Officer failed to recognize the new risk that arose
following the rejection of the Applicant’s refugee claim and the documentary
evidence tendered in support. The evidence to which she refers is contained
within the letters from her father and her former husband. She contends that
the letters constitute new evidence demonstrating the risk that she and her
daughter would face if returned to Nigeria. She submits that it
is a reviewable error for an officer to reach a conclusion without regard to
the evidence before him: Owusu-Ansah v. Canada (Minister of
Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 at 113 (F.C.A.).
[18]
The
Respondent contends that the Officer considered all of the evidence before him,
and gave proper consideration to the risk raised by the Applicant.
[19]
The
Officer considered the two letters and found that there was no indication that
the Applicant’s former husband continued to maintain any interest in the
Applicant or her daughter.
[20]
I
observe that the letter from the Applicant’s father, dated approximately eight
months after that from her former husband, contradicts this conclusion in part,
as it refers to the Applicant’s husband’s continued desire to see his daughter
returned in order that she undergo FGM.
[21]
That
point having been made however, the risk raised by the Applicant relating to
her daughter is not personal to the Applicant. While such evidence may be ripe
for consideration upon the basis of a humanitarian and compassionate
application, the Officer was under no obligation to consider it in the present
context: Kim, at para. 70.
[22]
While
the Applicant also raised in her submissions to the Officer the risk she would
face at the hands of her husband given the patriarchal nature of Nigerian
society, I have found above that the Officer reasonably concluded that the
Applicant possesses a viable IFA such that she could relocate to an area away
from her former husband if she is returned.
[23]
In
sum, the Applicant has failed to point to any new evidence arising since her refugee
decision was made that would support the argument that she herself would face a
risk at the hands of her former husband or his family if returned to Nigeria.
As such, the Officer’s decision should not be disturbed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. No question of general importance
has been submitted for certification and none will be certified.
"Louis S. Tannenbaum"
Authorities consulted by the
Court
1.
Sicaja-Gonzalez
v. M.E.I.,
(F.C.T.D.), Oct. 7, 1993), A-326-92
2.
Owusu-Ansah
v. Canada (M.E.I.), (1989), 8
Imm.L.R. (2d) 106
3.
Singh
and Narang v. M.E.I., (1993), 69 F.T.R. 142 (T.D.)
4.
Dunsmuir
v. New
Brunswick,
2008 SCC 9
5.
Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12
6.
De
Medeiros v. Canada (M.C.I.), 2008 FC 386
7.
Bayavuge
v. Canada (M.C.I.), [2007]
F.C.J. No. 111
8.
Elezi
v.M.C.I.,
2007 FC 240 (CanLII), 2007 FC 240
9.
Gyorfi
v. Solicitor General of Canada, 2005 FC 176 (Can LII),
2005 FC 176
10.
Yousef
v. Canada (M.C.I.), 2006] FCJ
No. 1101
11.
Selliah
v. Canada (M.C.I.), 2004 FCA
261
12.
Ferguson v. Canada (M.C.I.), 2008 FC
1067
13.
Augusto
v. Canada (S.G.), 2005 FC 673
14.
Figuardo
v. Canada (S.G.), 2004 FC 241
15.
Cupid
v. Canada (M.C.I.), 2007 FC 176
16.
Kim
v. Canada (M.C.I.), 2005 FC 437
17.
Paul
v. Canada (M.C.I.), 2007 FC 398
18.
Rodriguez
Zambrano v. Canada (M.C.I.), 2006 FC 883
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5096-08
STYLE OF CAUSE: Joy
Itohan OKPIAIFO v. M.C.I. and M.P.S.E.P.
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: July
15, 2009
REASONS FOR JUDGMENT: TANNENBAUM
D.J.
DATED: September
14, 2009
APPEARANCES:
|
Mr. Sina
Ogunleye
|
FOR THE APPLICANT
|
|
Ms. Nina
Chandy
|
FOR THE RESPONDENTS
|
SOLICITORS
OF RECORD:
|
Sina Ogunleye
Barrister
& Solicitor
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENTS
|
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