Date: 20110708
Docket: IMM-6440-10
Citation: 2011 FC 827
Ottawa, Ontario, July 8, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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AGIMELEN ORIAZOUWANI WINIFRED
AFUAH AARON
AFUAH OMONIGHA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
The
paradigm of the story of the Emperor’s New Clothes applies to the first
instance decision (wherein, due to inattention to adequate justification,
transparency, intelligibility, reasonableness is sorely lacking). The lesson
applied from the decision in Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, that reasonableness be the hallmark to the analysis of
factual evidence by a decision-maker, is as wholly absent as is the Emperor of
clothes.
[2]
An
acknowledgment of deference to a decision-maker by a reviewing Court is warranted
when a decision reviewed appears reasonable unless analysis demonstrates that the
primordial component, evidence, pertinent to support its reasonableness, is not
only missing, but actually runs contrary to its reasoning. All relevant
evidence submitted in review, not only the country conditions, but the point-specific
pertinent evidence presented in regard to an applicant, himself or herself,
must always be assessed. Country conditions of origin of an applicant must not
be read in the abstract, in an existential void; they must be read in relation
to the specific narrative as related by an applicant to the first instance decision-maker.
[3]
In
this case, the decision-maker heard the evidence presented but it appears that
the decision-maker, neither truly listened, and certainly did not assess, that
which clearly appears from the evidence in review. Each case is a case unto
itself; and, when a decision-maker’s guard is down in that regard, the
assessment of evidence becomes null and void; and reasonableness is the
casualty as may become the Applicant; who, as, in this case, was given an
erroneous assessment on evidence that can lead to loss of life due to the
grave consequences of neglect or inattention to key evidence. (In the
present case, dire consequences are specifically indicated by the
non-contradicted subjective evidence when assessed together with the objective
country of origin evidence submitted.)
[4]
Thus,
the Board was in possession of informative evidence; furthermore, the strands
of evidence were woven together by the Board; they demonstrate that it had the
knowledge for an adequate assessment; yet, its conclusive reasoning is missing
the wisdom of reasonableness.
[5]
Therefore,
the decision, subsequent to the ratio in Dunsmuir, above, is as naked of
reasonableness as it is of common sense.
II. Introduction
[6]
The
Applicant is a young mother of two children who the Board, itself, categorized,
by specifying in their regard, that “… recent research and consultation … paints
a grim picture of the reality facing such women and their children...” (at para
20).
[7]
The
Board further sates:
[17] As regards the impact of the
police’s notorious corruption on accessing this protection, the panel
acknowledges the documentary evidence that essentially reports corruption and
extortion as defining characteristics associated with the police forces.
However, systems for investigating police misconduct exist, and though in
practice these are too often a charade, especially when dealing with
extra-judicial killings by the police, they nevertheless result in police
officers being disciplined and dismissed … [Emphasis added].
[8]
Nevertheless,
the Board insists that there are alternate means by which to obtain protection.
The Court notes that the evidence cannot be assessed without recognizing that
protection needs to be analyzed in its entirety; without a male presence, the
realistic chances for a woman alone, with two minor children, are categorized
as to their predicament by the Board, itself. (The Board assessed that,
however, without concluding in that direction, as is evident in paragraph 6
above.)
III. Judicial Procedure
[9]
This
is an application for a judicial review of a decision of the Board, dated
October 20, 2010, rejecting the Applicants’ claim for asylum and finding that
the Applicants are not Convention refugees, nor persons in need of protection
pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA].
IV. Background
[10]
The
principal Applicant, Ms. Winifred Agimelen Oriazouwani, was born on
June 17, 1978. The minor applicants are her daughter, Omonigha Afuah, born
August 28, 2006, and her son, Aaron Afuah, born February 2, 2003.
All of the Applicants are citizens of Nigeria from the city of Uromi. The
principal Applicant studied at the Edo State University in public
administration.
[11]
The
Applicants are claiming protection for reasons of risk to their lives as
members of a particular social group.
[12]
In
the beginning of 2007, Mr. Alhaj Mustafa allegedly
began to threaten the Applicants and the principal Applicant’s husband because
he was owed money by the Applicant’s father-in-law. The Applicant alleges that Mr. Mustafa is
an influential business man. She also refers to him as a “local cult man” who
allegedly has been implicated in human sacrifice and female genital mutilation.
[13]
Allegedly,
due to the unpaid debt, the Applicant believed that the debtors’ elder son had
disappeared. As a result, in March 2008, Mr. Mustafa allegedly
kidnapped the Applicants and then threatened to exact revenge by circumcising
the Applicant’s daughter and sacrificing all three of them.
[14]
Two
days before the date set for the circumcision of the minor female Applicant,
one of Mr. Mustafa’s
servants helped the Applicants to escape from captivity. Seeking refuge at the
village church, the Applicants were then assisted by a local clergy member, Pastor
Veladego.
[15]
The
Applicants and the Pastor fled to Ghana where they remained for one week prior
to the Applicants’ journey to Canada. The Applicants arrived on March 27, 2008
and immediately filed their request for asylum. The principal Applicant was by
that time several months pregnant. All members of the family were detained for
identity purposes until the end of April 2008.
[16]
During
their stay in Ghana, both the Pastor – who made and paid for the travel
arrangements – and the principal Applicant, attempted, in vain, to contact her husband.
[17]
The
Board heard the matter on July 2, 2010. Subsequently, the Applicant’s lawyer
sent further written submissions to the Board on September 2, 2010 (in respect
of identity, credibility, State protection and Internal Flight Alternative
[IFA]). The Board’s decision was rendered on October 20, 2010.
V. Decision under Review
[18]
The
Board rejected the application, finding that the Applicants had not
demonstrated the absence of an IFA or rebutted the presumption of State
protection. The Board found:
[10] Indeed, the claimants did not
meet their burden of establishing on a balance of probabilities that there was
a serious possibility of persecution or a probable risk of harm everywhere in
Nigeria and that it would be unreasonable for them to seek refuge in another
part of their country, namely Abuja. Failure to do so is, in and of itself,
sufficient to dispose of their claims.
[19]
The
Board found that the Applicant had not demonstrated the absence of an IFA, in
Abuja, Nigeria’s capital had the Applicant fled there (at para 10); however,
the Applicant fled elsewhere, outside of Nigeria to Ghana. The Board also noted
that the alleged persecutor had likely lost interest in the Applicant, as he
had apparently not inquired about her whereabouts since April 2008 despite, his
having been domiciled in the same village as the Applicant’s mother (at para
13).
VI. Position of the Parties
[20]
The
Applicant alleges that a “local cult man” in her village planned to sacrifice both
her and her children (and had decided to circumcise her daughter before doing
so), due to the debt described above. The Applicant disagrees with the Board’s findings
and claims that if she were returned to Nigeria, her alleged persecutor would
learn of her presence through friends and family. Mr. Mustafa would then find
the Applicants in Abuja and attempt to eliminate them. The Applicant submits
that the alleged persecutor ceased his search for her because he had heard that
she had left the country.
[21]
In
addition, the Applicant submits that if she were to return with her children to
Abuja as proposed by the Board, she would not be able to survive. She does not
know anyone who could assist her in that city; therefore, she asserts that her
relocation to Abuja would be unrealistic.
[22]
The
Applicant argues that the Board erred in finding that the Applicant would be
able to find assistance from non-governmental organizations [NGO]; this, to
her, appears problematic as State protection can only be assessed with regard
to available police resources. The Respondent agrees with the Board’s findings
that NGOs would direct the Applicant to the appropriate police resources.
[23]
The
Respondent submits that the Board’s reasoning is clear and complete; and it is
speculative to believe that a village cult man would have the resources to be
aware that the Applicants will have returned to Nigeria. In addition, the
Respondent is of the view that the Applicants have not demonstrated that State
protection would be inadequate against their persecutor.
VII. Issue
[24]
Is
the Board’s decision reasonable in respect of an IFA as to the State
protection?
VIII. Pertinent Legislative Provisions
[25]
Sections
96 and 97 of the IRPA are pertinent to the present case:
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.
(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.
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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.
(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.
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IX. Analysis
Internal Flight Alternative
[26]
A two-pronged
test for an IFA has been established by the jurisprudence (Rasaratnam v
Canada (Minister of Employment and Immigration), [1992] 1 FC 706, 31 ACWS (3d) 139 (CA); Thirunavukkarasu
v Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 45 ACWS (3d) 141 (CA)):
the Board must be satisfied, on a balance of probabilities, that no serious
possibility exists for the Applicant to be persecuted in the proposed IFA; and,
furthermore, due to circumstances, particular to the Applicant, the proposed
IFA is not unreasonable for the Applicant. In Ranganathan v Canada (Minister
of Citizenship and Immigration), [2001] 2 FC 164, 102 ACWS (3d) 592, the
Federal Court of Appeal specified that Thirunavukkarasu establishes a
“very high threshold for the unreasonableness test”:
[15] We
read the decision of Linden J.A. for this Court as setting up a very high
threshold for the unreasonableness test. It requires nothing less than the
existence of conditions which would jeopardize the life and safety of a
claimant in travelling or temporarily relocating to a safe area. In addition,
it requires actual and concrete evidence of such conditions. The absence of
relatives in a safe place, whether taken alone or in conjunction with other
factors, can only amount to such condition if it meets that threshold, that is
to say if it establishes that, as a result, a claimant's life or safety would
be jeopardized. This is in sharp contrast with undue hardship resulting from
loss of employment, loss of status, reduction in quality of life, loss of
aspirations, loss of beloved ones and frustration of one's wishes and
expectations.
[27]
In
Sinnathamby v Canada (Minister of Citizenship and Immigration), 2007 FC
334, 156 ACWS (3d) 678, Justice Michael Phelan explains that
the notion of “undue hardship” is not solely restricted to the physical safety
of an applicant, therein, but also on the journey to the potentially destined
IFA:
[14] The consideration of whether an
IFA is reasonable for an applicant cannot be a disguised full force
humanitarian and compassionate (H & C) application. Likewise, it is not
solely restricted to considerations of physical safety. An IFA analysis focuses
on whether the alternative place is safe from the risks found to exist and
whether it is reasonable for the particular applicant to avail themselves of
that alternative location in their home country.
[15] As Justice James Hugessen
pointed out in Ramanathan v. Canada (Minister of Citizenship and
Immigration) [1998] F.C.J. No. 1210, the consideration of whether an IFA is
unreasonable or unduly harsh is bound to involve some of the same factors as
taken into account in an H & C application. If those factors were excluded,
the only thing left to consider is safety which is only the first branch of the
IFA test. Therefore, the Board erred in its consideration of the test for an
IFA and failed to consider whether for this Applicant the IFA was unreasonable
or unduly harsh.
[28]
In
the present case, the Applicant argues that the Board’s decision does not meet
the second part of the test. She is a young mother with two minor children; she
faces financial constraints and has neither family nor friends to help her in
Abuja. As for her alleged financial constraints, the Board concluded:
[25] Finally, in terms of economic
factors, the panel appreciates that the claimant’s former revenue-generating
business was insufficient, even with her husband’s contribution, to meet all
the family’s financial needs. Like most Nigerians, the claimants undoubtedly
will face a number of economic constraints. Nigeria has no welfare system and
people mainly rely in their immediate and extended family in times of need and
crisis. Fortunately for the claimants, the claimant’s immediate and extended
family are accessible, and nothing in the evidence suggests that they could not
provide some form of support, regardless of whether or not they live in the
same city …
[29]
This
conclusion is more speculation in respect of the evidence that was before the
Board. The Applicant testified that her family owes an unpaid debt. The Board did
not consider the specific evidence of the case whatsoever in respect of the
specific evidentiary documents on file as submitted to the Court. The Applicant
is a young mother of two children and the Board itself wrote: “… recent
research and consultation … paints a grim picture of the reality facing such
women and their children …” [Emphasis added] (at para 20). The hearing, on
July 2, 2010, focused almost entirely on the Applicant’s identity and very
little else.
State
Protection and Change of Circumstances
[30]
Without
mentioning changing country conditions, per say, the Board is relying on
progress being made in that the decision-maker is of the opinion that
protection is becoming more prevalent, and, thus, that the principal Applicant,
if in another part of the country, would be able to avail herself of that
protection.
[31]
In the case Mahmoud
v Canada (Minister of Employment and Immigration) (1993), 69 FTR 100, 44 ACWS (3d)
577, Justice Marc Nadon
applied Professor James Hathaway’s
test of changing country conditions, and concluded:
[25] I have concluded that the Board
erred in law by not applying the proper test for a consideration of changing
country conditions. I have also concluded that the Board, in finding that the
changes in circumstances were of an enduring nature, made a finding which it
could not possibly have made based on the evidence before it. In other words,
this finding was made without consideration of the material before it.
[26] In so concluding, I have
adopted as the proper test of changing country conditions the one proposed by James Hathaway in The Law of Refugee Status,
Butterworths, Toronto, 1991, at pages 200-203. Hathaway writes as follows:
First, the change must be of substantial
political significance, in the sense that the power structure under which
persecution was deemed a real possibility no longer exists. The collapse of the
persecutory regime, coupled with the holding of genuinely free and democratic
elections, the assumption of power by a government committed to human rights,
and a guarantee of fair treatment for enemies of the predecessor regime by way
of amnesty or otherwise, is the appropriate indicator of a meaningful change of
circumstances. It would, in contrast, be premature to consider cessation simply
because relative calm has been restored in a country still governed by an
oppressive political structure. Similarly, the mere fact that a democratic and
safe local or regional government has been established is insufficient insofar
as the national government still poses a risk to the refugee.
Secondly, there must be reason to believe
that the substantial political change is truly effective. Because, as noted in
a dissenting opinion in Ruiz Angel Jesus Gonzales, "...there is often a
long distance between the pledging and the doing...", it ought not to be
assumed that formal change will necessarily be immediately effective:
…
Third, the change of circumstances must
be shown to be durable. Cessation is not a decision to be taken lightly on the
basis of transitory shifts in the political landscape, but should rather be
reserved for situations in which there is reason to believe that the positive
conversion of the power structure is likely to last. This condition is in
keeping with the forward-looking nature of the refugee definition, and avoids
the disruption of protection in circumstances where safety may be only a
momentary aberration.
[27] Although the author discusses
changing country conditions in the context of cessation, the nature of the
changing circumstances of a country must nonetheless be considered in the
context of an application seeking convention refugee status. (See M.E.I. v.
Obstoj, File No. A-1109-91, May 11, 1992 (F.C.A.) [Please see [1992] F.C.J.
No. 422], and M.E.I. v. Paszkowska (1991) 13 Imm. L.R. (2d) 262 (F.C.A.).)
[32]
Thus,
The Court faces a three-pronged test:
a. the change must be of substantial political
significance;
b. there must be reason to believe that the
substantial political change is truly effective;
c. the change of circumstances must be shown
to be durable.
[33]
In
its decision, the Board describes the improvement in the country conditions of
Nigeria. The Board’s decision reviews the fact that “some of the documentary
evidence reports that female genital mutilation [FGM] is considered a private
matter and that Nigerian authorities generally do not interfere”; nevertheless,
the Board specifies that it “however prefers the more recent documentary
evidence” (at para 15). The Board thus, quotes the National Documentation
Package on Nigeria, 17 March 2010, explaining that the law criminalizes the
removal of any part of a sexual organ, and, thus, that parents and girls have
the real possibility of resorting to protection from police officers. The legislation
may be what it is, however, the situation on the ground, in widespread fashion,
demonstrates a very different picture. What is criminalized through legislation
has not, as yet, become generalized in practice in respect to tenable
protection, in the Board’s very own words, as stated above.
[34]
The
situation according to evidence remains what it is: “sources on the
ground confirm that the protection is weak, but it is progressing” [Emphasis
added] (at para 16). The Board’s decision omits to even consider the
jurisprudential three-pronged test. The Board’s decision demonstrates the
opposite that Nigeria is undergoing changes (when it, itself, speaks of
changes) in respect of protection of women facing female mutilation; however,
the decision does not demonstrate, in fact, that the changes in the country
conditions are either substantial or truly effective, nor are they durable.
The Board erred in its reading, or lack thereof, by which the Court could state
that the Board’s decision is reasonable. It is unreasonable, as clearly, the
evidence has not been adequately taken into account.
[35]
In
addition, the Board was obliged to consider contradictory documentary evidence,
which it did not, as per
the evidence submitted to the Court which the Board had before it:
Female genital mutilation
23.19 Female genital mutilation (FGM) is
a cultural tradition that is widely practised in Nigeria, as noted in the USSD
2008 Human Rights Report:
…
The federal government publicly opposed
FGM but took no legal action to curb the practice. Because of the considerable
impediments that anti-FGM groups faced at the federal level, most refocused
their energies on combating the practice at the state and local levels.
Beyelsa, Edo, Ogun, Cross River, Osun, and Rivers states banned FGM. However,
once a state legislature criminalized FGM, NGOs found that they had to convince
the local government authorities that state laws were applicable in their
districts. The Ministry of Health, women's groups, and many NGOs sponsored
public awareness projects to educate communities about the health hazards of
FGM. They worked to eradicate the practice, but financial and logistical
obstacles limited their contact with health care workers on the harmful effects
of FGM.
[Emphasis added].
(Tribunal Record [TR], Country of Origin
information Report: Nigeria, 9 June 2009 at p 211).
Were
Gender-related Guidelines taken into consideration?
[36]
In
respect of the guidelines concerning Women Refugee Claimants Fearing
Gender-Related Persecution, the Board’s decision although it specifies: “in
making the decision the panel followed the Chairperson’s Guideline for Women
Refugee Claimants Fearing Gender-Related Persecution”, it cearly did not (at
para 7). With regard to IFAs, the Gender-related Guidelines provide:
4. In determining the
reasonableness of a woman's recourse to an internal flight alternative (IFA),
decision-makers should consider the ability of women, because of their gender,
to travel safely to the IFA and to stay there without facing undue hardship.
In determining the reasonableness of an IFA, the decision-makers should take
into account factors including religious, economic, and cultural factors, and
consider whether and how these factors affect women in the IFA. [Emphasis
added].
[37]
The
Board did not take the Gender-related Guidelines into consideration at
all; and, if it had, it should have mentioned which parts of the Applicant’s narrative
it did not deem credible in its consideration of the religious, economic and
cultural factors of the Applicants so as to set aside the application of Gender-related
Guidelines in this case. The conclusions reached by the Board do not take into
account each aspect of the Applicant’s story, nor a composite whole of its
entirety. The narrative of the principal Applicant is neglected, as is the
country condition documentation.
[38]
The
Applicant submitted a Psychological Report, dated June 11, 2010 (TR at p 489).
Dr. Sylvie Laurion, Psychologist,
examined and treated Ms. Agimelen and specified that she
had been diagnosed with post-traumatic stress disorder and was given prescribed
medication for the condition (TR, Psychological follow-up of Ms. Winnifred Agimelen,
born 17 July 1978 and her son, Aaron Afuah, born 2 February, 2003 at p 489). In
addition, Dr. Harry Kadoch certified
that Ms. Agimelen was indeed
diagnosed with a post-traumatic stress disorder and that she had undergone
female circumcision (TR at p 480). The Board mentioned these reports and
concluded that erroneously that, “[t]hough she suffered from a mental health condition
at the outset of her ordeal, these appear to have largely been addressed
according to the evidence” (at para 22).
The Board did
not assess the Applicant’s credibility
[39]
With
regard to the principal Applicant’s credibility, the Board considered the
essence or core of the principal Applicant’s narrative as credible; in respect
of the peripheral aspects, the Board did not determine in any manner their
validity, or lack thereof, except for a passing remark, without any specifics,
whatsoever:
[9] The claimants having generally
established their main allegations, despite the lack of credibility of several
aspects of the claimant’s story, the determinative issue in this matter is the
existence of an internal flight alternative (IFA).
[40]
In
Edobor v Canada (Minister of Citizenship and Immigration), 2007 FC 883,
160 ACWS (3d) 866, Justice Maurice E. Lagacé allowed a
judicial review:
[21] The jurisprudence of this Court
supports the notion that the Board has a duty to consider documentary evidence
that supports the Applicant’s position (Bains v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 497 (QL); Maldonado v.
Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302).
Justice Shore recently held, in Assouad v. Canada (Minister of Citizenship
and Immigration), [2006] F.C.J. No. 1216 (QL) that “A Board is under a
duty to justify its credibility findings with specific and clear reference to
the evidence, particularly when the evidence is cogent and relevant to the
Applicant’s allegations.”
[22] The applicants submitted
documents central to their claims including two notes from her mother stating
that threats were still being made against the principal applicant, a letter
from the Family Services of Peel confirming that the principal applicant
received counselling services for her trauma from her abusive relationship, and
a medical certificate from a doctor confirming that the female minor applicant
had not been circumcised. While, it is open for the Board to find the
applicants not credible, the Board still had a duty to address whether or not
the evidence submitted by the applicants affected its decision. [Emphasis
added].
[41]
In
Owobowale v Canada (Minister of Citizenship and Immigration), 2010 FC
1150, Justice Russel Zinn of this Court reviewed and granted an application for
judicial review with regard to female genital mutilation case:
[7] … The United Nations High
Commissioner for Refugees’ May 2009 Guidance Note on Refugee Claims Relating
to Female Genital Mutilation, at paragraph 10, provides direction as to a
more reasonable approach to assessing the daughters’ subjective fear:
It can happen that a girl is unwilling or
unable to express fear, contrary to expectations. … This fear can nevertheless
be considered well-founded since, objectively, FGM is clearly considered as a
form of persecution. In these circumstances, it is up to the decision-makers
to make an objective assessment of the risk facing the child, regardless of the
absence of an expression of fear.
…
[12] … In Alexandria v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1616, at para. 4, Justice Campbell found that “it was incumbent
on the RPD to consider the following evidence: the daughter is Nigerian, is of
tender years, and FGM is prevalent in Nigeria.”
X. Conclusion
[42]
For
all of the above reasons, the Applicants’ application for judicial review is
granted and the matter is remitted for redetermination anew by a differently
constituted panel.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be granted and
the matter be remitted for redetermination anew by a differently constituted
panel. No
question for certification.
“Michel
M.J. Shore”