Docket: IMM-4821-15
Citation:
2016 FC 1397
Ottawa, Ontario, December 20, 2016
PRESENT: The
Honourable Madam Justice Elliott
|
BETWEEN:
|
|
ODEWIE IVORY
UGBEKILE
SMART EBOIGBE
UGBEKILE
CHUKWEMEKE
EMMANUEL UGBEKILE (A MINOR)
CHELSEA
ENOREDIA UGBEKILE (a minor)
BEVERLY ODEWIE
UGBEKILE (a minor)
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
OVERVIEW
[1]
This is an application pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]
for judicial review of a redetermination of an appeal [Decision] made by the
Refugee Appeal Division [RAD] of the Immigration and Refugee Board on October
9, 2015. The RAD dismissed the appeal by the Applicants of a decision by the
Refugee Protection Division [RPD] that found the Applicants were not Convention
refugees or persons in need of protection under section 96 and subsection 97(1)
of the IRPA because there was a viable internal flight alternative [IFA]
for them in Nigeria.
[2]
The Applicants are a wife and her husband together
with three of their minor children, all of whom are citizens of Nigeria. After
the appeal, the wife gave birth in Canada to a fourth child. The Applicants
fear persecution by the husband’s father, other family members and the entire
village in which they resided in Nigeria. They allege they have been targeted
and threatened because, contrary to the express wishes of the husband’s father,
they refused to permit the circumcision of their eldest daughter.
[3]
The RPD found that the Applicants are citizens
of Nigeria. The Applicants appealed to the RAD on the basis that the RPD’s finding
of a viable IFA was erroneous. The Applicants alleged that the RPD focused only
on the husband’s father as the agent of persecution, whereas they feared the husband’s
siblings and in-laws as well as the villagers who support female circumcision.
The RAD found the RPD had reasonably determined that the Applicants had not
produced sufficient evidence to establish the influence and resources of the
persecutors. The RAD also found no evidence was presented to the RPD that local
villagers had participated in the persecution of the Applicants.
[4]
The Applicants seek to set aside the Decision
for two principal reasons. The primary reason is that the RAD made a negative
credibility finding on a matter about which the RPD did not make any finding.
The Applicants say it was procedurally unfair for the RAD to make that finding
without providing them with an opportunity to address the concern. Also, the
finding was made in what the Applicants allege was a speculative manner. The
other reason is that the RAD’s finding that an IFA exists was unreasonable as
it would have required the family to go into hiding and cut themselves off from
their friends as well as their family.
[5]
For the reasons that follow, this application is
allowed.
II.
ADDITIONAL BACKGROUND FACTS
[6]
The wife’s narrative was made on behalf of the
family and accompanied a Basis of Claim form [BOC]. She states that her
husband’s father is a well-respected man in their village because he is the
oldest man and is the custodian of their culture and tradition. In October
2010, he went to the home of the Applicants and told the wife that her eldest
daughter must be circumcised when she turned five years old. When he left she
called her husband who rejected the idea and apparently told his father that
the circumcision would happen “over his dead body”.
Thereafter, the husband’s whole family turned against the couple. The husband
was seen as a weak person. The father-in-law told the wife many times that she
was “playing with fire” if she did not obey his
instructions. Her husband’s siblings also blamed the adult Applicants whenever
misfortunes occurred in the village, saying the gods were angry because they
had not circumcised their daughter.
[7]
Shortly after the eldest daughter turned five
years old, the wife’s brother-in-law and sister-in-law went to her house and
tried to forcibly take her daughter away to be circumcised. There was a loud
altercation in which the wife was slapped in the face and pushed by her
brother-in-law; she screamed and a neighbour was able to persuade the
brother-in-law and sister-in-law to leave. As the husband was studying out of
the country at the time, the wife and children moved to a friend’s house where
they stayed for two weeks. Eventually, the wife had to stop going to work as
she was being harassed there by the husband’s family. On two occasions,
strangers went to the children’s school to ask after them. When the husband
returned to Nigeria, the Applicants reported the original incident to the
police. No action was taken by the police as they said it was a family matter
that should be reconciled privately. When the wife later discovered she was
pregnant she and her husband applied for a visa to the United States and left
their home in Benin-City. They moved to Lagos to stay with the wife’s uncle,
where they remained until they travelled to the United States and, eventually,
to Canada.
III.
THE RPD DECISION
[8]
The RPD decision was rendered June 28, 2013. It
found the determinative issue was that the Applicants had a viable IFA to Lagos
or Abuja. In arriving at that determination, the RPD applied the two-pronged
test set out in Rasaratnam v Canada (Minister of Employment and Immigration),
[1992] 1 FCR 706 (CA), determining first that there was no serious possibility
of the Applicants being persecuted in either Lagos or Abuja and then that it
would not be unreasonable for the Applicants to seek refuge there.
[9]
The RPD addressed the Applicant’s claim that the
husband’s father would look for the Applicants anywhere in Nigeria. The wife
had testified that he was popular and she believed he would find out they had
re-entered Nigeria, would know where they are and would look for them. The
husband testified that his father was very influential and would look for them
anywhere. He said that after they moved to Lagos they had received threatening
phone calls so they threw their phones away. The RPD found that there was no
evidence that the husband’s father was able to contact them after that. The
panel said it was not persuaded that the father/father-in-law would have the
ability or resources to locate the applicants in large urban centres such as
Lagos or Abuja. The conclusion was that it was not unreasonable for the
applicants to seek refuge in either of those two cities.
IV.
THE FIRST RAD DECISION
[10]
The Applicants appealed the RPD decision to the
RAD and received a decision dated September 25, 2013. On judicial review, Madam
Justice Heneghan set this decision aside and sent the matter back for
redetermination because the panel had applied the wrong standard of review.
Relying on Newton v Criminal Trial Lawyers’ Association, 2010 ABCA 399,
the RAD applied a reasonableness standard of review to the RPD decision, which
was a reviewable error.
[11]
Because the RAD decision was sent back for
redetermination on the basis of the standard of review applied, Madam Justice
Heneghan did not review the decision on its merits.
V.
ANALYSIS OF THE RAD DECISION UNDER REVIEW
A.
Standard of Review
[12]
In the Decision under review, the RAD applied
the standard of review set out by Mr. Justice Phelan in Huruglica v
Canada (Citizenship and Immigration), 2014 FC 799. The panel determined
that it would conduct its own assessment of the RPD’s decision and come to an
independent assessment of whether the Applicants were convention refugees or
persons in need of protection. It would afford deference to the credibility
findings of the RPD or to other findings where the RPD had a particular
advantage in reaching its conclusions.
[13]
When reviewing a decision of the RAD, the
standard of review this Court applies is reasonableness: Canada (Citizenship
and Immigration) v Huruglica, 2016 FCA 93 at para 35. For issues of
procedural fairness, the standard of review is correctness: Mission
Institution v Khela, 2014 SCC 24 at para 79.
[14]
The reasonableness of a decision is determined
by examining whether the decision-making process was justifiable, intelligible
and transparent as well as whether the decision falls within the range of
possible, acceptable outcomes defensible on the facts and law. When applying
the correctness standard, the Court will not show deference to the decision
maker’s reasoning process: Dunsmuir v New Brunswick, 2008 SCC 9 at paras
47 and 50.
B.
The Applicants’ Submissions to the RAD
[15]
The Applicants’ submissions to the RAD only
addressed the viability of the IFA, as the RPD found that issue determinative. The
submissions alleged that the RPD failed to deal with documentary evidence and
should have given consideration to the humanitarian and compassionate factors
affecting the Applicants when assessing the reasonableness of the IFA. They
submitted that the RPD erred when it concluded the Applicants would be safe in
Lagos or Abujar, as in order to do so, they would need to be in hiding. They
also submitted the RPD had failed to consider that other persons, such as the
husband’s siblings, had also been agents of persecution and there was no
analysis of how likely it was that they might search for the Applicants.
[16]
According to the Applicant’s, the RPD had focussed
exclusively on the husband’s father. The Applicants challenged the statement by
the RPD that the father would not have “the ability or
the resources” to locate the family in a large urban centre saying the
evidence was to the contrary as the father was influential in the village and that
he had left his village to go to Benin City.
C.
The RAD’s Process of Review
[17]
The RAD reviewed the criteria for establishing
the existence of an IFA and considered the submissions about the ability of the
husband’s father to locate the Applicants or to influence others to locate them
and persecute them. The RAD found there was no evidence that the father’s
influence extended beyond the village. It specifically found that there was
also no evidence that villagers should be feared as no one other than the
immediate family had been involved in threatening the Applicants.
[18]
Importantly, the RAD reviewed the recording of
the hearing. It noted that the husband said the family received telephone threats
while they were in Lagos and subsequently threw their telephones way. The RPD had
confronted the Applicants about omitting these threats from the BOC but made no
finding in relation thereto. Nonetheless, the RAD at paragraph 23 of the
Decision made the following finding about the wife’s testimony on this matter:
The female Appellant paused for a long time
and then explained that she did not know that she should have included
everything that happened in her BoC. The RPD member did not make a finding on
this omission in the Reasons; however, the RAD finds that the omission and the
inadequate explanation for the omission undermined the allegations for the
following reasons.
[19]
The RAD then reviewed that the Applicants were
represented by counsel when the BOC was written and, being threatened on
several occasions in Lagos, approximately 250 km from Benin City, was a
significant event that should have been included in the BOC. The resulting
conclusion drawn by the RAD was that:
The RAD finds, on the basis of the foregoing, that the testimony
related to the threats in Lagos was an embellishment at the hearing to support
their allegations that they would not be safe in Lagos.
[20]
The Applicants say it was procedurally unfair of
the RAD to impugn the wife’s credibility. Given that no finding in this regard
was made by the RPD, the Applicants made no submissions to the RAD about
credibility.
D.
The RAD Decision was made in a Procedurally
Unfair Manner
[21]
I agree with the Applicants. The RPD had the
advantage of seeing and hearing the wife give this testimony while the RAD only
heard the audio recording. Had the RAD given the Applicants a chance to make
submissions about the pause in her testimony it may have been that it was
caused by a disturbance in the room or some other reason for the pause. The
RPD, which had an advantage over the RAD on this matter, made no credibility
finding after addressing this issue with the Applicants. The RAD’s conclusion
is purely speculative however it was used to support the conclusion that there
was a viable IFA.
[22]
In arriving at the credibility finding, the RAD
failed to turn its mind to and apply the guidance provided by Madam Justice
Kane in Ching v Canada (Citizenship and Immigration), 2015 FC 725. The
RAD should have considered whether the credibility finding, made after
listening to the audio of the hearing, was a new issue. If the RAD decided it
was a new issue, it should have considered whether it was essential to address
the finding in order to avoid an injustice. In that event the RAD should then
have provided the Applicants with an opportunity to make submissions on the
issue. By the RAD failing to go through this process and making a determination
on an issue of credibility that was raised for the first time by the RAD, the
Decision was procedurally unfair to the Applicants.
[23]
As an aside, I note that the wording in
paragraph 23 of the Decision is almost identical to the wording in paragraph 33
of the first RAD decision. There are minor differences between the two versions,
but the overwhelming similarities give me pause to wonder whether there was an
independent assessment made of the wife’s testimony. While this troubles me,
the determinative issue is that the RAD did not allow the Applicants to address
the credibility concern which arose for the first time at the RAD.
[24]
Given this finding, it is not necessary to
address the Applicants’ allegation that the Decision was unreasonable as the
IFA required the family to go into hiding because the persecutors were family
members.
VI.
CONCLUSION
[25]
The Decision by the RAD was procedurally unfair
as it did not provide the Applicants with the right to make submissions about
the wife’s testimony. In addition, as stated by Mr. Justice Annis in Ojarikre
v Canada (Citizenship and Immigration), 2015 FC 896, since the Applicants were
not aware that the wife’s credibility would be an issue determined by the RAD,
they were deprived of their statutory rights under subsection 110(4) of the IRPA
to submit further evidence with respect to the issue.
[26]
As a result, the application is allowed and the
matter is remitted to another panel of the RAD for redetermination.
[27]
Neither party suggested a serious question of
general importance for certification nor does one arise in these circumstances.
Email this Content