Docket: IMM-3058-15
Citation:
2016 FC 204
Ottawa, Ontario, February 16, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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MORIYIKE
EGBESOLA
TENIOLA
EGBESOLA (MINOR)
OLATEJU
EGBESOLA (MINOR)
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicants seek judicial review of a
decision of the Refugee Appeal Division [RAD], affirming the Refugee Protection
Division’s [RPD] decision to deny their refugee claim.
[2]
The applicants are a mother, Moriyike Egbesola, her
son, Olateju Egbesola, and daughter, Teniola Egbesola, who are both minors.
The applicants are citizens of Nigeria. They sought refugee protection in
Canada on the grounds that, if returned to Nigeria, the mother (the principal
applicant) and her daughter will be subject to female genital mutilation [FGM].
[3]
For the reasons that follow, this application
must be dismissed.
Background
[4]
The principal applicant claims that her
husband’s extended family tried to force her and her daughter to undergo FGM. In
July 2013, the family of the husband of the principal applicant suggested that her
daughter undergo FGM. Initially, the husband, Olusola Kunle Egbesola, joined the
principal applicant in opposing FGM. However, after being pressured by his
extended family, he began to change his position and, in July 2014, eventually
agreed that both his wife and his daughter should undergo FGM on November 30,
2014. The principal applicant pretended to acquiesce to her husband’s wishes,
while secretly planning to move to Canada and seek protection.
[5]
On August 23, 2014, the applicants left Nigeria
for a vacation in the United States. They were joined by the principal
applicant’s husband on August 25, 2014. The husband returned to Nigeria on
September 8, 2014, and the applicants were supposed to return on September 10,
2014. Instead, the applicants stayed in the United States and made
arrangements, with the help of an agent, to get into Canada to make refugee
claims.
[6]
On October 1, 2014, the applicants entered
Canada with the agent. They made refugee claims two weeks later in Toronto.
[7]
On January 21, 2015, the RPD rejected the
applicants’ claims. It held that the principal applicant’s story lacked
credibility and, largely on that basis, found that the applicants were not
Convention refugees or persons in need of protection. In the alternative, the
RPD also held that an internal flight alternative [IFA] was available in Port
Harcourt, Nigeria.
[8]
In its appeal to the RAD, the applicants raised
four issues, including a submission that the RPD had failed to conduct a
thorough IFA analysis. The RAD rested its decision solely on the RPD’s IFA
finding, which it found was reasonable.
Issues
[9]
The applicants raise several issues on judicial
review, but they concede that if the RAD’s IFA finding is reasonable, that is
determinative of the application. Because I find that the IFA finding is
reasonable, the other issues raised, which may have merit, need not be
addressed.
Analysis
[10]
The applicants object to the RAD’s identification
of Port Harcourt as an IFA. First, they submit that the RAD’s analysis ignored
the report of Dr. Gerald Devins, who found that the principal applicant
suffered from post-traumatic stress disorder, that her treatment “should not be interrupted,” and that “[i]f refused permission to remain in Canada, her condition
will deteriorate.” Dr. Devins concluded that “Ms.
Egbesola’s condition can improve with appropriate care and guaranteed freedom
from the threat of removal” and that “it will be
impossible for Ms. Egbesola to feel safe anywhere in Nigeria.” Second,
they submit that the RAD ignored relevant documentary evidence when assessing
Port Harcourt’s suitability as an IFA. Third, they submit that the RAD failed
to consider evidence that the principal applicant would have poor employment
prospects in Port Harcourt. Fourth, the applicants submit that the RAD failed
to reasonably assess their claim that the applicant’s husband’s family, and the
Nigerian police, are looking for the principal applicant and will be able to
find her anywhere in Nigeria. I shall address these four submissions in some
detail.
[11]
As to the first submission, I accept that the
RAD does not specifically mention the report from Dr. Devins, but that fact
alone does not establish that it failed to consider it. The report must be
considered on the basis of what it may actually establish from an evidentiary
standpoint.
[12]
As submitted by the respondent, the “facts” on which the report is based are those told to
Dr. Devins by the principal applicant, and thus are not facts until found to be
so by the tribunal. What can be reasonably taken from the report is that the
principal applicant suffers from PTSD, and that she requires medical treatment
for it.
[13]
This Court has observed that reports such as
that before the RAD may cross the line separating expert opinion from advocacy:
Molefe v Canada (Minister of Citizenship and Immigration), 2015 FC 317 [Molefe].
In Molefe, Justice Mosley found at para 34 that the report submitted in
that case, also from Dr. Devins, had crossed the line and was not of “such
importance to a central issue of the case that the failure to mention it and
analyse it requires a finding that the decision was not made in accordance with
the evidence.” Justice Mosley writes at para 32:
In my view, Dr Devins’s report crosses the
line separating expert opinion from advocacy. Indeed, it concludes as follows:
Ms Molefe’s condition can improve
with appropriate care and guaranteed freedom from her threat of removal. It is
fortunate, therefore, that she is currently receiving ongoing counselling.
This should not be interrupted. If refused permission to remain in Canada, her
condition will deteriorate. As noted, it will be impossible for Ms Molefe to
feel safe anywhere in Botswana.
[14]
Virtually identical language is found in Dr.
Devins’ report in this case. Here he writes:
Ms. Egbesola’s condition can improve with
appropriate care and guaranteed freedom from the threat of removal. If refused
permission to remain in Canada, her condition will deteriorate. As noted, it
will be impossible for Ms. Egbesola to feel safe anywhere in Nigeria.
[15]
Like Justice Mosley, it is my view that the
doctor became an advocate and the statement that the principal applicant will
not feel safe anywhere in Nigeria has virtually no probative value. To the
extent that the report does offer expert opinion, the RAD did consider whether the
applicant would have access to healthcare in Port Harcourt, and found that she
would. This is not challenged by the principal applicant. Accordingly, the
failure to directly address the medical report does not render the IFA finding
unreasonable.
[16]
As to the second submission, I do not agree with
the applicants that the RAD ignored relevant documentary evidence when
assessing Port Harcourt’s suitability as an IFA. It was submitted that the RAD
failed to properly consider whether Port Harcourt was an appropriate IFA for
the applicant given her personal circumstances, even if objectively she could
be provided protection there.
[17]
In my assessment, much of the information cited
by the applicants is consistent with the RAD’s decision. It suggests that
relocation within Nigeria is a realistic option for adult women, including in
cases involving FGM, but cautions that some women may be vulnerable to abuse,
especially when relocating to an area where they have no family connections. The
principal applicant does not fit that profile. She has at least one family
connection in Port Harcourt: the uncle who submitted an affidavit on her behalf.
While this uncle’s evidence was not found to be credible, it is clear from his
affidavit that he does not think she is a witch and he supports her resistance
to FGM. Accordingly, the principal applicant will have some personal support
in the IFA.
[18]
As to the third submission, the applicants claim
that the RAD ignored evidence about the principal applicant’s employment
prospects. In their memorandum of argument before the RAD, the applicants make
the following submissions:
The Appellant testified that she would need
the financial, material, and emotional support from her husband and family if
returned to Nigeria, that she would not be able to receive, especially since
her husband is now unemployed.
The Principal would also be unemployed upon
arriving to Nigeria; therefore, her family would have absolutely zero source of
income. While the Principal Appellant is educated, the reality of the
employment situation is bleak. Even for those who are educated, and have
experience, finding and securing employment may be difficult.
[19]
I do not accept that the RAD ignored these
submissions; it simply disagreed with the suggestion that the principal
applicant’s employment prospects were bleak. The RAD was alive to the
importance of employment prospects in Port Harcourt; that is why it noted that
Port Harcourt is a “major industrial city and is the
chief oil-refining city in Nigeria.” Given the background of the
principal applicant as an accountant, its determination on this point was
reasonable.
[20]
Lastly, the RAD did examine the claim that the
principal applicant’s husband’s family and the police are searching for the
principal applicant, and that they will be able to find her anywhere in the
country. The RAD held that those claims are not credible in light of the communications
difficulties faced by the police and public school system, and the sheer size
of the country (177 million people and just under 1 million square kilometres
of territory). The RAD also expressed doubt that the police would help the
husband’s family search for the principal applicant in Port Harcourt, given
that FGM is outlawed in the entire state of which Port Harcourt is the
capital. Notwithstanding counsel’s able submissions, I am not persuaded that
the RAD’s interpretation of the documentary evidence on the communications
difficulties of the police and the public schools was unreasonable.
[21]
Examined in totality, I find the decision of the
RAD to be reasonable and one that should not be upset on review.
[22]
No question was offered to be certified.
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