Docket: IMM-4997-15
Citation:
2016 FC 409
Toronto, Ontario, April 13, 2016
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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NIHINLOLA
VERONICA FAMUREWA
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 37 [the Act] of a pre-removal risk assessment [PRRA] decision wherein
the Officer determined that the applicant would not be subject to persecution,
danger of torture, risk to life or risk to cruel and unusual treatment or
punishment as per s 97 if returned to her country of origin.
I.
Facts
[2]
The applicant is a citizen of Nigeria. She
became a permanent resident of Canada in June 2006 after a successful skilled
worker application. Her two minor sons accompanied her to Canada but her
spouse, although approved as an accompanying dependent, remained in Nigeria.
The applicant gave birth to a daughter in Canada in October 2006.
[3]
On July 29, 2013, the applicant was convicted of
one count of aggravated assault contrary to s 268 of the Criminal Code
for burning her 10 year-old son with a hot iron. She was sentenced to 20 months
imprisonment and 3 year probation. Her children were placed in foster care,
where they remain today.
[4]
The applicant was found inadmissible to Canada
pursuant to s 36(1)(a) of the Act because of her criminal conviction and her
status was revoked. She became the subject of a removal order in February 2015,
which was stayed on November 25, 2015 by Madam Justice Strickland until final
determination on the present matters.
II.
Issues
[5]
This matter raises the following issues:
A.
Did the Officer err in finding that the applicant
was not at risk because of an outstanding arrest warrant in Nigeria?
B.
Did the Officer err in finding that there was
adequate state protection in Nigeria for women victims of domestic abuse?
III.
Decision
[6]
The Officer accepted the adverse country
conditions in Nigeria, that the applicant’s spouse had made a criminal
complaint against her and that the applicant had been a victim of domestic
violence, but found that there was not a serious possibility or more than a
mere chance that the applicant would face harm if returned to Nigeria.
[7]
The Officer noted that the applicant’s husband
had allowed the children to immigrate to Canada and that, if she were to be arrested,
she could easily access her immigration file to prepare her defence and retain
legal services from NGOs advocating for women’s rights. The Officer also noted
that the warrant issued against the applicant was dated 2006 and there was no
current evidence that the Nigerian authorities were still looking for her.
[8]
As to the allegations of mistreatment due to her
gender, the Officer found that Nigeria has mechanisms to protect women from
domestic violence and is making efforts to better assist victims of domestic
violence. The Officer however recognized that obtaining police protection is
not ideal for women in Nigeria, but given her profile as an educated woman and
the efforts Nigeria is making, the applicant should reasonably be able to
request help from the police or a higher authority. The Officer also observed
that the applicant had not tested state protection prior to immigrating to
Canada in 2006.
IV.
Submissions of the Parties
A.
The Applicant
[9]
The applicant submits that the Officer reached
several conclusions by speculating without regard to the evidence.
[10]
The Officer never impugned the applicant’s
credibility or that of her supporting documents, and accepted the adverse
country conditions as reported by the objective evidence. The Officer
nevertheless unreasonably assumed that the warrant against the applicant would
no longer be executed due to the passage of time and that she would be given
the opportunity to defend herself, if arrested.
[11]
Moreover, the Officer erred in concluding that
the applicant could benefit from state protection because Nigeria was making
efforts to help victims of domestic violence when the Officer should have
examined whether state protection was adequate.
B.
The Respondent
[12]
The respondent submits that it is not the role
of the Court to reweigh the evidence. It was reasonable for the Officer to
conclude that the warrant did not demonstrate a forward-looking risk. The applicant
simply failed to show that anyone was interested in finding her today in
relation to the 2006 warrant. It was also reasonable for the Officer to find
that, if the applicant were to be arrested, she would have a readily available
defence in her husband’s consent to their children’s immigration to Canada and
she would have access to viable options for obtaining legal defense.
[13]
Moreover, the respondent submits that the
presumption of state protection can only be displaced upon clear and convincing
confirmation of a state’s inability to protect a person. Protection has to be
adequate, not effective, and it is insufficient for the applicant to rely
solely on documentary evidence of flaws in the justice system when she has
never tested state protection in Nigeria. The applicant had to exhaust all
avenues of protection.
V.
Analysis
A.
Standard of Review
[14]
It is well-established in the jurisprudence that
an Officer’s review of the evidence in the context of a PRRA is reviewable
under the reasonableness standard. Reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process, and whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and law
(Dunsmuir v New Brunswick, 2008 SCC 9, para 47).
[15]
Determining the test for state protection is a
legal question about the interpretation of sections 96 and 97of the Act, while
the application of that test to the facts of a case is a question of mixed fact
and law. The determination of the test will therefore attract the correctness
standard, while its application will attract the reasonableness standard (Glasgow
v Canada (MCI), 2014 FC 1229, para 23).
B.
Did the Officer err in finding that the
Applicant was not at risk because of an outstanding arrest warrant in Nigeria?
[16]
I do not agree with the respondent that it was
open to the Officer to assign low probative value to an authentic warrant for
the applicant’s arrest in the absence of any evidence that the passage of time
lessened her risk of being apprehended upon her return to Nigeria. The applicant
is wanted for kidnapping her children and unlawfully taking them out of
Nigeria, which is a serious crime.
[17]
Given the nature of the charge, the Officer
assumed that the applicant should have been actively pursued by her husband and
the state of Nigeria after her departure for Canada. The applicant’s husband
may too, have decided that harassing a spouse who resides abroad is too complex
or time-consuming, or he may simply did not have the means to do it. Or, as
suggested by the Officer, he may have lost interest in regaining custody of his
children and moved on. But all that is certain is that there is a live arrest
warrant awaiting the applicant on charges of child abduction in Nigeria. The
Officer could not dismiss that evidence by relying on speculation.
[18]
As to the availability of legal assistance and
defenses should the applicant be arrested, this position presupposes that
Nigeria has a criminal justice system similar to Canada’s, in which the applicant
would be permitted to retain a lawyer after being arrested and prior to being
questioned by the police which is not supported by the documentary evidence.
[19]
I conclude that the Officer made a reviewable
error when he found that the applicant would not be at risk in Nigeria because
of the outstanding warrant for her arrest.
C.
Did the Officer err in finding that there was
adequate state protection in Nigeria for women victims of domestic abuse?
[20]
The Officer accepted the applicant’s story
unconditionally and recognized the adverse country conditions, including the
fact that “obtaining police protection in Nigeria is
not ideal for women”. In fact, the Officer, in the decision, quoted
extensively from a document stating that the current laws in Nigeria do not
adequately protect women from domestic violence. Yet, the Officer found that
Nigeria was making efforts to assist victims of domestic violence and
that the applicant, being a financially independent and educated woman, would
not face the same obstacles in obtaining protection as the general population.
[21]
“Making efforts” is not the appropriate test for state protection. It is
well-established in the jurisprudence that adequacy is the proper test (Flores
Carillo v Canada (MCI), 2008 FCA 94, para 8-11). I am not satisfied that
this was the test applied by the Officer in this case. 'Efforts' is the word
most commonly used by the Officer to describe Nigeria’s policies towards
victims of domestic abuse. Coupled with the Officer’s admissions that police
protection is 'not ideal' for women and their choice of supporting document, I
cannot conclude that the Officer used the correct test for state protection.
This constitutes another reviewable error.
[22]
For these reasons the application is allowed and
the matter is referred back for redetermination. The parties have not proposed
any questions for certification.
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