Date: 20171205
Docket: IMM-1218-17
Citation:
2017 FC 1103
Ottawa, Ontario, December 5, 2017
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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SOPHIA ERAKPOWERI AKPONAH
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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 a judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], of a decision dated on February 24, 2017 [Decision] by a senior
immigration officer [Officer] refusing the Applicant’s humanitarian and
compassionate [H&C] application pursuant to section 25(1) of the IRPA.
[2]
The Applicant argues that the Decision is
unreasonable due to its overreliance on the determinations of the Refugee Appeal
Division [RAD], in particular in adopting its conclusion that challenging
economic and social conditions in Nigeria could be mitigated by the Applicant
moving to Abuja, which the RAD found to be an internal flight alternative [IFA].
[3]
The Court concludes that reliance upon an IFA
finding in a refugee claim to mitigate economic and social circumstances in an
H&C application without consideration of the underlying evidence supporting
the IFA, or the contradictory evidence of the Applicant, raises a reviewable error,
such that the application is allowed.
I.
Background
[4]
The Applicant, Sophia Erakpoweri Akponah, is a
citizen of Nigeria. She has two Canadian born daughters with unknown fathers.
Her first daughter was born on January 2, 2015 and the second on August 19,
2016.
[5]
The Applicant entered Canada on September 29,
2014 and made her claim for refugee protection on November 6, 2014.
[6]
On February 11, 2015, her refugee claim was
refused by the Refugee Protection Division [RPD]. On June 10, 2015, the RAD
dismissed her appeal of the RPD decision.
[7]
On October 5, 2015, this Court denied the
Applicant’s leave application of the RAD decision.
[8]
The Applicant also sought leave to judicially
review the decision of the Pre-Removal Risk Assessment officer that she was not
in need of protection. The leave application was dismissed by this Court in
March 2017.
[9]
On February 24, 2017, the Applicant made a
H&C application seeking an exemption from the requirement under the IRPA to
obtain a permanent resident visa at a visa office outside Canada. The Officer denied
her H&C application on the grounds that there were insufficient H&C
considerations to justify an exemption under section 25(1) of the IRPA.
II.
The Impugned Decision
[10]
After having examined and considered
cumulatively all the factors the Applicant put forth in her application, the
Officer found that the requested exemption from the normal processing of an
application for permanent residence was not justified.
[11]
The Officer considered the Applicant’s degree of
establishment in Canada, but concluded that it was not unusual and not beyond the
degree of establishment expected of someone who had been residing here since
September 2014.
[12]
The Officer also considered the best interests
of the Applicant’s daughters, and concluded that there was insufficient
objective evidence to demonstrate that the Applicant’s removal from Canada
would adversely affect her two daughters. The Officer concluded that the level
of dependency between the young pre-school children and the Applicant is high,
and that they would have and will continue to have the full benefit of care
from their mother to guide them through the transitional phase in their life
that resettlement abroad would entail.
[13]
With respect to fears that the practice of
female genital mutilation [FGM] poses a threat to her life and that of her
children, the Officer relied upon the adverse credibility findings of the RAD against
the Applicant and the country conditions evidence to conclude that there was
insufficient evidence to corroborate that she had been asked to engage in the
cultural practice or that she would suffer any punitive consequences or have to
comply with the practice being performed on her daughters.
[14]
With respect to the social political and
economic challenges facing a single mother, the Officer relied upon the
decision of the RAD, which relied upon the findings of the RPD, that given the
Applicant’s profile as an educated single woman, her employment potential and
proven ability to provide for herself in Canada, that she could reasonably be
expected to find employment in Abuja and support herself, such that relocation
there was a reasonable option to mitigate any potential economic or social
hardship.
III.
Issues
[15]
This application raises the following issues:
1. Whether the Officer’s treatment of the social and economic evidence
concerning hardship was reasonable?
2. Whether the Officer committed a reviewable error in finding that
relocation to Abuja had been identified by the RAD as a reasonable option to
mitigate any potential economic or social hardship?
3. Whether the Officer breached the Applicant’s right to procedural
fairness by relying on the finding of the RAD without first providing notice to
the Applicant?
IV.
Standard of Review
[16]
The standard of review of the Officer’s
conclusions with respect to findings of fact, mixed fact and law, in the
exercise of his discretion, is reasonableness. Under this highly deferential
standard of review, this Court should not intervene unless the Officer’s
conclusions do not fall within the range of possible acceptable outcomes which
are defensible in respect of the facts and law: Dunsmuir v New Brunswick,
2008 SCC 9 at paras 47, 53 and 55; Kanthasamy v Canada (Citizenship and
Immigration), 2015 SCC 61 at para 44. An officer’s decision under
subsection 25(1) is highly discretionary since this provision “provides a mechanism to deal with exceptional
circumstances,” and the officer “must be
accorded a considerable degree of deference” by the Court: Williams v
Canada (Citizenship and Immigration), 2016 FC 1303 at para 4; Legault v
Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at para 15.
[17]
The standard to review for issues of procedural
fairness is correctness: Mission Institution v Khela, 2014 SCC 24 at
para 79. Moreover, the Court must determine whether the process followed in
arriving at the decision under review achieved the level of fairness required
by the circumstances of the matter: Suresh v Canada (Minister of Citizenship
and Immigration), 2002 SCC 1 at para 115.
V.
Analysis
[18]
The Court concludes that the primary issue in
this matter is whether the Officer was transparent and fettered the decision by
relying on the RAD’s conclusions from its IFA analysis, that the Applicant and
her children would not be subject to undue hardship with respect to her
employment opportunities and her ability to support herself and her children,
if removed to Nigeria.
A.
Reliance on the Nigeria 2014 Report of the
United Kingdom Home Office
[19]
A collateral issue in this matter relates to a
submission by the Respondent that the Applicant made reference to the Nigeria
2014 Report of the United Kingdom Home Office [UK Report] that was not properly
before the Officer. The Court agrees with this submission, but ironically
concludes that it ought to have been before the Officer as part of her record,
as it is the primary document relied upon in concluding that relocation to
Abuja would mitigate any potential economic or social hardship.
[20]
The UK Report was referred to implicitly by the
Officer in her conclusion that the Applicant could find employment in Abuja and
support herself. The following quotation from paragraphs 97 and 98 of the RAD
decision formed the basis for the Officer’s decision:
The RPD went on to find, given the
documentary evidence [48] that the availability of job opportunities is not a
significant factor in relocating to large cities, and given the Appellant’s
level of education and capabilities, she could reasonably be expected to find
employment in Abuja and support herself.
[…] The RPD acknowledged that the Appellant
stated in her BoC that she has family members in Nigeria, namely, her mother
and siblings. Given the Appellant’s university education, employment potential,
and ability to provide for herself, as evidenced by her ability to establish
and provide for herself in Canada, the RAD concurs with the RPD’s finding, on a
balance of probabilities that the appellant could reasonably support herself in
Abuja. Further there was no persuasive evidence of the details of any
connections her father may have had with Abuja and on the balance of
probabilities, there was no persuasive evidence to establish she would be
recognized or sought out in Abuja.
[Footnotes omitted and square brackets added
for emphasis]
[21]
The Officer’s quotation of the RAD in the
Decision was not exact however. It did not include footnote number 48, which I
have emphasized above, with square brackets in the first paragraph. The
footnote, as it turns out, references the UK Report. As is obvious from the
passage above, it formed the basis for the RPD’s conclusion that the Applicant “could reasonably be expected to find employment in Abuja and
support herself”.
[22]
The Respondent argues that the UK Report “was never included as part of her evidence to the officer”.
Given that the Officer specifically quoted the reference in the RAD decision
above, which specifically footnoted the UK Report, although not referenced in
the Officer’s Decision, the Court has no initial difficulty with the Applicant
referring to the UK Report. However, the Court notes that the Applicant never
introduced the UK Report into evidence. Instead, she only referred to passages
from it in her memorandum. There is no evidentiary foundation for the Court to
consider the UK Report, as a memorandum of argument cannot be used to introduce
evidence.
B.
The Officer’s lack of transparency in relying on
the UK report
[23]
The fact that the UK Report was not properly
introduced into evidence before the Court does not lead to the conclusion that
it is not a relevant document in these proceedings. Indeed, it is the Court’s
conclusion that the Officer should have consulted the UK Report and referred to
it in her decision. It alone forms the basis, via the conclusion of the RPD,
and thereafter the RAD, for her conclusion that the Applicant could reasonably
be expected to find employment and support herself in Abuja. Yet, the Court finds
no basis to conclude that the Officer consulted the document in arriving at her
decision. The footnote reference to in the UK Report in the RAD passage cited
is omitted. Moreover, the RPD was only indirectly mentioned as referred to by
the RAD, as in the passage cited above. References to the RAD decision were
footnoted in the Officer’s decision. The Respondent included the RAD decision
in its responding materials, but not that of the RPD, presumably because it was
not in the certified record.
[24]
It is problematic that the source document for
the Officer’s conclusion that the Applicant could be expected to find
employment in Abuja was not considered or mentioned by the Officer. The
Applicant provided evidence that appears to contradict this conclusion which
was not considered by the Officer. Moreover, the Applicant’s evidence was found
in reports which the Officer referred to and relied upon in rejecting the
Applicant’s submissions regarding a separate issue of a risk of FGM for her and
her daughters upon return to Nigeria: “Response to
Information Request, NGA103907.E”.
[25]
There is no reference in the H&C decision to
the problems outlined in these reports facing single women in obtaining
suitable employment and housing in Nigeria. The reports refer to the difficulties
confronted by unmarried women, in particular with respect to being victims of
discrimination, gender stereotyping and violence; that women in general face
considerable economic discrimination; that laws intended to protect them are
ineffective in their implementation in practice; and that without a male or
family support, women face major challenges in the cost of running a home.
[26]
Perhaps most importantly with respect to the
Applicant’s profile as an educated and capable person, the reports refer to the
high unemployment rate among educated women in urban areas; that educated
single women require social status in order to use “family
connections” to obtain employment; that women face discrimination in
accessing formal employment support; and that they are discriminated against in
almost all private industries in respect of obtaining promotions and salary
increases.
[27]
The Court’s transparency concerns are therefore
at two levels. First, there is no objective evidence concerning the reasonable
employability of single women in Abuja, apart from a reference in the RAD
decision based upon a conclusion drawn by the RPD, where the source document
appears not to have been considered by the Officer, and is not available for
review by the Court. Second, at the same time, there is evidence in documents
provided by the Applicant suggesting considerable employment problems facing a
single educated woman relocating to urban areas not referred to in the
Officer’s decision, despite the document containing this information being
replied upon by the Officer to support other conclusions.
C.
Reliance upon unsupported conclusions of an IFA
for the purposes of an H&C application
[28]
Besides the transparency concerns described
above, the Court concludes that findings from the RAD and RPD in regard to an
IFA are not directly transferable to an H&C analysis without the Officer
conducting her own personalized assessment of the underlying evidence.
[29]
Nothing prevents the Officer from reviewing the
evidence supporting an IFA and considering it in its determination of whether
the Applicant may benefit from an internal relocation alternative to mitigate
hardship, if applicable. This is not at issue, contrary to the Applicant’s
submissions. But the Officer cannot simply accept a conclusion on a factor
which appears applicable to an H&C decision without regard to the objective
evidence underlying the conclusion. This is because
H&C hardship conclusions are not relevant to risk and safety conclusions in
RPD/RAD decisions, so that the same principle must apply when reversing the
situation of adopting evidence from a refugee proceeding.
[30]
In Ranganathan v Canada (Minister of
Citizenship and Immigration), [2001] 2 FCR 164 at paras 15−18 [Ranganathan],
the Federal Court of Appeal concluded that H&C factors were not relevant to
the determination of the second prong of the IFA test (whether it is
objectively unreasonable to relocate):
[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.
[16] There are at least two reasons why
it is important not to lower that threshold. First, as this Court said in Thirunavukkarasu
[at page 599], the definition of refugee under the Convention "requires
claimants to be unable or unwilling by reason of fear of persecution to claim
the protection of their home country in any part of that country". Put
another way, what makes a person a refugee under the Convention is his fear of
persecution by his home country in any part of that country. To expand and
lower the standard for assessing reasonableness of the IFA is to fundamentally
denature the definition of refugee: one becomes a refugee who has no fear of
persecution and who would be better off in Canada physically, economically and
emotionally than in a safe place in his own country.
[17] Second, it creates confusion by blurring
the distinction between refugee claims and humanitarian and compassionate
applications. These are two procedures governed by different objectives and
considerations. As Rothstein J. said in Kanagaratnam at page 133:
While in the
broadest sense, Canada's refugee policy may be founded on humanitarian and
compassionate considerations, that terminology in the Immigration Act and the
procedures followed by officials under it, has taken on a particular
connotation. Humanitarian and compassionate considerations normally arise after
an applicant has been found not to be a Convention refugee. The panel's
failure to consider humanitarian and compassionate factors in its Convention
refugee determination in this case was not an error.
Indeed, the
guidelines applicable to humanitarian applications are both generous and
flexible: see Immigration Manual (1999), Chapter 6, The H & C
Decision: Immigrant Applications in Canada made on H & C grounds, at pages
13-32. They are certainly broad enough, in my view, to be of assistance to the
respondent should she decide to make such an application. The more
humanitarian grounds are allowed to enter the determination of a refugee claim,
the more the refugee procedure resembles and blends into the humanitarian and
compassionate procedure. As a result, the more likely the concept of
persecution is to be replaced in practice by that of hardship in the definition
of refugee.
[Emphasis added]
[31]
The RAD, in relation to the Applicant,
specifically referenced the foregoing case law describing the high threshold
facing an applicant on the issue of an IFA at paragraph 101 of its decision
(with the word “not” accidentally included) as
follows:
[101] Once the issue of an internal flight alternative is raised, the onus is on
the refugee claimant to show that the option does not exist, by establishing
that either of the two tests cited in Rasaratnam criteria is not met.
The Federal Court of Appeal in Thirunavukkarasu stated that an applicant need only show that there is a serious
possibility of being persecuted in the new location or that their removal to
Nigeria would [not] subject them personally to a risk to life or of
cruel and unusual treatment or punishment, or a danger, believed on substantial
grounds to exist of torture. The RAD finds that the Appellant has failed to show that the IFA Option is not
available to her.
[Footnotes omitted]
[32]
Almost all of the RAD’s evidence concerning “employment opportunities” in its IFA conclusion,
where reference was made to adverse country conditions relating to single
women, pertained to safety and risk issues, such as those of domestic violence,
ethnic affiliation, vulnerability to abuse, harassment and trafficking, or
being targeted by unscrupulous men. The only reference not relating to safety
issues was that of the availability of employment opportunities of single women
in relocation to Abuja. In the Court’s view, the tenor of the RAD decision
throughout, related to risk issues and not those of hardship. Indeed, the
passage cited by the Officer from the RAD concludes by stating that she would
not be at risk of being found by her father or recognized or sought out in
Abuja, relating to safety concerns, not those of hardship.
[33]
The threshold for demonstrating that a “claimant’s life or safety would be jeopardized” is
far more demanding in terms of the severity of prejudice to the applicant in a
refugee matter, than it is required to demonstrate hardship in an H&C
complaint. The Officer cannot rely on the RAD’s IFA conclusion because
it was never intended to reflect H&C issues. They only come into
consideration after refugee proceedings were completed, when it has been
determined that the “very high threshold for the
unreasonableness test” for an IFA has been met.
[34]
The Court is not implying that principles of
relocation within the country to avoid hardship are not relevant issues. Nor is
the Court suggesting that decisions of the RPD and RAD concerning an IFA are
not relevant and cannot be relied upon by the Officer. The issue in this matter
is the apparent total reliance upon a conclusion of employability in the
RAD decision, without responding to the evidence in the Applicant’s documents
which raised issues as to the availability of suitable employment, or
discrimination in the workplace affecting the Applicant’s ability, as a single
divorced woman, to support herself and her children in Abuja.
[35]
I find this view to be similarly supported in
the recent decision of Mr. Justice Boswell in the matter of Baco v Canada (Citizenship
and Immigration), 2017 FC 694 at para 21[Baco]. It stands in part
for the proposition that an officer conducting an H&C assessment may “look to the existence of an IFA” in the context of
assessing hardship:
[21] In my view, it is inappropriate
to import case law concerning refugee decisions in the context of an H&C
application because an H&C officer cannot assess risk pursuant to
subsection 25(1.3) of the IRPA.[…] An IFA is an integral aspect of
whether a refugee claimant requires Canada’s protection, since the availability
of a place within a claimant’s home country where the claimant would not have a
well-founded fear of persecution, or face a risk to life, or a risk of cruel
and unusual treatment or punishment, relieves Canada from its obligations under
the Convention relating to the Status of Refugees, 22 April 1954, 189
UNTS 150. This is not to say, however, that an H&C cannot look to the
existence of an IFA in the context of assessing hardship when determining
whether to grant or not grant an exemption under section 25(1) of the IRPA.
[Emphasis added]
[36]
I would add however, that it is not simply
because that the H&C officer cannot assess risk, but as indicated in the Kanagaratnam
and Ranganathan decisions because the “very high
threshold for the unreasonableness test” prevents an IFA finding from
being directly imported into an H&C decision without carrying out a
personal assessment of the applicability of its underlying evidence to the
Applicant’s situation in an H&C matter. I would understand “looking to the existence of an IFA”, in the context
of assessing hardship, to mean considering its underlying evidence to determine
its applicability to relocation to avoid or mitigate conditions of undue
hardship.
[37]
As a further factor, the Court notes that the
RAD never considered the risk issues relating to the Applicant’s children relocating,
as they were not applicants in the refugee proceedings, and therefore never
figured in the decisions. With respect to the best interests of the children issue,
the Officer principally relied upon the profile of the Applicant as an educated
and capable woman to conclude that “they have and will
continue to have the full benefit of care from their mother to guide them
through the transitional phase in their life that resettlement abroad would
entail”. Given that the children’s interests require the full benefit
and care of the Applicant, her employment situation could impact her ability to
provide the care required if relocated to Abuja, and therefore is a possible
factor to consider in the relocation scenario.
D.
The procedural fairness requirement to provide
notice of a relocation option as a factor in an H&C assessment
[38]
The Applicant raises a procedural fairness issue
as to whether she should have been afforded an opportunity to respond to the
issue of her relocation to Abuja. By analogy it would seem logical that if
there is a fairness principle that applies to an IFA argument in refugee
proceedings, it should also apply to an H&C application. This was the ratio
of the Baco decision at paragraphs 21 and 22 of the reasons as follows:
[21] […]It is to say though, from a
procedural fairness perspective, the Officer in this case should have afforded
the Applicants an opportunity to address the viability of an IFA in Fier. The
Applicants’ H&C submissions did not raise this issue.
[22] Fairness dictates that the
Applicants should have had notice that the Officer was going to address whether
their hardship could be mitigated by relocating to a different part of Albania.
For all the Officer knew, there may have been some facts or factors within the
Applicants’ knowledge, unidentified by or unknown to the Officer, which may
have affected the Officer’s finding that their hardship could be mitigated or
reduced by relocating to Fier.
[39]
In Baco, there was no mention of an IFA
in the refugee proceedings, thus taking the applicant by surprise when finding
it to be a factor in the H&C decision. In this matter, the Applicant was
aware of the IFA finding in both refugee proceedings. The Applicant should also
be aware that relocation within the country which mitigates or eliminates
hardship is a similar consideration in an H&C decision.
[40]
Therefore, the extent that the evidence
considered in the refugee proceedings could be relevant to a requirement for
the Applicant to relocate, the Applicant should anticipate and address the
issue. That appears to be the situation in this matter where the RPD and RAD
addressed evidence concerning the economic and social conditions in Abuja that
bear on the hardship issue. These circumstances distinguish the situation from
that in the Baco decision. Accordingly, I find no breach of procedural
fairness in not providing the Applicant with an opportunity to address the
relocation issue.
VI.
Conclusion
[41]
The Court finds that the Officer made a
reviewable error in adopting the finding from the IFA conclusion of the RAD
that the Applicant could mitigate any potential economic or social hardship by
relocating to Abuja without regard to the underlying evidence supporting the
conclusion in the face of contrary evidence from the Applicant. The issue is of
sufficient importance to impact the outcome of the decision.
[42]
Accordingly, the application is allowed and the
decision is set aside. The matter is to be referred to a different officer for
decision.
VII.
Certified Question
[43]
To be certified, a question must (i) be
dispositive of the appeal and (ii) transcend the interests of the immediate
parties to the litigation, as well as contemplate issues of broad significance
or general importance. As a corollary, the question must also have been raised
and dealt with by the court below, and it must arise from the case, not from
the Judge’s reasons: Liyanagamage v Canada (Secretary of State), 176 NR
4 at para 4; Canada (Minister of Citizenship and Immigration) v Zazai,
2004 FCA 89 at paras11−12; Varela v Canada (Minister of Citizenship
and Immigration), 2009 FCA 145 at paras 28−29 and 32; Zhang v Canada (Citizenship
and Immigration), 2013 FCA
168 at para 9.
[44]
Both parties proposed a question for
certification. The Respondent argued that that no question should be certified.
This argument was based upon its position that the Officer could consider and
rely upon the IFA finding. In the alternative, were a question was to be
certified, the Respondent proposed the following wording:
Recognizing that the officer is not bound by
the findings of the RPD or the RAD, is it permissible for the officer, when
making humanitarian and compassionate determinations, to consider and rely upon
a finding made by the RAD or the RPD that an applicant may relocate within
his/her country as a means to mitigate any potential economic or social
hardship?
[45]
There is no issue as to the Officer being able
to consider an IFA finding, meaning that consideration of the evidence
supporting an IFA finding is relevant to an H&C assessment. Insofar as I
find reliance upon the conclusion is based on the adequacy of the consideration
by the Officer of the RPD or RAD reasoning, there is no question for
certification.
[46]
The Applicant proposed the following question:
Can an officer assessing an IRPA S. 25(1)
application consider an internal flight alternative? If the officer can do so,
what are the parameters? In particular, is the officer required to give prior
notice of an IFA issue to the applicant?
[47]
The Court concludes that there is also no issue
that an officer in an H&C application may consider an IFA to mitigate
hardship in the manner described above, or that notice of the issue may be
required depending upon the factual circumstances reasonably forewarning that
the issue may arise in the H&C application.
[48]
As the questions proposed do not raise legal
issues that are contentious, and are fact driven in application, none are certified
for appeal.
JUDGMENT for IMM-1218-17
THIS
COURT’S JUDGMENT is that the application is allowed
and the matter is to be referred back to a different officer for
reconsideration. No question is certified for appeal.
"Peter Annis"
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