Date: 20100517
Docket: IMM-3462-09
Citation: 2010 FC 540
Ottawa, Ontario, May 17,
2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ROSELINE AANU IJIOLA AWOLOPE
JOSEPH IYANUOLU IJIOLA AWOLOPE
BLESSING IJIOLA AWOLOPE
GRACE MARIA IJIOLA AWOLOPE
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the decision of a Pre-Removal Risk Assessment Officer (Officer), dated May
26, 2009 (Decision), which refused the Applicants’ request to have their
application for permanent resident status processed from within Canada based on
Humanitarian and Compassionate (H&C) grounds pursuant to section 25 of the
Act.
BACKGROUND
[2]
The Principal
Applicant and three of her children are citizens of Nigeria. The Principal
Applicant fled Nigeria with her two daughters
and one son, staying in the United States for approximately three months. The Applicants
then came to Canada in March, 2005 and made a claim for refugee protection.
[3]
Since
her arrival in Canada, the Principal
Applicant has given birth to her fourth child, another son. He is not under a
removal order from Canada. As such, he is not
included in this application.
[4]
The
Applicants claimed refugee status upon their arrival in Canada. The Principal Applicant
alleged that her two daughters would be victims of Female Genital Mutilation (FGM)
as well as Facial Tribal Markings (FTM) upon returning to Nigeria. The Principal Applicant’s
sons would also be victims of FTM upon their return to Nigeria. The Principal
Applicant further alleged that her life is in danger upon return to Nigeria because her
ex-husband’s family has threatened to kill her for refusing to have the FGM and
FTM rituals performed on the children at birth.
[5]
The
Applicants filed a Pre-Removal Risk Assessment (PRRA) application which was
denied. However, judicial review of this decision was allowed. A further
negative PRRA decision was rendered to the Applicants on May 25, 2009, which is
currently being reviewed by the Federal Court.
[6]
The
Applicants have been issued two stays of removal orders, one in November, 2006
and in the other in July, 2009.
[7]
The
Applicants sought an exemption from statutory requirements so that they may
apply for permanent resident status from within Canada on humanitarian and compassionate grounds.
DECISION UNDER REVIEW
[8]
The
Officer considered the presence of the Principal Applicant’s step-brother in Canada, but noted that “there
is little evidence to support that they have a relationship, dependency or
involvement such that severing it would be a hardship.” Furthermore, although
the Principal Applicant’s step-brother had offered to help the Applicants
financially in Canada, the Officer determined that neither he nor the
Applicants had “indicated that his financial support would not be possible if
[the Applicants] returned to Nigeria.”
[9]
The
Officer noted a letter written on the Principal Applicant’s behalf from the
Reverend of the Applicants’ church in Toronto. Although the Officer acknowledged that the
Principal Applicant volunteered at the church, the Officer found that the
Reverend had not indicated that the Principal Applicant had developed any
relationships with members of the church that would cause hardship if severed.
[10]
The
Officer then considered the risks submitted by the Applicant and whether they
might constitute unusual and undeserved or disproportionate hardship.
[11]
The
credibility of the Applicants had been a determinative factor in the RPD
decision. The RPD noted that no adverse action had occurred between the birth
of the second daughter and the time the Applicants fled Nigeria. This meant that the
family had not forced the children to undergo FGM when they were still in Nigeria; so why would they
force them to do so upon their return? It found that this inaction on the part
of the Principal Applicant’s in-laws was “indicative of lack of real desire on
their part to harm the [Applicants] and therefore a lack of objective basis for
the subjective fear of the [Applicants.]” The RPD also found the Principal
Applicant’s testimony with regard to her trip to the United States before arrival to Canada to be “vague and
lacking in details.”
[12]
The
Officer then examined country conditions in Nigeria, and noted
that the Nigerian Demographic and Health Survey had reported a decline in the
number of women subjected to FGM in recent years. Moreover, she noted that the
federal government had publicly opposed FGM and that the procedure was banned in
several states. The Ministry of Health and other groups in Nigeria have
implemented projects focussing on the health hazards of FGM, and have worked to
eradicate the practice, but there have been financial and logistical obstacles in
eradicating the practice.
[13]
The
Officer then considered the United Kingdom Home Office Country of Origin
Information Report: Nigeria, (December 2008), which found that “in theory it is
not difficult for a woman to relocate within Nigeria and in this
way find physical safety.” The Officer also noted that a bill on FGM had been
created in Nigeria, but that
further steps had to be taken before the president could sign this bill into
law.
[14]
The
Officer acknowledged the Applicants’ evidence which held that FGM was more
prevalent within the Yoruba ethnic group. This same Home Office report also
stated that Yoruba girls are circumcised during early infancy.
[15]
While
the Officer considered a letter written by the Principal Applicant’s step-brother,
she determined that he had not indicated having first-hand information with
regard to the Principal Applicant’s life of isolation in Nigeria after the
birth of the children. Furthermore, the Officer found that the letter was
written by a person who is not disinterested in the outcome of this
application. The Principal Applicant’s step-brother also stated that her father
had received threats from her husband’s family who had vowed to kill her for her
failure to comply with the tribal rituals. However, the Officer found that the
author of the letter had not indicated how he became aware of the threats, how
or when they were delivered, or whether he witnessed them.
[16]
The
Officer also considered an e-mail submitted by the Applicants in which the
author states that the Principal Applicant’s father-in-law “continues to blame
[her] for various misfortunes and illnesses suffered by your ex-husband and the
death of his uncle Dejo.” Furthermore, the father-in-law’s family had suffered
beatings due to his brother’s (the Applicant’s ex-husband’s uncle) change of
political parties. However, the Officer found this e-mail to be “vague and
lacking in details.” The Officer noted that the e-mail did not include any information
regarding the beatings suffered by the family, and that the author did not
indicate any first hand knowledge of any threats from the Principal Applicant’s
father-in-law.
[17]
The
Applicants’ evidence also included a letter from the Principal Applicant’s
ex-husband which said that his family blames her, and her unwillingness to have
her children circumcised or marked, for the death of his uncle and his own
illness. The letter also states that if he divorces her and disowns the
children, “this will eventually eradicate the death of people in my family
completely.” The Officer found that this letter did not indicate that the Principal
Applicant’s ex-husband expects or needs to have the children circumcised. The
Officer further noted that the reason for divorce on the proffered divorce
order was verbal abuse on the part of the Principal Applicant, and not that she
had refused to have the children circumcised or scarred.
[18]
Further
submissions by the Applicants included a letter from the Principal Applicant’s
family physician which said that the Principal Applicant has experienced
sleeplessness, anxiety and “maternal anguish for her children.” The Officer
found this letter to be of low probative value, since the doctor did not
indicate whether the Applicants’ return to Nigeria would be a
hardship.
[19]
The
Officer applied similar considerations to the psychologist’s letter submitted
by the Applicants which discussed the depression suffered by the Principal Applicant.
The Officer found that the psychologist “relied on the [Principal Applicant’s]
observations to reach her diagnosis.” Furthermore, the Officer noted that “the
psychologist’s report does not indicate what type of treatment the applicant
requires in order to recover from her depressions – aside from remaining in Canada.”
[20]
The
Officer also assigned low probative value to the letter written by the Reverend
of the Applicant’s church in Ontario because “while he has
written about Nigeria’s belief in oracles, markings and circumcisions…he has
not indicated that he has first hand knowledge of either country conditions in Nigeria or the
circumstances of the applicants in Nigeria.” Moreover, the
Reverend had failed to indicate whether he based his beliefs on information
other than that provided by the Principal Applicant herself. The Officer found
his statements regarding the children to be speculative, vague and lacking in
details.
[21]
The
Officer also considered the letter from the Principal Applicant’s church in Nigeria which said that
the Principal Applicant had told the church elders that she had problems with
“certain members of her husband’s family.” The Principal Applicant then asked
the church for money to help her travel to the U.S., and phoned
the church upon her arrival. The Officer noted that “the author has not
indicated that he or any of the other church members have first hand
information regarding the [Principal Applicant’s] circumstances in Nigeria other than
her statements.” Moreover, the Officer noted that “he has not indicated that he
is aware of any continuing threats being addressed to the [Principal Applicant]
of her family.”
[22]
While
the evidence before the Officer supported the Applicants’ allegation of FGM and
FTM in Nigeria, the Officer
was not satisfied that there was sufficient evidence to support that the Applicants
are similarly situated persons. The evidence showed that Yoruba girls were
circumcised as infants. As such, the Officer found “the evidence is
insufficient to support that the [Principal Applicant’s] daughters face this
ritual having passed infancy.” Furthermore, there was insufficient evidence
before the Officer that the Principal Applicant continued to be of interest to
her ex-husband’s family or that they wished to cause her harm.
[23]
The
Officer held that “considering the totality of the evidence before me I find
that while there may be difficulties returning to Nigeria, they do not
rise to a level of hardship that is unusual and undeserved or disproportionate.
[24]
The
Officer noted that Nigeria is a signatory to the International
Convention of the Rights of the Child, 28 May 1990, 1577 UNTS 3, as well as
African-based human rights legislation. Moreover, submissions to the Officer
did not indicate that the children would be unable to obtain an education in Nigeria or to have
their basic needs met. All in all, the Officer was not satisfied that “the best
interests of the children are such that they warrant an exemption in that
leaving Canada would not be an unusual and undeserved or disproportionate
hardship.”
[25]
In
considering the Principal Applicant’s ties to the country, the Officer
determined that her employment and volunteer efforts in Canada were
“insufficient in and of themselves to indicate that the applicants have
integrated into Canadian society such that leaving would be a hardship that is
unusual and undeserved or disproportionate.”
[26]
In
summary, the Officer determined that she was not satisfied with the evidence
before her that sufficient humanitarian and compassionate grounds existed to
approve the Applicants’ exemption request.
ISSUES
[27]
The
issues on this application can be summarized as follows:
1.
Did
the Officer err by ignoring pertinent evidence, including the reasons and
factual findings made by the Federal Court?
2.
Did
the Officer err in failing to properly consider the best interest of the children?
3.
Did
the Officer apply the wrong legal test in determining the section 25
application?
STATUTORY PROVISIONS
[28]
The
following provisions of the Act are applicable in these proceedings:
|
Humanitarian and compassionate considerations
25. (1) The Minister shall, upon request of a foreign national in
Canada who is inadmissible or who does not meet the requirements of this Act,
and may, on the Minister’s own initiative or on request of a foreign national
outside Canada, examine the circumstances concerning the foreign national and
may grant the foreign national permanent resident status or an exemption from
any applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
Séjour pour motif d’ordre humanitaire
25. (1) Le ministre doit, sur demande d’un
étranger se trouvant au Canada qui est interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative ou sur
demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
|
STANDARD
OF REVIEW
[29]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
[30]
In Dunsmuir, the
Supreme Court ruled that questions of law may be reviewable on a reasonableness
standard, if they are not “legal questions of central importance to the legal
system as a whole and outside a decision-maker’s specialized area of
expertise.” See Dunsmuir at paragraphs 55 and 60. Jurisprudence of this
Court, however, has determined that an Officer’s application of the correct
test in assessing risk in a humanitarian and compassionate application is
reviewable on a standard of correctness. See Zambrano v. Canada (Minister of
Citizenship and Immigration), 2008 FC 481, [2008] F.C.J. No. 601. As stated
by Justice Dawson in Zambrano,
Having regard to the absence of a privative clause, the relative
lack of expertise on the part of an officer to appreciate whether he or she has
applied the wrong test at law, and the importance of ensuring that officers
apply the test that Parliament has prescribed, I conclude that the question of
whether the officer applied the correct test is reviewable on the correctness standard.
As such, correctness is the appropriate
standard in considering whether the Officer applied the correct legal test and
legal threshold in assessing risk in the H&C application.
[31]
Other
issues brought before the Court by the Applicants require a more deferential
standard of review. For instance, the standard of review applicable to H&C
applications which are concerned with the best interests of the child is
reasonableness. See Qazi v. Canada (Minister of Citizenship and Immigration), 2007 FC 288, [2007]
F.C.J. No. 412. As such, reasonableness is the appropriate standard by which to
review whether the officer properly considered the best interest of the children.
[32]
Reasonableness
is also the appropriate standard upon which to review whether the Officer erred
in her treatment of the evidence. The weight an officer chooses to assign to
evidence is a discretionary decision which deserves deference. See Aguebor
v. Canada (Minister of Employment
and Immigration),
160 N.R. 315, [1993] F.C.J. No. 732, and Dunsmuir at paragraphs 51 and
53.
[33]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
ARGUMENTS
The Applicants
Previous Decisions
[34]
The
Applicants submit that the Officer erred in failing to consider the findings of
fact made by Justice O’Keefe upon granting a stay of deportation to the
Applicants. Justice O’Keefe noted that “the applicant’s children would also be
subject to having ritual markings placed upon their faces.” Further, Justice O’Keefe
noted that “there is evidence that the two female children would most likely
undergo FGM when they are returned to Nigeria via the United States.”
[35]
While
the Officer is not bound by the previous decisions of the Federal Court, the Applicants
submit that the Officer erred in failing to consider the country condition
findings made by the Court in these instances. The Officer either ignored these
factual findings, or failed to explain why she rejected them.
[36]
In
the previous judicial review undertaken by the Applicants, Justice Mandamin
found that the officer in that instance had erred in “making no reference to
the Ondo state where the Applicant is from,” since a report cited showed that
“the prevalence of Female Genital Mutilation at 90-98% in Ondo state.”
[37]
In
the case at hand, the Officer should have taken into account the factual
country condition findings made by the Court, since these findings have a direct
bearing on the Officer’s determination.
[38]
The
Officer erred further in neglecting to consider the situation in Ondo state
with regard to the best interest of the children. Instead, the Officer simply
determined that the practice of FGM was in decline.
[39]
The
Applicants also submit that the “Officer implied and speculated that a viable
Internal Flight Alternative may exist for the Applicants” [IFA]. A similar
speculation of an IFA was found by Justice Mandamin in the Applicants’ previous
judicial review. Similarly, in the case at hand, without giving any reasons and
without any degree of certainty, the Officer implied that an IFA existed for the
Applicants.
[40]
The
Applicants submit that the potential harm they face has not changed since the
factual findings were made by Justices O’Keefe and Mandamin. Rather, the
Applicants contend that the potential for harm has increased, due to the birth
of a Canadian son who “would also receive these tribal facial markings if the
Applicants are sent back to Nigeria.”
Evidence
[41]
The
Officer further erred by finding that there was insufficient evidence to
support that the Principal Applicant risked harm from her ex-husband’s family. The
Applicants submit that, in coming to her conclusion, the Officer “ignored
weighty evidence, selectively picked evidence to suit the Officer’s conclusions
and…made factual conclusions which were diametrically opposed to the actual evidence.”
Letter from
Brother-in-law & Letter from ex-Husband
[42]
Evidence
to support the danger faced by the Principal Applicant was given by her
brother-in-law. He swore that “her in-laws have vowed that whenever she turns
up they would make her pay the price with her own life for the calamity she
brought to their family because of her refusal to conform to their traditions
and social mores.” Further evidence was given by the Principal Applicant’s
ex-husband, who warned her to “watch out for my family for they will surely
retaliate on you any time you are around in the country.” The Applicants submit
that these pieces of evidence, in combination, constitute sufficient evidence
of risk.
[43]
The
Officer also erred by selectively relying on certain portions of evidence. For
example, the Officer discounted the weight of the letter from the Principal
Applicant’s ex-husband because it did not support the claim of risk made by the
Principal Applicant. However, the Officer ignored a paragraph of the same letter
which, according to the Applicants, confirms that the Principal Applicant “is
in mortal danger from his side of the family” if she ever returns to Nigeria.
Step-Brother’s
Affidavit
[44]
Low
probative value was placed on the affidavit sworn by the Principal Applicant’s
step-brother. The Applicants submit that the Officer erred in this regard,
since the affidavit “clearly sets out that the step-brother lives in Nigeria and that he
was making the sworn declaration based on his personal knowledge.” The Officer
also erred by requiring “unreasonably specific and arbitrary content to be
within the affidavit.” Furthermore, the Officer failed to consider the cultural
difference and conditions in Nigeria where the affidavit was
sworn.
Letter
from Pastor
[45]
The
Applicants further argue that the Officer unreasonably discounted other pieces
of evidence as well, including the letter from the Applicants’ Nigerian Pastor.
The Officer found that there was no indication that the Pastor had either first-hand
knowledge of the country conditions in Nigeria or the
circumstances of the Applicants; however, the Pastor himself is from Nigeria and is very
familiar with the FGM and FTM customs. Moreover, he is also very familiar with
the Applicants’ circumstances.
Best Interests
of the Children
[46]
The
Applicants also contend that the Officer failed to properly consider the best
interest of the children or whether there would be a physical risk of tribal
mutilation to the Canadian-born child and a “physical risk of female mutilation
and tribal markings to the non-Canadian children.” The Applicants contend that
the failure of the Officer to consider this potential mutilation “shockingly
breached the children’s most basic Charter rights of physical safety and
integrity.”
[47]
The
Officer failed to properly consider the risk faced by the children upon their
return to Nigeria.
Furthermore, the Officer was not “alert, alive and sensitive” to the best
interests of the children. See Munar v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1180, [2005] F.C.J. No. 1448 and Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. 4th 193.
[48]
A
legally binding international human rights instrument to which Canada is signatory
is determinative of how the Act must be interpreted and applied. See De
Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA
436, [2005] F.C.J. No. 2119. As such, in failing to properly consider the best
interests of the children, the Officer violated section 3(3)(f) of the
Act, and articles 3 and 9 of the Convention of the Rights of the Child.
[49]
The
Officer further failed to consider the harm that may befall the Principal
Applicant upon her return, since “the adult female Applicant would be likely
killed in Nigeria.”
Incorrect
Legal Test
[50]
Finally,
the Applicants submit that the Officer applied the wrong legal test and legal threshold
for a humanitarian and compassionate risk and hardship determination.
[51]
Although
the Officer used the word “hardship” within her reasons, the Officer failed to
properly consider hardship, and instead focussed only on the PRRA risk factors.
The Respondent
[52]
The
Respondent submits that the Officer articulated and applied the correct legal
test in the case at hand and came to a reasonable conclusion on the basis of
the evidence.
[53]
It
is the Applicants’ onus to adduce evidence of their claim in an H&C
application. As such, if the Applicants do not provide evidence supporting
their claim with regard to the best interests of the children, “the officer may
conclude that [the claim] is baseless.” See Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] F.C.J. No. 158 at
paragraph 5.
[54]
In
this case, the Officer considered the best interest of the children, including
the Canadian- born child, but found that there was insufficient evidence to
demonstrate that the Applicants and the Canadian-born child would face the risks
alleged. The Respondent submits that the Officer was “alert, alive and
sensitive” to the best interests of children affected by the decision. See Baker,
above.
[55]
The
Respondent submits that the statutory scheme of section 25 applications is
highly discretionary. It is the Applicants’ onus to convince the Officer that
there are adequate H&C grounds to warrant allowing the application. The
Respondent contends that the section 25 process is designed to be exceptional
and to relieve hardship caused by exceptional circumstances that is not
anticipated by the legislation and beyond the control of the particular applicant.
See, for example, the IP 5 “Immigrant Applications in Canada Made on
Humanitarian or Compassionate Grounds” Ministerial Guidelines, and Legault
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002]
F.C.J. No. 457.
[56]
The
RPD determined that the Applicants’ fear of harm was not well-founded. The
Applicants have remained in Canada regardless. The Applicants are not
currently facing disproportionate hardship, but are simply facing hardship
because they are being required to comply with the Act.
Previous Applications
to the Court
[57]
Contrary
to the Applicants’ submissions, the Officer is not bound to consider the
decision made by Justice O’Keefe with regard to the Applicants’ stay. Justice O’Keefe
did not purport to make any final determinations of fact or law within the
motion for injunction in a prior proceeding. Furthermore, the Respondent
submits that even if Justice O’Keefe had made what he deemed to be final
determinations on the facts, the Officer would not be bound to these findings
unless it was shown that the record before the Officer was the same as that
before Justice O’Keefe.
[58]
Moreover,
the determinative decision in this instance is that of the RPD, since the Court
refused the Applicants’ application for leave to seek judicial review of that
decision.
[59]
The
Applicants’ argument that the Officer was required to take into account the
factual country condition findings made by the Court is not contentious, since
there is nothing showing that a) the Officer did not take them into account, or
b) that the Officer’s Decision is inconsistent with the country condition
documents.
Evidence
Considered was that which was Adduced by the Applicants
[60]
The
Officer was not required to only consider the conditions of the Applicants’
home state. This is especially so where the Applicants themselves presented FGM
practices in a variety of jurisdictions, including the United Kingdom. The
Respondent submits that “[the Principal Applicant] cannot be heard to complain
about the Officer’s assessment of the evidence when she has proffered the
evidence.”
[61]
Furthermore,
the Respondent submits that the rate of FGM in Ondo state was irrelevant to the
decision made by the Officer in this instance. The risk and hardship claims
made by the Applicants were dismissed by the Officer on the basis that no harm
would occur with regard to the FGM, since the female children were no longer in
their infancy. Furthermore, the grandparents had not expressed any recent
interest in the children. As such, the Respondent contends that the risk claim
cannot be accepted, or rejected, on the basis of reference to rates of FGM.
No Finding on
an IFA
[62]
Contrary
to the Applicants’ allegation, the Officer in this case made no findings as to
an IFA. The Respondent submits that such a finding is “relevant only to the
assessment of a protected person application.”
Best
Interests of the Children Were Considered
[63]
The
reasons demonstrate that the Officer gave full consideration to the best
interests of the children in this case. Indeed, this issue is prominent within
the reasons. However, consideration of the best interest of the children does
not necessarily require that an application be allowed simply because of the
presence of children.
[64]
The
Applicants allege that the Officer did not consider whether the children would
be at risk in Nigeria. This
allegation is unfounded, and can be refuted by even a cursory review of the
Officer’s reasons.
Evidence
[65]
The
Officer was entitled to assign weight to the evidence, including the letters
and affidavit evidence. The Officer’s decision to give these pieces of evidence
low probative value was reasonable since the evidence was vague and lacking in details.
[66]
The
crux of the application is that the Principal Applicant believes that the
Officer’s Decision was unreasonable. However, the Officer is entitled to considerable
discretion in making this decision, and she properly exercised her jurisdiction
in determining that unusual and undeserved or disproportionate hardship did not
exist in this case.
ANALYSIS
[67]
I
believe the Officer applied the correct legal test in determining the section
25 application. The Officer makes it clear that even though the risk might not
be as high as to reach the levels set out in sections 96 and 97, such risk
might nonetheless lead to unusual and undeserved or disproportionate hardship.
[68]
Moreover,
I am not convinced that the Officer did not fully consider the best interest of
the children. Consideration of the best interest of the children will not
automatically lead to a positive result in an application.
[69]
My
main point of concern arises out of the Officer’s assessment of risk to the
Principal Applicant and her conclusion that “there is insufficient evidence to
support that the PA continues to be of interest to her in-laws in (sic)
such that they would cause her harm.” I have alluded to and assessed this issue
in Awolope et al. v. Canada (Minister of Citizenship and Immigration), IMM-3463-09
when reviewing the PRRA Decision involving the Applicants.
[70]
I
believe the Officer erred in the treatment of the letter from the Principal
Applicant’s ex-husband. While the Officer concluded from this letter that the Principal
Applicant was not in danger because her ex-husband’s and his family’s bad luck
would be stopped by his divorcing the Principal Applicant and disowning the
children, the Officer ignored the portion of the letter that stated that the Principal
Applicant’s life would be at risk upon her return.
[71]
Even
if the Principal Applicant’s ex-husband’s family believes that their misfortunes
will end because of his divorcing his wife and disowning his children, this
does not account for the portion of the ex-husband’s letter which clearly
states that the Principal Applicant is still at risk upon her return. Because
the Principal Applicant’s ex-husband’s family considers the Principal Applicant
responsible for the misfortunes they have experienced to date, the family
appears to still be seeking revenge. This is made clear in the letter provided
by the Principal Applicant’s ex-husband, and was overlooked by the Officer in
this case. It is clearly an error for an officer to depend on one portion of
the evidence to uphold a finding while ignoring another portion of the same
evidence that clearly contradicts such a finding. See Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), 157 F.T.R. 35, [1998] F.C.J. No. 1425 at
paragraphs 15-17 (QL) and Devi v. Canada (Minister of Citizenship and
Immigration) 2007 FC 149 at paragraph 11.
[72]
What
this means is that risk to the Principal Applicant was not properly assessed
and, as a consequence, hardship under section 25 was not properly assessed in
this application. I believe that the risk to the Principal Applicant upon her
return to Nigeria could
constitute hardship pursuant to section 25. The Officer clearly erred in
failing to fully consider the evidence provided by the Principal Applicant’s
husband with regard to this risk and any hardship that could ensue.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James
Russell”
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