Date: 20101022
Docket: IMM-6367-09
Citation: 2010 FC 1037
Ottawa, Ontario, October 22, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
ONYINYECHI
ONYEMAECHI OHAKA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Ms.
Onyinyechi Onyemaechi Ohaka is a citizen of Nigeria. She arrived
in Canada in 2005 on a
visitor’s visa. She claims that if she is required to return to Nigeria, her
daughters will be at risk of female genital mutilation (FGM). On the basis of
that fear and other considerations, she submitted an application for permanent
residence on humanitarian and compassionate (H&C) grounds under section 25
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[2]
In
October 2009, Pre-Removal Risk Assessment (PRRA) Officer S. Neufeld rejected the
Applicant’s H&C application.
[3]
The
Applicant seeks to have the decision set aside on the basis that the Officer
erred by:
i.
misunderstanding
the evidence;
ii.
failing
to properly analyze the best interests of the children; and
iii.
failing
to adequately consider the Applicant’s level of establishment in Canada.
[4]
For
the reasons that follow, this application is allowed.
I. Background
[5]
Ms.
Ohaka and her son came to Canada in April 2005 on visitors’ visas. At the
time of her arrival, she was pregnant with twin girls. These twins were
subsequently born in Canada while their father remained in Nigeria, apparently
in the state of Anambra, one of the states in which their Igbo tribe is located.
[6]
Shortly
after the birth, Ms. Ohaka’s estranged husband began contacting her, demanding
that she bring the girls back to Nigeria to be circumcised, in
accordance with the custom of their Igbo tribe. Given that FGM is brutal and
could endanger the girls’ lives, she submitted a refugee claim that was based
largely on her fear that her daughters would be subjected to FGM if required to
return to Nigeria. That claim
was rejected, as was her application for leave and judicial review of that
decision.
[7]
Ms.
Ohaka then submitted an H&C application in April 2007, which she updated in
May and June of 2009. She also applied for a PRRA in September 2007, which was
rejected by Officer Neufeld at approximately the same time that she rejected
Ms. Ohaka’s H&C application.
II. The Decision
under Review
[8]
The
Officer began her assessment of Ms. Ohaka’s H&C application by addressing the
risks and hardship that she claimed she and her daughters would face if
required to return to Nigeria. The Officer
acknowledged Ms. Ohaka’s claim that her estranged spouse’s family would demand
that her daughters be subjected to FGM, but noted that the Applicant had not
provided evidence that she herself had been subjected to the practice. The
Officer further noted that the Refugee Protection Division (RPD) of the
Immigration and Refugee Board had found Ms. Ohaka’s fears regarding potential
abuse and FGM at the hands of her husband and his family to be not credible. In
addition, the Officer referred to a report by the U.K. Border Agency, entitled Female
Genital Mutilation, which reported that FGM is banned in Edo state, which
she erroneously identified as being Ms. Ohaka’s home state. Moreover, she noted
that Ms. Ohaka, who is a trained dentist and a highly educated woman, had not
provided sufficient information to indicate that she would be unable to protect
her daughters from FGM if required to return to Nigeria.
[9]
The
Officer also rejected Ms. Ohaka’s claim that she would face a risk of harm as a
member of the Movement for the Actualization of the Sovereign State of Biafra
(MASSOB). In this regard, the Officer determined that Ms. Ohaka had not
provided any evidence to indicate that she is personally involved with MASSOB
to such an extent that she would be harassed by Nigerian authorities upon her
return to Nigeria.
[10]
Regarding
the potential hardship that Ms. Ohaka and her daughters might suffer if
required to sever personal or familial ties, the Officer simply observed that (i)
the daughters have dual Canadian and Nigeria citizenship, such that they have
the right to remain in Canada or return to Nigeria as Ms. Ohaka may determine,
and (ii) insufficient information had been provided to indicate that any
hardship would result in either scenario.
[11]
The
Officer also found that there was insufficient evidence to demonstrate that Ms.
Ohaka or her daughters would suffer unusual and undeserved, or disproportionate
hardship as a result of having to sever their ties with their friends or others
in Canada.
[12]
In
considering the best interests of the children, the Officer crossed-referenced
what she had already stated, noted that both parents are well-educated as
doctors in Nigeria, and stated
that insufficient information had been provided to indicate that they would be
unable to pay fees for their children to attend school in Nigeria. The Officer
further noted that, according to a report published by the United States
Department of State, boys and girls have access to government health care.
Based on the foregoing, the Officer concluded that the children would not
likely suffer hardship if returned to Nigeria. She also observed
that any hardship in this regard would be negated by being reunited with their
father.
[13]
Based
on all of the foregoing, the Officer concluded that Ms. Ohaka had not
demonstrated that any hardship which she and her children might face in
connection with returning to Nigeria and having to apply for permanent
residence in Canada from there
would be unusual and undeserved or disproportionate.
III. Standard
of review
[14]
The
issues raised by Ms. Ohaka are reviewable on a standard of reasonableness (Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 51-56). In short, the decision
rejecting her H&C application will stand unless it is not within the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir, at para. 47).
IV. Analysis
A.
Did the
Officer err by misunderstanding the evidence?
[15]
Ms.
Ohaka submits that the PRRA Officer committed a reviewable error by rejecting
her claim that her daughters would be at risk of FGM, after (i) erroneously observing
that Ms. Ohaka is a member of the Edo tribe and that she would return to the
state of Edo, where FGM is banned, rather than the state of Anambra, where
there is evidence to suggest that the practice of FGM may remain very strong,
and (ii) speculating that Ms. Ohaka would be able to prevent her estranged
husband and his family from subjecting her daughters to FGM. I agree.
[16]
The
evidence before the Officer clearly indicated that Ms. Ohaka and her estranged
husband are from the Igbo tribe, which is located in the state of Anambra. In
addition, the same U.S. DOS report referred to by the Officer states that “FGM
was much more prevalent in the southern region [of the country] among the
Yoruba and Igbo.” That report did not identify Anambra in its list of states
that had banned FGM. In addition, it stated: “The federal government publicly
opposed FGM but took no legal action to curb the practice.” Other documentary
evidence reported that the incidence of FGM in the southern states, where the
Igbo tribe is located, has been estimated to be as high as 95%.
[17]
The
Respondent submits that the Officer’s reference to the Edo tribe and the Edo state were
not determinative and that the Officer did not ignore material evidence. The
Respondent also asserts that the Officer rejected Ms. Ohaka’s claims relating
to FGM because she provided no evidence to indicate that she, as a member of
the Igbo tribe, was personally subjected to FGM. I disagree.
[18]
I
am satisfied that the Officer’s apparent misunderstanding of the evidence
regarding the home state of Ms. Ohaka and the extent to which FGM continues to
be practised in that state, particularly among Ms. Ohaka’s tribe (the Igbo),
may have played a significant role in the Officer’s analysis of the nature of
the hardship that Ms. Ohaka’s daughters might face if they were to return with her
to Nigeria.
[19]
It
may well have been reasonable for the Officer to reach the conclusions she
reached if she had (i) assessed the risk of FGM with respect to the state of
Anambra and the Igbo tribe, (ii) discussed the documentary evidence regarding
that specific risk (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 1425, at para. 17 (T.D.)), (iii) discussed
in greater detail Ms. Ohaka’s ability to resist any attempts that her estranged
husband and his family might make to subject her daughters to FGM, and (iv)
conducted a more meaningful assessment of the nature of the hardship that her
daughters might face if she left them behind in Canada, where she apparently
has no family. However, the Officer’s failure to do these things rendered her
decision unreasonable.
[20]
Given
my conclusion on this issue, I find it unnecessary to consider the remaining
issues that have been raised by Ms. Ohaka.
V. Conclusion
[21]
The
application for judicial review is allowed.
[22]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT this application for judicial review is allowed.
“Paul S. Crampton”
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