Date: 20101116
Docket: IMM-2025-10
Citation: 2010 FC 1150
Vancouver, British
Columbia,
November 16, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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LILLIAN NAOMI OWOBOWALE
ESTHER TEMITOPE OLUFUNWABI OWOBOWALE
JOAN TOLUWANIMI OWOBOWALE
PEACE OLUWATOBI OWOBOWALE
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The decision that the
applicants were neither Convention refugees nor persons in need of protection
is seriously flawed and must be set aside. The Refugee Protection Division of the
Immigration and Refugee Board of Canada failed
in its analysis of the minor female applicants’ claims that they feared female
genital mutilation (FGM) if returned to Nigeria.
[2]
The applicants are
Nigerian: a mother, Lillian Naomi Owobowale, and her three daughters Esther,
Peace, and Joan, aged 15, 13, and 7, respectively, when the decision of the
Board was rendered. Their claims were based on their fears that the young
girls would be forced to undergo FGM at the hands of family members if returned
to Nigeria. Ms. Owobowale was subjected to this
procedure herself when she was 12-years-old.
[3]
The applicants are
from the Yoruba tribe, where FGM is still a prevalent practice; estimates
suggest that 60% of female Yoruba undergo FGM. Ms. Owobowale’s in-laws have
repeatedly pressured her to allow her daughters to undergo FGM, and she fears
her in-laws would impose this practice on her daughters without her consent.
The applicants faced harassment from family members and requests that the
relatives be permitted to take the minor applicants on a “holiday,” a euphemism
for a trip to their village to undergo FGM.
[4]
Ms. Owobowale’s
husband has lived in the United
States since 1999. Both
parents of the three minor girls are born-again Christians and pastors. In Nigeria, Ms. Owobowale appeared on television as part of her
religious work and has recorded albums of religious music. She has tried,
unsuccessfully, to obtain visitors’ visas to enter the United States. In June 2005, Ms. Owobowale obtained a
visitor’s visa for the United
Kingdom for herself and
Joan. She visited the UK and consulted with a lawyer there who
told her that she could not obtain refugee status or other permanent status in
the UK. She returned to Nigeria, but made
another temporary trip to the UK in February 2006 with all three
daughters. The in-laws attempted to take the daughters for a “holiday” in
August 2007, but the applicants refused and stayed at a friend’s house until
leaving for Canada in September 2007.
[5]
The Board found that
the “determinative issue in these claims is a lack of subjective and objective
fear by the claimants.”
[6]
The Board’s decision
is unreasonable because it focused on Ms. Owobowale and her actions without
properly considering the three young girls who are at very real risk of harm if
returned to Nigeria. The Board accepted the applicants’
version of events, which makes it clear that family members in Nigeria want to circumcise the girls against their will. In this
context, a focus on the mother’s decisions with respect to immigration status
and her desire to work is unreasonable. One short line from paragraph 12 of
the Board’s decision is emblematic of what renders the Board’s determination
unreasonable: “The panel finds that the claimant chose her career over her
daughters’ safety by continuing her profession.”
[7]
Ms. Owobowale’s life
choices are not relevant in assessing the subjective fear of her children. The
subjective fear of the minor applicants cannot be determined by reference to
their mother’s decisions, which presumably attempt to balance their safety and
her ability to provide for them. The Board unreasonably approached all of the
applicants’ claims from the perspective of Ms. Owobowale. Moreover, the
Board’s finding that Ms. Owobowale chose her career over her daughters’ safety
implies that her daughters would not be safe in Nigeria.
The United Nations High Commissioner for Refugees’ May 2009 Guidance Note on
Refugee Claims Relating to Female Genital Mutilation, at paragraph 10,
provides direction as to a more reasonable approach to assessing the daughters’
subjective fear:
It can happen that a girl is unwilling or
unable to express fear, contrary to expectations. … This fear can nevertheless
be considered well-founded since, objectively, FGM is clearly considered as a
form of persecution. In these circumstances, it is up to the decision-makers
to make an objective assessment of the risk facing the child, regardless of the
absence of an expression of fear.
[8]
The Board’s
conclusion that the applicants had not demonstrated subjective fear rested
solely on an assessment of Ms. Owobowale’s actions. This was unreasonable, as
was the Board’s finding with regards to the objective component of the daughters’
fear.
[9]
In assessing the
objective component of the girls’ fear, the Board again failed to approach the
issue from the perspective of the minor applicants. Although the Board noted
that the in-laws had not attempted to forcibly remove the minor applicants from
their mother, it appears to have overlooked the more germane issue: that FGM
itself is a non-consensual and physical act of violence. There is no dispute
that the in-laws want to force the minor applicants to undergo circumcision.
In the face of this evidence, the Board’s focus on the lack of a physical
aspect to the conflict between the in-laws and the mother and the fact that the
in-laws would eventually leave after arguments about FGM fails to address the
very real threat to the minor applicants.
[10]
Given that the
in-laws want to force young girls to undergo a painful and dangerous procedure
with severe and well-documented negative physical and psychological
ramifications, the Board’s finding that “there is no evidence to suggest that
the in-laws’ threats amounted to anything” is unreasonable. Moreover, there
was uncontradicted evidence before the Board that the in-laws had attempted to
abduct the daughters without their mother’s permission. Esther’s signed statement,
included in the applicants’ PIF, explains that:
A
few weeks or so before traveling to Canada, my Dad’s relatives came again to
our house, but this time my Mum and my uncle were not around. I answered the
door. My Dad’s relatives told me that my Mummy had given permission for me and
my two sisters to go on holidays to their village; they wanted us to pack our
bags and go spend some time with them. Because my Mum had given an instruction
earlier never to leave the house without speaking to her, I went into the
bedroom, called my Mum, told her everything, and she told me not to go anywhere
and she would be home immediately. When my Mummy came home, she was really
upset with my Dad’s relatives; she told me and my two sisters to go into
another room and I could hear her and my Dad’s relatives yelling at each other
really loudly. I felt really scared.
[11]
It is clear from this
statement and the evidence that the in-laws are prepared to use any subterfuge
to subject the minor applicants to FGM. In this context, a finding that the
minor applicants lack an objective basis for their fear is unreasonable.
[12]
Furthermore, I agree
with the applicants’ submissions that the Board erred by failing to consider
the objective risk to the minor applicants based on their profile and available
documentary evidence. The applicants presented evidence that FGM is prevalent
in the Yoruba tribe and the minor applicants are within the age range targeted
for FGM. In Alexandria v. Canada (Minister of Citizenship
and Immigration),
2004 FC 1616, at para. 4,
Justice Campbell found that “it was incumbent on the RPD to consider the
following evidence: the daughter is Nigerian, is of tender years, and FGM is
prevalent in Nigeria.”
[13]
The Board Member
addressed none of the objective documentary evidence that strongly suggested
that the minor applicants would be at risk of female circumcision.
[14]
The Board’s statement
that there has been no contact with the in-laws since 2007 and that there is no
evidence the in-laws would have any interest in connecting with the applicants
if they were to return to Nigeria ignores the reason there has been no contact:
the applicants are safely in Canada, outside of their reach. Given the
repeated attempts by the in-laws to force the minor applicants to undergo FGM,
there is no logical basis for the Board’s statement that the in-laws would not
try to reconnect with the applicants if they were returned to Nigeria.
[15]
Neither party
proposed a question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT IS that:
1. This
application is allowed, the decision of the Refugee Protection Division of the Immigration and Refugee Board dated March 19, 2010,
is set aside and their refugee and protection claims are referred to another member of the Refugee Protection
Division of the Immigration
and Refugee Board for re-determination; and
2. No
question is certified.
“Russel W. Zinn”
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