Date: 20120524
Docket: IMM-7712-11
Citation: 2012 FC 631
Toronto, Ontario, May 24,
2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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VERONICA AREWE ITUA
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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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REASONS FOR ORDER AND
ORDER
[1]
The
present Application concerns a decision of the Refugee Protection Division
(RPD) in which the Applicant, a female citizen of Nigeria, was
determined not to be a Convention Refugee or a person in need of protection. In
particular, the focus is on the Member’s findings that the Applicant was not
credible.
[2]
The
Applicant’s claim is based on evidence substantiating her subjective and
objective fear that upon the birth of her female child she would be
re-circumcised and her baby would be circumcised and subjected to traditional
scarification markings on her stomach.
[3]
In
her Personal Information Form (PIF) the Applicant frames her claim in the
following way:
I am making a claim for
refugee protection in Canada because my parent, my in-laws
and my community have threatened to force me and my unborn child to undergo
female circumcision and traditional scarification and markings of my baby’s
stomach. The village elders and my family had informed me that our tradition and
custom requires as a pregnant woman, that I be circumcised again before I
deliver my baby and that a month after I deliver my baby she would also be
circumcised and her stomach would be designed with traditional markings. I
told my parents, in-laws and the community that I would not put my baby through
the dangers of circumcision and traditional markings that I underwent as a
child.
(Certified Tribunal Record, p.
19)
To support her claim the Applicant provided
a sworn affidavit from her husband wherein he gives the following personal
account:
I, JUDE PETER, Male,
Christian, Citizen of Nigeria and residing at No. 50 Mission Road, Benin City, Edo State, Nigeria, do hereby make an oath and
state as follows:
[…]
That when my wife Veronica
Itua was pregnant with our child, my parents and in-laws threatened my wife
would undergo circumcision and that upon the birth of our baby, she would also
undergo circumcision and traditional markings on her stomach in accordance with
out custom and tradition.
[…]
That since then my wife,
Veronica Itua fled Nigeria, my parents, my in-laws and the elders of our
community continue to threatened [sic] to cause harm to my wife and baby
whenever they find them so I have warned my wife, Veronica Itua not to return
to Nigeria with our baby because they are not safe here.
(Certified Tribunal Record, p. 181 –
182).
[4]
Nevertheless,
despite the fact that the Applicant’s evidence is supported by her husband’s
evidence, the RPD found that the Applicant is not credible and does not have a
well-founded fear of persecution for the following reasons:
The claimant alleges that her
in-laws wanted to have her circumcised again upon the birth of her child. The
panel questions that after the claimant has already undergone circumcision and
had the traditional markings that her family and in-laws would have her undergo
the process again. The claimant provided no evidence as to this particular
custom and the panel therefore gives little weight to her allegation. The
claimant produced a photograph of markings on her stomach. Although, no face
was visible in the photograph, the claimant did offer to show the panel her
markings but the panel declined. Although the panel does not challenge the
fact that the claimant has markings on her stomach, no evidence was provided as
to when these markings were made and therefore gives little weight to the
claimant’s assertion that they were made at birth and are part of the tradition
in her village. If, indeed, the traditional practice in the claimant’s village
was to mark and circumcise a female child shortly after birth, the panel
questions that the claimant would be unaware of this practice as she claimed,
having lived there all her time in Nigeria as she testified.
[…]
The panel concludes that the
claimant is not credible and does not have a well-founded fear of persecution.
[Emphasis added]
(Decision, para. 7 and 10)
[5]
In
my opinion, the emphasized finding is particularly disturbing. There is no
question that the Applicant has suffered Female Genital Mutilation (see:
Medical Report, Certified Tribunal Record, p. 176), has been subject to
scarification (see: Certified Tribunal Record, p. 185 – 186), and gave evidence
that these degradations occurred when she was a child (see: Certified Tribunal
Record, p. 202). The fact that this evidence was disregarded by the RPD is not
only a reviewable error, in my opinion; it is an insult to the Applicant’s
human dignity.
ORDER
THIS
COURT ORDERS that:
1.
The
decision presently under review is set aside, and the matter is referred back
to a differently constituted panel for redetermination.
2.
There
is no question to certify.
“Douglas R. Campbell”
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