Date: 20081008
Docket: IMM-1554-08
Citation: 2008 FC 1133
Ottawa, Ontario, October 8, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
DOROTHY OGECHI OKOYE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Dorothy Ogechi
Okoye is a citizen of Nigeria who came to Canada in January 2004 and submitted
a refugee claim. After her refugee claim was rejected, Ms. Okoye applied for
permanent residence from within Canada on humanitarian and compassionate
grounds. A pre-removal risk assessment officer (officer) rejected that claim
because the officer was not satisfied that sufficient humanitarian and
compassionate grounds existed to warrant a positive exercise of discretion.
This application for judicial review of that decision is allowed because the
officer erred in law in two respects. First, the officer erred in law by not
assessing the relevant facts against the test of unusual and undeserved or
disproportionate hardship. Second, the officer erred in law by failing to
demonstrate that the best interests of Ms. Okoye’s three-year-old daughter,
Bianca, were properly considered.
[2] The
officer concluded that Ms. Okoye and her daughter do not “face hardship that
would be unusual and undeserved or disproportionate in terms of personalized
risk” if Ms. Okoye is returned to Nigeria for the following reasons:
·
Ms. Okoye failed to submit corroborative evidence to rebut the
finding of the Refugee Protection Division (RPD) that it was not credible that
she was being forced into an arranged marriage. The RPD considered that Ms.
Okoye was a well educated woman of Ibo ethnicity who lived in a large urban
center, and it assessed her claim against documentary evidence which the RPD
viewed to be reliable.
·
Ms. Okoye identified new risks not considered by the RPD. They
were the risk that Bianca would be forced to undergo female genital mutilation
(FGM) and the risk that, by Ibo custom and tradition, custody of Bianca would
be given to her father. As Ms. Okoye is estranged from Bianca’s father, she
fears that she would not have access to Bianca if she returns to Nigeria with
Bianca. With respect to the first risk, there was insufficient evidence of
personalized risk to Bianca. Ms. Okoye, as her mother, could resist the demand
for the traditional cultural right of FGM.
·
As well, an internal fight alternative existed because Ms. Okoye
could relocate to another part of Nigeria where family members who are
pressuring for Bianca to undergo FGM would not be able to trace them.
·
With respect to the second new risk, insufficient evidence was
submitted to corroborate the claim that Bianca’s father was demanding custody
of her.
·
There was insufficient evidence to establish that Ms. Okoye and
her daughter would face hardship that is unusual and undeserved or
disproportionate in terms of personalized risk if Ms. Okoye returns to Nigeria.
·
The officer was not satisfied that Ms. Okoye is established in
Canada to a degree where she would suffer unusual, underserved or disproportionate
hardship should she return to Nigeria.
·
Ms. Okoye would not encounter undue, undeserved or
disproportionate hardship in rebuilding her life in Nigeria because of her
education, her employment experience in Nigeria, and the skills she acquired in
Canada.
Standard of Review
[3] For
the reasons given in Zambrano v. Canada (Minister of Citizenship and
Immigration), [2008] F.C.J. No. 601 at paragraph 30, the question of
whether the officer applied the correct tests in assessing the humanitarian and
compassionate claim is a question of law, reviewable on the standard of correctness.
Did the officer assess the facts
against the wrong test?
[4] It
is settled law that on an application such as Ms. Okoye’s, the officer was
obliged to consider whether the requirement that she apply for permanent
residence from abroad would cause her unusual and undeserved or
disproportionate hardship. The fact an officer quotes the correct test in her
reasons does not conclusively establish that the correct test was applied.
See, for example, Rebaï v. Canada (Minister of Citizenship and
Immigration), [2008] F.C.J. No. 43 (F.C.), and the authorities cited
therein.
[5] In
the present case, the officer did refer to the correct test on a number of
occasions. However, for the following reasons, I am satisfied that the officer
applied the wrong test.
[6] First,
on at least three occasions the officer considered whether the evidence
established “personalized risk”. On two occasions, the officer equated unusual
and undeserved or disproportionate hardship with personal risk.
[7] Second,
distilled to its essence, the officer’s decision is that there is insufficient
evidence to establish any risk of forced marriage or loss of custody. With
respect to the risk of FGM faced by Bianca, her mother could refuse and could
also relocate in Nigeria.
[8] Missing,
however, from the officer’s analysis is any consideration of what, if any,
hardship would be entailed if Ms. Okoye, a single mother, rejected her
family’s demand for compliance with their tradition and/or moved to a place
where her family could not find her. Consideration of the consequences of
these actions was particularly required when the country condition
documentation otherwise relied upon by the officer reported that: women
experience considerable economic discrimination in Nigeria; unmarried women in
particular endured many forms of discrimination; and, women overall remain
marginalized.
[9] The
officer’s finding of the existence of an internal flight alternative would be,
with respect, deficient in the context of a refugee claim because the officer
neither specifies its location, nor considers the reasonableness of requiring
Ms. Okoye to settle in that location. Consideration of those factors was
equally required in the context of this humanitarian and compassionate
application.
[10] In
sum, while the officer recited the correct legal test, she did not apply it.
Did the officer fail to properly
consider the best interests of Ms. Okoye’s three-year-old daughter?
[11] Subsection
25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27,
imposes a statutory duty on the officer to consider the best interests of
Bianca. As a matter of law, Bianca’s best interests are determined by
considering the benefit to her of her mother’s non-removal from Canada, as well
as the hardship Bianca would suffer should she return to Nigeria with her
mother.1 The officer’s task
is to determine, in all the circumstances, the likely degree of hardship to
Bianca caused by the removal of her mother, and to weigh this degree of
hardship together with other factors that militate in favour of, or against,
the removal of Ms. Okoye. See: Hawthorne v. Canada (Minister of
Citizenship and Immigration), [2003] 2 F.C. 555 at paragraphs 4 and 6
(C.A.).
[12] At
the same time, the best interests of a child are not determinative of their
parent’s status. See: Legault v. Canada (Minister of
Citizenship and Immigration), [2002] 4.F.C. 358 at paragraph 12 (C.A.).
Further, it is incumbent on an applicant to raise, and to support with
evidence, any specific issue said to give rise to unusual and undeserved or
disproportionate hardship. See: Ahmad v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 814 (F.C.).
[13] In
the present case, Ms. Okoye expressly raised Bianca’s best interests in her
humanitarian and compassionate application, and provided medical evidence from
Bianca’s pediatrician that she requires treatment for acute asthma attacks.
This distinguishes the decision of Ahmad, referred to above, where it
was not clear that the parents raised as an issue their children’s best
interests.
[14] The
officer’s reference in her reasons to Bianca was almost passing in nature.
While the officer referred to the doctor’s letter, Bianca’s medical needs were
not mentioned in the analysis portion of the officer’s reasons. In that
analysis, the officer’s consideration of Bianca consisted solely of finding no
personal risk of FGM and the following paragraph:
Bianca is only three years old.
She has not started formal school education. I do not find there is sufficient
evidence to establish that the applicant and her daughter face hardship that
would be unusual and undeserved or disproportionate in terms of personalized
risk if the applicant is to be returned to Nigeria.
[15] The
officer does not address how Bianca’s interests will be affected by her
mother’s departure from Canada, does not address what hardship Bianca would
face in Nigeria and does not address Bianca’s best interests. This analysis
was particularly required when country condition documentation otherwise relied
upon by the officer reported that in Nigeria public schools are substandard,
and many children do not have access to education. In many parts of the
country, girls are discriminated against in access to education. The literacy
rate for women is 41% and only 17% of girls receive complete immunization from
childhood diseases.
[16] It
follows that the officer failed to properly consider Bianca’s best interests.
By so conducting her assessment, the officer erred in law.
[17] For
these reasons, the application for judicial review will be allowed. Counsel
posed no question for certification, and I agree that no question arises on
this record.
1. In this case, there was
no suggestion that Bianca, a Canadian citizen, would remain in Canada.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
The application for judicial review is allowed and the officer’s
decision of February 21, 2008 is hereby set aside.
2.
The matter is remitted for redetermination by a different
officer.
“Eleanor R. Dawson”
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