Date:
20130118
Docket:
IMM-4101-12
Citation:
2013 FC 46
Ottawa, Ontario,
January 18, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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MONICA UAMAI
ALISHA EKILADO UAMAI (Minor)
DESMOND OKHIKUN UAMAI (Minor)
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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
I. INTRODUCTION
[1]
This
judicial review concerns an applicant who, although a Nigerian citizen, was a
Spanish resident by reason of marriage. The Applicant lost her right to Spanish
residency. The issue was whether she was excluded from a refugee-need of
protection claim by virtue of her Spanish residency. As such, the following
legislation is applicable:
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98. A person referred
to in section E or F of Article 1 of the Refugee Convention is not a
Convention refugee or a person in need of protection.
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98. La personne visée
aux sections E ou F de l’article premier de la Convention sur les réfugiés ne
peut avoir la qualité de réfugié ni de personne à protéger.
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Immigration and
Refugee Protection Act, SC 2001, c 27
E. This
Convention shall not apply to a person who is recognized by the competent
authorities of the country in which he has taken residence as having the rights
and obligations which are attached to the possession of the nationality of that
country.
Convention
Relating to the Status of Refugees, 1951, Can TS 1969 No 6
II. FACTS
[2]
The
Applicant married a Spanish resident who was also Nigerian. In April 2006 the
Applicant claimed that she was attacked by Muslims so she left for Spain. Some time later the Applicant discovered that her husband had fathered a child with
another Nigerian living in Spain, Esther Victor.
[3]
The
Applicant claimed that in June 2009 this Esther Victor and some men (apparently
Esther Victor was part of an extortion and drug cartel) threatened the
Applicant and her children, and her husband was also beaten. Thereafter, the
Applicant’s family received threats against the Applicant’s return to Nigeria.
[4]
The
Applicant’s husband arranged for the Applicant and her children to come to Canada where she immediately applied for refugee protection.
[5]
By
reason of remaining outside Spain for more than six months in a one-year
period, the Applicant lost her residency status in Spain.
[6]
The
Immigration and Refugee Board [IRB] concluded that the Applicant had the
Spanish rights and obligations defined in Article 1E.
[7]
To
determine if the Applicant is excluded from refugee protection by virtue of
Article 1E, the IRB Member addressed the factors set down in Zeng v Canada
(Minister of Citizenship and Immigration), 2010 FCA 118, [2011] 4 FCR 3 [Zeng]:
1.
Whether
a claimant has status similar to that of a country’s nationals in the third
country (Spain). The answer was negative.
2.
Whether
a claimant previously had status and lost it or had access to that status and
failed to acquire it. Here the answer was affirmative.
3.
Where
the above answer is affirmative, there must be a consideration and balancing of
various factors to determine if as a result of having lost status or failure to
acquire it, a claimant should be excluded. The issues to be addressed include
the reason for the loss of status, whether a claimant could return to the third
country (Spain), the risk the claimant would face in the home country (Nigeria), Canada’s obligations and any other relevant factors.
[8]
On
this issue, the Member concluded that the loss of status was voluntary, there
was no effort to protect status, state protection and internal flight
alternatives were available.
[9]
On
the question of return to Nigeria, the Member was not persuaded that the
Applicant’s perceived threats from Muslims existed. The Member also found that
the Applicant had not claimed in her PIF a fear of her husband’s ex-girlfriend
(Esther Victor) in connection to Nigeria.
III. ANALYSIS
[10]
The
Applicant takes issue only with the finding of the third Zeng factor and
most particularly whether a fear of Esther Victor in Nigeria was claimed.
[11]
It
is agreed that the standard of review is “reasonableness” (Canada (Minister of Citizenship and Immigration) v Tajdini, 2007 FC 227, 2007
CarswellNat 470).
[12]
The
Respondent takes the reasoning of Newfoundland and Labrador Nurses
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
SCR 708, too far. It does not hold that if a decision-maker errs in its
decision or fails to consider a relevant matter, the reviewing court is
required to review the record and find a basis therein to support the ultimate
result. The reviewing court is required to consider the decision as a whole when
determining whether it is reasonable.
[13]
In
this case, it was reasonable for the Member to conclude from the Applicant’s
PIF that she was describing her husband’s fear of Victor in connection to Spain. The Applicant’s fear in regards to Nigeria was largely centered on fear of Muslims.
[14]
The
reasonableness of this conclusion is supported by the Applicant’s claim for
refugee protection in Canada where she listed her fear upon return to her
country as:
Spain – Esther Victor: Nigeria – Christians and Muslims.
In Nigeria, the Christians and Muslims are always
fighting.
In Spain, Esther Victor has threatened my life and
my childrens life [sic]. She told me to leave my husband. I didn’t know
he already had two children with her.
[15]
The
Member’s conclusions were reasonably open to him and therefore I conclude that
the decision is reasonable.
IV. CONCLUSION
[16]
This
judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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