Docket: IMM-552-16
Citation:
2016 FC 941
Ottawa, Ontario, August 18, 2016
PRESENT: The Honourable Mr. Justice Brown
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BETWEEN:
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OYINDAMOLA ADEO
ANNI
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review by
Oyindamola Adeo Anni [the Applicant] under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by a Senior
Immigration Officer [the Officer], dated January 14, 2016, wherein the Officer
rejected the Applicant’s pre-removal risk assessment [PRRA] application on the
basis that the Officer determined the Applicant would not be at risk of
persecution, personally subject to a danger of torture, a risk to life or a
risk of cruel and unusual treatment or punishment if returned to her country of
nationality [the Decision]. The application is granted because of the Officer’s
erroneous and unreasonable assessment of the Applicant’s evidence.
II.
Facts
[2]
The Applicant was born in Nigeria in 1983. She
is of the Christian faith, and of the Yoruba people. She married a man named
Kayode Kazeem Anni [Kayode]; he is of Muslim faith and was violent and abusive
in their relationship. Kayode is the father of two of the Applicant’s three
children. The same two children were born in Canada, though the youngest child
was not. The youngest child is also applying for refugee protection.
[3]
The Applicant first came to Canada in 2007 while
pregnant with her first child. She applied for refugee protection. Kayode found
out about the Applicant’s whereabouts and also came to Canada. At that time the
physical and emotional abuse started again. The Applicant claims Kayode would
rape her during this time as well. Kayode was eventually arrested for a crime
and required to leave Canada. The Applicant, having given birth to Kayode’s
child during Kayode’s incarceration, was convinced to go back to Nigeria with
her husband in July 2008. She took no further action with regards to her
refugee application. It was subsequently deemed abandoned in 2010.
[4]
Upon return to Nigeria, the domestic abuse
continued. The Applicant became pregnant again. Her husband and his brother
tried to convince her to undergo female circumcision, which the Applicant did
not wish to do. She ran away to Canada once more in February 2009. She gave
birth to her daughter in Canada in April 2009. In this period, the Applicant’s
father died, leaving the Applicant wondering who would take care of her son.
[5]
She returned to Nigeria in June 2009 to get her
son. She intended to return to Canada immediately with her son. However, she
was not permitted to return to Canada at that time. The Applicant tried to
evade Kayode multiple times, but each time Kayode would track her down and drag
her home with the children, where the abuse continued. Kayode’s family
practiced female genital mutilation/female circumcision [FGM] and tried to
persuade the Applicant to have FGM done on herself and her daughter.
[6]
In 2011, the Applicant caught her husband about
to rape their almost four-year-old daughter; the daughter was asleep and her
trousers pulled down, with Kayode in the room. The Applicant took her children
and went into hiding thereafter, moving from place to place. Every time they
moved, Kayode would call the home where they were staying.
[7]
At one point, the Applicant was raped when one
of her friends’ places was burglarized. She became pregnant. She sought to
abort the pregnancy but it was too late. Around this time, Kayode found the
Applicant and told her she had to get rid of the baby, even if that meant she
had to kill him at the time of his birth. Kayode beat her when she refused to
do this. He believed a baby born of rape is a bad omen.
[8]
The Applicant and her children then went to New
York in January 2015. In August 2015, the Applicant went to Georgia to live in
a Nigerian community. The Applicant and her children then attempted to come
into Canada on October 27, 2015. The Applicant was arrested by CBSA and
detained. The children were sent into foster care. The Applicant was
transferred to a holding centre in December; her children joined her at that
time. The Applicant and her family were released from detention in February
2016.
[9]
The Applicant has recently been diagnosed with
an oral cancer in her mouth from HPV, which should be surgically removed. There
is little indication on the prognosis.
III.
Decision
[10]
The Officer found the Applicant provided
insufficient evidence to establish that she will be at risk if returned to
Nigeria. Because the children were not included in the Officer’s assessment of
this PRRA application, the risks they will face if returned were not considered
by the Officer. These unassessed risks include that her youngest son would be
killed and her daughter would be forced to undergo FGM.
[11]
The Decision assessed the risk of FGM to
the Applicant by looking to secondary sources and concludes that “… the applicant has provided insufficient evidence to
establish that her in-laws will be able to act above and beyond the law or that
her in-laws have significant influence in the area where they live.”
[12]
The Officer considered ritual murder and found
there was no documented evidence or otherwise corroborative evidence that the
form of ritual murder claimed by the Applicant (i.e., that children of rape and
their mothers should be killed) existed.
[13]
The Officer found that the Applicant lived in a
region where there were mixed reports that the police were willing to help in
cases of domestic abuse and that there are many support services for women in
Nigeria. The Applicant did not submit any evidence corroborating the abuse she
underwent; the Officer noted that the Applicant hadn’t provided a letter or
affidavit from her mother (who was also without a husband or other children
living with her) to demonstrate the risk of violence she faces as a single
woman living alone. Therefore, the Officer concluded that the Applicant had not
established that she would be at risk of violence against women in Nigeria.
[14]
The Officer said a PRRA does not assess whether
there is appropriate health and medical care available in the country of
origin. There is no evidence of discriminatory access of medical treatment
which may be grounds for protection under a PRRA. Her health issues were
therefore given little weight as to the risk the Applicant would face if
returned.
[15]
In this case, on each risk assessed, the Officer
found that the Applicant would not face a risk of FGM, ritual murder, violence
against women, or health risk from the cancer in her mouth. The Officer
concluded that the Applicant did not face a reasonable chance of persecution
under section 96 of IRPA and that there were no substantial grounds to believe
that the Applicant faced a danger of torture, a risk to life, or a risk of
cruel and unusual treatment or punishment should she be returned to Nigeria.
IV.
Standard of Review
[16]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.” In
a case like this, the Officer’s assessment of the evidence is to be reviewed on
the reasonableness standard of review: Muhammad v Canada (Minister of
Citizenship and Immigration), 2014 FC 448 at para 52. In Dunsmuir
at para 47, the Supreme Court of Canada explained what is required of a court
reviewing on the reasonableness standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
V.
Issue and Analysis
[17]
While a number of issues were raised by the
Applicant, the determinative issue is the Officer’s assessment of the
Applicant’s affidavit evidence that she filed and relied upon in support of
her PRRA. In this connection, the Officer stated:
I find that letters or affidavits made by
the applicant, who has a personal interest in this matter, require a degree of
corroboration in order to contain much weight.
[18]
This statement is contrary to long-established
jurisprudence established by the Federal Court of Appeal in Maldonado v
Canada (Minister of Employment and Immigration), [1980] 2 FC 302 at para 5
(FCA):
When an applicant swears to the truth of
certain allegations, this creates a presumption that those allegations are true
unless there be reason to doubt their truthfulness. On this record, I am unable
to discover valid reasons for the Board doubting the truth of the applicant's
allegations above referred to.
[19]
The same may be said in this case.
[20]
The Officer said nothing of having reasons to
doubt the truthfulness of the Applicant. Nor did the Officer provide any
reasons for rejecting the Applicant’s presumed truthfulness as would have been
required if that were the case; in Hilo v Canada (Minister of Citizenship
and Immigration), 26 ACWS (3d) 104, [1991] FCJ No 228 (FCA) (QL/Lexis), the
Federal Court of Appeal said decision makers have a duty give reasons for
casting doubt upon a party’s credibility, and to do so in clear and
unmistakable terms:
The appellant was the only witness who gave
oral testimony before the Board. His evidence was uncontradicted. The only
comments as to his credibility are contained in the short passage quoted supra.
That passage is troublesome because of its ambiguity. It does not amount to an
outright rejection of the appellant's evidence but it appears to cast a
nebulous cloud over its reliability. In my view, the Board was under a duty to
give its reasons for casting doubt upon the appellant's credibility in clear
and unmistakable terms. The Board's credibility assessment quoted supra is
defective because it is couched in vague and general terms. The Board concluded
that the appellant's evidence lacked detail and was sometimes inconsistent.
Surely particulars of the lack of detail and of the inconsistencies should have
been provided. Likewise particulars of his inability to answer questions should
have been made available.
[21]
In my respectful view, the Officer’s approach to
the Applicant’s evidence is in direct and fatal conflict with this direction
from the Federal Court of Appeal, which direction has been repeated and
followed in cases almost too numerous to mention in this Court. I was provided
with no case authority to support such a serious departure from legal
precedent.
[22]
This sort of error is particularly troubling in
a case, as here, where there are allegations of serious physical and sexual
violence against women, not only in connection with the Applicant, but
potentially in connection with her young daughter as well. These serious
allegations are made in addition to the Applicant’s evidence of repeated
threats of forced FGM, made by the husband and his family. A departure from the
Federal Court of Appeal’s direction cannot be justified because an affiant has “a personal interest in this matter”; if that were the
case, all applicants would require corroboration of their sworn testimony,
which would directly contradict Maldonado’s instructions.
[23]
I was invited to review the evidence as a whole,
but in doing so, I am confirmed in my view that the Officer reviewed the
Applicant’s evidence through a distorted and incorrect evidentiary prism that
was not in conformity with established legal precedent. I say this because
elsewhere the Officer also found the Applicant’s evidence wanting
notwithstanding her sworn affidavit. In my respectful opinion, this mistaken
approach casts a long shadow over and creates doubt respecting the entire
decision. The failure to follow the instructions given in Maldonado
results in a decision that is not defensible in respect of the law, and which
is thus unreasonable per Dunsmuir. Therefore, judicial review must be
granted and the decision re-determined.
[24]
Given my conclusion on the Officer’s approach to
the Applicant’s affidavit evidence and the rule in Maldonado, it is not
necessary to deal with the other issues raised, which included: the assessment
of an oral hearing if indeed credibility findings were made, albeit disguised,
as alleged; procedural fairness in considering matters in respect of which the
Applicant allegedly had no opportunity to respond; and, not considering the
best interests of the children. They are
for the redetermination.
VI.
Certified Question
[25]
Neither party proposed a question of general
importance to certify, and none arises.
JUDGMENT
THIS COURT’S JUDGMENT is that judicial review is granted, the Officer’s decision is set aside,
the matter is remitted to a different Officer for re-determination, no question
is certified and there is no order as to costs.
“Henry S. Brown”
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