Docket: IMM-5209-16
Citation:
2017 FC 565
Toronto, Ontario, June 9, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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IYOBOSA
ALADENIKA
ELIZABETH
ALADENIKA (A MINOR)
GODWIN
ALADENIKA (A 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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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review of a
decision of an immigration officer [the Officer] dated October 31, 2016, in
which the Officer refused the Applicants’ application for a Pre-Removal Risk
Assessment [PRRA]. The principal Applicant, Ms. Iyobosa Aladenika, claims fear
of female genital mutilation [FGM] of her daughter, one of the minor
Applicants, Elizabeth Aladenika. The Applicants received a negative PRRA
decision, based on the Officer’s conclusion that there were viable Internal
Flight Alternatives [IFAs] to which the Applicants could relocate.
[2]
As explained in more detail below, this
application is allowed, because I have found that the Officer rendered an
unreasonable decision, by failing to properly consider evidence that the
Applicants’ alleged agents of persecution had pursued and located members of
the families of the principal Applicant and her husband, in both proposed IFAs,
in efforts to impose FGM on the minor female Applicant and another minor
female.
II.
Background
[3]
The Applicants are Ms. Aladenika, her daughter
Elizabeth, age 14, and her son Godwin, age 8. They are citizens of Nigeria who
arrived in Canada on August 14, 2013 with the Applicant’s husband, who is also
the father of the children. Ms. Aladenika states that, following their arrival
in Canada, her husband’s family set fire to his sawmill business in Nigeria,
and he returned to Nigeria. Her husband eventually returned to Canada after his
family threatened his life because of his objection to their insistence that
his daughter be subjected to FGM. Ms. Aladenika and her husband are now
separated.
[4]
The Applicants made a claim for refugee
protection, which was rejected by the Refugee Protection Division [RPD] on
February 19, 2014, based on a finding that the Applicants had viable IFAs in
either Benin City or Lagos. The Applicants appealed this decision to the
Refugee Appeal Division [RAD], which upheld the RPD’s decision on July 4, 2014.
On June 30, 2015, the Federal Court denied leave for judicial review of the RAD
decision. The Applicants then applied for a PRRA.
[5]
The Applicants submitted new evidence in support
of their PRRA application. This evidence included affidavits from Mr. Taiwo
Oluwaseun Faneti, who is a cousin of Ms. Aladenika’s husband and resides in
Lagos, and from Ms. Aladenika’s father, Mr. Harrison Owen Uwagboe, and
half-sister, Ms. Osade Ogbekhilu, who both reside in Benin City, as well reports
on Ms. Aladenika’s psychological condition.
III.
Impugned Decision
[6]
In the PRRA decision, the Officer considered the
new evidence submitted by the Applicant and agreed that the determinative issue
in the PRRA was the proposed IFA in either Benin City or Lagos. The Officer set
out the two-pronged test for an IFA: first, whether there is a serious
possibility of risk in the IFA, and second, whether the proposed IFA is
reasonable given the particular circumstances of the Applicants. The Officer
noted that the RPD and RAD had previously found Benin City and Lagos to be
viable IFA cities for the Applicants and that the Federal Court refused to
grant leave for judicial review of the RAD decision.
[7]
The Officer considered the evidence of the
status of Ms. Aladenika’s husband’s family, as powerful and influential members
of the Nigerian military, and the affidavit from Mr. Faneti, who eventually
gave in to family pressure and allowed his daughter to be circumcised. However,
the Officer noted that Mr. Faneti and his family did not attempt to relocate to
Benin City or Lagos and found that Mr. Faneti’s evidence did not equate to the
circumstances of the Applicants.
[8]
The Officer also considered the affidavits from
Ms. Aladenika’s family and acknowledged that members of her husband’s family
had visited and threatened them. However, the Officer noted that the RPD had
considered this issue, having observed that Ms. Aladenika’s husband’s family
had already gone to look for them at her sister’s home in Lagos and Benin City
and that her husband’s family has relatives in the Nigerian police and military.
The RPD found that, because Ms. Aladenika and her husband are now separated, it
was reasonable to believe that his family is not interested in pursuing her to
the extent she suggests.
[9]
In relation to the psychological reports, the
Officer noted that it is natural that the Applicants will face psychological
distress at the possibility of a return to Nigeria and found that the IFAs
continued to be reasonable in light of this evidence.
[10]
Taking into account the new evidence provided
since the RPD and RAD decisions, the Officer determined that the Applicants had
not provided sufficient evidence that there is a serious possibility of risk in
the proposed IFAs or that the relocation is unreasonable.
IV.
Issues and Standard of Review
[11]
The Applicants articulate the issue for the
Court’s consideration as whether the Officer unreasonably assessed the evidence
and/or reached conclusions that are irreconcilable with the totality of the
undisputed facts.
[12]
The parties are in agreement, and I concur, that
the applicable standard of review is reasonableness (see Cabral De Medeiros
v Canada (Minister of Citizenship and Immigration), 2008 FC 386, at paras 12-15).
V.
Analysis
[13]
My decision to allow this application for
judicial review turns on my conclusion, as explained below, that the Officer
unreasonably assessed whether there is a serious possibility of risk to the
Applicants in each of the proposed IFAs.
[14]
In relation to Lagos, the Officer considered the
affidavit of Ms. Aladenika’s husband’s cousin, Mr. Faneti, and noted his evidence
that for a long time he resisted pressure from his family, including those in
the military, but that he eventually gave in to such threats and pressure and
allowed his daughter to be circumcised. The Officer also noted that Mr. Faneti states
that relocating did not prevent the location from being known to the extended
family. However, the Officer found that this did not equate to the current
circumstances of the Applicants, because Mr. Faneti and his family had not
attempted to relocate to Benin City or Lagos.
[15]
As acknowledged by the Respondent, the Officer
made a factual error, in that it is clear from Mr. Faneti’s affidavit that it
was Lagos to which Mr. Faneti and his immediate family relocated in an effort
to resist the pressure from his extended family to have his daughter
circumcised. The Respondent nevertheless argues that this error was immaterial,
because Mr. Faneti’s evidence did not address the Applicants’ own personal
situation, particularly taking into account the fact that Ms. Aladenika was separated
from her husband and therefore no longer a member of the family that had wished
to subject her daughter to FGM. The Respondent also argues that Mr. Faneti’s
evidence does not address findings by the RPD and the RAD related to lack of
interest by Ms. Aladenika’s husband’s family in pursuing the Applicants.
[16]
I find no merit to the Respondent’s argument.
The agents of persecution feared by the Applicants are Ms. Aladenika’s
husband’s family. Mr. Faneti is a member of that family. While he and his immediate
family oppose the practice of FGM, his evidence is that they relocated to Lagos
in order to escape precisely the same sort of pressure, to have his daughter
circumcised, as gives rise to the Applicants’ fear. Notwithstanding that
relocation, Mr. Faneti’s family was located by his relatives at their home in
Lagos. He was attacked and eventually succumbed to the pressure and threats and
agreed to have FGM performed upon his daughter. While this evidence may not be
determinative of the question whether the agents of persecution would have the
interest and capacity to locate the Applicants if they were to move to Lagos,
it is certainly relevant to that determination. The Officer’s assessment of the
viability of Lagos as an IFA is therefore unreasonable, because the Officer
based the conclusion that Mr. Faneti’s evidence did not equate to the
Applicants’ situation on the factual error that Mr. Faneti and his family did
not attempt to relocate to Lagos.
[17]
My conclusion that the Officer’s assessment of
Lagos as an IFA was unreasonable does not on its own render the Officer’s
overall decision unreasonable, as there were two IFAs under consideration. In
relation to Benin City, the Officer’s conclusion, that the Applicants would not
face a serious possibility of risk if they relocated, appears to be based on
the RPD’s decision. The RPD found that, because Ms. Aladenika and her husband
were separated, it was reasonable to believe that her husband’s family was not
interested in pursuing her to the extent she suggested. Reviewing the RPD’s
decision, I see that in making this finding the RPD referred to Ms. Aladenika’s
evidence at the hearing that the last time her husband’s family members had
gone looking for her at her sister’s home in Lagos and Benin City was in September
2013 and that they had not returned since. The RPD appears to have relied on
that evidence, and the fact of Ms. Aladenika’s separation from her husband, to
conclude that her husband’s family was no longer interested in pursuing the
Applicants. The RAD subsequently found that this analysis by the RPD was not
unreasonable, and the Applicants’ application for leave to judicially review
the RAD’s decision was dismissed. As such, this finding by the RPD, upon which
the Officer relied, has not been impugned.
[18]
However, the purpose of the PRRA was to perform
an updated assessment of risk, including the consideration of new evidence.
This new evidence included affidavits from Ms. Aladenika’s father and
half-sister. While the Officer noted that these affidavits referred to visits
and threats from family members, the Officer does not consider the fact that
these visits and threats continued into 2015. The affidavit of the father, Mr.
Uwagbo, describes relatives of Ms. Aladenika’s husband attacking him at his
home in Benin City in April 2015, demanding that he produce his daughter and
granddaughter. The affidavit of the half-sister, Ms. Ogbekhilo, describes
relatives of Ms. Aladenika’s husband harassing her in September 2015 and
stating that Ms. Aladenika cannot hide from them forever.
[19]
These affidavits represent evidence of relatives
of Ms. Aladenika’s husband pursuing the Applicants in Benin City and
demonstrating a continued interest in the Applicants as recently as September
2015. This evidence postdates the RPD’s July 4, 2014 decision and updates the
evidence before the RPD, which had then demonstrated that Ms. Aladenika’s
husband’s relatives had not been looking for her since September 2013. It was
therefore unreasonable for the Officer to reach conclusions on the risk faced
by the Applicants if they were to relocate to Benin City, in reliance on the
RPD’s finding that the relatives were not interested in pursuing them, without analyzing
this evidence of more recent interest.
[20]
It is therefore my conclusion that the Officer
has performed an unreasonable assessment of both proposed IFAs and that this
application for judicial review must be allowed. Neither party proposed any
question for certification for appeal, and none is stated.
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