Docket: IMM-13893-23
Citation: 2025 FC 327
Ottawa, Ontario, February 19, 2025
PRESENT: Madam Justice Go
BETWEEN: |
Philomena Ono OSEAHWEKE |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Philomena Ono Oseahweke [Applicant], a citizen of Nigeria, filed a claim for refugee protection after she entered Canada in June 2019, alleging persecution from her husband, R, and his family for not birthing a child for him.
[2] The Refugee Protection Division [RPD] rejected her claim, finding the Applicant’s narrative not credible because it differed substantially from the account she gave to the Canada Border Services Agency [CBSA] during her Port of Entry [POE] interviews [RPD Decision]. The Applicant appealed the RPD Decision to the Refugee Appeal Division [RAD].
[3] In September 2022, the Applicant suffered a stroke which led to an ambulatory disability. Based on her new evidence about her medical conditions, the Applicant asked the RAD to consider her increased risk of persecution due to her profile as a female with a disability.
[4] The RAD dismissed the Applicant’s appeal in a decision dated October 12, 2023 [Decision]. The RAD concluded there is insufficient credible evidence that the Applicant faces a serious possibility of persecution or harm from R or his family. The RAD also found there is insufficient evidence to establish that there is a serious possibility of persecution due to her profile as a female with a disability.
[5] The Applicant now brings this application for judicial review. I grant the application as I find the Decision unreasonable.
II. Issues and Standard of Review
[6] The Applicant raises the following issues to challenge the reasonableness of the Decision:
With respect to the RAD’s rejection of the Applicant’s allegations against R and his family, the Applicant submits that the RAD conducted a flawed analysis in its adverse credibility findings;
With respect to the RAD’s analysis of the Applicant’s risk based on her profile as a female with a disability,
the RAD misapplied the legal test when considering the Applicant’s claim under section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and instead applied section 97 of the IRPA; and
the Decision was illogical and at odds with the objective country conditions evidence.
[7] The parties agree that the reasonableness standard applies when reviewing the merits of the Decision: Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 23 [Vavilov]. A reasonable decision is one that displays justification, transparency, and intelligibility with a focus on the decision actually made, including the justification for it: Vavilov at para 15. Overall, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrain the decision-maker: Vavilov at para 85.
III. Analysis
A. Did the RAD conduct a flawed analysis in its adverse credibility findings?
[8] Before I begin my review of the Decision, I will set out some of the pertinent facts.
[9] On July 12, 2019, the Applicant filed her Basis of Claim [BOC] narrative, which emphasized physical beatings by R. However, during her previous POE interviews with the CBSA Officer shortly after she arrived in Canada, the Applicant did not mention physical abuse. Rather, the Applicant stated she had been “experiencing very severe persecution or humiliation”
as R was in a relationship with another woman. The CBSA officer asked her if she had experienced physical abuse, and she answered: “No never not physical, just mental and emotional.”
When asked what kind of mental and emotional abuse she sustained, the Applicant responded: “I wasn’t happy, and I can’t remember anything.”
When she was asked about specific instances of abuse, she answered: “Just mental not physical although it got to the point where he shouted at me in public.”
[10] Similarly, in her written declaration to the CBSA, the Applicant declared she was suffering from “emotional and mental torture”
from R, who was in a relationship with another woman whom he eventually married. The Applicant did not mention any physical abuse.
[11] The Applicant also gave statements to the CBSA about her purpose of coming to Canada, her financial situation, and R’s whereabouts, most of which turned out to be false.
[12] The RAD noted the discrepancies between the BOC narrative and the POE entries. The RAD also noted the Applicant’s explanation during the RPD hearing for why she denied any physical abuse to the CBSA. The RAD found nothing in the Applicant’s testimony that satisfactorily answered why the Applicant would deny several times that R beat her but later reverse course to say that he did beat her.
[13] Even accepting that the Applicant had a confused mental state, the RAD concluded that the RPD was correct in that the major omission in her initial story about the physical abuse undermines her overall credibility.
[14] The Applicant argues the RAD erred in its credibility findings. I find the Applicant’s submissions somewhat difficult to understand. Based on what I can gather from both counsel’s oral submissions and written submissions, the Applicant submits the RAD committed the following errors:
The RAD’s adverse credibility findings are flawed in light of the Applicant’s profile as a woman who was abused for many years—at least psychologically—which is not contested, citing Isakova v Canada (Citizenship and Immigration), 2008 FC 149 at paras 13-14 [Isakova], which cited R v Lavallee, [1990] 1 S.C.R. 852, 108 NR 321.
The Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board [Guideline 4] stipulates that it is reasonable for survivors of domestic violence to attempt to conceal their abuse given the battered woman syndrome, their trauma, and their mistrust for foreign authorities, to which the Applicant adds the patriarchal culture in Nigeria: Hamdar v Canada (Citizenship and Immigration), 2011 FC 382 at para 47, citing Lubana v Canada (Citizenship and Immigration), 2003 FCT 116 at para 13.
Against the teaching of Guideline 4, the RAD relied on a stereotypical assumption that survivors discuss their abuse with relatives, and even with CBSA officers—who are police officers in uniform—when it discounted the Applicant’s omissions because she “was not in Nigeria when she made her comments:”
Isakova at para 17. The Applicant’s permeation with Nigerian culture did not suddenly change when she had just arrived in Canada.
The RAD failed to comprehend that domestic violence is not restricted to physical abuse and may encompass “physical, economic, sexual, as well as emotional (psychological) abuse:”
Guideline, point 4.1. When the RAD accepted the family conflict, it would have been required to elevate the family conflict to the level of persecution. The RAD only assessed whether the evidence corroborates physical violence and discounted the rest of the information. Plus, while the RAD stated that physical violence was not discussed at the POE, the BOC narrative speaks of the Applicant being forced to ingest ritualistic medicines, and of R and her mother-in-law forcibly insisting that she continued to do so, which amounted to physical violence.
The RAD failed to properly explain why the psychological report’s findings were discounted, as they corroborate the Applicant’s submission that her state of mind prevented her from revealing the physical abuse she survived upon her entry to Canada. The RAD did a narrow reading of the report, and only assessed whether it substantiated the Applicant’s claim about her nervousness. However, the report is credible and professional. It states that the Applicant exhibits clinical signs consistent with the battered woman syndrome, as well as severe anxiety and extreme depression. The RAD failed to engage with the report because it had already found the Applicant not credible: Mico v Canada (Citizenship and Immigration), 2011 FC 964 at paras 26, 49, citing Csonka v (Citizenship and Immigration), 2001 FCT 915 at para 29.
The RAD conducted a flawed assessment of the relatives’ affidavits. The RAD accepted that the Applicant’s testimony demonstrated the family drama, including “some abusive behaviour”
by R, so it is unclear why the abuse would still require corroboration. The RAD found that the mother did not corroborate mental and physical abuse, but she did speak of her daughter being forced to ingest ritualistic medicine and of the lack of support of her uncle, who was the head of the family. The RAD unfairly discounted statements establishing harassment, humiliation, and threats, on the basis that they were too general.
The RAD assessed the corroborating evidence against the backdrop of previous credibility findings: Lakatos v Canada (Citizenship and Immigration), 2019 FC 864 at para 46. The RAD should have been aware of the difficulty of procuring first-hand corroborating evidence of domestic violence: Magonza v Canada (Citizenship and Immigration), 2019 FC 14.
[15] I find many of the Applicant’s arguments are merely inviting the Court to reweigh the evidence, in particular, the arguments with respect to the RAD’s assessment of the documentary evidence from the Applicants’ family members.
[16] I also find some of the cases the Applicant cites are not directly on point, and that the Applicant is quoting from paragraphs that do not stand for the arguments that the Applicant proposes.
[17] Further, I agree with the Respondent that the Applicant cannot rely on Guideline 4 to compensate for all the inconsistencies and omissions in her evidence, of which there were numerous. As section 7.3 of Guideline 4 states: “An allegation of trauma does not prevent the member from making an adverse credibility finding. Members may draw a negative inference from material inconsistencies, omissions, or implausibility in the evidence that have no reasonable explanations.”
[18] Nevertheless, Guideline 4 also provides in section 7.5:
An individual who has experienced trauma may have certain difficulties in presenting their case, including recalling specific times, dates, and locations, recounting events in chronological order, and recalling certain events fully. IRB members often must make credibility findings, including in cases where the individual may have experienced trauma. Trauma may impact memory, which can produce inconsistencies, omissions, and vagueness in the individual’s testimony.
[Emphasis added]
[19] In this case, the Applicant presented a psychological report from a registered psychotherapist who opined that the Applicant exhibits “symptoms consistent with post-traumatic stress”
and of someone who has experienced “harassment, threats, domestic abuse, physical violence, fear and trauma.”
[20] In the Decision, the RAD considered the psychological report only in the context of examining the stress and nervousness the Applicant may have experienced while under pressure, including when she was questioned by immigration officials and during the RPD hearings. I do not agree that the RAD discounted the psychological report because it already made up its mind about the Applicant’s credibility. However, by focusing only on the Applicant’s ability to answer questions under pressure, I find the RAD either misconstrued the evidence contained in the psychological report or applied the report too narrowly to the issues before it.
[21] Indeed, I notice that the RAD used the word “trauma”
only once in the entire Decision, and did not mention the psychotherapist’s assessment of the Applicant’s post-traumatic stress symptoms.
[22] It was entirely up to the RAD to assess and weigh the psychological report as it saw fit. It was also open to the RAD to assess whether the numerous inconsistences in the Applicant’s evidence could be explained by “post-traumatic stress.”
[23] However, in this case, the RAD did not question the veracity of the report, nor its author’s opinion. Yet, the RAD failed to consider the report’s key findings about the impact of trauma on the Applicant, before finding the report did not “adequately explain or overcome the credibility concerns with [the Applicant’s] falsehoods.”
By disregarding key findings of the psychological report that may explain the inconsistencies, omissions, and vagueness in the Applicant’s testimony, as per Guideline 4, section 7.5, the RAD had both unreasonably disregarded the psychological report, while failing to consider Guideline 4 when conducting its credibility assessment.
B. Did the RAD misapply the legal test when considering the Applicant’s section 96 claim?
[24] I also find that the RAD misapplied the legal test when considering the Applicant’s section 96 claim as a female with a disability, albeit for different reasons as those advanced by the Applicant.
[25] The RAD found that the Applicant does not incur an enhanced risk of gender-based violence due to her disability. It reflected that gender-based violence is usually perpetrated by “partners, caregivers, family, friends, acquaintances, colleagues, neighbours and so on.”
The RAD concluded that this does not apply to the Applicant’s personal situation as she claims to not know anyone in Nigeria and would not stay with family members. The RAD determined that there was insufficient evidence to establish that the Applicant would face such a risk from new acquaintances. It also held that this risk was reduced by the Applicant’s age, as country conditions evidence reveals that girls with disabilities under the age of fifteen are most likely to be victimized by gender-based violence.
[26] In response to the Applicant’s own submission and evidence on appeal, the RAD then engaged in a statistical venture and noted that:
[72] The statistic that 64% of females with disabilities are more vulnerable to sexual abuse means that all of those women face a possibility of abuse. The remaining 36% of females with disabilities are therefore presumably less vulnerable to abuse, although still more likely to be victims than females without disabilities. Ms. O faces a possibility of sexual abuse if she is one of the 64% of over twelve million women with disabilities that are more vulnerable to sexual abuse. However, given her age and the lack of “usual” assailants described earlier, I determine that she is more likely to be one of the remaining 36% of females with disabilities who are less vulnerable to sexual abuse.
[27] The RAD concluded that the Applicant faces no “serious possibility”
of gender-based violence based on these country-wide statistics.
[28] At the hearing, I asked counsel for the Respondent to explain how the RAD went from its statistical analysis to its conclusion that the Applicant faces no serious possibility of gender-based violence. Counsel for the Respondent readily admitted that she was unable to respond to my question. The Court acknowledges counsel’s honesty.
[29] The RAD’s finding that the Applicant’s lack of “usual assailants”
from her past life from whom she may face sexual abuse is curious to say the least, given the Applicant is likely not to be able to live independently on her own, and will eventually meet new people on whose care she will depend and may therefore put herself in a vulnerable position.
[30] The most significant flaw in the RAD’s analysis, however, is the missing link between its statistical analysis and its finding of no serious possibility of persecution.
[31] Finding that 64% or 36% of certain categories of females with disabilities are more or less vulnerable to sexual abuse does not answer the question of whether the Applicant has established a serious possibility of persecution. While these statistics paint a picture of the degree of prevalence of violence among different groups of females with disabilities in Nigeria, the RAD must still apply the appropriate legal test before arriving at its own conclusion.
[32] If what the RAD meant to say is that, because the Applicant is among the group that has a lesser chance of being subject to sexual abuse, and therefore this “lesser chance”
amounts to less than a serious possibility of persecution, the Court is still left in the dark as to how the RAD came to that conclusion.
[33] To the extent that the RAD was relying on the 36% figure as the basis for its finding, that finding also cannot stand. Such reasoning may suggest that the RAD was expecting the Applicant to have a more than a 50% chance of facing persecution to meet the section 96 test, which would be inconsistent with the jurisprudence.
[34] As the Court in Sierra v Canada (Citizenship and Immigration), 2023 FC 881 stated at paras 38-39:
[38] Applying the legal test for fear of persecution therefore does not require that claimants demonstrate that it is “more likely than not” that they will be persecuted if they are returned. In other words, they need not show that there is more than a 50% chance that persecution will occur (Alam at para 5). This standard of proof, normally equivalent to the balance of probabilities, is too high.
[39] Thus, claimants will be able to discharge their burden and demonstrate that there is a “reasonable chance” or a “serious possibility” of persecution even though, in fact, this “probability” of serious persecution may be well below 50%. Refugee status could therefore be granted even if, theoretically, the likelihood of serious persecution is low but still “serious” or “reasonable”.
[Emphasis added].
[35] By failing to establish a link between its statistical analysis and its conclusion, and/or by requiring the Applicant to establish more than a 50% chance of facing persecution, the RAD’s conclusion fell short of the requisite transparency, intelligibility, and justification, thus rendering the Decision unreasonable.
IV. Conclusion
[36] The application for judicial review is granted.
[37] There is no question to certify.
Email this Content