Date: 20041118
Docket: IMM-9929-03
Citation: 2004 FC 1616
Toronto, Ontario, November 18th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
GRACE CHIZOBA ALEXANDRIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Refugeee and Protection Division ("the RPD") rejected a claim of protection by a female adult claimant, Grace Chizoba Alexandria, and her reputed nine-year old daughter, Rose Elizabeth Alexandria. The RPD found that both the principal claimant and her daughter are citizens of Nigeria and framed their claims of persecution as follows:
The principal claimant alleges that she fears that the father of her child, whom she did not marry will succeed in having his daughter subjected to Female Genital Mutilation (FGM). The claimant underwent this mutilation when she was young, and does not want her daughter to be excised. This is why she came to Canada.
(Decision, p. 1)
Page: 2
[2] Before the RPD, the daughter testified to a specific subjective fear of FGM at the hands of her father. However, due to a conflict between the evidence of the principal claimant and her daughter, the RPD found that neither individual was telling the truth. I give no opinion with respect to the reasonableness of this negative credibility finding.
[3] Nevertheless, the RPD correctly accepted a decision-making responsibility as follows:
We do not believe the story presented to the tribunal, but we must still consider if Rose Elizabeth would be at risk if she were to return to her country. Documentary evidence, A-1, 5.2, page 81, states that FGM is on the decline in Nigeria. Almost half of Nigerian women aged 45 to 49 have been circumcised, whereas only one quarter or less of women under 30 have been mutilated.
(Decision, p. 3)
[4] I find that the RPD was correct in concluding it was required to discharge a responsibility to make a decision under both s. 96 and s. 97 of the Refugee Protection Act with respect to the evidence of risk which still existed after the negative credibility finding was made. Having accepted the responsibility, I find it was incumbent on the RPD to consider the following evidence: the daughter is Nigerian, is of tender years, and FGM is prevalent in Nigeria. With regard to the latter point of evidence, the following statement of in-country conditions in Nigeria appears in the Tribunal Record, which, in my opinion, required careful consideration by the RPD:
6.80 The government publicly opposes female genital mutilation (FGM). The Ministry of Health and non-governmental organisations has sponsored public awareness and education projects informing communities of the health hazards associated with FGM. FGM is a traditional practice within local communities, and consequently it has proved difficult for federal governments to effectively confront. Communities from all of Nigeria's major ethnic groups and religions practice FGM, although adherence is neither universal nor nation-wide. [3][162][178] The age at which women and girls are subjected to FGM varies from the first week after birth, until after a woman delivers her first child. The Ministry of Health, women's groups, and many NGO's sponsored public awareness projects to educate communities about the health hazards of FGM and the media has repeatedly criticized its practice. [3]
6.81 The Nigerian Government does not approve of FGM, but there are no federal laws banning it, and the authorities have taken no legal action to curb it. As this is viewed by some communities as a long-standing tradition, the government may have difficulty in discouraging FGM, while being seen to respect the traditions of the groups involved. Anit-FGM groups, because of the inability to take action at the federal level, are attempting to challenge FGM at the state and local government area (LGA) level. Edo State banned FGM in October 2000. Ogun, Cross River, Osun, Rivers, and Bayelsa states also banned FGM. However, the punishments imposed are minimal; in Edo State the punishment is a 1,000 Naira fine and 6 months imprisonment. Once a state legislature criminalises FGM, NGO's have found that they must convince the LGA authorities that state laws are applicable in their districts. [3][178]
6.82 The Women's Centre for Peace and Development (WOPED) estimated at least 50% of women are mutilated. Studies conducted by the United Nations and the World Health Organisation estimated the FGM rate at approximately 60% among the nations's female population. However, according to local experts, the actual prevalence may be as high as 100% in some ethnic enclaves in the south. While practised in all parts of the country, FGM is more predominant in southern and eastern areas. Women from northern states are less likely to be mutilated; however, those affected are more likely to undergo the severe type of FGM known as infibulation. WOPED believes that the practice is perpetuated because of a cultural belief that uncircumcised women are promiscuous, unclean, unsuitable for marriage, physically undesirable, or potential health risks to themselves and their children, especially during childbirth. The Government and NGOs have worked to eradicate the practice and to train health care workers on the medical effects of FGM; however, contact with health care workers remains limited. Nevertheless, most observers agree that the number of women and girls who are subjected to FGM is declining. [3]
(Tribunal Record, p. 81)
[5] It is clear from the RPD's reasons, that it did take responsibility to deal with the three points of evidence remaining after the negative credibility finding was made, but it is also clear
Page: 4
that it failed to carry out this responsibility; no conclusion is expressed. In my opinion, this failure amounts to a reviewable error which renders the decision as patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision and refer the claims of both the principal claimant and her daughter back to a differently constituted panel for redetermination. On the redetermination, I direct that the correct spelling of the names of the claimants be determined and stated in the redetermination decision rendered.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9929-03
STYLE OF CAUSE: GRACE CHIZOBA ALEXANDRIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 18, 2004
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: NOVEMBER 18, 2004
APPEARANCES:
Mr. Ronald Poulton
FOR APPLICANT
Ms. Marina Stefanovic
FOR RESPONDENT
SOLICITORS OF RECORD:
Ronald Poulton
Barrister & Solicitor
Toronto, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR RESPONDENT
FEDERAL COURT
Date: 20041118
Docket: IMM-9929-03
BETWEEN:
GRACE CHIZOBA ALEXANDRIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER