Immigration Matters

Sukhram Ramkissoon

Nigerian mother and daughter finally granted refugee protection in Canada

After several rejections and appeals, a Nigerian woman and her dependent daughter seeking refugee protection in Canada, were finally successful in their appeal before the Refugee Appeal Division (RAD).

 The mother (Principal Appellant) and her daughter are from a large city in Western Nigeria, and in their claims for refugee protection, they both alleged a risk of Female Genital Mutilation (FGM) and domestic violence

They said that the Principal Appellant’s husband’s family, wants to perform FGM on them and because of the mother’s refusal, she was abused by her spouse.

(Although Female Genital Mutilation (FMG) is illegal in many countries, it is still routinely carried out in parts of Africa, Asia and the Middle East.)

The Principal Appellant further alleged a risk from her husband and his family. In her testimony, she said she believed that her husband would kill her. She testified that her husband initially opposed his family’s wishes of FGM but after he received threats of disownment, this led to his abuse towards her.

This claim was heard twice by the Refugee Protection Division (RPD). In the first hearing, the RPD found that the Principal Appellant lacked credibility and denied the claim. She appealed the negative decision before the RAD, and the decision was overturned. The matter was returned to the RPD where a second RPD Member found that the Appellants had an internal flight alternative (IFA). They again appealed this decision before the RAD.

The RAD said that on balance of probabilities, based upon the husband’s past actions, it finds that the husband poses a risk to the Principal Appellant. This is relevant to the risk faced by both Appellants, as it impacts on the IFA analysis and on the risk of FGM, the Minor Appellant faces.

The RAD found that the RPD misconstrued the evidence about the Principal Appellant’s husband and, based upon this and upon new country conditions evidence, it found that the Appellants do not have an IFA.  It also found that they met the test for Convention refugee status. 

The role of the RAD is to look at all the evidence and decide if the RPD made the correct analysis in their decision.    The main thrust of the RPD’s decision was that the Appellants did not establish a risk from the Principal Appellant’s husband.  This was based on his own evidence that he regretted abusing the Principal Appellant and that, even if he is a risk, he cannot locate the Appellants in the IFA.

The Appellants argued that the RPD erred in its treatment of the evidence from and about the husband, and the RAD agreed. The RAD also found that the RPD was incorrect to conclude that the Appellants have not established their risk in the IFA.

The RAD stated that the Principal Appellant is a Convention refugee based upon a risk of domestic violence from her husband. This risk is based upon her gender which is a particular social group and, therefore establishes a Convention ground. The RAD also found the Principal Appellant’s experience of domestic violence and her husband’s threats to kill her, if she does not comply with his family’s wish of FMG was a Convention ground. It also found that the Minor Appellant is a Convention refugee based upon her risk of FGM, which is also based upon her gender and, therefore she belonged to a particular social group.

 Lastly, the RAD found that there is no access to adequate state protection for the Appellants, on a balance of probabilities. Documents in the most recent National Documentation Package (NDP) indicated that the Nigerian state does not take seriously gender-based violence, including domestic violence and FGM. While there are laws in place to combat these issues, they are not effectively enforced, and women and girls are often told that these types of issues are family matters, and that law enforcement does not get involved.

The RAD allowed the appeal and substituted its own decision in declaring the Appellants as Convention refugees.

SUKHRAM RAMKISSOON is a member of ICCRC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto. Ontario. Phone 416 789 5756.