By Sukhram Ramkissoon

A Nigerian mother (who I will call Liz) and her two minor children were recently successful in having their negative Refugee Appeal Division decision set aside by the Federal Court.

According to the facts in the judgment, Liz was sold into slavery at age 11 to a woman. While a slave, she was physically and sexually assaulted by the woman’s son who I will call Nel who fathered her children, two of whom came with her to Canada and a third who was born in Canada after she arrived.

Liz and her children fled to Canada fearing Nel and his mother would find and kill her in Nigeria to gain custody of her children. Nel can only gain custody of his children if he marries Liz or if she dies.

Liz says Nel wanted custody of his children when he learned she was pregnant with a boy. She also states he will not marry her as he considers her a slave. In addition to that risk, she states that her female child is at risk of genital mutilation if returned to Nigeria because she overheard Nel’s mother saying the child would be circumcised at age 10, as is the custom in the area.

Liz’s claim for refugee protection was rejected by the Refugee Protection Division (RPD) which concluded there was a viable internal flight alternative in Nigeria. Liz appealed to the Refugee Appeal Division (RAD) arguing the RPD misapprehended or ignored evidence and failed or unreasonably applied the Chairperson’s Gender Guidelines and the Guideline on Child Refugees. The judge agreed, as there was no finding that Liz was not credible and one must assume the oral evidence corresponded.

The court took issue with the reasonableness of the RAD finding regarding the risk to the minor female of circumcision, as it stated that although Liz feared her daughter would be circumcised by the persecutors, there was no persuasive evidence this would occur. The judge found several problems with that statement as there was evidence before RAD that Liz said she heard one of her persecutors say that.

The court also took issue with the reasonableness of the RAD finding regarding the father’s wish to obtain custody of the children. The RAD failed to address the evidence as to how custody was proposed to happen. The evidence of Liz was that she was at risk of death in order that Nel could obtain custody.

Liz wrote: “I decided to run away with my children because I heard Nel in confiding with his mother that after my delivery (she was then pregnant with the youngest applicant who was born in Canada), I would be killed and they would tell anyone who asked about me that I died in child birth.

“That was after they got to know that my unborn baby is a baby boy and according to custom he must marry me if he and the family are to claim the children as their children. But he does not want to marry me. The mother said he would not marry a slave like me. That was when they decided that they would take the children from me and kill me after I delivered this baby I am carrying now.”

Lastly, the court took issue with the manner in which the RAD dealt with the psychological report tendered for Liz and pointed out several factors not taken into consideration.

The court stated that these additional concerns are such that it cannot be said that the conclusion reached by the RAD was reasonable even if it had applied the standard of review it found to be appropriate. The court allowed the judicial review application and ordered the decision of RAD be aside, and the appeal be determined by a different member.

Sukhram  Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219, Toronto. Phone 416-789-5756.