Saturday, August 04, 2012

Oboh—risk to child is not to be compared with other people

Oboh v. Canada (Citizenship and Immigration), 2012 FC 186 (CanLII)

Judge: Justice Zinn; Date heard: November 29, 2011; Date decided: February 8, 2012; Counsel for Oboh: Kingsley I. Jesuorobo; Counsel for Minister: Kareena R. Wilding;Place of Hearing: Toronto, Ontario.

The applicant was a Nigerian citizen who had filed an application on humanitarian and compassionate grounds. A previous refugee claim made on the basis that her father had tried to force her to have an abortion was failed. A PRRA was also refused.

After coming to Canada, the applicant gave birth to twins, a boy and a girl. In the H&C, she argued that the girl would be at risk of FGM if the mother was returned to Nigeria, and she would have to bring the children with her.

The officer stated that the daughter would not be at risk of FGM. Justice Zinn found that the evidence accepted by the officer showed that while the daughter might not be at the same level of risk as other girls in Nigeria, this was not the test. As such, the best interests of the children analysis was flawed and the decision was overturned.

Ortega—IFA and plausibility analysis must consider all the evidence

Ortega v. Canada (Citizenship and Immigration), 2012 FC 182 (CanLII)

Judge: Justice Shore; Date heard: February 7, 2012; Date decided: February 8, 2012; Counsel for Ortega: Alain Joffe; Counsel for Minister: Pavol Janura; Place of Hearing: Montréal, Quebec.

The applicants were Mexican citizens and brothers. They owned land which they rented to a tenant, later discovering that he was growing marijuana on it. When they reported the tenant, they were threatened, and fled to Canada.

The RPD found that the tenant had most likely belonged to the Beltran Leyva cartel. The RPD found that their story was implausible, but that even if it was true they had an IFA to Monterrey, which was run by the Zetas cartel.

Justice Shore found that the RPD had erred in its plausibility analysis by failing to consider all of the evidence which supported the applicant’s story, and making assumptions (e.g. that the principal applicant’s time in the US was “urban” and that it would not make sense for him to go into farming, when he had been involved in growing oranges in the US).

Furthermore, in the IFA fining, the RPD also ignored the evidence that the tenant had found the applicants previously twice.