Docket: IMM-4559-16
Citation: 2017 FC 580
Ottawa, Ontario, June 13, 2017
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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HILARY USOMHINE
DAKPOKPO
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT
AND REASONS
[1]
Ms. Dakpokpo asks the Court to set aside the
decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee
Board dated October 6, 2016, rejecting her appeal of the decision of the
Refugee Protection Division [RPD] of the Immigration and Refugee Board which
denied her claim for refugee protection. She advanced her claim on the basis
of a fear of female genital mutilation at the hands of her uncles and men from
her tribe in Nigeria.
[2]
Ms. Dakpokpo is an unmarried citizen of
Nigeria. She is from Edo State, Nigeria, and belongs to the Agenebode tribe
and the Weppa Wanno clan. Since 2005, she has suffered from serious kidney
damage and was diagnosed with End-Stage Renal Disease. She received a kidney
transplant from her mother in India in 2013.
[3]
On July 7, 2015, Ms. Dakpokpo turned 28 years
old. She alleges that a few weeks later, her paternal uncles and two tribal
men from her clan approached her and explained that she had to undergo
circumcision because of her age and the fact that she was unmarried. She also
alleges that the men returned in December 2015 to inform her that the procedure
would be done in March 2016.
[4]
On February 22, 2016, Ms. Dakpokpo left Nigeria
for the USA using a tourist visa from a previous trip in December 2014. After
entering the USA, she says that she was brought to Canada unknowingly by car,
after falling asleep, by a man she did not know. She entered Canada on
February 26, 2016, and made a claim for refugee protection on March 31, 2016.
[5]
The RPD rejected her claim in a written decision
dated June 24, 2016. The RPD member found that Ms. Dakpokpo was not credible
with respect to a number of topics and that she had a viable internal flight
alternative [IFA] in Lagos, Nigeria. On October 6, 2016, the RAD rejected her
appeal on the basis that she has an IFA in Lagos, Nigeria. The RAD did not
address the RPD’s credibility findings as it found that the findings did not
impact the determinative issue of IFA.
[6]
Ms. Dakpokpo frames the issues as follows:
1.
Did the RAD err in law by finding that she has
an IFA in Lagos, Nigeria, without first addressing the RPD’s credibility
findings or determining whether she was credible?
2.
Was the RAD’s finding that she has an IFA in
Lagos, Nigeria, reasonable?
1. Must
the tribunal make credibility findings before examining whether there is an
IFA?
[7]
Ms. Dakpokpo says that the RAD erred by not
addressing the RPD’s credibility findings or conducting its own credibility
assessment. She says that the viability of an IFA is inextricably linked to the
credibility of the claimant’s allegations.
[8]
Ms. Dakpokpo, among other cases, cites the
following paragraphs from Justice Shore’s decision in Irigoyen Torres v
Canada (Minister of Citizenship and Immigration), 2011 FC 581 at paras 1-2
[Torres]:
An internal flight alternative (IFA) is only
taken into account once the applicant's credibility has been accepted:
[5] After all, state
protection and IFA (the subjects she is mostly interested in) only become
issues once the Applicant's story is accepted (i.e. his credibility is
accepted) and his objective and subjective fear is established....
(Bokhari v. Canada (Minister of
Citizenship & Immigration), 2005 FC 574, 139 ACWS (3d) 126).
In identifying
IFAs, the Immigration and Refugee Board (Board) must take all of the evidence
into account, including the applicant's testimony at the hearing and the
documentary evidence. The existence of an IFA may be determinative in itself;
however, consideration of all of the evidence must be reflected in the Board's
decision concerning the regions proposed as viable.
[9]
In my view, neither Torres or the case
cited within (Bokhari v Canada (Minister of Citizenship and Immigration),
2005 FC 574) supports the Applicant’s position here. In both of the above
cases, the Court found that the tribunal, in moving directly to the issue of an
IFA, must be seen to have accepted the evidence of the claimant. Where that
evidence conflicts with the IFA finding, as it did in those cases, then the
tribunal had to first examine the other issues before considering the IFA.
They do not stand for the bald proposition that where credibility is at issue,
it must be assessed first, before an IFA is considered.
[10]
I agree with the Respondent that it is not an
error for the RAD to find that the IFA was determinative as the credibility
issues raised by the RPD in this case (the Applicant’s clan’s traditions, her
exit from Nigeria, and her entrance into Canada) were not issues that affected
the IFA analysis. Moreover, in general, it is not an error to move immediately
to an IFA analysis provided that analysis considers a claimant’s particular
situation, and the testamentary and documentary evidence before the tribunal.
That too was done here.
2. Was the
IFA finding reasonable?
[11]
I agree with the Respondent that the submission
advanced in the Applicant’s written memorandum was not that advanced by counsel
at the hearing.
[12]
At the hearing, counsel stated that the RAD
noted Ms. Dakpokpo’s ability to adapt to the cultural issues, norms, and new
surroundings in Lagos, her familiarity with the language and religion, her
ability to continue receiving support from her family, her high level of
education, her past employment and likely employment prospects, her age, and
most importantly her ability to receive medical care for her kidney ailment.
[13]
As counsel put it, the largest problem is that
the RAD did not deal with the fact that if the Applicant is to relocate to
Lagos, she has to do so, obtain accommodation and employment (which then
provides for medical care), all within three weeks as the evidence in the
record shows that without such care, within that period, the likely result will
be death.
[14]
At the hearing, counsel asserted that this issue
had been raised with the RAD; however, my review of the Certified Tribunal
Record does not support that claim. The RAD can hardly be faulted for not
considering a submission that was not put to it.
[15]
In any event, the record shows that Ms. Dakpokpo
had previously received treatment in Lagos and that her siblings assisted with
the cost. There is no evidence to support that such assistance, both medical
and financial, is not again available to her. The submission of counsel to the
contrary is nothing more than speculation. If there is evidence to support any
of these allegations, it ought to have been put to the RAD; none was.
[16]
I agree with the Respondent that a refugee
claimant is supposed to seek out an IFA before fleeing the country of origin,
and had that been done in this case, then Ms. Dakpokpo would currently be
employed, have health care benefits, and be living with her brother in Lagos. Notwithstanding
this observation, both the RAD and the Court must take the facts of her
situation as they now exist.
[17]
In this case, I find that the RAD did just that,
based on the evidence and submissions made to it and the RPD. Accordingly, I
am unable to find that the decision under review is unreasonable.
[18]
No question for certification was proposed.
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