Date: 20070223
Docket: IMM-590-06
Citation: 2007 FC 197
Ottawa, Ontario, February 23, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
TAWAKALIT
ODUNOLA HAMMED
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Tawakalit Odunola Hammed is a citizen of Nigeria who based her claim for
protection on the fear of her uncle who allegedly sexually abused her for several
years. She claims that her uncle has threatened to kill her and has fabricated
lies about to her to the police such that she has been declared wanted by the
Nigerian police. In a decision dated January 17, 2006, a panel of the Refugee
Protection Division of the Immigration and Refugee Board (the Board) rejected
her claim. The Board’s decision was based on three separate conclusions:
- The Applicant had failed to establish her
identity as required by s. 106 of the Immigration and Refugee
Protection Act (IRPA);
- The Board did not believe either the
Applicant’s story of being abused by her uncle or her claim of being
wanted by the police in Nigeria; and
- The Applicant could avail herself of an
internal flight alternative (IFA) in Lagos.
[2] The Applicant seeks
judicial review of the Board’s decision, raising the following issues:
- Did the Board breach the principles of a
fair hearing by rendering its decision before it received the further
submissions of the Applicant?
- Did the Board err by failing to have regard
to the identity documents submitted by the Applicant?
- Did the Board err in its credibility
finding by drawing inferences that were not supported by the evidence and
by relying on inconsistencies that did not exist?
[3] For the reasons that
follow, I am not persuaded that the Board’s decision should be overturned.
Analysis
[4] I first note that any
one of the three conclusions of the Board is determinative. A claimant must be
able to establish, to the satisfaction of the Board, that she is who she claims
to be. If unable to do so, the claim will fail and the Board is not required to
assess the well-foundedness of the claim (see, for example, Najam v. Canada (Minister of
Citizenship and Immigration), 2004 FC 425, 129 A.C.W.S. (3d) 1189).
Similarly, a claim may be rejected on the grounds that the Board does not find
the claimant’s story, on a balance of probabilities, to be credible. Finally,
even if identity is established and a story accepted as credible, a claim will
fail if the claimant could reasonably be expected to move to an IFA. Where an
IFA is found, a claimant is not a refugee or person in need of protection (Sarker
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 353 at para. 7, 137 A.C.W.S. (3d) 1196).
Thus, an error with one or two of these findings will not mean that the
judicial review will succeed; rather, the Applicant must satisfy me that all
three of the key conclusions of the Board were made in error.
[5] Of course, an allegation
of procedural unfairness, if demonstrated, may call an entire decision into
question.
Fair hearing
[6] The Applicant, in her
sworn affidavit, states that the Board allowed the Applicant until February 7,
2006 to submit a Psychological Report and evidence from her boyfriend. By
rendering its decision on January 17, 2006, the Board breached the rules of
fairness.
[7] The problem with the
Applicant’s submissions in this regard is that they are not supported by the
Certified Tribunal Record. Nowhere in the transcript of the hearing is there
any reference to an adjournment to allow further submissions. The hearing on
January 10, 2006 ended only with a statement by the Board member that the
decision would be reserved. If an agreement had been obtained from the Board
member, logically, there would be a reference to that agreement at some time
during the hearing. Further, the Hearing Information Sheet, which is produced
by Board officials after a hearing, states only that the decision is reserved
and makes no reference to further submissions. Finally, if the request was made
in writing either before or after the hearing, one would expect to find the
request in the Certified Tribunal Record. I find, on a balance of
probabilities, that the Board did not agree to allow further submissions.
[8] Counsel for the
Applicant submitted to me that the agreement was reached off the record at the
hearing where he acted as counsel for the Applicant. While I do not wish to go
so far as to impugn the credibility of the counsel, I have a problem with this
“evidence”. First, the counsel - and not the Applicant – ought to have provided
his sworn testimony in this regard. Further, given the complete lack of
reference to this agreement, it may be that the Applicant’s counsel may have
misinterpreted what was agreed to by the Board.
[9] Accordingly, the
Applicant has not demonstrated that the hearing was unfair.
Identity
[10] As noted, the Board is
entitled to reject a claim when a claimant fails to produce credible evidence
of her identity. In this case, the Board reviewed the sparse documentation
submitted and concluded that the Applicant was not recently from Nigeria. On the evidence before
the Board, this conclusion was not unreasonable and, as noted, could have been
determinative of the Applicant’s claim.
Credibility Findings
[11] The Applicant asserts
that the Board’s credibility findings were perverse. I accept that the Board’s
comments on whether the Applicant would or would not have become pregnant are
pure speculation unsupported by the evidence. Further, the comment that it is
unreasonable to believe that her aunt did not know about the sexual assaults is
clearly, in my view, based on unreasonable inferences. This part of the
decision cannot be supported. Were there no findings on the issues of identity
and IFA, I would be inclined to allow the judicial review on the basis that
these two findings were perverse and unsupported by the evidence before the
Board. I would also say that these two findings fly in the face of the Board’s
Gender Guidelines and show a blatant disregard for the plight of a woman who
has been the subject of repeated abuse from her early years. In spite of my
concerns with the comments of the Board on the issue of the abuse, the Board
made other findings that can be supported by the evidence and which were
relevant to the overall consideration of the Applicant’s claim.
[12] While the Board may have
erred in its assessment of the Applicant’s story of repeated abuse by her
uncle, I am not persuaded that the Board erred in determining that the
Applicant was not wanted by the police in Nigeria. The Board’s conclusion was based on the
inconsistencies in the Applicant’s evidence, on the failure to produce any
corroborating evidence and on the Applicant’s vague testimony at the hearing.
The Board’s conclusion on this question is a finding of fact that is supported
by the evidence.
IFA
[13] A claimant is required
to show that she would be at risk everywhere in her country of origin before
seeking protection outside that country. If a claimant, who has suffered
persecution in one part of the country, could relocate to a part of the country
where she would not likely suffer persecution or need protection, she will be
denied protection in Canada since an IFA exists.
[14] In this case, the Board
found, as an alternative to its finding on credibility, that the Applicant had
an IFA in Lagos. For the purposes of
its analysis on this issue, the Board assumed that the Applicant’s story of
abuse was true. The Board raised the question of the existence of an IFA at the
hearing. The Applicant was permitted to make representations as to why Lagos would not provide her
with an IFA. The Board found that “there is no more than a mere possibility
that the claimant’s uncle living in another town will discover the whereabouts
of the claimant”. The Board also noted that the Applicant’s boyfriend lived in Lagos and that the
Applicant’s “education would stand her in good stead in Lagos and, with the
assistance of her boyfriend, she can reasonable be expected to find employment
and accommodation in Nigeria’s largest city.”
[15] The only aspect of this
claim that could have impacted on this IFA finding is the existence of a
warrant for the Applicant’s arrest. If the Applicant had been wanted by the
police, it is possible that the police (and her uncle) could have found her in Lagos. However, the Board
rejected the claim that the Applicant was wanted by the police and I have
concluded that this finding was not patently unreasonable. Accordingly, the IFA
finding was open to the Board. On this basis alone, the decision should not be
overturned.
Costs
[16] The Respondent submits
that costs should be awarded in this case due to the false information in the
affidavit. Although I am unhappy with the affidavit, I am not prepared to find
that costs are warranted on these facts.
Conclusion
[17] The application for judicial
review will be dismissed. Neither party proposed a question for certification.
I agree that the issues in this case are not of general importance and will not
certify a question.
ORDER
This Court orders that:
- The
application for judicial review is dismissed; and
- No
question of general importance is certified.
“Judith A. Snider”
__________________________
Judge
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