Ottawa, Ontario, February 23, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
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
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-590-06
STYLE OF CAUSE: TAWAKALIT ODUNOLA HAMMED v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 20, 2007
APPEARANCES:
Adetayo G. Akinyemi FOR THE APPLICANT
Amy Lambiris FOR THE RESPONDENT
SOLICITORS OF RECORD:
Adetayo G. Akinyemi FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada