Date:
19980527
Docket:
IMM-2044-97
BETWEEN:
ANAB ALI HUSEIN
FADUMO OSMAN MAHAMED
LIBAN ABDIQADIR
MAHAMED
ASAD AHMED ABDISALAN
MANDEQ HASAN BANI
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
JOYAL, J.
[1]
This
is an application for judicial review of a decision by the Immigration and
Refugee Board, dated April 24, 1997, which determined that the applicants were
not a Convention refugees under s.2(2) of the Immigration Act, R.S.C.
1985, c. I-2.
The Facts:
[2]
The
principal applicant (the "applicant"), her mother and her three
children are citizens of Somalia. Before the war started, she was married
three times and had four children, all of different fathers. Her youngest
child died in Mogadishu in 1991.
[3]
In
1990, after the Siad Barre government was overthrown, the applicant and her
family started fearing for their lives since they were of the Darod clan.
Members of that clan were being targeted and killed by the new regime.
[4]
In
January 1991, the applicant moved with her children to her parents' home. Her
third husband, upset with her decision to move, divorced her at the end of
January. Later, the house was attacked by members of the United Somali
Congress (the "USC") and her uncle and youngest child were killed.
After the incident, the applicant left with her mother and remaining children
for another area of the city, Medina, where a small concentration of Darod clan
members had taken refuge. Her father stayed behind to bury the dead.
[5]
The
family stayed in Medina only overnight and from there walked to Afgoye. When
they got there, the applicant was told that her father had been killed. From
Afgoye, they took a truck that brought them to Kismayo, where they lived in an
abandoned schoolhouse until April 1991, when they escaped an attack by USC
rebels. The family then took a boat to Mombassa, Kenya, where they lived until
the end of 1993. They stayed with relatives in Nairobi from 1993 to 1995. In
March 1995, they left Africa and arrived in Canada the same month.
The Board Decision:
[6]
The Board did
not find the principal claimant to be credible on the issue of identity. The
only documents produced were the children's birth certificates, which the Board
did not believe to be authentic. After noting further discrepancies between
the principal claimant's testimony, her Personal Information Form and her
sister's testimony, the Board determined that it could not rely on her
testimony with respect to vital aspects of the refugee claim and concluded that
the claimants were not Convention refugees.
[7]
The
applicants submitted three issues to be argued, which may be summarized in one
question: did the Board err in law in its finding of lack of credibility of the
principal applicant's testimony on grounds that this finding was based upon
speculation and a lack of regard for the totality of the evidence?
Analysis:
(a) Credibility
[8]
In
refugee claims, the determination of credibility is a question of fact 1 which
is within the Board's jurisdiction. Although in the area of plausibility, the
unreasonableness of a decision may be more obvious, the Board is still in the
best position to gauge the credibility of a claimant 2.
Contradictions or discrepancies in the evidence are accepted bases for a
finding of lack of credibility3. The Court should not interfere in the
Board's conclusion unless it be patently unreasonable 4.
[9]
The
Board, in rendering its decision, must respect certain conditions in order to
"shield" itself from judicial review. A negative finding of
credibility must be addressed in "clear and unmistakable terms" 5, in
regards to the totality of the evidence. A claimant must be given an
opportunity to explain the contradictions6 and, in assessing the evidence, the Board must be wary of applying
western standards of rationality upon a claimant's particular situation7. Nevertheless, it is upon the applicant that
rests the burden of demonstrating that the inferences drawn by the Board were
unreasonable in regards to the material before it.
[10]
As
I have already mentioned, the applicant argues that the Board erred when it
found that her testimony lacked credibility because this finding is based on
speculation and a lack of regard for the totality of the evidence. The
applicant submits that the Board should have accepted her explanations as to
the authenticity of birth certificates, claiming that she was confused and
afraid of the Board's continuous questioning.
[11]
In
a situation of this nature, I suggest that a proper test on judicial review is
to read the transcript of the evidence. In the case at bar, if the record is
left vague because of many "inaudibles" in the transcript, the text
is remarkably clear on the issue of the birth certificates. The principal
applicant stated that she had only once attended at the Municipal Office to get
her children's birth certificate. The Board was concerned that the
certificates bore different dates. It was also curious as to why, in such a
strongly patriarchal society as Somalia, none of the fathers' names appeared on
the certificates. And finally, the Board was troubled by the fact that these
certificates were the only objective evidence as to the identity of the people
involved.
[12]
A
reading of the transcript of the Board's decision, with respect to the issues of
the birth certificates and contradictions in the main applicant's testimony,
leave little doubt that the Board gave the main applicant every opportunity to
provide full clarification on the Board's misgivings. It is clear, also, that
the Board was simply not satisfied with the applicant's answers.
(b) Totality
of the evidence
[13]
There remains the issue of a failure by the
Board to have regard to the totality of the evidence as to the main applicant's
well-founded fear of persecution in Somalia. In my respectful view, once the
Board had concluded that identity had not been established or that the main
applicant had not proven who she allegedly is, it was not necessary for the
Board to analyze the evidence any further. Identity was central to the case. The
main applicant's failure to prove that she belonged to a persecuted clan
effectively undermined any claim of a well-founded fear of persecution.
Conclusion
[14]
In
the event, and with due respect to counsel's efforts on the applicants' behalf,
I find no grounds justifying my intervention. The application for judicial
review is therefore dismissed.
L-Marcel Joyal
O T T A W A, Ontario
May 27, 1998.
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