Date: 19980731
Docket: IMM-422-98
BETWEEN:
SUADH ABUBAKAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.
[1] In the CRDD decision with respect to the claim for refugee status of this young woman, the central question focused upon was whether the claimant is whom she claimed to be. On this issue, the closely connected but paramount question was whether the claimant could be believed in the ample evidence she gave respecting her identity. After hearing the evidence the CRDD decided that:
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It is the panel's view that in this situation, the only way to determine the nationality and the citizenship of the claimant is through her evidence and her knowledge of the country. We find that even considering the age of the claimant at the time she left Somalia, she failed to produce credible or trustworthy evidence that, on the balance of probabilities she is who she says she is. Since her claim depends on her alleged fear of being persecuted for reasons of her membership in a particular social group, because she failed to establish that she is a member of that group, we are unable to find that she is a Convention refugee. |
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[2] Having read the portions of the transcript referred to me by counsel in the hearing, I think it is a fair conclusion to draw from this finding that the CRDD did not believe that the claimant was telling the truth.
[3] It is important that during the course of the hearing that no direct signal was given by the CRDD panel members of any concern that the evidence they were hearing from the claimant was not the truth. This, I find, produced a serious complication in the way the case was presented by the applicant's counsel.
[4] Apart from one piece of independent evidence, the only evidence respecting the claimant's identity came from her own testimony as follows:
| " The applicant is a 17 year old citizen of Somalia who is a member of the Darood clan, Marjarteen subclan who fears persecution by reason of her membership in the Darood clan should she be returned to Somalia. |
| " The applicant went to live with her aunt in Mogadishu when she was 3 years old. In 1990, when the applicant was 10 years old, the war started with heavy fighting centered around Mogadishu. |
| " In January, 1990, the applicant and her aunt fled to the Kenyan border and continued onto Nairobi where they lived for approximately 3 months during which time arrangements were being made to allow them to continue on to Uganda where many of their fellow clan members resided. |
| " In March, 1990, the applicant and her aunt travelled to Kampala, Uganda where the applicant was left with the Hussein Yasin family. Her aunt was very ill and returned to Kenya, however, the aunt would visit the applicant whenever she could. |
| " Because the applicant has no status in Uganda and feared being returned to Somalia, she was sent to Canada to live with her aunt. |
| " The applicant fears being killed by the Hawiye clan because they are the dominant clan in Mogadishu where the applicant lives with her aunt. |
| " The applicant travelled from Uganda to Toronto, via Paris by using a fraudulent passport obtained from Zimbabwe under the name of Nhlanhla Ncude. Upon her arrival in Canada the applicant immediately made a claim for refugee status. |
[5] In the claimant's personal information form (PIF) completed upon her making her refugee claim, she stated her name to be Suadh Abubakar, born May 25, 1980, and also stated her father to be Ahmed Abubakar Abdi.
[6] The only independent confirmation of the claimant's statement of the identity of her father comes from the PIF of her aunt, with whom she was living in Canada and who made a successful refugee claim in 1993. In the aunt's 1993 PIF, she states her brother to be Ahmed Abubakar Abdi. Given this evidence, obviously, the aunt should be considered an important witness to testify about family relationships, and any other fact she knows in support of the applicant's claim. Indeed, very much to the credit of the CRDD, it identified the importance of the aunt's testimony at the beginning of the hearing, but left it to the claimant's counsel to produce.
[7] During the course of the hearing, the following exchange took place:
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PRESIDING MEMBER: Okay, so we'll take our lunch break now, for one hour. We'll be back at one o'clock. So, I just would like to clarify how we're going to proceed you know, after the Member's questions. |
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I asked you before we've got on the record, after the morning break. You said you haven't decided Counsel, yet, if you're going to call -- |
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COUNSEL: Well, you know, she doesn't know the claimant from Somalia. So at this point, I'm not going to. |
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PRESIDING MEMBER: You have no intention of calling her. |
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COUNSEL: Not really. I don't, I don't see credibility as an issue up to now. I'll make submissions on that. So that would be my only point of calling her, and I'm, she's not an identity witness. So, I'm not going to. |
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PRESIDING MEMBER: Mmm-hmm. What about you, Ms. Winn? |
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RCO: Well, I'll take direction from the panel. I could, we could certainly call Leila, and ask her about her connections to the family. |
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PRESIDING MEMBER: Mmm-hmm. |
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RCO: If you feel that would give you more evidence, and that you need more evidence. Alternatively, we'd have to be quite creative I think in getting additional evidence for this hearing. We could also ask the other young lady she lives with to come in and testify. Or we could try to contact this man she lived with in, with, in Uganda. |
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But apart from those suggestions, I'm really at a loss as to how we could get better evidence on her identity. So -- |
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PRESIDING MEMBER: So why don't we decide after we come back, about (inaudible) lunch break. So we break it until one. |
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[8] Not long after reconvening, the following exchange took place:
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PRESIDING MEMBER: I have no more questions to ask. And with respect to calling Leila as a witness, Counsel, we have no intention whatsoever, the panel doesn't have any intention to call her. We don't know actually what you are going to gain by calling her, since, you indicated that you're not interested to call her also, I take it. |
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COUNSEL: No, I think the main issue here is identity. And nationality. |
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COUNSEL: Her aunt didn't know her, doesn't know her, from Somalia. |
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PRESIDING MEMBER: That's, that was our conclusion actually (inaudible). |
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MR. AVERY: We don't know what the aunt can give by way of evidence. you possibly should know. |
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PRESIDING MEMBER: I think it's up to you. |
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MR. AVERY: It's up to you, Counsel. |
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COUNSEL: Most of the evidence that you could have gotten, you've already heard from the claimant herself, with regard to her relationship to her aunt and knowledge of her father and the aunt's brother, and so on and so forth. |
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The aunt could corroborate some of that. But really, I don't feel it's necessary -- |
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PRESIDING MEMBER: It won't help further. |
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COUNSEL: If I really did think it was going to assist, you can be sure I would have called, I would call her. She is here, she is acting as the designated representative with her own identity document, and I feel that's, that that suffices for now. So, thank you for the opportunity. |
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[9] The passage just quoted demonstrates a serious misapprehension by counsel for the applicant which, in the end, can only be characterized as a mistake in not calling the aunt to produce the corroborating evidence which he said she had. Had the panel member been more assertive and specific about what appears to be an underlying suspicion that the applicant was lying, I can only think that the aunt would have been called.
[10] Counsel for the applicant in the hearing before me agreed that it was an error in judgment not to call the aunt. I find, however, that the error was facilitated by the panel not being direct and specifically raising the veracity concern which forms the heart of its decision, and, thus, giving an opportunity for it to be adequately and fully addressed. While it is not obliged to take over the presentation of the applicant's case, I find that it is only fair for the panel to give notice of the importance of an issue which does not seem important to counsel at the time.
[11] Does all this amount to a reviewable error in due process? I think it does. Because of the misapprehension of counsel, and the failure by the panel to give notice to correct this misapprehension, I find the applicant's ability to produce her case was seriously compromised.
[12] In addition, respecting the CRDD's analysis of the claimant's evidence, I accept the argument made by counsel for the applicant that there are some eleven findings not clearly supported by the transcript. For this reason, I also find a reviewable error.
[13] Accordingly, I set the CRDD's decision aside and refer this matter to a differently constituted panel for redetermination.
"Douglas R. Campbell"
Judge
Toronto, Ontario
July 31, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-422-98
| STYLE OF CAUSE: SUADH ABUBAKAR |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JULY 30, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: CAMPBELL, J.
DATED: JULY 31, 1998
APPEARANCES:
Mr. Robert Blanshay
For the Applicant
Ms. Andrea Horton
For the Respondent
SOLICITORS OF RECORD:
Wiseman, Gordon D.
Barristers & Solicitors
205-1033 Bay Street
Toronto, Ontario
M5S 3A5
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980731
Docket: IMM-422-98
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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