Date: 20050506
Docket: IMM-6207-04
Citation: 2005 FC 636
BETWEEN:
KHADRA OKIYE NUR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
de MONTIGNY J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated June 9, 2004, allowing the Minister's application to vacate the applicant's refugee status. Relying on subsection 109(1) of the Immigration and Refugee Protection Act (the Act), the Board found that the applicant had obtained refugee status by misrepresenting a material fact relating to a relevant matter.
The Facts
[2] The Board granted the applicant refugee status on November 22, 1994. She had claimed she was from Somalia.
[3] On January 11, 2002, the Minister asked the Board to re-examine and vacate its previous decision, alleging that the applicant had misrepresented her nationality. The Minister contends that the applicant was a citizen of Djibouti, not Somalia.
[4] At the hearing concerning the application to vacate the decision, which took three days, the Board heard the applicant, her sister, her sister-in-law and her brother-in-law.
Decision of the Board
[5] The Board analysed the applicant's testimony and noted that she answered by asking questions, contradicted herself and arrogantly refused to answer some questions.
[6] The Board identified many contradictions in her testimony:
! She initially claimed she did not have any identity documents, and then admitted she had submitted one for her application for permanent residence;
! She was unable to explain why her name was spelled differently in her identity document;
! She contradicted herself on how she had obtained this document;
! She was unable to explain why her father's name was spelled differently on her identity document and Personal Information Form;
! She said she grew up with her father, but said she did not know where he was born;
! She was unable to provide much information about the town where she allegedly was born and lived, and some of this information was contradicted by her sister's testimony;
! She alleged that her sister was younger than her, whereas the sister is allegedly four years older;
! She said she was not married, but then said she got married in June 2000 to someone she had not seen in nine years; she talked to him on the telephone, but did not know in which country or city he lived.
[7] The Board found it implausible that the applicant never asked her father where he was born, especially since, in the Board's view, "It is generally accepted that nationality is determined by the father as much as the clan, which is extremely important in Djibouti culture". I will come back to this statement later.
[8] The Board concluded that the identity document was counterfeit on the basis of the RCMP's analysis and pointed out that the applicant did not provide a reasonable explanation as to why the counterfeit document had been submitted.
[9] With regard to testimony provided by her three family members, the Board felt that only her sister-in-law was credible (applicant's brother's wife) and concluded that all her husband's brother's children, including the applicant, were Djiboutian citizens.
[10] In light of this evidence, the Board found that the applicant had knowingly withheld her Djiboutian origin and that she had acquired this nationality from her father. Since there remained insufficient evidence among what had been considered in the initial decision that granted refugee status, the Board vacated the decision and allowed the Minister's application.
Submissions of the parties
[11] Counsel for the applicant claims that Djiboutian law does not support the Board's finding that the applicant does not have Djiboutian citizenship. Relying on the relevant statutes, he argues that nationality of that country is not determined by the father. In addition, there is no conclusive evidence on which the Board could rely to find that the father was a Djiboutian citizen.
[12] Counsel further argues that the Board erred in law in not complying with the provisions of section 18 of the Refugee Protection Division Rules. In stating that, "It is generally accepted that nationality is determined by the father", the Board gave the impression that it was referring to specialized knowledge; however, nationality is governed by law and does not fall within the ambit of specialized knowledge. In any case, if the Board intended to use its specialized knowledge, it should have notified the applicant and given her an opportunity to make representations on the reliability of this information and give evidence in support of her representations, which it did not do.
[13] The applicant claims that the Board erred in failing to clearly demonstrate that it took into account that the burden of proof was on the Minister and that the balance of probabilities was the appropriate standard of proof.
[14] In his memorandum, counsel for the applicant also contests the Board's findings related to the validity of the identity document, indicating that the RCMP's analysis report was not conclusive or clear-cut. In addition, counsel alleges that the Board did not take the cultural context into account in its assessment of the applicant's explanations about her father's place of birth. Nevertheless, he abandoned these arguments at the hearing.
[15] For his part, counsel for the Minister argues that assessing the applicant's credibility was clearly within the Board's jurisdiction and that the intervention of this Court is justified only if the conclusion was patently unreasonable in light of the evidence adduced. After a very detailed analysis, the Board found that the applicant had wilfully and knowingly withheld her father's nationality, and this conclusion had a direct impact on the determination of the applicant's nationality.
[16] Furthermore, the Board could certainly rely on its own expertise to determine that the applicant's identity document was counterfeit.
[17] Likewise, the Board could rely on its specialized knowledge to decide that nationality is determined by the father. The applicant knew, or should have known, that the respondent would raise this issue, since it is mentioned in his submissions. The Board's finding in relation to this was supported by the evidence. In any event, even if the notice provided for in section 18 of the Rules should have been given, the application for judicial review should still be dismissed, since other evidence supports the Board's decision.
Issues
[18] This application for judicial review essentially raises four issues:
! Did the Board err in failing to clearly take into account that the burden of proof was on the Minister and in not applying the balance of probabilities standard?
! Did the Board violate the principles of natural justice by relying on its specialized knowledge without advising the parties beforehand, as required by section 18 of the Refugee Protection Division Rules?
! Did the Board err in law in finding that the applicant was a Djiboutian citizen?
! Was it patently unreasonable to find that the applicant lacked credibility?
Analysis
[19] It is settled law that the standard of review for questions of fact and credibility is patent unreasonableness. In other words, the Court cannot substitute its decision for that of the Board if the applicant fails to establish that the Board based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it [section 18.1(4)(d) of the Federal Courts Act, R.S.C. (1985), c. F-7; Cepeda-Gutierrez v. Canada (M.C.I.), [2000] F.C.J. No. 1800; Akinolu v. Canada (M.C.I.), [1997] F.C.J. No. 296; Aguebor v. M.E.I., (1993) 160 N.R. 315 (F.C.A.)]. For questions of law, however, the correctness standard should be applied (Pushpanathan v. Canada (M.C.I.), [1988] 1 S.C.R. 982; Chieu v. Canada (M.C.I.), [2002] 1 S.C.R. 1).
[20] As I examine the parties' claims, I will therefore bear in mind that the standard of review varies according to the nature of the issues raised. Before doing so, however, it would be appropriate to reproduce the relevant statutory provision, section 109 of the Act:
| 109.(1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter.
(2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.
(3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.
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109.(1) La Section de la protection des réfugiés peut, sur demande du ministre, annuler la décision ayant accueilli la demande d'asile résultant, directement ou indirectement, de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait.
(2) Elle peut rejeter la demande si elle estime qu'il reste suffisamment d'éléments de preuve, parmi ceux pris en compte lors de la décision initiale, pour justifier l'asile.
(3) La décision portant annulation est assimilée au rejet de la demande d'asile, la décision initiale étant dès lors nulle.
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[21] With regard to the burden of proof, case law has clearly established that the burden of proof is on the Minister when he wants to have someone's refugee status vacated. He must convince the Board, on the balance of probabilities, that the person whose status he is challenging misrepresented or withheld some facts in his original claim (Canada (M.C.I.) v. Ekuban, [2001] 3 F.C. 85; Olutu v. Canada (M.C.I.), [1996] F.C.J. No. 1704; Kahin v. Canada (M.C.I.), (1995), 91 F.T.R. 46).
[22] This being said, the Board was not required to explicitly state these principles in its decision. We simply have to infer from its reasons that it indeed was guided by and adhered to these principles in its decision (Bhatia v. Canada (M.C.I.), 2002 FCT 2010).
[23] In this case, the Board did not explicitly refer to the burden of proof, and the issue is whether its reasons nevertheless allow us to conclude that it correctly lay the burden of proof on the Minister and whether it used the appropriate standard of proof.
[24] According to counsel for the Minister, it should be assumed that the Board was conscious that the burden of proof was on the Minister, since it continually referred to her as the applicant and allowed the so-called application in its conclusion. In my view, this is a weak argument in support of the Minister's submission. Moreover, I cannot help but notice that the decision reads exactly the same way as a decision on an original refugee claim.
[25] It seems to me that more details should have been provided to allow us to conclude that the Board really did place the burden of proof on the Minister. After all, the applicant had already received a positive decision from the Board following an in-depth assessment of her situation. It is therefore only natural to ask the Minister to convince the Board, on the balance of probabilities, of the reasons why it claims that the original decision was erroneous. The Board may very well have been aware of these parameters; however, we cannot be sure simply from reading its decision. Regardless, it is unnecessary to continue analysing this issue, as I have decided to allow the application for judicial review on other grounds.
[26] It appears from the reasons accompanying the Board's decision that the Board complied with neither the letter nor the spirit of section 18 of the Refugee Protection Division Rules. The following statement (on page 5 of the decision) suggests that the panel used its specialized knowledge to find that the applicant is a Djiboutian citizen: "It is generally accepted that nationality is determined by the father as much as the clan, which is extremely important in Djibouti culture".
[27] This statement is problematic in many respects. First, determining nationality is a matter of law, in that it is governed by the law of the country and, therefore, cannot be within the Board's specialized knowledge. As for ethnicity, which, conversely, could be within specialized knowledge, the applicant never received notice that this issue would be raised. As a result, she could not make representations on the reliability or use of this information.
[28] This is clearly a violation of the principles of natural justice. While it is true that on a few occasions this Court has ruled that such a violation would not be critical if the outcome would be the same in light of other factors that support the Board's decision (Kabedi v. Canada (M.C.I.), [2004] F.C.J. No. 545; Kabasele v. Canada (M.C.I.), [2004] F.C.J. No. 2111), that is not the case here.
[29] The most serious error is clearly the fact that the Board found that Djiboutian nationality is determined from the father's nationality and membership in a clan. According to Djiboutian legislation (Loi No. 222/AN/1981 portant code de la nationalité djiboutienne), Djiboutian nationality is not determined solely by the father's nationality. A child born in or out of wedlock to father and mother who are Djiboutian (section 8), a child born in the Republic of Djibouti of unknown parents and a child born in the Republic of Djibouti of a Djiboutian mother, but whose father is unknown (section 9), are Djiboutian. Clan and ethnicity are not relevant in the least.
[30] It is settled law that findings related to foreign law must be considered as questions of fact; therefore, an error in the interpretation of foreign law must be palpable for the Court to intervene. It seems to me this is the case here. In attributing Djiboutian nationality to the applicant on the basis of which clan her father belonged to and his nationality (which, besides, was not established with certainty), the Board clearly erred. This error had an impact, such that it undermined the applicant's credibility and coloured the assessment of the testimonies. If the applicant is not Djiboutian, contrary to what the Board concluded, there is nothing to indicate she is not Somali. The relevant legislation of this country (Law No. 28 of December 1962 - Somali Citizenship, article 3) stipulates that any person who by origin, language or tradition belongs to the Somali nation is considered a Somali. The onus was on the Minister to demonstrate that the applicant could not avail herself of this provision.
[31] Once the applicant's Djiboutian nationality has been ruled out, the only ground left to find that she is not Somali is her lack of credibility and the contradictions between her testimony and that of her sister and brother-in-law. However, the criticisms levelled against the applicant are not, in my view, as serious as they are made out to be and do not take into account local customs or that the applicant is a woman with very little education who left her country almost ten years ago, who experienced the horrors of war and the hardship of refugee camps, and who is from a very complicated family (her father had four wives and nineteen children).
[32] In this very special context, I find that the Board erred in attributing no credibility to the applicant mainly because her and her father's names were not always spelled the same way, her memories of the town where she was allegedly born were not always consistent with those of her sister and she did not know where her father was born. While it is true that the Board relied on other evidence to conclude the applicant was not credible, if we discard the erroneous findings with respect to the applicant's Djiboutian nationality and the discrepancies in her testimony, which can be explained by the factors mentioned above, I feel that these other elements would not have led the Board to find that the applicant's version of the facts was not credible.
[33] In light of the above, I feel that the Board's decision cannot stand. Although the errors of law and fact may not be material when considered in isolation, taken as a whole, they justify the intervention of this Court.
"Yves de Montigny"
Judge
Certified true translation
Jason Oettel
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