Date:
20120711
Docket:
IMM-7302-11
Citation:
2012 FC 873
Ottawa, Ontario, July
11, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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HAGOS GHEBREMICHAEL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
case turns on the identity of the applicant. The Refugee Protection Division
of the Immigration and Refugee Board found that the applicant had failed to
provide acceptable documentation to establish his identity and failed to
provide a reasonable explanation for the lack of such documentation or the
steps taken to obtain the evidence.
[2]
The
sole issue is whether the board’s identity finding was reasonable. For the
reasons that follow, I conclude that it was not and remit the matter for
reconsideration by a differently constituted panel.
[3]
The
applicant, Hagos Ghebremichael, claims to be a citizen of Eritrea. He was born in Dire Dawa, Ethiopia, but is unsure of his nationality. He believes
that his mother was Somali and his father Eritrean. He claims to be Eritrean by
tradition through his father. Following his father’s death his mother took him
to live in Djibouti with a paternal uncle. Following her death, he lived with
that uncle, who abused him, and in the streets of Djibouti. He claims to have
been arrested a number of times by the police for not having any identification
papers. He would be detained and eventually released when neither the Ethiopian
nor the Eritrean authorities would accept him.
[4]
When
the applicant had saved sufficient funds, he travelled with the help of a
smuggler to Sudan in May 2008, then to Libya, Italy and finally to Norway in October 2008. He claimed refugee status in Norway but his claim was denied. He
then travelled to Canada and arrived on September 3, 2010. He claimed refugee
status at the port of entry. He was denied entry and detained due to a lack of
identification as he had traveled to Canada with a false passport.
[5]
While
in detention, the applicant contacted his uncle in Djibouti to obtain identity
documents. The uncle procured a birth certificate purportedly issued by the
Town Council of Dire Dawa. It was sent directly to Citizenship and Immigration
Canada. The certificate, issued on August 15, 2008, indicates that the applicant
is of Eritrean nationality. It contains a number of spelling mistakes,
including the name of the town.
[6]
At
the hearing before the Refugee Protection Division in August 2011, the Board
Member found, on a balance of probabilities, that the birth certificate is not
a genuine document. That finding is not disputed in these proceedings. The
applicant says he does not know how his uncle acquired the document.
[7]
The
Member noted that the applicant had amended his PIF to correct a mistake in the
spelling of his mother’s name. The Member further noted that it was reasonable to
expect the applicant to have documentation on his identity since it constituted
the central issue of his refugee claim in Norway.
[8]
The
Member did not refer to two additional documents submitted by the applicant: a
letter from the Kingdom Priests International Church in Djibouti which referred to the applicant as having attended services and the affidavit of a Toronto resident who deposed that he had known the applicant’s father and knew his
nationality.
[9]
Identity
is a question of fact and thus attracts a standard of reasonableness: Wang v
Canada (Minister of Citizenship and Immigration), 2011 FC 969 at para 22;
and Lin v Canada (Minister of Citizenship and Immigration), 2006 FC 84
at para 8.
[10]
It
is apparent from the transcript of the Board hearing that the applicant had
difficulty understanding questions put to him through an interpreter. The
questions had to be repeated several times at his request which appears to have
caused the Board Member some frustration. The interpreter explained that the
applicant was merely asking for clarification.
[11]
When
asked if he had tried to obtain other identity documents, the applicant
testified that he went to the Eritrean Embassy and that they refused to help
him. When the Member asked where the Eritrean Embassy was located the applicant
said “can I see the address, it is in my pocket?” The Member did not respond to
that but asked which city he went to. The applicant said “It is in Toronto”. The Member replied “In Toronto? Okay.” The Member drew from this an adverse
inference that the applicant did not attend the Eritrean Embassy, because if he
had, he would have known its location.
[12]
I
take judicial notice that the Eritrean Embassy is located in Ottawa. I expect
the Member was also aware of that. It was unreasonable for the Member to have
interpreted this brief exchange with the applicant as a failure to provide an
explanation or to demonstrate reasonable diligence to obtain documentation.
There is an Eritrean Consulate in Toronto and it is not surprising that the
claimant, with little education, and testifying through an interpreter might
describe it as an Embassy. Moreover, it is clear that the applicant had the
address on his person and could have easily produced it at the hearing. He did
not “volunteer” to get the information as the Member characterized this
exchange in his reasons.
[13]
In
Kalu v Canada (Minister of Citizenship and Immigration), 2008 FC 400 at
paragraph 12, Justice Dawson, then a member of the Federal Court, stated that:
In
my view, the Board, as a specialized tribunal, failed to have proper regard to
the evidence available to it to explain the difficulties inherent in obtaining
identity documents for persons in the situation of Macauley and his designated
representative. By failing to have that regard, the Board's conclusions that no
reasonable efforts had been made to obtain identity documents and that no
reasonable explanation had been provided for that failure were made in
reviewable error.
[14]
I
have reached the same conclusion in this matter. Having never lived in a
situation where he had legal status since leaving Ethiopia as a child, it would
have been exceptionally difficult for the applicant to obtain official documents
to prove who he is. The applicant had only the questioned birth certificate
provided by a third party (his uncle) and a few other documents, including the
affidavit, indicating that he is who he claims to be and that his father was
indeed Eritrean. Even then, the question of his citizenship would be complex as
Eritrea was not independent at the time of his father’s death and has refused
to acknowledge the applicant. The Member gave these difficulties no apparent
consideration.
[15]
The
documents submitted by the applicant include UNHCR documents on the citizenship
of persons in Ethiopia with parents from different origins, psychological and
psychiatric reports on the applicant’s mental status and other documents
corroborating the applicant’s seemingly consistent story. It is clear,
considering the evidence before it, that the Board Member did not consider the
particular situation of the applicant in evaluating if he was reasonably
diligent in seeking documentation and if he had a reasonable explanation for
not having it. The transcript of the brief hearing also demonstrates that the
Member did not make any real effort to consider the applicant’s circumstances.
[16]
Certain
of the evidence put before the Board, such as the affidavit of Theodros Michael
Bockru, does not appear to have been considered. The affidavit, if accepted,
corroborates the applicant’s belief about his father’s origins. It was open to
the Board to find this evidence inconclusive, but it is not mentioned in the
reasons. As stated by Justice Layden-Stevenson, then a member of this Court, in
Lin, above, at paragraph 14:
…It
was unquestionably open to the RPD to determine that identity had not been
established. However, to arrive at that conclusion, it must, first, have
considered the totality of the evidence before it. It does not appear to me
that the RPD did that. If it did, it is not evident from its reasons. In either
case, the board's decision is patently unreasonable because I am unable to
conclude that it was made on the basis of the material that was before the RPD
member. Consequently, the decision must be set aside.
[17]
As
in Lin, it was unquestionably open to the Board to find that the
applicant’s identity had not been established particularly in light of its
reasonable finding that the birth certificate was false. Nonetheless, it had an
obligation to consider all of the evidence before it and it is not apparent
from the record that it did. In light of the cursory examination of the
identity question disclosed by the transcript, this is not a case in which I am
prepared to assume that the Board considered all of the evidence that it does
not specifically refer to. Nor am I prepared to supplement the Board’s reasons
by my own review of the record.
[18]
In
the result, I do not find that the Board’s decision regarding identity is reasonable
as it lacks justification, transparency and intelligibility with regards to the
facts of the matter. The Board’s analysis on whether there was a reasonable
explanation for the lack of documentation and reasonable diligence in obtaining
identity documents is clearly not based on the evidence.
[19]
No
questions were proposed for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application is granted and the matter is remitted to the Board for
reconsideration by a differently constituted panel. No questions are certified.
“Richard
G. Mosley”
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