Date: 20080624
Docket: IMM-4956-07
Citation: 2008
FC 773
Ottawa, Ontario, June 24, 2008
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
SAHRA SHUKRI ELMI
AMRAN HUSSEIN ADAM
SAID HUSSEIN ADAM
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
("IRPA") for judicial review, pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, of a decision of the Immigration and Refugee Board, Refugee Protection
Division (the Board), dated October 29, 2007. The Board determined that the
Applicants, Sahra Shukri Elmi (the Principle Applicant) and her two children
are not Convention refugees nor are they persons in need of protection within
the meaning of sections 96 and 97 of IRPA.
[2]
The Principle Applicant, 28-year-old Sahra Shukri Elmi (Ms.
Elmi), her eight-year-old daughter Amran Hussein Adam, and her six-year-old
son, Said Hussein Adam, all claim to be members of the Madiban tribe in the Medina
district of Somalia. Ms. Elmi proffered no documentary evidence indicating she
is Somali and claimed to be unable to attain any such evidence. Instead, she
sought to convince the Board that she was genuinely from Somalia through the
testimonial evidence of a witness, Mr. Adan, who was allegedly her neighbour in
Medina. The two gave testimony describing their neighbourhood and homes in Somalia.
The Board relied on a number of inconsistencies in their testimony to find the
evidence not credible and, therefore, based on a complete failure to establish
identity, the Board found the Applicants not to be from Somalia.
[3]
Although the Board also voiced a number of other overwhelming
credibility concerns and found the Principle Applicant did not demonstrate that
she had a genuine subjective fear of persecution, the Board clearly stated,
twice, that the claim was rejected primarily because the Principle Applicant
was unable to establish her identity.
[4]
Identity is of central importance to a refugee claim and failure
to prove identity is fatal to a claim (Najam v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 516 [hereinafter Najam];
Hussein v. Canada (Minister of Citizenship and Immigration), 2005
FC 1237 [hereinafter Hussein]). Where the Board finds a refugee claimant
fails to prove their national identity, their analysis need not go any further
(Najam, supra). That is, there is no need to assess subjective fear of
persecution and clearly no basis upon which to assess a claimant’s objective
risk or persecution. It follows that where a Board errs in assessing a
claimant’s identity and therefore does not undertake an objective risk
assessment, that error alone may constitute sufficient grounds for having an
applicant’s refugee claim reassessed. I find this to have been the case here.
For the reasons that follow, I find the Board’s conclusion that the Applicants
are not from Somalia was not reasonably open to it as a matter of fact and law
and must, therefore, order that the Applicants’ claim be sent back to be
decided by a different Board member. Because establishing identity is so
fundamental to properly assessing a claim for protection, and because the
Board’s reasons clearly state identity to have been the determinative issue,
there is no need to consider the Board’s other credibility findings, which may
or may not have been reasonably open to the Board.
ISSUE
[5]
Did the Board err in its assessment of the Applicants’
identities?
BACKGROUND
[6]
On
December 30, 2005, Ms. Elmi and her children arrived in Canada via Syria
and France. They
immediately sought refugee protection. All three claimed to be from the Medina district in
Somalia and to fear persecution if returned to Somalia. Upon
arrival, the interviewing officer noted that the Applicants were not the
rightful holders of the German passports they used to travel to Canada.
[7]
Civil war erupted in Somalia in early 1991. Ms. Elmi claims the
war had a considerable and devastating effect on her family. A translation of
Ms. Elmi’s written statement given to the Port of Entry (POE) officer indicates
that Ms. Elmi feared being attacked by other tribes in Somalia. She also
indicated that her father was paralyzed after being “sprayed with bullets,”
that four of her brothers were killed and her sister was raped. Many of Ms.
Elmi’s remaining family members fled to Ethiopia in 2003. Ms. Elmi testified
that she did not leave Somalia at that time because there was not enough money
for her to leave. She waited for an uncle in Dubai to arrange for her exit in
2005. Ms. Elmi has not spoken with her uncle since and does not know how to
contact him. Similarly, she has had no contact with her parents, does not know
whether they returned to Somalia or not, and does not know how to contact them.
[8]
At the hearing, Ms. Elmi presented no documents confirming her
identity or citizenship; her counsel made clear to the Board that the testimony
of Mr. Adan, Ms. Elmi’s former neighbour in Somalia, would be presented in
order to corroborate Ms. Elmi’s claim to be from Somalia.
[9]
According to both Mr. Adan and Ms. Elmi, the two had not seen
each other since 1991. As chance would have it, they met again when Mr. Adan
recognized Ms. Elmi at a restaurant in Toronto.
[10]
Mr.
Adan’s testimony largely confirmed the facts as presented by Ms. Elmi at the
hearing; the two were neighbours in Medina, their neighbourhood was near the
Medina market and many mosques, Ms. Elmi’s family belonged to the Madiban
tribe, her father was a shoe-maker and her mother used to cook for Mr. Adan’s
family. Mr. Adan was able to remember Ms. Elmi’s parents, and Ms. Elmi was able
to accurately state the names of Mr. Adan’s siblings. There are only three
apparent inconsistencies in their testimony, all of which relate to their
descriptions of Ms. Elmi’s house in Medina. On the basis of these
inconsistencies, the Board determined that Ms. Elmi was not from Somalia.
[11]
Ms. Elmi described her home in Medina as a green house built out
of clay and cement with a flat corrugated metal roof. She said the house was
“much smaller” than Mr. Adan’s house.
[12]
Mr. Adan stated that Ms. Elmi lived in a blue house, though he
later stated that he confuses the colours blue and green.
[13]
Mr. Adan appears to have said that Ms. Elmi’s house was made out
of brick; however, the transcript of the hearing suggests there may have been
trouble with the translation as Mr. Adan struggled for the correct word to
describe the materials used to build the house. Later, when the Board
questioned Mr. Adan about this inconsistency, he explained that those who could
not afford to use bricks would use a mixture of bricks and clay.
[14]
With respect to the size of the house, Mr. Adan said that he was
uncertain whether his house was bigger than Ms. Elmi’s; he stated that while
the homes in the neighborhood were constructed by the same builder, some were
taller or shorter than others.
[15]
Both Ms. Elmi and Mr. Adan testified that Ms. Elmi’s roof was
made of corrugated metal.
DECISION UNDER REVIEW
[16]
The
Board Member’s conclusion indicates there were two grounds for rejecting the Applicants’
claim, namely identity and credibility. With respect to identity, the relevant
portion of the Board’s reasons reads as follows:
The claimants have failed to
establish their identity as citizens of Somalia. The claimants produced no genuine
identity documents whatsoever. The principal claimant produced a witness named
Mohamed Jama Adan (witness) who accidentally met her at a restaurant in Toronto and recognized her from 15
years ago. She testified she last saw him 15 years ago, when the war started in
1991, when she was twelve and he was 30.
In accordance with section 106
of the IRPA, the claimants must provide acceptable documentation establishing
identity. Failing that the claimants must provide reasonable explanation for
the lack of documentation. Neither any documentation nor a reasonable
explanation was provided. I was told that no documents are issued in Somalia. While I can accept that
Somalia may not be issuing any formal documents, no documentary evidence of her
existence in Somalia for 26 years was provided. No
evidence of the children’s presence in Somalia was provided. No documentary evidence of
her and her children’s departure from Somalia
to Syria and then to France was provided. Only copies of
fraudulent documents were provided. For these reasons I am unable to establish
the identities of the claimants.
[17]
At
the hearing, the Board Member made clear that, among other things, identity was
a primary issue to be addressed. However, very little was said to the Principle
Applicant about the dearth of documentary evidence; both the Board Member and
counsel appeared to be in agreement that Ms. Elmi’s claim to be from Somalia
would be corroborated through her testimony and the testimony of Mr. Adan. The
Board’s assessment of this testimony makes clear that the Board concluded that
Mr. Adan and Ms. Elmi were never neighbours in Somalia:
I find the testimony of the
witness and the principal claimant inconsistent as the principal claimant
testified her house in Somalia was green and the witness
testified it was blue. She testified her house was made of clay and cement but
the witness testified it was made of brick. She testified her house was much
smaller than that of the neighbour. The witness who was allegedly her neighbour
in Somalia testified all houses were
generally the same size in the neighbourhood. Even though some of this evidence
matched, based on serious inconsistencies in their descriptions of the
surroundings, I am not persuaded that they were neighbours. I have other
reasons to doubt the credibility of the principal claimant thereby adding to my
findings them not to be refugees under the IRPA.
RELEVANT STATUTORY
PROVISIONS
[18]
The following provisions of the IRPA are applicable in this
application for judicial review:
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A person in need of protection is a
person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
106. The Refugee Protection Division must
take into account, with respect to the credibility of a claimant, whether the
claimant possesses acceptable documentation establishing identity, and if
not, whether they have provided a reasonable explanation for the lack of
documentation or have taken reasonable steps to obtain the documentation.
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96. A qualité de réfugié au
sens de la Convention — le réfugié — la personne qui, craignant avec raison
d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de
son appartenance à un groupe social ou de ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
97.
(1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
106. La Section de la protection
des réfugiés prend en compte, s’agissant de crédibilité, le fait que, n’étant
pas muni de papiers d’identité acceptables, le demandeur ne peut
raisonnablement en justifier la raison et n’a pas pris les mesures voulues
pour s’en procurer.
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ANALYSIS
Standard of Review
[19]
Prior to the Supreme Court of Canada’s recent
decision in Dunsmuir v. New Brunswick, 2008 SCC 9 [hereinafter Dunsmuir],
it was trite law that facts and credibility findings were reviewable on the now
defunct patent unreasonableness standard (Nyirasuku v. Minister of
Citizenship and Immigration, 2006 FC 803 at para. 28, citing Chowdhury v. Canada (Minister of Citizenship and Immigration) (2006), 287 F.T.R. 1, 2006 FC 139
at para. 12; Thavarathinam v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469
(F.C.A.) at para. 10; Aguebor v. Canada (Minister of Citizenship and Immigration) (1993), 160 N.R.
315, [1993]
F.C.J. No. 732 (F.C.A.) at para. 4).
[20]
In
light of the Supreme Court’s decision in Dunsmuir, it is clear that the
standard of patent unreasonableness has now been abandoned and that courts
conducting a standard of review analysis must now focus on two standards, those
of correctness and reasonableness.
[21]
The
jurisprudence is clear in stating that the Board's credibility analysis is central to its role as trier of
fact and that, accordingly, its findings in this regard should be given
significant deference. This grant of deference supports a reasonableness
standard of review and implies, as the Court held at paragraph 49 of Dunsmuir, that courts will give "due consideration to
the determinations of decision makers" when reaching a conclusion.
Accordingly, the Board’s decision will be reviewed on the standard of
reasonableness with considerable deference being afforded to the Board’s factual
findings and credibility determinations. To put it simply, this application for
judicial review will be granted only if the Board’s conclusion was not open to
it as a matter of fact or law.
Conclusion
[22]
The
Board correctly interpreted section 106 of IRPA as requiring refugee claimants
to provide acceptable documentation establishing identity. Further, the Board
reasonably determined there to be insufficient documentary evidence to affirm
the national identity of the Applicants. However, this Court has held in the
past that section 106 of the IRPA recognizes the difficulty in proving national
identity with the usual documentation from countries, such as Somalia, that
have unstable civil administration (Shafi v. Canada (Minister of Citizenship
and Immigration) (2005), [2006] 1 F.C.R. 129, 2005 FC 714 at
para. 27; Hussein, supra).
[23]
In
the cases cited above, immigration officers erred by rejecting affidavit
evidence put forward to affirm a claimant’s national identity. Here, in
admitting Mr. Adan’s testimony relating to Ms. Elmi’s identity, the Board
implicitly (and correctly) recognized the principle that refugee claimants from
countries with unstable civil administration ought to be afforded other means
of proving their national identity. The question, then, is whether the evidence
proffered reasonably supports the Board’s decision.
[24]
It
is well settled that while the Board’s task is a difficult one, it should not
be over-vigilant in searching out inconsistencies or be microscopic in its
examination of the evidence, particularly where persons testify through an
interpreter; the Board will often slip into error if it overzealously seeks out
instances of contradiction in an applicant’s testimony (Attakora v. Canada
(Minister of Employment and Immigration) (1989), 99 N.R. 168, [1989] F.C.J.
No. 444 (F.C.A.)).
[25]
After
extensively reviewing the record before the Board and the transcript of the
hearing and after hearing the oral submissions, I find the Board’s treatment of
the testimonial evidence of Ms. Elmi and Mr. Adan indicated an
impermissibly microscopic assessment of the evidence. That is, in light of the
amount of evidence put forward indicating that Ms. Elmi and Mr. Adan were in
fact neighbours in Somalia, and in light of the fact that the inconsistencies
noted by the Board were arguably not inconsistencies, or in any event, were
comparably minor inconsistencies, I find the Board’s conclusion with regards to
the national identities of the Applicants was not open to it as a matter of
fact.
[26]
Regardless
of whether the remaining credibility concerns were open to the Board, the
Board’s reasons clearly indicate that identity was largely determinative in
rejecting the Applicants’ claims. In effect, this conclusion, which I find was
reached in error, influenced the remainder of the Board’s analysis and inquiry
and also precluded the Board from conducting an objective risk assessment. The
error, therefore, was fundamental to the Board’s decision. Therefore, I must
grant this application for judicial review.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application for judicial review
is allowed. The decision of the Board, dated October 29, 2007, is set
aside and the claim for refugee protection is referred to a differently
constituted Board for re-determination. No question was submitted for
certification.
"Max M. Teitelbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4956-07
STYLE OF CAUSE: Sahra
Shukri Elmi, Amran Hussein Adam,
Said Hussein Adam v. The Minister of Citizenship and
Immigration
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: June
11, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: TEITELBAUM D.J.
DATED: June
24, 2008
APPEARANCES:
David P. Yerzy
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FOR THE APPLICANTS
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Gordon Lee
|
FOR THE RESPONDENT
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SOLICITORS
OF RECORD:
David P. Yerzy
Barrister
& Solicitor
Toronto, Ontrio
|
FOR THE APPLICANTS
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
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