Docket: IMM-938-15
Citation:
2015 FC 1379
Ottawa, Ontario, December 11, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
BETWEEN:
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ZAMZAM HAROUB
MOHAMED
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
Zamzam Haroub Mohamed has brought an application
for judicial review of a decision of the Refugee Protection Division [RPD] of
the Immigration and Refugee Board. The RPD found that Ms. Mohamed is not a
Convention refugee under s 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the IRPA], nor a person in need of protection as defined by
s 97 of the IRPA.
[2]
For the reasons that follow, I have concluded
that the RPD reasonably rejected Ms. Mohamed’s claim based on the lack of
credibility and plausibility of many aspects of her story, and the
insufficiency of evidence to establish her identity. The application for
judicial review is therefore dismissed.
II.
Background
[3]
Ms. Mohamed is a person of undetermined
citizenship. Her claim for refugee protection was based upon the following
assertions.
[4]
Ms. Mohamed claims to be 34 years old and a
citizen of Somalia. She says that she is a member of the Bajuni clan, the
traditional people who live in the coastal areas of southern Somalia. According
to Ms. Mohamed, she spent her entire life on the island of Chula where she
married and had three children. She never attended school, but studied the
Qur’an. Ms. Mohamed speaks only Kibajuni, the traditional language of the
Bajuni.
[5]
On July 7, 2014, Ms. Mohamed and her family fled
from their homes because of an attack by al Shabaab, an al Qaeda affiliate in
Somalia. They travelled by boat to Mombasa, Kenya. Once there, the leader of
the Bajuni community arranged for Ms. Mohamed to be smuggled to Canada using a
fraudulent British passport. Ms. Mohamed left her husband and children behind
in Mombasa.
[6]
Ms. Mohamed departed Mombasa on September 24,
2014, and travelled by plane to Addis Ababa, Ethiopia. An English-speaking
Bajuni woman named Nyabwana escorted her. They arrived together in Toronto on
September 25, 2014. Ms. Mohamed made a claim for refugee protection on October
22, 2014.
[7]
In a decision dated January 22, 2015, the RPD
denied Ms. Mohamed’s request for refugee protection on the ground that there was
no credible basis for her claim.
[8]
Ms. Mohamed did not submit any documents to
establish her identity before the RPD. She said that she did not have a birth
certificate because she was not born in a hospital. The RPD acknowledged that
Somalia has not had a functioning government since 1991, and did not draw an
adverse inference from Ms. Mohamed’s inability to provide official documents to
prove her identity. However, the RPD made several adverse findings regarding
the plausibility and credibility of Ms. Mohamed’s story.
[9]
Halima Timamy was called as a witness to prove
Ms. Mohamed’s identity. Ms. Mohamed initially claimed that they had met at a
wedding in Somalia in 1999. Ms. Timamy testified that Ms. Mohamed had attended
the wedding in Somalia, but later admitted that she could not recall seeing Ms.
Mohamed there. According to Ms. Mohamed and Ms. Timamy, they met in Canada when
they encountered each other by chance at a Shoppers Drug Mart in Toronto and
were introduced by a mutual friend. The RPD found it highly improbable that two
members of the minority Bajuni community would meet each other in Toronto by
chance.
[10]
The RPD concluded that Ms. Timamy was not a
credible witness, and that she had been presented to the panel in order to
mislead it. The RPD drew a negative inference from inconsistencies in Ms.
Mohamed’s and Ms. Timamy’s testimony regarding when and how they met in
Toronto. The RPD also found that Ms. Timamy had little knowledge of Ms.
Mohamed’s past life in Somalia and Kenya. Although she demonstrated some
knowledge of Ms. Mohamed’s family, the RPD found that it “defied common sense” that Ms. Timamy would have so
little knowledge of Ms. Mohamed’s background or the reasons why she had fled
Somalia, given that they had spoken on numerous occasions.
[11]
The RPD rejected Ms. Mohamed’s credibility based
upon the implausibility of many of her assertions. Ms. Mohamed testified that
she flew directly from Addis Ababa to Toronto without stopping. But in her
Schedule 12 Form, she stated that the flight had stopped in Rome, Italy. When
questioned about this discrepancy, Ms. Mohamed testified that her plane had
stopped but she could not remember where. The RPD reasoned that Ms. Mohamed’s
first trip abroad would have been a “memorable experience”, and it was
implausible that she could not recall that her plane had stopped in Rome.
[12]
The RPD also found it implausible that Ms.
Mohamed did not know the name that appeared on her fraudulent passport.
According to the RPD, common sense dictated that a smuggler would ensure that Ms.
Mohamed had memorized the name on her fraudulent passport. Ms. Mohamed
testified that she did not speak to any border officials when she arrived in
Canada because she could not speak English and her escort spoke on her behalf.
The RPD found it implausible that the authorities would not ask her a single
question upon her entry into Canada.
[13]
Finally, the RPD found that Ms. Mohamed did not
have the demeanour of someone who lacked education. She was able to provide the
exact birth dates of her husband and children based on the Gregorian calendar,
and the exact date of her mother’s death. The RPD also noted that Ms. Mohamed
had used a “stylized cursive signature” a total of 16 times on her application
forms. The RPD found that her signature was not “the
work of someone who was learning to sign their name for the first time in their
life”, and did not accept her explanation that she had practiced her
signature upon arrival in Canada.
[14]
The RPD found that Ms. Mohamed had failed to
establish her personal or national identity. Because she was unable to
establish her identity, the RPD determined there was no credible basis for Ms.
Mohamed’s claim.
III.
Issues
[15]
This application for judicial review raises the
following issues:
A. Is affidavit evidence that was not before the RPD admissible in
these proceedings?
B. Did the RPD breach Ms. Mohamed’s right to procedural fairness?
C. Were the RPD’s implausibility findings reasonable?
IV.
Applicable Legislative Provisions
[16]
Section 106 of the IRPA provides as follows:
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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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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[17]
Section 11 of the Refugee Protection Division
Rules, SOR/2012-256 states that:
The claimant must provide acceptable documents establishing their
identity and other elements of the claim. A claimant who does not provide
acceptable documents must explain why they did not provide the documents and
what steps they took to obtain them.
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Le demandeur
d’asile transmet des documents acceptables qui permettent d’établir son
identité et les autres éléments de sa demande d’asile. S’il ne peut le faire,
il en donne la raison et indique quelles mesures il a prises pour se procurer
de tels documents.
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V.
Analysis
A.
Is affidavit evidence that was not before the
RPD admissible in these proceedings?
[18]
In support of her application for judicial
review, Ms. Mohammed submitted her own affidavit which purported to provide an
explanation for why she was able to recall specific dates based on the
Gregorian calendar, and why she used a consistent, stylized signature on 16 different
occasions. This evidence was intended to respond to a number of the RPD’s
concerns regarding her credibility.
[19]
As a general rule, the evidentiary record before
the Court in an application for judicial review is restricted to the
evidentiary record that was before the decision-maker (Association of
Universities and Colleges of Canada v Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 [Association of Universities and
Colleges] at para 19). There are a few recognized exceptions to the general
rule, and the list of exceptions may not be closed (Association of
Universities and Colleges at para 20). The only recognized exception that
might apply in this case is evidence that is necessary to bring to the
attention of the Court procedural defects that cannot be found in the record of
the decision-maker.
[20]
Ms. Mohamed argues that her affidavit is
necessary to establish a breach of procedural fairness. However, there is
nothing to suggest that she could not have provided the explanations offered in
her affidavit to the RPD during the hearing. She was represented by counsel. It
was incumbent upon Ms. Mohamed to provide any necessary explanations to the
RPD. For reasons that I discuss in greater detail below, I am satisfied that
she was given a reasonable opportunity to do so, and accordingly her affidavit
is not admissible in these proceedings.
B.
Did the RPD breach Ms. Mohamed’s right to
procedural fairness?
[21]
The RPD is under a general duty to confront
claimants with inconsistencies in their evidence, and to give them an
opportunity to respond (Westres Torres v Canada (Minister of Citizenship and
Immigration), 2002 FCT 212 at para 5, citing Guo v Canada (Minister of
Citizenship and Immigration), [1996] FCJ No 1185, 65 ACWS (3d) 991).
Whether the RPD must explicitly put the inconsistency to the claimant will
depend on the facts of each case (Ongeldinov v Canada (Minister of
Citizenship and Immigration), 2012 FC 656 at para 21).
[22]
Ms. Mohamed says she was not given an
opportunity to respond to the RPD’s concern that the style of her signature was
not that of a person who was learning to sign her name for the first time.
However, the transcript of the hearing confirms that the RPD asked Ms. Mohamed
whether she had ever written anything with a pen and paper before, whether she
could write in Bajuni, how she had come up with her signature, and whether she
had ever used it before she arrived in Canada. These questions provided Ms.
Mohamed with ample opportunity to explain that she had diligently practiced her
signature upon her arrival in Canada, if that was the explanation she wished to
provide.
[23]
It is true that the RPD did not explicitly
confront Ms. Mohamed regarding her ability to recall numerous dates using the
Gregorian calendar. In its decision, the RPD observed that the Islamic calendar
is typically used in rural parts of Somalia. In the affidavit that she filed in
these proceedings, which I have found to be inadmissible, Ms. Mohamed says
that, on the advice of the Bajuni community, she memorized all the dates of her
family members’ birthdays before leaving for Canada.
[24]
I am not prepared to find that the RPD breached
Ms. Mohamed’s right to procedural fairness by failing to explicitly ask her why
she was able to recall dates using the Gregorian calendar. The RPD is not obliged to confront a claimant with each of
its credibility concerns (Gougoushvili (Litigation Guardian of) v Canada, 2013
FC 1214 at para 23). Ms. Mohamed was aware that her credibility and
alleged lack of education were central to her claim, and that these matters
would inevitably be the focus of the RPD’s decision.
C.
Were the RPD’s implausibility findings
reasonable?
[25]
The RPD is entitled to consider plausibility, common sense and
rationality when assessing a refugee claim (Ye v Canada (Minister of Citizenship
and Immigration), 2014 FC 1221 at para 29). Findings of implausibility and
credibility are owed a high level of deference, and are reviewable by this
Court against the standard of reasonableness (Wu v Canada (Minister of
Citizenship and Immigration), 2009 FC 929 at para 17).
[26]
As Justice Décary held in Aguebor v Canada
(Minister of Citizenship and Immigration) (1993), 160 NR
315 at para 4, “[t]here is no longer any doubt
that the Refugee Division, which is a specialized tribunal, has complete
jurisdiction to determine the plausibility of testimony … As long as
the inferences drawn by the tribunal are not so unreasonable as to warrant our
intervention, its findings are not open to judicial review”.
[27]
I acknowledge Justice Gleason’s caution in Aguilar
Zacarias v Canada (Minister of Citizenship and Immigration), 2012 FC 1155
at para 10 that “plausibility determinations are best
limited to situations where events are clearly unlikely to have occurred in the
manner asserted, based on common sense or the evidentiary record”. The
RPD’s findings of implausibility must be reasonably drawn and must be set out
in “clear and unmistakable terms” (Lubana v
Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at para 9).
[28]
Ms. Mohamed takes issue with three implausibility
findings made by the RPD. She relies on this Court’s decision in Valtchev v
Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (FC) at para
9, [2001] FCJ No 1131, and argues that implausibility findings should be made
only in “the clearest of cases”. They should not be based on a Canadian
perspective of what is plausible.
[29]
First, Ms. Mohamed takes issue with the RPD’s
finding that it was implausible that officers with the Canada Border Services
Agency [CBSA] did not ask her a single question upon her entry to Canada. She
also disputes the RPD’s finding that it was implausible that a person
travelling under a fraudulent British passport would not know the full name
they had adopted. I disagree. It was reasonable for the RPD to assume that CBSA
officers would question Ms. Mohamed upon her arrival in Canada, particularly
given that she was travelling under a passport issued by an English-speaking
country. I agree with the RPD that a person travelling on a fraudulent passport
would make an effort to learn the name that appeared on the document.
[30]
Second, Ms. Mohamed disputes the RPD’s finding
that it was implausible that she would not remember that her plane landed in
Rome when she travelled from Ethiopia to Canada, even though she did not disembark.
The RPD rejected her story not only because it assumed that her first trip
abroad would be a “memorable experience”, but also because of the inconsistency
between what Ms. Mohamed stated in her Schedule 12 Form and her testimony at
the hearing. There was a clear evidentiary basis for the RPD’s adverse finding
of credibility on this point.
[31]
Third, Ms. Mohamed takes issue with the RPD’s
finding that it was implausible that she would meet Ms. Timamy by chance in
Toronto. She also says that the RPD’s assumption about what two Bajuni women
might discuss was based on a Canadian notion of plausibility. Again, the RPD’s
rejection of Ms. Timamy’s testimony was based on numerous factors, only one of
which was her inability to provide details of Ms. Mohamed’s past life in
Somalia and Kenya.
[32]
It is noteworthy that Ms. Mohamed has not
challenged the RPD’s most important adverse credibility finding. Ms. Timamy
initially testified that she had first met Ms. Mohamed at a wedding in Somalia,
but later admitted that this was not true. The RPD’s conclusion that Ms. Timamy
had been presented to the panel in order to mislead it was extremely damaging
not only to Ms. Timamy’s credibility, but also to Ms. Mohamed’s.
[33]
Pursuant to s 106 of the IRPA, Ms. Mohamed had
the burden to establish her claim. In the words of Justice Snider, “it is up to the claimant to produce acceptable documentation
establishing his or her identity. This is a high burden, as it should be”
(Su v Canada (Minister of Citizenship and Immigration), 2012 FC 743 at
para 4). The establishment of a claimant’s identity is central to any claim for
refugee protection. The RPD is therefore entitled to draw an adverse
credibility finding from the claimant’s failure to establish her identity (Keita
v Canada (Minister of Citizenship and Immigration), 2015 FC 1115 at para
21).
[34]
The only evidence before the RPD that supported
Ms. Mohamed’s identity as a citizen of Somalia was her ability to speak Bajuni.
However, country documentation confirmed that citizens of Kenya also speak
Bajuni. Ms. Mohamed was not able to speak Somali, so she could not establish
her identity on this basis. Finally, the only evidence offered by Ms. Mohamed
to show that she had made efforts to obtain documentation was that she had
asked her husband for a copy of their marriage certificate. This was not
forthcoming.
[35]
It was reasonably open to the RPD to reject Ms.
Mohamed’s claim based on the lack of credibility and plausibility of many
aspects of her story, and the insufficiency of her evidence to establish her
identity. I am satisfied that the RPD’s decision falls within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.