Docket: IMM-4857-14
Citation:
2015 FC 684
Toronto, Ontario, May 27,
2015
PRESENT: The
Honourable Mr. Justice Hughes
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BETWEEN:
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AHMEDNOOR FARAH
HUSIAN
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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
[1]
This is a judicial review of a decision of the
Refugee Appeal Division (RAD) dated May 28, 2014 dismissing an appeal from the
Refugee Protection Division (RPD) dated January 21, 2014 rejecting the
Applicant’s claim for refugee protection.
[2]
The Applicant is an adult male. His identity is
in question. He claims to be from Somalia. The RPD found that he has not
established his identity. The RAD affirmed that finding but, in doing so, made
its own determinations based on its view of the record. Therein lies the
problem.
[3]
At the RPD hearing, the Applicant was
represented by Counsel and gave evidence on his own behalf and called a person
purportedly to be a great aunt as an identity witness. The Applicant had no
documents, such as a passport, to establish his identity.
[4]
The RPD found that neither the great aunt nor
the Applicant were credible witnesses. Had the matter ended there and a
judicial review of that decision made, I am confident that those findings would
not be set aside.
[5]
However, the matter was appealed to the RAD. At
that level, the Applicant was again represented by Counsel who sought to file
the affidavit of another relative of the Applicant to establish identity. This
other person was in the same city at the same time as the RPD hearing, the excuse
for not calling that person as a witness at that time was twofold. First,
Counsel thought that identity would not be an issue. Second, that person had
started a new job and didn’t want to take time off.
[6]
These are thin excuses. Counsel bears responsibility,
particularly in representing unsophisticated persons such as the Applicant, to
prepare the case, know the issues, interview the witnesses and generally be
prepared. The fact that Counsel may have overlooked something or has not fully
prepared the case is not something that should be able to be remedied at the
RAD level.
[7]
Concerning the witness who did not appear at the
first instance, the excuse that work was more important that a relative’s
refugee hearing speaks for itself.
[8]
Therefore, the RAD was right in rejecting the
affidavit.
[9]
We come to the basis for sending the matter back
to the RAD for re-determination. Had the RAD simply reviewed the findings of
the RPD as to the adequacy of the Applicant’s evidence and agreed with it, that
would have ended the matter. It did not. For whatever reason, the RAD went on
to give further reasons, based on its own review of the record, as to why the
Applicant’s evidence was not to be believed. It held, at paragraph 43, that it
was unable to locate any evidence to support the Applicant’s claim to also
being a member of the Dhawarawayne clan. That was wrong; there is such
evidence in the Responses to Information Requests. The comments by the RAD as
to the differences in the spelling of the Applicant’s name in the US proceedings versus the Canadian proceedings is nonsense: of course, there will be
differences where a different alphabet and language is in question such as
Somali and English. There are other errors.
[10]
The point is that if the RAD chooses to take a
frolic and venture into the record to make further substantive findings, it
should give some sort of notice to the parties and give them an opportunity to
make submissions.
[11]
I fully appreciate that if the matter were to be
returned to the RAD, the result may be the same. However, these are early days
for the RAD and it is on a procedural learning curve. By sending this back,
the RAD will have an opportunity to examine its procedures and perhaps improve
them.
[12]
No question will be certified.
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