Docket: IMM-2025-15
Citation:
2016 FC 11
Ottawa, Ontario, January 6, 2016
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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YUSRA IBRAHIM
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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]
Yusra Mohamed Ibrahim, the Applicant, claims to
be a 21 year old Sufi-Sunni woman who is a member of the Garre clan in Somalia.
The Garre is a minority nomadic clan in southern Somalia who herd goats,
camels, and sheep.
[2]
During the evening on July 22, 2013, members of
Al-Shabaab came to the hut where the Applicant lived with her family on the
outskirts of the town of El-Wak in southern Somalia. They demanded the
Applicant’s father stop practicing Sufism and make her two older brothers join
Al-Shabaab; they also wanted to take the Applicant to become the wife of one of
the members. When the Applicant heard this, she fled out the back of the hut
with her two younger siblings to the safety of her aunt’s hut. Later that
night, the Applicant’s mother came to the aunt’s hut and informed the Applicant
her father and two brothers had been killed. The next day, the Applicant, her
mother, and her two younger siblings left on foot for Kenya to seek refuge.
After they arrived in Nairobi, the Applicant’s uncle sold some animals and sent
the money to the Applicant’s mother who found a smuggler to take the Applicant
to Canada using a Swedish passport. The Applicant arrived in Canada on November
11, 2013, and sought Canada’s protection on November 27, 2013.
[3]
On October 10, 2014, the Refugee Protection
Division [RPD] of the Immigration and Refugee Protection Board [the Board]
rejected the Applicant’s refugee claim, finding that she had failed to
establish her personal identity and nationality as a citizen of Somalia. The
Applicant’s appeal of the RPD’s decision to the Refugee Appeal Division [RAD]
of the Board was dismissed by the RAD in a decision dated April 9, 2015. The
Applicant now asks this Court, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act], to set aside the
RAD’s decision and return the matter to a different member of the RAD for
re-determination.
I.
The RAD’s Decision
[4]
The RAD adopted this Court’s decision in Huruglica
v Canada (Citizenship and Immigration), 2014 FC 799 (at paras 54-55),
[2014] 4 FCR 811, to frame its role in reviewing the RPD’s decision, stating
that it would conduct its own, independent assessment of whether the Applicant
was a Convention refugee or person in need of protection under section 97 of
the Act, and that it also would respect the credibility or other
findings of the RPD where the RPD had a particular advantage in reaching its
conclusions.
[5]
After noting its role, the RAD considered the
new evidence submitted by the Applicant pursuant to subsection 110(4) of the Act,
namely: (1) two Ottawa Hospital documents; (2) an affidavit from the
interpreter at the Applicant’s RPD hearing confirming that “bessa” means money in Garreh; and (3) an internet
article about Somalian currency. The RAD noted there were no explanations for
the relevance of any of these documents or why they were not available earlier
and, consequently, found them not admissible as new evidence for purposes of
the appeal.
[6]
Turning next to the merits of the appeal, the
RAD considered the RPD’s finding that the Applicant had failed to produce any secondary
evidence such as money transfers, bills of sale, or affidavits to establish her
identity. Although the RPD acknowledged the lack and unavailability of
documents in Somalia, given the country conditions, it nevertheless determined
the Applicant could have made efforts to find secondary sources to identify
herself, including contacting her mother in Nairobi or uncle in Somalia. The
RAD also determined the Applicant could have contacted authorities such as the
Jubaland administration, the Somali Police Force, or the National Army,
concerning the murders of her father and brothers and establishing her
identity.
[7]
The RAD found that, since the Applicant had
spent four months in Nairobi and communicated during that time with her family
in Somalia, she could have asked her Somalian relatives to provide evidence,
especially as she was planning to come to Canada to seek protection. The RAD
also thought it would have been reasonable for there to be some documentation
of money transfers from Somalia to Kenya or to the smuggler. Thus, the RAD
concurred with the RPD that the Applicant’s failure to make any efforts to
obtain secondary evidence undermined her overall credibility.
[8]
The RAD then considered the evidence from the
Somali Immigrant Aid Organization [SIAO]. Based on a response to information
request [RIR], the RAD noted that Somali associations in Canada employed
different methods to assist applicants in establishing their identity as a
Somalian. The RAD expressed several concerns with the SIAO letter. This letter
did not: (a) give details of who was consulted; (b) indicate what checks
and balances were undertaken to ensure the accuracy of the information; (c)
confirm her personal identity, although it stated the Applicant is a member of
the Garre clan; and (d) state whether the Garre members who were consulted were
from Jubaland. Given these concerns, the RAD concluded it could not place
significant weight on this letter.
[9]
The RAD also placed little weight on the
testimony of the witness, the Applicant’s great aunt, noting that the “RPD found the connection between the Applicant and the
witness was ‘peripheral, tenuous and minor at best’.” After assessing
this evidence, the RAD “arrived at the same conclusion
as the RPD did,” and concluded as follows:
[26] The RAD finds that, even if the
witness’ evidence was found to be credible, this evidence can only establish
the Appellant’s personal identity and affiliation with the Garre clan. The
witness’ testimony cannot and does not establish the Appellant’s nationality at
the time the witness knew the Appellant or any time after. For example, the
Appellant and her family could have left Somalia and obtained permanent
residence or citizenship in another country after she was last seen by the
witness. The Appellant could have been living in El-Wak and have citizenship in
another country as well as Somalia.
[27] Given the credibility concerns
highlighted above, the RAD finds that the witness’ evidence is of little
probative value in establishing the personal identity and nationality of the
Appellant. Even if the RAD placed significant weight on the witness’ testimony
and evidence, it does not establish the Appellant’s nationality or country of
reference. This is of little value in establishing the Appellant’s nationality
in the year 2014.
[10]
In view of the Applicant’s failure to
obtain secondary evidence and her unreasonable explanations for not doing so,
the low weight given to the SIAO letter, the Applicant’s inconsistent answers
about Somalian currency and the neighbourhood she lived in, the tenuous
connection with the witness, and a lack of evidence beyond the Applicant’s own
testimony, the RAD concluded that it “concurs with the
RPD that the Applicant has failed to provide sufficient credible or trustworthy
evidence to establish his [sic] personal identity and nationality.”
II.
Issues
[11]
This application for judicial review raises one
primary issue: was the RAD’s decision as to the Applicant’s identity
reasonable? For the reasons stated below, the RAD’s decision in this case is
not reasonable and the matter must be returned to the RAD for redetermination
by another panel member in accordance with these reasons.
III.
Standard of Review
[12]
The RAD’s decision in this case is to be
reviewed on a standard of reasonableness (see: Sisman v. Canada (Citizenship
and Immigration), 2015 FC 930). Its assessment of the evidence before it is
entitled to deference (see: Dunsmuir v New Brunswick, 2008 SCC 9 at
paragraph 53, [2008] 1 S.C.R. 190 [Dunsmuir]; Yin v Canada (Citizenship
and Immigration), 2014 FC 1209 at paragraph 34; Mojahed v Canada
(Citizenship and Immigration), 2015 FC 690 at paragraph 14). Accordingly,
the RAD's decision should not be disturbed so long as it is justifiable,
intelligible, and transparent, and defensible in respect of the facts and the
law (Dunsmuir at paragraph 47). Those criteria are met if “the reasons allow the reviewing court to understand why the
tribunal made its decision and permit it to determine whether the conclusion is
within the range of acceptable outcomes” (Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
paragraph 16, [2011] 3 S.C.R. 708).
IV.
Analysis
[13]
The RAD’s reasons for its decision in this case
are replete with mistakes and errors that cumulatively render the decision
unreliable as a whole and unintelligible in parts and, consequently,
unreasonable and not defensible in respect of the facts and the law.
A.
The SIAO Letter
[14]
The RAD prefaces its assessment of the SIAO
letter by stating that other Somalian aid organizations in Canada utilize various
practices to verify the identity of individuals, such as the use of statutory
declarations or requiring a certain number of witnesses. This mindset of the
RAD as to the practices of other organizations negatively colours the RAD’s
analysis and assessment of this letter which states: “we
have confirmed with Garre clan member that Yusra Mohamed Ibrahim is a Garre
from Somalia.” In the RIR about Somali organizations in Canada, there
are several statements as to how difficult it is to establish the identities of
younger Somali individuals such as the Applicant. The RAD ignores this
information, and proceeds to selectively and unjustifiably use the practices of
other Somalian organizations to discount and discredit the letter the Applicant
did proffer to establish her identity.
[15]
Because the RAD did not regard this letter as
establishing the Applicant’s identity or nationality, the RAD found the
Applicant “could reasonably be a member of the Garre
clan but not a citizen of Somalia, as members of the Garre clan are scattered
all over Somalia and all over the Muslim world.” The RAD references a
RIR (SOM104613.E) to support its finding that the Garre are scattered all over
Somalia and all over the Muslim world. However, this RIR cannot be found in the
certified tribunal record. The Respondent argues that the RAD must have meant
to cite another RIR which is in the record (SOM103613.E)
[emphasis added]; this RIR states that the Ashraf clan lives across Somalia and
all over the Muslin world. This argument is not convincing. Even if the RAD had
this document in mind when expressing its concern that the Applicant might not
be a citizen of Somalia, the RIR about the Ashraf clan makes no mention
whatsoever of the Garre clan being a subgroup of the Ashraf clan.
B.
The Identity Witness
[16]
In this case, the Applicant brought forward an
identity witness to establish her identity as a Garre from Somalia, thus taking
the same step as followed by at least one of the organizations identified in
the RIR about Somali organizations in Canada. In concluding that the witness’
testimony and evidence had “little probative value”
to establish the Applicant’s personal identity, the RAD stated that the RPD had
found the connection between the Applicant and the witness was “peripheral, tenuous and minor at best.” However, the
RPD made no such finding and made no such statement. This is plainly wrong. The
RAD misapprehended and misstated the RPD’s assessment of the connection between
the Applicant and the witness. What the RPD actually found was that the
Applicant’s evidence as to how she connected with the witness in Canada was “questionable and unlikely given the many other credibility
findings related to her identity.”
[17]
Furthermore, in assessing the witness’
testimony, the RAD stated it did not establish the Applicant’s nationality at
the time the witness knew Ms. Ibrahim or at any time after. While that may well
be so, it was not reasonable for the RAD to then speculate from this determination
that the Applicant could have obtained citizenship in another country after she
was last seen by the witness. There is no evidence in the record for any such
speculation by the RAD. On the contrary, the witness in this case (unlike the
identity witness in Elmi v Canada (Citizenship and Immigration), 2008 FC
773 at para 2, 168 ACWS (3d) 832, who was a former neighbour of Ms. Elmi in
Somalia) was a blood relative of the Applicant and the witness’ identity as a
Somalian national was not questioned.
C.
The Typographical Errors
[18]
By themselves, the six typographical errors
where the RAD writes (in paragraph 21 of its reasons) “Ethiopia”
rather than “Kenya” are not mistakes that render
the decision unintelligible. Reading the decision as a whole, it does not appear
that the RAD was confused to the point of suggesting that the Applicant was
Ethiopian, or that the RAD based any specific outcome on the country to which
the Applicant fled as being Ethiopia rather than her actual destination, Kenya.
As a result, these typographical errors in this one paragraph could be
characterized as a slip of the tongue, since the RAD correctly identifies that
the Applicant had fled to Nairobi.
[19]
What cannot be so characterized, however, is the
reference in this same paragraph to the Applicant being aware, while in Kenya,
that “the farm and the animals had been sold” and
that the money raised from “the sale of the farm”
had been used to pay for a smuggler. The record is devoid of any evidence that
a farm had been sold to pay for the smuggler’s services. A similar
misapprehension of the evidence about what was sold to fund the Applicant’s
travel to Canada also occurs in paragraph 18 of the reasons, where the RAD
refers to the RPD noting the Applicant’s lack of efforts to provide a “bill of sale for the family farm and or animals,” as
secondary evidence to support her identity and nationality. Again, the RAD here
misconstrues and misstates what the RPD determined. Although the RPD did find
it unreasonable for the Applicant not to have some paper evidence of the sale
of the animals, it made no reference to the sale of any farm. Indeed, the Garre
being a nomadic clan, it belies the definition of the word nomadic that there would
even be a farm to sell.
[20]
What appear to be additional typographical
errors are found in paragraph 4 of the decision, where the panel member writes
that the “Appellant, his wife and his mother fled to
Ethiopia,” and again in paragraph 14 where it states the interpreter’s
affidavit “is admissible as new evidence;”, this
is despite paragraph 15 where all the documents submitted as new evidence (including
this affidavit) are stated to be “not admissible as new
evidence.” The Applicant is also referred to as male by the use of the
word “his” in paragraphs 16 and 29.
[21]
One is thus left to wonder, despite the RAD’s
statements as to its role in reviewing the RPD’s decision, just how much of an
independent assessment of the evidence the RAD actually conducted in this case
given the numerous typographical and other errors noted above.
V.
Conclusion
[22]
In view of the foregoing reasons, the
Applicant’s application for judicial review is granted, the RAD's decision is
set aside, and the matter returned to the RAD for a new determination by a
different panel member. No question of general importance is certified.
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