Docket: IMM-2047-16
Citation:
2017 FC 256
Montréal, Quebec, March 2, 2017
PRESENT: The
Honourable Mr. Justice Bell
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BETWEEN:
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TSEGAY SOBOLLI
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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.
Overview
[1]
Tsegay Sobolli [Mr. Sobolli] seeks judicial
review of a decision by the Immigration and Refugee Board’s Refugee Protection
Division [RPD], in which the RPD found that his refugee claim did not have a
credible basis. As a result, Mr. Sobolli was found not to be a Convention
refugee or a person in need of protection, as contemplated by sections 96 and
97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For the reasons herein, I would dismiss the application
for judicial review.
II.
Brief Overview
[3]
Mr. Sobolli contends he is a citizen of Eritrea.
In 2004, he testified he left Eritrea and travelled to the United Kingdom via Libya,
Italy, and France. At the time of his arrival in the United Kingdom in April
2006, he made an asylum claim, which was rejected. His appeal was also rejected
in 2007.
[4]
Mr. Sobolli testified that he remained unlawfully
in the United Kingdom until his arrival in Canada on August 31, 2015. His
testimony in this regard (as will be seen in the analysis below) contradicts that
which he stated in his Basis of Claim form. In this form, he claimed he arrived
in Canada directly from Eritrea on August 31, 2015. Mr. Sobolli claims he fears
persecution and mandatory military service in Eritrea.
[5]
Among other findings, on its path to concluding
there was no credible basis to Mr. Sobolli’s claim, the RPD concluded Mr.
Sobolli failed to establish his identity or that he was a citizen of Eritrea. The
finding of “no credible basis” by the RPD denied
Mr. Sobolli access to the appeal process before the Refugee Appeal Division
(see: paragraph 110(2)(c) of the IRPA).
III.
Issue and Standard of Review
[6]
A finding that the “no
credible basis” conclusion was reasonable in the circumstances would
fully dispose of the within judicial review. As a result, I intend to deal only
with that issue. It is well established that reasonableness is the standard of
review applicable to credibility findings: Aguilar v Canada (Minister of
Citizenship and Immigration), 2013 FC 843 at para 34, [2013] FCJ no 887. This
Court must determine whether the RPD’s decision in that regard is justified,
transparent and intelligible and falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and the law (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
IV.
Analysis
[7]
In an exhaustive analysis, the RPD touched upon
each piece of evidence advanced by Mr. Sobolli to support his claim as a
Convention refugee or a person in need of protection. The RPD carefully
assessed oral testimony and documentary evidence, much of which was
contradictory, in its finding that there was “no
credible basis” to the claim. Given that this Court’s role is not to re-weigh
the evidence (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12
at para 61, [2009] 1 S.C.R. 339; Singh v Canada (Minister of Citizenship and
Immigration), 2008 FC 673 at para 10, [2008] FCJ no 864), I intend to
briefly touch upon each of the points raised by the RPD and explain why I
conclude its findings are reasonable in the circumstances.
A.
Time Spent in the United Kingdom
[8]
Mr. Sobolli first takes issue with the RPD’s
credibility findings regarding his time spent in the United Kingdom. In his Basis
of Claim form, he stated that he left Eritrea on August 31, 2015, had a
stopover in the United Kingdom, and entered Canada on that very same day. However,
he admitted during his oral testimony that he arrived in the United Kingdom in
2006 and only departed for Canada in 2015. The RPD contrasted that testimony
with the declaration found in the Basis of Claim form wherein Mr. Sobolli
declared that “the information I have given in the
application is truthful, complete and correct, and I make this solemn
declaration conscientiously believing it to be true and knowing that it is of
the same force and effect as if made under oath”. Mr. Sobolli contends
that his voluntary admission renders unreasonable the RPD’s negative
credibility finding on this issue. I disagree. His voluntary admission does not
alter the fact that he lied on his Basis of Claim form to obtain entry into
Canada.
[9]
Mr. Sobolli claimed he was represented by
counsel at his various hearings in the United Kingdom. However, he made no
effort to contact his counsel or the United Kingdom authorities to obtain his United
Kingdom biometrics. He failed to produce any document from the United Kingdom
which would confirm his identity. It is Mr. Sobolli’s responsibility to take
the appropriate measures to obtain these documents, or to provide the RPD with clear
and convincing evidence as to why these documents would not be readily
available (Bagire v. Canada (Minister of Citizenship and Immigration),
2013 FC 816 at para 29, [2013] FCJ no 866). I find that it was reasonable for
the RPD to draw a negative inference from the fact that Mr. Sobolli provided no
documentation to corroborate his testimony regarding the time spent in the United
Kingdom.
[10]
With respect to his work and support system
while in the UK, Mr. Sobolli testified that he received help from his church. However,
in a letter Mr. Sobolli presented to the RPD from his church, there was no
reference to the fact the church supported him, financially or otherwise. In
addition, Mr. Sobolli’s testimony was evasive with regards to how he supported
himself during nine years while being “idle”. I
find that it was reasonable for the RPD to draw a negative inference regarding
Mr. Sobolli’s credibility based upon his failure to explain how he supported
himself during nine years in the United Kingdom.
[11]
Based upon all of the above, I find that the
RPD’s determination that Mr. Sobolli lacked credibility with respect to his
time in the United Kingdom to be reasonable.
V.
The Witness
[12]
Mr. Sobolli presented a witness who he contends
confirms his (Mr. Sobolli’s) identity and Eritrean nationality. The witness claimed
he grew up with Mr. Sobolli in Eritrea. While the RPD did not challenge the
witness’s assertion he knew Mr. Sobolli, it noted that the witness had not been
in contact with Mr. Sobolli since 2004 and was unable to testify regarding his
whereabouts since that time. Mr. Sobolli and the witness had only rekindled
their friendship upon Mr. Sobolli’s arrival in Canada. Furthermore, the witness
could not testify as to Mr. Sobolli’s purported nationality.
[13]
Mr. Sobolli relies on Husain v Canada (Minister
of Citizenship and Immigration), 2016 FC 462, [2016] FCJ no 505 [Husain]
in asking this Court to re-weigh the probative value of the witness’s testimony.
However, the facts in Husain are distinguishable from those with which
the RPD was faced in this case. In Husain, the appellants produced two
persuasive affidavits which this Court found established their identity. I am
of the view the RPD acted reasonably when it gave the witness’s testimony
limited weight with respect to Mr. Sobolli’s nationality.
VI.
Documents from Eritrea
[14]
Mr. Sobolli presented a number of documents which
apparently originated in Eritrea to help confirm his identity. These included
his baptismal certificate, his parents’ national identity cards, and his
mother’s passport.
[15]
The baptismal certificate shows that it was
issued in 1987 on the day of baptism. At the hearing, Mr. Sobolli testified
that the certificate was issued one month before the hearing. In his
submissions, Mr. Sobolli submits that he simply used the wrong verb, claiming that
the contradictory evidence was an “honest mistake”.
However, the RPD found that he “did not give a
straightforward answer and evaded the question”. The RPD observed Mr.
Sobolli testify and it was open to it to find that the inconsistent testimony
undermined his credibility.
[16]
The parents’ national identity cards state that
Mr. Sobolli’s mother and father were born in 1956 and on October 26, 1943
respectively. In Mr. Sobolli’s Basis of Claim form, he stated they were born on
January 1, 1955 and January 1, 1943 respectively. When confronted with this
inconsistency at the hearing, Mr. Sobolli testified that he had guessed these
dates. Again, this testimony was given after Mr. Sobolli confirmed that his Basis
of Claim form was complete, true and accurate. Mr. Sobolli may have been trying
to estimate his parents’ ages; however, it was open to the RPD to draw a
negative inference from the inconsistencies regarding the birth dates. Also, I
would note, as did the RPD, that the form provides for claimants to estimate
the age of others. Mr. Sobolli did not take advantage of that opportunity;
rather, he provided exact dates that were false.
[17]
Mr. Sobolli also offered what he contended was
his mother’s passport, as evidence corroborative of his own identity. That
document indicated that the name of the bearer is Letekidan Sium Tesfa and her
date of birth is January 1, 1956. In the Applicant’s Basis of Claim form, her
name appears as Letekidan Seyoum. While two of the names are phonetically
similar to one another, the Basis of Claim form does not disclose the mother’s
surname. After weighing Mr. Sobolli’s testimony and considering the inconsistencies
in the documentary evidence, the RPD was not persuaded that the passport
belonged to Mr. Sobolli’s mother. I cannot find its decision in this regard to
be unreasonable.
VII.
Conclusion
[18]
I am of the view the RPD considered all the
evidence before it, including Mr. Sobolli’s knowledge of Eritrea and his
fluency in the local language, in its effort to determine whether he had
established his identity and that he was an Eritrean national. Based upon the overwhelming
inconsistencies and the lack of any evidence accounting for nine years of life
in the United Kingdom, where he claims he was represented by counsel and
advanced an asylum claim and an appeal, it was reasonable for the RPD to conclude
that Mr. Sobolli lacked credibility and that his claim demonstrated “no credible basis”.
[19]
I therefore dismiss the application for judicial
review.
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