Docket: IMM-3638-16
Citation:
2017 FC 325
Ottawa, Ontario, March 28, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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MONA OSMAN
MOHSIN AHMED
(A.K.A. MONA
OSMAN MUHSIN AHMED)
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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]
This is an application for judicial review of a
Refugee Protection Division [RPD] decision dated July 28, 2016, in which the
RPD determined that the Applicant is not a convention refugee pursuant to
section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA], or a person in need of protection pursuant to section 97 of IRPA.
[2]
As explained in greater detail below, this
application is dismissed, because the Applicant has not demonstrated any reviewable
errors by the RPD, in its assessment of her identity and credibility, to
support a conclusion that the RPD’s decision is unreasonable.
II.
Background
[3]
According to the Applicant, Mona Osman Mohsin
Ahmed, she was born in Marka, Somalia on September 1, 1989. She moved with her
family to Saudi Arabia in 1991, where they remained until November 2012. At
that time, Ms. Ahmed and her family were deported from Saudi Arabia to Somalia
because her father had become too ill to continue working for his employer and
sponsor.
[4]
Ms. Ahmed says that her father died on November
21, 2012 in Marka. Following this, she alleges that members of Al-Shabaab came
to Marka and threatened her cousin, Ali Sherif, who told Ms. Ahmed that they
would be forced to marry Al-Shabaab fighters and would be killed if they did
not comply. Ms. Ahmed and her sister fled Somalia, with the help of her cousin.
They traveled to the United States, where they made an unsuccessful claim for
asylum.
[5]
Ms. Ahmed met her current husband, Ahmad Abbany,
online, and the couple were married in a religious ceremony in Brooklyn, New
York on May 19, 2015, as well as in a civil ceremony on March 11, 2016 in
Detroit, Michigan. Mr. Abbany is a Canadian citizen, and on March 17, 2016 Ms.
Ahmed traveled with him to Canada and made a refugee claim.
[6]
Ms. Ahmed appeared before the RPD on May 19,
2016 and June 23, 2016 to give oral testimony, with the assistance of an
interpreter, and presented documentary evidence in support of her claim of
persecution in Somalia. On July 28, 2016, the RPD issued the decision which is
the subject of this application for judicial review, denying Ms. Ahmed’s claim
for refugee protection based on the determinative issues of identity and
credibility.
III.
Issues and Standard of Review
[7]
Ms. Ahmed’s written submissions do not expressly
articulate issues for the Court’s consideration, but her submissions indicate
that she takes issue with the RPD’s conclusion, that she had not established
her personal and national identity, and its resulting finding that this
undermined her credibility.
[8]
The assessment of evidence of identity is a
question of fact, reviewable on the standard of reasonableness (see Toure v.
Canada (Minister of Citizenship and Immigration), 2014 FC 1189, at para
29).
IV.
Analysis
[9]
The RPD acknowledged that the Somali government
has not issued identity documents since the outset of the war in 1991, and that
large parts of Somalia do not have access to any official government-issued
documents such as passports, birth certificates, or national identity cards.
However, the RPD stated that, while the lack of Somali government issued
identification is not in itself grounds for a negative inference or a negative
finding on identity, a claimant must use other reliable documents or credible
testimony to establish identification. Against this backdrop, the RPD
considered the evidence that Ms. Ahmed submitted in support of her identity.
A.
Birth Certificate
[10]
The principal identity document submitted by Ms.
Ahmed was a document bearing the name “Birth
Certificate”, which purports to be an English translation of a document
in the Somali language that was also submitted. Both documents are dated in
1989. At the hearing, Ms. Ahmed described the birth certificate as an original,
but the RPD concluded that it was a photocopy. The RPD also
considered Ms. Ahmed’s testimony that she obtained this document with the help
of neighbours in Saudi Arabia, who were also from Marka and still had
connections in Somalia. She testified that they emailed her this document and
that she did not know the steps they had taken to obtain it. The RPD did not
believe Ms. Ahmed’s explanation and found it unlikely that her Saudi neighbours
would have been able to obtain Ms. Ahmed’s birth certificate from Somalia given
her absence from the country. Ms. Ahmed also had not kept the email
communication by which she said the birth certificate had been sent to her,
which the RPD found to raise serious concerns about the reliability,
authenticity and trustworthiness of the document.
[11]
The RPD also considered anomalies in the
document itself that the claimant was unable to explain. It was issued in
Mogadishu by the mayor of the local government, and not by the local government
in Marka. The RPD also found that, as Ms. Ahmed testified that she was born at
home with the assistance of a mid-wife, it was unlikely that her birth would
have been registered at any local government office, such that it would have
become a matter of public record. For all of these reasons, the RPD gave the
birth certificate no weight.
[12]
Ms. Ahmed argues that the RPD erred in its
assessment of the birth certificate. She submits that the RPD placed too much
weight on her description of the document as an original, when it was not clear
from her testimony what she understood from the use of that term. I have
reviewed the portion of the hearing transcript to which Ms. Ahmed refers and
can identify no error by the RPD in its treatment of this aspect of her
evidence. The RPD accurately described Ms. Ahmed’s characterization of the
document as an original and then considered her evidence as to how it was
obtained. I do not read the RPD’s concerns about the provenance of the document
to be based on Ms. Ahmed’s inaccurate description of it as an original but, but
rather to be based on the lack of a credible explanation as to how it was
obtained.
[13]
Ms. Ahmed takes issue with the RPD referring to
email communications not being secure. While the RPD makes this statement,
without any particular evidentiary support, I do not find this to be material
to its analysis of how she received the birth certificate, which was based principally
on Ms. Ahmed’s failure to provide a copy of the email which was allegedly sent
to her by her Saudi neighbours with the birth certificate as an attachment.
[14]
Ms. Ahmed also argues that it is misleading to
refer to the document as a “birth certificate”,
even though the English translation bears that name, as the document reads as a
certification of her birth based on the author having seen an applicable family
record. She submits that the RPD refers to no evidence to contradict the
existence of a family record as a means to confirm one’s date and place of
birth or any evidence regarding birth certificates issued in 1989. The
Respondent submits that there is no merit to these arguments, as the field in
the document apparently intended for insertion of a family record number has
been left blank.
[15]
I do not find this component of the document a
basis to conclude that the RPD’s assessment of the document is unreasonable.
The RPD noted in its decision that the documentary evidence indicated a family
file would be created by the municipal administration as part of the process of
obtaining a birth certificate. However, the fact that the document, or at least
its template, refers to a family record, does not undermine the RPD’s concerns
about the document, including the fact that it purports to have been issued by
the administration of the wrong municipality. Ms. Ahmed argued at the hearing
of this application that the issuance of such certificates may have been
centralized. However, she referred to no evidence to this effect. The
documentary evidence referenced by the RPD states that prior to 1991 birth
certificates were obtained from the municipal administration.
[16]
Ms. Ahmed also argues that the RPD failed to
analyse the fact that the birth certificate was also signed by the Somali
Director General of Consular Affairs, certifying that the document was a true
copy of the original. She submits that this represents verification by the
Department of Foreign Affairs that the document presented to them was an
original after examining family records. The Respondent notes that the
certification appears only on the English translation, not on the Somali
language version of the document, that there is no certification of the
accuracy of the English translation, and that the signature by the Director
General of Consular Affairs therefore raises more questions than it answers. I do
not find this argument by Ms. Ahmed to raise a reviewable error. Taken at its
best, the document before the RPD was a photocopy of a certified copy of an
original, and it was the provenance of the original about which the RPD had
concerns.
B.
US Asylum Documents
[17]
The RPD considered documents generated in the
course of Ms. Ahmed’s asylum claim in the US and found them to be of little
probative value, as there was no indication what efforts, if any, were made by
US immigration authorities to verify her identity. Ms. Ahmed argues this to be
an error, noting that the documents in the Certified Tribunal Record include a January
30, 2015 Order of an Immigration Judge directing that Ms. Ahmed may not be
removed to Somalia. Ms. Ahmed also refers to what appears to be an attachment
to a Notice of Appeal filed on her behalf in the US proceedings, which refers
to the Immigration Judge granting withholding of removal based on undisputed
evidence that Ms. Ahmed had been subjected to female genital mutilation [FGM].
She submits that, as FGM is practised in Somalia, the reference to this
evidence in the US proceeding supports her identity claim.
[18]
I find nothing unreasonable in the RPD’s
treatment of the US asylum documents. Ms. Ahmed has referred to no evidence
before the RPD indicating any steps taken by US authorities to verify her
identity, either before issuing the referenced Order or otherwise. Nor has she
referred to evidence surrounding the practice of FGM which would support a
conclusion that the RPD acted unreasonably in failing to consider the reference
to her being subjected to FGM as evidence of her national identity.
C.
Marriage License
[19]
The RPD considered Ms. Ahmed’s marriage license
but found it had no probative value in establishing her personal and national
identity, as it only confirmed that she married Mr. Abbany in the state of
Michigan. She submits that this was an unreasonable conclusion, because the
marriage license contained the name of her mother which matched the name on her
birth certificate. This argument amounts to a request that the Court re-weigh
the evidence before the RPD, which is not the Court’s role in judicial review.
I find no error in the RPD’s treatment of the marriage license.
D.
Death Certificate
[20]
Ms. Ahmed also submitted a translated version of
her father’s death certificate, but the RPD found it to be of no probative
value in establishing her personal and national identity. She argues this to be
an error, because the death certificate contains the name of the person she
stated was her father and shows that he died in Marka, the same place she said
she was born. Ms. Ahmed also argues it is unlikely she would have this document
in her possession if the deceased was not a close family member. Again, these
arguments represent a request that the Court re-weigh the evidence. I find no
error in the RPD’s treatment of this document.
E.
Parents’ Dates of Birth
[21]
The RPD considered Ms. Ahmed’s inability to
identify her parents’ dates of birth, despite the fact that she had included a
date of birth for her mother in her Basis of Claim [BOC] form, as a factor
undermining her credibility. She submits that the RPD’s finding failed to
recognize that her BOC’s inclusion of a precise birthdate for her mother
(01/01/1966) was a result of the electronic version of that form populating the
month and day fields by default with “01/01”
when only the year of birth is inserted.
[22]
The Respondent acknowledges that the electronic
BOC form operates in this manner when the form is saved but argues that this is
not material to the RPD’s decision.
[23]
The transcript of the hearing before the RPD
demonstrates that Ms. Ahmed’s counsel submitted that the “01/01” entries may have been a default, and she
testified that the inclusion of that date was an error. The RPD then questioned
her about the fact she signed the BOC form. In its decision, the RPD again
notes that Ms. Ahmed said the inclusion of the January 1, 1966 may have been a
mistake, but also that she confirmed that all the information in the BOC she
signed had been translated for her. The RPD therefore did not accept her
explanation. The RPD was obliged to consider Ms. Ahmed’s explanation. However,
it did so, and the failure to accept her explanation cannot be characterized as
a reviewable error. Ms. Ahmed also submits that the RPD erred in referring to
the BOC as indicating that her mother was born on January 1, when it actually
includes only the numerical reference “01/01”. I
find no merit to this submission, as “01/01”
clearly means January 1.
[24]
I also note from the next component of the RPD’s
decision that its adverse credibility finding, surrounding Ms. Ahmed’s parents’
birthdates, is based significantly on the fact that she could not provide those
dates and could give only rough estimates. She argues that this finding is
unreasonable, because not all cultures place an emphasis on the celebration of
birthdays. However, she refers to no evidence to support such a conclusion in
relation to Somali culture. Again, there is no basis for the Court to interfere
with this aspect of the RPD’s analysis.
F.
Language and Culture
[25]
The RPD considered Ms. Ahmed’s ability to speak
the Somali language but found that this on its own did not prove that she
actually lived in Somalia or is a citizen of that country. The RPD also found
that, while her testimony about her clan genealogy and lineage, its culture,
history, customs, and traditions was generally consistent with the objective
country documentation, her knowledge was limited and superficial.
[26]
Ms. Ahmed notes that she speaks a particular
Somali dialect and argues that the RPD offered no explanation for how she could
have learned this dialect unless it was spoken to her by her parents. With
respect to her statements about her clan and culture, she submits that the RPD
did not conclude she was wrong, only that her knowledge was limited. These
submissions take issue with the RPD’s weighing of the evidence, with which it
is not the Court’s role to interfere.
[27]
Ms. Ahmed also argues that the RPD failed to
take into account the fact that her appearance is consistent with the ethnic
group in Somalia of which he claims to be a member. I cannot conclude that
failure to make observations of physical appearance, and to draw conclusions of
ethnicity based thereon, constitute a reviewable error in the consideration of
a claimant’s national identity.
G.
Documents from Saudi Arabia
[28]
Finally, the RPD noted that, despite claiming to
have lived in Saudi Arabia for 20 to 21 years, Ms. Ahmed did not have any
documentation in her possession to establish this or evidence to show that she
and her family were deported to Somalia in 2012. She argues this represents an
error, because her father had the deportation documents, and it was not her
responsibility to obtain possession of them.
[29]
I find nothing unreasonable in the RPD’s
analysis of this aspect of the evidence. Ms. Ahmed has argued that citizens of
Somalia face a particular challenge in establishing their identity, because of
the lack of government issued identification documentation since the
commencement of the war in 1991. She submits that it is therefore incumbent
upon the RPD to show flexibility and look at the cumulative effect of evidence
submitted in support of the identification of Somali claimants. However, the
RPD’s reasons expressly refer to this challenge, and its consideration of the
fact that Ms. Ahmed spent over 20 years in Saudi Arabia demonstrates the RPD’s
willingness to consider alternative sources of identity evidence. I read the
RPD’s decision as influenced significantly by Ms. Ahmed’s failure to produce
not only evidence of her family’s recent deportation to Somalia but any
documentation that would show she had lived and gone to school in Saudi Arabia
over the last 20 years.
[30]
Ms. Ahmed submits that, taken together, the
evidence she was able to provide to the RPD was sufficient for the member to
reach a positive determination of her identity. However, the issue the Court
must consider on judicial review is not whether the evidence may have been
sufficient for the RPD to reach a positive conclusion, but rather whether it
was unreasonable for the RPD to have reached the conclusion that it did. Having
considered all Ms. Ahmed’s arguments and the totality of the evidence
available, I find the RPD’s decision to be within the range of possible,
acceptable outcomes, and therefore reasonable.
[31]
This application for judicial review must
therefore be dismissed. Neither party proposed any question for certification
for appeal, and none is stated.
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