Date: 19980707
Docket: IMM-2991-97
BETWEEN:
KADIJA AHMED ISSE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review seeking judicial review of, and an order setting aside, the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated June 25, 1997, finding the applicant not to be a Convention refugee. That conclusion was based on the panel's determination, in the absence of any identity documents of the applicant, that her evidence as to her identity was neither credible nor trustworthy.
Background
[2] The facts underlying the applicant's claim, according to the applicant's PIF, are as follows. Ms. Isse claims to be a citizen of Somalia and a member of the Darod tribe and the Majerteen clan. She was born and raised in Mogadishu, where she lived while in Somalia. Ms. Isse's husband left in 1984.
[3] The applicant's eldest daughter, Ruun, came to Canada in 1990, prior to the civil war in Somalia, and was later accepted as a Convention refugee.
[4] In 1990, after the beginning of the civil war, Ms. Isse's neighbours, most of whom were members of the Hawiye tribe, began attacking Darod people and looting and burning their homes. Ms. Isse sent her daughter, Nasra, and her youngest son, Ahmed, to her sister's house in Medina, and her eldest sons went with her brother-in-law, who was fleeing with his family to Ethiopia.
[5] In January 1991, a number of soldiers entered Ms. Isse's home and demanded all her valuables. The applicant was then beaten and driven from her home. Everything in the home was either taken or destroyed. She fled immediately to Afgoye on foot with other Darod refugees. In Afgoye, she and her fellows hid in abandoned buildings for roughly 10 days and then fled by truck to Dhole, near the Kenyan border, where she stayed for some five months. In June 1991, she crossed the border and entered Kenya, eventually arriving in Nairobi, where she was reunited with her husband, her daughter and her youngest son. Eventually, she was able to collect sufficient funds to send the two children to Canada in 1994, but it took another two years before she was able to finance her own trip. The two children, Nasra and Ahmed, who arrived in Canada in 1994, were accepted as Convention refugees in January 1995.
[6] The applicant had no identity documents on her arrival in Canada. In support of her claim her two children, Nasra and Ahmed, testified before the panel and their PIFs from their refugee claims and the PIF or her eldest daughter, Ruun, who had come to Canada in 1990, were also before the panel.
[7] A summary of the facts from the PIFs of Nasra and Ahmed is as follows. The children were born in Mogadishu and were living there in 1990 when the civil war began. They went to their aunt's home where they believed they would be safe from Hawiye. In the middle of January 1991, they returned home to find that their mother's house had been looted and abandoned. They remained at their aunt's house until December 1992. In October 1992, the aunt's house was attacked by the USC. Realizing that it was unsafe for the children, the uncle arranged for transport by boat to Mombassa, Kenya, and the children were ultimately re-united with their mother and father in Nairobi. By July 1994, the family had raised enough money to send the children to Canada.
[8] The facts set out in Ruun's PIF describe a family background different in numerous ways from that the applicant had set out.
IRB Decision
[9] In its reasons, the IRB indicated that the key issues were identity, the credibility of the testimony, delay in claiming status, and IFA. The IRB found material aspects of the applicant's evidence not to be credible. The applicant's PIF indicated that she was 61 years old. Her daughter Ruun's PIF indicated that the applicant was 43. There were other discrepancies between the applicant's story and Ruun's PIF, with regard to the birth dates of Ahmed and Nasra. The applicant denied running a store, as Ruun said her mother had done. The applicant also denied that her husband was arrested or left in 1980, as Ruun indicated. The panel was not satisfied by the applicant's statement that Ruun was young when she arrived in Canada (18) and had then said whatever she wanted to say.
[10] Ahmed's oral testimony as a witness at the hearing is said not to have helped the applicant and, indeed, it was not given weight by the panel. Specifically, Ahmed, who left Somalia when he was eight, remembered little of his life in Somalia. He did not recall the name of his aunt's husband, with whom he reportedly lived for two years. He indicated in his PIF that he went to Kenya in a boat, but testified he went by truck.
[11] Nasra's testimony is also said to be contradictory to that of the applicant. While the applicant indicated that she left her children with neighbours on occasion, Nasra denied her mother had done so. The applicant indicated that they had several houses that were rented out, Nasra said that they had only two houses, in which they rented out 2 rooms. Nasra could not remember the names of her teachers and principal, but the applicant could. Nasra indicated that she was 12 or 14 when her father left in 1984, but that would make her 25 to 27 years of age at present. Her PIF indicates that she is 21.
[12] Further, if the applicant's story were true, she did not have the first of her children until 16 years after her marriage. The panel found that while late life pregnancy is not impossible, it was implausible, given the Somali culture and tradition, that a Somali husband would wait 16 years for a first child. Finally, the panel found that contradictory statements made by the claimant in her PIF, port of entry notes and her oral testimony and the testimony of the witnesses, impugns her credibility, leading the panel to conclude that her evidence of her identity was neither credible nor trustworthy.
Analysis
[13] With respect, in my view this application should be allowed.
[14] The panel's conclusion regarding the applicant's late pregnancy is made without any evidentiary basis, rather it is based on the panel's own views. It is urged that those views were in turn based on the panel's awareness of Somali culture and tradition, but if that is the case the significance of that culture and those traditions is not explained. All that is said is that it was implausible her husband would wait 16 years after marriage for the birth of a first child. The panel's conclusion was purely speculative. In the recent case of Mahalingam v. Canada (Minister of Citizenship and Immigration)1, Mr. Justice Gibson summarized the law relating to speculation as follows:
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For its own speculation or feeling, the CRDD cited no evidence in support. |
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In Minister of Employment and Immigration v. Robert Satiacum [(1989), 99 N.R. 171 (F.C.A.)] Mr. Justice MacGuigan wrote: |
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The common law has long recognized the difference between reasonable inference and pure conjecture. Lord Macmillan put the distinction this way in Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 at 45, 144 L.T. 194 at 202, (H.L.): |
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The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. |
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In R. v. Fuller (1971), 1 N.R. 112 at 114, Hall J.A. held for the Manitoba Court of Appeal that "[t]he tribunal of fact cannot resort to speculative and conjectural conclusions." Subsequently a unanimous Supreme Court of Canada expressed itself as in complete agreement with his reasons: [1975] 2 S.C.R. 121">[1975] 2 S.C.R. 121 at 123, 1 N.R. 110 at 112. |
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In the absence of some evidence, cited by the CRDD and weighed against the evidence to the contrary to support its "feeling", I conclude that the CRDD here resorted to a speculative and conjectural conclusion which was clearly central to its decision. In so doing, it committed a reviewable error. |
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[15] Further, in my view, the panel erred in failing to spelling out contradictory statements said to have been made by the applicant "in her PIF, port of entry notes and her oral testimony and the testimony of witnesses", which the panel found impugned her credibility. Indeed, it is not clear from the panel's reference to contradictory statements whether the inconsistencies were in the evidence offered by the applicant herself, or between her evidence and the testimony of the two witnesses, her son and her daughter. If the inconsistencies were with the evidence of the witnesses, to which the panel gave no weight at all, it would have lent credence to their evidence as against the sworn testimony of the applicant. In Yukselir v. Canada (Minister of Citizenship and Immigration)2 Mr. Justice Gibson wrote:
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The CRDD, in very brief reasons, found the applicant's evidence to be lacking in credibility and trustworthiness. While it spoke of inconsistencies between the testimony of the applicant and two other witnesses on the one hand, and the documentary evidence on the other, it failed to provide any explanations or examples to support the finding of inconsistencies. |
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I am satisfied that it is appropriate for a reviewing Court to interfere where it is persuaded that the analysis of the CRDD in support its assessment of credibility is so flawed or incomplete that it cannot be determined with any degree of certainty that the assessment is other than perverse or capricious or made without regard to the evidence before it. |
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[16] With respect for the difficult task of the CRDD in assessing credibility, it is nonetheless the responsibility of the panel to set out in its decision the reasons for its assessment, and if it be based upon inconsistencies in the evidence of the applicant, to set out with some precision specific examples of inconsistency. Here, there were specific examples set out but they were in comparing evidence of the applicant with that of her children, to which latter evidence the panel stated it gave no weight.
Conclusion
[17] In the circumstances, the panel erred, in my opinion, by failing to articulate the basis for its finding of a lack of credibility in the evidence of the applicant and of her identity. An Order goes setting aside the decision and referring the applicant's claim for reconsideration by a differently constituted panel.
W. Andrew MacKay
Judge
OTTAWA, Ontario
July 7, 1998
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1 (January 30, 1998), Court File No. IMM-833-97, [1998] F.C.J. No. 139 (F.C.T.D.).
2 (February 11, 1998), Court File No. IMM-1306-97, [1998] F.C.J. No. 180 (F.C.T.D.).
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