Sheikh-Awais v. Canada (Citizenship and Immigration), docket IMM-1065-96

IMM-1065-96

BETWEEN:

IFTIN ABDIRIZAK SHEIKH-AWAIS,

BY HER LITIGATION GUARDIAN, ZAHRA ABDIRIZAK SHEIKH,

Applicant,

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

REASONS FOR ORDER

NOËL, J.:

     This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board [hereinafter "the Board"], wherein it was determined the Applicant was not a Convention refugee.

I      THE FACTS

     The facts in this case are not in dispute, and are set out as follows in the Board's Reasons for Decision and in the Applicant's Record.

     The claimant was born in Kismayo, Somalia, in May of 1992. Her mother was born in Somalia; her father, who is also the father of the designated representative, was born in Jigjiga, Ethiopia. He is an ethnic Somali of the Ogaden sub-clan of the Darod clan.

     In 1977 or 1978, following the death of his first wife, the Applicant's father fled from Jigjiga to Somalia with their daughter (the designated representative) and their three sons. He remarried in 1982, in Mogadishu, to a citizen of Somalia. He and his second wife have six children, of which the Applicant is the youngest.

     In 1987, the designated representative and one of her two youngest brothers left Somalia and applied for refugee status at the Canadian Embassy in Rome, Italy. They were accepted and arrived in Canada in 1989. Her older full brother subsequently came directly from Somalia to Canada in August 1990 and was granted Convention refugee status in 1991. The third, youngest of her full brothers, died in Somalia in 1988.

     Sometime after the fall of the Siad Barre regime, which occurred in January 1991, the Hawye clan, which had seized power in Mogadisho, began to kill all the members of the Darod clan. So the Applicant's mother and father fled with the family to Kismayo in southern Somalia, where the Applicant was born in May of 1992.

     When the Hawye forces began to attack the city of Kismayo, they fled to Kenya in December of 1993. In 1994, the father was able to arrange to travel to Nairobi. However, judging that the situation in Nairobi was too dangerous for their youngest child, the Applicant's parents arranged for her to travel with another Somalian woman to Canada in May of 1994 in order that she be placed in the care of her older half-sister, who had by then become a Canadian citizen.

II      THE BOARD'S DECISION

     The Board began by considering whether the Applicant is a citizen of Somalia or Ethiopia. Pursuant to Article 31(1) of the February 1987 Ethiopian Constitution, "any person with both or one parent of Ethiopian citizenship is an Ethiopian", regardless of the person's place of birth. It follows that the question to be determined by the Board was whether the Applicant's father was a citizen of Ethiopia at the time of the Applicant's birth.

     The Respondent's Memorandum of Argument sets out the evidence that was considered by the Board:

The Applicant's designated representative, Zahra Abdirizak Sheikh is her half-sister. In 1987, the designated representative along with her younger brother made a claim to refugee status in Italy. Their older brother made his refugee claim in Canada. In his Personal Information Form, he stated that his nationality was Ethiopian and that his father's nationality was Ethiopian.

It was noted that the recounting of the father's inability to obtain Somali citizenship even with the assistance of the family of his second wife, (the Applicant's mother) his imprisonment on two occasions for opposing Siad Barre while he was in power and the fact that he was in prison at the beginning of August 1990 was consistently narrated in the Applicant's PIF, the PIF of his half-brother and his half-sister (the designated representative).

The panel noted the imprisonment of the Applicant's father on 2 occasions, on suspicion of opposing Siad Barre and found it improbable that the Applicant's father would have received Somali citizenship while Siad Barre was in power.

Based on the testimony of the designated representative and the narrative portion of the PIF of the half-brother and the documentary evidence regarding Somali citizenship law the panel found that the Applicant's father was unable to obtain Somali citizenship either by law or by grant.

The Applicant's designated representative, Zahra Abdirizak Sheikh (her half-sister) testified that her father told her he had been able to obtain Somali citizenship after his release from prison. The designated representative attempted to obtain documentary evidence to support this assertion. However all she was able to obtain was a faxed copy of a Somali identification card. The copy was unclear, showed no date of issue and had a number of features that were inconsistent with the vast majority of Somali identification cards previously seen by the panel where all reference numbers were different, the ID card number in this case was identical to the reference number for the master family file, which was found to be improbable. There was also no revenue stamp on the card which indicates that the appropriate fee was paid for the card. These inconsistencies were pointed out to counsel.

Given the lack of an original document, the irregularities visible in the fax copy and the evidence that the Applicant's father was still an Ethiopian citizen until at least August 1990, the panel gave no weight to the ID document in establishing that the Applicant's father was a Somali citizen.

The panel determined that the Applicant was a citizen of Ethiopia and proceeded to assess whether she had a well-founded fear of persecution in that country.

III      THE ISSUES

     The issues in the case at bar may be addressed as follows:

1)      Did the Board err in determining that the Applicant was a citizen of Ethiopia?

2)      Did the Board err in failing to consider whether the Applicant was stateless?

3)      Did the Board err in finding that the Applicant did not have a reasonable fear of persecution if she returned to Ethiopia?

IV      ANALYSIS

1)      Did the Board err in determining that the Applicant was a citizen of Ethiopia?

     The Applicant argues that the Board erred in finding that the Applicant was a citizen of Ethiopia on the basis of a "mere possibility" that her father had not obtained a Somali citizenship at the time of the Applicant's birth.

     The Board found that the Applicant's father had not succeeded in obtaining Somali citizenship before August of 1990, when the Applicant's half-brother came to Canada, and indicated on his Refugee claim that his father's nationality was Ethiopian. The Applicant's representative claims, however, that the Applicant's father was able to acquire citizenship after this date. To this effect, a faxed copy of a Somali identification card was provided. However, the Board, for reasons explained in its decision and which appear to be eminently reasonable chose not to attribute any weight to this document.

     It follows that the only evidence pertaining to the father's citizenship is the sworn testimony of the Applicant's representative. The Applicant submits that as her representative's credibility was not put into question, her testimony on the issue must stand. Furthermore, the Applicant submits that the Board's conclusion was based on pure speculation, as no evidence was before the Board concerning the actual citizenship of the father at the time of the Applicant's birth. Relying on the case law, the Applicant alleges that the Board committed an error in law in basing its conclusion on pure speculation.¹

     With respect to this last argument, I note that in this instance the Board had before it evidence to support its finding; it was not the fruit of pure speculation. With respect to the designated representative, although her testimony was uncontradicted, it was not, in the Board's view, consistent with the evidence otherwise available:

It is settled that the CRDD may reject testimony which is uncontradicted if that evidence does not accord with the probabilities affecting the case as a whole: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.); Alizadeh v. Minister of Employment and Immigration, (Unreported) Court file A-26-90 (January 11, 1993), [1993] F.C.J. No. 11.2

The Board clearly identified the evidence which it considered in arriving at its decision, including the representative's testimony, the father's previous failed attempts at obtaining Somali citizenship, the time spent in prison which would render difficult the obtaining of citizenship, etc. In my view, these considerations were sufficient to justify the finding that the Applicant's father remained an Ethiopian citizen at the time of the Applicant's birth.

2)      Statelessness / habitual state of residence

     The Applicant further submits that if the Board found there was insufficient evidence to show she was a citizen of Somalia, it should have deemed her to be stateless and have evaluated her refugee claim in regard to her last country of habitual residence, Somalia.

     However, I have carefully reviewed the transcripts from the hearing, and at no time did the Applicant's representative or her counsel raise the issue of the Applicant being stateless before the Board. If the Applicant had wanted the Board to consider the possibility that she was stateless, these arguments should have been presented at the time of the hearing. It follows that, as the question of the Applicant's statelessness was not before the Board, it cannot have erred in not addressing it. I have no jurisdiction to review the matter on the basis of an issue which the Board was not asked to consider and which it did not consider.

3)      Did the Board err in finding that the Applicant did not have a reasonable fear of persecution if she returned to Ethiopia?

     The facts considered by the Board in its assessment of the existence of a fear of persecution should the Applicant return to Ethiopia are well set out in the Reasons for Decision. I can detect no reviewable error in this regard.

     At the conclusion of the hearing, counsel for the Applicant moved to have two questions certified. For the reasons advanced by counsel for the Respondent in opposing this motion, neither question will be certified.

     The application for judicial review is dismissed.

     Marc Noël

     Judge

Ottawa, Ontario

January 15, 1997

__________________

     ¹      Satiacum v. M.E.I., (Unreported, June 16, 1989) (A-544-87) (F.C.A.).      Frimpong v. M.E.I., 99 N.R. 164 (F.C.A.).      Dumitru v. M.E.I., (Unreported, February 25, 1994) (IMM-911-93) (T.D.).      Campos et al. v. M.C.I., (Unreported, December 21, 1994) (IMM 4598-93) (T.D.).

     ²      Alza v. Canada (Minister of Citizenship and Immigration), (1996) (Unreported IMM-3657-94, March 26, 1996) MacKay J.