Date: 20110609
Docket: IMM-6550-10
Citation: 2011 FC 665
Ottawa, Ontario, June 9, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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SAMIR NUR HOGJEH
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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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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr.
Samir Nur Hogjeh claims he was born in Somalia in 1989. His
parents lived in the Ogaden region of Ethiopia, but fled to Somalia in the late
1970s or early 1980s to avoid persecution. The family returned to Ethiopia in
1992 to escape the civil war in Somalia. In 2001, the Ethiopian
army targeted the family, believing them to be members of the Ogaden National
Liberation Front [ONLF]. Mr. Hogjeh claims the army beat him, his father and
brothers, and shot his grandfather.
[2]
In
2003, Mr. Hogjeh, then just 14, returned to Mogadishu, Somalia to attend
high school. The family followed a few years later. While there, Mr. Hogjeh
claims that the Al Shabaab Islamist militia threatened him after he refused to
join it. He considered going back to Ethiopia, but continued to fear
the Ethiopian army. In 2007, he fled Somalia to Kenya, then
Uganda, then back to Kenya. He arrived in Canada in November
2008 and claimed refugee protection.
[3]
A
panel of the Immigration and Refugee Board denied Mr. Hogjeh’s claim after
concluding that he was a citizen of Ethiopia and could safely return
there. Mr. Hogjeh contends that the Board erred in its finding regarding his
citizenship. He asks me to overturn its decision and order a new hearing. I
agree that the Board erred and, therefore, will allow this application for
judicial review.
[4]
While
Mr. Hogjeh raised a number of issues, the main question relates to the Board’s
treatment of the issue of citizenship. As I agree that the Board erred on that
point, it is unnecessary to deal with the remaining questions. The sole issue,
therefore is:
[5]
Issue
One – Was the Board’s conclusion that Mr. Hogjeh was a citizen of Ethiopia
unreasonable?
II. The Board’s Decision
[6]
Mr.
Hogjeh maintained before the Board that he was born in Somalia and was,
therefore, a Somali citizen. The Board made no negative credibility findings
against him. Mr. Hogjeh also presented a Somali birth certificate that had been
issued in 2003.
[7]
However,
the Board concluded that Mr. Hogjeh was a citizen of Ethiopia and assessed
his refugee claim as against Ethiopia, not Somalia. The Board
noted that it was impossible to obtain official documents in Somalia given the
absence of a functioning government there. Therefore, it placed little weight
on Mr. Hogjeh’s birth certificate. Further, the Board noted that, while Mr. Hogjeh
had relatives in Toronto, none appeared as witnesses on his behalf or
supplied corroborating affidavits about his nationality.
[7]
[8]
On
the other hand, given that Mr. Hogjeh’s parents had been born in Ethiopia, the Board
found that he was entitled to Ethiopian citizenship, according to the Ethiopian
Constitution (Article 6). Based on the documentary evidence, the Board
concluded that Mr. Hogjeh’s fear of persecution in Ethiopia was not
well-founded.
[9]
Issue
Two – Was the Board’s conclusion that Mr. Hogjeh was a citizen of Ethiopia
unreasonable?
[10]
The
Board simply relied on the Ethiopian Constitution to find that Mr. Hogjeh is a
citizen of Ethiopia. Article 6
provides that a person is a citizen of Ethiopia if one or
both parents were born there.
[11]
While
Mr. Hogjeh conceded that his parents were born in Ethiopia, he
testified that it would be difficult to prove it. They were born in the desert,
not in a hospital, and had no supporting documentation.
[12]
At
the same time, the Board discounted the possibility that Mr. Hogjeh was a
citizen of Somalia, based on a
lack of corroborating evidence. However, he testified that he was born there
and the Board had no concerns about his credibility on this point. According to
the Somali Citizenship Act, a person is a citizen if he or she was born
in Somalia or if his
father is Somali. A person is considered Somali by virtue of Somali origin,
tradition or language. By this definition, being from the Ogaden region of Ethiopia where Somali
is spoken, Mr. Hogjeh’s parents are Somali.
[13]
In
my view, the Board failed to consider whether the possibility that Mr. Hogjeh
could acquire Ethiopian citizenship was realistic in the circumstances. There
was no evidence to suggest that Mr. Hogjeh could “readily acquire” citizenship
in Ethiopia (See Roncagliolo
v Canada (Minister of
Citizenship and Immigration), 2005 FC 1024 at para 19) or could do so with
“due diligence” (Sahal v Canada (Minister of Citizenship and Immigration)
(1999), 166 FTR 149, 88 ACWS (3d) 183 at para 11 (TD)). The Board also failed
to analyze adequately Mr. Hogjeh’s apparent entitlement to Somali citizenship,
notwithstanding the lack of corroborating evidence. Accordingly, I find that
the Board’s decision was unreasonable.
III. Conclusion and Disposition
[14]
Based
on the evidence before it, the Board’s decision that Mr. Hogjeh was a citizen
of Ethiopia and not Somalia was unreasonable. Accordingly, I must allow
this application for judicial review. Neither party proposed a question of
general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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