Date: 20110614
Docket: IMM-5332-10
Citation: 2011 FC 696
Ottawa, Ontario,
June 14, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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MUSTAFA ABDIKARIM JAMA
(a.k.a. JAMA, MUSTAFA ABDIKAR)
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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
[1]
This is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial
review of the decision of the Refugee Protection Division (RPD) of the
Immigration and Refugee Board, dated 19 August 2010 (Decision), which refused
the Applicant’s application to be deemed a Convention refugee or a person in
need of protection under sections 96 and 97 of the Act.
BACKGROUND
[2]
The
Applicant claims to be a citizen of Somalia. He alleges that he fled his home city of Kismayo for the first time in
2000, after rival militias had turned the town into a war zone. He travelled to
Kenya and then to the United States, where he claimed
refugee status. He was immediately detained by US immigration authorities for
attempting to enter the country using a fraudulent travel document and remained
in detention for eight months. Following his release he lived in Minnesota until he voluntarily
departed under a removal order in September 2003.
[3]
He
returned eventually to Kismayo, where he married, fathered a son and operated a
tailor shop in the town market. He alleges that he was kidnapped in July 2008
but escaped later the same day. The kidnappers retaliated by killing his wife.
The Applicant immediately left Somalia for the second time. After a few weeks in Kenya, he
travelled to Canada, where he sought
protection in November 2008.
[4]
The
Applicant alleges a well-founded fear of persecution on two grounds: race, as
he claims to be a member of the minority clan Ashraf; and imputed political
opinion, due to his opposition to the Islamist militias.
[5]
The
Applicant appeared before the RPD on 11 August 2010. He was represented by
counsel and an interpreter was present. The RPD was not convinced that the
Applicant had established his identity on a balance of probabilities. It found
that he was not credible and was not facing a personalized risk on the basis of
his race or his political opinion. His claims under sections 96 and 97 were
rejected. This is the Decision under review.
DECISION UNDER REVIEW
The Applicant Failed to Establish His
Identity
[6]
The
RPD acknowledged that Somali identity documents are scarce. It did not expect
the Applicant to produce any, and he did not do so. Establishing a person’s
geographical origin is an alternative way to establish identity and the RPD
made efforts to do this.
[7]
The
RPD noted that the Applicant spoke and understood the Somali language and could
name landmarks in Kismayo. He demonstrated some knowledge of his clan, Ashraf,
but he did not know the origin of the word; he was not aware of the various
sub-clans; he could not name many of the communities that the documentary
evidence indicates are common settlements for clan members; and he did not
initially include the name “Sharif” in his own name although, according to the
documentary evidence, it is a component of all male names in the Ashraf clan.
When confronted with this fact, the Applicant stated that he did not realize
the RPD was asking about his lineage, and he restated his name to include the
name “Sharif.” The RPD drew from this a negative credibility inference.
[8]
The
Applicant called a witness to testify as to his identity. The witness, who had
visited the Applicant’s home in Kismayo in 1995, stated that she had seen him
on one day of her visit when he was 10 years old but that she had not had much
interaction with him. She did not speak with him again until 2008, when he
contacted her in Canada. She became convinced
that he was who he claimed to be after speaking with a mutual relative and
because his eyes resembled those of his brother. The RPD believed the witness
was credible but gave little weight to her evidence since she had had no
contact with the Applicant or the Applicant’s brother for fourteen years.
[9]
The
RPD inquired, pursuant to Rule 7 of the Rules and section 106 of the Act, as to
whether the Applicant had made reasonable efforts to document his identity.
First, it noted that, although the Applicant had had extensive dealings with US
immigration officials while he was in that country from 2000 to 2003, he had
made no attempt to obtain documents from them in support of his claim for
refugee status in Canada. He claimed that he
feared that such an inquiry would precipitate his arrest and deportation from Canada. The RPD found this
explanation implausible and drew a negative credibility inference. Second, the
Applicant testified that he worked for two years at a halal butcher shop in Minnesota and that, to the best
of his knowledge, it was still in operation. However, he had made no effort to
contact the owner and get a letter attesting to his identity. The RPD concluded,
therefore, that the Applicant had failed to arrive at the hearing with all of
the evidence reasonably available to establish his identity claim on a balance
of probabilities. See Yip v Canada (Minister of Employment and Immigration) (1993), 70 FTR 175,
[1993] FCJ No 1285 (QL) at paragraph 7; and Kante v Canada (Minister of Employment
and Immigration)
(1994), 47 ACWS (3d) 798, [1994] FCJ No 525 (QL) (FCTD) at paragraph 8.
The Applicant Was Not
Credible
[10]
The RPD
noted that section 106 of the Act provides that the RPD must assess an
applicant’s credibility in light of the documentary evidence establishing his
identity or, absent that, the reasonableness of the applicant’s explanation for
lack of such documentation and an account of efforts made to acquire
documentation. As the Applicant has no documentation to prove that he had any
dealings with US immigration officials, the RPD was unable to determine on a
balance of probabilities that the Applicant ever returned to Somalia from the US, which would render
moot his claim that he was kidnapped in Kismayo in 2008.
[11]
The
RPD also found implausible the Applicant’s statement that, until the kidnapping
in 2008, he had suffered no adverse incident since his return to Somalia in 2003, despite
“rampant civil unrest” which was known to involve the particular targeting of
minority groups. Even if believed, one incident of kidnapping does not constitute
persecution but is an act of generalized crime, to which all Somalis are
vulnerable. Therefore, the Applicant failed to show a nexus to the Convention
on the basis of race.
[12]
Moreover,
although the Applicant claimed to have spoken out against Islamist militias and
therefore to have a well-founded fear of persecution due to his political
opinion, he failed to mention this ground in his Personal Information Form
(PIF). The RPD found that this allegation was an embellishment, designed to
bolster his claim. Based on “the whole of the [Applicant’s] testimony,” the RPD
concluded that the Applicant did not face a serious possibility of persecution
on Convention grounds under section 96, nor did he face a personalized risk
under section 97.
ISSUE
[13]
The
Applicant raises the following issue:
Whether the RPD made its
findings in a perverse or capricious manner or without regard to the evidence
before it.
STATUTORY PROVISIONS
[14]
The
following provisions of the Act are applicable in these proceedings:
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear
of persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in need of protection
97. (1) A person in need of
protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
[…]
Credibility
106. The Refugee Protection Division must take into account, with respect
to the credibility of a claimant, whether the claimant possesses acceptable
documentation establishing identity, and if not, whether they have provided a
reasonable explanation for the lack of documentation or have taken reasonable
steps to obtain the documentation.
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Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui, craignant avec raison d’être persécutée du fait de
sa race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité
et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection
de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à protéger la personne qui se
trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la
personne qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
[…]
Crédibilité
106. La Section de la
protection des réfugiés prend en compte, s’agissant de crédibilité, le fait
que, n’étant pas muni de papiers d’identité acceptables, le demandeur ne peut
raisonnablement en justifier la raison et n’a pas pris les mesures voulues
pour s’en procurer.
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[15]
The
following provisions of the Refugee Protection Division Rules,
SOR/2002-228 (Rules), are applicable in these proceedings:
Documents
establishing identity and other elements of the claim
7. The claimant must provide acceptable
documents establishing identity and other elements of the claim. A claimant
who does not provide acceptable documents must explain why they were not
provided and what steps were taken to obtain them.
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Documents
d’identité et autres éléments de la demande
7. Le demandeur d’asile
transmet à la Section des documents acceptables pour établir son identité et
les autres éléments de sa demande. S’il ne peut le faire, il en donne la
raison et indique quelles mesures il a prises pour s’en procurer.
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STANDARD OF REVIEW
[16]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[17]
At
issue are the RPD’s findings of fact and its treatment of the evidence. The
appropriate standard of review is reasonableness. See Aguebor v Canada
(Minister of Employment and Immigration) (1993), 160 NR 315, 42 ACWS (3d)
886 (FCA); and Ched v Canada (Minister of Citizenship and Immigration), 2010 FC 1338 at
paragraph 11.
[18]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph
47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
ARGUMENTS
The Applicant
The RPD’s Negative Credibility
Findings Are Unreasonable
[19]
The
Applicant says that he is a member of the Ashraf clan, a minority clan
persecuted by stronger clans and by the militia. There is no central government
in Somalia and therefore no state
protection to members of this clan. Contrary to the Decision, the Applicant
correctly identified the sub-clans that comprise the Ashraf as Hussein and Hassan,
which originate from the Samran, and he correctly identified Fatima, the
daughter of the Prophet Muhammad, as the one from whom all clans originate.
This information is consistent with the country documentation.
[20]
The
Applicant argues that, when the RPD asked him to explain the origins of the
clan name Ashraf, the question was phrased in such a way that the Applicant misunderstood
and provided the literal meaning of the word, which is “respect.” The Applicant
also contends that he was able to identify the “key areas” where Ashraf clan members
reside and that it was unreasonable for the RPD to expect him to name “all” of
the places where they reside. Finally, when the RPD asked the Applicant for his
name, it asked only for the Applicant’s “personal” name. This is why the
Applicant did not give his lineage, which includes the name “Sharif” as do all
Ashraf male names. The Applicant argues that the RPD’s finding that his answers
were inaccurate and his membership in the Ashraf clan was not credible is
unreasonable and constitutes a reviewable error.
[21]
The
Applicant also submits that it was unreasonable for the RPD to assign little
weight to the witness’ testimony regarding the Applicant’s identity. The
witness testified that she was certain that he was who he claimed to be and
that he was Ashraf. She and the Applicant have mutual relatives with whom she
has remained in contact and who further confirmed the Applicant’s identity. To
afford little weight to this evidence, which was central to and clearly
corroborated the Applicant’s claim, constitutes a reviewable error.
[22]
The
Applicant argues that he fulfilled his obligation under Rule 7 and section 106
of the Act. He provided a detailed explanation for his inability to obtain
documentation to prove his stay in the US and a lengthy account of his attempts to do to
so. He explained that he failed to obtain documents from the US Immigration and
Naturalization Service (INS) as he did not have his client identification or
any other information regarding his case other than his name. He explained that
he did not remember his US attorney’s name and was
unable to find her from the address he had for her, and so he concluded that
she had moved. He was unable to obtain documents from his former employers in
the US because he did not have
their contact information; he believes their business to be defunct. The
Applicant testified that he has a son, born in 2005 in Somalia, and he provided a
detailed description of his wedding in 2003—both of which corroborate his claim
that he did return to Somalia in 2003. In light of
his detailed explanation and the fact that he does not have any right of
residency or citizenship in any country other than Somalia, the Applicant argues
that the RPD’s conclusion amounts to a reviewable error.
[23]
The
Applicant contends that the RPD, in not considering all evidence led by counsel
at the hearing, has ignored relevant evidence on the record. Its determination
that the Applicant did not have good grounds for fearing persecution is flawed
and constitutes a reviewable error. See Owusu-Ansah v Canada (Minister of Employment
and Immigration)
(1989), 8 Imm LR (2d) 106, [1989] FCJ No 442 (QL) (FCA).
The Respondent
The
Applicant Failed to Establish His Claim under Sections 96 and 97
[24]
The
RPD found that the Applicant’s claim was neither credible nor well-founded. It
stated: that the Applicant had failed to establish a nexus to any Convention
ground; that the Applicant’s claim of persecution based on political opinion
was an embellishment; that the Applicant’s testimony that he lived in Somalia without
incident for five years despite the civil unrest was implausible; and that
there is no indication that anyone is currently looking for the Applicant in
Somalia or that his brothers in Somalia are being persecuted. None of these
findings are challenged by the Applicant and are dispositive of the
application.
[25]
The
Applicant failed to establish his identity through geographical origin because
of his limited knowledge of the Ashraf clan and contradictory testimony. The
Applicant could name only one of the seven sub-clans of the clans Hussein and
Hassan. The RPD reasonably concluded that he did not know them. Contrary to the
Applicant’s argument, the RPD drew a negative inference because the Applicant
could not name many of the places where Ashraf clan member reside, not
because the Applicant could not name them all. The Applicant did not
know that “Ashraf” was the title given to Fatima’s sons by the Prophet Muhammad.
It was reasonably open to the RPD to draw a negative inference from the
Applicant’s failure to include the name “Sharif” when asked to state his full
name, even if a different inference was possible. See Krishnapillai v Canada (Minister of
Citizenship and Immigration), 2007 FC 563 at paragraph 11. Contrary
to the Applicant’s argument, he did not state at the hearing that his
grandfather’s name was “Warsame Sharif” and he did not explain to the RPD that,
in asking if the RPD wanted him to provide his lineage, he was really asking if
the RPD wanted him to state his full lineage name, which includes his grandfather’s
name.
[26]
In
addition, the Applicant failed to provide a reasonable explanation for his lack
of documentary evidence regarding his identity. He lived in the US for three years and had
extensive dealings with US immigration authorities. At the hearing, the
Applicant stated that he made no effort to obtain documents from US
authorities, despite having one-and-a-half years to do so, and he also made no
effort to contact his former employer at the halal butcher shop in Minnesota, despite believing that
the shop was still in operation. The Applicant’s arguments that he contacted
the INS, that he tried unsuccessfully to find his US attorney using an old
address and that he believed the butcher shop to be out-of-business are
unsupported by the evidence. The extent of the Applicant’s efforts was to
contact a former friend to ask if he knew the name and address of the US attorney, but the
friend could not provide any useful information. The RPD’s finding that the
Applicant did not give a reasonable explanation for his lack of
documentation or take reasonable steps to obtain the documentation, as is
required under section 106 of the Act, was grounded in the evidence before the
RPD.
[27]
Finally,
the testimony of the witness was properly given little weight, considering her
lack of interaction with the Applicant in Somalia in 1995 and in Canada in recent years. Her testimony that she
knows the Applicant is not determinative of the Applicant’s identity,
particularly in light of the RPD’s other concerns. However, even if the RPD
erred in any of its determinations regarding the Applicant’s identity, these
errors are not determinative of the application.
ANALYSIS
[28]
The
Applicant has based this review application upon errors made by the RPD with
respect to his personal identity.
[29]
My
review of the Certified Tribunal Record (CTR) suggests that the Applicant has
good grounds for saying that some of the findings in paragraph 4 of the Decision
are mistaken. The Applicant did demonstrate an awareness of sub-clans, he did
know the origin of the clan name “Ashraf” and the confusion over his full name
was really caused by the RPD and not the Applicant. He was able to name some of
the communities where the Ashraf clan are known to settle, but not all of them.
All in all, I think the RPD did not have strong grounds for the negative
inference it drew concerning the Applicant’s knowledge of the Ashraf clan and
alleged contradictions.
[30]
On
the other hand, I do not think it can be said that the RPD was unreasonable as
regards the witness evidence that is dealt with in paragraph 5 of the Decision.
The CTR shows an extremely brief encounter between the witness and the
Applicant long ago when the Applicant was a young boy. In effect they just said
“hi” to each other, and there was no significant personal interaction to ground
the identification of the Applicant so many years later. The witness herself
had not been initially convinced that the Applicant was who he said he was, and
she was convinced by others to change her mind. The RPD was correct in
its findings that she emphasized his eyes and that there was a “lack of
interaction with the claimant both in 1995 and the present.”
[31]
In
summary, the RPD made some mistakes with regard to the Applicant’s personal and
national identity, but its doubts were not without a basis.
[32]
In
my view, however, the errors made in this regard do not assist the Applicant
because, as the RPD goes on to point out, the Applicant also failed to
establish that he had a credible and well-founded claim to protection. The Applicant
does not take issue with the RPD’s significant other findings in this regard. He
failed to establish the alleged persecution, and he failed to establish his
status in the US.
[33]
The
Applicant is required, pursuant to Rule 7 of the Rules and section 106 of the
Act, to make “reasonable” efforts to document his identity.
[34]
With
respect to the Applicant’s provision of identity documentation, I refer to the
decision of Justice Marc Nadon, then of the Federal Court, in Kante,
above, at paragraph 8. Justice Nadon stated that “an
Applicant must come to a hearing with all of the evidence that he is able to
offer and that he believes necessary to prove his claim” (my emphasis). The
RPD accepted that there would be no documents available from Somalia and examined
the Applicant’s personal and national identity by other means. However, there
was no acceptable reason why the Applicant should not have provided
documentation about the years he spent in the US, his interaction with US
authorities and his present status in that country.
[35]
I do not believe that the Applicant has provided “all of the
evidence that he is able to offer,” nor has he “provided a reasonable
explanation for the lack of documentation or have taken reasonable steps to
obtain the documentation” as he is bound to do under section 106 of the Act.
Setting aside the alleged efforts reported by the Applicant in his affidavit,
which was not before the RPD, the record indicates that the Applicant did not
contact US immigration authorities to obtain documentation regarding his
identity and his status in the US. He claims that he feared that such an inquiry
would trigger his deportation from Canada. However, this is a
concern that he could easily have addressed with his lawyer, who would have
been able to reassure him that American immigration officials have no power to
deport him from Canada. Similarly, a request for copies of the documentation in
the hands of American immigration officials could have been carried out by his
lawyer. Even if the attempt was unsuccessful, the effort would stand in the
Applicant’s favour. Also, with respect to the Applicant’s employer at the halal
butcher shop, it is clear that the Applicant did not even go so far as to find
out if the business was still operational, let alone request a letter attesting
to his alleged activities in the US. The Applicant did not adduce “all of the
evidence that he is able to offer.” He did not fulfill his obligations under
section 106 of the Act as regards his experience in the US.
[36]
The
RPD’s general finding that the Applicant’s claim was not credible or
well-founded was entirely reasonable given the evidence before it. The
Applicant failed to establish a credible basis for section 96 persecution or
section 97 risk, even if he is who he says he is.
[37]
In
addition, the Applicant simply fails to challenge important aspects of the Decision
such as nexus, embellishment concerning political opinion, living in Somalia for five years without
incident and lack of evidence that anyone is currently looking for him and his
brothers. He also fails to challenge the forward-looking findings that he is
not at risk if he returns to Somalia.
[38]
When
read as a whole, the Decision is clearly reasonable, notwithstanding the
mistakes made about the Applicant’s identity, as outlined above.
[39]
Counsel
for both parties agree that there is no question for certification and the
Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
Judge