Docket: IMM-2811-14
Citation:
2015 FC 643
Ottawa, Ontario, May 19, 2015
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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DEEQ MUNYE ABDI
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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
[1]
The applicant seeks judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board of Canada [Board], dated March 18, 2014, which allowed the Minister’s
application pursuant to section 109 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [Act] to vacate a prior decision made in 2005
which had granted the applicant refugee status.
[2]
For the reasons that follow, the application is
dismissed.
Background
[3]
The applicant is a citizen of Somalia. He arrived in Canada on September 9, 2004, and claimed refugee protection based on
his nationality, membership in the Tunni clan and allegations that his land had
been taken over by the militia who were seeking to “eliminate” him. The
decision granting the applicant refugee protection was based on an expedited
interview by a Refugee Protection Officer [RPO] resulting in an expedited
report, dated March 4, 2005. The report noted that:
The claimant is
a 34-year old Somali man belonging to the Tunni clan. His father was killed while
trying to escape Somalia in 1991. The claimant was able to flee but returned to
Somalia in 2001 to discover that the family’s farm had been taken over by a
militia leader. The claimant appealed to the self proclaimed governor of the
area for assistance but was denied. The claimant fled Somalia for the second
time when he learned that the militiamen occupying his family land wished to
eliminate him.
[4]
The report noted that the applicant had an
identity witness, who was a friend of his father, and who the applicant met at
a mosque in Toronto.
[5]
The report also noted that the applicant was
knowledgeable about the Tunni clan. The RPO stated: “I
have no reason to doubt the claimant’s personal, ethnic, tribal, religious or
national identity.” Finally, the report stated that the documentary
evidence suggests that the Tunni are a vulnerable, minority clan in Somalia,
that the claimant would be in danger if he were to return and that this danger
is “compounded by the fact that the claimant tried to
regain his family land from a militiaman who was occupying it, and that has led
to a threat to the claimant’s life which is specific to him and additional to
the mere fact that he is Tunni.”
[6]
In 2005 the Board accepted the applicant’s claim
noting that he “was found by a perceptive RPO to be
believable. His evidence is corroborated by one witness. His tribe is of a
minority which lives in some danger.”
[7]
Based on new information revealed by finger
print analysis, the Minister sought to vacate the applicant’s refugee status.
The new information included that the applicant had entered the United States [U.S.]
in 1996 and resided there until 2004 and, as a result, was not in Somalia at
the time of the alleged threat to him and his land; the applicant had several
aliases in the U.S.; and, the applicant had an extensive criminal record in the
U.S.
The 2014 Decision
of the Board
[8]
The Board found that the applicant’s positive
refugee decision was obtained as the result of his misrepresentation and
withholding of material facts relating to a relevant matter and that there was
no other sufficient evidence that was considered by the Board in 2005 to
justify the applicant's refugee status.
[9]
The Board noted that the applicant admitted the
misrepresentations but argued that the misrepresentations were not material and
that the evidence of the identity witness was sufficient to justify refugee
protection based on his nationality and ethnicity, which are facts not affected
by his misrepresentations.
[10]
The Board disagreed and found that the
applicant’s misrepresentation about his whereabouts between July 1996 and 2004
was indeed material and relevant. The Board noted that the 2005 Board decision
did not indicate that the allegation of past persecution in Somalia was not
germane and it should have been regarded as relevant to the positive refugee
determination.
[11]
The Board found that the claim was accepted in
2005 because the Board had found that the applicant was a credible witness with
respect to all the facts alleged, including his Tunni ethnicity and his
alleged persecution. If the Board had known that the applicant was not even in
Somalia in 2001, the Board would have found that the applicant was not
credible.
[12]
The Board also found that the testimony of the
identity witness only established that the applicant is Somalian, not that he
is a member of the Tunni tribe, noting:
[T]here is
nothing in the text of the expedited report before me as to what evidence was
provided by AH [the identity witness] at the expedited interview to verify that
AH provided any testimony at all to the RPD about the respondent’s [now the
applicant] ethnicity. The expedited report only says that AH testified and that
he knew the respondent’s father and that AH’s testimony was consistent with
information provided by the respondent.
[13]
The Board attributed no weight to the
applicant’s own testimony at the 2014 hearing where he indicated that the
identity witness had testified at the expedited hearing in 2005 that the
applicant is Tunni.
[14]
The Board found that the applicant was not a
credible witness with respect to his ethnicity, noting that he did not claim to
be Tunni in his U.S. asylum claim or with U.S. authorities, despite that in his
Canadian claim for protection, he alleged his ethnicity to be one of the most
important reasons for his fear of returning to Somalia.
The Standard of Review
[15]
The issues in the
present case are questions of mixed fact and law. The reasonableness standard
applies; the issue is whether the Board’s decision “falls within ‘a range of possible, acceptable outcomes which
are defensible in respect of the facts and law’ (Dunsmuir, at para 47). There
might be more than one reasonable outcome. However, as long as the process and
the outcome fit comfortably with the principles of justification, transparency
and intelligibility, it is not open to a reviewing court to substitute its own
view of a preferable outcome” (Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at
para 59, [2009] 1 S.C.R. 339).
[16]
In Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14-16,
[2011] 3 S.C.R. 708, the Supreme Court of Canada elaborated on the
requirements of Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
noting that reasons are to “be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” and that courts may “look
to the record for the purpose of assessing the reasonableness of the outcome”.
[17]
It is also well-established that boards and
tribunals are ideally placed to assess the credibility of refugee claimants (Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 at para 4, 160 NR 315 (FCA)) and, given its role as
trier of fact, the Board’s credibility findings should be given significant
deference (Lin v Canada (Minister of Citizenship and Immigration),
2008 FC 1052 at para 13, [2008] FCJ No 1329; Fatih v
Canada (Minister of Citizenship and Immigration),
2012 FC 857 at para 65, 415 FTR 82).
Relevant
statutory provision
Section 109 of the Act provides:
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109. (1) The
Refugee Protection Division may, on application by the Minister, vacate a
decision to allow a claim for refugee protection, if it finds that the
decision was obtained as a result of directly or indirectly misrepresenting
or withholding material facts relating to a relevant matter.
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109. (1) La
Section de la protection des réfugiés peut, sur demande du ministre, annuler
la décision ayant accueilli la demande d’asile résultant, directement ou
indirectement, de présentations erronées sur un fait important quant à un
objet pertinent, ou de réticence sur ce fait.
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(2) The Refugee
Protection Division may reject the application if it is satisfied that other
sufficient evidence was considered at the time of the first determination to
justify refugee protection.
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(2) Elle peut
rejeter la demande si elle estime qu’il reste suffisamment d’éléments de
preuve, parmi ceux pris en compte lors de la décision initiale, pour
justifier l’asile.
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(3) If the
application is allowed, the claim of the person is deemed to be rejected and
the decision that led to the conferral of refugee protection is nullified.
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(3) La décision
portant annulation est assimilée au rejet de la demande d’asile, la décision
initiale étant dès lors nulle.
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The Issues
[18]
This application for judicial review raises two
related issues:
•
Whether the Board
erred in determining that the 2005 decision granting the applicant refugee
protection was obtained as a result of a misrepresentation of a material fact
relating to a relevant matter?
•
Whether the Board
erred in determining that there was no other sufficient evidence to justify
refugee protection pursuant
to ss 109(2) despite the misrepresentation?
The
Applicant’s position
[19]
The applicant argues that his misrepresentations
are not material or relevant because he is a Tunni from Somalia and, on this basis alone, his refugee status would or should have been granted in 2005. The
applicant submits that an identity witness confirmed that he is from Somalia and is a Tunni. Therefore, the fact that he was not in Somalia at the time of the
events he claimed, i.e., the threat from the militiaman who had taken over his
family’s farm, is of no consequence.
[20]
The applicant argues that the Board erred in
speculating about what the previous Board would have concluded in 2005 if there
had been no misrepresentation. The Board in 2014 was required to consider the
evidence that was available in 2005 and then determine whether that evidence
would have been sufficient to justify refugee protection. The applicant submits
that the Board failed to do so and that the evidence in 2005 would have
justified refugee protection.
[21]
The applicant claims that it was unreasonable
for the Board in 2014 to assume what would have been relevant to the 2005 Board
based on the RPO’s report and to rely on the fact that in 2005 the Board did not
indicate that the allegation of persecution was not germane. The applicant
submits that documentary evidence should be considered for what it does say,
rather than what it does not say (Bagri v Canada (Minister of Citizenship
and Immigration), [1999] FCJ No 784, 168 FTR 283; Mahmud v Canada
(Minister of Citizenship and Immigration), [1999] FCJ No 729, 167 FTR 309; and, Njeru v Canada, 2009 FC 1281,
[2009] FCJ No 1641).
[22]
The applicant argues that even though he spent
years in the U.S., including the time period he alleged persecution in Somalia,
and had a criminal history in the U.S., this would not necessarily have
resulted in inadmissibility to Canada. His claim for refugee protection based
on the persecution of Tunni in Somalia would have still been considered, albeit
not in an expedited manner.
[23]
The applicant also argues that the Board erred
in assessing his credibility based on his past misrepresentations. He admitted
that he made misrepresentations in the past, but this should not have tainted
his testimony at the 2014 hearing. Moreover, even where an applicant is not
credible, the Board must consider the documentary evidence (Baranyi v Canada
(Minister of Citizenship and Immigration), 2001 FCT 664, [2001] FCJ
No 987 [Baranyi]; Voytik v MCI, 2004 FC 66, [2004] FCJ No 50).
[24]
The applicant submits that the objective
documentary evidence establishes that he is a person in need of protection
under sections 96 and 97, even if he is not credible. The test for protection
pursuant to section 97 is objective, based on the applicant’s profile and the
documentary evidence before the Board (Maimba v Canada (Citizenship and
Immigration), 2008 FC 226, [2008] FCJ No 296 [Maimba]; Fixgera
Lappen v Canada (Citizenship and Immigration), 2008 FC 434, [2008] FCJ No
566 [Lappen]; Rathinasigngam v Canada (Minister of Citizenship and
Immigration), 2006 FC 988, [2006] FCJ No 1247; and, Kule v Canada
(Minister of Citizenship and Immigration), 2006 FC 770, [2006] FCJ No 996).
The applicant reiterates that he is a Tunni from Somalia and that the country
conditions in 2005 would have led to the finding that he was in need of
protection.
[25]
The applicant submits that his testimony
indicated what the identity witness had said in 2005 and this should have been
considered along with the report of the RPO which indicated that the identity
witness confirmed he is from Somalia and a Tunni.
The Respondent’s
Position
[26]
The respondent submits that Board carefully
considered the evidence before it, including the report of the RPO in 2005
which indicates that the threat from the militiaman was an integral part of the
applicant’s claim. The claim was not based solely on his nationality or his
ethnicity.
[27]
The applicant’s Personal Information Form [PIF],
submitted in 2004, which set out his claim and reason for refugee protection,
is part of the record and demonstrates that the applicant did not disclose that
he was ever in the U.S. The PIF recounts the applicant’s claim that he left Somalia
in 1991 and later returned to Somalia in 2001, but fled due to the occupation
of his family farm and the threats to his life from the militiaman in 2003 and
2004.
[28]
The respondent notes that due to the
untruthfulness of this information, it is not known when the applicant actually
left Somalia. However, he was clearly not in Somalia at the time of the alleged
threat.
[29]
The respondent submits that the Board reasonably
found that the applicant misrepresented or withheld material facts relevant at
the time his refugee claim was made. The Board made reasonable inferences of
fact. The applicant is merely challenging how the Board weighed the evidence.
[30]
The respondent submits that the 2005 decision
reveals that the applicant was found by the RPO to be believable. It was
reasonable for the Board to infer that the 2005 decision referred to the
believability of all of the facts the applicant had claimed, including the
allegation of persecution and threats to his life.
[31]
The Board did not speculate, rather it made the appropriate
inferences regarding whether the claim for refugee protection would have been
successful if there had been no misrepresentations. The respondent points out
that what is now known is that the applicant left Somalia at some time before
1996, although it is not known how long before, and lived in the U.S. for at
least eight years before arriving in Canada. The applicant was not in Somalia at the time of the alleged persecution that caused him to leave. The respondent
submits that being Tunni, even if that were established, and Somalian is not
sufficient on its own to justify refugee protection.
[32]
The Board also noted that the identity witness
in 2005 did not confirm that the applicant was Tunni. The identity witness only
referred to knowing the applicant’s father in Somalia. The 2005 report notes
only that the applicant was knowledgeable about the Tunni clan.
[33]
In addition, the Board’s negative credibility
inferences regarding the applicant’s ethnicity were reasonably based on the
discrepancy between his Canadian refugee claim and his U.S. asylum claim.
[34]
The respondent
submits that there must be more than country condition evidence to establish
persecution (Canada (Minister of Public Safety and
Emergency Preparedness) v Gunasingam, 2008 FC 181,
[2008] FCJ No 234 [Gunasingam]; Coomaraswamy v Canada (Minister of
Citizenship and Immigration), 2002 FCA 153, [2002] 4 FC 501; Ray v
Canada (Minister of Citizenship and Immigration), [2000] FCJ No 849, 191
FTR 316; and, Arumugam v Canada (Minister of Citizenship and Immigration),
2005 FC 1449, [2005] FCJ No 1773). In this
case, there is no evidence to link the applicant to possible persecution in
Somalia in 2005.
[35]
The respondent adds that Maimba and Lappen
are distinguishable because, in those cases, the identity of the claimant
was not in dispute. In the present case, the Board did not accept that the
applicant was a member of the Tunni tribe, which was fundamental to his claim
for refugee protection.
The Board reasonably found that the
2005 decision granting the applicant refugee protection was obtained as a
result of a misrepresentation of a material fact related to a relevant matter
[36]
The approach to an application to vacate a
decision granting refugee status involves two steps: first, the Board must find
that the decision granting refugee protection was obtained as a result of a
direct or indirect misrepresentation, or of withholding material facts relating
to a relevant matter; second, the Board should consider whether there remains
sufficient evidence that was considered at the time of the positive
determination to justify refugee protection and, if so, the Board may reject
the application to vacate (i.e. confirm the refugee status), notwithstanding
the misrepresentation.
[37]
In the present case, the applicant admitted that
he misrepresented facts and withheld that he was in the U.S. from 1996-2004. He
argues, however, that his misrepresentations are not material or relevant
because the basis for his claim for refugee protection is that he is Somalian
and of Tunni ethnicity and these facts are unchanged by his misrepresentation
and constitute sufficient evidence to justify his refugee protection.
[38]
I do not accept the applicant’s submission that
his misrepresentations regarding his eight or more years spent in the U.S., his
aliases, or his criminal history are not material facts related to a relevant
matter and that all that is relevant is that he is a Tunni from Somalia. The
applicant’s refugee claim was based on allegations that are now known to be
untrue. It is not possible to reconstruct any credible history given that the
applicant was not in Somalia at the time of the alleged threats to his life
regarding the occupation of his land, an allegation that was clearly part of his
claim for refugee protection.
[39]
The Board did not merely speculate about what
would have been decided in 2005. The Board reviewed the evidence available in
2005 and reasonably found that the applicant had established he was from Somalia, which was corroborated by an identity witness. However, the 2005 report does not
state that the same identity witness confirmed that the applicant is a Tunni.
Nor does the applicant’s own evidence at the 2014 hearing indicate that the
identity witness stated he is a Tunni; the applicant’s testimony was vague and
evasive. Moreover, the applicant did not respond to questions about his current
knowledge of the Tunni clan.
[40]
The Board made reasonable inferences about the
likely outcome in 2005 if the facts had been known based on the principles of
refugee protection. As noted by the respondent, the applicant’s nationality and
membership in the Tunni clan, if that is true, is insufficient to justify
refugee protection.
[41]
Even the RPO report which the Board relied on in 2005 linked the applicant’s
claim to the specific threat he alleged, noting that the applicant’s danger
upon return was “compounded by the fact that the
claimant tried to regain his family land from a militia man who was occupying
it, and that has led to a threat to the claimant’s life, which is specific to
him and additional to the mere fact that he is Tunni.”
[42]
As noted by Justice Harrington in Gunasingam
at para 18:
Whether
considered under subsections 109(1) or 109(2), the member was wrong in
concluding that country conditions alone justified the granting of refugee
status. The claim must be personalized (Taj v. Canada (Minister of
Citizenship and Immigration), 2004 FC 707, [2004] F.C.J. No. 880, Canada
(Minister of Citizenship and Immigration) v. Fouodji, 2005 FC 1327, [2005]
F.C.J. No. 1614 and Coomaraswamy, above.
[43]
The personal aspect was the applicant’s claim
that he was persecuted, specifically his allegation of the threats made to him
by militiamen who occupied his land. Since he was not even in Somalia at the time of this alleged threat, the personal aspect was completely eroded. This
misrepresentation was clearly a material fact related to a relevant matter.
The Board
reasonably found that there was no other sufficient
evidence to justify refugee protection pursuant to ss 109(2) despite the
applicant’s misrepresentation
[44]
Subsection 109(2) permits the Board to reject
the application to vacate if the Board is satisfied that other sufficient
evidence was considered to justify the earlier refugee determination. The Board
has discretion; it is not required to reject the application to vacate even if
it is satisfied that there was other evidence to justify refugee protection.
However, in the present case, the Board was not satisfied that there was any
such evidence.
[45]
The evidence available in 2005 was limited to
the report of the RPO and Board’s brief endorsement of that report. The
applicant’s evidence in 2014 regarding his 2005 interview and the testimony of
his identity witness was evasive and reasonably found not to be credible.
[46]
The Board acknowledged the applicant’s explanation
that he did not disclose his Tunni ethnicity in his U.S. asylum application
because he did not understand U.S. procedures, but found that explanation to be
unreasonable. The Board’s finding that the applicant’s evidence regarding his
ethnicity was not credible was reasonably based on the inconsistencies between
his Canadian and U.S. asylum claims.
[47]
In addition, the Board probed the applicant at
the 2014 hearing regarding the evidence provided in 2005, which revealed that
the applicant was evasive in response to whether the identity witness confirmed
he is a Tunni or how the identity witness would know if he were Tunni. The
applicant was also evasive about whether he was questioned about his knowledge
of the Tunni clan.
[48]
The applicant’s argument that he is Somalian and
Tunni and that this is sufficient to support his refugee claim because the
country condition evidence would have supported the risk he faced, cannot
succeed, as noted above (Gunasingam at para 18).
[49]
In Gabor v Canada (Minister of Citizenship
and Immigration), 2010 FC 1162 at para 14, [2010] FCJ No
1446, Justice Zinn rejected a similar argument. In that case, an applicant who
was Roma asserted that once the Board
accepted that he was Roma, the Board was obligated to canvass objective country
condition materials despite the negative credibility finding. Justice Zinn
noted at para 15:
The applicant’s submission must fail in
light of the decision of the Federal Court of Appeal in Sellan v. Canada (Minister of Citizenship and Immigration), 2008 FCA 381, wherein, in answering a
certified question, the Court stated:
[W]here
the Board makes a general finding that the claimant lacks credibility, that
determination is sufficient to dispose of the claim unless there is independent
and credible documentary evidence in the record capable of supporting a
positive disposition of the claim. The claimant bears the onus of
demonstrating there was such evidence.
[50]
The applicant also relied on Baranyi for
the proposition that, even where an applicant is not credible, the Board must
consider the documentary evidence. However, as Justice O’Keefe noted in Baranyi
at para 14, citing Seevaratnam v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 694, 167 FTR 130:
[W]here the
only evidence linking the claimant to the persecution emanates from his or her
testimony, rejecting the testimony means there is no longer a link to the
persecution. It becomes impossible to establish a link between the person's
claim and the documentary evidence.
[51]
In the present case, the Board reasonably found
that the applicant lacked credibility with respect to his ethnicity. Given that
his allegation of persecution was found to be a misrepresentation, there was no
link between his claim and the documentary evidence and there was simply no
other credible evidence on the record to support his claim for refugee
protection.
[52]
As Justice
Harrington noted at the conclusion of his decision in Gunasingam at para
24: “It is simply wrong to
think one can gain entry to Canada on the strength of a lie.”
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