Docket: IMM-2664-15
Citation:
2016 FC 218
Ottawa, Ontario, February 17, 2016
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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HIBIL HASSAN
MAHDI
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(a.k.a.: MAHDI
HIBIL HASSAN)
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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
I.
Introduction
[1]
This is the judicial review of a rejected
refugee protection claim where the Applicant was said to have failed to
establish his identity. The Refugee Protection Division [RPD] made a “no credible basis” finding, the effect of which is to
preclude the Applicant from an appeal to the Refugee Appeal Division [RAD]
where the rights to review, to submit evidence and to receive a new decision
offer more relief to an appellant than judicial review in this Court.
[2]
In view of the remedy being granted - an
opportunity to appeal to the RAD - the Court will not canvass in detail either
the claim or the issue of the reasonableness of the decision on its merits.
II.
Background
[3]
The Applicant alleged that he was born in
Somalia to Ethiopian parents who held Ethiopian citizenship. He claimed Somali
ethnicity. His citizenship is an open issue.
[4]
The risk alleged is that he would be considered
a spy and a target for Al Shabaab. He claimed that he was detained and arrested
on account of his ethnicity and because he was suspected of being associated
with a rebel group.
[5]
The Applicant’s story of his travels and
travails to get to Canada is long and complicated. It involved detention in the
U.S. To establish identity, he submitted to the RPD the same documents
submitted to U.S. authorities.
[6]
The U.S. authorities were able, on the strength
of those documents, to establish the Applicant’s identity.
[7]
The RPD found that on a balance of probabilities,
the Applicant failed to produce sufficient credible evidence to establish his
personal identity as either a Somalian or Ethiopian – the first step in a
refugee claim without which there was no need to assess the remainder of the
claim.
[8]
Therefore, the RPD found at paragraph 28 that
the Applicant failed to produce sufficient credible evidence of identity.
It then went further in paragraph 30 to hold that there was no credible basis
for the claim. However, the RPD held at paragraph 28 that it did not have to
assess either persecution or need of protection.
III.
Analysis
[9]
The standard of review of a “no credible basis” finding is reasonableness (Hernandez
v Canada (Citizenship and Immigration), 2016 FC 144 at para 3). However,
such finding must be based on the absence of any credible evidence to support
the claim. In the present case, the only aspect of the claim that the RPD
examined was identity.
[10]
The finding of “no
credible basis” is one of great significance because it precludes the
usual right of an appeal to the RAD. It has been held to set a high threshold
(see Ramón Levaria v Canada (Citizenship and Immigration), 2012 FC 314,
214 ACWS (3d) 562 [Levaria]). It is a finding that cannot be either a
catch-all, a throwaway line or a summary of insufficiency and weighing of
evidence pros and cons.
[11]
A finding of “no credible
basis” is a finding that the evidence is devoid of any basis upon which
to support a positive finding (Levaria at para 19).
[12]
The RPD is not required to adopt the U.S.’s
finding on identity. However, unless it finds that the U.S. decision is so
devoid of merit that it is incapable of sustaining even its own finding, the
U.S. decision is at least some credible basis for a finding in favour of the
Applicant.
[13]
It was unreasonable to conclude that there was no
credible basis for the claim. I say nothing about the reasonableness of other
credibility conclusions which involved a weighing of evidence.
IV.
Conclusion
[14]
The Applicant has been wrongfully deprived of a
right of appeal by an unreasonable no credible basis finding.
[15]
In order to preserve the Applicant’s appeal rights,
I will order that the operation of the decision be suspended to allow the
Applicant to commence an appeal to the RAD within 30 days of this decision.
[16]
In the event that there is no appeal filed,
suspension shall expire. In the event that an appeal is filed, the Court will
dismiss this judicial review as moot without prejudice to any rights to seek
judicial review of the RAD’s decision.
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