Date: 20040812
Docket: IMM-1678-03
Ottawa, Ontario, August 12, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
DEQ MOHAMED ALI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Deq Mohamed Ali claims to be a citizen of Somalia. His refugee claim was rejected by the Refugee Protection Division of the Immigration and Refugee Board because the presiding member found that Mr. Ali failed to establish his identity.
[2] Mr. Ali seeks to have this decision set aside, asserting that the Board misconstrued the evidence on some points, and ignored evidence on other points. Further, Mr. Ali says that the Board acted unfairly in failing to alert him to the fact that the presiding member intended to rely on his own specialized knowledge regarding the format of Somalian 'Tesseras', or national identification cards. Mr. Ali says that he was thus denied the opportunity to make representations as to the reliability or this information, or to provide an explanation in support of his own position in this regard.
Standard of Review
[3] The majority of the disputed findings are findings of fact. As such, the standard of review is patent unreasonableness: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[4] The alleged failure of the Board member to alert Mr. Ali to the fact that he intended to rely on his own specialized knowledge regarding the form of Tesseras raises an issue of procedural fairness. Questions of procedural fairness are reviewed against a standard of correctness: Ha v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 174.
Issues
[5] Mr. Ali identifies numerous alleged errors on the part of the Board. In my view, these issues can be conveniently grouped into three categories:
1. Was the Board's reliance on its own specialized knowledge regarding the format of Somali Tesseras unfair?
2. Was the Board's finding that Mr. Ali did not provide a satisfactory explanation for his failure to produce any documentary proof of his identity patently unreasonable? and
3. Were the Board's findings with respect to the credibility of the witnesses patently unreasonable?
Was the Board's reliance on its own specialized knowledge regarding the format of Somali Tesseras unfair?
[6] The Board's procedural fairness obligations with respect to its ability to rely on extrinsic information are codified in Rule 18 of the Refugee Protection Division Rules, which 18 states:
Notice to the parties - Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information or opinion; and
(b) give evidence in support of their representations.
[7] In this case, Mr. Ali testified that he had been issued a Tessera, but that he had not had the card in his possession for many years. He explained that he left the card behind when he fled his home when war broke out.
[8] Mr. Ali was then asked by the presiding member to describe the card, which he did. At no time did the presiding member indicate that he had any particular knowledge as to the usual form of the Tessera, or any concerns with respect to the description offered by Mr. Ali.
[9] However, in its reasons, the Board found that Mr. Ali's description of the Tessera was seriously flawed, stating:
...when asked to describe it, you described a document that is unlike any document I have ever seen in terms of a Somali Tessera, and I have seen hundreds. I have been a Board member for some eight and a half years, Mr. Ali, and I've seen hundreds of Tesseras...
[10] Thus the Board clearly used its specialized knowledge as to the physical characteristics of Somali identity cards to make an adverse finding against Mr. Ali, without first giving him an opportunity to make representations as to the reliability and use of the information. This constitutes a procedural error, and a denial of natural justice: Kabedi v. Canada (Minister of Citizenship and Immigration), 2004 FC 442.
[11] Counsel for the respondent concedes that the Board's finding in this regard is difficult to support. However, counsel argues that this error is not sufficiently material, by itself, to warrant setting aside the Board's decision. While I am satisfied that this finding was fairly central to the Board's conclusion, I do not need to determine if, by itself, the error provides a sufficient basis to set aside the Board's decision, for as is set out below, I am satisfied that the Board committed other errors.
Was the Board's finding that Mr. Ali did not provide a satisfactory explanation for his failure to produce any documentary proof of his identity patently unreasonable?
[12] The Board indicated in its decision that it was not satisfied with Mr. Ali's explanation for his inability to produce any identity documents. In support of this finding, the Board referred
only to Mr. Ali's statement that there was no government in existence in Somalia at the operative time from whom he could obtain identity documents. This was, however, only part of Mr. Ali's explanation. In his testimony, Mr. Ali also explained that he had been required to flee Mogadishu during the war, and that he had been more concerned with his personal safety when he was fleeing, than he had been with collecting his documents.
[13] It was certainly open to the Board to reject this evidence, but it was not open to the Board to simply ignore it. Mr. Ali's explanation is reasonable on its face, and the evidence was central to the issue of identity. Accordingly, I am of the view that the Board had an obligation to address Mr. Ali's explanation in its reasons, and to indicate why it did not find the explanation convincing.
[14] As Justice Pelletier said in Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124 (T.D.): "It is within [the Board's] mandate to disbelieve Mr. Veres' explanation for the absence of copies of important documents. It is not within its mandate to ignore a reasonable explanation and to treat the evidence as though the explanation had never been given." Thus the failure of the Board to address Mr. Ali's explanation for his lack of identity documents constitutes a further reviewable error:
Were the Board's findings with respect tothe credibility of the witnesses patently unreasonable?
[15] Two witnesses testified at Mr. Ali's refugee hearing - Mr. Ali himself, and Farah Deqa. Ms. Deqa allegedly attended school with Mr. Ali in Somalia, and was produced to support his claim of identity. The Board found that neither Mr. Ali nor Ms. Deqa was a credible witness, based primarily on the alleged inconsistencies in their stories.
[16] I agree with the respondent that having seen the witnesses, the Board was in the best position to determine the credibility of each witness. Having said that, however, and having had the opportunity to review the entire transcript of the hearing, it is evident that in a number of instances, the Board identified inconsistencies in the witnesses' stories where none really existed.
[17] By way of example, there was an issue as to how well Mr. Ali and Ms. Deqa knew each other while they were at school together. In its reasons, the Board stated: "You said you knew her well, yet she said she didn't know you hardly at all except to say hello."
[18] It is true that when the issue was first raised with Mr. Ali, he was asked if he knew Ms. Deqa well, to which he answered in the affirmative. However, the issue of the closeness of the relationship was then explored with Mr. Ali at some length by his own counsel, by the Refugee Protection Officer and by the presiding Member. It very quickly became clear from Mr. Ali's testimony that he and Ms. Deqa had little more than a passing acquaintance. Both knew who the other was, and each would say hello to the other when they saw each other at school. However, Mr. Ali was clear that he did not know much about Ms. Deqa. For example, he did not know where she lived, what her hobbies were, or what she liked to do after school.
[19] In my view, it was unfair of the member to take one sentence out of what was a lengthy description of the relationship between Mr. Ali and Ms. Deqa, and to use this sentence, in isolation, to find an inconsistency with the testimony of Ms. Deqa. When Mr. Ali's testimony on this point is viewed fairly, in its entirety, there is no inconsistency.
[20] Similarly, the Board found an inconsistency between the testimony of Mr. Ali and that of Ms. Deqa, in relation to how Mr. Ali was able to re-establish contact with Ms. Deqa upon his arrival in Canada. Once again, when the testimony of the two individuals is considered in its entirety, there is really no inconsistency between the two versions of events.
[21] I do not intend to review each of the other disputed findings, other than to say that when one reads the Board's decision in light of the evidence that was before the Board, one is left with the overwhelming impression that the presiding member was overly zealous in his efforts to identify any possible inconsistency in the testimony of the two witnesses, so as to discredit Mr. Ali.
[22] As a result, even taking into account the highly deferential standard of review in issue in this case, I am satisfied that the Board's decision must be set aside.
Certification
[23] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious questionof general importance is certified.
"Anne L. Mactavish" Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1678-03
STYLE OF CAUSE: DEQ MOHAMED ALI v. MCI
DATE OF HEARING: August 11, 2004
PLACE OF HEARING: Ottawa, Ontario.
REASONS FOR ORDER
AND ORDER: Madam Justice Mactavish
DATED: August 12, 2004
APPEARANCES BY:
Mr. Byron E. Pfeiffer FOR THE APPLICANT
Ms. Lynn Marchildon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Byron E. Pfeiffer
Barrister & Solicitor
157 McLeod Street
Ottawa, Ontario.
K2P 0Z6 FOR THE APPLICANT
Ms. Lynn Marchildon
Department of Justice
Room 2206, East Memorial Building
284 Wellington Street
Ottawa, Ontario
K1A 0H8 FOR THE RESPONDENT