Date: 19980130
Docket: IMM-749-97
BETWEEN:
LELA MOHAMED ALI and FATHIA ABULLA HASSAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning assigned to that term by subsection 2(1) of the Immigration Act.1 The decision of the CRDD is dated the 21st of January, 1997.
[2] Ms. Ali (the "principal applicant") claims to be a national of Somalia and to have been born in that country in September of 1972. Ms. Hassan (the "minor applicant") is the daughter of the principal applicant and was born in Tanzania in August of 1989. The applicants' claim to fear persecution on a Convention ground if they are required to return, in the case of the principal applicant, and to go, in the case of the minor applicant, to Somalia.
[3] The evidence of the principal applicant may be briefly summarized as follows. At eight years of age, she fled Somalia in the company of family members out of fear of persecution by reason of activities of her grandfather. She and her family members settled, illegally, in Kenya. In 1988, their illegal presence in Kenya was discovered and they were ordered, in 1989, to leave the country. Once again they fled, this time to Tanzania where once again they were without status. In the course of their flight to Tanzania, the principal applicant's father died. Two brothers left the family unit to, in the words of the principal applicant, "...seek their fortunes abroad". Another brother was apprehended by authorities in Tanzania and deported to Somalia. The principal applicant worked illegally. As a result of an affair with her employer, her daughter was born. The birth was not registered. In October of 1993, Immigration Officers in Tanzania were advised that she was working illegally and began to seek her out. As a result, she once again fled, arriving in Canada and making her refugee claim late in 1993.
[4] At the opening of the hearing before it, while the applicants were represented by counsel, the CRDD identified the issues before it. The presiding member stated:
| The most important question for this hearing relates to your identity, as you probably are aware. When people arrive in Canada using documents which are not their own, and when they do not present their documents to the officials at the border, or at least when they do not present official documents to the people at the border, it becomes very important for the hearing to be assured that the person appearing before them is in fact the person that they claim to be. And so the most important issue of this hearing will be question of identity. |
| And related to that, there is a provision in the Immigration Act that when documents are destroyed without a valid reason, it sometimes is necessary to have a unanimous decision of the panel as opposed to a normal proceeding when one positive decision is necessary only to make a positive decision. This may be an issue, but is not automatically an issue. |
| So we will need to explore why you destroyed the documents that you used to come to Canada. |
| There is also the question with regard to your child, who was born in Tanzania, and as to whether or not there is any claim which she has to reside in Tanzania. |
| In all refugee hearings, there is another concern, which is what we call credibility, and this means essentially whether or not all of the evidence before the panel is sufficient [sic] reliable and trustworthy that the panel is able to make a decision. In this regard, the way in which you answer will be important. If you don't know the answer to a question you are asked, it's important for you to say "I don't know". |
| If you have forgotten because time has passed, the answer to a question, you need to tell us that you have forgotten or you can't remember. What is important is that you not try to make up answers just to satisfy us, or give guesses to questions because you think you must respond. |
| Answer those things that you know and that you're clear about, listen carefully to questions and answer the questions that are asked, and then I think we'll get along just fine. Is that clear? |
| .... |
| One area regarding identity, counsel, it might be useful to canvass [sic] from your claimant the origins of the Bajuni people and the geographical regions in which they live in Somalia. And any traditions that may be specific to that particular tribe. .... |
| The second area I'd be interested in, is regarding her minor child, her daughter. If she knows who the father is, and if so, his nationality. And given the fact that she was born in Tanzania, if she undertook to register the birth with the authorities.2 |
[5] In finding against the applicants, the CRDD wrote:
| The central issues at the hearing were identity, credibility, and the claimants' status in Kenya and Tanzania. |
| ... |
| The panel members, are of the opinion, that the evidence presented at the hearing was not credible or trustworthy. |
[6] The CRDD noted what it considered to be irregularities in the principal applicant's passport. It concluded that the principal applicant provided no reasonable explanation for the irregularities. In the result, it gave no weight to the passport.
[7] The CRDD found the testimony of an "identity witness" to be of little aid. It therefore gave that testimony no weight.
[8] The CRDD expressed concern that the principal applicant was unable to speak the Somali language and, though the principal applicant testified that her mother was from the Bajuni clan, that she was unable to speak the Bajuni language. It rejected her explanations for her inability in these regards. It expressed concern regarding the principal applicant's minimal knowledge about the Ogaden clan, her father's clan, and the Bajuni clan. In the result, it concluded that the principal applicant had failed to establish her identity as a Somali national, as a member of the Ogaden clan, or as a person of the Bajuni clan who had lived among Bajunis.
[9] On the basis of the principal applicant's testimony and documentary evidence, the CRDD determined the minor applicant to have born in Tanzania and to be a national of that country, rather than of Somalia.
[10] The CRDD noted that Tanzania is a signatory to both the 1951 Convention on refugees and the related 1967 Protocol. Relying on Ilie v. Canada (Minster of Citizenship and Immigration)3, it expressed concern that the principal applicant failed to provide a satisfactory explanation for not claiming refugee status in Tanzania during the time she spent in that country. It wrote:
| In the opinion of the panel members, genuine Convention refugees seek out protection when they are beyond the reach of the oppressors and it is reasonably practical to do so. |
[11] In the result, the CRDD concluded:
| Having considered the totality of the evidence the members of the panel find that the principal claimant has failed to establish her identity as a citizen of Somalia. The panel members further find that the minor claimant is a national of Tanzania. The minor claimant has failed to establish any well-founded fear of persecution if she were to return to Tanzania. |
[12] Counsel for the applicants urged that the CRDD erred in failing to provide to the applicants procedural fairness and natural justice, both in the general manner in which the hearing of their claims was carried out and in more specific aspects, and erred in law and in a reviewable manner in reaching a number of the conclusions on which its ultimate rejection of the applicants' claims was based.
[13] There can be little doubt that the manner in which the applicants' claims before the CRDD were dealt with left much to be desired. But little, if any of the responsibility for that can be laid at the feet of the CRDD. The applicants' hearing commenced on the 13th of April, 1995 and continued, over a number of sessions into the autumn of 1996. When it finally concluded in the autumn of 1996, it was on the express understanding that counsel for the applicants would provide written submissions. Those submissions were not received by the time when the CRDD issued its decision on the 21st of January, 1997, well beyond the time fixed for written submissions and an extension granted with respect to that time.
[14] The applicants were remarkably ill-served by two separate counsel. Their first counsel, during the course of the proceeding, was suspended indefinitely by the Law Society of Upper Canada and therefore was unable to continue. The matter then stumbled along, through no apparent fault on the part of the CRDD panel members, until the applicants obtained another counsel. It would appear that the second counsel failed to acquaint himself with what had gone before so that when he appeared with his clients he raised no objection to the hearing being declared closed, when there was some evidence that it should not have been, and undertook to provide written submissions which he then failed to do.
[15] For its own part, the summary provided at the opening of the process by the CRDD as to the issues it would be considering was, in my view, essentially beyond reproach. While not all of the specific concerns that it eventually identified in its reasons for decision were noted, they could all be said to have been encompassed within the range of issues identified and competent counsel would have been appropriately prepared to deal with them, both through testimony and through submissions, whether written or otherwise.
[16] Counsel for the applicants urged that neither the principal applicant nor her identity witness were given the opportunity to complete their testimony or, at least, to respond to concerns of members of the CRDD panel, noted on the record at one stage or another during the course of the extended process. Nonetheless, when the CRDD proposed to close the process, subject to written submissions, counsel, unprepared as he was, took no objection to that step and thus, I conclude, effectively precluded counsel before this Court from any relief on the basis of that submission.4
[17] In the result, I cannot conclude that the applicants were denied procedural fairness or natural justice by the CRDD.
[18] Further, despite the able argument of counsel for the applicants which tended toward a "microscopic examination" of the reasons for decision of the CRDD, taken as a whole, and on the basis of the totality of the material that was before it, I can only conclude that the decision of the CRDD against the applicants' claims was reasonably open to it. That being said, I do not propose in these reasons to traverse each, or indeed any, of the specific points where counsel urged that the CRDD fell into error of law.
[19] For the foregoing reasons, and with regret, not because of the conduct of members of the CRDD in this matter but rather because of the lamentable performance of counsel retained to represent the applicants in the presentation of their claims, this application for judicial review will be dismissed.
[20] Neither counsel recommended certification of a question. No question will be certified.
_______________________
Judge
Ottawa, Ontario
January 30, 1998
__________________2 Tribunal Record, pages 341 and 342.
4 See Yassine v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L. R. (2d) 135 at 139 (F.C.A.)