Date: 20020430
Docket: IMM-1719-01
Neutral citation: 2002 FCT 500
BETWEEN:
ABDI HUSSEIN MIYIR and LIBAN HUSSEIN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants, father and son, seek to set aside a decision of the Immigration and Refugee Board (the "Board") dated March 21, 2001, whereby the Board concluded that they were not Convention refugees.
[2] Both claimants asserted before the Board that they were citizens of Somalia, and more particularly, that they were Midgans, a minority cast in Somalia. They allege a well founded fear of persecution by reasons of their race, nationality and particular social group.
[3] According to the Personal Information Forms ("PIF"), they left Ethiopia on September 5, 1999 and landed in the United States on the following day. They arrived in Canada on September 11, 1999 and claimed refugee status.
[4] The hearing of the applicants' refugee claims was held on January 30 and February 27, 2001. On March 21, 2001, they were found not to be refugees. Specifically, the Board concluded that the claimants had not offered satisfactory evidence with respect to their identity. The Board's conclusion reads as follows:
Given this analysis on the issue of clan affiliation, the panel does not believe the claimants to be Midgans and given the overall lack of credibility in this claim with regard to identity, the panel does not believe that the claimants are who they say they are. For these reasons the panel finds that Miyir Abdi Hussein and his son Liban Abdi Hussein are not Convention refugees.
[5] The following story is the one put forward by the applicants in support of their refugee claims. The father, Abdi Hussein Miyir, was the son of a poor Midgan peasant who worked as a hired hand for a Mr. Miyir, a landowner of the Issaq tribe. Midgans, a minority tribe in Somalia, are held in disdain, are treated like slaves and are sometimes denied access to education and good jobs. The members of the Issaq tribe are not so treated.
[6] Abdi's father died when he was 7 years old and Mr. Miyir raised him as his own son. In 1975, at the age of 20, Abdi left the Miyir household and set out for Hargeisa, where he worked as a shoe repairer. In 1976, Abdi married and, in 1977, his son Liban, the other claimant, was born. Throughout the 1970s and 1980s, the lot of the Midgans improved, as the Somali government of the day sought to help this disenfranchised minority.
[7] In 1985, Mr. Miyir gave Abdi money to allow him to start his own shoe repair business. In 1988, civil war broke out in Somalia, and the Midgans were once again mistreated. Armed factions sought to eliminate Midgans, as they were seen by some as vestiges of the old regime. In 1990, fearing persecution from the Issaq Somali National Movement ("SNM") militia, which by then had taken power in northern Somalia, the family sought refuge in a camp in neighbouring Ethiopia. Abdi, the father, had been accused by the SNM and its supporters of being a spy for the former government of Siad Barre. The applicants, except for a brief return of three months by Liban in 1992 to Hargeisa to verify the state of their properties and assets, spent 9 years in Ethiopia. As I have already indicated, they left Ethiopia on September 5, 1999, for Canada.
[8] The applicants' application raises the following questions for determination:
- Did the Board err in dismissing, in their entirety, the applicants' evidence and that of the three witnesses who testified on their behalf, based on minor inconsistencies or perceived inconsistencies which do not exist?
- Did the Board err in finding the applicants not credible on the basis of implausibilities that are not inherently implausible?
- Did the Board err in relying on a translation of the word "korsasho" as "adopted".
[9] For the reasons that follow, I am of the view that the Board made no reviewable error which would allow me to intervene.
[10] The Board, after considering the documentary evidence, the applicants' evidence and the evidence of the 3 witnesses called on their behalf, concluded that the applicants had not demonstrated that they were who they said they were. At page 2 of its decision, the Board deals with the identity documents adduced by the applicants:
[...] The panel is experienced in Somali claims and knows that there is a brisk trade in fraudulent Somali passports so is not persuaded that the PC's passport by itself is sufficient to meet the burden of proof with regard to identity. Further supporting evidence is required, supporting evidence that is reliable and trustworthy.
In that regard the PC's son, Liban presented a driver's license from Somalia in support of his allegation that he is a Somali citizen. It is clear to the panel that this document is fraudulent. First of all it was issued in 1992 in the Italian language which was the language of the bureaucracy in the south of Somalia before the country declared independence. However it is not plausible that any official documents would still be in Italian more than 30 years after the south declared independence in 1960 and some 20 years after a Somali script was introduced in 1973. [...]
[11] The record show that Abdi's Somali passport, # A0943313, was not issued in Somalia, but in a third country - the United Arab Emirates - on June 12, 1989, during a business trip he made to that country. I also note that Liban, although he only adduced his driver's licence as proof of identity, indicated on his PIF that he had a Somali passport, also numbered # A0943313 [Liban was registered on his father's passport] and issued the same day as that of his father.
[12] The Board states in its decision that Liban's driver's licence was apparently issued to him when he was only 14 years old. However, the Board was of the view that the male pictured in the photo on the driver's licence was that of a man of far greater years than a boy of 14. When presented with the driver's licence as evidence in support of Liban's claim, it was open to the Board to conclude that the person pictured on the licence was not the same person who was applying for Convention refugee status. The record also shows the fact that both claimants travelled to Canada by using fraudulent Ethiopian passports.
[13] The board then turned its attention to the evidence given by the three witnesses called by the applicants, all successful Convention refugee claimants from Somalia. The Board also discussed the evidence given by Abdi regarding his childhood, livelihood and life in general in Somalia. Much was said about the social friction between the different clans and tribes in Somalia.
[14] The Board noted from the evidence that the Midgan tribe did not get along with the Issaq tribe, even though Abdi, a Midgan, had been raised by an Issaq. When asked if he ever fought for the SNM against the government, Abdi said that he had not.
[15] On this issue, the Board carefully reviewed the evidence given by Anab Hussein Miyir, Abdi's alleged step-sister and daughter of Mr. Miyir. In particular, the Board reviewed the PIF filed by Ms. Miyir in the course of her refugee claim in 1991. In her PIF, Ms. Miyir indicated that she had 4 brothers: Ali, who was dead; Abdillahi, who was living in the United Arab Emirates; and Mohamed and the applicant, who had been fighting for the SNM for the last 3 to 4 years. Ms. Miyir stated that she did not know if Mohamed and Abdi were alive.
[16] Although Abdi testified that he had never fought for the SNM, yet his alleged sister, in 1991, gave evidence that her brother Abdi was a SNM fighter and possibly dead. When questioned by the Board regarding this discrepancy, Ms. Miyir stated that Ali was not dead, and that he was one of her brothers fighting for the SNM. She added that it had never been her intention to indicate that Abdi had been fighting for the SNM. In any event, she indicated that she was confused and that the error was probably the result of bad translation.
[17] Counsel for the applicants argued that there was no inconsistency between Abdi's testimony and that of his alleged sister. I do not agree. Nor am I persuaded that this inconsistency, i.e. the confusion of the identity of a dead brother and the confusion of identities of brothers fighting for a movement to overthrow the government of Somalia, is due to confusion on the part of Ms. Miyir or to incompetent translators. In any event, the Board was not persuaded by the applicant's explanations and concluded that there was a serious inconsistency. On the evidence before it, that conclusion cannot be characterized as unreasonable.
[18] The Board also noted a number of inconsistencies regarding family members as originally put forward by Abdi and Ms. Miyir. The Board also found it odd that someone who was claiming refugee status would not provide evidence that his father, Mr. Miyir, had been murdered by rebels and left to rot in a field: at least that is what Ms. Miyir disclosed in her PIF in 1991. At page 3 of its reasons, the Board makes the following comments:
And here the panel notes the PC's description of his adoptive father's death. "My father opened a shoe store for me in Hargeisa in 1985. He also died in 1985." At the commencement of his hearing the PC changed 1985 to 1988. The panel is of the opinion that this was a last minute change to correspond to the date of the father's death as given in Anab's PIF. But more than that the panel finds it implausible that the death of the man who allegedly gave the PC his name, who raised him as his own child and funded the start-up of his shoe business and who was, according to Anab's PIF, murdered, his body left to rot in a field, would be described by the PC in the manner it was. The panel would reasonably expect there to be some reference, a word or two about to [sic] the father's violent and brutal end.
[19] I cannot see any error in the finding made by the Board concerning the applicants' failure to indicate the circumstances surrounding the death of Mr. Miyir.
[20] The Board also found it implausible that Mr. Miyir, an Issaq, would have "adopted" a Midgan. The applicant argues that during the course of his testimony, he used the word "korsasho", which did not mean that he was adopted, but rather that he was "raised" by Mr. Miyir. The applicants therefore argue that when the Board gave the Somali word "korsasho" the meaning of "adopted" instead of "raised", it committed a reviewable error. I note from the Board's decision that it did in fact understand that Abdi's surrogate father had "raised" him. At page 3 of its reasons, the Board states, in part:
[...] But more than that the panel finds it implausible that the death of the man who allegedly gave the PC his name, who raised him as his own child [...] [EMPHASIS ADDED]
[21] Although the Board did use the word "adopted" in its reasons, I am not persuaded that this error is determinative. As I have just indicated, I am satisfied, on the record, that the Board did understand that Abdi had been "raised" by Mr. Miyir. I might add that during the course of his testimony, the principal claimant, Abdi, used the word "adopted" when he stated at page 32 of the transcript [page 359, Tribunal Record] that "When my father passed away then he [Mr. Miyir] adopted me. I became his son..." It is also clear, from the transcript (page 33 of the transcript, Tribunal Record 360) that the Board understood that there had not been a formal adoption by Mr. Miyir of the principal claimant.
[22] With respect to the Board's decision not to place any weight on the testimony of Hersi Noor Magan and that of Mohamed Osman Abdalleh, I have carefully reviewed their evidence in the light of the applicants' evidence and cannot conclude that the Board's findings and conclusions regarding their testimony are unreasonable.
[23] In my view, the Board carefully reviewed the evidence put forward by the applicants in support of their allegation that they were Midgans. However, the Board was not persuaded that the claimants were Midgans and, as a result, concluded they were not who they said they were.
[24] Further, given that the Board was not persuaded by the identity documents supplied by the applicants and the fact that a number of inconsistencies could not be explained to the Board's satisfaction, it was open, in these circumstances, to conclude that the applicants were not credible.
[25] I agree with the respondent that contrary to the applicants' submissions, the Board, in the present case, had no obligation to bring to the attention of or to confront the applicants with the discrepancies or inconsistencies found in their evidence. Although there might be cases where a discrepancy or an inconsistency should be brought to the attention of a claimant, the inconsistencies and discrepancies herein do not fall in that category. In their memorandum, on a number of occasions, the applicants submit that the Board ought to have questioned the applicants in regard to discrepancies or inconsistencies or at the very least, ought to have provided them with an opportunity to explain them. I cannot agree with that submission. The applicants were represented by counsel at the hearing and if counsel felt that a discrepancy or an inconsistency had to be explained, then counsel ought to have asked the relevant questions. The Board cannot bear any responsibility for counsel's failure to ask questions.
[26] In the light of the evidence, both documentary and oral, I have no hesitation in concluding that the Board's conclusion that the applicants are not Convention refugees and the reasons given by the Board in reaching that conclusion, are not unreasonable. As a result, this application for judicial review shall be dismissed.
"Marc Nadon"
JUDGE
Toronto, Ontario
April 30, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1719-01
STYLE OF CAUSE: ABDI HUSSEIN MIYIR and LIBAN HUSSEIN
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: MONDAY, FEBRUARY 11, 2002
PLACE OF HEARING: OTTAWA, ONTARIO
REASONS FOR ORDER BY: NADON J.
DATED: TUESDAY, APRIL 30, 2002
APPEARANCES BY: Ms. Chantal Tie
For the Applicants
Ms. Monika A. Lozinska
For the Respondent
SOLICITORS OF RECORD: South Ottawa Community Legal Services
406-1355 Bank Street
Ottawa, Ontario
K1H 8K7
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020430
Docket: IMM-1719-01
BETWEEN:
ABDI HUSSEIN MIYIR and LIBAN HUSSEIN
Applicants
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER