Date: 20021223
Docket: IMM-636-02
Neutral citation: 2002 FCT 1322
OTTAWA, Ontario, this 23rd day of December, 2002
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
HABIB SHARIF AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under s. 82.1(4) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). The applicant seeks judicial review of a decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board ("IRB") that he is not a Convention refugee.
ISSUE
[2] Did the CRDD rely on erroneous, perverse or capricious findings of fact in finding the applicant not credible?
[3] For the following reasons, this application for judicial review shall be dismissed.
BACKGROUND
[4] The facts themselves are, to some degree, uncertain and in dispute. The applicant arrived in Canada on August 26, 2000 by crossing a railroad bridge from the United States into Niagara Falls, Ontario. While detained in Niagara Falls, the applicant completed and signed a Notification of Claim ("Notification") on September 26, 2000 to be a Convention Refugee.
[5] Subsequently, the applicant filled out a Personal Information Form ("PIF"), which was received at the IRB in Toronto on April 11, 2001. In the Notification, the applicant stated that his name was Wahib Khalif and that he was also known as Khalif Abdul Habib. In his PIF, he identifies himself as Habib Sharif Ahmed, also known as Khalif Wahib. However, the birth date of the applicant, February 2, 1980, appears consistently on both forms.
[6] The applicant claims to be a citizen of Somalia. However, he has not been able to produce documents or any other evidence establishing his identity. This has complicated the task of evaluating the merits of his claim for refugee status.
[7] According to the applicant, he was eleven years old when war began in Somalia in 1991. The applicant and his family, members of the Benadiri ethnic group, lived in the city of Mogadishu, the capital city of Somalia. In January 1991, his brothers were shot to death.
[8] One day in June 1991, the applicant had gone to a bakery. While he was there, Mogadishu was formally separated into military zones. The bakery and the home of his family were in different zones, and anyone attempting to cross zones was shot. He states that he has not seen his family since that day.
[9] In 1991, the applicant fled to a refugee camp in Kenya, as did many other Somalis. The applicant states that Benadiri cannot live among other Somalis because of the hatred felt by other Somalis toward that ethnic group. The applicant lived in a refugee camp in Kenya known as Utange. The CRDD panel referred during the hearing to documents stating that the United Nations High Commission on Refugees ("UNHCR"), which established the camp, formally closed it in April 1995. The applicant claims that he and other Somalis continued to live there - in an arrangement which could be referred to as squatting - until he left Kenya.
[10] In the mid-1990s, the applicant left Kenya and went to the United States - it is not certain whether the applicant went there in 1996 or 1997, as he has given conflicting dates and cannot provide documentation to resolve this confusion. The applicant contends that he attempted to claim refugee status in the United States but was told that a claim for asylum could not be processed as he did not have true identity documents.
[11] The applicant was told that if he lived in the United States for five years without incurring criminal convictions, he would be eligible for a Green Card, a document issued to legal immigrants to the United States. The applicant claims that in 2000, he was convicted for theft, having eaten at a restaurant without paying for the food, due to lack of funds. At the hearing, however, the applicant indicated that he was not convicted by a court; he appears to have suggested that the police told him he would have to spend forty hours washing dishes in the restaurant to make up for the offence.
[12] The applicant came to Canada from the United States in 2000, as described above.
CONTESTED DECISION
[13] The applicant was heard on January 2, 2002, before a two-member panel of the CRDD. A decision was rendered in chambers that day and was followed by written reasons released on January 15, 2002.
[14] The panel expressed its concerns regarding the identity of the applicant. The members did not believe the explanation of the applicant that the inconsistencies between the information given in his PIF and that in his Notification were due to misinformation by a fellow detainee who assisted him in completing the Notification. The panel rejected the suggestion that the applicant had difficulty with English, and that this difficulty led him to seek assistance from other detainees, whose English was also lacking.
[15] The panel also rejected the explanation of the applicant that the PIF was inaccurate because the applicant himself had possibly made mistakes. There were inconsistencies between the PIF and the oral testimony of the applicant. In addition, he did not make any corrections to his PIF despite being presented with it at the outset of the hearing and given the opportunity to make corrections before proceeding.
[16] Between the Notification and the PIF, there are inconsistencies regarding the whereabouts of the claimant since 1991. On the Notification, he states that he left Somalia in 1992, and between that time and his arrival in the U.S., he spent time in Yemen. The PIF shows a 1991 departure from Somalia and makes no mention of time spent in Yemen. Also, not only is it uncertain whether the applicant arrived in the United States in 1996 or 1997, but there are variations in his statements about the amount of time he spent in the U.S.
[17] The panel also noted a discrepancy between the mention of a U.S. criminal conviction in the Notification and in the transcript from the detention review, and the oral testimony of the claimant. In testimony, the claimant stated that he was simply told by the police to wash dishes for forty hours to make up for the theft, without having been charged or fingerprinted. Not only is there a record of fingerprints which contradicts this statement, but the panel did not find plausible the scenario as stated by the applicant.
[18] The panel denounced the lack of effort on the part of the applicant to obtain documents serving as indicators to the claimant's identity, such as documents from the refugee camp where the claimant claims to have spent time. There was also no identity witness at the hearing. The CRDD had requested one and the panel did not accept the explanation of the applicant that he could not arrange for a witness who knew him or his family to be present.
[19] The panel also did not find credible the assertion of the applicant that he was at the Utange refugee camp until 1997, as the documentary evidence shows that the camp was closed in 1995. The members also rejected as implausible the testimony of the applicant that he commuted to work each day, to and from Nairobi from the camp.
[20] The panel acknowledged that the claimant speaks Somali. The interpreter indicated to the panel that the applicant speaks the Reer Hamar dialect which, apparently, is only spoken by Benadiri. Nonetheless, the panel was not satisfied that the claimant was from Somalia, or what his true name was. His lack of knowledge of certain Somali institutions and places also led to doubt about his origins.
[21] In the concluding portion of its reasons, the panel expressed its doubt as to the circumstances under which the applicant came from the United States to Canada, and his motives for entering Canada in that manner. Overall, the panel found that it did not have credible or trustworthy evidence as to the claimant's personal identity or nationality and accordingly could not find that the claimant satisfied the panel that he is a Convention refugee.
SUBMISSIONS
Applicant
[22] The finding of the CRDD is patently unreasonable as it is based primarily on the finding of the panel that the applicant was not from Somalia. Evidence of the applicant's dialect is evidence that he is from a clan which comes only from Somalia, which is a particular target of persecution and whose members cannot be repatriated to Somalia.
[23] The inconsistencies in the evidence of the applicant regarding the status of the refugee camp where he lived, and with respect to his criminal conviction and length of time spent in the U.S., cannot override the fact that he is of the Benadiri clan. The Federal Court of Appeal has found that inconsistencies in evidence must be serious enough, and sufficiently relevant to the issues being decided, to warrant an adverse finding: Djama v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 531 (F.C.A.) (QL), (File No. A-738-90, June 5, 1992).
[24] The documentary evidence and the evidence given by the interpreter confirm that the applicant is from Somalia, and from Mogadishu in particular. Reports by human rights organizations establish that members of the Benadiri clan cannot return to Somalia. In light of all of the independent evidence before the CRDD, the finding of this panel is patently unreasonable and is based on perverse findings of fact that cannot be supported by the evidence.
Respondent
[25] The factual findings of the panel were very reasonable given the numerous omissions and contradictions in the evidence of the applicant. The fact that the applicant speaks Somali and uses the Reer Hamar dialect does not automatically mean that the applicant is Somali. Several points need to be mentioned.
[26] It was not in evidence before the panel that all who speak that dialect are necessarily Somalian nationals, or that no member of the Reer Hamar clan has a nationality other than Somali. Even if these indicia may normally have sufficed as proof of Somalian nationality or residence, the numerous misstatements and contradictions of the applicant negate the evidentiary effects of these elements.
[27] Contrary to the submission of the applicant that the matters which the panel found contradictory are irrelevant, they concern crucial matters such as the identity of the applicant and his circumstances. The applicant, in contrast, was hoping that the panel would take these factors for granted by virtue only of his ability to speak a particular dialect, and his membership in a clan. These factors included the name of the applicant or those of his next of kin, the whereabouts of the applicant prior to arrival in Canada, whether or not the applicant ever stayed at Utange and whether he had ever lived in Mogadishu, or anywhere else in Somalia.
[28] There were many missing links in the evidence. To the extent that the panel, according to the Federal Court of Appeal, is not expected to have "unlimited credulity", it properly dismissed the claim: Canada (Minister of Employment and Immigration) v. Dan-Ash (1988), 93 N.R. 33 (F.C.A.). Having been unable to establish the identity or citizenship of the applicant, or the places in which he had previously lived, it was not open to the panel to find that the applicant would face persecution if returned to his country of origin.
ANALYSIS
[29] The applicant bore the burden of proving to the satisfaction of the CRDD that he is a Convention refugee as defined in s. 2(1) of the Act. The panel which heard him held that he had failed to do this.
[30] The CRDD, as a specialized tribunal, is owed a high degree of deference by this Court. Its expertise in matters related to Convention refugee determination entitles it to deference both on questions of fact and on legal determinations, as well as questions of mixed fact and law: Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.).
[31] The reasons of the panel indicate that it considered each of the elements that the applicant wished it to consider. His name, date of birth, knowledge of Somalia and command of the Reer Hamar dialect were taken into account, as stated in the reasons. These were important elements, as they were matters which the applicant sought to put before the CRDD as elements of proof of his identity.
[32] The panel also considered the history of the claimant as reflected on his PIF. In particular, his time spent in Kenya, Yemen and the United States was mentioned in the reasons. When all of the evidence was examined as a whole, the panel found several inconsistencies. The panel found that the claimant was not credible.
[33] The panel found that the claimant was unable to provide credible evidence with respect to such fundamental information as his name, those of family members, the countries in which he has lived and the periods in which he lived in those countries. This rendered the task of accepting that the claimant has a well-founded fear of persecution complicated.
[34] The evidentiary burden faced by a refugee claimant cannot be met unless basic elements of the circumstances of the claimant are proven. Documentary evidence may be available with respect to certain countries and ethnic groups; however, it remains incumbent on the individual claimant to make the link between his or her own circumstances and the documentary evidence.
[35] The panel cannot supply gaps in the evidence that the claimant has not covered. For example, it is possible that in Somalia and elsewhere, the name by which one is known may differ depending on whether one is being introduced to close family or members of his own community, or to those outside this sphere of familiarity. If this is true with respect to the applicant, it was the responsibility of the applicant to provide this explanation to the panel. The range of matters on which the CRDD can take judicial notice is wide but not infinite. That range is even narrower for a Court such as this one.
[36] Without further information from the applicant, the panel lacked sufficient confidence in the overall evidence of the applicant to grant his claim for refugee status. Given the evidence on the record, including the transcript of the hearing, this was a very reasonable conclusion for the panel to reach, and this Court will not disturb that finding.
[37] The applicant cited Djama, supra, where a CRDD decision was set aside by the Federal Court of Appeal. The Court reprimanded the panel for exaggerating the effect of a few contradictions and discounting the entire testimony of the claimant before them. The Court also held that important evidence was ignored.
[38] Djama is not of assistance in the case at bar. Implausible or contradictory elements in the evidence of the applicant were present in several respects. His explanation of the differences between his name on his Notification and his PIF is one example. His whereabouts over the ten years prior to his claim for refugee status is another, as is his explanation of his legal trouble in the United States.
[39] Given the above factors, the panel made a finding which is quite reasonable. To the extent that a patent unreasonableness standard applies to findings of fact made by the CRDD, and to the extent that no error of law was committed, this decision is not one which should be set aside. Accordingly, this application shall be dismissed.
[40] The parties have had the opportunity to raise a serious question of general importance and have not done so. Therefore, no question will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question is certified.
___________________________
Judge