Date: 20040528
Docket: IMM-5451-03
Citation: 2004 FC 779
OTTAWA, ONTARIO, THIS 28TH DAY OF MAY 2004
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
AYAN MOHAMED NUR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ayan Mohamed Nur (the "applicant"), is a 24 year old citizen of Somalia who seeks to quash the June 30, 2003 decision of the Refugee Protection Division of the Immigration and Refugee Board (the "tribunal"), which denied her refugee status.
[2] The applicant's story is a straightforward one and has as its backdrop the civil war in Somalia.
[3] She claims to be a member of Reer Hamar, a minority tribe in Somalia that traditionally resided in the Mogadishu area and specifically in the neighbourhood of Hamer Weyne. In her personal information form ("PIF") filed with the tribunal, she wrote her father was a university professor and the family had some agricultural land.
[4] Because of the civil war and the troubles caused by the Habir Gedir clan, the family, in 1992, when the applicant was 12, moved to the Bakaraha neighbourhood in the area of the capital but they were still harassed by that clan who extorted money and produce.
[5] She wrote the family lived in fear and rarely hazarded outside the home relying upon the Bantu to go to the market for them.
[6] The event which precipitated her flight occurred on April 13, 2000, when militia from the Habir Gedir clan attacked her family at home when they were preparing for her wedding. The militia wanted valuables. They targeted her and attempted to rape her. Family members sought to protect her. Her father was shot in the leg. Her fiancé, who was there, was killed and her grandfather also died after a second group of looters from the same clan broke into the home and started to fight with other clan members. This allowed her to escape.
[7] She sought refuge in the home of friends of her mother located in the Medina area of Mogadishu. The next day, her mother's friends fled the capital and brought the applicant with them. Ten days later, they arrived in Kenya.
[8] She stayed in Kenya principally in Nairobi, until January of 2001 when she came to Canada. The day before her departure, she was reunited with her mother and her siblings who had managed to flee Mogadishu but without her father who was injured and could not travel. He remained in Somalia in hiding. Her mother told her the Habir Gedir clan had confiscated the family farm.
THE TRIBUNAL'S DECISION
[9] The tribunal did not believe her story. It found she was not credible for a number of reasons.
[10] First, the tribunal did not believe she was a member of the Reer Hamar tribe finding she did not answer spontaneously questions about her tribal ancestry and, when she did, her answers lacked information.
[11] Second, the tribunal did not believe the applicant's identity as a Somali national casting doubts on the 1989 birth certificate she produced in support of her nationality. The tribunal did not believe when and why she obtained that birth certificate in 1989. Also, it did not believe her testimony how that birth certificate came into her possession and how it was brought to Canada.
[12] The applicant explained she obtained the birth certificate in 1989 needing it for school. The tribunal wrote (applicant's record, page 12):
When I posed the question why would you need a birth certificate to sing in a choir at October celebrations, the claimant told me that the children were small and taken to another area to sing. So they needed the birth certificates to identify themselves. I don't find this answer to be credible at all. Who would care? Who would require a birth certificate from a child in order to sing in a choir in an adjacent community or adjacent neighbourhood? The claimant's response here is not a believable one. [emphasis mine]
[13] The tribunal did not believe how the birth certificate came into her possession. The applicant had testified that her mother had brought the birth certificate with her from Somalia to Kenya. The tribunal wrote (applicant's record, page 13):
...I don't believe the claimant's testimony with regard to the document being brought out of Somalia. My initial concern here was that the claimant herself could not have brought it with her because, as I have already mentioned in quoting from her narrative, the situation was so grave, so bad, that she wouldn't have thought to bring a birth certificate. She escaped in the midst of confusion, in the midst of killings. So when I posed questions to her in this regard, she said that her mother brought the document with her from Somalia to Kenya. However, the same thing applies to her mother. It's not believable that her mother in all that confusion and all those horrific circumstances would thank aha, I must bring my daughter's birth certificate.
In situations like this, we usually hear that the claimant has no documents because they were forced to flee and that's the last thing you think of. You're running for your life. You don't think that you should bring your driver's license or your tessera or your birth certificate and that's a reasonable explanation as to why one has no documents. It does make sense. What the claimant has told me does not make sense. Given everything that happened, it's not plausible that her mother had the presence of mind to bring the claimant's birth certificate. [emphasis mine]
[14] The tribunal did not believe the applicant's explanation of how she brought her birth certificate to Canada. In her testimony, the applicant said she brought the birth certificate with her. She also testified she came to Canada on false documents with a smuggler and the false documents were Canadian documents.
[15] The tribunal noted her counsel asked the applicant whether the smuggler had advised her not to bring anything with her that would contradict what the false documents say and she answered he did and told her not to bring any documents with her photo on it. The tribunal wrote at applicant's record, page 12:
When I pointed out to her the conundrum that this poses, i.e. you are travelling with one set of documents saying you are person X and you have on your person another set of documents saying you are person Y, her response was ha, ha, now I understand that it was dangerous.
. . .
The claimant's testimony here is not credible. It doesn't make any sense that a smuggler would not take care to protect his business and, in this case, his client by saying please, whatever you do, don't bring anything with you that's going to contradict what my false documents for you say, because if you're ever searched, we'll both be in trouble.
[16] Third, the tribunal did not believe the applicant lived in the area of Bakaraha in Mogadishu finding that: (applicant's record, page 14)
...even as a young person who went back and forth to school, I would think she would do better in terms of her answers with regard to the topography or the geography of her city than she did . I would characterize her answers ... as confusing, vague and hesitant, not the hallmark of testimony that is credible, that would come from someone who really lived where she said she did when she said she did.
[17] The tribunal further wrote (applicant's record, page 15):
I told her I had never heard of Bakarah [sic] as a neighbourhood in Mogadishu .... So then she said that Bakarah [sic] was a market.... It finally was established that the market Bakarah [sic] is in the neighbourhood of Hodan. But why would you say in your narrative that Bakarah [sic] is a neighbourhood if it wasn't, if it's a market? Why wouldn't you say it's in Hodan neighbourhood?
[18] This led the tribunal to find (applicant's record, page 15) the applicant was someone "who had studied the geography and the topography of Mogadishu, someone who had some kind of academic knowledge, someone who had read a book".
[19] Another example given by the tribunal relates to her answers where the airport was located. The tribunal wrote at applicant's record, page 14:
There was a long delay and finally she said it was past Benadeer Hospital. Again, I find that a curious answer and so we questioned her again about that and finally after a number of questions, she got it right in terms of the general area where the airport was. But again, a number of questions had to be posed and again, getting at correct answers was very tortured and circuitous, which does not give me much comfort in terms of assessing whether or not the claimant really was in Mogadishu.
[20] Yet another example was the applicant's testimony relating to where her father worked. She testified her father worked at the University of Gehayer. The tribunal wrote (applicant's record, page 15):
Again, we had trouble trying to determine what the name of the university was. First, we got the faculty of agriculture. When she gave the name of the university, Gehayer, I pointed out to her that I thought, because I have seen the name before, that this was a high school. She said no, it wasn't. It was a university. I asked her where it was located. She said it was somewhere between Afgoye and Mogadishu. I said to her this doesn't seem to be believable because universities aren't usually established in the middle of nowhere and her response was that's what I remember. Again, this is typical of the kind of testimony that this claimant presented with regard to places of interest, sights, institutions, neighbourhoods in and around Mogadishu.[emphasis mine]
ANALYSIS
(a) Standard of Review
[21] The tribunal's decision, in this case, turns on credibility which is a finding of fact. As such, paragraph 18.1(4)(d) of the Federal Courts Act is engaged. Under that paragraph, this Court is authorized to set aside a tribunal's finding if the tribunal "based its decision ... on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it".
[22] In Canadian Pasta Manufacturers' Association v. Aurora Importing and Distributing Ltd. (1997), 208 N.R. 329, the Federal Court of Appeal concluded there was no practical difference between the standard of review under paragraph 18.1(4)(d) and the standard of patent unreasonableness. Moreover, that same Court in Canada (A.G.) v. Norman, [2003] 2 F.C. 411, analogized the standard of review under section 18.1(4)(d) as one similar to the standard of "palpable and overriding error" or "clearly wrong" articulated by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 S.C.C 33.
[23] It is useful to recall Justice l'Heureux-Dubé's remarks about the standard of review on factual findings of an administrative tribunal in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 at paragraph 85, she wrote:
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370.
(b) Application to this case
[24] In support of her judicial review application, the applicant filed two affidavits sworn by Mohamed Delmar Abdurahman, who is a Canadian citizen born in Somalia having fled that country in 1991, and accepted as a refugee by this country.
[25] In his first affidavit dated July 28, 2003, filed in support of the applicant's leave application, he stated he had lived in Mogadishu since 1959 until he left Somalia in 1991. He wrote (applicant's record, page 33):
4. I know the Bakaraha market which is located in the west of Mogadishu. I also know that it is common to refer to the area around the market as Bakaraha.
5. I know the University of Gehayr where I used to lecture in the field of Economics. It is a well known University and it is located on the outskirts of Mogadishu. [emphasis mine]
[26] Mr. Abdurahman filed a further affidavit at the hearing of this application. That affidavit is dated February 25, 2004. He provided further background on the University of Gehayr as follows:
4. The National University of Somalia has existed for some time. The main Faculties were the Faculties of law and economics.
5. In 1969 a revolutionary socialist government came into power in Somalia. In the early 1970's considerable amounts of money were spent on education including infrastructure projects.
6. A new campus was built for the National University of Somalia at a location just outside Mogidishu. The campus for the Faculty of Agriculture was built at a location farther away close to the farming fields near Afgoye.
7. When the Minister of Education Mr. Gehayr died the University was renamed after him. [emphasis mine]
[27] After reviewing the tribunal's decision and the transcript, I have come to the conclusion this judicial review application must be allowed. The tribunal's credibility findings were arrived at without regard to or by misconstruing the evidence. The tribunal's findings of fact upon which its credibility findings were based were capricious and reveal palpable and overriding errors. I cite the following.
[28] First, the tribunal erred when it dispelled the applicant's testimony about the birth certificate being on her person when she arrived in Canada. The tribunal forgot the birth certificate had no photo of her and was hidden on her person.
[29] Second, there was no basis for the tribunal doubting the applicant's testimony that her mother brought her birth certificate to her in Kenya. The tribunal also forgot the applicant's testimony, (tribunal record, page 55), that her mother did not immediately flee the family home after the attack.
[30] Third, the tribunal's finding the applicant had no need to have a birth certificate issued in 1989 as an identity document while on school trips was not based on any evidence but rather was contrary to the evidence given by the applicant (transcript, page 43) that the children were small and the parents were not with them when they travelled from a known neighbourhood to an unknown one. The implausibility was unreasonably drawn and reflected an impermissible importation of western stereotype habits, if that.
[31] Fourth, the tribunal had no basis to impugn the applicant's testimony about her knowledge of the Mogadishu area. The tribunal unreasonably doubted the applicant's testimony, (transcript, page 30), about the location of the University of Gehayr as being somewhere between Afgoye and Mogadishu. The tribunal got it wrong when it generalized universities don't tend to be in the middle of nowhere. The tribunal forgot that her father was teaching in the Faculty of Agriculture. Mr. Abdurahman confirmed the Faculty of Agriculture was in the farming area. Also, the tribunal got it wrong when it said Gehayr was a high school and not a university. One only has to think of where MacDonald College was located before the West Island developed.
[32] Fifth, the tribunal wrongfully impugned her credibility attributing her answers as confusing on the issue of where she lived. Her testimony, (transcript, page 77), shows she knew Bakaraha is the market and Hodan was "the big area". It was perfectly understandable why she would refer in her PIF she lived in Bakaraha because it was famous. Mr. Abdurahman confirmed the Bakaraha market is located in the west of Mogadishu and the area around it is commonly referred to as Bakaraha by those who lived there.
[33] In my view, these palpable errors go to the heart of the tribunal's credibility findings.
O R D E R
For all of these reasons, this judicial review application is allowed, the tribunal's finding is set aside, and the applicant's refugee claim is remitted to the Immigration and Refugee Board for redetermination by a differently constituted tribunal. No certified questions were proposed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
MAY 28, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5451-03
STYLE OF CAUSE:
Ayan Mohamed Nur v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 14, 2004
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX
APPEARANCES:
Ms. Silvia Maciunas FOR APPLICANT
Ms. Elizabeth Kikuchi FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Silvia Maciunas
Barrister and Solicitor
Ottawa, ON FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT