OTTAWA, Ontario, September 13th, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of a Pre-Removal Risk Assessment Officer (Officer) dated February 3, 2005 in which the Officer concluded that there was insufficient evidence to establish the applicant's identity as a national of Somalia. Accordingly, the risk to the applicant was not assessed.
FACTS
[2] The applicant claims that she is 70 years-old and a citizen of Somalia. She states that her husband was killed and her home destroyed during the civil war that ravaged that country in the late 1980s. In 1988, the applicant fled Somalia for a refugee camp in Ethiopia. She travelled to Canada in February 2002 and made a claim for refugee protection.
[3] In a decision dated March 12, 2003, the applicant's claim for protection was rejected by the Refugee Protection Division of the Immigration and Refugee Board (Board). The Board concluded that there was insufficient credible evidence to establish the applicant's identity. The applicant had no identity documents and, because of poor mental and physical health, she was unable to testify on her own behalf. The applicant's designated representative testified in an attempt to establish the applicant's identity, however, the Board concluded that the designated representative did not know the applicant well-enough to reliably establish identity.
[4] In rejecting the applicant's claim, the Board member made the following comments:
As much as I am sympathetic to this claimant, given her mental and physical health, I must reiterate and conclude that I do not have what I need to render a positive decision.
[...]
The burden of proof in establishing a refugee claim is that of the claimant, and although there are extenuating circumstances here that may have prevented the claimant from doing so, I am still left with assessing whether or not that burden has been met.
[5] The applicant filed an application for a pre-removal risk assessment (PRRA) on September 1, 2004. In the submissions that accompanied the PRRA application, counsel for the applicant provided the following explanation as to why the applicant was unable to testify at her refugee hearing:
It was only after the refugee hearing that her friends here in Canada understood the gravity of her mental disability. At the time of the refugee hearing, no one knew that Ms Hussein had a paralysing fear of black men and could not have predicted the disastrous impact a black lawyer would have on her refugee hearing, especially considering that the lawyer did not meet Ms Hussein prior to the hearing. When Ms Hussein met her lawyer in the hearing room, she refused to speak. It was only after this incident that anyone, including health practitioners who were providing counselling services to her, were able to uncover this problem.
[6] Also included in the PRRA submissions were two statutory declarations from a Canadian citizen named Ms. Anab Mohamed Rodol stating that she knew the applicant in Somalia, a statutory declaration from the applicant attesting to her identity, and medical reports indicating that the applicant suffers from post-traumatic stress disorder and other health conditions. Ms. Rodol stated in her two statutory declarations that:
The Applicant ... and I were neighbours in Hergeisa, Solmalia. Ms. Hussein was a friend of my mother, Asha Osman, who is also here in Canada and that is how I came to know her while I was growing up for over 20 years.
[ ...]
I have known Shukri Hussein for as long as I can remember because she was our neighbour in Hargeisa and was a friend of my mother. She lived in the same block, about 10 small houses away from us. Shukri would visit my mother often.
RELEVANT LEGISLATION
[7] Paragraph 113(a) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA) provides:
| Consideration of application
113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; |
Examen de la demande
113. Il est disposé de la demande comme il suit : a) le demandeur d'asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n'étaient alors pas normalement accessibles ou, s'ils l'étaient, qu'il n'était pas raisonnable, dans les circonstances, de s'attendre à ce qu'il les ait présentés au moment du rejet; |
Subsection 161(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) provides:
| New evidence
161(2) (2) A person who makes written submissions must identify the evidence presented that meets the requirements of paragraph 113(a) of the Act and indicate how that evidence relates to them. |
Nouveaux éléments de preuve
161(2) (2) Il désigne, dans ses observations écrites, les éléments de preuve qui satisfont aux exigences prévues à l'alinéa 113a) de la Loi et indique dans quelle mesure ils s'appliquent dans son cas. |
THE DECISION
[8] Identity was the determinative issue for the PRRA Officer. The Officer noted that pursuant to paragraph 113(a) of the IRPA, she could consider only:
new evidence that arose after the rejection [of the refugee claim] or was not reasonably available or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.
[9] The Officer concluded that the information contained in the applicant's statutory declaration (including her name, date and place of birth) did not constitute "new information" because these details were listed in the applicant's personal information form which was before the Board. With respect to the two statutory declarations signed by Ms. Rodol, the Officer found that because the deponent had been in close contact with the applicant since 2002, her evidence should have been presented before the Board. The Officer noted that neither the applicant nor the deponent provided an explanation as to why the deponent had not attended the refugee hearing. Accordingly, the Officer found that the affidavits did not meet the requirements of subsection 113(a) of IRPA.
[10] The Officer concluded, in the alternative, that if the affidavits were admissible, the information contained therein was not specific enough to establish the applicant's identity.
ISSUES
[11] The applicant raises the following two issues which the Court considers are determinative:
1. Did the Officer err in finding that the new identity evidence was inadmissible by virtue of paragraph 113(a) of IRPA?
2. Did the Officer err in the alternative in finding that the new evidence did not establish that the applicant was Somali?
ANALYSIS
Issue No. 1
Did the Officer err in finding that the affidavit evidence was inadmissible by virtue of
paragraph 113(a) of IRPA?
[12] In Kaybaki v. Canada (Solicitor General of Canada), [2004] FCJ No. 27 I set out the principle of law under IRPA that a PRRA officer should only consider "new evidence" that arose after the rejection of the refugee claim or that was not reasonably available or not reasonably expected to have been presented before the Refugee Board.
[13] The record shows that the designated representative for the applicant could not have reasonably expected that the applicant's identity would be an issue at the Refugee Board hearing. Upon review of the record, the Court finds that the PRRA Officer erred in concluding that the evidence of the new identity witness was inadmissible. Subsection 113(a) of IRPA provides that a PRRA Officer must not consider new evidence unless "the applicant could not reasonably have been expected in the circumstances to have presented" the evidence at the time his or her refugee claim was rejected. In my view, it was not reasonable to expect that the applicant would have presented multiple identity witnesses at her refugee hearing. It is clear from the record that no one anticipated that the applicant would become so upset upon meeting her lawyer at the refugee hearing that she would be unable to speak on her own behalf. Accordingly, the Officer should have admitted the evidence of Ms. Rodol, a woman who allegedly knew the applicant in Somalia.
[14] The Court accepts that the counsel for the applicant at the Refugee Board hearing did not expect that the applicant's identity as a Somali citizen living in Ottawa would be a contentious issue since the applicant appeared to be well-established in the Somali community in Ottawa and was accepted as a Somali. When the applicant was physically unable to testify at the hearing, the applicant's counsel was caught by surprise.
Issue No. 2
Did the Officer err in the alternative in finding that the new evidence did not establish that the applicant was Somali?
[15] The Court finds that the Officer committed a patently unreasonable error when she concluded, in the alternative, that the evidence was too general in nature to establish that the applicant was Somali. The evidence contains detailed information about the applicant including information about her family, the name and profession of her mother, the names and number of her siblings and the fate of some of the siblings. The declarant also provided information about the applicant's step-children, the fact that she had once lost a baby as well as specific details about the relationship between the applicant and the declarant's mother in Somali and how that relationship has continued here in Canada. It is difficult to see how this information is too "general in nature" to establish identity.
CONCLUSION
[16] For the foregoing reasons, the application for judicial review will be allowed. Neither party proposed a question of general importance for certification. None is certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, the decision of the PRRA Officer dated February 3, 2005 is set aside, and the PRRA application is referred to another PRRA Officer for re-determination with the direction that the Applicant's counsel identify the evidence presented that meets the requirements of paragraph 113(a) of the Act and indicate how that evidence relates to the Applicant's identity.
"Michael A. Kelen"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1925-05
STYLE OF CAUSE: SHUKRI HAJI HUSSEIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: SEPTEMBER 6, 2005
DATED: SEPTEMBER 13, 2005
Ms. Jean Lash FOR THE APPLICANT
Ms. Joanna Hill FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Jean Leash
Barrister and Solicitor
Ottawa, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT