Date: 20000831
Docket: IMM-2738-99
BETWEEN:
AYAN DUALE JAMA
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.:
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division ("the Board") dated April 28, 1999, in which the Board determined that the applicant was not a Convention Refugee.
[2] The issues in this application are whether the Board erred in not making the findings with respect to the authenticity of the applicant's birth certificate or the letter from the applicant's father and whether she had a well-founded fear of persecution on any of the Convention grounds.
[3] The Board stated:
| The central issue on this claim is the identity of the claimant (personal, familial, clan and citizenship). She claims a well-founded fear of persecution based on her membership in a particular social group, namely, her clan and her family. If the panel does not have sufficient trustworthy or credible evidence to determine that the claimant is whom she alleges to be, that she is related to her family in the way that she alleges and that she is a member of their clan, the panel cannot determine the grounds nor assess the well-foundedness of her fear. |
| With regard to the claimant's personal identity and her connection to the family and clan of the designated representative, the panel has in evidence a birth certificate and a letter giving custody of the claimant to the designated representative, which give the date of birth of the claimant as January 11, 1985, and the date of her mother's death as February 28, 1988. As noted above, the birth certificate could not be authenticated but displays characteristics of counterfeits. |
[4] The Board then goes on to state the following:
| In light of the forensic reports, we make no finding on the authenticity of the documents. |
[5] However, the Board does make findings with respect to photographs which were submitted and stated that they could not make a positive identification on the photographs alone given the difference in age between the child in the photographs before it and the age of the applicant now.
[6] The Board made a finding that there was no credible and trustworthy evidence on which to determine the identity of the claimant. After reviewing the oral evidence, the Board concluded as follows:
| The testimony of both the designated representative and Suweis [her paternal half sister] is so fraught with unexplained contradictions and inconsistencies regarding the date of the claimant's birth, the date of her mother's death, where each of them was when the claimant was born, and when they and the claimant each left Somalia, that the panel finds it to have a general lack of credibility with regard to the claim before it. |
[7] The Board was entitled to make this finding with respect to the oral testimony as the Court of Appeal has stated in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.) at 244:
| Even without disbelieving every word an applicant has uttered, a ... panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim ... In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant information emanating from his testimony. |
[8] However, in this case, the applicant was a minor who did not testify. In my view, the Board should have made a finding with respect to the authenticity of the two documents related to her identity submitted on her behalf, particularly in light of their findings with respect to the oral evidence of her witness.
[9] The foregoing reason would normally be sufficient in most cases to send back the decision back. However, I am also faced with the fact that the Board went on to deal with the applicant's claims of persecution based on her identity being established. The Board stated at page 14 of the reasons:
| Therefore, even if the panel were to find the claimant to be whom she alleges to be, which we do not, the panel finds that it does not have sufficient credible or trustworthy evidence on which to determine that the claimant has a well-founded fear of persecution in Somalia by reason of any of the Convention ground. |
[10] In the paragraph immediately above, the Board states:
| Furthermore, having taken into account the testimony of the designated representative, Asili Ashkir Gurra, and the principal witness, Suweis, at this hearing regarding their accounts of their alleged experiences in Somalia -- evidence which was not before the panel which determined their claims -- the panel finds the evidence in the claimant's PIF on which she grounds her claim, i.e. the alleged persecution of her clan and her family in Somalia, not to be credible. |
[11] In the foregoing paragraph, the Board looked at the applicant's own evidence and did not find it to be credible. The Board does not rely solely on her identity problems to make this finding. Any flaws with the Board's earlier findings are therefore of no consequence, as it properly dealt with the applicant's claims of persecution.
[12] Accordingly, the application for judicial review is dismissed.
"W.P. McKeown"
J.F.C.C.
Toronto, Ontario
August 31, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2738-99 |
| STYLE OF CAUSE: AYAN DUALE JAMA |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: WEDNESDAY, AUGUST 16, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: McKEOWN J. |
DATED: THURSDAY, AUGUST 31, 2000
| APPEARANCES BY: Mr. Ronald Shacter |
| For the Applicant |
| Mr. Greg George |
| For the Respondent |
| SOLICITORS OF RECORD: Shelew and Gorodensky |
Barristers and Solicitors
45 St. Clair Avenue West
Toronto, Ontario
M4V 1K9
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000831
Docket: IMM-2738-99
BETWEEN:
| AYAN DUALE JAMA |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |