Date: 19980403
Docket: IMM-1946-97
BETWEEN:
FADUMO SAID AHM MUKHTAR
SULEKHA SAID AHM MUKHTAR
BURHAN SAID AHM MUKHTAR
SHAMSUDIN SAID MUKHTAR
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review, dated May 13, 1997, seeking judicial review of a decision of the Immigration and Refugee Board ("IRB"), dated April 2, 1997, which found the applicants not to be Convention refugees.
[2] Ms. Fadumo Said Ahm Mukhtar, the adult female applicant, is the designated representative for the other three applicants, all minors, and she is referred to hereafter as the "applicant". The three minors are a sister and two brothers of the applicant. The applicants claim to be citizens of Somalia and they base their claims on a well-founded fear of persecution by reason of their membership in a particular social group, that of their clan, which is said to be the Reer Hamar clan. They were determined not to be Convention refugees by a panel of the IRB which found the evidence of the applicant was not credible or trustworthy to demonstrate on a balance of probabilities that they are members of the clan to which they claim to belong. Thus they did not provide evidence to show that there is a reasonable chance or more than a mere possibility that they would be persecuted for a Convention reason if they were to return to Somalia.
Background
[3] The applicant, in her Personal Information Form (PIF) dated November 3, 1996, alleges to have lived in the Mogadishu region with her mother and siblings. Her father is said to have operated a large jewellery store there, suffering extortion at the hands of the Siad Barre government because of his membership in the Reer Hamar. In 1987, the applicant's father was allegedly unable to meet the extortion payments and was arrested and jailed. Ultimately, the family learned he had been tortured and killed. As we will see, her description of her father's activities and his death was varied in a later narrative provided through her counsel in advance of the hearing.
[4] The family continued to run the business until 1990, when it became economically impossible for them to meet extortion payments demanded of them. During the war which broke out in 1990, the family allegedly was forced to pay out jewellery to one of the factions and, in the wake of this incident, moved to Merca, south of Mogadishu. In 1993, another clan arrived in Merca, and there they are said to have begun harassing, robbing and killing the Reer Hamar. Eventually, after the UN mission to Somalia ended, the family allegedly fled to Ethiopia, ending up in Addis Ababa. An uncle, living in Saudi Arabia, advised the applicant's mother to send the applicant and her three minor siblings to Canada, where three of their brothers are said to have already fled. The applicants arrived in this country in December 1995.
[5] In its decision, the panel found that there was no credible and trustworthy evidence before it that the applicants belonged to the Reer Hamar clan. The applicant is said to have been seriously deficient in her knowledge of Somalia and of Mogadishu, and in terms of providing details of her own life in Somalia.
[6] Many discrepancies were noted between her PIF and her Port of Entry Notes for which satisfactory explanations were not given, despite opportunities to do so. For example, at the Port of Entry, the applicant indicated that her father died in 1991, while in her PIF, she stated that this death had occurred in 1987. In her original narrative with her PIF, she indicated that her father was a wealthy jeweller while in her second narrative and testimony, she said that he was a judge of the family court and that her brother had operated the jewellery store. In her first narrative, the applicant indicated that her father had been arrested in July 1987 for failing to pay extortion money, while in her second narrative she said that her father was killed outside the courthouse in 1987. Her father, grandfather and great-grandfather were all called Mukhtar, even though this is contrary to typical Somali practice. She could not remember her father's full name. She could not remember anything about Mogadishu, beyond the name of the districts of the city in which she and her brother lived. She could not name clans other than her own, or recall the name of the clan to which Siad Barre belonged.
[7] In this proceeding, the applicant, by affidavit, states that she was very confused when she arrived in Canada and lied about incidents concerning her family. She did, however, recount true events to her lawyer some months after her arrival. All this she is said to have testified to at the hearing. However, there were significant gaps and discrepancies between documentary evidence provided by her and her testimony, and the hearing was adjourned for her counsel to arrange a psychiatric assessment, with particular reference to her failure to remember numerous matters. The psychiatrist's assessment was found by the panel as being of little assistance in explaining any problem with the applicant's memory. While the psychiatrist noted special interest in post-traumatic stress disorder, his report did not indicate that the applicant was suffering from that and the psychiatrist noted that the applicant's orientation, insight and judgment were normal. The Board concluded that there was no specific medical condition that would account for the lapses in memory and discrepancies in her evidence. While the applicant claimed to hear fighting in her head that prompted confusion, and while the panel considered possible stresses associated with testifying and cross-cultural interaction, it concluded that it had no credible and trustworthy evidence of the matter central to the applicants' claim; namely, the identity of the applicants as members of the Reer Hamar clan.
[8] The witness presented by the applicants, said to be their brother, earlier sponsored to Canada by his wife, was also found by the panel to have minimal knowledge of the clan. No record of other brothers who purportedly had come to Canada and claimed refugee status was found in the Refugee Division's computer banks. No PIFs from these other brothers were found in the records of the C.R.D.D., and no copy of any record was provided to the panel, except a landing document of the brother who was a witness. One of the applicant's other brothers, with whom the applicants were said to be living in Canada, was not available to give testimony since he was said to be out of the country.
[9] As the applicants were not able to establish membership in the claimed social group, the panel concluded that the applicants had not shown that there was a reasonable chance or more than a mere possibility that they would be persecuted for a Convention reason should they return to Somalia.
[10] The applicant submits in this proceeding that on the basis of the testimony of the applicant and the witness, the IRB could have found the applicants to be refugees. It is urged that once the sibling relationship between the applicant and the witness was established, and once the witness's membership in the Reer Hamar was established, both essentially on the basis of sworn testimony that was not contradicted, the Board should have concluded that the applicants were also Reer Hamar.
[11] The applicant does not agree that the witness did not present detailed information concerning his clan. Indeed, it is urged that he was able to name several branches of the Reer Hamar and was able to state, correctly, that the Reer Hamar were known for their skill in trades and business and that they lived in coastal areas. He also described the average complexion of the Reer Hamar and speculated on the clan's Arabic lineage. The witness also noted that the Reer Hamar are perceived as wealthy and are targeted by other Somalis for this reason.
[12] With regard to the sibling relationship, the applicant submits that the witness and the applicant correctly identified the number of children in the witness's family, noting that two of the children were twins and that one of the twins was not well. It is submitted that the witness would not have made up the fact that one of the children was sick if it was just a ruse. The witness and the applicant both testified to the fact that the witness once lived in Mogadishu and that two of their infant bothers, now applicants in this matter, lived with the witness for a time after the death of their father. Both the witness and the applicant testified that their father was a judge. Therefore, it is submitted, there was sworn and uncontradicted testimony that the witness and the applicant were siblings and that the witness was a Reer Hamar.
[13] The applicant submits that in finding the witness and the applicant not to be credible, the panel ignored or disregarded pertinent evidence and therefore erred in law. The totality of evidence, it is said, leads to the conclusion that the witness and the applicants were siblings and that they were members of the Reer Hamar clan.
[14] The respondent urges that where the panel makes a finding regarding the credibility of a witness, the court should be disinclined to interfere with the tribunal's findings, given the panel's ability to assess the witness in oral testimony. Enumerating the grounds on which the panel found the applicants not to be credible, the respondent submits that this finding was not unreasonable and thus, notwithstanding the witness's evidence, it was not unreasonable to find the applicants not to be Convention refugees. It is urged the applicants have failed to establish any basis to warrant intervention by the court.
Analysis
[15] In Aguebor v. Minister of Employment and Immigration1, Mr. Justice Décary, speaking for the Court of Appeal, said [in translation]:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. |
[16] In Akinlolu v. Canada (Minister of Citizenship and Immigration)2, I wrote that
| Questions of credibility and weight of evidence are for the CRDD panel in considering refugee claims. Thus, the panel may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence or it is found to be implausible. Particularly where there has been an oral hearing and the panel's assessment appears clearly dependent, as in this case, at least in part, upon seeing and hearing the witness, this Court will not intervene unless it is satisfied that the panel's conclusion is based on irrelevant considerations or that it ignored evidence of significance. In short, its decision must be found to be patently unreasonable on the basis of the evidence before the panel. |
| Where the determination of the panel ultimately turns on its assessment of credibility, an applicant for judicial review has a heavy burden, as the reviewing Court must be persuaded that the determination made by the panel is perverse or capricious or without regard to the evidence before it. Thus, even where the reviewing Court might itself have come to a different conclusion on the evidence it will not intervene unless the applicant establishes that the decision of the panel is essentially without foundation in the evidence. |
[17] While it may be that had the witness established to the satisfaction of the panel that he was both the applicants' brother and a member of the Reer Hamar, the inference that the applicants too were Reer Hamar would be a natural one, it is for the panel to determine whether such facts are established. After hearing them in oral testimony, the panel found both the applicant and the witness not to be credible. The applicant presents no evidence of significance that the panel is said to have overlooked, rather the objection is simply to the weighting by the panel of the evidence before it. With respect, I can see no basis for regarding the assessment of the evidence, and the determination of the panel, as perverse or capricious or made without regard to the evidence before it.
[18] For these reasons, this application is dismissed.
W. Andrew MacKay
Judge
OTTAWA, Ontario
April 3, 1998.
__________________1 (1993) 160 N.R. 315 at 316-17 (F.C.A.).
2 (March 14, 1997) Court File No. IMM-551-96, [1997] F.C.J. No. 296 (F.C.T.D.).