Date: 20040510
Docket: IMM-4697-03
Citation: 2004 FC 678
Ottawa, Ontario, May 10, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
ZARAH BARREH DARAR
KADIDJA ABDILLAHI ALI
IBRAHIM ABDILLAHI ALI
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Immigration and Refugee Board (Refugee Protection Division) (the Board) dismissing the Convention refugee claim.
FACTS
[2] Zarah Barreh Darar (applicant) and her two children, Kadidja Abdillahi Ali and Ibrahim Abdillahi Ali, are Somalian nationals. The applicant alleges that she is a member of the Midgan ethnic group, against whom, historically, Somalian clans have discriminated.
[3] The applicant says that she was born in 1940 in Boroma, Somalia. An orphan, she had been taken in by a woman of the Gadabursi ethnic group. The woman encouraged her nephew to marry the applicant, even if she was Midgan, because she would be a good wife and there would be no dowry to pay.
[4] She gave birth to two girls and four boys and also helped raise her husband's children from a previous marriage.
[5] Her eldest daughter, born in 1967, left Somalia in 1990 with her newborn baby. She was granted refugee status in Canada in 1992, and became a Canadian citizen in 1995.
[6] The applicant left Somalia about a month or two after her daughter; she fled to Ethiopia with two of her children, who are also applicants in this matter. Ibrahim was born in 1982, and Khalidja was born in 1984.
[7] The applicant claims that her membership in the Midgan ethnic group subjected her to discrimination in Somalia, and that the fact that she is Somalian caused her trouble in Ethiopia. As for the children, the fact that they were from a mixed marriage (Midgan-Gadabursi) subjected them to discrimination in their country of origin.
ANALYSIS
[8] It is settled law that the standard of review to be applied to decisions by the Board assessing the credibility of the claim or the claimant is that of patent unreasonableness. In order to set aside the Board's decision, it must be determined that the Board based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[9] The Board's decision is essentially based on the lack of documents and evidence establishing the identities of the applicant and her two children. In my view, the elements pointed out by the Board in support of its doubts about the evidence filed by the applicant's eldest daughter are reasonable.
[10] In her evidence, the applicant made much of the fact that she is Midgan and that, for her children, having a Midgan mother presents a problem. Yet, when the eldest daughter made her refugee claim, she never mentioned this fact. She simply stated that she was Gadabursi.
[11] The applicant refers to her son-in-law by the name he uses in Canada; she does not refer to him as her daughter did at the time of her arrival. Similarly, she calls her grandson "Warsame Youssuf Isman", then "Warsame Isman Youssuf", while the mother referred to him as "Warsame Osman Abdi" on her Personal Information Form.
[12] The greatest implausibility that the Board pointed out, correctly, and that neither the applicant nor her eldest daughter were able to explain, is the way that they found each other. According to their testimony, the eldest daughter left with her baby while the civil war was raging in Somalia. She managed to travel to Canada. In the meantime, about a month or two after her daughter's departure, the applicant, in turn, left Somalia to take refuge in Ethiopia. She settled in Dire-Dawa. She says that she did not have any contact with her daughter during this period. Yet, a few years later, the daughter asked her neighbour, who was planning a trip to Ethiopia, to look for her parents; she gave her their names, no more.
[13] How did she know that the applicant was in Ethiopia? Even with the knowledge that the applicant was in Ethiopia, how did the neighbour find her, especially in light of her very low status in Somalian society? There are too many details missing that the applicant and her daughter were unable to provide even when pressed to give them.
[14] The two children who accompanied the applicant speak French. She explained that they attended private school in Ethiopia, despite her meagre earnings as a seamstress. The Board asked the applicant to prove that her children were enrolled at this school with written documentation which would serve as a confirmation of the stay in Ethiopia as well as the identity of the children. The applicant did not follow through (the letter was addressed to her as well as her counsel).
[15] The applicant wanted to file DNA evidence, which the Court refused. This test was performed after the panel's decision, so the evidence is inadmissible before the Federal Court.
[16] In its decision, the panel identified a number of factual errors which greatly undermined the applicant's credibility. The applicant, for her part, showed that the panel made a few mistakes, first regarding when her husband's son was killed, after her daughter left, and also regarding the fact that the applicant had indeed mentioned the name of her daughter Suad in her statement. The applicant also proved that she corrected herself when she made the error about her daughter's wedding date, i.e. 1989 and not 1999.
[17] However, I do not believe that these errors had a determinative influence since the panel did not find that the documents provided to substantiate the applicant's identity were valid. The panel considered at length the issue of identity, which was determinative in the dismissal of the claim.
[18] In my opinion, this issue of identity plays an important role and, despite the occasional factual error, nothing in the panel's decision warrants the intervention of this Court.
[19] It is the Court's role to decide whether, in light of the evidence before the Board, it made a decision that was patently unreasonable. The applicant did not establish her identity or her membership in a particular ethnic group. Given the complete lack of documentary evidence of identity (despite the opportunity which had been given to the applicant to provide her children's school documents), given the inconsistency of the stories of the applicant and her eldest daughter and given the careful and thorough nature of the Board's analysis, I am of the opinion that this application for judicial review must be dismissed.
[20] Neither party suggested a serious question for certification.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed.
"Pierre Blais"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4697-03
STYLE OF CAUSE: ZARAH BARREH DARAR et al. v. MCI
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MONDAY, MAY 3, 2004
APPEARANCES:
CLAREL MIDOUIN FOR THE APPLICANTS
RICHARD CASANOVA FOR THE RESPONDENT
SOLICITORS OF RECORD:
CLAREL MIDOUIN
OTTAWA, ONTARIO FOR THE APPLICANTS
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA FOR THE RESPONDENT