Date: 19980127
Docket: IMM-3553-96
BETWEEN:
FADUMO HUSSEIN KULMIYE,
LEYLA FARAH ALI,
NASRO FARAH ALI,
ANISO FARAH ALI,
ABDIQANI FARAH ALI,
ABDIWELI FARAH ALI,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
HEALD D.J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated August 26, 1996. By that decision the Board concluded that the applicants herein are not Convention refugees.
THE FACTS
[2] The applicants are citizens of Somalia. Fadumo Hussein Kulmiye (the "Principal Applicant") and her five minor children: Leyla, Nasro, Aniso, Abdiqani and Abdiweli (the "Minor Applicants") claim Convention refugee status on the basis of race (clan lineage) and membership in a particular social group. The Principal Applicant is of the Hawiye clan and Habar Gidir subclan. The Minor Applicants are of the Darod clan and the Majerteen subclan because their father is Majerteen.
[3] The Principal Applicant resided in the Medina district of Mogadishu with her husband and children. During heavy fighting in Mogadishu, the family home was hit by artillery shells. In January of 1991, the Principal Applicant fled to Kismayo with some of the children. She spent four months there. In April of 1991, she went to Kenya. She remained in Kenya until she came to Canada in August of 1995. Her evidence was that if she went back to Somalia, she would fear persecution because she is of the Hawiye clan and Habar Gidir subclan. The Minor Applicants also fear persecution because they belong to the Darod clan. The Darods are now targeted because the former dictator of Somalia, Siad Barre, is a member of the Darod clan.
THE DECISION OF THE BOARD
[4] The Board acknowledged that the applicants were forced to flee the civil war in Mogadishu in 1991. Nevertheless, the Board concluded that the applicants did not have a well-founded fear of persecution because, in its view, the record herein establishes that they have an internal flight alternative (IFA). The Board relied on documentary evidence which established that Galkayo in the Mudug region, or Hobio a neighbouring district were both locations that are accessible to all of the applicants herein. The Board was of the further view that the applicants would not suffer hardship in travelling there and in residing there as well.
ANALYSIS
[5] At the commencement of the hearing of this application, counsel for the parties advised the Court that approximately two-thirds of the transcript of the proceedings before the Board is unavailable and will never be available. It appears that one tape is blank and the other tape is incomprehensible.
[6] In the submission of counsel for the applicants this circumstance constitutes a breach of natural or fundamental justice. On the other hand, counsel for the respondent submits that the absence of a transcript is determinative only in cases where that defect prejudices in some way the applicant's ability to present his case for judicial review.
[7] I agree with counsel for the respondent. His view of the matter is supported by the decision of the Federal Court of Appeal in Kandiah v. Minister of Employment and Immigration1 where Pratte J.A., speaking for the Court, stated: "The question whether or not a verbatim record of the proceedings before the Refugee Division was made or kept is not relevant to the quality of the hearing before that tribunal or of the decision it rendered. An otherwise fair hearing does not become unfair because it is not recorded; in other words, a verbatim record of the proceedings is not a condition precedent to a good trial and a good judgment".
[8] On this basis, I am unable to agree with counsel for the applicant that the circumstances herein constitute a breach of natural or fundamental justice. I turn now to the main issue herein, namely whether the applicants have established an IFA.
[9] The principles governing IFA were enumerated by the Federal Court of Appeal in Rasaratnam v. M.E.I., [1992] 1 F.C. 706 (C.A.):
| 1: The C.R.D.D. must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which they find that an IFA exists; |
| 2. Conditions there must be such that it would not be unreasonable, in all the circumstances, for the claimant to seek refugee there; |
| 3. The question of an IFA must be expressly raised at the hearing by the refugee hearing officer. |
[10] In my view, the Board's conclusion that the applicants have an IFA is reasonable on this record. The Board observed that the principal applicant was born in Galkayo and also noted that her family had recently moved from there to Hobio. Relying on documentary evidence, the Board concluded that there is substantial peace and security in that area of Somalia despite the absence of a central government. After addressing specifically the situation in Hobio and Galkayo and Northeastern Somalia generally, the Board concluded that the evidence did not establish that there was a reasonable chance of the applicants being targeted for persecution. It was also noted that the principal applicant had married outside her clan, but that this circumstance did not provide a reasonable basis for her claim.
[11] In my view the Board paid due regard to the totality of the evidence and in making a negative decision, no reviewable error was committed.
[12] Accordingly, the within application for judicial review is dismissed.
CERTIFICATION
[13] Neither counsel suggested the certification of any serious questions of
general importance pursuant to section 83 of the Immigration Act. I agree with counsel that this is not a case for certification.
Darrel V. Heald Deputy Judge
OTTAWA, ONTARIO
January 27, 1997
__________________
1 April 13, 1992 (A-113-90).
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