IMM-2597-96
B e t w e e
n:
HAWEYA
ABDINUR HASHI,
Applicant,
-
and -
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS
FOR ORDER
Muldoon,
J.:
This
is an application for judicial review of a decision (T95-02336) of the
Immigration and Refugee Board, Convention Refugee Determination division (CRDD)
rendered on June 26, 1996 and communicated to the applicant on July 16, 1996.
The CRDD determined the applicant not to be a Convention refugee. The
applicant seeks an order setting aside the decision of the CRDD and referring
the matter back to the CRDD for redetermination, by a differently constituted
panel.
The
applicant is a 23 year old citizen of Somalia. The applicant based her claim
to Convention refugee status on her membership in the Marehan subclan of the
Darod clan. She also based her claim on her status as a young Marehan woman
with no immediate family members residing in Somalia.
The
former president of Somalia (Barre) was a member of the same clan as the
applicant. Barre's government was overthrown in 1991 by a group of militias.
The applicant stated that she feared persecution by the United Somali Congress
(U.S.c.), a group which targeted members of the Marehan clan.
The
applicant and her family fled Mogadishu at the outbreak of the civil war in
January 1991. They travelled to southern Somalia and settled in the town of
Luuq in the Gedo region, where they stayed with distant relatives, also members
of the Marehan clan. In April 1992, the region was attacked by the U.S.C. so
she and her family fled to Ethiopia. In March 1995, the applicant arrived in
Canada and sought Convention refugee status.
The
CRDD accepted that the applicant could not return to Mogadishu without risk of
persecution, since other militias from other clans dominate the city. However,
the CRDD held that the applicant had an internal flight alternative (IFA) in
the Gedo region. In reaching its decision, the CRDD set out the appropriate
factors to be considered when determining whether an IFA exists, specifically,
the particular conditions of the country and the particular circumstances of
the individual.
With
respect to the country conditions, the CRDD accepted the documentary evidence
presented which confirmed that the Marehan presently control the Gedo region
and the area of Luuq. The CRDD noted that since 1993, Somalis have begun
returning to Gedo, with and without the assistance of the UNHCR. Although the
CRDD noted that voluntary repatriation does not automatically amount to an
absence of risk of persecution, absent evidence to the contrary, ti is
reasonable to infer that there is a relative degree of security. After
reviewing the documentary evidence, the CRDD concluded at page 20 of the applicant's
record (AR):
...that the Gedo Region, including the area and town of
Luuq, is under the control of the Darod Marehan and its political organization
and militia, the Somali National Front (SNF). We are also able to conclude on
a balance of probabilities that this is not a "contested" region and
while the Marehan control the area, other tribes or clans are also able to be
present, including members of the Rahanweyne and Ogadeni clans.
The CRDD then considered the particular circumstances of
the applicant: a young woman without any immediate family members residing in
Somalia at pp. 20 to 21:
As
previously mentioned, the introduction and enforcement of shari'a law is of
particular relevance to this claimant and her particular circumstances. Female
Somalis have been particularly marginalized and victimised during the civil
war, and the introduction of shari'a law in Gedo and other Regions, along with
the ability of the woman's clan to control their own territory offer protection
and assistance, has provided protection for females against abuse from militia
members of other clans and roving bandits, which previously was not
available...
After
extensively reviewing all of the evidence before us, the panel is satisfied
that the town and area of Luuq in the Gedo Region of Somalia represent a viable
internal flight alternative for the claimant which is reasonable in the
particular circumstance of the claimant.
In our
opinion, the claimant has not established, on a balance of probabilities, that
there is a serious possibility she would be persecuted by any of the grounds
set out in the definition of a Convention refugee were she to return to the
Marehan controlled area of Luuq in the Gedo region of Somalia. In our opinion,
as previously stated, the Marehan, the claimant's clan, exert effective control
over this area, provide a functioning authority and system of law, and through
an extended clan in this traditional Marehan homeland, members are able to
access the protection and assistance of their clan.
The internal
flight alternative for this claimant and her particular situation is a real,
not theoretical, option which should be exercised by the claimant before
seeking "surrogate" protection as a Convention refugee. The
identified IFA is readily accessible through Ethiopia or Kenya and the claimant
would not be required to cross battle lines or otherwise put herself at risk to
reach the IFA.
The applicant argues that the CRDD misconstrued the
evidence when it concluded that the applicant should seek the protection of the
Marehan in the Gedo region. The applicant asserts that the Marehan can control
Gedo only by violating the human rights of non-Marehans. In support of
this argument, the applicant cites a report by Africa Watch dated April 1995
where a relief worker states, at p. 53 of the applicant's record, that since
1993 despite the Rahanweyne and Ogadeni population, the Marehan clan has
controlled everything through "a committee of twelve. Control was such
that there was a real fear of speaking out independently there. It's a Marehan
mafia". The applicant also refers to a quote in the same report (AR, p.
52):
The Marehan
killed, looted, raped and kidnapped women...As far as I know, about sixty women
were taken. I know them personally. They even took one of my daughters...She
is nineteen years old. [She] is now in Kenya..She was forcibly married to a
Marehan, a gunman.
With respect to this argument, two points need to be made.
First, there is no recent evidence that the Marehan are committing human rights
abuses against non-Marehans. The CRDD specifically addressed the
"mafia" reference in stating (at page 20 AR):
The panel
has reviewed all of the documentary evidence presented by the RCO and by the
claimant. We note that at a time when reporting on Somalia by new
organizations and human rights groups has been extensive, there is a dearth of
specific references to recent events involving the Marehan clan, the Somali
National Front (SNF) which is the Marehan political organization and militia,
and also, to the Marehan traditional homelands including the Gedo region. In
our opinion, given the level of coverage on events in Somalia it is
reasonable to expect that if the Marehan were engaged in substantive infighting
as suggested by the 1994 Response to Information Requests, supra, or with
hostilities involving clans in their traditional homelands, including the Gedo
Region, that it would not go unnoticed and that in fact it would be reported.
[Emphasis]
This conclusion is reasonable, based on the Appeal
Division's pronouncement in Adu v. Minister of Employment and Immigration,
(A-194-92), January 24, 1995, where Hugessen J.A. held that inferences are
permitted where there is a lack of documentary evidence mentioning "what
one would normally expect it to mention."
The second quote referring to the raping and kidnapping of
women relates to incidents which occurred during the war in 1991 to 1992. The
overwhelming evidence referred to in the CRDD's decision indicates that the
situation has greatly changed in the Gedo region.
Therefore, based on the evidence before the CRDD, the
conclusion reached by it, that protection is available to the applicant in the
Gedo region, is reasonable. The argument that the Marehan are currently
involved in human rights abuses is without evidentiary foundation.
The second point which needs to be made with respect to the
applicant's argument concerns the appropriate internal flight alternative
test. The applicant has misconstrued the test to require that the CRDD be
satisfied that all individuals living in the designated region be free of the
possibility of persecution. The test requires the CRDD to be satisfied that,
on a balance of probabilities that there is no serious possibility of the claimant
being persecuted in the designated region. The CRDD must take into account the
particular circumstances of the applicant and he country conditions when
assessing the internal flight alternative. In Thirunavukkarasu v. Minister
of Employment and Immigration, [1994] 1 F.C. 589 (C/A.) Mr. Justice Linden
set out the test in the following manner at p. 598:
...The
question is whether, given the persecution in the claimant's part of the
country, it is objectively reasonable to expect him or her to seek
safety in a different part of that country before seeking a haven in Canada or
elsewhere. [Emphasis not in text]
Put another way (at p. 597):
Consequently,
if there is a safe haven for claimants in their own country, where they
would be free of persecution, they are expected to avail themselves of it
unless they can show that it is objectively unreasonable for them to do
so. [Emphasis not in text]
The test requires the CRDD to assess whether the claimant
will face a serious possibility of persecution. The applicant has not
attacked, in any way, the conclusion that protection is available to her in the
Gedo region, as a member of the Marehan clan. The CRDD correctly concluded
that protection is available to her by the Marehan in the Gedo region so that she
will not face a serious possibility of persecution. Failing to attack the
conclusion that protection is available to her, she faces the issue of
reasonableness which must be addressed.
The applicant argues that it is not reasonable for her to
seek the protection of the Marehan in the Gedo region based on her assertion
that human rights abuses are being committed. She states that she is unwilling
to seek the protection of the Marehan because of their human rights practices.
She cites Zolfagharakhani v. Minister and Employment and
Immigration, [1993] 3 F.C. 540 where this Court's Appeal Division held that
the CRDD erred in determining that the claimant did not face a serious
possibility of persecution based on his conscientious objection to the use of
chemical warfare in Iran. In that case, the applicant was a paramedic who
served in the Iranian military. after being discharge from the military, he
was asked to report for further duty as a paramedic in the war against the
Kurdish movement. During the last week of his training, he learned that the
government intended to engage in chemical warfare against the Kurds. The CRDD
found that there were no grounds to substantiate the claimant's fear of
persecution on the basis of political opinion, namely, his objection to serving
as a paramedic in the military.
The case cited is easily distinguished from the case at
bar. In Zolfagharakhani, the use of chemical weapons was found to be probable,
not merely a possibility, such that Zolfagharakhani's conscientious objection
to the use of chemical weapons, supported by the international community, would
be treated as the expression of an unacceptable political opinion. MacGuigan
J.A. stated at p. 558:
The probable
use of chemical weapons, which the board accepts as a fact, is clearly judged
by the international community to be contrary to basic rules of human conduct,
and consequently the ordinary Iranian conscription law of general application,
as applied to a conflict in which Iran intended to use chemical weapons amounts
to persecution for political opinion.
In the case at bar, as stated above, there is no evidence
to reach the applicant's conclusion that human rights abuses are being
committed against non-Marehans and there is no evidence that her objections to
these alleged abuses would be treated by the Marehans as an expression of
political opinion, for which there would be a serious possibility of
persecution.
With respect to the applicant's assertion that she is
unwilling to avail herself of the protection of the unsavoury Marehans, the
Supreme Court of Canada stated in Ward v. Canada, [1993] 2 S.C.R. 689
that a claimant's unwillingness to seek state protection must stem from a fear
of persecution on an enumerated ground. Here, the applicant has not provided
any evidence that she will be persecuted. In fact, as stated above, the
applicant has not attacked the conclusion that protection is available to her
in the Gedo region. Only on this judicial review hearing did the applicant's
counsel complain that protection would be of a poor quality provided by
dark-ages thugs.
Based on these reasons, this Court finds that the
application for judicial review should be dismissed, and hereby dismisses it.
"F.C. Muldoon"
Judge
Toronto, Ontario
July 31, 1997
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