Date: 20110525
Docket: IMM-5371-10
Citation: 2011 FC 613
Ottawa, Ontario, May 25,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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SAMRIYE ABDULKADIR HASSAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of Pre-Removal Risk
Assessment Officer S. Wilkinson (the PRRA Officer) dated August 10, 2010,
wherein the Officer determined that the Applicant had failed to provide
sufficient evidence to satisfy the Officer that there was more than a mere
possibility that he would be persecuted in Somalia or that he would face a risk
of torture, or a risk to life or a risk of cruel and unusual treatment or
punishment if removed to Somalia.
[2]
Based
on the reasons below, this application is dismissed.
I. Background
A. Factual
Background
[3]
The
Applicant, Samriye Abdulkadir Hassan, is a citizen of Somalia. He first
filed a refugee claim on May 24, 1995 (under what turned out to be an alias)
when he arrived in Canada on a ship on which he was working. He claims
that he was unfamiliar with the refugee determination process and returned to
Somali four months later because he believed that the situation in Somalia would
improve. His refugee claim was declared abandoned on May 13, 1996. The
Applicant resided in Somalia until October 2008 when
he decided to flee to Kenya with his wife and child. He resided in
Nairobi with his family until he decided to flee to Canada in January
2009. His family remains in Kenya.
[4]
The
Applicant arrived in Canada for the second time on January 16, 2009.
Shortly thereafter, he attempted to file a second refugee claim. When it was
discovered that he had previously made a refugee claim his current claim was
rendered ineligible.
[5]
On
June 18, 2009, the Applicant submitted an application for a pre-removal risk
assessment. His application centered on the risk of persecution he would face
as a member of the minority Madhiban clan. In his narrative he alleged that in
2001 a group of men from a larger tribe came to his house in the Wardigley
district of Mogadishu and killed his mother and father. In 2008, his sister
was raped and killed at the family home.
B. Impugned
Decision
[6]
The
Officer considered all of the documentary material presented in support of the
application, and also conducted his own independent research into country
conditions in Somalia as they
related to the Applicant. The Officer was not satisfied that the incidents recounted
by the Applicant were motivated by the minority clan status of the Applicant’s
family, as the Applicant did not provide any further details of the incidents
or evidence to corroborate their occurrence. Although the Applicant submitted
articles related to the incidents of violence between the rebel militia groups
and the government forces, it was not explained how these articles related to
the Applicant’s particular situation. The Officer was not persuaded that the
Applicant would face a risk different than that of the general minority clan
population. The Officer did not find that the Applicant submitted sufficient
evidence to demonstrate a personalized risk.
[7]
The
Officer acknowledged that the Applicant was a citizen of Somalia, but having
regard to the affidavits provided by the Applicant, he was not satisfied that
the Applicant had submitted sufficient evidence to show, on the balance of
probabilities, that the Applicant belonged to the minority Madhiban clan. The
Officer considered the alternative, but found nonetheless, that the documentary
evidence demonstrated that the country is attempting to provide a sense of
protection for all citizens. The Officer concluded that the risks pointed to
by the Applicant were general risks that could be faced by 22% of the Somali
population, the figure representing the population of minority clan members in Somalia. The
evidence provided did not corroborate that the Applicant was targeted by a
majority Somali clan for any reason when he did reside in Somalia, or that he
would be targeted by any of them upon his return.
II. Issue
[8]
This
Applicant raises only one issue in this application:
(a) Did
the PRRA Officer fail to consider the totality of the evidence?
III. Standard of Review
[9]
The
appropriate standard of review to apply to a PRRA Officer’s findings of fact,
or mixed fact and law, such as the existence of risk of persecution, is
reasonableness (Hnatusko v Canada (Minister of
Citizenship and Immigration), 2010 FC 18 at para 25). Judicial deference
to the decision is appropriate where the decision demonstrates justification,
transparency and intelligibility within the decision making process, and where
the outcome falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
IV. Argument
and Analysis
A. Did
the PRRA Officer Fail to Consider the Totality of the Evidence?
[10]
The
Applicant submits that he established that there is a reasonable possibility
that he will be persecuted if returned to Somalia. He argues
that this Court should intervene in his case because the Officer erred in
attributing little weight to the affidavits that claim to confirm the
Applicant’s membership in the Madhiban clan. Further, the Officer erred in
failing to consider his explanation for the lack of corroborative documentary
evidence. The Applicant’s counsel explained in the letter accompanying the
affidavits dated November 20, 2009 that, since there was no central government
in Somalia, the
Applicant would be unable to produce documentary evidence to support his claim.
[11]
I
fully accept the Respondent’s submission that the decision does not disclose
any reviewable errors, in so far as the Officer reviewed all the available
evidence, examined the personal situation of the Applicant, assessed the
present country conditions and based his risk assessments on the available
documentary evidence.
[12]
It
is clear from the notes to file that the Officer read and considered the two
affidavits provided by the Applicant. Aside from noting that the affidavits
were very similar in nature and written by personal friends, the Officer
decided to attribute little weight to the letters because the authors made no mention
of their own clan membership, nor did they provide any corroborating evidence
to substantiate that the Applicant belonged to the Madhiban clan. The Officer
implied that that Applicant might have instead provided affidavits written by
official members of the Applicant’s tribe – these might have attracted more
weight.
[13]
As
such, I cannot say that the Officer ignored any of the evidence before him.
His decision to attribute little weight to the affidavits is entirely
reasonable and supported by his notes. His decision is entitled to deference.
It is understandable that the Applicant disagrees with the outcome of the
Officer’s analysis. But even if I were to accept that the Officer disregarded
the Applicant’s minority clan membership, it would make no difference to the
outcome. The Officer went on to examine, in the alternative that he accepted
the Applicant’s alleged clan membership, the documentary evidence related to
the conditions experienced by minority clan members in Somalia. The
Officer found that there had been localized improvements in Somalia’s human
rights practices and improvements in Somalia’s attempts to protect
its citizens. The Officer concluded that the risks alleged by the Applicant
are the same risks faced by all minority clan members in Somalia.
[14]
Essentially,
the Applicant argues that because he is from Somalia, a country
the Officer acknowledges is unstable and violent, he is unable to produce
documents originating from any central government. As such, the Officer must
accept the affidavits produced as probative evidence. This is not a tenable
argument. Although it is understandable that people facing situations of
violence and civil unrest might not be able to acquire official government
documentation, the onus is still on the applicant to produce credible,
probative evidence in support of their claim. The Officer is in the best
position to evaluate the probative value of whatever evidence is adduced, and
as long as he does so reasonably, this Court will not intervene.
[15]
In
any case, regardless of whether the Officer gave full weight to the affidavits
and accepted the Applicant’s membership in the Madhiban clan, the outcome of
the application is still reasonable, justified and intelligible whether it is
what the Applicant hoped for and expected or not.
V. Conclusion
[16]
No
question was proposed for certification and none arises.
[17]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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