Date: 20110705
Docket: IMM-5920-10
Citation: 2011 FC 817
Ottawa, Ontario, July
5, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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MOHAMED SUGULE TAHLIL
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
sole issue in this judicial review application, although it was framed by the
applicant in various guises, is whether the decision of the Refugee Protection
Division of the Immigration and Refugee Board that the applicant had an
Internal Flight Alternative (IFA) in Puntland, in the northeast of Somalia, and more specifically
in Bosaso, its capital city, was unreasonable.
[2]
Mr.
Tahlil was born and raised in Mogadishu, Somalia. He is a member of the Majerteen sub-clan of the Darod
clan.
[3]
The
Board accepted the applicant’s claim that he had been targeted in Mogadishu by the Al-Shabaab, an
Islamic Terrorist group, and determined that he was at risk there. The Board found
the applicant’s story to be credible, noting that he testified in a
straightforward manner without contradictions, inconsistencies, or omissions.
It also found that: (1) “Somalia is a failed state,” (2) “There is no state
protection in rump Somalia, there is only clan
protection,” and (3) in the south of Somalia, where the applicant lived, “there was no state
protection or clan protection available to the claimant.”
[4]
The
Board found that the existence of an IFA was the determinative issue in the
applicant’s case, noting that the test for an IFA involves asking (1) whether
there would be more than a minimal possibility of persecution or risk to life
or of cruel or unusual punishment for the claimant in the IFA, and (2) whether
it would be objectively unreasonable for the claimant to move to the IFA in the
circumstances.
[5]
Based
on the objective evidence in the country condition package before the Board,
and given that the applicant is a member of the Majerteen clan, the Board
concluded that he would not face a serious possibility of persecution or risk
to life or of harm in Bosaso, Puntland. That finding is not challenged. The
applicant’s challenge is to the Board’s determination that it would not be
objectively unreasonable for the applicant to move to the IFA in the
circumstances.
[6]
The applicant
said he could not live in Bosaso because he knew nothing about the area and
because his family was from Juba, in the south, now under the control of
Al-Shabaab. He also explained that his mother is a Midgan (a historically
oppressed clan) and cannot live there, and that she has two other sons, one who
is mentally disabled and the other who is paralyzed, and therefore could not
relocate.
[7]
There
is no merit to the applicant’s submission that the finding that he had an IFA
was contrary to his evidence, which was found to be credible. The Board
accepted all of the applicant’s evidence; it merely disagreed as to whether the
reasons he offered for why he could not live in the proposed IFA were valid
ones. The Board’s decision on the applicant’s IFA was not unreasonable on this
basis.
[8]
In
my view, the reasons offered by the applicant as to why he could not live in
the IFA are very much like those rejected by the Court of Appeal in Thirunavukkarasu
v Canada (Minister of Employment and Immigration), [1993] FCJ No 1172 (CA).
At para. 13, the Court explained that:
It is not a question of whether in normal
times the refugee claimant would, on balance, choose to move to a different,
safer part of the country after balancing the pros and cons of such a move to
see if it is reasonable. Nor is it a matter of whether the other, safer part of
the country is more or less appealing to the claimant than a new country.
Rather, 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. Stated another way for clarity, the question
to be answered is, would it be unduly harsh to expect this person, who is being
persecuted in one part of his country, to move to another less hostile part of
the country before seeking refugee status abroad?
[9]
Jurisprudence
from the Federal Court has indicated that in assessing whether it would be
objectively unreasonable for the claimant to move to the IFA a variety of factors
may be considered. Factors pointing to the IFA being objectively unreasonable
include:
a.
Being
unable to prove clan membership when it is required to live in the IFA, never
having lived there or having family there, not speaking the language, and
having no prospects for residence or employment: Abubakar v Canada
(Minister of Employment and Immigration), [1993] FCJ No 887 (TD);
b.
The negative
impact on any children of the claimant: Sooriyakumaran v Canada (Minister of Employment
and Immigration),
[1998] FCJ No 1402 (TD);
c.
The
young age of the claimant: Elmi v Canada (Minister of Employment
and Immigration),
[1999] FCJ No 336 (TD);
d.
The
unlikelihood of the claimant reaching the IFA without undue risk to his or her
life: Hashmat v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 598 (TD);
and
e.
The inability
of the claimant to legally remain in the area: Kandiah v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1269 (TD).
[10]
The Board observed that the
applicant is a young, single, and healthy male, all characteristics welcomed by
his clansmen in Puntland. Further, I would note that the circumstances of his mother
and her other sons would be no different if the applicant resided in Puntland
rather than Canada. In neither circumstance would they be close by. I
would also note that the circumstances of the applicant would only be marginally
different if he resided in Canada rather than Puntland given that he had only one
relative in Canada, knew no more about Canada than he did Puntland, and presumably spoke the
language of his fellow clan mates in Puntland, but neither of Canada’s
official languages. In short, he is no more hard done by in Puntland than he
is in Canada; however, Puntland is a part of the country of his
birth and nationality.
[11]
Of
the various factors examined by the Board in this case when determining whether
it would be objectively unreasonable for Mr. Tahlil to move to the IFA, the
only one that appeared to have been of some concern was whether Mr. Tahlil could
reach the IFA without undue risk to his life. However, the Board found that
“the claimant would be able to fly to Puntland safely.” This finding was based
on the evidence which the Board summarized at para. 13 of its decision, as
follows:
According to a UK assessment “Somaliland
and Puntland are in general relatively safe but the authorities in these
regions will only admit those who originate from that territory or those who
have close affiliations to the territory through clan membership. In the case
of the majority clan affiliates, this means those associated with the Majerteen
in Puntland and the Isaaq in Somaliland. In Somaliland
taxis and 4x4 vehicles can easily travel from Hargeisa, Burao, Lasanod and
Garowe. The main transportation between Somaliland and South Central is by
lorry. People travel by air between Mogadishu and Hargeisa. As well, a Dubai based airline also flies international flights into
Bosaso. The UK assessment goes on to say that “given the generally lower
levels of fighting and the relative ease of travel within many areas of
Somalia, the risks of travel are likely to be less problematic than those
considered by the AIT. It will be feasible for many to return to their home
areas from Mogadishu airport as most areas are more
accessible than previously. Mogadishu airport continues to function normally.
… There are scheduled air services to a number of destinations in Somalia – Mogadishu, Bosaso, Hargeisa, Berbera, Burao and
Galcaiyo.
[12]
I
find the Board’s use of this evidence to support its finding that the applicant
could fly safely to Puntland problematic. First, most of the passage relates
to travel into and from Somaliland, which is in the northwest of Somalia. The Board notes that
Somaliland will admit only those who originate from there or have a clan
affiliation with the Isaaq: Mr. Tahlil meets neither condition. He was born
and lived in the south of Somalia and is not a member of the Isaaq clan. Accordingly, none
of the evidence of being able to travel to Puntland from Somaliland was or is relevant to
Mr. Tahlil.
[13]
Second,
the majority of the remainder of the evidence relates to travel that involves
Mogadishu and air travel to Puntland from Mogadishu’s airport. The Board had already found that
the applicant was at risk in Mogadishu and there was no finding that he would be safe if he were
to access its airport. Mogadishu is particularly
unlikely to be a safe location for the applicant given the Board’s findings
that Somalia is a failed state and that the applicant has neither state nor
clan protection in Mogadishu.
[14]
This
leaves the statement of the Board that “a Dubai based airline also flies international flights
into Bosaso” as the only basis for the finding that “the claimant would be able
to fly to Puntland safely.” This appears, from the exchange between counsel
for the applicant and the Member at page 23 of the transcript of the hearing (page
266 of the Certified Tribunal Record), to be a statement based on the Member’s
personal knowledge and not the documentary evidence.
[15]
What
this indicates is that while Mr. Tahlil, when he left Somalia, could not have
traveled safely to the IFA, now that he is in Canada he can reach the IFA safely because he can
fly directly to Bosaso, Puntland and does not need to travel into or through
the south of the country.
[16]
The
Court of Appeal in Thirunavukkarasu, above, held that the
existence of an IFA is not a separate test but is a part of the definition of a
Convention refugee. At para. 2, the Court stated that:
The idea of an internal flight
alternative is "inherent" in the definition of a Convention refugee;
it is not something separate at all. That definition requires that claimants
have a well-founded fear of persecution which renders them unable or unwilling
to return to their home country. If claimants are able to seek safe refuge
within their own country, there is no basis for finding that they are unable or
unwilling to avail themselves of the protection of that country. [references omitted]
[17]
The
Federal Court has often emphasized that the definition of a Convention refugee
is forward-looking and that the fear of persecution must be assessed at the
time of the examination of the claim for refugee status. That being so, the
assessment of whether there is an IFA available to the claimant must also be
examined prospectively and it matters not whether the proposed safe haven could
have been accessed by the claimant directly at the time he left his home
country – it matters only whether he can access it now. Accordingly, the
Board’s determination that the applicant has an IFA in Puntland is reasonable
provided he is returned directly to Bosaso, Puntland and does not need to
travel into or through other areas of Somalia. Given the importance of this specific finding
and the risk to the applicant’s life otherwise, it is appropriate, in my view,
in these circumstances to direct, as the Board found, that if the applicant is removed
from Canada to Somalia, he is to be returned directly to Bosaso, Puntland and
is not to travel into or through other areas of Somalia.
[18]
No
question was proposed for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. This
application is dismissed;
2. If the applicant is removed
from Canada to Somalia, he is to be returned
directly to Bosaso, Puntland and is not to travel into or through other areas
of Somalia; and
3. No question is
certified.
“Russel W. Zinn”
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