Date: 20081014
Docket: IMM-1610-08
Citation: 2008
FC 1160
Ottawa, Ontario,
October 14, 2008
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
MAHAD
MAHDI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under section 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a negative decision
rendered on February 29, 2008, by L. Krajcovic, a Pre-Removal Risk Assessment Officer
(the PRRA Officer).
[2]
The
applicant, Mahad Mahdi, was born on June 6, 1964 in Mogadishu, Somalia and is a citizen of Somalia. On July 14, 1995, he arrived
to Canada and claimed Convention
Refugee status. He stated having a well-founded fear of persecution by reason
of his clan membership and due to his perceived political opinion.
[3]
On
November 28, 1997, the Refugee Protection Division of the Immigration and
Refugee Board (the Board) rejected the applicant’s claim. The Board did not
find the applicant to be a “credible or trustworthy witness on issues central
to his claim”. Moreover, the Board accepted that the applicant is a member of
the Abgal clan. However, the Board found that there was no serious evidence
that Abgals in Somalia face a serious risk of persecution
by reason of clan membership.
[4]
Some ten
years later, that is on October 11, 2007, the applicant made a PRRA application
in support of which he did not file any supplementary evidence. On February 29,
2008, the PRRA Officer rendered a negative decision and concluded that the
applicant had failed to establish that he faces either a well-founded fear of
persecution or a risk to his life or risk of cruel and unusual treatment or
punishment.
[5]
The
overall conclusion of the PRRA Officer reads as follows:
[…]
I acknowledge that the country conditions
in Somalia are not favourable. However,
as the Supreme Court of Canada noted in Ward, the international
community did not intend to offer a haven for all suffering individuals.
Rather, international refugee law is limited and some pleas may be excluded
from international protection despite seemingly deserving of such protection.
The applicant’s risk upon return to Somalia
does not fall within the risks described in sections 96 or 97 of the IRPA
and, as a result, the applicant is not a Convention refugee or a person in need
of protection.
I find that there is no more than a mere
possibility that the applicant will face persecution if returned to Somalia. I find that it is less
likely than not that the applicant will face risk to life, danger of torture or
risk of cruel and unusual treatment or punishment if returned to Somalia.
[6]
The
applicant now seeks to judicially review the PRRA Officer’s findings,
submitting that as a member of the Abgal clan and as a returnee to Somalia, he is a person in need of
protection. Despite the fact that the Board has found that the applicant lacks
credibility, although no new evidence was produced in support of his PRRA
application, the applicant alleges that the PRRA Officer ignored other readily
available documentary evidence. Applicant’s counsel submits that this evidence
demonstrates that there is currently a deliberate effort to target civilians
because of their membership to the opposite clan as well as evidence indicating
that there is intra-clan fighting even within the majority Abgal clan, and that
people are being targeted on account of their clan membership. There is also evidence
indicating that the authorities in Somalia often view returnees as terrorists,
and that returnees are thus subject to death because they are seen as either
rich or disloyal.
[7]
I have determined
based on past jurisprudence of this Court, that the standard of review of a
PRRA Officer’s findings, except where they concern pure questions of law, is
reviewable on the standard of reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J.
No. 9 (QL) (Dunsmuir). In Dunsmuir, at paragraph 47, the Court
gave useful instruction on applying the reasonableness standard. Reasonableness
is concerned with the existence of justification, transparency and
intelligibility within the decision-making process. It is also concerned with
“whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law”. This Court should
refrain from intervening in the PRRA Officer’s analysis of the evidence unless
it can be conclusively shown that the latter has otherwise ignored or
arbitrarily discarded highly relevant evidence of risk (Da Mota v. Canada (Minister of Citizenship and
Immigration),
[2008] F.C.J. No. 509, 2008 FC 386, at paragraph 15). This is not the case in
this instance.
[8]
I entirely
agree with the respondent that the burden of proof lies with the applicant (Bayavuge v. Canada (Minister
of Citizenship and Immigration), [2008] F.C.J. No. 111 at paras. 42 to 49, 2007 FC 65). It is apparent that the
applicant simply did not establish, on a balance of probabilities, that he will
face the danger or risks described in sections 96 and 97 of the Act. The
applicant did not file any supplementary documentation in support of his PRRA
application. The conclusion of the PRRA Officer is based on the documentary
evidence and is reasonable in the circumstances. Contrary to the applicant’s
submissions, in reviewing the documentary evidence of the Board’s website as
well as the documentary evidence to which the PRRA Officer refers, I conclude
that the PRRA Officer did in fact consider the updated version of the
documentary evidence on which the applicant is now seeking to rely. In
assessing the applicant’s risk, the PRRA Officer considered the UK Home Office
Operational Guidance Note of November 2007 (United Kingdom (UK). 12 November
2007: Home Office. Border and Immigration Agency. Operational Guidance Note:
Somalia). This document was in turn
based on information contained in the updated November 2007 UK Home Office
Country Report (United Kingdom (UK). 12 November 2007. IND-RDS COI Service. Somalia Country of Origin Information
Report).
Reference is made to the United Nations High Commissioner for Refugees’ (UNHCR)
position on the return of rejected asylum seekers. Their conclusion is that “[w]e
do not therefore accept UNHCR’s conclusion, based on their overview of the
general situation that it is unsafe for all persons who have been found not to
be in need of some form of international protection to return to Somalia”.
[9]
In the
case at bar, the PRRA Officer’s general conclusion was one of the available
acceptable outcomes and the applicant has failed to show that it was
unreasonable. According to the documentary evidence, there is “semi-conflicting
information” regarding the security situation for ordinary Somalis (including members
of certain clans) and returnees to Somalia.
Neither the document now relied upon by the applicant, nor the updated version
relied upon by the PRRA Officer, conclusively establishes that Abgal clan
members or returnees are currently personally at risk, or targeted, in Somalia. It is understandable that
the applicant may not want to return to Somalia because of the ongoing war and the
general country conditions. However, the applicant has not made a case for the
application of section 96 of the Act nor does he come within the ambit of
section 97 of the Act (which requires that the risk be personal rather than
generalized). There is no more than a mere possibility that the applicant will
fear persecution if returned to Somalia and based on the facts submitted and
the current country conditions, the applicant’s fear does not amount to a
personalized risk.
[10]
The
present application must fail. Counsel agree that this case has not raise a
question of general importance and none shall be stated by the Court.
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