Docket: IMM-5723-13
Citation:
2014 FC 1198
Ottawa, Ontario, December 12, 2014
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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YUSUF AXMED KULMIYE
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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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JUDGMENT AND REASONS
I.
Nature of the Matter and Background
[1]
The Applicant’s request for refugee protection
pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [the Act] was refused by the Refugee Protection
Division of the Immigration and Refugee Board of Canada [the Board]. The
Applicant now applies for judicial review pursuant to section 72(1) of the Act,
requesting that this Court set aside the Board’s decision and return the matter
to a different member of the Board for re‑determination.
[2]
The Applicant is now a 24 year old man from Somalia and, according to his personal information form, he lived in Mogadishu for most of his life.
The Applicant alleges that the majority Hawiye clan persecuted him for being a
member of the minority Ashraf clan and that he has been harassed and
discriminated against ever since he was a child. The Applicant claims that both
his father and sister were victims of clan-based violence; his father died in
2000 after being beaten badly by Hawiye extortionists and, in April 2003, his
sister was just 16 years old when Hawiye militia members raped and murdered her
after pillaging their home. The Applicant also says that when his mother tried
to intervene during this 2003 attack at their home, the Hawiye militia members
beat her with their rifles.
[3]
The Applicant further alleges that he was being
targeted by a militant group called Al-Shabaab. When he was in grade 11, the
Applicant would occasionally get calls from Al-Shabaab operatives asking if he
worked for the transitional government, but he always answered that he was
simply a student. In 2009, the Applicant says his mother told him that members
of the Al-Shabaab militia came to his house and after this incident she sent
him to hide at his aunt’s house. Al-Shabaab members came to his house a second
time in mid-December 2009, and again he was not home; this time, however, they
told his mother that they would kill him if he did not contact them. Shortly
thereafter, the Applicant’s mother hired a smuggler to take him out of the
country.
[4]
In early 2010, the Applicant fled Somalia to the United States where he claimed asylum. The Applicant was incarcerated on an
immigration hold in the United States and his claim for asylum in the United States was rejected in October, 2010. Following his release from detention under
supervision in the United States in 2011, the Applicant came to Canada on March 29, 2012, seeking protection here.
II.
Decision under Review
[5]
In a decision dated July 31, 2013, the Board
rejected the Applicant’s claim because it concluded that he was neither a
Convention refugee under section 96 of the Act nor a person in need of
protection under section 97(1).
[6]
The Board never questioned the Applicant’s
story, but nonetheless found that his fear of persecution had no objective
basis. The Board determined that stability and the potential for a peaceful
existence had returned to some parts of Somalia, especially since Al-Shabaab
had lost every major population centre it once controlled, including Mogadishu, from which Al-Shabaab withdrew for tactical reasons in August, 2011.
[7]
The Board found that Al-Shabaab did not often
use force to recruit new members and instead recruited boys between the ages of
13 and 18 by offering them money and other inducements. Since Al-Shabaab had
only made two visits to the Applicant’s house, the Board did not think
Al-Shabaab was trying very hard to find the Applicant. Consequently, the Board
concluded that the death threat was probably just to ensure that the Applicant
made himself available to meet with the Al-Shabaab, and the Board did not
believe that Al-Shabaab would still be interested in the Applicant several
years after their recruitment attempts. More importantly, the Board found that
Al-Shabaab no longer had any visible, oppressive presence in Mogadishu and
returned only to commit terrorist attacks. In the Board’s view, Al-Shabaab
would be in no position to track down the Applicant should he return to Somalia.
[8]
As for the Applicant’s other allegations, the
Board was not satisfied that the incidents he experienced over the years were
motivated by clan affiliation. The Board determined that the clan warfare was
primarily driven by disputes over territory and resources, and it ended in 2006
after Islamic groups defeated the warlords. The Applicant and his family were,
the Board stated, the victims of ordinary crimes, and the Board was not
convinced that the perpetrators were driven by anything but greed.
Consequently, the Board decided that there was no serious possibility that the
Applicant would be harmed or persecuted because of his clan affiliation.
[9]
Finally, the Board found that the Applicant’s
past experiences were not compelling enough reasons to grant him protection
under section 108(4) of the Act. The Board determined that there was
insufficient credible evidence to show that the Applicant had suffered any
lasting psychological effects, and the government was not responsible for the
Applicant’s terrible experiences. In the words of the Board, the “alleged persecutors are criminals”. Even Canada has criminals who hurt the innocent, the Board noted, and it thus decided that the
Applicant’s experiences were not exceptional enough to be compelling reasons to
grant him protection.
III.
Issues
[10]
The Applicant submits two issues for the Court’s
consideration:
1.
Did the Board err in its finding as to the
objective well-foundedness of the Applicant’s fear by ignoring relevant
documentary evidence, making findings of fact based on speculation or
irrelevant considerations?
2.
Did the Board err by improperly applying
subsection 108(4) of the Act?
[11]
The Respondent contends that the only issues
are:
1.
What is the appropriate standard of review?
2.
Was the Board’s decision reasonable?
IV.
The Parties’ Arguments
A.
The Applicant’s Arguments
[12]
The Applicant asserts that some of his arguments
raise issues of law, which attract the correctness standard of review (Mugadza
v Canada (Citizenship and Immigration), 2008 FC 122 at para 10). For
everything else, the Applicant acknowledges that reasonableness is the standard
of review (Nzayisenga v Canada (Citizenship and Immigration), 2012 FC
1103 at para 24 [Nzayisenga]; Sugiarto v Canada (Citizenship and
Immigration), 2010 FC 1326 at para 10 [Sugiarto]).
[13]
The Applicant states that the Board failed to
have proper regard to all of the country documentation available to it and also
did not properly assess the Applicant’s claim on a forward-looking basis.
[14]
The Applicant criticizes the Board for
speculating about the reasons why Al-Shabaab was threatening to kill him (Canada
(Minister of Employment and Immigration) v Satiacum (1989), 99 NR 171 at
paras 34-35 (CA)). According to the Applicant, the country documentation
clearly shows that Al-Shabaab is a brutal and violent organization and there is
no reason to assume that its threats were empty. Furthermore, the Applicant
says other documents before the Board showed that Al-Shabaab had not left Mogadishu completely and was still running an intense recruitment campaign targeting both
adults and children using violence and threats. The Applicant asks the Court to
infer that the Board overlooked this evidence since it squarely contradicts its
findings (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425 (QL) at para 17, 157 FTR 35 [Cepeda-Gutierrez]).
Even if more recent documentary evidence as to the conditions in Somalia does not paint as grave a picture as in the past, the Applicant argues that this
does not cure the Board’s failure to consider this evidence at all.
[15]
In addition, the Applicant argues that the Board
erred by finding that Al-Shabaab no longer had a presence in Mogadishu, since
the documentary evidence confirms that they continue to commit terrorist
attacks in that city and are still fighting the government-allied forces for
power. The Applicant contends that more evidence was needed to find a durable
or effective change in the threat posed by Al-Shabaab (Khan v Canada (Minister of Citizenship and Immigration), 2001 FCT 1035 at para 10). Due to
this error, the Applicant says that the Board never even considered his fear of
Al-Shabaab as it related to his religious beliefs as a Sufi Muslim or his fear
based on his presence in the West for the last few years. The Applicant states
that it was unreasonable for the Board to deny his claim in light of the
evidence that he had been specifically targeted by Al-Shabaab, especially since
the Applicant had stated that “I will be harmed or killed
by [Al-Shabaab] as I am not following their ideology … in [Al-Shabaab]
mentality I came to the lands of infidels and I am unclean and dirty and don’t
deserve to be alive”. The Applicant states that the Board failed to
consider the evidence of religious persecution as it relates to the Applicant.
[16]
As for his clan affiliation, the Applicant
submits that the Board’s finding that clan-based problems ended in 2006 was
unjustifiable. The Applicant points out that a 2012 report from the United Kingdom’s
Border Services Agency expressly stated that the “UNHCR
considers the Ashraf and Bravanese to be at risk of persecution on the ground
of their ethnicity/race as they lack the military capabilities to defend
themselves”.
[17]
Lastly, the Applicant argued that the Board
misapplied section 108(4) of the Act by requiring the Applicant to have
lasting psychological damage. No such requirement exists, the Applicant
submits, and all that was required was atrocious persecution in the past (Jiminez
v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 87 (QL)
at paras 31-34, 162 FTR 177).
B.
The Respondent’s Arguments
[18]
The Respondent asserts that the standard of
review for every issue is reasonableness, which precludes the microscopic
approach advanced by the Applicant. Even if a few of the Board’s findings are
speculative, the Respondent argues that is not enough to make the decision
under review unreasonable, since the finding that the Applicant’s claim lacked
an objective basis can be supported by the evidence. According to the
Respondent, the Board adequately assessed the country condition documents based
on the risks that the Applicant identified and simply preferred more recent
documentation to that which he now cites. The Respondent contends that it is
not the Court’s role to re-weigh that evidence and that the Applicant has
failed to demonstrate how the general country conditions would affect him
personally.
[19]
As for the claim that the Board ignored a nexus
to religion, the Respondent argues that a fear based on religion was never
squarely put to the Board. The Applicant put forward no substantive evidence of
such a fear, the Respondent says, and the Board was under no duty to comment on
it (Construction Labour Relations v Driver Iron Inc, 2012 SCC 65 at para
3, [2012] 3 S.C.R. 405).
[20]
Finally, the Respondent contends that protection
under section 108(4) is exceptional (Canada (Minister of Employment and
Immigration) v Obstoj, 93 DLR (4th) 144 at 157, [1992] 2 FCR 739 (CA); Rasanayagam
v Canada (Minister of Citizenship and Immigration), [1995] FCJ No 1080 (QL)
at paras 6-7 (TD)). Such protection can only be extended if the Applicant
established he was a victim of atrocious persecution, and the Board reasonably
characterized the events that happened to his family as criminal actions.
Furthermore, the Board did not make lasting psychological effects a
pre-condition; it simply observed that it was a relevant factor and that the
Applicant had none. The Respondent says that was entirely reasonable (Oprysk
v Canada (Minister of Citizenship and Immigration), 2008 FC 326 at para
30).
V.
Analysis
A.
What is the appropriate standard of review?
[21]
I agree with the Respondent that reasonableness
is the standard of review for every issue raised by the Applicant (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 S.C.R. 190 [Dunsmuir];
Nzayisenga at para 24; Sugiarto at para 10). The Board’s decision
should not be disturbed so long as its “reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes”
(Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para 16, [2011] 3 S.C.R. 708).
B.
Was the Board’s decision reasonable?
[22]
The Board’s finding that Al-Shabaab had
retreated from Mogadishu was supported by the evidence. Although the Applicant
emphasized that Al-Shabaab still attacks targets in Mogadishu, this was
something the Board recognized when it said that Al-Shabaab returns “only for terrorist type attacks before retreating again”.
That does not mean that Al-Shabaab would assassinate someone like the Applicant
whom it failed to recruit half a decade ago. The Board’s conclusion that
Al-Shabaab “does not have a visible, oppressive presence
in Mogadishu any longer” was reasonable.
[23]
The same cannot be said, however, for the
Board’s conclusion that it was unlikely that Al-Shabaab would still want to
recruit the Applicant. In making its findings, the Board observed that the
Applicant never knew why Al-Shabaab were looking for him, and speculated that: “[i]t could be that they did not want to harm him at all but
rather wanted to offer him some of the inducements that the country documents
state are routinely used to entice youth to join their ranks”. The death
threat, the Board stated, might not have been genuine and “could just as likely have been made to ensure that the
claimant made himself available to meet with them in order for them to offer
their inducements for membership”.
[24]
I agree with the Applicant that the Board’s
conjectures in this regard were not reasonable and ignored both the Applicant’s
evidence and the documentary evidence (Satiacum at para 35). In his
personal information form narrative, the Applicant stated that, two days after
Al-Shabaab members came to his house a second time, young people from his
neighbourhood who refused to join Al-Shabaab “got killed
in [sic] the spot”. At the hearing before the Board, the Applicant also
testified that “for the young guys that they [Al-Shabaab]
ever approached, any of my friends, whoever said ‘no’ was killed”. The
Board never rejected this evidence nor questioned the Applicant’s credibility,
even though such evidence contradicts its speculation about why Al-Shabaab
wanted to meet with the Applicant.
[25]
Furthermore, the Board’s finding that violence
is not a preferred method of recruitment appears to have been based on a
Response to Information Request about Al-Shabaab, SOM103871.E, but that
document is not consistent with the Board’s finding in this regard. It says
that, “[n]umerous sources report that Al-Shabaab uses
violence and the threat of violence to recruit children and youth […] and
punishes or threatens those who resist, as well as their families”. This
document also confirms that adults are also forcibly recruited and, although it
refers to incentives like money being used as well, there is no indication that
offering inducements is a preferred method of recruitment.
[26]
In addition, the Board unreasonably dismissed
the significance of the death threat to the Applicant by asserting that it
might not be genuine. In Canada (Attorney General) v Ward, [1993] 2 SCR
689 at 724, 103 DLR (4th) 1 [Ward], the Supreme Court observed that: “it would seem to defeat the purpose of international
protection if a claimant would be required to risk his or her life seeking
ineffective protection of a state, merely to demonstrate that ineffectiveness”.
For a similar reason here, the Applicant should not be required to give his
alleged persecutors the chance to murder him just to prove that their death
threat was genuine.
[27]
The Applicant also argued that the Board
overlooked material evidence. The Board found that minority clans do not face
any special challenges any longer. Although some sources suggest weak minority
clans such as the Ashraf were at risk of abuse in conflict situations, and
other sources said that all groups were endangered, the Board found that the
situation changed in 2006 when Islamic groups defeated a combined force of clan
warlords. The Board found that was relevant since the Applicant’s subjective
fear was based on clan warfare, and that “the current
conflict is, ostensibly at least, a war between groups with different
interpretations of Islam”. As for the crimes the Applicant alleged he
and his family had been subjected to, the Board stated these all centered
around money and it was not convinced that his status as a member of a minority
clan was the reason for them.
[28]
I agree with the Applicant that the Board erred
in its analysis of material evidence. Although the Board is presumed to have
considered all the evidence (Florea v Canada (Minister of Employment and
Immigration), [1993] FCJ No 598 (QL) at para 1 (CA)), which includes
evidence as to country conditions (see: Ponniah v Canada (Citizenship and
Immigration), 2014 FC 190 at para 17 (available on CanLII)), this
presumption can be rebutted if the Board does not address important evidence
that directly contradicts its findings (Hinzman v Canada (Citizenship and
Immigration), 2010 FCA 177 at para 38, [2012] 1 FCR 257, citing Cepeda-Gutierrez
at para 17). Furthermore, while this Court is sometimes reluctant to infer
that country condition documentation was overlooked for various practical
reasons (see: e.g., Bustos v Canada (Citizenship and Immigration), 2014
FC 114 at paras 35-39, 24 Imm LR (4th) 81), I am prepared to draw that
inference in this case for the following reasons.
[29]
Although the Board reasonably found that the
nature of the military conflict in Somalia changed in 2006 based on a 2009
document, it is unclear why this led the Board to discount the evidence from
the Landinfo report that “all groups or clans who are
outnumbered and lacking military strength in the area where they live can be
categorised as minorities and may be subject to abuse in a conflict situation”
(National Documentation Package (3 May 2013), item 13.3: Norway, Landinfo:
Country of Origin Information Centre, “Somalia:
Vulnerability, minority groups, weak clans and individuals at risk” (21 July
2011)). This report was a 2011 document reporting evidence of the situation in
2009, which was well after the military defeat of the warlords.
[30]
Moreover, there was evidence in the country
documentation which could support the Applicant’s claim, none of which was
mentioned by the Board. The Ashraf clan, of which the Applicant is a member,
are included under the umbrella term “Benadiri”, and in its “Somalia 2012 Human Rights Report” (19 April 2013), the
United States Department of State observed the following:
More than 85 percent of the population shared a
common ethnic heritage, religion, and nomad-influenced culture. In most areas
members of groups other than the predominant clan were excluded from effective
participation in governing institutions and were subject to discrimination in
employment, judicial proceedings, and access to public services.
Minority group clans included the Bantu (the
largest minority group), Benadiri, Rer Hamar, Brawanese, Swahili, Tumal, Yibir,
Yaxar, Madhiban, Hawrarsame, Muse Dheryo, Faqayaqub, and Gabooye. Intermarriage
between minority groups and mainstream clans was restricted by custom. Minority
groups, often lacking armed militias, continued to be disproportionately
subject to killings, torture, rape, kidnapping for ransom, and looting of land
and property with impunity by faction militias and majority clan members. Many
minority communities continued to live in deep poverty and suffer from numerous
forms of discrimination and exclusion.
[31]
Like the United States Department of State
report, the United Kingdom Border Agency reported the following in its
operational guidance note on Somalia dated October 2012:
3.9.8 Minority
Rights Group research has shown that “minority communities in Somalia fall outside the traditional clan structure of the majority and also therefore the
protection afforded by such systems. Because of social segregation, economic
deprivation and political manipulation, minorities are more vulnerable to rape,
attack, abduction, property seizure and the consequences of drought”. The same
source reports that “Minority groups including the Bantu, Benadiri and
Christian communities are attacked for practising their religious beliefs”.
3.9.9 Furthermore,
UNHCR Somalia explained that “today there is no guarantee of clan protection in
Somalia, in particular members of minority clans and ethnic minority groups
are vulnerable …
…
3.9.11 … UNHCR
considers the Ashraf and Bravanese to be at risk of persecution on the ground
of their ethnicity/race as they lack the military capabilities to defend
themselves and do generally not benefit from the protection of war-lords and
militias of the large clans. [Footnotes omitted]
[32]
The Board’s failure to consider this aspect of
the Applicant’s claim casts doubt on the Board’s finding that the people who
attacked the Applicant’s family did so only for money and had only criminal
motives, since the Board never considered the evidence about the systemic
factors that make a minority group such as that of the Applicant easy to
target.
[33]
Lastly, contrary to the Respondent’s submissions
that there was “scant” evidence before the Board
to assess the degree of risk faced by the Applicant by reason of his religion,
it was not reasonable for the Board to ignore this potential risk altogether.
In my view, the Board in many aspects of its decision failed to have proper or
reasonable regard to the relationship between the Applicant’s status as a
member of the Ashraf clan and as a Sufi Muslim vis-à-vis the Hawiye and
Al-Shabaab militia members.
[34]
In his personal information form, the Applicant
only said that he feared persecution for “membership in a
particular social group” and “political opinion”.
Although the Respondent notes that the Applicant did not check off the box for
“religion” in such form, that omission is not fatal to his religious based
fear. As the Supreme Court of Canada stated in Ward at 745, “it is not the duty of a claimant to identify the reasons for
the persecution. It is for the examiner to decide whether the Convention
definition is met”.
[35]
I agree with the Applicant that the prospect of
a religious nexus to his claim was sufficiently raised before the Board. The
Board member asked the Applicant at the hearing why Al-Shabaab would target
him, and the Applicant answered that it was because he was Sufi and Al-Shabaab
detests Sufism. Also, when making his arguments at the end of the hearing
before the Board, the Applicant’s counsel at the time expressly identified
religion as a ground of persecution. The Board never squarely acknowledged or
adequately addressed this aspect of the Applicant’s claim. Accordingly, the
Board’s failure to address this aspect of the Applicant’s claim was not
reasonable.
[36]
In view of the foregoing reasons, it is
unnecessary to address the parties’ submissions and arguments with respect to
section 108(4) of the Act.
VI.
Conclusion
[37]
In the end, I find that the Board’s decision was
not reasonable and the application for judicial review is hereby allowed.
Neither party suggested a question for certification; so, no such question is
certified.
[38]
The Applicant requested costs in his memorandum,
but section 22 of the Immigration Rules provides that costs should not
be awarded unless there are “special reasons” for so doing (see Ndungu v Canada (Citizenship and Immigration), 2011 FCA 208 at paras 6-7, 423 NR 228). There are
no such reasons in this case.
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