Docket: IMM-6436-14
Citation:
2015 FC 637
Ottawa, Ontario, May 15, 2015
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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SAID OMAR
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is the judicial review by an Immigration
Officer [Officer] in which the Applicant’s Pre-Removal Risk Assessment [PRRA]
application was rejected. The relevant country is Somalia. An interlocutory
injunction against removal was issued by Justice Manson.
II.
Background
[2]
The Applicant, a citizen of Somalia, left that
country in 1992 at age 6. Thereafter, he has spent his life firstly in Kenya,
then in the United States for 10 years until 2013 and now in Canada. He has no
legal status in either Kenya or the United States. He does not fluently speak
nor read or write the language of Somalia. His first language is English and
his second is Swahili.
[3]
Mr. Omar is a member of the Tunni clan, a small
minority group in Somalia. In 1992, following a series of attacks on his family
home, the Applicant and an aunt left for the Kenyan border and eventually to
Nairobi where he spent 10 years.
[4]
In September 2003, at age 17, the Applicant
entered the United States and secured an annual work permit. Eventually, his US
asylum claim was denied on the basis that no one would recognize or know him if
he was returned to Somalia. However, he was not removed due to the US’s policy
of non removal to Somalia because of dangerous country conditions.
[5]
Mr. Omar then came to Canada; however, he was
returned to the United States under the Safe Third Country Agreement. He
re-entered Canada illegally and was able to make a PRRA application.
[6]
The Officer concluded that the Applicant had an
IFA in Mogadishu, Somalia, because it was reasonable for Omar to seek refuge in
that part of the country as he would not be at risk there.
[7]
More particularly, the Officer discounted the
threat of recruitment by Al-Shabaab of a young, unaccompanied, westernized,
English speaking, minority Somali. Any risk the Applicant would face was part
of the generalized risk faced by all Somalis. Finally, the Officer concluded
that a Federal Court decision (Yahya v Canada (Citizenship and Immigration)
2013 FC 1207, 235 ACWS (3d) 776 [Yahya]) plus country condition
documents referring to violence did not constitute sufficient evidence to rebut
the presumption of a viable IFA in Mogadishu.
III.
Analysis
[8]
The applicable standard of review for this
discretionary decision is reasonableness (Serrano Lemus v Canada
(Citizenship and Immigration), 2012 FC 1274, 221 ACWS (3d) 966).
[9]
This PRRA decision is strikingly unreasonable.
This decision rises (or falls) to the level of the now defunct standard of “patently unreasonable”.
[10]
There are several recent Federal Court cases
that call into question the reasonableness of an IFA where a person: comes from
a minority clan or cannot establish clan membership, and would be conspicuous
thereby; has never lived at the IFA nor have family there; does not speak the
language; has not lived in Somalia for years and has no adult experience there;
has no prospects for residence or employment and has lived for 10 years in
North America (see Abdulla Farah v Canada (Citizenship and Immigration),
2012 FC 1149, 223 ACWS (3d) 183; Abubakar v Canada (Minister of Employment
and Immigration), [1993] FCJ No 887, 67 FTR 313; Yahya, supra).
The Officer largely ignores these factors.
[11]
The Officer’s reasons also fail to reasonably
address that the Applicant is not comparable to the general population of
Somalia or specifically, Mogadishu, and therefore the finding of generalized
risk is not properly considered. The Applicant’s unique circumstances had to be
fully considered.
[12]
Given the evidence of country conditions, the
history of Al-Shabaab, and the general circumstances affecting this Applicant,
it is hard to conceive of a circumstance more qualifying as a refugee/a person
at risk and in need of protection.
IV.
Conclusion
[13]
Therefore, this judicial review will be granted,
the decision quashed and the matter sent back to be considered by a different
immigration officer.
[14]
There is no question for certification.
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