Docket: IMM-7024-14
Citation:
2015 FC 1061
Fredericton, New Brunswick, September 10, 2015
PRESENT: The
Honourable Mr. Justice Bell
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BETWEEN:
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KHADIJA AHMED
ALI
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DEEMA
ABDUALLAHI MOHAMUD
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SARA ABDULLAHI
MOHAMUD
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FATIMA ABDULLAH
MOHAMUD
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(AKA FATIMA
ABUDULLAHI MOHAMUD)
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DIKRA ABDULLAHI
MOHAMUD
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Applicants
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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 and Summary
[1]
This is an application for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division
(RPD) made on September 15th, 2014, dismissing the refugee claims of
Khadija Ahmed Ali (Ms. Ali) and her four daughters, Deema, Sara, Fatima and
Dikra. The RPD found that Ms. Ali lacked credibility, did not have a subjective
fear of persecution and, furthermore, did not have a well-founded fear of
persecution in Somalia. For the reasons set out below, I am of the view the
decision of the RPD with regard to Ms. Ali’s claim meets the test of
reasonableness and I would therefore dismiss her application for judicial
review. However, for the reasons set out below, I allow the application for
judicial review by Ms. Ali’s four daughters.
II.
Summary of Ms. Ali’s evidence
[2]
Ms. Ali was born in Mogadishu, Somalia on April
20, 1961. She lived, studied and eventually worked as a laboratory technician
in a hospital in Mogadishu until 1985. In 1985, she left her homeland to join
her father who was a Somalian national working for the British Embassy in the
United Arab Emirates (UAE). Ms. Ali obtained work in the UAE as a laboratory
technician. In 1992, she married a Somalian national, who was also a foreign
worker and employed as a laboratory technician in the UAE. Together, Ms. Ali
and her husband have four daughters, now aged 20, 19, 16 and 13. Ms. Ali and
her husband were both employed by the same employer. At the time of the hearing
before the RPD her husband continued to work for that employer in the UAE.
[3]
On July 6, 2012, Ms. Ali and her four daughters
travelled to the United States of America (United States) on a visa. Her
husband remained in the UAE for work purposes. While in the United States Ms.
Ali did not make a refugee claim. On August 6, 2012, she traveled to Canada
where she immediately claimed refugee status on her own behalf and on behalf of
her four daughters, all of whom were minors at the time.
[4]
In her Personal Information Form, completed on
August 8, 2012, Ms. Ali claimed her husband was 59 years of age and would not
be permitted to remain in the UAE once he reached 60. At the RPD hearing, held
approximately two years later on July 23, 2014, Ms. Ali acknowledged her
husband’s work permit had been extended and that he was still working in the
UAE. He was 61 at the time. Nothing prevented Ms. Ali and her family from
returning to the UAE as long as her husband was employed there. Even though she
had been in Canada approximately two years by the time of the RPD hearing, and
her husband worked for her former employer, she made no effort to obtain
written confirmation of her employment history or status, including her alleged
termination.
[5]
Before the RPD, Ms. Ali alleged fear of
persecution based upon clan affiliation and fear of sexual assault against her
and her daughters should she be required to return to Somalia. She claimed she
has no family or close friends left in Somalia and that she would have no place
to stay in the event they were required to return to Somalia. Ms. Ali contended
she and her daughters would likely be placed in a camp for internally displaced
persons. She further alleged that her daughters would be at risk of being
forced into marriage, raped or killed in such camps. She alleged these crimes
were often committed by extremist groups such as Al-Shabaab and government
forces.
III.
Overview of the RPD Decision
[6]
The RPD found that Ms. Ali was not credible with
respect to her allegation that her husband would soon lose his status and be
forced to leave the UAE. It based this conclusion, in part, upon the shifting
timeline for his departure from the UAE. As already mentioned, Ms. Ali
initially contended that once her husband turned 60 he would be required to
leave the UAE. The RPD noted that Mr. Ali, who was close to 61 years of age at
the time of the hearing, was still working in the UAE. Still on the issue of
Ms. Ali’s credibility, the RPD concluded it was reasonable to expect some form
of documentation from the employer or the UAE concerning the rules regarding
her husband’s status. None was offered by Ms. Ali.
[7]
The RPD also found it would be reasonable for
Ms. Ali to provide some documentary proof of termination of her employment and
confirmation of her lack of status in the UAE. Again, Ms. Ali provided no such
documentation. While recognizing that corroborative evidence is not always
required, the RPD observed that the presumption of credibility can be rebutted
where there is a failure to obtain reasonably available documentary evidence.
The RPD found that, in the circumstances of this case, Ms. Ali’s failure to
provide documentation related to her employment, and that of her husband, negatively
impacted her credibility.
[8]
The RPD referred to Ms. Ali’s status in the UAE
as a foreign worker and her visit to the United States as some evidence of ‘asylum
shopping’. While recognizing that the UAE is not a signatory to the Convention
Relating to the Status of Refugees, the RPD noted that the United Nations
High Commissioner for Refugees (UNHCR) has an office in Abu Dhabi and that the
UAE assists refugees. The RPD opined that Ms. Ali’s failure to seek assistance
while in the UAE and her failure to seek refugee protection while in the United
States detracted from her claim of subjective fear of persecution.
[9]
The RPD also assessed whether Ms. Ali had a
well-founded fear of persecution in Somalia. It considered the UNHCR report
titled Security and protection in Mogadishu and South-Central Somalia: Joint
report from the Danish Immigration Service’s and the Norwegian Landinfo’s fact
finding mission to Nairobi, Kenya and Mogadishu, Somalia, April – May 2013,
Item 2.8 [Joint Danish-Norwegian Report] and other documentation regarding
country conditions. The Joint Danish-Norwegian Report contained current
information gathered from a variety of organizations doing front line work in
Somalia. The RPD cited a passage of a UNHCR report entitled “International Protection Considerations with Regard to
people fleeing Southern and Central Somalia” dated January 2014 [January
2014 UNHCR Report], which lists profiles of persons at risk if returned to
Somalia.
[10]
The RPD noted that none of the country condition
information lists clans to which Ms. Ali identifies as clans who are at risk of
persecution. Furthermore, Ms. Ali presented no documentary evidence to support
her claim that members of those clans are persecuted. Even if those clans are
at risk, Ms. Ali failed to provide any evidence, written or otherwise, to
support her claim of clan membership. The RPD cited a passage from a United
Kingdom Home Office report dated September 2013 to the effect that Somali
minority groups are unlikely to be targeted on the basis of ethnic origin
alone, but may encounter discrimination from other clans due to lower social
status. Ms. Ali does not claim a lower social status. In fact, the evidence
demonstrates she is economically well-established, professional, skilled and
knowledgeable. The RPD also concluded, based on the Joint Danish-Norwegian
Report, that clans now play a merely social role, rather than a protective one.
The RPD stated that although people in Mogadishu generally reside and operate
businesses within their clan area, different clans may move freely between
areas in Mogadishu. Still relying on the Joint Danish-Norwegian Report, the RPD
concluded that Al-Shabaab is no longer strong in Mogadishu and tends to attack
government forces rather than civilians.
[11]
The RPD considered Ms. Ali’s claim that she
feared persecution as a “single female” in
Somalia. The RPD rejected this claim given that Ms. Ali is not single.
Furthermore, Ms. Ali stated her husband would eventually join the family.
Noting that Ms. Ali had no past experience of persecution in Somalia, where she
lived for 24 years, and that she was largely made aware of problems in Somalia
through the news, the RPD found that her fears were not well-founded. In its
view there was less than a mere possibility that she would be at risk due to
clan violence or Al-Shabaab activities.
[12]
The RPD concluded the four daughters had not
raised separate issues relating to their claims and rejected those claims on
that basis.
IV.
Issues
[13]
I would frame the issues as follows:
1.
Was the RPD’s conclusion regarding Ms. Ali’s
credibility and subjective fear of persecution reasonable?
2.
Was the RPD’s conclusion regarding Ms. Ali’s
objective fear of persecution reasonable?
3.
Is the decision unreasonable with respect to the
daughters’ claims?
V.
Standard of Review
[14]
In my view, the issues raised must be assessed
on the reasonableness standard of review. That is, this Court will not
intervene if it finds the RPD’s conclusions regarding credibility and subjective
and objective fear of persecution fall “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 paragraph 47 [Dunsmuir]. On the issue of credibility, see Aguebor
v Canada (Minister of Employment and Immigration), [1993] FCJ No 732 (QL),
160 NR 315 (FCA) at paragraph 4; Sun v Canada (Minister of Citizenship and
Immigration), 2015 FC 387, [2015] FCJ No 347 at paragraph 17; and, on the
issue of the RPD’s fact-finding generally, see, Canada (Minister of
Citizenship and Immigration) v Bari, 2015 FC 656, [2015] FCJ No 649 at
paragraph 6.
VI.
Relevant Provisions
[15]
Attached hereto as
Appendix ‘A’ is the definition of Convention Refugee and person in need of
protection found in ss. 96 and 97 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [the Act].
VII.
Analysis
A.
Credibility and subjective fear of persecution
[16]
The RPD impugned Ms. Ali’s credibility for
failure to claim refugee status in the United States, failure to seek
assistance while in the UAE, and failure to provide documentation to support
allegations regarding her loss, and her husband’s potential loss, of status in
the UAE. With respect to the latter point, this in circumstances where her
husband was still working for the same employer in a well-governed society.
[17]
In my view, the RPD’s credibility finding
regarding Ms. Ali’s subjective fear of persecution meets the test for
reasonableness. The RPD properly considered her failure to obtain any
documentary proof of her loss of employment and lack of status in the UAE, her
husband’s potential loss of employment, her failure to approach the United
Nations office while in the UAE and her failure to claim refugee status in the
United States, in making its credibility finding. An applicant’s failure to
claim refugee status in signatory countries is, although not determinative, a
relevant consideration for assessing subjective fear and credibility (Ilie v
Canada (Minister of Citizenship and Immigration), [1994] FCJ No 1758, 88
FTR 220).
[18]
With respect to Ms. Ali’s travels to the United
States, I am aware that she is eligible to apply for refugee status by
operation of s. 159.5 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 which provides an exception to the requirement to make a refugee
claim at the first available opportunity when entering either the United States
or Canada: the Canada-U.S. Safe Third Country Agreement found in the Act.
However, the fact remains that Ms. Ali has family in the United States,
travelled through that country and remained lawfully in it for approximately
one month before entering Canada to make a refugee claim. I am satisfied it was
reasonable for the RPD to conclude that in the context of this case, Ms. Ali’s
claim of subjective fear lacked credibility.
B.
Objective fear of persecution
[19]
In order to succeed, a refugee claimant must
demonstrate, on a balance of probabilities, that there is a reasonable chance
that persecution would take place in the country of nationality (Adjei v
Canada (Minister of Employment and Immigration), [1989] 2 FC 680, [1989]
FCJ No 67). In my view, the RPD’s conclusions regarding clan-based persecution
and persecution by Al-Shabaab are within the range of reasonableness.
[20]
As the RPD observed, the documentary evidence is
conflicting regarding the role of clan affiliation to incidents of violence in
Mogadishu. For example, the January 2014 UNHCR Report lists “members of minority clans” as a potential risk
profile. In the Joint Danish-Norwegian Report, some organizations expressed the
view that persons returning from abroad are “not at
particular risk because of their clan affiliation”. The RPD explained
why it gave particular weight to the Joint Danish-Norwegian Report, and in the
face of conflicting evidence, concluded that the evidence was insufficient to
support the Applicants’ claim of persecution based on clan affiliation.
[21]
I now turn to the RPD’s conclusion that
Al-Shabaab was no longer a threat in Mogadishu. There is no doubt that
Al-Shabaab has reportedly perpetrated abuses, including killings,
disappearances, and restrictions on civil liberties against civilians within
the areas under its control. However, since August 2011, Al-Shabaab has been
pushed out of Mogadishu, which is now under the control of government forces
supported by the African Union Mission in Somalia (AMISOM). The RPD concluded
that the Applicants had not demonstrated more than a mere possibility of
specific personal harm from Al-Shabaab. This conclusion is reasonable in light
of the evidence and one that was open to the RPD to make.
[22]
Ms. Ali contests the reasonableness of the RPD’s
decision regarding potential gender-based violence. Ms. Ali claimed she was a single
woman, that she no longer has any connections or support in Mogadishu, and that
she and her daughters may be required to reside in a camp for internally
displaced persons. She claims she and her daughters would risk rape, other
forms of sexual assault, and potential forced marriage in such camps.
[23]
The RPD noted that the Applicants’ fears emanate
mainly from what they have seen in the news. Furthermore, Ms. Ali produced no
evidence to demonstrate that she risked being placed in a camp for internally
displaced persons. Ms. Ali is highly trained and earned income for nearly 30
years prior to making her refugee claim. Her husband continues to work. Ms. Ali
testified that her husband plans to join her when he concludes his work in the
UAE. Contrary to Ms. Ali’s assertions, she is not a ‘single’ woman. Also,
contrary to her assertions, she is not a person without support mechanisms – at
the very least she has a husband who is supportive, and, she is clothed with
the personal support mechanisms that flow from being well trained, having been
employed for more than 30 years, and having lived in Somalia for 24 years.
[24]
Ms. Ali points to several factors which, in her
view, were not adequately considered by the RPD. The Court’s role on judicial
review is not to seek a treasure trove of error. In Newfoundland and
Labrador Nurses’ Union v Newfoundland & Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708 at para 16 [Newfoundland Nurses], the Court
instructs that “if the 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,
the Dunsmuir criteria are met”. In my view, the reasonableness
standard was met with respect to Ms. Ali. The pathway by which the RPD arrived
at its conclusion, based upon the sometimes conflicting evidence, is clear.
C.
The four daughters’ applications
[25]
I now turn to the four daughters’ claims and the
reasons given by the RPD for rejecting those claims. I recognize that the RPD
must join the claims of minors or secondary claimants to their mother or
father’s claim, as provided by Rule 55 of the Refugee Protection Division
Rules, SOR/2012-256. As a result, the RPD is often required to consider
multiple claimants in the same decision. The decision, however, must assess
each claim individually (Ramnauth v. Canada (Minister of Citizenship and
Immigration), 2004 FC 233, [2004] FCJ No 305 at para 9). The Member hearing
this matter confirms this practice. At page 11 of the transcript the member
stated: “[m]y job is to make a decision on all of your
claims […] each of your claims, even though I decide them together, I have to
make the decision on each separate claim”. In my view, a refugee claim
cannot fail simply because it is joined to a claimant against whom negative
credibility findings are made.
[26]
The RPD provides very brief reasons why the
daughters’ claims must fail. Essentially, the RPD concludes their claims are
joined to their mother’s, their mother lacks credibility and they (the
daughters) expressed no fear specific to their situation. However, there was
considerable evidence which has a potential impact upon the daughters’ claims
and which is not addressed by the reasons. For example, the UNHCR Report listed
single females as being at risk if returned. While Ms. Ali is not a single
female, her four daughters are. This fact received no analysis from the RPD. Further,
the four daughters were all of the age of minority when they entered the US. While
Ms. Ali may be faulted for her failure to claim refugee status in the United
States, the RPD could not, in my view, have reasonably asserted the children
were “asylum shopping”. One would not expect
four minor children to have control over the issue of asylum
shopping and its potential impact upon their mother’s credibility. I
would also note that, unlike their mother, the four daughters are not trained
professionals and have never lived in Somalia. One of the daughters, Fatima,
suffers from Down’s syndrome. While it is not the Court’s role to decide the
merits of the daughters’ refugee claims, I am of the view each is entitled to a
separate and fulsome analysis of her claim by the RPD. The daughters’
circumstances should have been assessed independently from those of Ms. Ali.
See, Manoharan v. Canada (Minister of Citizenship and Immigration), 2003
FC 871, [2003] FCJ No 1125 at para 6, and Kaniz v. Canada (Minister of
Citizenship and Immigration) 2013 FC 63, [2013] FCJ No 63. In my view, this
did not occur.
[27]
In addition to failing to address each claim
independently, I am of the view the reasons provided by the RPD are not
sufficient to explain why the daughters are neither Convention refugees nor persons
in need of protection. While the adequacy of reasons is not a stand-alone basis
for quashing a decision (Newfoundland Nurses, above at para 14), I am of
the opinion the RPD simply failed to take into account the four daughters’
personal situations and did not provide a basis for its conclusion respecting
their claims. In the face of such deficiencies, the Court may intervene (Pour
v. Canada (Minister of Employment and Immigration) [1991] FCJ No 1282 (CA).
VIII.
Conclusion
[28]
The RPD’s conclusions regarding Ms. Ali’s
credibility and her purported fear of persecution were reasonable on the
evidence. I would therefore dismiss her application for judicial review.
However, I find the decision with respect to the four daughters to be
unreasonable on at least two bases: first, each claim was not considered on its
own merits and, second, the reasons are inadequate. As a reviewing court, I
cannot determine how the RPD arrived at its decision regarding each of the
daughters’ claims. I would therefore allow the application for judicial review
made by Deema Abduallahi Mohamud, Sara Abduallahi Mohamud, Fatima AbdullahMohamud
(aka Fatima Abdullahi Mohamud) and Dikra Abdullahi Mohamud and remit the matter
to another board member of the RPD for redetermination.
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