Docket: IMM-2008-15
Citation:
2015 FC 1202
Vancouver, British Columbia, October 23, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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SALAH AWIL
ABDILLAHI
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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
[1]
Mr. Abdillahi seeks to set aside a negative pre-removal
risk assessment [PRRA] decision. For the reasons that follow, this application
is allowed.
[2]
Mr. Abdillahi is 26 years old and a citizen of
the Federal Republic of Somalia. He entered Canada 10 years ago as a permanent
resident, sponsored by his mother, but has since been found inadmissible on
grounds of serious criminality. He is thus subject to removal to Somalia.
[3]
The PRRA officer notes that Mr. Abdillahi “has twenty-two convictions in Canada and two outstanding
charges.” He “has had over 135 separate
encounters with the police since he became a permanent resident.” While
interesting background to explain the inadmissibility finding, his criminal
record is irrelevant when doing a PRRA analysis. An appeal of the removal
order to the Immigration Appeal Division [IAD] on humanitarian and
compassionate grounds was unsuccessful.
[4]
Mr. Abdillahi started drinking soon after
arriving in Canada; he is an alcoholic. The IAD decision indicates that he drinks
every day if he has the money and notes that he says that his convictions are
related to his drinking; he is not arrested when he is not.
[5]
Mr. Abdillahi is cognitively impaired. He was
hit by a bus on September 20, 2013, and sustained multiple injuries, including
a severe traumatic brain injury. The brain injury has caused deficits in
memory, language, and insight.
[6]
Mr. Abdillahi has limited family connections in
Somalia. His father lives in Somalia but he has had no contact with him since
2007, and does not know where he lives. Similarly, he also has aunts and
uncles in Somalia, but does not know where they live.
[7]
Mr. Abdillahi has a number of tattoos. He
submitted to the PRRA officer that he has tattoos of a lion’s head; the word “Outlaw”; a heart; the acronym “SOG,” which means “Somalia
Original Gangster”; the word “love”; a
dollar sign; and a heartagram, which is a cross between a pentagram and a heart
symbol. He says that most of his tattoos are on his forearms and are clearly
visible. He says that these would identify him as being westernized and not a Muslim.
[8]
Mr. Abdillahi does not know which clan he
belongs to and submits that he will be at risk in Somalia without the social
and protective support of a clan.
[9]
The PRRA officer concluded that Mr. Abdillahi
was not at risk if returned to Somalia. I agree with the submissions of counsel
that the officer did not expressly find that Mr. Abdillahi would be at risk in
areas of the country under the control of Al-Shabaab, but I have concluded that
the officer must have done so. The officer relies heavily on the UK Home
Office December 2014 report Somalia: Security and humanitarian situation in
South and Central Somalia. That report states that returning a person such
as Mr. Abdillahi to territory held by Al-Shabaab would be to put him at risk:
In general return to an area under the
control of Al Shabaab is not feasible for a person who has no history of living
under Al Shabaab in that area and is in general unlikely to be a reasonable
proposition for someone who has a history. Such persons will be at real risk
of persecution by Al Shabaab because of actual or imputed religious or
political opinion.
The officer
appears to find that Mr. Abdillahi is at risk from Al-Shabaab because he writes
that “I find that the applicant’s risks from Al-Shabaab
are significantly diminished in Mogadishu.” The officer then continues
his PRRA analysis by examining whether there is an internal flight alternative
[IFA] available in Mogadishu.
[10]
The officer’s analysis of Mogadishu as an IFA is
unreasonable and unacceptable because the officer focuses his assessment only on
selected passages from the documentary evidence, ignoring and failing to
address significant and material statements that run counter to his ultimate
finding. While he is entitled to prefer evidence that Mogadishu is an IFA, he
must address the contrary evidence and state why it is given little or no
weight or does not apply to Mr. Abdillahi. The officer cannot ignore it,
especially where it appears to strongly support the conclusion that Mogadishu
is not an IFA for Mr. Abdillahi.
[11]
The issue of whether Mogadishu is a viable IFA
is explicitly addressed in two reports and two cases that were before the
officer. All suggest that Mogadishu is not a viable IFA for someone with the
characteristics and history of Mr. Abdillahi.
[12]
Amnesty International in its report Mogadishu
cannot qualify as an Internal Flight Alternative (September 2013),
concludes that:
[i]t is unlikely that those who return to
Somalia will be able to establish an acceptable standard of living unless
they have access to economic resources and powerful individuals or networks
within the city. Without this, it is highly likely that any returnee would
face extreme difficulty in accessing a job or be able to enjoy an adequate
standard of living in a city whose infrastructure remains broken, in a country
that has some of the lowest development and humanitarian indicators globally.
[emphasis added]
[13]
The United Kingdom Home Office’s report entitled
Country Information and Guidance: Somalia: Security and humanitarian
situation in South and Central Somalia (December 2014) states that,
although Mogadishu may be an acceptable IFA for some people, it would not
likely be a realistic option for a person “of a
minority clan with no former links to the city, no access to funds and no other
form of clan, family or social support.” The report states that:
in the absence of means to establish a
home and some form of ongoing financial support there will be a real risk of
having no alternative but to live in makeshift accommodation within an IDP
[internally displaced persons] camp where there is a real possibility of having
to live in conditions that will fall below acceptable humanitarian standards. [emphasis added]
[14]
The jurisprudence that was before the officer
contains similar statements. In AMM and others (conflict; humanitarian
crisis; returnees; FGM) Somalia CG, [2011] UKUT 00445, the Upper Tribunal
(Immigration and Asylum Chamber) held that Mogadishu could not, in general, be
an internal relocation alternative. It acknowledged a limited exception for:
middle class or professional persons in
Mogadishu who can live to a reasonable standard, in circumstances where the
Article 15(c) risk, which exists for the great majority of the population, does
not apply.
However, it also
emphasized that:
[t]he significance of the category we have
identified should not, however, be overstated. For most people in Mogadishu
the Article 15(c) risk persists, at the present time. In the case of a
claimant for international protection, a fact-finder would need to be satisfied
that there were cogent grounds for finding that the claimant fell within such a
category.
[15]
Similarly, in MOJ & Ors (Return to
Mogadishu) Somalia CG, [2014] UKUT 00442, the Upper Tribunal (Immigration
and Asylum Chamber) held that:
The evidence indicates clearly that it is
not simply those who originate from Mogadishu that may now generally return to
live in the city without being subjected to an Article 15(c) risk or facing a
real risk of destitution. Large numbers of Somali citizens have moved to
Mogadishu where, as we have seen there is now freedom of movement and no clan
based discrimination. Such a person seeking to settle in Mogadishu but who
has not previously lived there would be able to do so provided he had either
some form of social support network, which might be in the form of membership
of a majority clan or having relatives living in the city, or having access to
funds such as would be required to establish accommodation and a means of
on-going support. That might be in terms of continuing remittances or
securing a livelihood, based on employment or self employment.
On the other hand, relocation in
Mogadishu for a person of a minority clan with no former links to the city, no
access to funds and no other form of clan, family or social support is unlikely
to be realistic as, in the absence of means to establish a home and some form
of ongoing financial support there will be a real risk of having no alternative
but to live in makeshift accommodation within an IDP camp where there is a real
possibility of having to live in conditions that will fall below acceptable
humanitarian standards. [emphasis added]
[16]
The evidence is that Mr. Abdillahi has no known family,
friends, or clan connections within Mogadishu. Moreover, he has little or no
access to resources. Indeed, the only time the officer considered his capacity
to make a living in Mogadishu was during his conclusion, where he stated that:
I do not find the hardship associated with
relocation to be considered unreasonable, considering the applicant’s knowledge
of the Somali language and his past work experiences as a forklift driver in
Edmonton and Vancouver.
[17]
The officer’s reliance on this employment history
is perverse considering that Mr. Abdillahi worked as a fork lift driver for a
total of four months between his arrival in Canada in 2005 and his removal
hearing in 2014. Aside from these four months, he did not work at all while in
Canada. Needless to say, and notwithstanding the contrary conclusion of the
officer, this work experience does not bode well for Mr. Abdillahi’s economic
prospects in Mogadishu.
[18]
Additionally, the officer fails to adequately
address the risks to Mr. Abdillahi created by his mental health issues. The
EASO Country of Origin Information Report South and Central Somalia Country
Overview informs that in Somalia “[m]ental patients
are often chained to trees or left to die.”
[19]
A location is only an IFA if the person in
question can reasonably and without undue hardship locate there. That requires
an assessment of the location within the framework of the person’s situation
and characteristics. That assessment must consider the person’s ability to be
supported in the location in terms of employment and physical and mental
health.
[20]
Mr. Abdillahi is a cognitively-disabled
recidivist offender alcoholic with minimal work experience, access to
resources, or social supports. He falls squarely within the category of
persons identified in the documentary evidence that are unlikely to be able to
get by in Mogadishu without experiencing undue hardship. Living in an IDP camp
can hardly be said to be an IFA.
[21]
In light of the volume of evidence that
contradicts the officer’s conclusion and his failure to address it, the
decision is unreasonable and cannot be permitted to stand.
[22]
Neither party proposed a question for
certification.
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