Docket: IMM-2632-15
Citation:
2016 FC 650
Ottawa, Ontario, June 10, 2016
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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ABDULAZIZ
ISMAIL
(A.K.A.
ABDULAZIZ MOHAMED ISMAIL)
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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.
Overview
[1]
Mr Abdulaziz Ismail sought refugee protection in
Canada on the basis of his fear of persecution in his native Somalia, primarily
by the militant group Al-Shabaab. Mr Ismail described numerous incidents in
which he, members of his family, and others had been assaulted, harassed,
threatened, or killed by members of Al-Shabaab.
[2]
A panel of the Refugee Appeal Division (RAD) of
the Immigration and Refugee Board dismissed Mr Ismail’s refugee claim on the
basis that the situation in Somalia has improved since Mr Ismail left there in
2008. In particular, while Sufi Muslims, like Mr Ismail, had been attacked by
Al-Shabaab in the past, no recent violence has been reported. Similarly, while
Al-Shabaab has been known to forcibly recruit members, it primarily targets
children; Mr Ismail is now in his late 20s. Accordingly, the RAD found that Mr
Ismail’s fear of persecution was not objectively well-founded. In addition, the
RAD concluded that Mr Ismail’s fears arose from the general conditions in
Somalia; they were not personal.
[3]
Finally, the RAD also found that Mr Ismail was
not entitled to the benefit of the so-called “compelling
reasons” exception, which applies where a person has endured a severe
level of persecution in the past which has subsequently dissipated due to
changes in country conditions. The RAD concluded that Mr Ismail’s experiences
did not rise to the required level of seriousness.
[4]
Mr Ismail argues that the RAD erred in its
analysis of his claim, both by applying the wrong legal standard and arriving
at an unreasonable conclusion on the evidence. He also maintains that the RAD’s
assessment of the compelling reasons exception was unreasonable. He asks me to
quash the RAD’s decision and order another panel to reconsider his claim.
[5]
I agree with Mr Ismail that the RAD’s
conclusions on the merits of his claim and the issue of compelling reasons were
unreasonable. Therefore, I will allow this application for judicial review.
There are two issues:
1.
Did the RAD err in its assessment of the merits
of Mr Ismail’s claim for refugee protection?
2.
Did the RAD unreasonably conclude that Mr Ismail
was not entitled to the benefit of the compelling reasons exception?
II.
Issue One – Did the RAD err in its assessment of
the merits of Mr Ismail’s claim for refugee protection?
[6]
Mr Ismail submits that the RAD erred in three
areas of his claim – his persecution as a Sufi Muslim, his risk of forced
recruitment by Al-Shabaab, and his persecution as a minority clan member.
[7]
The Minister maintains that the RAD’s findings
were all legally sound and reasonable on the evidence. I disagree. In my view,
the RAD’s conclusions about the risks Mr Ismail faced as a member of a minority
clan and a potential target of Al-Shabaab’s recruitment efforts were both
unreasonable. I will confine my analysis to those two areas of the RAD’s
decision.
[8]
The RAD accepted that clan violence was an
ongoing problem in Somalia, including in Mogadishu, Mr Ismail’s home town. It
found that the risk of clan violence was general and not particular to him. However,
the RAD failed to address whether the lack of family and clan support in
Mogadishu presented an individualized risk of persecution. The RAD did allude
to the lack of family support as a factor but failed to engage in an analysis
on the issue, having regard to the documentary evidence before it.
[9]
As for the threat of forced recruitment, the RAD
found that Al-Shabaab primarily targets children. Therefore, it concluded that
Mr Ismail was not at risk because he was then 26 years of age. In my view, on
this evidence, there remained a possibility that Mr Ismail could be targeted
for forced recruitment. The RAD should have considered whether that possibility
amounted to a reasonable chance of persecution, which would bring Mr Ismail
within the definition of a refugee.
[10]
Therefore, I find that the RAD’s decision did
not represent a defensible outcome based on the facts and the law. It was
unreasonable.
III.
Issue Two – Did the RAD unreasonably conclude
that Mr Ismail was not entitled to the compelling reasons exception?
[11]
The RAD found that Mr Ismail was not entitled to
receive the benefit of the compelling reasons exception because he had never
actually been found to be a refugee. Therefore, the exception did not apply to
him. In addition, the RAD found that the mistreatment Mr Ismail had experienced
did not amount to “atrocious and appalling”
persecution.
[12]
In general, a person is not eligible for
refugee status if the reasons for which he or she sought protection have ceased
to exist (s 108(1)(e) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] – see Annex for provisions cited). However, that general
rule does not apply to persons who can show compelling reasons, based on past
persecution or other serious mistreatment, why they refuse to avail themselves
of the protection of their country of origin (s 108(4)).
[13]
I agree with Mr Ismail that the RAD’s conclusion
that this exception did not apply to him was unreasonable. First, the provision
does not require that claimants establish that they had previously been granted
refugee protection based on past persecution. Rather, they must persuade the
decision-maker, in this case, the RAD, that they previously held a well-founded
fear of persecution in their country of origin, and that their experience explains
their refusal to return there to avail themselves of that state’s protection.
In other words, claimants must show that they once qualified for refugee
protection; they do not have to establish that they actually achieved it (Perger
v Canada (Minister of Citizenship and Immigration, 2001 FCT 551, at para
15; Nadjat v Canada (Minister of Citizenship and Immigration, 2006 FC
302 at para 50; Salazar v Canada (Citizenship and Immigration), 2011 FC
277 at paras 31-35).
[14]
The RAD found Mr Ismail to be credible and
accepted that he and his family had suffered harm, but ultimately concluded
that due to the subsequent weakening of the clan system and of Al-Shabaab, he
did not face a serious risk of persecution. In my view, a finding of past
persecution is implicit in the RAD’s findings. The reliance of the RAD on Alfaka
Alharazim, Suleyman v Canada (Minister of Citizenship and Immigration),
2010 FC 1044 in this regard is misguided, as the Court in that case recognized
that implicit findings of past persecution, together with a finding of changed
circumstances, trigger the application of s 108(4).
[15]
Second, while the exception requires a showing
of compelling reasons, it does not require that the claimant establish “atrocious” or “appalling”
mistreatment. However, the circumstances must at least be exceptional or
extraordinary compared to other refugees (Canada (Minister of Employment and
Immigration) v Obstoj, [1992] FCJ No 422).
[16]
The evidence before the RAD showed that Mr
Ismail and his family had endured ongoing harassment, suffering and abuse in
Somalia. His father was murdered. Mr Ismail suffered depression and PTSD as a
result of the traumatic events he experienced. This evidence certainly merited
consideration by the RAD of the compelling reasons exception. Its conclusion to
the contrary was unreasonable on the evidence.
IV.
Conclusion and Disposition
[17]
The RAD erred in some of its factual findings
and those errors led it to arrive at an unreasonable conclusion. In addition,
it unreasonably concluded that the compelling reasons exception did not apply
to Mr Ismail. I must, therefore, allow this application for judicial review and
order another panel of the RAD to reconsider Mr Ismail’s case. Neither party
proposed a question of general importance for me to certify, and none is
stated.
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