Docket: IMM-4929-16
Citation:
2017 FC 458
Ottawa, Ontario, May 8, 2017
PRESENT: The
Honourable Madam Justice Mactavish
|
BETWEEN:
|
|
WELI ABDIKADIR
OMAR
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Weli Abdikadir Omar seeks judicial review of a
decision of the Refugee Appeal Division of the Immigration and Refugee Board.
The RAD found that Mr. Omar was excluded from the protection of the
Refugee Convention by virtue of the fact that he had refugee status in South
Africa.
[2]
I have concluded that the RAD’s decision was
unreasonable as it relied upon a selective reading of the country condition
evidence that was before it. The Board further erred in requiring that Mr. Omar
demonstrate that he has been personally targeted for persecution in South
Africa, and by applying the wrong test for state protection. Consequently, the
application for judicial review will be granted.
I.
Background
[3]
Mr. Omar is a citizen of Somalia, who fled the
country in 2006 after his father was killed. During the same attack, Mr. Omar
was abducted, beaten, and tortured for five days by radical Islamists. After
travelling through Ethiopia and Kenya, Mr. Omar arrived in South Africa in
2008, where he was accepted as a refugee. Mr. Omar operated a grocery
store, first in Benoni, and then in Orange Farm.
[4]
In 2012, three men entered Mr. Omar’s shop
and demanded money, following which they beat Mr. Omar and stabbed him in
the chest. He was taken to the hospital, where he was in a coma for three days.
Mr. Omar then spent a month in hospital, during which time he underwent
multiple surgeries.
[5]
One of Mr. Omar’s attackers was arrested by
the South African Police Service. Mr. Omar testified against the attacker
in Court. Although Mr. Omar claims that the police told him that his
attacker would be imprisoned for 25 years, he was evidently released after just
two months, whereupon he returned to Mr. Omar’s shop to threaten him. Mr. Omar
states that he told the police about the incident, but they failed to act. Mr. Omar
then moved to the Township of Orange Farm because he feared further attacks.
[6]
Mr. Omar says that in 2014, xenophobic mobs
started to attack Somali refugees in Orange Farm. In October of that year, Mr. Omar
was loading goods from his store into his car to avoid looting when he was
attacked by such a mob. The police helped him escape, but they could not
protect Mr. Omar’s personal property.
[7]
Mr. Omar states that he was traumatized
from the 2012 incident, and that he became increasingly afraid to stay in South
Africa because of his growing awareness of the xenophobia against Somali
refugees in that country. Consequently, he applied for a refugee travel
document from the South African government. His application was refused, and he
was told that he would not get a travel document unless he paid a bribe. Rather
than pay a bribe, Mr. Omar used a falsified Namibian passport to travel to
Brazil. From Brazil, he travelled through the United States, arriving in Canada
in February of 2016, whereupon he applied for refugee protection.
[8]
Mr. Omar’s eligibility to make a refugee
claim was assessed at the border, and a Minister’s delegate was satisfied that Mr. Omar
was a citizen of Somalia, and that he had been accepted as a refugee in South
Africa. The Minister’s delegate was further satisfied that Mr. Omar’s
claim was eligible for referral to the Immigration and Refugee Board. In coming
to this conclusion, the Minister’s delegate stated that “[d]espite his recognition as a refugee in [South Africa],
experience has shown me that South Africa is unwilling to readmit refugee
claimants to the country if they have been absent from South Africa for a
period longer than six (6) months. Therefore I do not believe he can be
returned to that country”.
[9]
Mr. Omar’s refugee claim was rejected by
the Refugee Protection Division, which found that he was excluded from the
protection of the Refugee Convention (United Nations Convention Relating to
the Status of Refugees, 189 U.N.T.S. 150), by virtue of the fact that he
continued to have status in South Africa. This decision was subsequently
affirmed by the RAD.
II.
Standard of Review
[10]
A finding that a refugee claimant should be
excluded pursuant to Article 1E of the Refugee Convention involves a question
of mixed fact and law, and is reviewable on the standard of reasonableness: Canada
(Minister of Citizenship and Immigration) v. Zeng, 2010 FCA 118 at para.
11, [2010] F.C.J. No. 632. That said, the test applied by the RAD with respect
to the question of the availability of state protection is a question of law
that is reviewable on the correctness standard: Buri v Canada (Minister of
Citizenship and Immigration), 2014 FC 45 at paras. 16 and 18, 446 F.T.R.
57.
III.
Was the Board Bound by the Decision of the
Minister’s Delegate?
[11]
Mr. Omar submits that as a result of the
principle of issue estoppel, the RPD and the RAD (collectively “the Board”) were
both bound by the finding of the Minister’s delegate that he could not be
returned to South Africa. I do not accept this submission.
[12]
In Danyluk v. Ainsworth Technologies Inc.,
2001 SCC 44 at para. 25, [2001] 2 S.C.R. 460 (citing Angle v. Minister of
National Revenue, [1975] 2 S.C.R. 248 at 254, 47 D.L.R. (3d) 544), the
Supreme Court of Canada held that there are three pre-conditions that must be
satisfied for issue estoppel to apply. They are:
(1) that the same question has been
decided;
(2) that
the judicial decision which is said to create the estoppel was final; and,
(3) that
the parties to the judicial decision or their privies were the same persons as
the parties to the proceedings in which the estoppel is raised or their
privies.
[13]
In this case, the issue decided by the
Minister’s delegate was not the same as the issue that was before the Board.
The Minister’s delegate had to decide whether Mr. Omar was eligible to
have his claim referred to the Immigration and Refugee Board, whereas the Board
had to decide whether Mr. Omar satisfied the definition of a “refugee” in light of Article 1E of the Refugee
Convention. Article 1E excludes persons from the refugee definition if they
have surrogate protection in a country where they enjoy the same rights and
obligations as nationals of that country.
[14]
Eligibility and exclusion are not the same
thing: Haqi v. Canada (Minister of Citizenship and Immigration), 2014 FC
1246 at paras. 57 and 58, [2014] F.C.J. No. 1214, aff’d 2015 FCA 256. See also Feimi
v. Canada (Minister of Citizenship and Immigration), 2012 FCA 325 at para.
21, [2012] F.C.J. No. 1610. I agree with the respondent that a decision that a
claim is eligible for referral to the Immigration and Refugee Board is a
preliminary screening decision, whereas an exclusion finding is a determination
as to whether a claimant satisfies the definition of a “refugee”
in light of Articles 1E or 1F of the Refugee Convention. Issue estoppel
does not arise in these circumstances, and the Board was not bound by the
findings of the Minister’s delegate.
IV.
Mr. Omar’s Ability to Return to South
Africa
[15]
The purpose of Article 1E of the Refugee
Convention is to exclude persons who do not need surrogate protection: Zeng,
above at para. 19. In deciding whether Mr. Omar was in need of protection,
the Board thus had to determine whether he enjoyed the rights and obligations
of citizens of South Africa, including the right to re-enter the country.
[16]
In coming to the conclusion that Mr. Omar
would be able to return to South Africa, the RAD noted that the country
condition information indicated that a person’s refugee status in t South
Africa “remains as valid as the validity of the document
[that evidences refugee status]”. In Mr. Omar’s case, his South
African refugee document was valid until November 16, 2016, which post-dated
both the RPD and the RAD’s decisions. Consequently, the RAD was satisfied that
he continued to enjoy refugee protection in that country.
[17]
Mr. Omar’s South African refugee document
also noted that he would lose his refugee status in that country if he were to
leave the country permanently. This was thus consistent with the finding of the
Minister’s delegate that South Africa would likely be unwilling to readmit Mr. Omar,
given that he had been outside of the country for more than six months.
[18]
The evidence relied upon by the RAD was a
statement made by a representative of the Refugee Ministries Centre (RMC). The RMC
was described by the RAD as “an organization that […]
promotes fair access to documentation for refugees and asylum seekers in South
Africa”. As such, the RAD found that the RMC “would
more likely than not have first-hand knowledge and experience as to the
validity of refugee documents”. As a result, the RAD placed substantial
weight on the statement referred to above.
[19]
The problem with the RAD’s reliance on the
excerpt cited above is that it was only part of what the RMC had to say with
respect to the ability of someone in Mr. Omar’s position to re-enter South
Africa. The RMC is also quoted as stating that “it is
‘almost impossible’ to re-obtain refugee status” once it has been lost,
and that “a recognized refugee’s status in South Africa
can be renewed, not renewed, or even revoked altogether ‘depending on the mood
of the government official’ who is assisting the refugee”.
[20]
Other country condition information before the
RAD indicated that if a claimant leaves South Africa without first obtaining a
travel document, it was unlikely that the individual would be re-admitted to
the country. The individual would then have to make a second refugee claim
which would, in practice, be difficult.
[21]
The RAD made no mention of this evidence,
however, which calls into question its finding that Mr. Omar could return
to South Africa. Having accepted that the RMC was a knowledgeable and reliable
source regarding the loss and re-acquisition of refugee protection in South
Africa, it was an error for the RAD to selectively rely on a small portion of
that evidence without explaining why it discounted the rest of the information
provided by the same organization that contradicted the RAD’s conclusions: Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35
at para. 15, [1998] F.C.J. No. 1425.
[22]
In these circumstances, I am satisfied that the
RAD’s finding that Mr. Omar continued to enjoy refugee protection in South
Africa was unreasonable. This was not, however, the only error in the RAD’s
decision. Given that Mr. Omar’s claim will have to be remitted to the RAD
for reconsideration, it is therefore necessary to briefly identify the other
errors that it committed.
V.
The Requirement that Mr. Omar be Personally
Targeted
[23]
Mr. Omar submitted to the RAD that he had
relinquished his rights in South Africa because of the persecution that he
suffered there and his fear that he would continue to suffer xenophobic attacks
if he were to return to that country.
[24]
As was noted earlier, the purpose of Article 1E
is to exclude persons who do not need protection under the Refugee Convention.
As the United Nations High Commissioner for Refugee notes in the “Note on the Interpretation of Article 1E of the 1951
Convention Relating to the Status of Refugees”, regard must also be
had to whether the individual has a well-founded fear of persecution in the
country where the individual has been granted refugee protection. This makes
sense: if it were otherwise, an individual in Mr. Omar’s position would be
denied refugee protection in Canada, while a citizen of South Africa facing the
same risk would be entitled to refugee protection.
[25]
Indeed, the respondent agrees that an individual
will not be excluded from the protection of the Refugee Convention if they are
able to show that they are at risk in the country that has recognized them to
be a refugee. As a consequence, before excluding Mr. Omar under Article 1E,
the Board was obliged to consider whether he had a well-founded fear of
persecution in South Africa.
[26]
The RAD considered this question, but found that
even with the two attacks that Mr. Omar had suffered, he had not
established that he had personally been the target of discrimination or
xenophobic attacks. Rather, he had simply been the victim of criminal activity,
which is rampant in South Africa.
[27]
Not only did the evidence before the RAD show
that Somali shopkeepers have been a particular target of xenophobic mobs in
South Africa, Mr. Omar had himself been the victim of just such attacks.
Moreover, in the case of the first attack, Mr. Omar had subsequently been
personally threatened by his attacker following his release from custody. Thus,
it is difficult to understand the RAD’s finding that Mr. Omar had not been
personally targeted.
[28]
That said, the more fundamental problem with the
RAD’s persecution analysis is that it is not necessary for a claimant to show
that they have been personally targeted. It is enough for a claim to succeed
under section 96 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 if a claimant can show that there is more than a mere
possibility that they will be persecuted as a result of their membership in a
protected group: Adjei v. Canada (Minister of Employment and Immigration),
[1989] 2 F.C. 680 at para. 8, 57 D.L.R. (4th) 153.
VI.
The Test for State Protection Applied by the RAD
[29]
After reviewing the evidence before it on the
issue of persecution, the RAD then found that Mr. Omar had also failed to
demonstrate that state protection would not be available to him if he were to
return to South Africa. In coming to this conclusion, the RAD stated that “there is insufficient evidence to indicate that there is no
state protection in [South Africa]”.
[30]
The respondent quite properly conceded that the
RAD appears to have applied the wrong test for state protection in this case. A
refugee claimant is not obliged to show that there is no state
protection available to them in the country in issue. Rather, they need only
show that the protection that they may expect to receive is inadequate: Carillo
v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94, [2008]
F.C.J. No. 399.
VII.
Conclusion
[31]
For these reasons, the application for judicial
review is allowed. I agree with the parties that the case is fact-specific and
does not raise a question for certification.
Email this Content