Date: 199903025
Docket: IMM-1142-98
BETWEEN:
SULDAMO FARAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLAIS J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, dated February 16, 1998, wherein the Refugee Division determined that the applicant was not a Convention refugee.
Facts
[2] The applicant is a citizen of Somalia who made a claim to Convention refugee status in Canada. The applicant based her claim to Convention refugee status on the grounds of membership in a particular social group, namely that she is a member of the Hawiye/Habar Gidir clan.
[3] The applicant has been married twice to members of the rival, Hawiye/Abgal clan. Her husband was assassinated in February 1996 by Islamic Fundementalists because of his political opinions. After her husband"s death she fled to Kenya and then on to Canada where her 5 daughters already live.
Applicant's arguments:
[4] The applicant testified that she feared that she would be persecuted in Somalia because of her membership in the Hawiye/Habar Gidir clan.
[5] The panel accepted that the applicant was a citizen of Somalia and a member of the Hawiye/Habar Gidir clan.
[6] There was documentary evidence before the panel that members of the Hawiye/Habar Gidir clan were at risk of serious harm in Somalia.
[7] Having made a finding that the applicant was a Somali citizen and a member of the Hawiye/Habar Gidir clan, the panel was obliged to determine whether membership in that clan put the applicant at risk of persecution in Somalia.
[8] The applicant submitted that the panel erred in law by failing to determine the issue which was before it. The applicant suggests that the Board committed a reviewable error by failing to determine whether the applicant was at risk of persecution because of her membership in a particular group, the Hawiye/Habar Gidir clan.
[9] The applicant suggests that the panel had an obligation to make a finding as to the wellfoundedness of the applicant's fear of persecution based on her membership in that particular social group. The panel never made a determination as to whether she was at risk of persecution because of her membership in that group, so this is a reviewable error.
Respondent's arguments:
[10] The respondent suggests that the Refugee Division did not err in determining that the applicant did not have a well-founded fear of persecution in Somalia.
[11] Referring to Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689 at 709, 103 D.L.R. (4th), 1, 153 N.R. 321, the respondent suggests that the crucial element in determining whether a claimant's fear is well-founded is the state's inability to protect. And moreover, the state's ability to protect is a crucial element in determining the objective reasonableness of the claimant's unwillingness to seek its protection.
[12] Having established a subjective fear, and an inability of the state to effectively protect against that fear, it is reasonable to presume that the fear is well-founded.
[13] The respondent suggests that in the case at bar, the Refugee Division considered the subjective element of fear of persecution which the applicant claimed based on analysis of the evidence and determined that because the applicant's testimony was not credible, there was no basis in her testimony for a well-founded fear of persecution.
[14] The respondent suggests that by failing to demonstrate that she had a subjective fear of persecution, the applicant failed to meet the test and it was open to the Refugee Division to so find.
[15] The respondent suggests that the burden rests upon the applicant to provide clear and convincing proof of the well-foundedness of her claim for Convention refugee status.
| 1. Had the Board committed a reviewable error by failing to determine whether the applicant was at risk of persecution because of her membership in a particular group the Hawiye/Habar Gidir clan? |
| 2. Having found that the claimant has not proven to be a credible or trustworthy witness, had the Board the capacity to conclude that there was no valid basis in her testimony for a well-founded fear of persecution? |
Analysis:
[16]
The decision of the Board is based on s.69.1 (9.1) of the Immigration Act:
| Where no credible basis for claim
| (9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim. |
|
Absence de minimum de fondement
| (9.1) La décision doit faire état de l'absence de minimum de fondement, lorsque chacun des membres de la section du statut ayant entendu la revendication conclut que l'intéressé n'est pas un réfugié au sens de la Convention et estime qu'il n'a été présenté à l'audience aucun élément de preuve crédible ou digne de foi sur lequel il aurait pu se fonder pour reconnaître à l'intéressé ce statut. |
|
[17] This is reflected in the paragraph before last of the decision:
| |
Having considered the totality of the evidence, including testimony given in two sittings by the claimant and three witnesses, I find the claimant has not proven to be a credible or trustworthy witness and that there is no valid basis in her testimony for a well-founded fear of persecution. (page 4 of the Board's decision) |
|
[18] Section 69.1(9.1) of the Immigration Act implies that when such a ruling is contemplated by the Board, notice must be given to the applicant so that the applicant could make further submissions with respect to the credible basis finding.
[19] As it appears from the decision of the Board, "The claimant was asked to explain with respect to these major inconsistencies", and therefore there is no reviewable error by the Board in this respect.
[20] Therefore, the main issue is to decide whether or not the Board could reasonably conclude that because of inconsistencies the applicant was not credible and that she could not be a Convention Refugee.
[21] The Board chose not to deal with the inconsistencies between the claimant"s testimony and the testimony of her daughters and addressed the credibility concerns that arose in the claimant"s own evidence.
[22] The Board then concluded that each of the inconsistencies were not sufficient on their own, to negate the claim. However, in the opinion of the Board, the cumulative effect of all of them is such that there is no sufficient and trustworthy evidence upon which to base a determination that the claimant is a Convention refugee.
[23] As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[24] By failing to demonstrate that she had a subjective fear of persecution, the applicant failed to meet the test established by the Supreme Court of Canada in Ward, so the panel had no obligation to go further.
Conclusion:
[25] For the reasons given in the foregoing, this application for judicial review shall be dismissed.
[26] Neither counsel suggested a serious question, so no question will be certified.
"Pierre Blais"
Judge
TORONTO, ONTARIO
March 25, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: SULDAMO FARAH |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: TUESDAY, MARCH 23, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: BLAIS J. |
DATED: THURSDAY, MARCH 25, 1999
APPEARANCES: Mr. David P. Yerzy
For the Applicant
Ms. Ursula Kaczmarczyk
For the Respondent
SOLICITORS OF RECORD: David P. Yerzy
| 14 Prince Arthur Avenue #108 |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990325
Docket: IMM-1142-98
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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