Date: 20090529
Docket: IMM-2098-09
Citation: 2009 FC 561
BETWEEN:
ABDIKARUM ADEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
Lemieux, J.
Introduction
and Background Facts
[1]
On
May 21, 2009, I stayed the Applicant’s deportation to Somalia pending the
determination of his application for leave and judicial review. These reasons
express why I granted the stay.
[2]
The
underlying proceeding, to which this stay application is grafted, is the March
12, 2009 decision of pre-removal risk officer Sohal, (the PRRA Officer).
[3]
The Applicant
entered this country on December 31, 1988 and immediately made a refugee
claim which for a number of reasons was not heard. He made a further refugee
claim in February 2003. This claim was dismissed on February 25, 2004
on grounds of credibility – the Refugee Protection Division (the tribunal) did
not believe his story of persecution.
[4]
The
tribunal went on to determine the Applicant’s section 97 risks. It noted the
DIR clan, which the Applicant said he belonged to, resides in North-western Somalia and “that area has a certain
independence from the rest of the country”. It also found this area was a
viable IFA for the Applicant which was “accessible, not just reasonable”. The
tribunal determined the Applicant not in need of protection.
[5]
Prior to
the determination of his refugee claim in 2004, the Applicant accumulated a
criminal record starting in October 1994, with a conviction of fraud
over $1,000 in connection with Social Services. As a result, he received a
suspended sentence, an order of restitution in the amount of $13,243.76 and
probation for 3 years.
[6]
On December
11, 2003, he was convicted of breach of probation and sentenced to a year
of probation with an order of restitution, in the amount of $2,400.
[7]
He made an
H&C application on October 30, 2006 without paying the required
fees. They were paid later; the H&C application was referred to the local
office of CIC on September 20, 2007. That application is still
outstanding.
[8]
On April
23, 2009, he made a deferral request on the grounds of his outstanding
H&C application invoking the facts he had been in Canada for 20 years, was
married with 5 children who depend on him for financial support. That deferral
request was refused on April 27, 2009. No leave and judicial review has
been sought in respect of that decision.
[9]
The record
also reveals:
· In 1995, the
Applicant was charged with sexual assault for which he failed to appear in
September 1995. A bench warrant was issued;
· That same
year, he was charged with breach of probation for which he failed to appear and
another bench warrant was issued;
· On December
2, 1997,
a section 27 report was written in connection with his fraud conviction;
· On March 11,
2002,
a warrant for his arrest was issued under the then Immigration Act;
· On February
4, 2003,
a deportation order was issued against him on the grounds of his serious
criminality relating to his fraud conviction;
· Prior to that
deportation order, he was arrested by the Toronto Police on January 23, 2003.
Apparently in 1996, he fled to Calgary; he said he returned to Ontario in
September 2002 to clear up his charges but did not turn himself in until
January 2003.
The PRRA Officer’s
decision
[10]
The
PRRA Officer identified a new risk – a change of circumstance – since the
tribunal had rendered its decision. He feared persecution or death owing to the
fact the Council of Islamic Courts (the Islamic Courts), which the Applicant
described as an Islamic fundamentalist group, had in 2006 taken over much of
the country and were currently at war with a powerless government in Somalia.
The Islamic Courts was pushed back from Somalia’s capital of
Mogadishu when Ethiopian troops came to the aid of
the government. However, the Islamic Courts recently regained control of several
parts of the country and now is engaged in battle for the control of Mogadishu.
[11]
According
to the PRRA Officer, the Applicant’s fear is based on the fact he is not an
observant Muslim: 1) does not have a beard; 2) wears western clothes; 3) has a
western haircut; 4) does not pray 5 times a day; 5) is opposed to women wearing
the habit; and, 6) is against FGM. He fears he would be targeted by the Islamic
fundamentalists because his opinion differs from theirs.
[12]
In
summary, the PRRA Officer made the following findings relying mainly on the
most recent US DOS for 2008 and the UK Operational Guidance Notes (the UK
Notes) issued December 2008, as well as the RPD’s decision:
1)
The
Applicant is a member of the DIR
clan and according to the RPD, he resided in Mogadishu when he lived in Somalia;
2)
According to the UK
Notes, the Applicant could not return to Mogadishu because he would face an indiscriminate
risk of generalized violence there;
3)
The UK Notes also
recognized that those [individuals] affiliated to major clan families, their
immediate clan groups and associated clans “should therefore be able to reside
safely in an area outside of Mogadishu in which the clan is present”;
4)
“As noted in the
Applicant’s RPD decision, the RPD panel found that the Applicant could reside
in the North Western part of Somalia since he was a member of the DIR Clan.
With respect to the Applicant, as noted above, the security situation is better
in the Northern part of Somalia. There is little evidence to show that
the Applicant could not relocate to the aforementioned region or the Northwest
where the DIR Clan reside, as noted in the RPD decision; and,
5)
Indeed, I recognize
that the conditions in Somalia are certainly not favourable for the Applicant;
however, I am not satisfied that there is sufficient evidence before me to show
that he would face a personalized risk under section 96 and/or section 97 of IRPA
in the North and West regions of Somalia based on his personal profile of
being a non-observant Muslim. In terms of the viability of an Internal Flight
Alternative, the Applicant would be in an area where the Dir Clan resides as
confirmed by the Encyclopedia Brittanica; thus, I find that the Applicant would
have a support network in Somalia.”
Analysis
[13]
It is well
established the Applicant, in order to obtain a stay of his removal to Somalia, had to establish: 1) a serious issue to be tried; 2)
irreparable harm; and, 3) balance of convenience in his favour. For the
following reasons, I am of the view the Applicant has discharged his onus for
each of those three elements.
a) Serious issue
[14]
I
find at least the following serious issues flowing from the PRRA Officer’s
findings:
· Did the PRRA Officer
err in determining that the Applicant had a viable IFA in North Western
Somalia? I agree with counsel for the Applicant that, insofar as the PRRA
Officer relied on the RPD’s finding, he relied on dated material and insofar as
the UK Notes are concerned, he relied on the documentary evidence without
regard or analysis to the current actual situation in that area – “the facts on
the ground”.
· A serious
question arises whether much of his finding on this point was arrived at based
on pure speculation of possible support. Where was he supposed to go to – which
town? How did he determine accessibility and viability? How was he going to get
there since he was to land in Mogadishu without escort?
· A third issue
arises whether the PRRA Officer misapprehended the evidence before him or
ignored it. This issue arises because there was evidence before him of social
and political unrest in North West Somalia; evidence of open warfare, there or
in surrounding regions, and evidence people in that region could barely sustain
themselves. There was evidence the militias controlled much of the area;
· A fourth
serious issue arises on his treatment of the Applicant’s new fear based on his
religious beliefs and the extent of the current control of Somalia’s regions by
the fundamentalists. The PRRA Officer’s analysis of this fear seems inadequate.
b) Irreparable harm
[15]
Irreparable
harm is made out where an Applicant’s life, liberty or safety might be at risk.
The documentary evidence adduced by the Applicant – particularly the recent
travel advisories – establishes the risk of serious harm faced by the Applicant
upon his return.
c) Balance of convenience
[16]
In
the circumstances, the balance of convenience favours the Applicant.
[17]
Counsel
for the Respondent relied on the Federal Court of Appeal’s recent decision, in Baron v. Canada (Minister of Public
Safety and Emergency Preparedness), 2009
FCA 81, to argue balance of convenience favours the Minister. I am not prepared
to hold that this case is like Baron or that the teaching in Baron
necessarily trumps irreparable harm.
“François Lemieux”
_____________________________
Judge
Ottawa,
Ontario
May 29,
2009
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