Docket: IMM-4340-15
Citation:
2016 FC 860
Ottawa, Ontario, July 22, 2016
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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YUSSUF
ABDIKADIR YUSSUF
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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
I.
Background
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c-27 [the Act] of a September 4, 2015 decision by the Refugee Appeal Division
[the RAD] of the Immigration and Refugee Board [the IRB]. In that decision, the
RAD confirmed a decision of the Refugee Protection Division [the RPD] of the
IRB finding that the Applicant is not a Convention refugee or a person in need
of protection under the Act. For the reasons explained below, this application
is denied.
II.
Facts
[2]
The Applicant is a citizen of Somalia. He
alleged, before the RPD, that he was born in Mogadishu. He also alleged that he
was a member of the Majerteen clan, a subset of the Darod clan dominant in
northern Somalia.
[3]
In Mogadishu, the Hawiye clan is dominant. The
Applicant alleges that he faced persecution from the Hawiye and from
Al-Shabaab, a radical Islamic militant group. In 1995, he, his wife, and their
children fled to Kenya. The Applicant managed to leave Kenya and travel to the
United States, where he made a refugee claim. When that claim was rejected, he
traveled to Canada and made another.
[4]
The Applicant fears that if he is returned to
Somalia he faces persecution at the hands of the Hawiye clan and Al-Shabaab.
[5]
The RPD heard the Applicant’s claim on September
30, 2013. The RPD found, in a January 20, 2014 decision, that the Applicant had
an Internal Flight Alternative [IFA] in Bosaso. Bosaso is a city in Puntland,
an autonomous region within the north of Somalia with a largely Majerteen
administration.
[6]
Before the RAD, the Applicant argued that Bosaso
was not a viable IFA because he was born in southern Somalia and as such he
would not be accepted in the north. On May 30, 2014, the RAD dismissed this
appeal.
[7]
The Applicant then sought judicial review and,
on May 26, 2015, in an unpublished decision (Yussuf v Canada (Minister of
Citizenship and Immigration) IMM-5042-14), Justice Hughes returned the
matter to the RAD for redetermination, on the basis of unreasonable aspects of
the IFA finding. Specifically, in returning the matter for redetermination,
Justice Hughes framed the issue as “whether a person
born and raised in Mogadishu, even if that person is of the majority clan in
Bosaso, can safely live and carry on his life in Bosaso or whether his
‘southernness’ will condemn him as an outsider, regardless as to clan
affiliation”.
[8]
The ensuing RAD redetermination focused
exclusively on this question and is the subject of this judicial review.
III.
Decision
[9]
The RAD first stated that, per Justice Phelan’s
directions in Huruglica v Canada (Citizenship and Immigration), 2014 FC
799 [Huruglica], it would come to its own independent assessment of the
Applicant’s claim, deferring to the RPD only on issues of credibility or where
the RPD has a similar advantage in reaching its conclusions (Applicant’s Record
at 9 [AR]).
[10]
The RAD then outlined the test for determining
an IFA, which comes from Rasaratnam v Canada (Minister of Employment and
Immigration), [1992] 1 FC 706 at 710 (FCA), stating that:
1) the Board must be satisfied on a
balance of probabilities that there is no serious possibility of the claimant
being persecuted in the part of the country to which it finds an IFA exists
and/or the claimant would not be personally subject to a risk to life or a risk
of cruel and unusual treatment or punishment or a danger, believed on
substantial grounds to exist, of torture in the IFA.
2) moreover,
the conditions in the part of the country considered to be an IFA must be such
that it would not be unreasonable, in all the circumstances, including those
particular to the claim, for him to seek refuge there. (AR
at 9-10)
[11]
The RAD noted that the Applicant argued that he
would either not be accepted in Bosaso or be deported from Bosaso if he
attempted to seek refuge there.
[12]
The RAD then turned to the documentary evidence,
finding that while authorities in Puntland had deported Somalis who had come
from the south, there was no evidence that these deportees included members of
the Darod clan. The RAD further noted that while some of the internally
displaced persons within Puntland were members of the Darod clan, they had
access to protection under xeer, a customary legal system based on clan
membership.
[13]
The Applicant also argued that he would not even
be able to resettle in Puntland because, according to the documentary evidence,
Puntland only permits individuals who are both members of a local clan and
former residents to resettle. For support, the Applicant cited a passage from
the RPD’s National Documentation Package [the NDP] on Somalia, stating that “Somaliland and Puntland in general only accept back persons
who were former residents of those regions and were members of locally based
clans or sub clans” (AR at 12).
[14]
The RAD, however, noted two further passages
from the NDP:
…whether an
internal flight alternative exists in Puntland or Somaliland will depend on the
circumstances of the individual case, including whether the individual is a
member of a majority or minority clan and whether the individual originates
from the territory to which they are seeking to relocate.
…
…authorities in
Somaliland will only admit failed asylum seekers returning from European
countries who originate from their territory or those who have close
affiliation to the territory through clan membership. (AR at 12-13)
[15]
In light of these passages, the RAD concluded
that it was not mandatory that both criteria be present for an individual to
resettle in Puntland but that both were criteria that could be considered.
[16]
The Applicant also submitted to the RAD that he
had heard both in the news and from fellow refugees in Kenya that some
Majerteen clan members were removed from Puntland because they had southern
accents, and that, as a non-native of Puntland, he could easily be mistaken for
an economic migrant or a southern Al-Shabaab infiltrator. The RAD gave little
weight to this testimony, however, because it was uncorroborated by the “copious amounts of documents… from highly reputable sources
which address the situation of Internally Displaced Persons (IDPs) and the
removal of individuals from Puntland by authorities” (AR at 13).
[17]
As for the Applicant’s fears of persecution by
the Hawiye clan and Al-Shabaab, the RAD concluded that Bosaso was a safe
location. The documentary evidence suggests that both the Hawiye clan and
Al-Shabaab are located in south and central Somalia and have no authority or
control within Puntland, and while the RAD acknowledged that there are reports
of violence by Al-Shabaab in Puntland, the Applicant does not fit the profile
of those targeted, namely businessmen, elders, law enforcement, or religious
leaders.
[18]
The Applicant further argued before the RAD that
he would be at risk in the Internally Displaced Person [IDP] settlements in
Puntland. He contended that many IDPs are Darods and, while given some
protection under xeer, faced deplorable conditions in the IDP
settlements – conditions that affected all IDPs, regardless of clan.
[19]
The RAD was not persuaded, however, finding that
the documentary evidence stated that IDPs were at risk of human rights
violations “in the absence of clan protection and
support”. The settlements might not be ideal, but the Applicant had not
demonstrated on a balance of probabilities that he would face persecution were
he to, as the RAD put it, “return to Puntland” (AR
at 17).
[20]
Finally, the Applicant asserted that, without
family or a support network in Puntland, it would be impossible to establish
himself there. The RAD acknowledged this challenge but stressed that the
hardship associated with relocation is not the kind of hardship that renders an
IFA unreasonable in all circumstances. The RAD also pointed to documentary
evidence stressing the relative stability of northern Somalia and the fact that
the Applicant belongs to the dominant clan in Puntland.
[21]
The RAD concluded that the Applicant had not
demonstrated that he would face a serious possibility of persecution if he was
to relocate to Puntland and that the IFA in Bosaso was reasonable. The RAD thus
dismissed the appeal and confirmed the RPD’s decision.
IV.
Standard of Review
[22]
As mentioned above, the RAD decided, per Huruglica,
to conduct its own assessment of the evidence before the RPD. Neither party
raised this decision (on standard of review) as an issue prior to or at the
hearing. Indeed, counsel for both parties followed up with the Court regarding
the post-hearing release of the Federal Court of Appeal’s decision in Canada
(Citizenship and Immigration) v Huruglica, 2016 FCA 93. The parties agreed
again that the RAD’s selection of a standard of review raised no issues in
light of the Federal Court of Appeal’s decision, and I am in accordance with
that assessment.
[23]
As such, the Applicant’s objections relate
purely to the substance of the RAD’s assessment: specifically, the RAD’s
assessment of the facts and their application to the law in determining whether
an IFA exists.
[24]
When reviewing the RAD’s assessment of the
availability of an IFA, a reasonableness standard applies (Pidhorna v Canada
(Citizenship and Immigration), 2016 FC 1 at para 20; Kurtzmalaj v Canada
(Citizenship and Immigration), 2014 FC 1072 at para 18). This Court must therefore take a
deferential approach and assess whether the decision is an acceptable and
rational solution that is justifiable, transparent and intelligible (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
V.
Analysis
[25]
The Applicant alleges that the RAD made numerous
mistakes in its IFA analysis. None of them, however, rise to the level of a
reviewable error.
[26]
First, the Applicant argues that it was a “significant misunderstanding” on the part of the RAD
to state that the Applicant could “return” to
Puntland when he had never lived there (AR at 85). As the Respondent correctly
notes, however, the RAD’s analysis throughout was premised on the fact that the
Applicant was born in and lived in southern Somalia exclusively. As a result,
the error was not material, and in any event, the RAD’s use of the word “return” could have simply referred to the prospect of
a “return” to Somalia more generally.
[27]
Second, the Applicant argues that the RAD failed
to address how “realistically attainable” the
IFA is, considering the documentary evidence was clear that movement within
Somalia is heavily limited by armed forces, such as Al-Shabaab and others, who
pose a danger to the Applicant. Here the Applicant points to Tahlil v Canada
(Citizenship and Immigration), 2011 FC 817, where Justice Zinn took issue
with an RPD finding that a Somali citizen and member of the Majerteen clan
could fly to Puntland safely from Mogadishu.
[28]
The problem for the Applicant with Tahlil,
however, is that Justice Zinn ultimately upheld the RPD’s decision, noting that
a Dubai-based airline flies international flights into Bosaso and that this
made it a reasonable IFA.
[29]
The same logic applies here: so long as the
Applicant can travel to Bosaso without travelling to Mogadishu first, the IFA
is realistically attainable and on that basis, I find the RAD’s conclusion to
be reasonable.
[30]
Third, the Applicant argues that it is clear
that only former residents are allowed to re-settle in Puntland, pointing to a
UNHCR document in the NDP:
With regard to asylum-seekers originating
from the northern part of Galkayo (in Puntland) the 2010 Somalia Eligibility
Guidelines recommend that the States exercise caution when considering the
return of persons originating from Puntland or Somaliland who are not found to
be in need of international protection. Puntland and Somaliland will not accept
the return of Somalis unable to establish that they originate from those
territories. Therefore, individuals claiming to be from Puntland or Somaliland
who are unable to establish that they originate from these territories should
not be returned there.
…
There are a number
of factors which, taken in combination, indicate that an IFA/IRA is generally
not available for individuals from southern and central Somalia in Puntland and
Somaliland. These include not only the generally deplorable living conditions
of displaced persons in these territories, but perhaps most importantly the
fact that Puntland and Somaliland will not accept the return of Somalis unable
to establish that they originate from those territories. (AR at 85)
[31]
The Applicant further argues that this
information came from a report that was never directly referenced in the RAD
decision, even though it was part of the NDP. This kind of selective
referencing, the Applicant submits, is a reviewable error when it leaves
contrary evidence unaddressed (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425).
[32]
What the Applicant neglects, however, is that
this document is titled “Addendum to 2010 UNHCR
Eligibility Guidelines for Assessing the International Protection Needs of
Asylum-Seekers from Somalia, relating specifically to the city of Galkacyo”
(emphasis added). This addendum does not even mention Bosaso. Furthermore, the
passage quoted by the RAD in its decision actually directly addresses the 2010
UNHCR Eligibility Guidelines, stating that:
In its May 2010
Eligibility Guidelines, UNHCR considered that the generally deplorable
conditions of displaced persons in Puntland and Somaliland indicates that
internal relocation was generally not available for individuals from southern
and central Somalia. However, it also stated that whether an internal
flight alternative exists in Puntland or Somaliland will depend on the
circumstances of the individual case, including whether the individual is a
member of a majority or minority clan and whether the individual originates
from the territory to which they are seeking to relocate. (Certified Tribunal
Record at 39)
[33]
The RAD, then, relied on more recent evidence
that stressed the need for an individualized assessment and did not leave
current contrary information out of its analysis. The RAD’s analysis indeed
included an individualized assessment. The fact that another decision-maker may
not have agreed with the assessment, or may have arrived at a different
conclusion, does not mean that the RAD member came to an unreasonable decision.
[34]
Fourth, the Applicant argues that the RAD erred
in concluding that the xeer system could offer sufficient protection
from persecution. It is not a law enforcement agency and Puntland, as a
sub-national entity, has no international obligations to protect the Applicant.
In other words, there is no state protection available to the Applicant and xeer
does not meet the requisite standards of state protection. The Applicant
further contends that the RAD also ignored the Applicant’s submission that xeer
does not apply to individuals from the South.
[35]
This argument is not persuasive. The RAD never
concluded that the xeer system was a sufficient replacement for
state-level protection. Rather, it simply found that the xeer system was
a relevant factor in assessing the conditions that the Applicant would face in
Bosaso.
[36]
Finally, the Applicant argues that the RAD erred
in concluding that the IFA was reasonable in all circumstances, citing Omar
v Canada (Minister of Citizenship and Immigration), 2015 FC 637 at para 10:
There are several recent Federal Court
cases that call into question the reasonableness of an IFA where a person:
comes from a minority clan or cannot establish clan membership, and would be
conspicuous thereby; has never lived at the IFA nor have family there; does not
speak the language; has not lived in Somalia for years and has no adult
experience there; has no prospects for residence or employment and has lived
for 10 years in North America (see Abdulla Farah v Canada (Citizenship and
Immigration), 2012 FC 1149, 223 ACWS (3d) 183; Abubakar v Canada
(Minister of Employment and Immigration), [1993] FCJ No 887, 67 FTR 313; Yahya,
supra). The Officer largely ignores these factors.
[37]
These are, of course, not binding
pronouncements, but indicia of an unreasonable IFA, most of which do not even
apply to this matter. Furthermore, the case law is clear that the threshold for
unreasonableness for an IFA finding is high, requiring the Applicant to provide
“actual and concrete evidence” of conditions in
the IFA that “would jeopardize… life and safety… in
travelling or temporarily relocating” to that area (Ranganathan v
Canada (Minister of Citizenship & Immigration), [2001] 2 FCR 164 at
para 15 (FCA)).
[38]
When the Applicant argues, for example, that the
conditions in resettlement camps are deplorable and thus it is not reasonable
to require him to relocate there, the Applicant overlooks the RAD’s finding
that “[t]he documentary evidence relied upon by the
Appellant does not support his assertion that members of the majority clan face
deprivation of human rights” in resettlement camps. This objection, like
many others raised by the Applicant, amounts to a request for this Court to
reweigh the evidence, which is something this Court cannot do under a
reasonableness review. Nor is it the role of this Court to substitute the
conclusion that it or another RAD member, might have reasonably come to when
confronted with the same facts.
[39]
Justice Hughes sent this matter for
redetermination once before, instructing the RAD to consider whether the
Applicant could safely live and carry on his life in Bosaso, or whether his “southernness” would condemn him. The RAD heeded these
directions and examined this question in light of the evidence before it. I
cannot say that it did so in a manner lacking in intelligibility, transparency,
or justification or that its conclusion did not fall within the range of
acceptable outcomes.
VI.
Conclusion
[40]
Despite the concerted efforts of Applicant’s
counsel, and not for want of turning over every stone in this decision, this
application for judicial review is denied. No questions are certified and no
costs are ordered.
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