Docket: IMM-5305-15
Citation:
2016 FC 1067
Ottawa, Ontario, September 20, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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MUKHTAR ABDULLA HASSAN
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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.
Overview
[1]
The Applicant, Mukhtar Abdulla Hassan, claims to
be a citizen of Somalia and that he belongs to the minority Reer aw Hassan
clan. He alleges risk due to minority clan status and that he fears returning
to Somalia because of the Habar Gidir clan, the Al Shabaab militia and his
father-in-law who objected to someone of Mr. Hassan’s clan affiliation marrying
his daughter.
[2]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada determined that Mr. Hassan is not a
Convention refugee or a person in need of protection under section 96 or 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. Mr.
Hassan appealed this determination to the Refugee Appeal Division [RAD], which
dismissed the appeal. This result was set aside by consent on a previous
judicial review, and the RAD re-determined the appeal, again confirming the
decision of the RPD. Mr. Hassan now seeks judicial review of this
redetermination.
[3]
As explained in greater detail below, this
application is dismissed, because Mr. Hassan has not demonstrated reviewable
errors on the part of the RAD.
II.
Background
[4]
Mr. Hassan alleges that he fled Somalia in 2006
and traveled to Kenya and subsequently to South Africa that same year, where he
lived for a period of over 5 years. He claims that in 2010 he married a Somali
woman from the Abgal clan but that his wife’s father objected strenuously to
the marriage and threatened to kill Mr. Hassan and his parents and siblings.
Mr. Hassan alleges that his wife was murdered in 2012 by a mob of anti-Somali
South Africans. He then traveled to the US where he made an unsuccessful
refugee claim, following which he came to Canada and again sought refugee
status.
[5]
In rejecting Mr. Hassan’s claim, the RPD noted
that he failed to provide identity documentation. It accepted on a balance of
probabilities that he was a citizen of Somalia, based on the testimony of an
identity witness, but did not accept his alleged minority clan status. Based on
inconsistencies in his evidence, the RPD found that Mr. Hassan was not
credible. It also drew an adverse inference as to his subjective fear, because
he did not pursue permanent protection during his alleged stay of over 5 years in
South Africa.
[6]
In the re-determination of the appeal from the
RPD, the RAD identified that it would follow guidance on the applicable
standard of review provided by the decision of Justice Phelan in Huruglica v
Canada (Minister of Citizenship and Immigration), 2014 FC 799 [Huruglica].
The RAD stated that it would come to an independent assessment of whether Mr.
Hassan is a Convention refugee or person in need of protection, while affording
deference to the credibility findings of the RPD.
[7]
The RAD denied the appeal, finding based on the
totality of the evidence that Mr. Hassan had not established that there is a
serious possibility that he would be persecuted in Somalia or that, on a
balance of probabilities, he would be personally subjected to a danger of
torture, or face a risk to life, or to a risk of cruel and unusual treatment or
punishment in Somalia. The RAD’s reasons will be canvassed in more detail below
in the Court’s consideration of Mr. Hassan’s arguments.
III.
Issues
[8]
Mr. Hassan’s argument before the Court focused
on the following issues:
A.
Did the RAD err in its application of the
standard of review, or breach procedural fairness, in rejecting the identity
witness’ evidence of Mr. Hassan’s clan affiliation?
B.
Did the RAD treat unreasonably a letter from the
Somali Immigrant Aid Organization in support of Mr. Hassan’s clan affiliation?
C.
Did the RAD treat unreasonably a Response to
Information Request in the National Documentation Package for Somalia?
IV.
Analysis
A.
Did the RAD err in its application of the
standard of review, or breach procedural fairness, in rejecting the identity
witness’ evidence of Mr. Hassan’s clan affiliation?
[9]
Mr. Hassan does not take issue with the standard
of review articulated by the RAD based on Huruglica, but he submits that
the RAD erred in its application of that standard to the identity witness’
evidence of Mr. Hassan’s clan affiliation. He argues that the RPD found the
witness to be credible and that the RAD should therefore have deferred to that
credibility finding. Mr. Hassan points out that the identity witness confirmed
his claimed clan affiliation and submits that this clan affiliation should
therefore have been accepted. Instead, the RAD analysed itself the witness’
evidence and found that little weight could be attributed to his testimony in
establishing Mr. Hassan’s clan affiliation and allegations.
[10]
I find no error on the part of the RAD in how it
approached the identity witness’ evidence. The RAD proceeded with its own
analysis of the witness’ evidence, because it found that the RPD did not make
any findings with respect to the witness’ general credibility. The RAD found
that, although the RPD accepted that the witness provided reliable evidence of
Mr. Hassan’s identity as a national of Somalia, the RPD did not accept the
witness’ evidence as to Mr. Hassan’s clan affiliation. I consider Mr. Hassan’s
argument, surrounding the RAD’s application of the standard of review, itself
to be reviewable on a standard of reasonableness. However, as I read the RPD’s
decision, the RAD’s interpretation of the RPD’s decision, and the RAD’s
resulting approach to the identity witness’ evidence, are both reasonable and correct.
The RPD accepted, on a balance of probabilities, that Mr. Hassan is a citizen
of Somalia, based on the testimony of the identity witness, but reached no conclusions
as to the witness’ general credibility or with respect to the credibility of
his evidence on Mr. Hassan’s clan affiliation. The RPD’s decision recites
aspects of the witness’ evidence but, other than the evidence on Mr. Hassan’s
national identity, does not make favourable credibility findings on the
witness’ evidence. The RAD therefore analysed the witness’ evidence itself and
was properly applying the applicable standard of review in doing so.
[11]
Mr. Hassan also argues that the RAD erred in
undertaking this analysis of the identity witness’ evidence, because this issue
was not raised in his appeal to the RAD. He submits that the RAD was without
jurisdiction to consider this issue and that it was a breach of procedural
fairness for the RAD to have considered this issue without giving him notice of
its intention to do so.
[12]
In support of this argument, Mr. Hassan relies
upon the decision of the Supreme Court of Canada in R. v Mian, 2014 SCC
54 [Mian], which addressed the scope of an appellate court’s jurisdiction
to raise new issues and the procedures to be followed when such jurisdiction is
exercised. Although Mian was a criminal case, it has been a considered
by this Court in the context of RAD decisions. In Ching v Canada(Minister of
Citizenship and Immigration), 2015 FC 725 [Ching], at paragraph 67, Justice
Kane considered the conclusion of the Supreme Court in Mian that,
although an appellate court has jurisdiction to raise a new issue, this would
be rare and only when failing to do so would risk an injustice. The appellate
court should also consider whether there is a sufficient record on which to
raise the issue and whether raising the issue would result in procedural
prejudice to any party.
[13]
Justice Kane concluded at paragraph 74 that,
whether or not the principles in Mian should be applied by the RAD, it
is a basic principle of natural justice and procedural fairness that a party
should have an opportunity to respond to new issues and concerns that will have
a bearing on a decision affecting them. Similar principles were applied by
Justice Annis in Ojarikre v Canada (Minister of Citizenship and Immigration),
2015 FC 896, in reliance on both Mian and Ching.
[14]
The difficulty with Mr. Hassan’s reliance on
these authorities is the fact that, in addressing the identity witness’
evidence of Mr. Hassan’s clan, the RAD has not embarked upon a new issue,
meaning an issue that cannot reasonably be said to stem from the issues as
framed by the parties (see Ching, at para 67, relying on Mian, at
para 30). In its Memorandum of Argument before the RAD, Mr. Hassan raised the
issue of the RPD having found that he was not a member of the Reer aw Hassan
sub clan of the Shekhal clan. Mr. Hassan submitted that the RPD erred in that
the identity witness confirmed the clan affiliation and this witness was found
credible. Therefore, this issue was squarely before the RAD, having been raised
by Mr. Hassan himself.
[15]
The parties agree that, as this argument by Mr.
Hassan before the Court raises an issue of procedural fairness, it is to be
reviewed on a standard of correctness. I find the RAD to have acted correctly,
and without any want of procedural fairness, in addressing the identity
witness’ evidence of clan affiliation as it did.
B.
Did the RAD treat unreasonably a letter from the
Somali Immigrant Aid Organization in support of Mr. Hassan’s clan affiliation?
[16]
In support of his claimed clan affiliation, Mr.
Hassan submitted a letter from the Somali Immigrant Aid Organization [SIAO],
which stated that many community members know his family and that community
elders have confirmed that the family are from the clan of Reer Ohassan. The RAD
found it problematic that the RPD had not addressed this letter, and the RAD therefore
conducted its own independent assessment of this evidence.
[17]
The RAD noted that the letter does not indicate
the efforts that the organization went through to identify the many community
members who know Mr. Hassan’s family and does not provide the identities of
those individuals. The RAD found it reasonable to expect that, given the
importance of the establishment of Mr. Hassan’s identity, information on the
identities of these individuals would be included with the letter, or the
letter would be accompanied by declarations from at least some of them. The RAD
also found that the letter does not make clear to what extent its authors
relied on information provided by Mr. Hassan himself. It also does not indicate
whether the organization verified the information of Mr. Hassan or those whom
they consulted. The RAD found the letter to have little probative value and
that, even if it was to be given more weight, it was insufficient to overcome
the totality of the findings with respect to Mr. Hassan’s clan affiliation.
[18]
The parties agree that this finding is
reviewable on a standard of reasonableness. Mr. Hassan’s argument is that the
RAD impugned the letter for what it did not say and should instead have focused
on what it said. He also relies on the decision of Justice Boswell in
Ibrahim v Canada (Minister of Citizenship and Immigration), 2016 FC 11 [Ibrahim],
which found the RAD to have erred in discounting and discrediting a letter from
the SIAO, offered in evidence to establish a claimant’s identity, by comparing the
SIAO’s practices for verifying the identities of individuals to the practices
of other Somali organizations.
[19]
I do not find the RAD’s analysis in the case at
hand to be comparable to that which was criticized by Justice Boswell in
Ibrahim or otherwise to be unreasonable. The RAD considered the
probative value of the SIAO letter in the case at hand based on its analysis of
the information contained in that letter, including how that information was or
was not verified, without reference to the standards or practices of other
organizations. Mr. Hassan’s argument amounts to a disagreement with the RAD’s
weighing of the evidence, which is not a ground for review of the decision.
C.
Did the RAD treat unreasonably a Response to
Information Request in the National Documentation Package for Somalia?
[20]
The Response to Information Request [RIR], to
which this issue relates, addressed the return of members of the Somali diaspora
to live in Somalia and particularly in Mogadishu. The RAD considered this
evidence in the context of Mr. Hassan’s submission that he was at risk from Al
Shabaab upon return to Somalia because they target returnees. The RAD noted from
the RIR that, according to sources, Al Shabaab has made threats specifically
against diaspora returnees. The RAD noted that the RIR also includes
information stating that Al Shabaab no longer controls Mogadishu but continues
to carry out periodic attacks in Mogadishu. The RAD stated that there are
reports of civilian casualties but no evidence on the incidence of specific
attacks on members of the diaspora or that they are disproportionately targeted
by Al Shabaab.
[21]
The RAD also noted from the RIR that there is
improved stability and security in Somalia which has prompted members of the
Somali diaspora to return to their country of origin. It found that Mr. Hassan
had not established that there is a serious possibility of persecution or
likelihood of death or cruel or unusual treatment or punishment if he were to
return to Somalia.
[22]
Mr. Hassan argues that the RAD erred in relying
on the absence of evidence that returning Somalis are disproportionately
targeted by Al Shabaab. He also submits that the RAD was selective in its reliance
on the evidence in the RIR, in that the document states that returnees usually
return for a temporary period rather than to settle. The parties agree that
this issue is to be reviewed on a standard of reasonableness.
[23]
I find no error in this aspect of RAD’s
decision. Consistent with the RAD’s analysis, the RIR does refer to the
voluntary return of Somalis to their areas of origin. Mr. Hassan is correct
that the same document also refers to Somalis often returning on a temporary
rather than permanent basis. However, I do not regard this evidence to be
inconsistent with the RAD’s conclusion that members of the Somali diaspora are
returning to their country and its reliance on the evidence to this effect in
rejecting Mr. Hassan’s argument that he will be at risk upon return.
[24]
Similarly, I cannot conclude that the statement
by the RAD, that there is no evidence that members of the diaspora are
disproportionately targeted by Al Shabaab, renders its decision unreasonable.
The RAD acknowledged that there are civilian casualties resulting from attacks
by Al Shabaab and was therefore conscious of the general risk of violence from
Al Shabaab. I interpret the RAD’s analysis to be that, despite threats by Al
Shabaab directed at returnees, it found no evidence that returnees were at
greater risk than the population generally. As correctly argued by the
Respondent, this is an element of an analysis under section 97 of IRPA, which
it was appropriate for the RAD to undertake in the context of Mr. Hassan’s
argument that, independent of his clan affiliation, he would be at risk because
of his status as a returnee.
V.
Conclusion
[25]
In his written submissions to the Court, Mr.
Hassan raised additional arguments to the effect that the RAD breached
procedural fairness in impugning the credibility of evidence from Wikipedia
without giving Mr. Hassan an opportunity to establish its history, and that the
RAD erred in impugning Mr. Hassan’s credibility under his section 97 claim on
the basis that he had not applied for permanent residence in South Africa. Mr.
Hassan did not pursue these arguments in oral argument. I have nevertheless
considered these arguments based on his written submissions and find no resulting
reviewable errors by the RAD.
[26]
Having found that none of Mr. Hassan’s arguments
identify a reviewable error by the RAD, this application for judicial review is
dismissed.
VI.
Certified Question
[27]
Mr. Hassan proposed for certification for appeal
the following question: “Can the Refugee Appeal
Division raise new issues only if failing to do so would risk an injustice?”
This proposed question is derived from the jurisprudence in and following Mian
to the effect that, although an appellate court has jurisdiction to raise a
new issue, this would be rare and only when failing to do so would risk an
injustice.
[28]
Having found that the determination of the RAD
in the present case was not based on a new issue, an appellate decision on this
proposed question would not be determinative of an appeal of my decision. Therefore,
no question is stated for certification.
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