Docket: IMM-2192-17
Citation: 2018 FC 61
Ottawa, Ontario,
January 23, 2018
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ABDULKARIM AHMED
(A.K.A.: ABDULKARIM MOHAMED AHMED)
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
JUDGMENTAND REASONS
UPON hearing this
application for judicial review at Toronto, Ontario on December 5, 2017;
AND UPON reviewing the
materials filed and hearing counsel for the parties;
AND UPON reserving
decision;
AND UPON determining that this application be dismissed for the following
reasons:
[1]
The Applicant, Abdulkarim Ahmed, is a citizen of
Somalia who seeks to set aside a decision of the Refugee Appeal Division [RAD]
where it was determined that he was neither a Convention refugee nor a person
in need of protection.
[2]
Mr. Ahmed contends that the RAD erred in its
assessment of the evidence of both his personalized and generalized risk in
Somalia. Regarding his asserted personal risk, he challenges the RAD’s finding
that he lacked credibility. Concerning the general risk he faced in Somalia,
he argues that the RAD was unreasonably selective in the evidence it relied on.
[3]
There is no merit to the criticism levelled at
the RAD’s credibility assessment. In finding Mr. Ahmed not to be a credible
witness, the RAD relied upon several notable inconsistencies in his testimony,
including the following:
(a)
A significant discrepancy in the date he was
allegedly kidnapped. Although he blamed the problem on an interpretation
error, the RAD did not accept this explanation, in part, because Mr. Ahmed made
no attempt to correct his Basis of Claim narrative.
(b)
An evolving explanation under questioning about
his whereabouts when his brother was allegedly killed. His initial answer was
that he was present, then close by, and, ultimately, in the country. The RAD
was also sceptical about Mr. Ahmed’s speculation about the motives for
this alleged killing.
(c)
Inconsistent answers about whether and when he
was married.
(d)
A failure to register his presence in Kenya and
to produce corroborating documents of that residency. The RAD was also
troubled by Mr. Ahmed’s excuse that to do so would have been a waste of his
time.
[4]
All of the RAD’s credibility findings were
supported by evidence. Indeed, the impression left by Mr. Ahmed’s testimony
was that he was, at best, a careless witness. The most telling example of this
appears in a lengthy exchange in the RPD hearing concerning the date he left
Somalia and where he gave the following series of inconsistent answers:
Mr. Ahmed: I
think maybe the interpreter made the mistake because I did say that I left the
country and the end of 2010, not 2011.
…
Mr. Ahmed:
When I left the country it was 2010. When I arrived in Kenya it was 2011. I
don’t think I made the mistake. I think the person who wrote it made the
mistake.
…
Mr. Ahmed: I
never said that I left the country in 2011. I just said Al Shabaab took me at
the end of 2010. I don’t think my explanation was hard and you can see it in a
lot of different places — the timing and the events that happened.
…
Mr. Ahmed: I
did explain the times that I left the country and the times I went to the other
country. I did explain and I don’t think I made the mistake by telling you
something else. If you have the paper in front of you, you can tell I left the
country in 2011.
…
Mr. Ahmed:
What I’m saying is I left the country at the end of 2010 and they kept us for
15 days...
Panel: Sir,
stop (in response to Mr. Ahmed interrupting the interpreter to provide her with
more information).
Mr. Ahmed:
All I’m saying is I left the country in June 2011.
…
Panel: Sir
you can’t interrupt the interpreter. I don’t know what you said before you interrupted
her because I don’t have the benefit of understanding Somali. We’ve talked
about this before. You speak for a few seconds then you let the interpreter
speak. Are you having problems with the interpretation?
Mr. Ahmed:
Maybe sometimes it has been when I say 2010 she says something else or maybe
she won’t hear me.
Panel: If
you’re aware of a specific example I would welcome you to point it out for me.
Mr. Ahmed: At
the time I was saying that Al Shabaab took me at the end of 2010. I never said
I left the country in 2010. But she (interpreter) keeps on saying I left the country
in 2010.
Panel: I
don’t understand. Are you saying the interpreter is saying something different
from what you’re saying?
Mr. Ahmed:
Yes, it happened twice. When I didn’t say I left the country in 2010, she said
I did.
Panel: Tell
me when you did leave the country, sir.
Mr. Ahmed: I
left June 6, 2011.
[5]
Mr. Ahmed’s inability to provide a consistent
answer about the year of his departure from Somalia raised a material and well-founded
credibility concern for the RAD. This and the other identified credibility
concerns provide a reasonable foundation for the RAD’s conclusion that he had
failed to establish a personalized risk in Somalia.
[6]
Mr. Ahmed’s challenge to the RAD’s assessment of
the evidence of the generalized risk he faced in Somalia is similarly
unfounded. This argument is no more than an invitation to the Court to reweigh
the relevant evidence in a more favourable way. That, of course, is not the
role of the Court on judicial review where deference to the decision-maker’s reasonable
evidentiary assessments is required.
[7]
The RAD accepted Mr. Ahmed’s asserted identity
as a member of the Sheikal clan sub-clan known as Rer Aw Hassan. The RAD then
appropriately considered the generalized risk faced by members of that group.
[8]
Mr. Ahmed’s primary criticism of the RAD’s
assessment of the generalized risk concerns its linkage of his sub-clan to the
Hawiye clan. The Hawiye clan were known to have a larger and stronger presence
in Somalia and were thus able to provide protection to members of any sub-clan
within their protective sphere. Mr. Ahmed attributes to the RAD an
erroneous finding that the Sheikal “belong to the
Hawiye clan”. The evidence on this point, he says, was far from clear
and insufficient to support the RAD’s finding.
[9]
The fundamental problem with this argument is that
the RAD did not make an unequivocal finding that the Sheikal clan universally
fell under the protection of the Hawiye clan. The RAD simply observed that “majority sources consider Sheikal being associated to the
Hawiye, as a sub-clan of the Hawiye, or even as a separate clan-family”.
Contrary to Mr. Ahmed’s argument, the RAD made nothing further of the
point and it made no finding that Mr. Ahmed would be in a position to exploit
these relationships if he returned to Somalia. After reviewing the groups
typically targeted by Al Shabaab within its areas of influence, what the RAD
did conclude was that, as a member of the Sheikal clan, Rer Aw Hassan sub-clan,
Mr. Ahmed had failed to establish a risk linked to Al Shabaab.
[10]
This finding that Mr. Ahmed had failed to
establish that his clan was an unprotected target of Al Shabaab is contained in
the following concluding passage:
[58] Based on the totality of the
evidence in this case, the RAD finds that the Appellant has provided
insufficient reliable and satisfactory probative evidence in support of his
claim for refugee protection. The RAD also finds that there is no significant
evidence in the country documents on the record showing that members of Sheikal
clan, Rer Aw Hassan sub-clan are discriminated against, and/or targeted by Al-Shabaab
such that the Appellant would face a serious possibility of persecution, or
that he would, on a balance of probabilities, be personally subjected to a risk
to life or to a risk of cruel and unusual treatment or punishment, or to a
danger of torture upon return to Somalia.
[59] Based on the foregoing reasons,
the RAD finds that, in the circumstances particular to this case, the Appellant
has not established a serious possibility of persecution, or that he would, on
a balance of probabilities, be personally subjected to a risk to life or to a
risk of cruel and unusual treatment or punishment, or to a danger of torture
upon return to Somalia.
[11]
The above finding was reasonably made, based, as
it was, on the very thin evidence of generalized risk presented by Mr. Ahmed.
If Mr. Ahmed’s clan status placed him at heightened risk in Somalia, he was in the
best position to prove it. Instead, he relied upon a rather muddled and
inconclusive record about where he stood in the hierarchy of Somalian clans and
in relation to Al Shabaab. In the absence of clear evidence that Mr. Ahmed’s
clan status made him a potential target, the RAD’s finding cannot be impeached
on judicial review.
[12]
Mr. Ahmed further complains that the RAD
overlooked some evidence that the historical protective mechanisms afforded by
stronger Somalian clans to minority groups within their midst are not as strong
as they once were. While that may be the case, the argument misses the point.
Mr. Ahmed simply failed to meet the burden of establishing a generalized risk
based on his clan status.
[13]
I note as well that this supposedly overlooked
evidence was not mentioned in Mr. Ahmed’s Memorandum of Argument to the
RAD and he should not be too surprised that it was not noted in the decision.
[14]
For the foregoing reasons, this application is
dismissed.
[15]
Neither party proposed a certified question and
no issue of general importance arises on this record.
JUDGMENT
IN IMM-2192-17
THIS
COURT’S JUDGMENT is that this application be
dismissed.
"R.L. Barnes"
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