Date: 19981006
Docket: IMM-5428-97
BETWEEN:
ABDULLE MILGO DIRIE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN J.:
[1] Pursuant to leave granted by Madame Justice Simpson on June 18, 1998, this hearing is in regard to an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated December 2, 1997. The Board concluded that Milgo Dirie Abdulle (the "applicant") was not a Convention refugee.
FACTS
[2] On June 2, 1997, the applicant signed a Personal Information Form ("PIF") which she completed with the help of an interpreter. According to the PIF, the applicant was born in 1950 in Buhodleh, Somalia into the Midgan clan. She eventually moved to Somalia"s capital city, Mogadishu, and was married. In 1991, the applicant fled from Mogadishu to the farming town of Kurtunwaarey due to the fighting from the civil war. When conditions in Kurtunwaarey worsened because of the civil war, recent arrivals such as the applicant"s family were blamed. Thus after being separated from her husband and eldest two children, the applicant boarded a truck to Ethiopia in October of 1992. For five years the applicant stayed with the applicant"s uncle, who eventually arranged for the applicant to accompany a broker to Canada on April 4, 1997. She did not apply for a Canadian visa. The applicant landed in Montreal on April 5, 1997 and took a bus to Ottawa, where she met an acquaintance from Mogadishu. In her PIF the applicant indicated that none of her seven children lived in Somalia, and that she had a brother and sister in Somalia. When questioned at the Board hearing, however, she said that she had no idea whether her brother was still alive.
[3] On April 24, 1997, the applicant completed a Notification of Claim to be a Convention Refugee with the help of an interpreter. On May 7, 1997, she was found eligible to have her refugee claim heard by the Board. The Board heard the applicant"s claim on September 15, 1997.
THE BOARD"S DECISION
[4] In its reasons dated November 24, 1997, the Board concluded that the applicant is not a Convention refugee because she failed to demonstrate that she had a well-founded fear of persecution and that whatever discrimination she experienced did not amount to persecution. It its analysis, the Board stated:
| "Except for some verbal abuse the claimant offered no details of discrimination in Buhodleh other than what she called "the oppressive nature of the discrimination directed at the few Midgo [sic] families living there." In Mogadishu where her uncle, Hassan Dirie, also a Midgan, was "one of the most popular singers" in the city, the claimant said both she and her husband, who owned a small hardware store, had "a fairly comfortable life" and were "well-off." |
| When asked about this, the claimant said that in general her life was "one of oppression." Asked to be specific she said her family "was treated in an inhuman way." Asked a second time to be specific she said people didn"t want to eat with her and her family and didn"t want to visit their home. She said other children wouldn"t play with her children and called them names. |
| In Kurtunwaarey she survived through the generosity of the people in the farming town, people who, she said were from different clans, and who provided her and her family with food. Asked if she had any problems because she was a Midgan she said there was a lot of harassment. |
| As for the claimant"s allegation she could not return to Somalia because there would be no one there to protect her, the panel notes that her Personal Information Form (PIF) indicates she has both a brother and sister in the country. In the hearing the claimant said she was no longer certain her brother was in Somalia but even if he were "he has no life there." |
| But even in the unlikely even she has no immediate family in Somalia the panel notes that the claimant and six of her children lived for more than a year as a Midgan and a woman along in Kurtunwaarey. She lived mostly among strangers from different clans who provided for her needs and was unable to demonstrate she had any significant problems." |
ISSUES
[5] The applicant submitted a Memorandum of Argument within the Applicant"s Record filed January 22, 1998. The Minister of Citizenship and Immigration (the "respondent") filed a Memorandum of Argument on February 23, 1998 and a Further Memorandum of Argument on September 4, 1998. Pursuant to the Court"s direction at the hearing of this matter, the applicant filed an amendment to its Memorandum of Argument on September 21, 1998. The issues raised within the parties" arguments are most clearly summarized as follows:
1. Did the Board err in law by failing to consider all of the evidence?
| (a) Did the Board improperly assess whether the applicant had been persecuted on the basis of her gender? |
| (b) Did the Board improperly ignore documentary evidence regarding the applicant"s fear of persecution? |
| 2. Did the Board err in law by improperly assessing whether the applicant was a Convention refugee? |
| (a) Did the Board improperly assess whether the applicant had a well-founded fear of persecution? |
| (b) Did the Board improperly assess whether the applicant is unable or unwilling to avail herself of state protection? |
3. Did the Board err in law by misconstruing evidence?
ANALYSIS AND APPLICATION TO THE CASE AT BAR
[6] The Court must determine whether the Board erred in law by concluding that the applicant is not a Convention refugee. Paragraph 18.1(4)(c) of the Federal Court Act1 provides the Court with the authority to grant relief if it agrees that the Board "...erred in law in making a decision or order."
Failure to Consider Evidence
[7] The applicant claims that the Board committed errors of law by failing to consider evidence regarding persecution on the basis of gender and certain documentary evidence. Firstly, the applicant submits that the Board neglected to fully address the issue of persecution since it did not consider the anticipated persecution against the applicant because of her gender. However, in its reasons, the Board cited the claimant living for over a year in Kurtunwaarey without her husband as one basis for its finding that the applicant would not suffer persecution. Furthermore, the respondent claims that the Board addressed the claimant"s gender in the conclusion of its written reasons where it said:
| "It is also clear that, if the claimant were returned to Somalia, she would not be without protection and would be able to live without serious problems as she did with her children in Kurtunwaarey." |
At the hearing in this matter, counsel for the applicant cited passages from the transcript of the hearing in front of the Board which clearly suggested that the applicant"s year in Kurtunwaarey was trying and difficult. Counsel also questioned the Board"s reference to the applicant"s past to determine the likelihood of persecution based on gender in the future and submitted that there should have been more analysis of this issue given that it was a primary basis of her claim. The respondent contended that the Board had no choice but to extend the applicant"s past experiences to the future.
[8] In my view, the Board"s finding regarding persecution on the basis of gender, however brief, is not appealable. It is true that there was contradictory evidence led regarding the applicant"s life in Kurtunwaarey and that it would have been preferable for the Board to allude to those inconsistencies to support its assessment of the applicant"s life as a woman alone in Kurtunwaarey. However, there is no indication that the Board did not consider the evidence before it, and I am reluctant to question the Board"s assessment of that evidence and its reconstruction of the facts.
[9] The applicant also submits that the Board erred in law by failing to consider documentary evidence relevant to the applicant"s fear of persecution as a woman and as a Midgan. Counsel referred extensively to this documentary evidence at the hearing before this Court. Respondent"s counsel argued that failing to refer to documentary evidence is not an error of law where there is no documentary evidence contradicting the Board"s findings. According to the respondent the documentary evidence filed in this case did not contradict the Board"s findings because it did not refer directly to the applicant"s claim. Rather, the Board correctly referred to the applicant"s circumstances as evidenced by her testimony.
[10] In Bains v. Canada (Minister of Employment and Immigration)2, I stated that a failure to comment on documentary evidence seriously weakens Board decisions:
| "...I agree that it is within the purview of the panel to review the documentation and accept or reject the information, however, the Refugee Division cannot simply ignore the information...The Refugee Division, in my view, is obligated, at the very least, to comment on the information. If the documentation is accepted or rejected the applicant should be advised of the reasons why, especially as the documentation supports the applicant"s position."3 |
This reasoning is supported by Mahandan v. Canada (Minister of Employment and Immigration)4 ("Mahandan"), a decision of the Federal Court of Appeal. Isaac C.J. stated:
| "Before us, the Appellants contend that the Board failed to consider adequately or at all the objective basis of their fear. First, the Appellants say that the documentary evidence, which was considerable, if properly assessed, could well have enhanced the Board"s appreciation of the objective basis of their claim. They say, secondly that beyond a bare acknowledgement that the evidence presented at the hearing consisted of documentary evidence which constituted background information on Sri Lanka, the reasons of the Board were bereft of any further reference to the documentary evidence, let alone any consideration of their claim in light of that evidence. Next, they say that the Board"s assessment of their claim might well have been different, if they had considered it in that light and, further, that by failing to do so, the Board fell into reversible error. |
| We agree. Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board"s appreciation of an Appellant"s claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgement of its having been received and to indicate, in its reason, the impact, if any, that such evidence had upon the Applicant"s claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand."5 |
[11] Before this Court, respondent"s counsel referred to my reasons in Soma v. Canada (Minister of Citizenship and Immigration)6 ("Soma") to support its submission that the Board is not obligated to address documentary evidence unless it is directly contradictory to the Board"s findings. In that case I said:
| "Although it would be preferable for the Board to address adverse documentary evidence, it is under no obligation to do so unless the evidence is directly contradictory [to the Board"s conclusion]."7 |
The respondent submitted that in the case at bar that the documentary evidence does not contradict the Board"s findings. In my view, there is indeed documentary evidence which is inconsistent with the Board"s conclusions. For example, in the paper entitled "Victims and Vulnerable Groups in Southern Somalia", submitted as part of the applicant"s record as an exhibit to the affidavit of Karla Unger, the author outlines five factors that made minorities vulnerable to military violence in Somalia. It would seem that each of the factors, namely military weakness, vulnerable assets, social isolation, political neutrality and limited support networks beyond the home community, apply to the applicant"s circumstances. I make no finding on what the Board should conclude from the evidence, but in my opinion, the applicant is at least entitled to know why the Board chooses not to refer to those relevant documents.
The "Convention Refugee" Definition
[12] The applicant asked the Board to determine whether she fell within the definition of "Convention refugee" as defined by subsection 2(1) of the Immigration Act8:
...
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a
...
"réfugié au sens de la Convention" Toute personne :
a) qui, craignant avec raison d"être persécutée du fait de sa race, de sa religion, de sa nationalité, de son
particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;
appartenance à un groupe social ou de ses opinions politiques :
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n"a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n"a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
Sont exclues de la présente définition les personnes soustraite à l"application de la Convention par les sections E ou F de l"article premier de celle-ci dont le texte est reproduit à l"annexe de la présente loi.
Therefore to establish a right to Convention refugee status, the applicant must prove a well-founded fear of persecution by reason of race, religion, nationality or membership in a particular social group, and that state protection is unavailable.
[1] I would like to begin my analysis of this issue by referring to the Board"s reasons regarding persecution. The Board concluded that the applicant was not a Convention refugee because she did not meet "...the burden of proof required to demonstrate that she has a well-founded fear of persecution because she is a Midgan or for any other Convention reason." Despite the Board"s reasoning to support its finding, the applicant contends in this judicial review that as a member of a minority clan, the applicant has suffered severe discriminatory treatment amounting to persecution, citing various documentary evidence. The respondent urged the Court to defer to the Board"s characterization of the treatment to which the applicant was subjected as discrimination Before the Court, applicant"s counsel argued that the Board concluding that there was not persecution in the past should not have affected its analysis of whether the applicant had a reasonable fear of persecution were she to return to Somalia. The respondent replied that the Board had no choice but to refer to the applicant"s past experiences. Furthermore, there was no evidence indicating that conditions in Somalia had changed since the applicant fled and that this justified the Board"s conclusion that the applicant would not be persecuted on her return. The respondent also submitted that to establish a successful Convention Refugee claim, the claimant must prove that the treatment they were subjected to resulted from being targeted on the basis of a Convention refugee ground such as membership in a clan. The respondent relied on the documentary evidence to argue that the claimant"s clan was not targeted at all, but was merely subjected to heightened vulnerability. Finally, the respondent contended that the Board should assess Convention refugee status on a case by case basis and rely on the applicant"s personal circumstances rather than referring to documentary evidence showing that her clan is oppressed.
[2] In Rajudeen v. Minister of Employment and Immigration9 the court quoted the following definition of "persecution":
| "A particular course or period of systematic infliction of punishment directed against those holding a particular (religious belief); persistent injury or annoyance from any source."10 |
It also noted that there are both subjective and objective components for determining whether the applicant has a valid fear of persecution:
| "The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee"s fear be evaluated objectively to determine if there is a valid basis for that fear."11 |
Therefore the Board must determine whether the claimant"s fear is well-founded by evaluating it objectively. In Lai v. Canada (Minister of Employment and Immigration)12, the Federal Court of Appeal held that to determine whether the claimant has a valid fear, the Board must assess all of the evidence before it. In particular, past persecution of the claimant tends to indicate a present risk of future persecution.13 Once the objective grounds for the claimant"s fear are present, it is very likely that a subjective fear is also present unless the Board questions the claimant"s credibility.14 Finally, in Hilo v. Canada (Minister of Employment and Immigration)15 the court held that the Board has a duty to provide clear reasons for casting doubt on a claimant"s credibility.
[3] Though I am reluctant to comment on the Board concluding that the applicant did not suffer persecution, I would like to address its analysis in support of that decision. In my opinion, the Board"s reasons to support its determination that the applicant did not have a well-founded fear of persecution are deficient. The Board referred to the applicant"s apparently contradictory oral testimony in its analysis supporting that determination. One is forced to imply that the Board did not accept the applicant"s subjective fear of persecution because of a lack of credibility. I realize that the Board is uniquely situated to assess the applicant"s credibility and that I must defer to the Board"s assessment in this regard unless it is perverse, capricious or made without reference to the material before the Board. However, the applicant is entitled to clear reasons for the Board refusing its claim, and the Board should have stated clearly any adverse finding regarding credibility.
[4] As stated above, absence of state protection is also a necessary component of the "Convention refugee" definition. A claimant whose state of nationality has failed to protect him or her is eligible for the surrogate or substitute protection which Convention refugee status provides.16 In the case at bar, the Board did not consider state protection within its reasons.
[5] The applicant submits that the Board incorrectly assumed that the protection provided by family members or strangers in Kurtunwaarey was a sufficient substitute for the adequate state protection which would bar her Convention refugee claim. The respondent counters that it was unnecessary for the Board to consider whether the claimant could avail herself of adequate state protection because the applicant failed to demonstrate a well-founded fear of persecution to the Board.
[6] In Ward v. Canada17, the LaForest J. cited the definition for "Convention refugee" and then said:
| "This section appears to focus the inquiry on whether there is a "well-founded fear". This is the first point the claimant must establish. All that follows must be "by reason of" that fear. The first category [s. 2(a)(i)] requires the claimant to be outside the country of nationality by reason of that fear and unable to avail him- or herself of its protection. The second [s. 2(a)(ii)] requires that the claimant be both outside the country of nationality and unwilling to avail him- or herself of its protection, by reason of that fear. Thus, regardless of the category under which the claimant falls, the focus is on establishing whether the fear is "well-founded"."18 |
[7] In my view, the above passage justifies the Board"s failure to address the state protection issue. Once the Board found that the applicant failed to prove a well-founded fear of persecution, it was under no obligation to address the state protection issue.
Misconstruction of the Evidence
[8] The applicant submits that the Board erred in law by misconstruing the evidence before it. More specifically, the applicant claims that in concluding that there was no well-founded fear of persecution, the Board erroneously relied on the fact that the applicant had not suffered persecution in the past in Somalia and neglected to consider whether the applicant would suffer persecution on her return. The respondent contends that the Board assessed the applicant"s claim prospectively in light of the applicant"s past experience in Somalia.
[9] In Oyarzo v. Canada (Minister of Employment and Immigration)19 Thurlow C.J. said in the context of assessing future persecution by referring to past events:
| "[S]ince it is the foundation for a present fear that must be considered, such incidents in the past are part of the whole picture and cannot be discarded entirely as a basis for fear, even though what has happened since has left them in the background."20 |
I agree. It is not necessary for the Board to rely on past incidents to determine the Refugee claimant"s current state of mind. However, it will often be helpful for the Board to refer those incidents to assess the objective component of a well-founded fear of persecution. I would therefore dismiss this ground of appeal.
CONCLUSION AND DISPOSITION
[10] On the basis of the Board"s lack of analysis of documentary evidence and its failure to clearly question the applicant"s credibility, I would therefore allow this application under paragraph 18.1(3)(b ) of the Federal Court Act and refer the decision of the Board back to a differently constituted panel for redetermination taking into account these reasons.
OTTAWA, ONTARIO B. Cullen
October 6, 1998. J.F.C.C.
__________________1 .R.S.C. 1985, c. F-7 as amended
2 (1993), 20 Imm. L.R. (2d) 296.
5 Ibid. at paragraphs 7 and 8.
6 (1995), 94 F.T.R. 203 (F.C.T.D.).
8 R.S.C. 1985, c. I-2 as amended.
9 (1984) 55 N.R. 129 (F.C.A.).
12 (1989), 8 Imm. L.R. (2d) 245.
13 See Oyarzo v. Canada (Minister of Employment and Immigration) , [1982] 2 F.C. 779 (F.C.A.) and Retnem v. Canada (Minister of Employment and Immigration), (1991) 132 N.R. 53 (F.C.A.).
14 See Yusuf v. Canada (Minister of Employment and Immigration) , [1992] 1 F.C. 629 (F.C.A.) and Shanmugarajah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 583 (F.C.A.).
15 (1991), 130 N.R. 236 (F.C.A.).