Date: 19991112
Docket: IMM-4845-99
Ottawa, Ontario, the 12th day of November, 1999
Present: The Honourable Mr. Justice Pelletier
BETWEEN :
SHARA SHAWESH and YUSUF SHAWESH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER and ORDER
[1] This is an application to stay the execution of a removal order of the two applicants to Somalia. It is the latest in a series of applications, commencing with a refugee claim and ending most recently with a failed application for humanitarian and compassionate consideration under s. 114(2) (the H & C application) of the Immigration Act R.S.C. 1985 c. I-2 (the Act), all of which were unsuccessful.
[2] The applicants are brother and sister, aged 24 and 25 respectively. By their account, they were born in Mogadishu where they lived until 1978 ( ages 3 and 4) when they fled with their mother to Ethiopia following the arrest of their father for political reasons. They remained there for 12 years where they learned Amharic and essentially lost the use of their first language, Somali. In 1990, following the release of their father from prison, they returned with their mother to Mogadishu where they remained with for approximately five months. Following the massacre of members of their extended family, they left Mogadishu with an uncle (leaving their parents behind) and travelled to Kenya where they remained for one year and four months before travelling to Canada via the United States. They entered Canada on June 22, 1992 and applied for refugee status on July 6, 1992.
[3] The major issue at their hearing before the Convention Refugee Determination Division (CCRD) was the proof of their nationality. The grounds of their claim for refugee status was that they feared persecution as members of the Majerten sub-clan of the Darod clan by the other clans in Somalia, principally the Hawiye clan which controls Mogadishu. The difficulty which faced the applicants was the fact that they do not speak Somali beyond a few routinized words. There was expert evidence on how first languages are learned and forgotten, which supported the applicant"s evidence. There was also evidence from an interpreter that they were not native Amharic speakers. In the end, on the basis of inconsistencies and improbabilities, the CCRD drew the conclusion that the applicants had not demonstrated that they were nationals of Somalia and that therefore, they had no well founded fear of persecution. An application for leave and judicial review was dismissed on October 12, 1994.
[4] The applicants then were considered as members of the Post Determination Refugee Claimants in Canada class ("PDRCC"). The officer who conducted the review assumed that the applicants were in fact Somali and conducted the risk assessment on the basis of their return to Somalia. The entire assessment turned on conditions in the north east of Somalia and in particular in the port city of Bossaso which is controlled by the Majerten clan. In a decision made in January 1999, the risk assessment concluded that there was no objective evidence that the applicants would be specifically targeted or subject to an objectively identifiable risk if required to return to north east Somalia. Nothing was said of the risk of return to Mogadishu, nor was any consideration given to the fact that the applicants do not speak Somali and have no kin in a kinship based society. Thus, the PDRCC review was unfavourable as was an application for judicial review of that decision which was dismissed on April 29, 1999.
[5] In May 1999, the applicants made their H & C application. Their current circumstances are that the applicants have been self sufficient since completing high school in 1995. The male applicant is enrolled at Carleton University in Electrical engineering and the female applicant was enrolled in a science program. Due to the uncertainty of their situation, the female applicant did not re-enroll for the fall term and remained in Toronto where she is employed at two jobs.
[6] On October 21, 1999 before any removal order was made, they were given an appointment with a removal officer at the Ottawa Enforcement Centre CIC. At that time, the removal officer presented them with the negative decision with respect to their H & C application and a Direction to Report, undated, which required them to report for removal from Canada on November 9, 1999. The Direction to Report does not disclose where the applicants are to be taken, and to this day, they have not been told to which city they will be deported despite a request to that effect by their counsel. All that they have been told is that they will be deported to Somalia..
[7] The letter of refusal of the H & C application is as follows:
Ottawa Citizenship and Immigration Centre
200 Catherine St., Suite 101
Ottawa, Ontario
K2P 2K9
File: 3122-2802-0474
October 12, 1999
Mr. Yusef Shawesh
19-2570 Southvale Cres.
Ottawa, Ontario
K1B 5B7
Dear Mr. Shawesh,
| This refers to your request for processing from within Canada on humanitarian and compassionate grounds. |
| In order for your request to be approved, humanitarian and compassionate considerations are assessed to determine whether an exception from subsection 9(1) of the Immigration Act, the requirements to apply for and obtain an immigrant visa prior to coming to Canada, will be granted. |
| On 12 October 1999, I, a delegate of the Minister of Citizenship and Immigration reviewed the individual circumstances of your request for an exemption from the requirements of subsection 9(1) and decided that an exemption will not be granted for your application. |
| Should you require clarification or additional information, you may telephone the Call Centre at the following number: 1-888-242-2100. |
| The client number shown in the upper right corner of this letter is your personal identification number. This number provides access to information on your file. For your own protection, you should not allow any other person to use this number. |
Yours truly,
C.A. Wannamaker
Immigration Officer
[8] Each applicant received the same letter except for the name of the addressee. They also received what they treated as the reasons for the decision which, once again, was identical in both cases except for the name of the addressee. That document reads as follows:
MEMORANDUM - NOTE DE SERVICE
October 12, 1999
| SECURITY CLASSIFICATION DE SÉCURITÉ ORIGINATOR - AUTEUR |
C.A. Wannamaker
| OUR FILE - N/RÉFÉRENCE TEL |
| 3122-28020474 (613) 947-6676 |
YOUR FILE - V/RÉFÉRENCE
DATE
SUBJECT RE: Yusuf Shawesh - Request for Visa Exemption
OBJET
| ACTION BY (DATE) |
EXÉCUTION PAR (DATE)
INFORMATION
RENSEIGNEMENTS
CONTENT SUMMARY
RÉSUMÉ DU CONTENU
Entered Canada 22 June 1992
Applied for Refugee Status - PIF dated 25 August 1992
Negative Decision by CRDD 15 April 1994
Leave to Federal Court denied 12 October 1994
Negative PDRCC 19 January 1999
Appeal to Federal Court of PDRCC decision denied 29 April 1999
| I have reviewed all the submissions and documentation in this case, including the PIF submitted by client, the CRDD decision and the PDRCC decision. Both the Convention Refugee Determination Division and the Post Claim Determination Officer found there was a lack of credibility with regard to Mr. Shawesh"s refugee claim. It was also noted on file that the PCDO officer determined that Mr. Shawesh would not be at risk if he were returned to Somalia. |
| Consideration was given to the submission with regard to Mr. Shawesh"s studies and employment in Canada. Notwithstanding the above information, I am not satisfied that there are sufficient H & C grounds to warrant processing from within Canada, as an exception to normal processing requirements. Consequently, I refuse this application for a visa exception. |
[9] Counsel instructed by the applicants launched an application for leave and judicial review of the H & C decision and by notice of motion, brought an application for a stay of the removal order. The ground of the application were that the officer who dealt with the H & C application:
| 1. denied the applicants natural justice by failing to give them an oral hearing when there was a credibility issue; |
| 2. fettered her discretion by relying on the determinations of the CCRD and the PDRCC processes; |
| 3. failed to consider relevant facts. |
[10] The applicants put before the Court as evidence of their likely fate if deported a letter from Ahmed Dualeh, a former resident of Somalia and a former member of the Immigration and Refugee Board. Mr. Dualeh"s letter recites that he "still closely follow[s] the situation in Somalia through the international press and through [his] constant contacts with people inside Somalia." His conclusions, in part, are as follows:
| Bossasso, the main port town of what is now called "Puntland" might present itself to some as a place where Shara Shawesh could be deported to because of their ethnic background, since it is a Majerten area and they are or are claiming to be Majertens. For one to live in an area in Somalia today he/she must have roots in the area. The Shaweshes have no roots in the area in the sense that they never lived there. They are not capable of establishing their tribal linage by reciting or writing it down if they were to go to Bossasso or any other Majerten town or village in "Puntland". The fact that they don"t speak Somali but Amharic will place them in immediate danger because of the animosity between the Somalis in general and the Ethiopians, for they may be taken as Ethiopians faking to be Somalis. It is an established fact that forces of the present Ethiopian government are occupying land which is part and parcel of Somalia proper. |
...
| In Bossasso like in any other place in Somalia, the Shaweshes will get no protection from beating, robbery, maiming, rape and murder, with Shara more vulnerable for being lady with no relative male to protect her from a rape. The Shaweshes will find no work, any form of higher education or social assistance of any degree. Sending them back to Somalia is a cruel act close to condemming them to death. |
This material was not before the officer who conducted the PPDRC nor was it before the officer who conducted the H & C application.
[11] At the conclusion of argument, I advised counsel for the applicants that I could not find a serious issue to be tried in the grounds which were raised in his Notice of Application or Notice of Motion. In particular, the majority of the Supreme Court of Canada, in Baker v. Canada (M.C.I.), [1999] S.C.J. 39 has held that an oral hearing was not "always necessary to ensure a fair hearing and consideration of the issues involved". The applicants relied upon Re Kahn and the University of Ottawa (1997), 34 O.R. (3d) 536 in which the Ontario Court of Appeal held that where a decision turns on credibility, the decision-maker should not make an adverse finding of credibility without first hearing from the affected person. This does not assist the applicants for two reasons: in Kahn, the applicant had no hearing at any point in the process. In this case, the applicants did have a hearing before the CCRD and, as a result of that hearing, the adverse findings of credibility were made. I do not read Kahn as saying that where there is a credibility issue, an applicant is entitled to a fresh hearing at every step of the process. Secondly, the credibility issue at the CCRD hearings was with respect to their status as Somali nationals. Both the PDRCC officer and the H & C officer assumed that they were in fact Somali nationals. As a result, they were conceded that which was in dispute before the CCRD. An interview would have served no purpose, at least on that score.
[12] As to the second ground, the fact that the officer conducting the s. 114(2) review referred to the CCRD and PDRCC decisions did not mean that the officer limited her consideration to those decisions or that she gave them undue weight. Finally, the applicants concluded that the officer could not have given appropriate weight to the evidence of Mr Dualeh and come to the conclusion which she did. In my view, it was for the officer to weigh and assess the evidence. Her conclusion cannot be challenged on the basis that one would come to a different conclusion.
[13] At the conclusion of argument and after certain comments from the Bench, counsel moved to amend his notice of application and notice of motion to include a new ground of review which was whether reasons had been given at all.
[14] Counsel for the Respondent did not object to the amendment. I will allow it. Munir v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 64 (F.C.T.D.).
[15] The document which purports to be reasons does not in fact disclose the basis on which the decision was made. It recites certain material which was apparently taken into consideration, both positive and negative, and then announces a conclusion. After reading the document, one is left to speculate as to why the officer came to the conclusion which she did. The issue raised is whether the applicants were in fact provided with reasons and, if they were, whether those reasons were adequate. This is a serious issue which satisfies the first part of the three part test..
[16] The next element to be satisfied was the issue of irreparable harm. Assuming that the applicants are to be deported to Somalia, it is not insignificant that the applicants have not yet been advised as to where in Somalia they are to be taken. Even on the review conducted for the purposes of the PDRCC, one can conclude that deportation to Mogadishu represents a threat to the physical integrity of the applicants. This arises by implication from the description of Bossaso as an internal flight arrangement. There is no need to consider an internal flight arrangement unless there is a place from which one must flee by reason of persecution. The evidence of Mr. Dualeh is much more graphic and would justify the conclusion that the applicants are at risk in Bossaso as well as Mogadishu. In the absence of the Minister committing to a particular destination, fairness to the applicants requires me to assume that they will be deported to the place which is most dangerous to them. On that basis, I find that deportation to Mogadishu would constitute irreparable harm because of the serious risk of harm to the applicants.
[17] This does not amount to a general finding that due to country conditions, no failed refugee claimant can ever be returned to Somalia. These applicants exhibit features which are unique to them. They do not speak Somali, and in fact, speak a language which may well make them targets for certain groups in Somalia who dislike Ethiopians. They have no known kin in Bossaso and perhaps in all of Somalia, which deprives them of access to the primary, and perhaps only, source of personal security in Somalia, the clan. They have spent approximately 5 months out of the last 22 years in Somalia and have no real connection to that long-suffering country. These are circumstances which are unique to the applicants and which suggest that they are vulnerable in a way which most other deportees would not be.
[18] The last issue is balance of convenience. Having regard to the risk of physical harm to the applicants, the balance of convenience favours them. The interference with the orderly administration of the removals system is minimal while the risk of harm to them is significant. Given the evidence of Mr. Dualeh, I do not consider this risk to be speculative.
[19] As a result there will be an order granting a stay of the execution of the deportation order against the applicants pending the disposition of their application for leave and judicial review of the refusal of their H & C application.
ORDER
IT IS HEREBY ORDERED that the applicants are granted leave to amend their notice of application to include as a ground for review the absence of, or adequacy of, reasons for the refusal of their application for an exemption pursuant to s. 114 (2) of the Act.
IT IS FURTHER ORDERED that the execution of the removal order in effect against the applicants is hereby stayed until final disposition of their application for leave and judicial review.
"J.D. Denis Pelletier"
Judge