Abdi v. Canada

Aliens — Admission, refugees — Persecution, possibility of internal flight alternative.

This was an application for judicial review of a decision of the Convention Refugee Determination Division which found that the applicant was not a Convention refugee. The applicant was a citizen of Somalia who had claimed refugee status on the basis of persecution arising from his membership in a social group, the Marehan clan. In denying the claim, the Refugee Division had found that the applicant had an internal flight alternative to the Gedo region of Somalia.

HELD: The application for judicial review was allowed. The decision was set aside and the matter was remitted for reconsideration. The Board had erred in concluding that Gedo was an IFA for the applicant. It had ignored documentary evidence that a new conflict had broken out in the Gedo region.

Statutes, Regulations and Rules Cited:

Immigration Act, s. 83.

Counsel:
Max Berger, for the applicant.
Kevin Lunney, for the respondent.

[Ed. note: A corrigendum was published by the Court on March 9, 1998. The corrections have been incorporated in this document.]

1. HEALD D.J. (Reasons for Order):— This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated February 25, 1997, in which the Board concluded that the applicant is not a Convention refugee.

FACTS

2. The applicant is a citizen of Somalia. The particular social group in which he claims membership is his clan which is the Darod clan Marehan sub. Until the government of Siad Barre was overthrown in December 1990, he experienced no problems because of his membership in the Marehan clan. In December 1990 his father was killed by members of the United Somalia Congress (U.S.C.). He had been a member of the Criminal Investigation Department in the Government. In January of 1991, Abgal members of the U.S.C. raided the applicant’s house and tortured the applicant’s family. The family then moved several times in an effort to elude the Abgals. Because it became increasingly difficult for Somalis to remain in Kenya, the applicant came to Canada and claimed Convention refugee status in this country.

THE DECISION OF THE BOARD

3. The Board concluded that the applicant was a Somali national, that he had been raised in Mogadishu and that he and his father were perceived to be members of the Marehan clan. On this basis the Board concluded that the applicant had a well-founded fear of persecution in Mogadishu. The Board then considered whether the applicant had an internal flight alternative (I.F.A.) in Somalia. The Board concluded that the applicant has an I.F.A. in the Gedo region, the traditional homeland areas for the Marehan-Reer Dini and since it is presently controlled by the Marehan, it is easily accessible through Kenya.

ANALYSIS

4. The applicant submits that the Board committed reviewable error in concluding that Gedo is an I.F.A. for the applicant. In the applicant’s view, the Board ignored documentary evidence that a new conflict had broken out in the Gedo region.
5. I agree with that view of the matter. In a letter dated December 4, 1995, the Somalia Immigrant Aid Organization stated:

The Canadian Government can give no assurances that a person being returned to Somalia will be directed to a specific area without travelling through hostile territories. To deport a somali in Gedo would be physically difficult and would put the person concerned at risk. [See Note 1 below]

Note 1: See Application Record – page 52.

4. In the case of Thirunavukkarasu v M.E.I., Linden J.A. speaking for the Federal Court of Appeal stated: [See Note 2 below]

Note 2: 1994 1 F.C. 589 at 598.

An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. For example, claimants should not be required to cross battle lines where fighting is going on at great risk to their lives in order to reach a place of safety.

4. Based on the documentary evidence quoted supra, I conclude that the Board committed a reviewable error in failing to consider the evidence with respect to whether departure to Gedo was “a realistic attainable option”.
5. For these reasons, the application for Judicial Review is allowed. The decision herein of the Convention Refugee Determination Division of the Immigration and Refugee board dated February 25, 1997 is set aside and the matter is returned to a differently constituted panel of the Board for rehearing and redetermination.

CERTIFICATION

9. Neither counsel suggested certification of a serious question of general importance pursuant to Section 83 of the Immigration Act. I agree with that view. Accordingly, no question will be certified.

HEALD D.J.