Federal Court Decisions

                             IMM-3170-95

BETWEEN:

    

     ISSE SAMATAR ADDULLAHI

                                 Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                 Respondent.

     REASONS FOR ORDER

GIBSON J.:

     These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "Tribunal") of the Immigration and Refugee Board wherein the Tribunal determined the Applicant not to be a Convention refugee within the meaning of subsection 2(1) of the Immigration Act.¹ The decision of the Tribunal is dated the 1st day of November, 1995.

     The Applicant is a citizen of Somalia. He is a member of the Darood tribe and the Majerteen clan. He was born and raised in Kismayo where, at the commencement of the times relevant to his claim to Convention refugee status, he lived with his wife and daughter and worked in his father's business. In April of 1991, while the Applicant was away from Kismayo, the city was attacked by the USC. The Applicant's wife and father were killed. On his return, the Applicant was unable to find other members of his family. He went into hiding and made his way to Kenya.

     In August of 1991, while in Nairobi, Kenya, the Applicant remarried and he and his second wife had a daughter born in February, 1993.

     In November of 1994, to avoid being returned to Somalia, the Applicant's wife and daughter came to Canada where they claimed and were granted Convention refugee status.

     The Applicant arrived in Canada in March of 1995. He testified before the Tribunal that he fears death if returned to Somalia by reason of his clan and tribe affiliation.

     In its reasons for decision, the Tribunal dealt with four separate and distinct issues. Not surprisingly, it first turned to an analysis of whether or not the Applicant was at risk of persecution on the basis of a convention reason if required to return to Somalia. The Tribunal wrote:

In considering claims involving civil wars and anarchy, several principles must be observed. In the first place, the Handbook on Procedures and Criteria for Determining Refugee Status states the following, at paragraph 165:

Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol.

We must also keep in mind that a fear of random violence is not a fear of persecution for any Convention reason, nor is a fear of political instability.

In Salibian, the Federal Court stated the following:

...a situation of civil war in a given country is not an obstacle to a claim provided the fear felt is not that felt indiscriminately by all citizens as a consequence of the civil war, but that felt by the applicant himself, by a group with which he is associated, or, even, by all citizens as a consequence of the civil war, but that felt by the applicant himself, by a group with which he is associated, or, even, by all citizens on account of a risk of persecution based on one of the reasons stated in the definition.

The distinction drawn in Salibian between an indiscriminate fear that does not lead to a finding of Convention refugee status and a fear of persecution that does so lead can be a very difficult one to draw at times. The way in which the distinction is to be drawn has been clearly laid down however, in subsequent jurisprudence. This is often referred to as the "differential risk" analysis.

In Rizkallah, the Court stated the following:

To succeed, refugee claimants must establish a link between themselves and persecution for a Convention reason. In other words, they must be targeted for persecution in some way, either personally or collectively.

...the evidence, as presented to us, falls short of establishing that Christians in the claimant's Lebanese village were collectively targeted in some way different from the general victims of the tragic and many-sided civil war.

[citations omitted]

     The Tribunal then went on to consider a number of cases in the Federal Court Trial Division that have dealt with or commented on, the concept of differential risk analysis. It then continued:

In this case, there is no evidence of any personal targeting of the claimant: there is no evidence that he personally was sought out by anyone. We must therefore look to collective targeting. In light of the foregoing binding jurisprudence, we must therefore determine whether or not members of the Majerteen clan of the Darod tribe face a differential risk in Somalia from other Somali citizens. The question is whether or not Majerteen-Darods in Somalia are "facing any more or different problems" when compared to other Somalis.              [citations omitted]

     The Tribunal then goes on to cite from the documentary evidence before it and, on this issue, concludes in the following terms:

Given the totality of the documentary evidence, ... it would appear that all clans and sub-clans in Somalia are both victims and perpetrators of human rights violations, a situation recognized by the Federal Court not to lead to a finding of Convention refugee status. The evidence does not indicate that Majerteen-Darods are facing "more or different difficulties than others" in Somalia.

In view of the binding [authorities earlier cited], we find that the fear of the claimant does not represent a well-founded fear of persecution for a Convention reason.                      [citations omitted]

     The Tribunal then went on to consider the possibility of an internal flight alternative for the Applicant. It wrote:

In addition to the foregoing, we have another reason for finding that the claimant is not a Convention refugee. In our opinion, he has available to him an internal flight alternative (IFA).

...

The panel therefore finds that in northeastern Somalia the claimant would not face a reasonable chance or serious possibility of persecution, and it is not unreasonable for him to so relocate.

     The Tribunal then noted that the Applicant's wife and daughter had been found to be Convention refugees in Canada. It found this to be of little probative value. It referred to Rahmatizadeh v. the Minister of Employment and Immigration,² where Mr. Justice Nadon wrote:

The mere fact of proving that his sister had been found to be a refugee does not carry a lot of weight... The Division was not bound by a decision made by another panel since it maybe that the other panel made an incorrect decision.

     Finally, the Tribunal dealt with the argument that a positive determination in favour of the Applicant in this case was appropriate to effect family reunification. It referred to Vyramuthu et al v. The Solicitor-General of Canada³ where Mr. Justice Rouleau wrote:

...the concept of family unity is not a principle applicable to the determination of whether or not a claimant is a Convention refugee.

The Tribunal concluded that it was not within its mandate to deal with the issue of family unity.

     Before me, counsel for the Applicant argued that the Tribunal erred in adopting a differential risk analysis to determine whether or not the Applicant met the test for Convention refugee status, erred in its analysis with regard to an internal flight alternative which, argued counsel, was in any event a conclusion linked to its Convention refugee differential risk analysis and therefore could not stand if the risk analysis was found to be in error, that the Tribunal erred in reaching the conclusion it did in the face of the diametrically opposed conclusion with respect to the Applicant's wife and daughter without giving reasons to distinguish the decision with respect to the wife and daughter, and, finally, that the Tribunal erred in law in not applying the principle of family unity.

     I will respond to the issues presented on behalf of the Applicant in the reverse order from that which I have just listed.

THE ISSUE OF FAMILY UNITY

     In Casetellanos v. Canada (Solicitor General),⁴ Mr. Justice Nadon wrote:

It is clear that the court in the Cheung case considers that the minor applicant is eligible for refugee status primarily on the basis of discrimination as a member of the social group of second children rather than by virtue of the family unity principle. Given this and the lack of any elucidation by the court on how it came to the conclusion that family unity existed and should be applied, the Cheung case should be distinguished from the case at bar as it cannot be stated to lay down a principle of family unity.

...

The definition of Convention refugee to which Canada subscribes by virtue of its being signatory to the United Nations Convention Relating to the Status of Refugees (Geneva, July 28, 1951), [1969] Can. T.S., No. 6, does not incorporate the concept of family unity

...

It is quite plain that there is no mention of family unity in the current definition. Therefore, in order to apply the principle of family unity in the case at bar I would have to extend the definition of Convention refugee. There is no justification for doing so.

While the definition of Convention refugee is silent on the principle of family unification or re-unification, there is some recognition in the Act that consideration should be given to this concept when considering should be given to this concept when considering refugee claims. In particular, paragraph 3(c) of the Act indicates that one of the objectives of the Act and Immigration Regulations, 1978, SOR/78-172 is to "facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad." However, this is insufficient to mandate that this court apply the principle of family unity.

     I am in complete accord with the reasoning of Mr. Justice Nadon in the latter two quoted paragraphs, particularly where a capacity to implement the principle of family unity enunciated in paragraph 3(c) of the Immigration Act is otherwise provided for, for example by the exercise of administrative discretion under subsection 114(2) of the Act to permit an application for landing from within Canada. I find no basis upon which the Tribunal could have found jurisdiction to apply the principle of family unity in favour of the Applicant.

CONFLICTING DECISIONS

     I am satisfied that the Tribunal was correct in its conclusion that the fact that the Applicant's wife and daughter had been granted Convention refugee status in Canada by a different panel of the Convention Refugee Determination Division, on substantially similar facts to those in this matter, was of limited probative value before it. But that does not end the matter. Counsel for the Applicant argued that, in such circumstances, it was incumbent upon the Tribunal to give reasons justifying a different conclusion in respect of the Applicant. Counsel for the Applicant argued that the contradictory decisions constitute a material issue and that the law is clear that reasons should be provided on material issues.⁵ While I am in agreement with counsel that, in circumstances such as those here at issue, it would be desirable for substantive reasons to be provided for the different result, such reasons would be of little use if one panel of the CRDD simply was of the view that a decision of another panel was wrong or that the facts underlying the two decisions were not identical or substantially similar. I can see no objective that would be served by requiring reasons distinguishing each and every decision of equivalent panels where those decisions differ. I am not satisfied that the absence of reasons distinguishing the panel decision in respect of the Applicant's wife and child represents a reviewable error on the facts of this matter.

INTERNAL FLIGHT ALTERNATIVE

     I am satisfied that the conclusion of the panel that the Applicant had an internal flight alternative to northeastern Somalia was a finding that was made completely independently of the finding regarding risk of persecution on the basis of a Convention reason in the rest of Somalia. As such, whether or not the Tribunal erred in its differential risk analysis, or indeed in even adopting the concept of differential risk analysis, is of no consequence if the finding of an internal flight alternative is sustainable. The words used by the Tribunal in introducing its analysis with respect to internal flight alternative make the independence of that analysis and conclusion, I think, quite obvious. For ease of reference, once again, those words are the following:

In addition to the foregoing, we have another reason for finding that the claimant is not a Convention refugee.

[underlining added by me for emphasis]

There is nothing whatsoever on the face of the reasoning of the Tribunal to indicate that its internal flight analysis is interdependent on its conclusion that the Applicant is not at risk of persecution in Somalia on the basis of a Convention reason.

     The question remains, was the Tribunal's conclusion that an internal flight alternative was available to the Applicant reasonably open to it?

     In the narrative portion of the Applicant's Personal Information Form, the Applicant wrote:

I cannot return to Somalia. I fear that if I return to Somalia I will be killed by the USC because I am a Darood-Majerteen. There is no place in Somalia where I can live free from persecution from the Hawiye and other tribes. There is no one willing or able to protect me in Somalia. ...

[underlining added by me for emphasis]

In his testimony before the Tribunal, the following exchange took place:

RHO:          In the Bari region. [northeast Somalia]

Claimant:      I cannot go back to the Bari region because I don't know anybody in the Bari region. My people immigrated from there 200 years ago approximately so if I go back to that place now it's a place that I don't know about it at all and I don't know how do they live. So anything could happen to me and I cannot go to a place not familiar to me. I would go to the place that I feel to be safe.

RHO:          OK. Are not there some Majerteen militia who are currently in control of the Bari region?

Claimant:      In fact there is one but we heard that they are disputing among themselves, they are fighting among themselves, there is no government in operation there and there is no government that governs the place. If there were a government in Somalia, even if there were administrations in the regions so many people Somali people would never flee. I am one of those people who fled. So I would like to live in a safe place until the situation of my country gets better. That's only what I want to convey to you.6

In fact, there was documentary evidence before the Tribunal referring to "violent intra factional conflicts" during the last months of 1994.⁷ By reference to further documentary evidence before it, the Tribunal concluded that the Applicant would not face a reasonable chance or a serious possibility of persecution in the Majerteen-controlled regions of northeastern Somalia.

     In considering the second part of the test for an internal flight alternative reflected in Thirunavukkarasu v. Canada (Minister of Employment and Immigration),⁸ the Tribunal examined the reasonableness of northeastern Somalia as an internal flight alternative for the Applicant. It wrote:

In oral testimony, the claimant indicated that he did not wish to relocate to northeast Somalia because he had never been there before, is not familiar with the area, and does not know anyone there. In view of the foregoing binding jurisprudence, [Thirunavukkarasu], these factors in no way render the IFA unreasonable.

While the prospect of relocating to northeastern Somalia clearly did not appeal to the Applicant, that is not determinative on the issue of an IFA. I conclude, on the basis of the totality of the material before the Tribunal, that its conclusion that an internal flight alternative existed for the Applicant to northeastern Somalia was reasonably open to it.

DIFFERENTIAL RISK ANALYSIS

     In light of my conclusion that the Tribunal's finding of an internal flight alternative for the Applicant to northeastern Somalia constituted an independent, self-sufficient basis for the decision that the Applicant is not a Convention refugee and that the internal flight alternative conclusion was reasonably open to the Tribunal, whether or not the Tribunal erred in its differential risk analysis or in fact in adopting the concept of differential risk analysis is of no consequence. On that basis, I do not intend to engage in an analysis of the Tribunal's decision and the arguments made before me on this issue.

CONCLUSION

     Based upon the foregoing analysis, I conclude that this application for judicial review must be dismissed.

     Neither counsel recommended certification of a question. No question will be certified.

                 __________________________

                     Judge

Ottawa, Ontario

November 4, 1996

__________________

     ¹      R.S.C. 1985, c. I-2

     ²      Federal Court File: IMM-2696-93, 6 April 1994 (unreported) (F.C.T.D).

     ³      Court File: IMM-6277-93, 26 January, 1995 (unreported)(F.C.T.D.)

     ⁴      [1995] 2 F.C. 190 (F.C.T.D.)

     ⁵      Counsel argued this proposition by reference to Madame Justice Simpson in Gyamfuah et al v. M.E.I. , Imm-3168-93, June 3, 1994 where, at page 8, Madame Justice Simpson wrote ... the law is clear that reasons should be provided on material issues. For this proposition she cites Pour v. Canada (M.E.I.) 5 December 1991 A-655-90 (F.C.A.).

     ⁶      Tribunal record, page 259.

     ⁷      Tribunal record in the unnumbered pages following page 175, Country Reports on Human Rights Practice for 1994, page 2-1-2.

     ⁸      [1994], 1 F.C. 589 (F.C.A.)