Date: 19980603
Docket: IMM-1799-97
BETWEEN:
YAHYE MOHAMUD HUSSEIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
REASONS FOR ORDER
HEALD, D.J.
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated March 27, 1997 wherein the Board concluded that the within applicant is not a Convention refugee.
Facts
[2] The applicant is a native and a citizen of Somalia. He grew up in Mogadishu. Through his father, he is a member of the Abgal subclan of the Hawiye clan. He fears
Page: 2 persecution by the Habr Gidir clan if he returns to Somalia. His father was an advisor and a possible financial contributor to the United Somali Congress ("U.S.C."). In November of 1991, he was killed by the Habr Gidir on his way to visit the applicant's family to give them money for food. Two weeks later, the applicant's mother fled with the applicant and his two sisters toward Kismayo. In 1992, they moved to Kismayo. By July of 1993, the applicant's mother had decided to flee Somalia and to relocate at a refugee camp in Mombassa Kenya. They stayed there for two years. They could not leave the camp for fear of being deported. The mother feared that, as the only son, the applicant would be killed if he was deported to Somalia. She decided to send him to Canada with an agent. He arrived in Canada on May 8, 1995. At the time of his hearing before the Board in 1996, the applicant was 17 years old.
[3] The applicant testified that after his arrival in Canada, the applicant's mother phoned his half-sister from Mogadishu. She informed them that she had left the refugee camp with the applicant's two sisters. Since that phone call, the applicant and his identity witness (his half-sister) who was landed in Canada after the death of their father, have had no further contact with the applicant's mother nor have they received any news of her.
The Board's Reasons
[4] The Board concluded that if the applicant were to return to his own clan, with family members to vouch for his identity, he would likely be protected, along with
Page: 3
other clan members, while living in Abgal territory.
[5] The Board also made positive credibility findings with respect to the applicant and the identity witness. The Board also acknowledged that there was considerable evidence of continuing clan violence in Somalia.
The Issues
l. Did the Board reach its conclusion in the absence of supporting evidence?
2. Did the Board ignore relevant evidence properly before it?
Analysis
l. Absence of supporting evidence
[6] The Board found that: ... the claimant's mother and sisters currently reside in their house in the Yaqshid district of Mogadishu, following their return from Kenya."'
[7] In its conclusion, this finding of fact is restated as follows: "The panel is of the opinion that, as his mother and sisters live in Mogadishu in their former home and have identified no problems in that area, there is not a reasonable chance the claimant would be unable to do so." 2
Certified Record , page 10 Certified Record, page 11
Page: 4 [8] This finding of fact is not supported by the evidence. There is only evidence to the effect that she returned to Mogadishu with her daughters.
2. Did the Board ignore evidence properly before it?
[9] The applicant submits that although he filed a great deal of evidence as to country conditions in Somalia and, in particular, evidence of serious outbreaks of clan violence, the Board ignored this evidence in reaching its conclusion. The applicant refers particularly to an article from the Toronto Globe and Mail, dated December 18, 1996 which stated: "The battle for the Somali capital of Mogadishu widened yesterday when another major faction joined the fighting, which has killed more than 135 people and wounded 900 in five days... .'
[10] The Board acknowledged, in a general way, the thrust of the documentary evidence. It observed that many citizens of Mogadishu have been victims of the conflict in that city4. However, in concluding that the applicant did not face a wellfounded fear of persecution, the Board concluded that the applicant would be protected by the strength of his subclan, the Abgal subclans.
[11] The problem with this approach is that, to so conclude, the Board had to ignore
Applicant's Application Record, at p. 49 4 Certified Record, page 10
Certified Record, page 11
Page: 5 direct evidence that members of the Abgal subclan were under attack. It also had to ignore the direct evidence with respect to the siege of Mogadishu. Mere mention of such direct and conclusive evidence is not sufficient'. Such a circumstance clearly amounts to reviewable error.
Conclusion
[12] For the above reasons, the within application for judicial review is granted, the decision of the Board dated March 27, 1997, is set aside, and the matter is referred back to a differently constituted panel of the Board for rehearing and redetermination.
Certification
[13] Neither counsel suggested the certification of a serious question of general importance pursuant to section 83 of the Immigration Act. I agree that this is not a case for certification.
"Darrel V. Heald"
Toronto, Ontario June 3, 1998
D.J.
6 Compare Thind v. Canada(Secretary of State), January 28, 1994, IMM-2790-93 (F.C.T.D.)
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1799-97
STYLE OF CAUSE: YAHYE MOHAMUD HUSSEIN
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: JUNE 2, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HEALD, D.J.
DATED: JUNE 3 , 1998
APPEARANCES:
Mr. Michael Korman For the Applicant
Mr. Jeremiah A. Eastman
For the Respondent
SOLICITORS OF RECORD:
Otis & Korman Barristers & Solicitors 326 Richmond Street West Toronto, Ontario
M5V 1X2
For the Applicant
George Thomson Deputy Attorney General of Canada
For the Respondent