Date: 19980414
Docket: IMM-1497-97
BETWEEN:
MUSTAFA ABDULWAHAB OMAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of the March 3, 1997 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) wherein the Board found that the applicant was not a Convention Refugee.
FACTS
[2] The applicant is a 22 year old Somalia citizen who was born and raised in Afgoye, 20 kms. from Mogadishu. When the Hawiye overthrew the Siad Barre government in 1991, they started attacking and killing Daroods. The applicant's father belonged to the Darood's Majerteen and took his family to Ethiopia. The applicant's father paid an agent to take the applicant to Canada. The applicant applied for refugee status upon his arrival.
[3] The Board accepted the applicant's assertion that he would be vulnerable in southern Somalia because he is a young Darood male. However, the Board considered several pieces of documentary evidence that state that the Daroods are living in security in northeastern areas of Somalia such as Bossaso. The Board was faced with a conflict between the documentary evidence and the evidence of the applicant that it was unsafe in Bossaso. The Board held against the applicant while stating that the applicant had not been to northeast Somalia and his information about that area was erroneous. The Board agreed that it could be difficult for the applicant to move to Bossaso, but the Board did not believe that it would be unduly harsh. The Board pointed out that thousands of Somalia refugees of Somalia claims had moved there and it would not be so difficult for a young male such as the applicant to move.
SUBMISSIONS
1. The Applicant's Submissions
[4] The applicant submits that there are five pieces of documentary evidence which state that the Bossaso authorities are not welcoming the return of deportees. This evidence consisted of correspondence between the Governor of the Bari region in Somalia (which includes Bossaso) and the Dutch Embassy in Nairobi. The applicant submits that this was evidence in the hands of the Board and not evidence that the applicant could reasonably expect to find in a library or newspaper. The applicant argues that all of the tribunal members and the applicant should have been advised that this evidence existed.
[5] Thus, the applicant submits that the Board erred in its duty to disclose evidence in its possession to the applicant.
2. The Respondent's Submissions
[6] The respondent submits that only two of the five documents cited by the applicant pre-date the applicant's hearing. Therefore, it is submitted that the remaining three documents could not have been before the Board and are not relevant to this judicial review application. It is argued that the applicant still has a meaningful opportunity to have this new evidence considered pursuant to a humanitarian and compassionate review under subsection 114(2) of the Immigration Act.
[7] With respect to the two documents which pre-dated the hearing, the respondent submits that the applicant has provided no evidence to substantiate that these documents were not available to the applicant at the Documentation Centre of the Board. The respondent adds that the applicant has provided no evidence that he searched for documents pertaining to an internal flight alternative but failed to find these two documents. Furthermore, the respondent notes that the applicant provided no evidence that the tribunal was not aware of this evidence.
[8] The respondent submits that, in any event, the burden rests on the applicant to provide clear and convincing proof of the propriety of his claim. The respondent argues that the Board is under no requirement to explore all the evidence that the applicant might reasonably have introduced. The onus of proof is on the applicant and the respondent notes that the applicant was represented by counsel at the hearing.
[9] Finally, the respondent submits that the Board based its decision concerning the availability of an internal flight alternative in the Bossaso region on extensive documentation.
DISCUSSION
[10] It is trite law to state that in a judicial review proceeding, the court should review the decision solely on the basis of the evidence before the Board (Dance v. Canada (M.C.I.) (1995), 101 F.T.R. 9 (F.C.T.D.)). Therefore, I am satisfied that the court should not consider any documentary evidence which was made after the Board's decision.
[11] In the Board's decision, it is stated:
| The panel found no evidence in the documents that the Midgan are being persecuted in Bossaso, that the Majerteen was forcibly recruiting young men to fight the Hawiye, that there was large-scale fighting between the Majerteen and Hawiye in the northeast or that the Majerteen were killing Somalis whom they judged from their accent to be not Majerteen. |
[12] The Board goes on to discuss other documents before it and concludes that the Bossaso area of Somalia is "prosperous and relatively peaceful".
[13] It appears that in the possession of the Convention Refugee Determination Division, but not in the possession of the members of the Board that determined the applicant was not a Convention Refugee, was a letter dated June 14, 1996 sent to the Dutch Minister of Foreign Affairs and the Dutch Minister of Justice, both at the Hague with a copy to the Dutch Ambassador to the Republic of Kenya, a letter dated June 26, 1996 from the Dutch Ambassador to the Governor of the Bari region (Bossaso), a letter dated March 20, 1997 from the Immigration and Refugee Board to Mr. H.A. Wolf, Head, Immigration and Naturalization Service to determine the authenticity of the above June 14, 1996 and the reply letter of June 26, 1996, the reply letter of April 18, 1997 and the Memorandum dated April 16, 1997.
[14] The above documents were filed by the applicant as Exhibits C, D, E, F and G to the present application for judicial review.
[15] As I have said, only documents which predate the applicant's hearing can be considered by the Board.
[16] As I have said, the Board's decision is dated March 3, 1997 and the hearing before the Board took place on January 5, 1997. Therefore, the letter of March 20, 1997, the letter of April 18, 1997 and the Memorandum dated April 16, 1997 cannot be considered for this judicial review.
[17] With regard to the letters of June 14, 1996 and the reply of June 20, 1996, I am satisfied that these documents, having been in possession of the Convention Refugee Determination Division and because of their great importance for the determination of a IFA in Somalia should have been considered by the members of the Board.
[18] I am satisfied that, in the circumstances of this case, after hearing the applicant's submissions, that it would have been extremely difficult for the applicant to become aware of these two documents.
[19] An issue arose as to the applicant's ability to travel to his alleged IFA in Northeast Somalia. In that I have decided that the Board erred in not considering the letters of June 14, 1996 and June 26, 1996 in determining whether the applicant has an IFA, I do not need to consider this issue in the present reasons.
CONCLUSION
[20] For the above reasons, I am satisfied that the Board erred in its decision of March 3, 1997. This matter is returned to a new Board for a new hearing.
[21] No question for certification was submitted by the parties.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, ONTARIO
April 14, 1998