Date: 19981014
Docket: IMM-152-98
Between :
ISMAHAN HASSAN MOHAMED
AMIRA HASSAN MOHAMED
MOHAMED HASSAN MOHAMED
UMAFKHAIR HASSA MOHAMED
(UMAKHAIR HASSAN MOHAMED)
DEQA HASSAN MOHAMED
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicants seek judicial review of a decision of the Convention Refugee Determination Division (the CRDD) dated December 10, 1997, wherein the applicants were not determined to be Convention refugees.
[2] The applicants based their claims for refugee status on the claim of their mother, Nimo Musse Ahmed. The applicants' mother based her claim for refugee status on a fear of gender-based persecution by reasons of her membership in a particular social group. She alleged that while in Canada she entered into a relationship with a Somali man and had a child out of wedlock. Her husband in Somalia became aware of the situation and swore to kill her when she returned to Somalia. The applicants' mother alleged that she feared being punished by the existing regime whose application of the Sharia law had led to the stoning death of women considered to be adulteresses. She therefore alleged that she would be punished severely for having violated a social norm because of her gender. Panel member Mouammar concluded that the claimant had a well-founded fear of persecution should she return to Somalia given that she could face punishment for having violated a social norm. However, Ms. Mouammar found that the claimant's children are not at risk of persecution in Somalia. Panel member Ramirez dissented and concluded that there was insufficient credible evidence on which to determine that the claimant and her children are citizens of Somalia and that the claimant had a child out of wedlock while in Canada. She therefore determined that neither the claimant nor her children were Convention refugees.
[3] Pursuant to subsection 69.1(10) of the Immigration Act, in the event of a split decision, the decision favourable to the person who claims to be a Convention refugee shall be deemed to be the decision of the Refugee Division. Accordingly, the applicants' mother was granted refugee status, and not the applicants. Judicial review is therefore being sought of the decision with respect to the minor claimants who are the applicants herein.
[4] At the hearing before me, counsel for the applicants indicated that he intended to limit himself to only two arguments. First, he submitted that the CRDD made a perverse finding that the applicants are not at risk despite their mother's uncontradicted assertion that their father intends to seize them upon her arrival with them in Somalia. Second, counsel also submitted that the CRDD breached the rules of procedural fairness by leaving the impression that it was only concerned with a specific question of identification.
[5] The first argument raises a mere question of fact. In that regard, the applicants have failed to convince me that the CRDD based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. On the contrary, upon reviewing the evidence, I am satisfied that the CRDD, which is a specialized tribunal, could reasonably conclude that "[W]hile there may be humanitarian and compassionate grounds for the children to remain with their mother, it has not been established that they are Convention refugees."
[6] With respect to procedural fairness, the record shows that the applicants appeared before the CRDD on seven separate occasions and were represented by counsel at all times. The evidence adduced included the testimony of the applicants' mother, the Personal Information Forms of all the claimants and various other documentary evidence. In the circumstances, I fail to see the breach of any rule of procedural fairness or natural justice.
[7] For all the above reasons, the application for judicial review is dismissed.
[8] I agree with counsel for the parties that this matter does not raise any question of general importance for the purpose of certification.
JUDGE
OTTAWA, ONTARIO
October 14, 1998