Federal Court Decisions

Date: 19971126

Docket: IMM-72-97

BETWEEN:

     YAABE MUUMIN YAABE,

     DIRIE FARAH MUMIN,

     Applicants,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

HEALD, D.J.:

[1]      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 November 7, 1996. By that decision, the Board concluded that the applicants herein are not Convention refugees.

FACTS

[2]      The applicant Yaabe Muumin Yaabe (Yaabe) and his nephew, the applicant Dirie Farah Mumin (Dirie) are citizens of Somalia. They claim Convention refugee status by reason of their membership in the Gadabursi clan. They lived in Hargeisa before civil war broke out in their country. When fighting between the clans reached the Hargeisa area, the applicants fled to Ethiopia and later came to Canada. They have not lived in Somalia since 1988.

THE DECISION OF THE BOARD

[3]      The applicants' claims were heard together. At the time of the hearing, Yaabe was 18 and Dirie was 9. Dirie's mother acted as his designated representative. They claimed fear of persecution from larger clans that were loyal to the Issaq opposition to the government of Siad Barre during the civil war. The applicants' clan did not support the Issaq opposition during the war. It was the position of the applicants that there would be no protection available to them should they return to Somalia.

[4]      The Board concluded that although there was conflict between the clans at the time when the applicants fled Hargeisa, that conflict has now ceased and Hargeisa is under the control of the government which is providing stability to the area. The Board reached this conclusion based on the documentary evidence before it. The Board said that it preferred this documentary evidence over the viva voce testimony of the applicants.

[5]      The Board also relied on documentary evidence stating that members of the Gadabursi clan (the applicants' clan) are not at risk in Hargeisa.

ISSUES

1.      Did the Board ignore relevant evidence which supported the claims of the applicants, thereby committing reviewable error?

2.      Was the Board in error in failing to examine the claims of the applicants within the Guidelines for Child Refugee Claimants?

ANALYSIS     

[6]      1.      Ignoring Relevant EvidenceThe applicants emphasize the fact that Dirie suffers from a physical handicap. In the applicants' view, the Board erred in failing to consider how that handicap might compromise his ability to protect himself from persecution in Northern Somalia. Insofar as Yaabe is concerned, the applicants observe that, at the time of the hearing, he was a minor. In their view, the Board refused to consider that factor when assessing the risk of persecution.

[7]      I am unable to accept these submissions. The evidence of the physical characteristics of the applicants does not affect the Board's assessment of the objectivity of their fear of persecution. The applicants did not argue that the young or the physically handicapped were singled out for persecution. The basis of the refugee claim was based on clan affiliation. The Board found that no clan persecution had been shown. Such a conclusion was reasonably open to it on this record.

2.      Guidelines for Child Refugee Claimants

[8]      The applicants submit that it was incumbent on the Board to consider their fear of persecution having regard to the Guidelines for Child Refugee Claimants. The applicants said that they fear treatment in Somalia that will cause their death. In their view, the Board did not have regard to their fear of death and, thereby, erred in failing to observe the Guidelines. Additionally, the Board erred in failing to consider the capacity of the state to protect minors. In their view, the Board's disregard of the Guidelines and the questions of state protection constituted reviewable errors of law.

[9]      I do not agree with this submission. Concerning Yaabe, he was 18 years of age at the time of the hearing. The Guidelines only apply to refugee claimants who are under 18. Additionally, the Guidelines had not come into effect at the time of the hearing. On this basis, the hearing was not subject in any way to the Guidelines. Furthermore, the Guidelines deal with procedural and evidentiary matters only.

[10]      Accordingly, and for the foregoing reasons, the within application for judicial review is dismissed.

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CERTIFICATION

[11]      Counsel for the applicant submits the following question for certification pursuant to section 83 of the Immigration Act. Counsel for the respondent consents to such a question.:

Given that the Guidelines of the Immigration and Refugee Board for Child Refugee Claimants are based on the principle that primary consideration should be given to the best interests of the child in procedural and evidentiary issues arising from Immigration and Refugee Board cases involving children, which "best interests of the child" principle itself is expressly stated in the Guidelines as having been derived from the International Convention on the Rights of the Child, and given that the Immigration Act does not expressly incorporate the language of Canada's international obligations with respect to the International Convention on the Rights of the Child, must the Immigration and Refugee Board give primary consideration to the best interests of a child refugee claimant in assessing the well-foundedness of the child's fear of persecution in a hearing held under s. 69.1 of the Immigration Act?

[12]      In Canada (Minister of Citizenship and Immigration) v. Liyanagamage,¹ the Court provided the criteria for certification of a serious issue. The Court noted that the issue must be one that transcends the interests of the immediate parties to the litigation and must contemplate an issue of broad significance or general application. The Court also stated that the issue must be one that is determinative of the appeal itself. In light of my reasons with respect to Guidelines supra, the question proposed by the applicant would not be determinative of an appeal of my decision. Accordingly, no question will be certified.

                             Darrel V. Heald                              Deputy Judge

OTTAWA, ONTARIO

November 26, 1997

__________________

     ¹      IMM-4272-93, December 13, 1994 (F.C.T.D.).