Federal Court Decisions

     IMM-1667-96

B E T W E E N:

     YASSIN YUSSUF OSMAN

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

REASONS FOR ORDER

CAMPBELL J.

     This is an application for judicial review of a decision of the Immigration and Refugee Board (Convention Refugee Determination Division) dated April 23, 1996. In the decision, the Board determined the applicant not to be a Convention refugee. The applicant seeks an Order setting aside the decision of the Board and to have the matter referred back to the Board for redetermination.

     The applicant, Yassin Yussuf Osman, is seventeen years old, was born in Mogadishu in Somalia, and is a member of the Marehan clan. The former president of Somalia (Barre) was a member of this same clan. Barre's government was overthrown in 1991 by a group of militias. That same year, the U.S.C. (United Somalia Congress) militia kidnapped, tortured and killed two of the applicant's uncles. Upon learning of the deaths of his brothers, the applicant's father became politically active in opposing the militia. Prior to the deaths of his brothers, the applicant's father was not politically active. His involvement included publishing and distributing anti-USC literature, contributing money to anti-USC organizations and holding meetings at the family home.

     The militia warned the applicant's father to cease his political activities, but he refused. In December 1991, twenty armed militia members ransacked the applicant's home, where they raped his sister, killed his brother and then abducted his father. The applicant's mother took him and his siblings (Hawa, Maimuna, and Mahad) to Ethiopia where they stayed illegally with an uncle.

     Upon raising enough money, the applicant's uncle sent the children to Canada with false documents. The applicant's sisters, Hawa and Maimuna, arrived in Canada on June 5, 1994 and their claims were accepted on September 13, 1994. The applicant's brother, Mahad, arrived in Canada on July 15, 1994. His claim was accepted by the Board on September 21, 1995. The claims of the applicant's uncle and aunt have also been accepted. The applicant came to Canada on June 20, 1995.

    

     During the hearing, the applicant was asked questions regarding whether he could live in the Gedo region in Somalia. He stated that he had never been to Gedo, that he had no family in Gedo to whom he could turn for assistance, that there is no government in Gedo and that the Marehan militias were fighting amongst themselves in that region. Since he has no way of supporting himself there, he stated that he felt that he would be in danger.

     The Board accepted that the applicant could not return to Mogadishu without risk of persecution, since other militias from other clans dominate the city. However, the Board held that the applicant had an internal flight alternative (IFA) in the Gedo region. The reason for its decision was that the applicant would not be at risk of persecution there, since it is dominated by the Marehan. As such, the Board held that it would be reasonable for the applicant to relocate there.

     The Board stated the following:

From the above, we conclude that the Marehan do control a large portion of the Gedo region, that there is a functioning authority and that clan members are able to access clan protection. For an area to be considered as an IFA it must be reasonable in the circumstances of the particular case for the claimant to go there. The fact the UNHCR is repatriating to that region implies that the IFA is reasonably reachable. The fact that the claimant has had a father who has disappeared by reason of his being a member of that clan and that two paternal uncles have died for the same reason gives him even more right to call upon the elders of his clan for protection. We find that the claimant does have an IFA to the Gedo region which is reasonable in the circumstances of his particular case.

    

     The issues raised in this application for judicial review are whether the Board erred in determining that there is an IFA in the Gedo region and whether, in light of the applicant's particular circumstances, it is reasonable for him to avail himself of this IFA.

     In Rasaratnam v. M.E.I., [1992] 1 F.C. 706, the Appeal Division of this Court held that the IFA concept is inherent in the Convention refugee definition, and held in the following words at 711 that two criterion must be established before an IFA can be said to be available, namely, whether an IFA in fact exists, and whether it is reasonable in the particular circumstances of the applicant to avail himself or herself of it:

In my opinion, in finding the IFA, the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the Appellant being persecuted in Columbo (sic) and that, in all the particular circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the Appellant to seek refuge there.

     In Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589 at 598 (C.A.), the Appeal Division also made the following findings:

Thus, IFA must be sought, if it is not unreasonable in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.

...

Rather, the question is whether, given the persecution in the claimant's part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. Stated another way for clarity, the question to be answered is, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?

     Upon reviewing the Board's reasons, and in particular the Board's assessment that Gedo is an IFA for the applicants, it appears to me that the Board erred in a critical finding and did not fully apply the test established by Rasaratnam and Thirunavukkarasu.

     With respect to the existence of an IFA, the Board concluded that the applicant would not face a serious risk of persecution in Gedo because he would be protected by members of the Marehan clan, of which the applicant is a member. In addition, the Board referred to the UNHCR repatriation to Somalia, and to Gedo in particular, as support for its conclusion that an IFA exists there.

     In reaching this conclusion, however, the Board appears to have given no weight to the following cautionary note which raises concern about placing reliance upon repatriation statistics:

The fact of voluntary repatriation to Somalia does not automatically mean that there is an absence of risk or (sic) persecution, nor safety on return,... caution must be exercised in inferring an internal flight alternative based on voluntary repatriation statistics ...

     In addition, the repatriation statistics provided in the document upon which the Board relied do not indicate whether the persons repatriated to Gedo originated from there, and nor do they provide evidence as to whether Marehans who are not from Gedo, are easily identifiable to and protected by members of the Marehan clan in Gedo. I find, therefore, that the Board's conclusion that an IFA exists for the applicant rests on questionable assumptions and, thus, is reached in error.

     With respect to the issue of whether the IFA is a reasonable option, the Board states that the IFA is "reasonable in the circumstances of this particular case". However, there is no evidence that the Board assessed the particular circumstances of the Applicant, including his young age, the impact on him of the violence to his family, and the substantial period of his absence from Somalia in determining the reasonableness of the IFA. In this case, I find that the Board's failure to consider these particular factors in determining that the IFA was reasonable is a finding made without regard to the material before it.

     For these reasons, the application is allowed, the decision is set aside, and the matter is referred back to a differently constituted Board for redetermination in a manner consistent with these reasons.

                        

                         Judge

OTTAWA

April 9, 1997