Abdi v. Canada (Minister of Employment and Immigration)

Abdi v. Canada (Minister of Employment and Immigration)]

File No. A-1089-92

Federal Court Trial Division

November 18, 1993

SUBSEQ-HISTORY: Received February 16, 1994

KEYWORDS: IMMIGRATION -- Refugee status -- Requirements -- Board failed to take into consideration documentary evidence which supported applicant's position that his fear of persecution was not general fear felt by all in Somalia as result of existing civil war, but rather fear of specific targeting of his sub-clan by another sub-clan -- Board erred in concluding that applicant's fears were same as those of all Somalis -- Application for judicial review was allowed

COUNSEL: Mr. Michael Rotnoff for the Applicant

Ms. Lori Rendriks for the Respondent

SOLICITORS OF RECORD:

Ms. Patricia Wong for the Applicant

Mr. John C. Tait, Q. C. Deputy Attorney General of Canada for the Respondent

JUDGES: Simpson J.

The Honourable Madame Justice Simpson

This application for judicial review pursuant to section 18.1 of the Federal Court Act concerns the application of the definition of a Convention Refugee in circumstances where a country is overwhelmed by civil war.

The country is Somalia. The applicant was denied Convention Refugee status in a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated May 26, 1992 (the "Decision").

Facts

At the time of the Decision, the applicant was 16 years old. He left Somalia in December 1990 after enduring imprisonment and torture under the regime of Said Barre. The applicant arrived in Canada in April 1991.

Since the applicant fled, the circumstances in Somalia have changed dramatically, In January 1991, Barre was overthrown by the forces of the United Somalia Congress (the "U.S.C."). Accordingly, the applicant's fear of persecution no longer depends on events during the Barre regime but is founded on events which have occurred since his departure from Somalia.

The applicant is a member of the Hawiye clan and of its Habar Gedir sub-clan which is led by General Aideed. The Hawiye clan has a second sub-clan called Abgal. It is led by Ali Mahdi.

The applicant's fears of persecution are as follows:

1)   That, as a member of the Habar Gedir sub-clan, he will be persecuted by the Abgal sub-clan as the two sub-clans are at war;

2)   That, as a member for the Habar Gedir sub-clan, he faces death at its hands if, on returning to Somalia, he fulfils his intention of refusing to fight for them;

3)   That, as a member of Habar Gedir sub-clan, he will be persecuted by the Darod clan.

I have found no reviewable errors with regards to items 2 and 3 above and these reasons therefore only deal with item 1.

The Board found the applicant to be a credible witness and accepted that he had proven a subjective fear of persecution. The Board also acknowledged that the U.S.C., which was based on the Hawiye clan, had split into warring factions.

The Board described the desperate situation in Somalia in detail and noted the high death rate in November and December 1991, the breakdown of law and order and the widespread rape and looting in Mogadishu. The Board then concluded in the following terms:

"The panel can, therefore, understand the reluctance of the claimant to return to Somalia. The question is would he face persecution in Somalia on the basis of any one of the grounds mentioned in the Convention Refugee definition. The answer is no. He would no doubt fear harm because of the civil war situation, a fear which will be experienced by all Somalia, irrespective of their clans, family or political view. This would, however, be a general fear experienced by all citizens because ongoing conflict between the various clans and subclans."

In Salibian v. M.E.I. (May 24, 1990) (A479-89) (F.C.A.) the Court hold that civil war does not preclude the possibility of a successful claim for Convention Refugee status. However, being a civilian in civil war, even in a country such as Somalia where the documentary evidence in this case shows that civilians are targeted for killing, does not make a claimant a Convention Refugee.

As a general matter, when large numbers of civilians are being killed without regards to their beliefs or affiliations, it is difficult to demonstrate a fear of persecution based on a personal belief or membership in a particular group. However, this case was unusual because there was some documentary evidence which corroborated the claimant's fear of persecution at the hands of the Abgal sub-clan. The evidence is found at pages 38 and 39 of the Record. The quotations are taken from an issue of Africa Watch dated February 13, 1992 - entitled Somalia - A Fight To The Death - Leaving Civilians At The Mercy Of Terror And Starvation.

Page 38 quotes a minister in the Presidential Office admitting under the heading "The nature of the war" that "the Abgal people see the Habar Gedir as the target for their attacks". This passage will be referred to as the corroborating evidence.

The Board is not obliged to refer to all the documentary evidence it relies on in its decision. However, in this case, it did not even allude to the existence of documentary evidence which supports the applicant's position that his fear is not the general fear felt by all in Somalia. He fears the specific targeting of his sub-clan by the Abgal sub-clan.

From a reading of the decision in its entirety, I find that the Board erred in law by apparently ignoring important documentary evidence when it concluded that the applicant's fears were the same as those of all Somalis. For this reason the application is allowed.