Date:20010307
Docket: IMM-6352-99
Neutral Citation: 2001 FCT 158
BETWEEN:
QAMAR ADAN OSMAN, ROBLEH MOHAMUD SALAH,
AMINA MOHAMUD SALAH and minor
SAHAL MOHAMUD SALAH, and
by his litigation guardian QAMAR ADAN OSMAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Qamar Adan Osman, Robleh Mohamud Salah, Amina Ohamud Salah and Minor Sahal Mohamud Salah, and by his litigation guardian Qamar Adan Osman (the "Applicants") seek judicial review of a decision of the Convention Refugee Determination Division (the "Board"), dated November 30, 1999, which determined that they are not Convention refugees.
FACTS
[2] The Applicants are citizens of Ethiopia. Qamar Adan Osman is the mother of the other Applicants. All claims were heard together on November 2, 1999, pursuant to section 69.1 of the Immigration Act, R.S.C. 1985, c. I-2.
[3] The Applicants claim Convention refugee status on the grounds of race, nationality, their perceived political opinion and their membership in a particular social group. In particular, the Applicants claim that Qaman Adan Osman and Amina Mohamud Salah are in danger because they do not conform to traditional Somali customs including the role of Somali woman and the practice of female genital mutilation.
[4] With respect to the second broad basis of their claim, the Applicants say that long absence from Ethiopia may give rise to a perception that they are foreigners or possibly spies. They say they may be perceived to be supporters of the Somali extremist group, Al'ittihad.
[5] The Applicants say they may be persecuted on the ground of membership in a particular social group because they do not have a male protector.
[6] The Applicants left Ethiopia in September 1991 and arrived in Canada in October 1991. Their first refugee claim was denied and the Applicants were removed to the United States. A second refugee claim was made in November 1993 and was also denied. After again being removed to the United States, a third refugee claim was made. This was denied as well, but was reviewed by the Federal Court which issued the following Order on May 7, 1999:
| UPON the respondent's consent ("the consent") to the granting of the application for judicial review with respect to two minor female applicants, Ismahan Mohamud Salah and Dega Mohamud Salah, concerning the tribunal's finding on the issue of female genital mutilation; |
| UPON the Court's determination, in view of the respondent's consent and after receiving submissions from counsel for the parties, not to proceed with oral argument concerning the merits of the application for judicial review with respect to the other four applicants; |
| UPON the tribunal having chosen on its own initiative to consider the application of subsection 2(3) of the Immigration Act, 1995 R.S.C. c. I-2, to the circumstances of this case; |
| UPON the Court's view that the respondent's consent may impact on any number of issues, including the issue identified by the tribunal concerning subsection 2(3), in the determination by the Convention Refugee Determination Division of the applications for refugee status with respect to each of the applicants in this proceeding; and |
| UPON the opportunity for the Convention Refugee Determination Division to consider the scheduling of the new hearing subsequent to the issuance of the decision of the Supreme Court of Canada in Baker, in view of the respondent's consent; |
| IT IS HEREBY ORDERED THAT: |
| 1. The application for judicial review is granted. |
| 2. The decision of the Convention Refugee Determination Division dated March 24th, 1998 is set aside with respect to all six applicants. The matter is referred for rehearing and redetermination by differently constituted panel. |
[7] Upon the commencement of the hearing giving rise to this application, the Board advised the Applicants that it would proceed on the basis of the factual findings made by the panel which heard the Applicants' third claim. At the same time, the Board advised that it could find that two other daughters, Deqa and Ismahan, were Convention refugees if the Board was provided with medical evidence showing that the women had not undergone female genital mutilation.
[8] The requisite evidence was presented. The Board made a finding that Deqa and Ismahan are Convention refugees. The Board found, however, that the remaining Applicants are not Convention refugees on any of the grounds pleaded or on any other Convention refugee ground.
[9] The Board specifically considered whether Qamar Adan Osman and Amina Mohamud Salah, mother and daughter, have good grounds for fearing persecution for their membership in a particular social group, that is female ethnic Somalis who are Muslims who do not have a male protector and who oppose female genital mutilation. In this regard, the Board considered the documentation submitted to it, including reports for the United States of America, Department of State and the Gender Guidelines issued pursuant to the Act. It concluded that the Applicants had not established a well-founded fear of persecution on these grounds.
[10] In the case of Amina Mohamud Salah, the Board also considered whether section 2(3) of the Act is applicable. That section provides as follows:
| 2(3) A person does not cease to be a Convention refugee by virtue of paragraph (2)(e) if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution. |
2(3) Une personne ne perd pas le statut de réfugié pour le motif visé à l'alinéa (2)e) si elle établit qu'il existe des raisons impérieuses tenant à des persécutions antérieures de refuser de se réclamer de la protection du pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée. |
[11] The Board concluded notwithstanding the difficulties which Amina Mohamud Salah may face in resettling in Ethiopia there was no basis to find that section 2(3) applies in this case, since the Board concluded that the Applicants neither had a well-founded fear of persecution when leaving Ethiopia nor had circumstance changed in that country to such a degree that section 2(2)(e) of the Act would apply.1
APPLICANT'S SUBMISSIONS
[12] The Applicants argue that the Board improperly relied on its own perceptions of the claimants in determining if there was risk of persecution, rather than relying on the Applicants' perceptions. In this regard, the Applicants rely on the decisions of this Court in Alfred v. Canada (Minister of Employment and Immigration) (1994), 76 F.T.R. 231 (F.C.T.), Chen v. Canada (Minister of Employment and Immigration) (1993), 22 Imm. L.R. (2d) 213 (F.C.A.), Ward v. Canada (Minister of Employment and Immigration) (1993), 20 Imm. L.R. (2d) 85 (S.C.C.) and Retnem v. Canada (Minister of Employment and Immigration) (1991), 13 Imm. L.R. (2d) 317 (F.C.A.).
[13] On the second issue the Applicants argue that the Board erred in applying the legal test for credibility by concluding that the Applicants' evidence was not credible in the absence of evidence to the contrary and by requiring corroborating evidence to support the Applicants' uncontradicted evidence. The Applicants reply on the decisions in Armson v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 150 (F.C.A.) and Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.) and Atefi v. Canada (Minister of Citizenship and Immigration) (1994), 27 Imm. L.R. (2d) 82 (F.C.T.).
[14] Next, the Applicants say that the Board failed to consider whether their claim could be established on Convention refugee grounds which they did not address but which emerge from the facts. The Applicants here rely on Singh v. Canada (Secretary of State) (1994), 80 F.T.R. 132 (F.C.T.).
[15] Finally, the Applicants argue that the Board failed to consider the totality of the evidence, contrary to the principles enunciated in Bobrik v. Canada (Minister of Citizenship and Immigration) (1994), 85 F.T.R. 13 (F.C.T.).
RESPONDENT'S SUBMISSIONS
[16] The Respondent submits that the Board discharged its mandate, that is to assess the credibility of the claims made by the Applicants and to weigh the evidence adduced in support of those claims. The Respondent argues that the standard of review governing a review of a decision of the Board is patent unreasonableness for findings of fact. In that regard, the Respondent relies on the decision of the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.
[17] The Respondent argues that the Board properly considered the evidence and reached a reasonable conclusion which is supported by the evidence.
ANALYSIS
[18] Although the Applicants raised several issues and arguments in this application, in my opinion their arguments all turn on the questions of credibility and the weight to be given to the evidence.
[19] The Board found that the evidence of the Applicants did not establish their claims for Convention refugee status. It said:
| ...The panel, however did not have before it credible or trustworthy evidence to determine that the claimants Qamar Adan Osman, Robleh Mohamud Salah, Amina Mohamud Salah, and Sahal Mohamud Salah face a serious possiblity of persecution for a Convention ground in Ethiopia.2 |
[20] According to the reasons, the Board reviewed the Applicants' testimony and supporting documentation. The conclusions of the Board are reasonably supported by the evidence before it. This is not a case which warrants judicial interference and the Application for Judicial Review is dismissed.
[21] I note, however, that the effect of the Board's finding concerning Dega Mohamud Salah and Ismahan Mohamud Salah, who were found to be Convention refugees, will be to break up the family unit. Moreover, the lengthy history of proceedings before the Board and before this Court suggest that the Applicants' claim was neither simple nor without legitimate points of debate. These are factors which should be considered by the Respondent and her delegates in the event that an application for inland landing is made by the Applicants.
[22] Counsel advised that there is no question for certification arising from this application.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
March 7, 2001
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