TB5-03533

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB5-03533 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 24, 2015 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lani Gozlan Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence and does not request an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to quash the decision of the RPD and allow her claim. In the alternative, the Appellant asks that the matter be sent back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed. Background [3] The Appellant alleged before the RPD that, upon return to Somalia, she will be harmed by members of Al Shabaab, large clans and militia because her sons-in-law was targeted by Al Shabaab, because she is a member of a minority clan and because she is an unaccompanied elderly female who suffers from XXXX XXXX. [4] The Appellant's claim for refugee protection was heard on March 17, 2015. By a decision of March 24, 2015, the RPD rejected the claim. The RPD found that the Appellant's return to XXXX, Somalia would not expose her to a reasonable chance or a serious possibility of persecution or harm at the hands of Al Shabaab. It also found that there was not a serious possibility that the Appellant would be targeted for sexual violence, forced marriage or other forms of persecution or treatment described in Section 97 of the IRPA. The Appellant submits that the RPD erred in its determination that she would not face persecution on the basis of her clan affiliation. She further submits that the RPD erred in its conclusion that Section 97 of the IRPA cannot be applied to her claim. ANALYSIS Role of the RAD [5] What is the role of the RAD in considering an appeal against a decision of the RPD? Although the Appellant makes no arguments with respect to the role of the RAD, the RAD notes in Huruglica the Court considered the appropriate relationship between the RAD and the RPD.1 It found that the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of the IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.2 [6] Justice Phelan stated the following in Huruglica: Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.3 In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error."4 [7] Considering the Court's decision in Huruglica, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD will substitute its own determination. Identity [8] The RPD accepted that the Appellant is likely a citizen of Somalia from XXXX who had two daughters. It noted that it had no good reason to doubt the truthfulness of two witnesses who provided affidavits and testified at the hearing. The RPD drew a negative inference from the lack of supporting documents; however, due to the absence of other adverse credibility findings, it gave the Appellant the benefit of the doubt and presumed that what was stated in her Basis of Claim Form (BoC) and what she said during the hearing was true. The RPD conducted a six-page analysis of the Appellant's identity and assessed the available evidence in consideration of the law, rules, guidelines, and jurisprudence. [9] The RAD has reviewed all the evidence in the record, including the recording of the hearing. It notes that the Appellant gave limited but consistent testimony regarding significant aspects of her identity such as her name, the country she was from and her clan affiliation. She also mentioned at her hearing that her two daughters were killed by members of Al Shabaab in Somalia, consistent with her BoC narrative. The RAD also notes that the witnesses gave consistent testimony regarding the Appellant's identity. Photographs of the Appellant with other family members were also presented as evidence in this claim and examined by the RPD. [10] Considering the above, the RAD recognizes and respects the conclusion of the RPD on the issue of the Appellant's identity. The RAD concurs with the RPD finding that the Appellant is a citizen of Somalia and a member of the minority Ashraf clan. Risk [11] The RPD indicated in the reasons for its decision that it was not satisfied that there is a reasonable chance that the Appellant would be targeted by Al Shabaab if she returned to Somalia. It noted that, although Al Shabaab was expelled from XXXX, members of the organization have infiltrated the city and are capable of carrying out attacks if they want to. The RPD also noted that Al Shabaab had targeted the Appellant's sons-in-law because they worked for the government; however, her sons-in-law relinquished their employment and left the country and were therefore no longer persons of interest for Al Shabaab. The RPD noted that the evidence did not establish that Al Shabaab sympathizers living in XXXX have an interest in targeting members of the Ashraf clan. The RPD concluded that the Appellant's return to XXXX, Somalia would not expose her to a reasonable chance or a serious possibility of persecution or harm at the hands of Al Shabaab. [12] The RPD considered the Appellant's personal circumstances and noted the following. She had lived all her life in XXXX until about age 90. She had not alleged that she encountered persecution because of her gender or her membership in the Ashraf clan. She had not indicated she had suffered discrimination amounting to persecution. XXXX is an administrative area controlled by authorities for whom her sons-in-law worked. The RPD concluded that there was not a serious possibility that the Appellant would be targeted for sexual violence, forced marriage or other forms of persecution or treatment described in section 97 of the IRPA in her particular circumstances. It noted that the Appellant may face challenges in re-establishing herself in XXXX because of her age, gender and health, but without more information about potential family support, local support and the like, it was not possible to assess this question in light of trustworthy facts. [13] The Appellant submits that the RPD erred in its determination that she would not face persecution on the basis of her clan affiliation. She argues that the research before the RPD clearly states that the Ashraf are a particularly vulnerable minority in Somalia. The Appellant further submits that she is a vulnerable person at risk of persecution in Somalia, a war torn country, as a XXXX XXXX XXXX XXXX elderly female without support. She submits that the research in country conditions illustrates the persecution of the disabled in Somalia and the lack of any protection afforded to them. She argues that the RPD accepted her identity and credibility but failed to address the evidence that directly contradicted its findings that she, as a vulnerable/disabled person, would face in Somalia. [14] The RAD has considered the documentary evidence. A United Kingdom Home Office report on Somalia indicates that the Ashraf are a minority clan which are especially vulnerable to targeting by majority clan militias.5 The report also indicates that minority groups, often lacking armed militias, continued to be disproportionately subject to killings, torture, rape, kidnapping for ransom, and looting of land and property with impunity by faction militias and majority clan members.6 Also indicated is that there is no guarantee of clan protection in Somalia, in particular members of minority clans and ethnic minority groups are vulnerable.7 The UNHCR Eligibility Guidelines identify the Ashraf as one of the minority clans in Somalia which it considers to be at risk on the ground of ethnicity/race.8 [15] The United Kingdom Home Office report indicates that, as in most contemporary conflicts, many Somali women have been killed, raped, displaced and abandoned.9 Also indicated is that gender-based violence has been a significant feature of Somalia's conflict, in which customary conventions to protect women and children and preserve human dignity have been violated.10 It is indicated in a Response to Information Request that, because of the State's collapse and civil war, women can no longer rely on society to protect them from violence.11 Also indicated is that women in many regions no longer have access to formal or traditional protection from gender-based violence due to the disintegration of formerly functioning clan structures. [16] The Appellant submits that her combined profile and identity, as an elderly female whose cognitive functioning is limited at this time, who is an unaccompanied female without family support, who suffers from post-traumatic stress disorder, and is a member of the minority Ashraf clan, are such that she would face persecution in Somalia as illustrated by the evidence on country conditions. [17] Considering the documentary evidence and the individual circumstances of the Appellant, the RAD concurs with the Appellant. The RAD recognizes the difficulty faced by ethnic minorities and women living in Somalia. There was also persuasive evidence presented that the Appellant had encountered problems in Somalia when her two daughters were murdered by members of Al Shabaab. This finding is significant in assessing what harm the Appellant might face upon return to Somalia. [18] The documentary evidence is clear in indicating that Somalia is unable to provide its citizens with adequate state protection. Furthermore, the Appellant does not have any familial support in Somalia. Her husband died of XXXX XXXX in 1984 and her two daughters were killed in 2014. No credible evidence was presented to indicate that any of the Appellant's extended family, who reside outside of Somalia, would be in a position to offer her ongoing support. The Appellant is 90 years old and is XXXX XXXX. She is from a minority clan. Her two daughters were killed by members of Al Shabaab due to their affiliation with their husbands who worked for the government. Considering the Appellant's clan affiliation, her age, her health, her lack of economic means, her lack of familial support in Somalia, and a history of problems in Somalia, the RAD finds on a balance of probabilities that the Appellant has satisfied the burden of establishing a serious possibility of persecution should she return to Somalia. The RAD therefore concludes that the Appellant has established a well-founded fear of persecution under section 96 of the IRPA. CONCLUSION [19] Pursuant to Section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed. (signed) "M. Pettinella" M. Pettinella June 24, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, para. 45. 3 Huruglica, para 54. 4 Huruglica, para 55. 5 RPD's Record, Exhibit 3, National Documentation Package (NDP) for Somalia (March 14, 2014), item 1.7, section 2.4. 6 Ibid., item 1.7, section 3.11.3. 7 Ibid., item 1.7, section 3.11.4. 8 Ibid., item 1.7, section 3.11.9. 9 Ibid., item 1.7, section 3.12.4. 10Ibid., item 1.7, section 3.12.4. 11Ibid., item 5.3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03533