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U. (X.O) (Re) Immigration and Refugee Board

U. (X.O.) (Re)

Convention Refugee Determination Decisions
[1994] C.R.D.D. No. 316
No. T93-09269

Immigration and Refugee Board of Canada
Convention Refugee Determination Division
Toronto, Ontario

Panel: W.M. Avery and I.F. Liebich
In camera

Heard: December 1, 1993
Decision: June 15, 1994

Somalia (SOM) — Positive — Females — Child refugees — Ethnic persecution — Ethnic conflict — Internal flight alternative — Social group persecution.

Appearances:

Max Berger, for the claimant(s).
Judith Sharpe, Refugee Hearing Officer.

xxxxx xxxxxxxx xxxx xxxxxxx, Designated representative.

REASONS FOR DECISION

These are the reasons of the Refugee Division regarding the claim of xxxxx xxxxxx xxxxxx, a two-and-a-half-year-old female citizen of Somalia, to be a Convention refugee, as defined in the Immigration Act. [See note 1 below] The hearing into her claim was heard, pursuant to section 69.1 of the Immigration Act, [See note 2 below] on December 1, 1993.

Note 1: as enacted by R.S.C. 1985 (4th Supp.), c.28, s.1.

Note 2: as enacted by S.C. 1992, c.49, s.60.

The claimant was represented by Max Berger, Barrister and Solicitor. The panel was assisted by a Refugee Hearing Officer (RHO), Judith Sharpe. The claimant’s aunt, xxxxx xxxxxxx xxxx xxxxxxx, was appointed Designated Representative for the claimant. The hearing was conducted in English, with the agreement of the Designated Representative, who speaks fluent English.

Evidence submitted at the hearing included the claimant’s Personal Information Form (PIF) [See note 3 below] (signed by the Designated Representative), the testimony of the Designated Representative, and documentary evidence pertaining to Somalia [See note 4 below]. The indexes to the IRB Disclosure Package on Somalia were communicated in writing to counsel by the RHO on November 12, 1993. Following the hearing, counsel submitted a medical report regarding the claimant.

Note 3: Exhibit C-1.

Note 4: Exhibits C-2, R-1, R-2 and R-3.

EVIDENCE

A copy of the narrative to the claimant’s PIF [See note 5 below] is attached as annex.

Note 5: Supra, at Footnote 1.

Although the claimant had no identity documents, the evidence indicates that she was born in Liboi, Somalia, to Somali parents.

In addition, the Designated Representative provided the following testimony, based on telephone conversations with her sister (the claimant’s mother) and brother-in-law (the claimant’s father).

She testified that the claimant’s mother was Issaq, while the claimant’s father was Marehan. The claimant’s father had studied xxxxxxx in Germany. He travelled with German companies to Somalia. Later, he established his own company in Mogadishu and had high-level contacts with the Siad Barre government.

When the civil war broke out in January 1991, the home of the claimant’s parents was attacked by the United Somali Congress. Their two older sons were killed. The claimant’s parents and two other brothers crossed long distances on foot, finally arriving in Leboi, Somalia. The claimant was born there on xxxx x, 1991, suffering from microencephalia (brain damage). After six months, they crossed to Leboi, Kenya, for refuge. They later travelled to Nairobi where they stayed illegally, moving among different homes.

In Nairobi, the claimant’s family was reported to the Kenyan police. They were sent to jail and were later returned to the refugee camp in Leboi, Kenya. They left the claimant in Nairobi with an unidentified woman who brought the claimant to Canada. In his last telephone conversation with the Designated Representative, the claimant’s father stated that he was concerned about the claimant’s physical survival in the camp. He said that he would send the claimant to Canada and asked the Designated Representative to look after her. The Designated Representative stated that she feared for the claimant’s life, should she have to return to Somalia. She referred to the ongoing fighting between the Hawiye and the Marehan tribes. She felt that the claimant would be in danger throughout Somalia because of her mixed Marehan – Issaq lineage.

The Designated Representative stated that, to her knowledge, there were no safe areas for Marehans in Somalia. The Marehans were now paying for the crimes of Siad Barre’s government, and were hated by Issaqs and Hawiye alike.

The Designated Representative stated that, although she came from a large family, she had no relatives remaining in Somalia. They had all fled and the whereabouts of many family members were still unknown. She was not aware if the claimant’s father had any relatives remaining in Somalia.

Based on discussions with doctors in Canada, the Designated Representative felt that, medically, the claimant would not survive conditions in Somalia.

In his submissions, counsel for the claimant argued that circumstances in Somalia had not changed sufficiently to indicate that it was now safe for Marehans to return, nor was there any evidence to indicate that Marehans were returning to Somalia. In the absence of such evidence, no argument could be made for a viable internal flight alternative for Marehans in Somalia.

Counsel also submitted that, in view of the claimant’s medical condition which required medical treatment not available in Somalia, it was not reasonable to expect her to return there or to seek an internal flight alternative anywhere in the country.

ANALYSIS

The issue before the Refugee Division is to determine whether the claimant is a Convention refugee as defined in the Immigration Act. [See note 6 below] This definition reads in part:

“Convention refugee” means any person who

  1. by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
  1. is outside the country of the person’s nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country…

Note 6: as enacted by R.S.C. 1985 (4th supp.), c.28, s.1.

The panel acknowledges the unusual circumstances of this claim, in that the claimant was to young to provide evidence. However, we found the testimony of the Designated Representative to be credible and trustworthy. It fully corroborated the evidence provided in the PIF [See note 7 below] and was given in a clear, concise and straightforward manner.

Note 7: Supra, at Footnote 1.

In coming to its decision, the panel has assessed this claim as it would any other claim, that is, on the basis of the claimant’s well-founded fear of persecution, were she to return to Somalia. We are of the opinion that the specific medical circumstances pertaining to this claim are not directly relevant to our determination.

We have taken careful note of the documentary evidence relating to the current situation in Somalia.

The documentary evidence [See note 8 below] indicates that members of the Darod clan, Marehan sub-clan continue tome targeted by the Hawiye. Mogadishu, which normally would have been the claimant’s home, is still in conflict [See note 9 below]. According to Amnesty International, “There is no rule of law operating in Mogadishu.” [See note 10 below] We therefore find that the claimant has a well-founded fear of persecution in Mogadishu, her parent’s home.

Note 8: Exhibit R-3, “Amnesty International’s Concerns Regarding Human Rights Violations Against Member of the Darod clan in Somalia,” Amnesty International, June 1, 1993.

Note 9: Ibid., as well as Exhibit R-1

Note 10: Ibid.

While some of the documentary evidence refers to certain areas of Somalia, such as Belet Uen, slowly returning to peace [See note 11 below], there is no evidence before us to indicate whether it would be reasonable for the claimant and her family to seek an internal flight alternative there.

Note 11: Exhibit R-1, “Peaceful Belet Uen: The Other Somalia”, The Christian Science Monitor, July 9, 1993.

Some of the documentary evidence [See note 12 below] indicates that there was some repatriation to Somalia from Kenya in 1993 (either through spontaneous or voluntary movements). However, we agree with counsel that, in the absence of evidence regarding the clan affiliation of those choosing to return, we cannot assume that it would be safe for the claimant, as a Marehan, to return to Somalia.

Note 12: Exhibit R-1, Repatriation in Africa, UNHCR Information Bulletin, October 1993.

The issue of an Internal Flight Alternative (IFA) was raised at the hearing. According to the Federal Court in Rasaratnam, [See note 13 below] for an IFA to exist, the evidence must indicate that (i) the claimant does not have a well-founded fear of persecution in the IFA area, and (ii) it would not be unreasonable in all the circumstances, including those particular to the claimant, for her to seek refuge there.

Note 13: Rasaratnam v. M.E.I., [1992] 1 706 (C.A.).

The panel takes note of the claimant’s mixed lineage, having been born to an Issaq mother and a Marehan father. We find that the claimant would have a well-founded fear of persecution throughout Somalia, including northwestern Somalia, in view of her Marehan lineage, through her father. In view of this finding, an IFA for the claimant does not exist.

Furthermore, we find, as per Zalzali, [See note 14 below] that the claimant would be unable to seek state protection, given the non-existence of a central government in Somalia.

Note 14: Zalzali v. M.I.E., 14 Imm. L.R. (2d) 81 (F.C.A.) at 89; [1991] 3 F.C. 605 (C.A.) at 614.

Based on the evidence before us, we find that the claimant is a citizen of Somalia and a member of the (Darod) Marehan clan. As such, we find that the claimant has good grounds [See note 15 below] to fear persecution, on the basis of her membership in a particular social group, namely, as a member of the Marehan clan.

Note 15: Adjei v. M.E.I., (1989) 2 F.C. 680 (C.A.).

Having considered all of the evidence, and for the reasons stated above. We determine xxxxx xxxxxx xxxxxx to be a Convention refugee.

“I.F. Liebich”

Concurred in by: “W.M. Avery”

Dated at this 15th day of June, 1994.Toronto,

My father, xxxxxx xxxxxx xxxx, was a xxxxxxxxx trained in Germany and worked for foreign companies in Somalia, as well as taking contracts from time to time with the Somali government. My father and I are members of the Marehan Clan. My mother is from the Isaaq Clan. Before the fall of Siad Barre, my father was very comfortable financially and bad good contacts with different high-level figures in the Somali dictatorship. In early 1991, when the Hawiye were hunting the Marehan Clan, our home was attacked by the United Somali Congress (U.S.C.) guerillas. In this incident, my two brothers, xxxxx and xxx, were killed by bullets as the family fled. With the help of friends, my family managed to arrive at Liboi which is a small town on the Somali side of the Somali/Kenyan border. Actually, there are two adjacent villages each called Liboi on either side of the Somali/Kenyan border. I was born at Liboi, Somalia on xxxx x, 1991. We stayed at Liboi, Somalia until January, 1992 and in advance of the approaching U.S.C. (United Somali Congress) the political wing of the Hawiye clan, we crossed the Kenyan border to Liboi, Kenya. From Liboi, Kenya my family travelled to the capital of Nairobi. In Nairobi my family remained illegal and shifted from house to house where other Somalis sheltered and protected them. The situation in Nairobi deteriorated as the Kenyan police were cracking down on the Somali refugees in Nairobi without proper documents and sending them back to the refugee camps on the Kenyan/Somali border. There was also a great deal of resentment amongst Somalis directed against my father because of his earlier influential position as a Marehan. It is believed that other Somalis in Nairobi informed on my parents to the Kenyan police and without warning our parents were arrested by the Kenyan authorities together with my two brothers xxxxxx and xxxxx and sent back to the refugee camps at the Somali/Kenyan border. The woman with whom my parents were staying brought me to my aunt here in Toronto, Canada and informed her of this predicament. It was arranged that I would be sent to North America because I was ill and I needed medical attention. This woman made the travel arrangements to get me to Canada and on May 28th, 1993 I was brought by this woman to Toronto and placed in the care of my aunt xxxxx xxxxxxx xxxx xxxxxxx.

If I return to Somalia I fear that I will be harmed by the U.S.C. notwithstanding my young age simply because I am a Marehan and I am the daughter of a formerly influential Marehan who is hated by members of the Hawiye clan.


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