Citation: 2019 RLLR 118
Tribunal: Refugee Protection Division
Date of Decision: November 6, 2019
Panel: Isis van Loon
Country: Somalia
RPD Number: VB8-04737
ATIP Number: A-2020-01459
ATIP Pages: 000233-000241
— DECISION AND REASONS BY THE MEMBER
[1] PRESIDING MEMBER: [XXX], the claimant, seeks refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.
[2] In rendering my reasons, I have considered and applied the Chairperson’s Guidelines On Women Refugee Claimants Fearing Gender-related Persecution. I have also considered the claimant’s level of education and life experiences.
Allegations
[3] The claimant was married by her father’s arrangement to the son of a [XXX] in Korlari (ph) in December of 2016. She was about 16 years old when this marriage was arranged. Her husband was abusive and on April 7th of 2018 while they visited her parents’ house an al-Shabaab raid on the home took her father and her husband and the al Shabaab later killed them.
[4] After this her father-in-law attempted to force the claimant to marry his other son. As a minority clan member, she had no protection from this and she fled the country with the assistance of her family. If she returns to Somalia, her father-in-law will find her and force her to marry his other son who she fears will also abuse her.
[5] I find that the claimant is a Convention refugee as she’s established a well-founded fear of persecution based on a Convention ground.
[6] In terms of identity, the claimant does not have a passport or a birth certificate. She spoke Somali as would be expected of a person of Somali origin. She provided a number of documents to support her identity. Exhibit 4, page 2 is a letter from the Manitoba Somali Association and it describes the lengths that they went to confirm her membership in the minority Shanshee (ph) clan as well as her origins in the Qoryoley town area in Somalia.
[7] This Manitoba Somali Association described interviewing a Mr. [XXX] (ph) who had known her family in Somalia and they lived in the same area. The committee compared notes on this interview with Mr. [XXX] and with responses to questions they’d asked the claimant, found them consistent. They also interviewed other Somalis from the same area with respect to descriptions and landmarks. Based on all their research they were able to confirm the claimant is a Shanshee clan member and a citizen of Somalia.
[8] At Exhibit 4, page 3, the Winnipeg Somali Community president confirms that elders also interviewed the claimant and found she had knowledge consistent with a Shanshee person from Qoryoley.
[9] Exhibit 4, page 8 is a statement from [XXX] himself who also became a witness to this hearing. He testified that he lived in the same neighbourhood and that he’d known her parents better than her but he knew her briefly when he was a child and she was a child.
[10] He testified that he was from Qoryoley and he remembered the parents a little because he’d left when he was young and he did confirm that she was of the minority clan Shanshee.
[11] Exhibit 4, page 5 is from the claimant’s mother who provided an affidavit from an advocate in Nairobi dated July 9th of 2019 and her affidavit confirmed that her daughter was of the Shanshee clan.
[12] The claimant said that she didn’t have any identity documents because she was from a minority clan and it was very difficult to get documents in Somalia, particularly with respect to being a minority clan as what documents that you were able to get was pretty much controlled by the majority clans and that if anything is to be issued, it’s a very long process and she didn’t have much time. She needed to leave the country in a hurry.
[13] The country documents state consistently that record-keeping where it exists is poor in Somalia. The Executive Director of the Somali Canadian Association of Etobicoke in the NDP 3.9 actually stated that due to the civil war all personal records had been destroyed. Seen in this light, the claimant’s lack of formal identity documents appears consistent with country conditions.
[14] It’s pretty easy in Somalia, according to the country documents, to obtain fraudulent passports and fraudulent identity cards so the fact that the claimant has neither a passport nor any other identification card is not necessarily detrimental to her claim.
[15] Based on the evidence before me, I am satisfied on a balance of probabilities that the claimant is who she says she is and that she is a member of the Shanshee minority clan and a citizen of Somalia.
Credibility
[16] When a claimant swears to the truthfulness of certain facts, there is a presumption that what the claimant has said is true unless there is sufficient reason to doubt its truthfulness. The presumption before me is that your testimony is true; however, this could be rebutted in appropriate circumstances such as inconsistencies, contradictions, omissions and undetailed testimony.
[17] That was not the case here. In this case, the claimant was straightforward and forthcoming. She provided detailed testimony on many aspects of her life and experiences and why she had to leave Somalia.
[18] There were no relevant inconsistencies in her testimony or contradictions between her testimony and other evidence before me. She didn’t seem to embellish events and actions even when it could have appeared favourable to her claim.
[19] I found her to be a credible witness and therefore I believe what she has alleged in support of her claim.
[20] As well she provided a number of relevant and probative documents. As previously discussed, there were statements verifying her identity in Exhibit 4. As well, Exhibit 4, page 8 was the witness statement which confirmed the forced marriages and some of the risks that minority clan members face.
[21] As well, her uncle and her mother both verified in their affidavits that the father-in-law had been trying to force the claimant to marry the brother of her deceased husband and both of them, I note, have now escaped to Kenya as a result of the claimant’s actions it became dangerous for them to remain as the majority clan had insisted that the claimant stay and get married. When she didn’t do that it put her family at risk and they fled to Kenya.
[22] So I found these documents were relevant and helpful in confirming and corroborating the claimant’s documents and testimony.
[23] In terms of a nexus, I found the persecution that the claimant faces has a nexus to one of the Convention grounds, that of membership in a particular social group as a woman, as well specifically she is a minority clan woman and she’s at risk of forced marriage and, in fact, has already experienced that one time.
[24] Therefore, I have assessed this claim under section 96.
Well-founded fear
[25] In order to be considered a Convention refugee, a claimant must demonstrate that they have a well-founded fear of persecution. This includes a subjective basis and an objective basis for this fear and I note also that it must be forward-looking.
[26] Based on the claimant’s testimony, supporting documents, the witness testimony, the country condition documents, I find the claimant has a well-founded fear of persecution for the following reasons.
[27] In terms of the subjective basis, her abusive husband was killed by al-Shabaab around the 18th of April, 2018. Shortly after this, her father-in-law demanded that she marry his other son who she had seen was equally abusive. Shortly after that, she fled to Mogadishu, hiding while she was making arrangements to leave. She left the country on [XXX] for Ethiopia initially, stayed there until [XXX] of 2018 under the advice of an agent who she’d employed to assist her.
[28] She left Ethiopia and arrived in Toronto on [XXX], 2018 and from there drove to Winnipeg and claimed asylum, signing her Basis of Claim form on the 28th of August of 2018.
[29] I find the claimant has adduced sufficient credible evidence by her testimony as well as by her actions to establish a subjective fear of persecution in Somalia.
[30] I asked the claimant what made her leave the country and she said that she’d explained to her uncle that she did not want to marry the brother of her husband. Her uncle told her that if she refused they would be killed together.
[31] I asked her then, so why did you go and she said: I felt that he could torture, or abuse or beat me – referring to this brother – and I was escaping to avoid this. She said very clearly, I wasn’t going to undergo a forced marriage.
[32] She told me that a female is always the victim and that if you were in the minority and you were a female you are even more at risk. She described her life in Somalia, how she’d been forced to marry at about age 16, the abuse that she’d endured and that she had no recourse but to suffer this abuse.
[33] She spoke of her escape and what she did staying under the radar while she was in Mogadishu and her efforts to find a way out of the country.
[34] The witness offered testimony and he described the situation in Somalia for women with an experience that he had had, where a sister-in-law had been married to his cousin. Now, the witness was also from a minority clan, a different one from the claimant but he was from a minority clan. He said that majority clan people came and took the sister-in-law by force from her cousin, to whom she was married, and they married her to one of their members. After the sister-in-law died, they came and took her younger sister and they also forcibly married her. He said this is like a normal thing and there was nothing that anyone can do. He said it is like that everywhere.
[35] The country documentation is consistent with the claimant and the witness’s testimony of persecution and the risks in Somalia. Forced marriage is deeply rooted in Somali culture and its interpretation of Islamic practices according to the NDP 5.2. Harmful practices such as forced marriages are still taking place and are common although they are constitutionally against the law.
[36] Women’s rights and physical integrity are challenged by religious and customary practices, including polygamy, forced marriage and wife-inheritance. Gender-based violence is widespread in Somalia according to Human Rights Watch.
[37] In terms of widow inheritance, there’s actually a name for that, duma (ph), and it means that a widow marries her deceased husband’s brother. Apparently there’s a report in a book called Culture and Customs of Somalia that this tradition is dying out but that it is probably more frequent in rural areas than in towns.
[38] I asked the claimant what her place of residence was like and she described a place where there were farms even within the town as well as farms around the town. She described livestock. In fact, her bride price was ten goats paid to her father. As a minority clan member, she said she was only worth ten goats to them. If she’d been of a majority clan, it would have involved large sums of money and goats and camels as well.
[39] So, while the tradition may be dying out according to that one source, I’ve heard the credible claimant’s testimony as well as corroboration and documents from the uncle who was involved with this second marriage that was to be arranged as well as the mother and, of course, there is the testimony of the witness who said that this type of thing is very common in that part of Somalia and generally in Somalia.
[40] Again, as I said the country documents confirm that sexual and gender-based violence are serious concerns throughout Somalia and a woman without family, friends or clan connections or without resources in general is likely to be at risk of sexual and gender based violence upon her return.
[41] There’s a report called No One Cries for Them: The Predicament Faces Somalia’s Minority Women. This report paints a grim picture of the human rights situation affecting women generally in Somalia and minority women in particular based on the various historical, social, economic, and political factors, including traditional religious and clan structures compounded by years of violence, poverty and famine. This has made Somalia one of the worst places in the world for women, according to this report.
[42] The report highlights how women’s rights and those of minority women in particular are ignored by the majority population, how they are violated with impunity. The plight of women during the last two decades of conflict has been characterized by displacement, rape, gender-based violence, etcetera, etcetera, inadequate or non-existent political representation and lack of access to economic and social rights and these are some of the grim realities that women of Somalia in general and especially minority women continue to endure today.
[43] Based on all the evidence before me, I find that the claimant would face a senous possibility of persecution if she were to return to Somalia.
State protection
[44] Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption there is an onus on the claimant to establish on a balance of probabilities with clear and convincing evidence that their state’s protection is inadequate.
[45] I find that adequate state protection would not be forthcoming in this particular case and there is clear and convincing evidence that rebuts on a balance of probabilities a presumption of state protection.
[46] Women in Somalia do not have the same rights as men and they’ve experienced systematic subordination to men despite provisions in the federal constitution, a weak judiciary, as well as misogynist traditional and tribal laws and practices work against women. In general, a woman fearing sexual or gender-based violence is unlikely to be able to access effective protection from the state according to the NDP 5.5 which is from the United Kingdom Home Office.
[47] Gender-based violence is widespread. Constitutional protections are largely limited to the paper that they are written on and they are not available in practice. Most incidents go unreported. There is a culture of impunity. It is a serious and according to recent reports increasing problem.
[48] Domestic violence such as the claimant experienced is generally accepted with 76% of women aged 15 to 49 believing that a husband is justified in beating his wife for burning the food, refusing sexual relations, or arguing with him. Thus, the claimant who endured domestic violence from her late husband and was then faced with forced marriage to her equally abusive brother-in-law is in the minority. She’s a woman who did not agree with this and she actually fled the situation in disagreement with her in-law’s demands and the cultural expectations.
[49] Thus I find there is clear and convincing evidence demonstrating on a balance of probabilities the state is unable or unwilling to provide this claimant with adequate protection and the presumption of state protection has been rebutted.
[50] An internal flight alternative arises when someone who meets all the elements of the definition of a Convention refugee in their home area of the country nevertheless is not a Convention refugee because they could live safely elsewhere in the country.
[51] The test for this has two prongs. I’d have to be satisfied on a balance of probabilities that there would be no serious possibility of persecution in the part of the country to which I found an IFA exists; and, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all circumstances, including those particular to the claimant for her to seek refuge there.
[52] Looking at this second part, I do find that it would be unreasonable in all circumstances, including those particular to the claimant, for her to seek refuge there, anywhere, in Somalia and this is why.
[53] First off, the claimant testified that if you’re seen as Westernized, i.e. you’ve lived in a Western country for any period of time as the claimant has now done for over a year, you can be seen as a spy and be treated very poorly.
[54] I asked the witness as well if there was anywhere in all of Somalia that the claimant could be safe and he said that she wouldn’t be able to survive anywhere else if her clan was not there and that she’s from a minority clan and it’s only in that general area. As she testified earlier there are some clan members in Mogadishu and in Qoryoley area.
[55] The witness said that if the claimant goes back she’11 end up right back in the hands of the people that she was running from.
[56] Country documentation notes there’s ongoing insecurity and severe drought in Somalia which poses a major risk to the viability of any repatriation process. That’s NDP 14.6.
[57] Somalia is a far from stable state. There are more than five million people, that is 40% of the population who are in need humanitarian assistance, according to NDP 5.7. Access to water is a major issue according to Amnesty International and this leads to illness and disease widespread. Even simple access to shelter is problematic and when and if shelter is found, returnees are at risk of regular and ongoing forced evictions.
[58] The situation for internally displaced women, which is what this claimant would be if she returned to an IFA in Somalia, is grim. The Response to Information Report from the IRB states that according to sources due to the need for male protection in Somali society, women without a support network face extreme hardship and difficulties accessing housing or employment.
[59] The gender advisor similarly explained that even for women with clan protection that women’s rights are not protected, especially in cases of rape or sexual violence. Perpetrators can even be from the same clan and clan elders can resolve cases such as this in traditional ways which can result in forcing a woman to marry the person who has been harming in order to protect their family honour.
[60] Minority women lack any such protection and experience most pronounced forms of social, cultural and economic discrimination including exclusion from basic services, difficulties accessing support.
[61] I mentioned the forced evictions of internally displaced people. Mass evictions are not uncommon.
[62] The documents are clear that any women need to have established clan network support and endorsement from clan elders in order to survive and with no connections this would be difficult.
[63] It would be unreasonable to expect the claimant to return to the area where she’s from where her father-in-law and his son, who he plans to make her marry, are living and if she were to go anywhere else she would not have access to clan support.
[64] The UK Home Office at NDP 1.12 also says that travel by land across southern and central Somalia to a proposed place of relocation may well in general pose real risk of serious harm, particularly the al-Shabaab checkpoints. The claimant herself described traveling just to Mogadishu, hiding in among the sheep and the goats in the back of a truck, hoping at every checkpoint that she would not be discovered.
[65] There are checkpoints all over Somalia operated by government forces, allied groups, armed militias, clan factions and al-Shabaab. These checkpoints have inhibited movement, exposed citizens to looting, extortion, harassment and violence according to the US Department of State report.
[66] So, even just relocating to another place in Somalia would put the claimant at great risk.
[67] When you’re looking at the test for an internal flight alternative if either prong of the test is not met, then there is no viable internal alternative in the country. I’ve considered the second prong which requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimant in relocating to any safe area and it would have required actual and concrete evidence of adverse condition and I have now considered the conditions throughout Somalia. I have reviewed the country documentation. I’ve considered the circumstances of this claimant and I find it is objectively unreasonable and unduly harsh as understood in Canadian jurisprudence for this claimant to seek refuge anywhere in Somalia; therefore, there is no internal flight alternative.
[68] I find that there is a serious possibility the claimant would be persecuted up on her return to Somalia throughout the entire country. Based on the totality of the evidence I have concluded the claimant is a Convention refugee and accordingly I’ve accepted her claim.
—PROCEEDINGS CONCLUDED