2023 RLLR 265
Citation: 2023 RLLR 265
Tribunal: Refugee Protection Division
Date of Decision: December 19, 2023
Panel: Sukhpal Sangha
Counsel for the Claimant(s): Philip A Zayed
Country: Somalia
RPD Number: VC3-05872
Associated RPD Number(s): N/A
ATIP Number: A-2024-01360
ATIP Pages: N/A
DECISION
[1] This is the decision of the Refugee Protection Division in the claim of XXXX XXXX XXXX, a citizen of Somalia, who is seeking refugee protection pursuant to Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act or the IRPA.
DETERMINATION AND NEXUS
[2] The panel finds that the claimant has a well-founded fear of persecution by Al-Shabaab on the basis of his imputed political opinion of working with and supporting the Somali government and is therefore a Convention refugee under Section 96 of the IRPA. The panel has considered the testimony heard, the evidence submitted prior to the hearing, as well as the relevant and most recent country condition information available.
[3] A Convention refugee must establish a well-founded fear of persecution due to their race, nationality, religion, political opinion, or membership in a particular social group. The panel finds that there is a nexus between the claimant’s allegations and the Convention ground of imputed political opinion due to Al-Shabaab’s belief that the claimant is working with the Somali government.
ALLEGATIONS
[4] The claimant’s allegations were set out in his written Basis of Claim form and testimony, so the panel will summarize them briefly here. The claimant was born in the town of XXXX to the Marehan clan’s Hawrarsame minority group. His father owned a XXXX XXXX XXXX business and had a negotiator, named XXXX XXXX XXXX XXXX. XXXX would negotiate with Al-Shabaab, since they would XXXX XXXX XXXX XXXX and charge illegal fees and often robbed civilians at these makeshift checkpoints. XXXX was a known clan leader and was great at keeping the peace and negotiating.
[5] The claimant stopped going to school after XXXX XXXX and began working at his father’s business, first as a XXXX, XXXX XXXX for two years. Then later after his father taught him how to XXXX, being a XXXX. Eventually, he took over his father as XXXX XXXX and continued to XXXX XXXX XXXX XXXX for the last 10 years with XXXX. Sometimes, they were stopped by Al-Shabaab and XXXX negotiated, always clear that they were working for the people of Somalia, not the government or Al-Shabaab.
[6] One day, on XXXX XXXX, 2023, XXXX and the claimant left the town of XXXX to XXXX to Belet Hawo. The XXXX XXXX XXXX by four people and everything was fine until the claimant was approximately XXXXkms away from the town.
[7] Al-Shabaab attacked, the claimant knew it was them based on how they dressed and covered their head and face. They signaled the claimant to stop, which the claimant did as usual, however, Al-Shabaab opened fired and the 4 XXXX were killed. Usually if Al-Shabaab tells the claimant to stop, they would fire in the air or signal with guns or hands, they would never directly fire at them. XXXX grabbed the claimant’s hand and they ran and did not stop until they were far from any major roads. XXXX called a friend, who came with a donkey cart, to pick them up and brought them to Belet Hawo.
[8] When the claimant arrived to Belet Hawo, the claimant found out from a phone call from XXXX to his father, that police officers went to his father’s house. The police were looking for XXXX and the claimant, as the police found out the XXXX XXXX XXXX by his father and asked for the claimant and XXXX to turn themselves in. The police stated XXXX and the claimant were responsible for the deaths of the four XXXX, as they had handed them to Al-Shabaab. The claimant also found out from his father, that the elders in the community stated Al-Shabaab accused XXXX and himself as being traitors and working with the government, as the XXXX were perceived by Al-Shabaab to be government workers. His father told XXXX for them to escape to Kenya.
[9] The claimant could not turn himself in, as he did not trust the legal system in Somalia. He believes all levels of government has the Al-Shabaab. Also, he is afraid if he turned himself in, Al-Shabaab would take him, as it is common for Al-Shabaab to take detainees from jail and do as they please. The police visited his father’s house again looking for the claimant on XXXX XXXX, 2023.
[10] However, XXXX and the claimant had walked to Mandera, Kenya on XXXX XXXX, 2023. A smuggler in Kenya said he could take them to the USA in exchange for money, and XXXX and the claimant travelled as father and son to the USA on fraudulent passports. He left Kenya on XXXX XXXX, 2023, and arrived XXXX XXXX, 2023, in the USA. XXXX had family in the USA and stayed. The claimant was afraid he might get deported and heard that the USA deports Somalis back to Somalia, so he left for Canada and arrived XXXX XXXX, 2023.
Identity
[11] The claimant’s identity is a central issue before the Board. Identity is frequently an issue with claimants from Somalia, however, given the overall inability of Somali citizens to obtain documentation from the Somali government, this is not surprising. Until recently Somalia has not had a functioning government since 1991 and large parts of the country still have no central administration. Accordingly, people living in Somalia have had difficulties obtaining official documents. Section 106 of the Act states that: “The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.”
[12] The claimant would be unable to obtain a passport from Somalia in Canada as according to Tab. 3.4 of the National Documentation Package (NDP), part of the process to obtain a passport in Somalia includes going to Mogadishu, and “appear in person.”[1] Furthermore, Tab 1.10 of the NDP indicates a birth certificate must be applied for first before a passport can be applied for. The relevant biographical and biometric data must be provided and the process includes an interview at a Somali embassy.[2]
[13] Therefore, the panel finds that the claimant’s lack of identity documents to be reasonable. Thus, do not draw a negative inference on the basis of the claimant’s inability to produce a birth certificate or passport from Somalia. Instead, the panel relied on the claimant’s testimony to establish his identity. The panel asked him questions about where he grew up, places around XXXX and his sub-clan Hawrarsame. The panel found his testimony to be reasonably detailed, spontaneous, and offered without hesitation or evasiveness. When the panel weighs all of the evidence before them, on a balance of probabilities, the panel finds that the claimant’s identity and personal identity is established by the testimony of the claimant, testimony of his maternal uncle, XXXX XXXX, who was present at the hearing to testify regarding his identity and the supporting letter, which the panel places full weight on, from the XXXX XXXX XXXX dated XXXX XXXX, 2023, confirming he is a citizen of Somalia from Marehan clan’s Hawrarsame minority group, born in XXXX.
1F(b) Exclusion
[14] The Minister was invited to intervene on 1F(b) after the hearing regarding the allegations that the police believed the claimant to have handed over four XXXX to Al-Shabaab to be killed and were looking for him to surrender to police. The Minister has responded stating they will not be intervening, after reviewing a CD of the hearing that took place on November 14, 2023. The burden to provide evidence in regards to 1F(b) resides with the Minister.
[15] According to section 98 of the IRPA regarding exclusion, it states:
98 A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
[16] Sections E and F of Article 1 of the Refugee Convention are included in a schedule to the IRPA. Section E is not relevant in this proceeding. Section F reads:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
a. he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
b. he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
c. he has been guilty of acts contrary to the purposes and principles of the United Nations.
[17] The only evidence in regards to this matter is the testimony of the claimant. The panel has reviewed the testimony and has considered whether a serious non-political crime took place, in that the claimant knowingly knew the four XXXX were government workers and handed them over to Al-Shabaab to be murdered. In the claimant’s testimony, he stated he has been XXXX XXXX XXXX XXXX for over 10 years as a XXXX. He always made it clear to Al-Shabaab that he was working for the people of Somalia, not the government or Al-Shabaab.
[18] Furthermore, he stated that the XXXX XXXX XXXX by four people that day. He only came to know they were government workers through the phone call that took place after their murders, in which his father stated the police came to his house looking for the claimant, as the XXXX were government workers. It is reasonable to assume that a XXXX of any XXXX XXXX would not know the occupations of those they XXXX XXXX XXXX XXXX XXXX. This was a service he offered to the people of Somalia. In addition, Tab 1.13 DFAT report on Somalia states that authorities, including “Somalia’s National Intelligence Security Agency (NISA), arbitrarily arrest and detain individual, often justifying it by accusing individual of links to Al-Shabaab”.[3] The claimant has testified and the panel has accepted, on a balance of probabilities, that he was falsely accused by the police of having handed the four government workers to Al-Shabaab based on his credibility and the objective evidence regarding police in Somalia (see section regarding State Protection for further objective evidence).
[19] The claimant also testified that Al-Shabaab believe the claimant is working for the Somali government and is the agent of persecution. While the police in Somalia believe he is working for Al-Shabaab. Therefore, the panel believes, on a balance of probabilities, the claimant is caught in-between and is a neutral party between Al-Shabaab and the Somali government. Therefore, the panel finds that the claimant has not committed a serious non-political crime outside of Canada and is not guilty of acts contrary to the purposes and principles of the United Nations. The panel finds that he is not excluded from protection by section 98 of the IRPA.
Credibility
[20] When a claimant swears to the truth of their allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness. In the present claim, the panel finds that the claimant’s testimony to be credible. There were no material inconsistencies between his testimony and his Basis of Claim form that would lead the panel to doubt his allegations. He answered questions spontaneously and without hesitation. He described in detail the events that transpired to his arrival to Canada. The panel has no reason to doubt the claimant’s testimony or his allegations of what happened with Al-Shabaab. The panel takes his allegations to be true, on a balance of probabilities.
Well-Founded Fear of Persecution
[21] Tab 1.8 of the NDP states Al-Shabaab is Somalia’s ‘armed Islamist extremist and self-declared al-Qaeda affiliate organisation.” Furthermore, the group maintains a presence and the capacity to conduct operations throughout most of Somalia, including Mogadishu. [4] Tab 1.35 from the UNHCR states, “those who are perceived to be working with government officials… are at a higher risk of violence at the hands of Al-Shabaab.”[5]
[22] Tab 1.23 of the NDP indicates that “Al-Shabaab can pose a threat to civilians if the organisation has reason to believe that a person is acting in cooperation with the government. In such a case, the individual loses their civilian status in the eyes of the organisation, and the person becomes an enemy and a legitimate target.”[6] Based on the claimant’s allegations and finding out through the elders that Al-Shabaab stated the claimant is a traitor and accused of working with the government of Somalia, the claimant effectively lost his status as a civilian.
[23] Tab 1.13 DFAT report on Somalia states that authorities, including “Somalia’s National Intelligence Security Agency (NISA), arbitrarily arrest and detain individual, often justifying it by accusing individual of links to Al-Shabaab”. The claimant has testified and the panel has accepted on a balance of probabilities, that he was falsely accused by the police of having handed the four government workers to Al-Shabaab (addressed further above in 1F(b) Exclusion).[7]
State Protection
[24] The panel has considered whether adequate state protection is available to the claimant in Somalia. A state is presumed capable of protecting its citizens and to rebut this presumption, a claimant must establish on a balance of probabilities with clear and convincing evidence that state protection is inadequate. In the present case, Tab 2.1 states that clan militias and armed groups generally operate with impunity in Somali and the government takes few steps to protect its citizens. Many parts of the country remained outside government control, with the insurgent Islamist group al-Shabaab contesting government control.[8]
[25] Tab 1.5 of the NDP indicates that generally “Somalia scores very low for most humanitarian indicators, suffering from poor governance, protracted internal conflict, underdevelopment, economic decline, poverty, social and gender inequality, and environmental degradation”. It further states that Somalian government struggles to have a consistent long-lasting control since the 2000’s because of the strong-hold in which Al-Shabaab has over many territories in Somalia.[9]
[26] Tab 7.11 is a US Department of State report on Somalia that noted that “Police were generally ineffective and lacked sufficient equipment and training. […] There were reports of police engaging in corrupt practices. […] Security force members and corrupt judicial officers, politicians, and clan elders used their influence to have detainees released.” The same documentary evidence stated that often security forces participate in criminality to support their livelihood which erodes public trust in the government. Such criminality included extortion, robbery, murder, and torture.[10] Based on the above country condition information, the panel finds that there is clear and convincing evidence that state protection would not be reasonably forthcoming nor adequate to the claimant in the present claim and find the presumption of state protection has been rebutted.
Internal Flight Alternative
[27] Based on the above objective evidence, Al-Shabaab has control over much of Somalia and the panel finds there is no viable flight alternative for the claimant. Areas not under control by Al-Shabaab would be difficult to relocate as areas of Somalia are designated according to clans. Furthermore, once an individual is believed to be working for the government, they become specifically targeted by Al-Shabaab as cited in the objective evidence above. Given that the claimant is perceived as working with and being a supporter of the government and thus, against Al-Shabaab, the panel finds that the claimant would be at risk everywhere in Somalia and faces a serious possibility of persecution anywhere in Somalia.
CONCLUSION
[28] Therefore, the panel finds that the claimant is a Convention refugee pursuant to section 96 of the Act and accept his claim.
——— REASONS CONCLUDED ———
[1] National Documentation Package, Somalia, 31 March 2023, tab 3.4: Identity documents, including national ID cards, passports and driver’s licences, and the requirements and procedures to obtain them; percentage of the population that holds some form of identity document; whether such documents are accepted … Immigration and Refugee Board of Canada. 28 August 2020. SOM200235.E.
[2] National Documentation Package, Somalia, 31 March 2023, tab 1.10: Country of Origin Information Report on South and Central Somalia. Netherlands. Ministry of Foreign Affairs. March 2019.
[3] National Documentation Package, Somalia, 31 March 2023, tab 1.13: DFAT Country Information Report: Somalia. Australia. Department of Foreign Affairs and Trade. 13 June 2017.
[4] National Documentation Package, Somalia, 31 March 2023, tab 1.8: Somalia: Security Situation. European Union. European Union Agency for Asylum. February 2023.
[5] National Documentation Package, Somalia, 31 March 2023, tab 1.35: International Protection Considerations with Regard to People Fleeing Somalia. United Nations High Commissioner for Refugees. September 2022. HCR/IPC/SOM/2022/01.
[6] National Documentation Package, Somalia, 31 March 2023, tab 1.23: Somalia: Fact-finding Mission to Mogadishu and Nairobi, January 2018. Finnish Immigration Service et al. 5 October 2018.
[7] National Documentation Package, Somalia, 31 March 2023, tab 1.13: DFAT Country Information Report: Somalia. Australia. Department of Foreign Affairs and Trade. 13 June 2017.
[8] National Documentation Package, Somalia, 31 March 2023, tab 2.1: Somalia. Country Reports on Human Rights Practices for 2022. United States. Department of State. March 2023.
[9] National Documentation Package, Somalia, 31 March 2023, tab 1.5: Somalia. The World Factbook. United States. Central Intelligence Agency. 14 March 2023.
[10] National Documentation Package, Somalia, 31 March 2023, tab 7.11: Situation in South and Central Somalia (including Mogadishu). Asylum Research Centre. 25 January 2018.