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U. (N.B.) (Re), Convention Refugee Determination Decisions

Publisher Canada: Immigration and Refugee Board of Canada
Author Immigration and Refugee Board
Publication Date 13 May 1992
Citation / Document Symbol [1992] C.R.D.D. No. 422 No. U91-04688
Reference 422; U91-04688
Cite as U. (N.B.) (Re), Convention Refugee Determination Decisions, [1992] C.R.D.D. No. 422 No. U91-04688, Canada: Immigration and Refugee Board of Canada, 13 May 1992, available at: http://www.refworld.org/docid/3ae6b69fc.html [accessed 2 October 2014]
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U. (N.B.) (Re), Convention Refugee Determination Decisions
[1992] C.R.D.D. No. 422 No. U91-04688

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

Panel: C.E. McNaughton (Dissenting) and H.V. Herman In camera

Heard: November 4, 1991 and January 28, 1992

Decision: May 13, 1992

Somalia (SOM)--Positive--Males--Agents of persecution--Change of circumstances in home country--Civil war--Civil and political rights--Country of origin conditions--Ethnic persecution--Ethnic conflict--Exclusion clauses--Human rights--Human rights violations--Internal flight alternative--Judicial system--Legal decisions--Persecution for political opinion--Political opinion--Political activities-Post-flight reasons for persecution--Standard of proof.

Appearances:

Joseph Nicoletti, for the claimant(s).

Elise-Anne Dealy, Refugee Hearing Officer.

REASONS FOR DECISION

These are the reasons for the decision with respect to the claim to be a Convention refugee made by xxxxxxxxxxxxxxxxxxx in a hearing held pursuant to section 69.1 of the Immigration Act [as enacted by R.S.C. 1985, (4th Supp.), c. 28, s. 18].

The Refugee Division hearing into his claim was held on 4 November 1991 and 28 January 1992 at Toronto, Ontario. The claimant was represented by Joseph Nicoletti, Barrister and Solicitor. The panel was assisted by Elise-Anne Dealy, Refugee Hearing Officer (RHO).

The claimant is a 52-year-old citizen of Somalia. He arrived in Canada on 30 May 1991 and his claim was referred to the Refugee Division on the same date. He claims to be a Convention refugee by reason of a well-founded fear of persecution in Somalia on the grounds of his nationality, political opinion and membership in a particular social group.

The issue before the Refugee Division is whether the claimant is a Convention refugee as defined in section 2(1) of the Immigration Act [as enacted by R.S.C. 1985, (4th Supp.), c. 28, s. 1. This definition reads:

"Convention refugee" means any person who

(a)by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i)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, or

(ii)not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b)has not ceased to be a Convention refugee by virtue of subsection (2),

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;

Section F of Article 1 reads:

F.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.

The evidence presented to the Refugee Division included the claimant's oral testimony, his Personal Information Form [Exhibit C-1] (PIF), a photocopy of the claimant's passports [Exhibit C-4] and documentary evidence consisting of background information on Somalia.

I have considered the following elements of the claimant's testimony as relevant in coming to my decision.

The claimant belongs to the Ogaden clan in Somalia which is a sub-clan of the larger Darood clan. In 1963 he completed law school, obtaining a law degree and a doctorate of law in 1978.

He worked as a judge on various regional and district courts and then on the xxxxxx court. Between 1982 and 1983 he was a xxxxxxxxx of the xxxxxx court. After that, the claimant was appointed to the xxxxxxx Court. In 1984 he became xxxxxxxxxxxxxxxx, and in 1989 the xxxxxxxxx of the xxxxxxx Court. He was appointed to the xxxxxxxxxx of the xxxxxxx Court by the president Siad Barre.

The claimant explained that in Somalia the Supreme Court deals with the matters and judgements from all other courts with the exception of the National Security Court (NSC) and the Military Court. The NSC dealt with politically based cases, the military Court dealt with military matters, while the other courts dealt with civil and criminal matters.

The claimant further explained that there was no appeal possible from the decisions made by the NSC or the Military Court. The NSC and Military Courts were, therefore, outside of the ordinary legal system and were regarded as political instruments of the dictatorial military regime. The ordinary legal system, of which the claimant was a part, was independent of the executive and legislative powers, while the NSC was not.

The claimant was aware of the human right violations which were carried out with the help of the NSC. He stated that he decided to stay within the Judicial system. in order to influence changes with respect to human rights. To that end, after he was appointed to xxxxxxxxxx of the xxxxxxx Court, the claimant advocated the abolition of-the NSC in his speeches and in writing. In this, he was supported by the visit and talks with the officials of Amnesty International in June 1989. In October 1990, the NSC was abolished.

After the overthrow of Siad Barrels regime, the claimant fled the country fearing for his safety. He is afraid that because he was a judge of the xxxxxxx Court during Barre's regime he would face persecution by the United Somali Congress (USC). In addition, he feared that he would be persecuted because of his membership in Ogaden clan, a clan which is being targeted by the USC.

In addition to the consideration of whether the claimant has a well-founded fear of persecution, given the his position on the xxxxxxx Court of Somalia, I have also considered the applicability of the exclusion clause, namely section F of Article 1, to this claim.

In my opinion, the claimant was credible and trustworthy. He answered all questions without hesitation and embellishment. He was knowledgeable in matters pertaining to the judicial system in Somalia. The documentary evidence [Ibid., p. 3] confirms that he was indeed the xxxxxxxxx of the xxxxxxx Court of Somalia.

The documentary evidence is consistent with the claimant's testimony. The U.S. Department of State Report states that,

In the civil and criminal courts, legal assistance is provided, and there are established rules of evidence. The right to appeal exists in criminal and civil cases but until October 12 not in cases heard by the National Security Court. The National Security Court was abolished then, and its pending cases transferred to the ordinary courts. [Exhibit R-1, Country Reports on Human Rights Practices for 1990, Department of State, February 1991.]

The documentary evidence [Exhibit R-2, Africa South of Sahara 1990, Judicial System, p. 894] also indicates that "The Judiciary is independent of the executive and legislative powers. Laws and Acts having the force of law must conform to the provisions of the Constitution and to the general principles of Islam".

Furthermore, the Amnesty International Report on human rights concerns in Somalia [Exhibit C-3, Somalia, Report on an Amnesty International Visit and Current Human Rights Concerns, January 1990] states that "Somalia has two separate systems of law and courts and associated institution", [Ibid., p. 7] the ordinary laws and courts and the National Security Law and National Security Court. According to their report, "Complaints of human rights violations have not, in general, concerned the ordinary courts and the police", [Ibid., p. 8]. All this is consistent with the claimant's testimony. Had Amnesty International had any concerns regarding human rights violations by the ordinary courts and the Supreme Court of which the claimant was a member and its President, it would have stated so. Their only concern was with the NSC as Siad Barre's instrument for dealing with political opponents.

In considering whether the claimant is described by the exclusion clause, I am guided by the criteria set out in the UNHCR Handbook, namely that,

"For these clauses to apply, it is sufficient to establish that there are ¢serious reasons for considering¢ that one of the acts described has been committed. Formal proof of previous penal prosecution is not required. Considering the serious consequences of exclusion for the person concerned, however, the interpretation of these exclusion clauses must be restrictive". [Office of the United Nations High Commission for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988, Paragraph 149.]

Professor James C. Hathaway also states that there is no requirement that the claimant's criminality be established beyond a reasonable doubt by a judicial procedure, and that it is enough that the decision makers have sufficient proof warranting the assumption of the claimant's guilt of crimes described in section F. [James C. Hathaway, The Law of Refugee Status, (Toronto: Butterworths, 1991), p. 215.]

Regarding the degree of involvement in crimes described in section F of the Convention, I am of the opinion, on the basis of the evidence in front of me, that exclusion is not warranted. The claimant did not engage, assist, or even condone human rights violations. Once he became a xxxxxxxxx of the xxxxxxx Court, he actively advocated the abolition of the NSC which was the regime's instrument for persecution and was successful in this effort.

Regarding the claimant's fear of persecution for the reasons of his membership in Ogaden clan and his position on the xxxxxxx Court, the documentary evidence [see Note 1 below] indicates that the members of the Ogaden clan are being targeted by the members of the Hawiye clan who now control the capital Mogadishu, and other areas of Somalia. In my opinion, there are good grounds to believe that due to the claimant's Ogaden identity in combination with his position within the Judiciary during the Barre regime, he would face persecution should he return to Somalia. Furthermore, I believe that it is not reasonable to expect of the claimant to seek protection in the area of Somalia which is currently controlled by his Ogaden clan. Even if such an area were stable and well-protected, it is unreasonable to expect the claimant to find his way there through enemy territory. In my opinion, the claimant's fear of returning to Somalia on the basis of his membership in Ogaden clan and his membership in the Judiciary system before and during the dictatorship of Siad Barre, is well founded.

Note: 1 Exhibit R-1, Somalia-Chronology of Events Since the Fall of Siad Barre, Immigration and Refugee Board Documentation Centre, Ottawa, August 1991, and British Broadcasting Corporation, Summary of World Broadcasts, 23 March 1991.

For all the above mentioned reasons, this panel member determines the claimant xxxxxxxxxxxxxxxxxxx to be a Convention refugee.

DATED at Toronto, this 13th day of May, 1992.

"H.V. Herman"

DISSENTING OPINION

This claim was heard under section 69.1 of the Immigration Act. Section 69.1 (10) of that Act reads as follows:

(10)In the event of a split decision, the decision favourable to the claimant shall be deemed to be the decision of the Refugee Division.

With very great respect, I cannot concur with my colleague's reasons.

The Canadian system of refugee determination is judged by many as one of the most tolerant and fair systems in the world. However, that system must not only be just, it must also be perceived to be just. Tolerance must not be carried to extremes; otherwise, the result may be unfairness for the great mass of would-be refugee claimants.

Refugee determination panels across Canada have heard hundreds of asylum seekers describe the persecutory character of the Siad Barre regime in Somalia. It appears, if the testimony of these claimants is to be believed, that the judicial system, under Siad Barre, was one of the instruments and handmaidens of persecution in that country. The judicial system also appears as an instrument of the political policy of Siad Barre who chaired the High Judicial Council, and without whose sanction no one could be appointed to such a system.

It is implausible that a dictator like Siad Barre, who held all power in his hands and intended to keep it there, would appoint anyone to a position of this influence and authority whom he did not view as his own creature and agent.

It is also implausible, in a judicial system. which is so closely associated with the agents of oppression, or even which is one of those agents itself, that any member of that hierarchy could be above suspicion.

This claimant held the xxxxxxx position in the xxxxxxx judicial organ in Somalia, xxxxx of the xxxxxxx Court.

There are two issues in this case which must be addressed.

One must first assess the role of the courts in Somalia and link the role of the claimant in that court system, in which he played a major role, first as the xxxxxxxxxxxxxx and then as xxxxxxxxx of the xxxxxxx Court, an integral and operational part of what was a homogeneous system of oppression.

It is necessary to examine the nature of that role to determine whether the claimant falls within the definition of a person who, because of the nature of his involvement, is deserving of international protection.

Through this process it can be established that it was impossible for an independent judiciary to exist in Somalia during the reign of Siad Barre; and that it was impossible for anyone not totally in agreement with, and willing to carry out the mandate of, that regime and its policies, to be put in a position of trust and responsibility for such a sensitive component of the political system of control and oppression created by Siad Barre.

There is substantial documentary evidence [see Note 1 below] submitted in relation to the hearing of this claim to establish the interconnection between the claimant, his clan, his upward path in the judicial system, and the manifest control Siad Barre held in Somalia.

Note 1:

(a)Exhibit R-1, Index to Standardized Country Files:

Somalia (SCF), Immigration and Refugee Board, Toronto, March 1990

(b)Exhibit R-1, Item 2, Amnesty International Annual Report, 1991

(c)Exhibit R-1, Item 3, U.S. Department of State Country Reports on Human Rights Practices for 1990

(d)Exhibit R-1, Item 4, Critique of U.S. Department of State Report for 1990

(e)Exhibit R-3, Item 4, U.S. Department of State Country Reports on Human Rights Practices for 1983

(f)Exhibit C-1, Personal Information Form

(g)Exhibit C-3, Somalia, Report On An Amnesty International Visit and Current Human Rights Concerns, Amnesty International, AFR 52/01/90, January 1990

As my colleague indicated, the claimant was aware of the human rights violations which were carried out within the judicial system with the help of the National Security Council (NSC).

The claimant was one of a number of high profile people in the Siad Barre government who, because their areas of responsibility in the perpetration of human rights abuses of that government, were of concern to the Amnesty International delegation.

The panel was asked to believe that the claimant had little if any influence with the President of Somalia, that he only met with him on occasions such as formal receptions, and that the extent of his influence at the one time he met with him personally, was to brief the President in his capacity as xxxxxxxxx of the xxxxxxx Court, following the Amnesty International visit to Somalia. The panel was also asked to believe that it was because of claimant's suggestion, in July 1989, that in October 1990, Siad Barre abolished the National Security Courts.

One cannot discount the contention that it was the claimant's suggestion in July 1989, that could have prompted the President to abolish the Security Court system in Somalia. It must be pointed out that the claimant said he met the President in July 1989, to brief him following the visit by Amnesty International, and that it was at this meeting that he said he suggested that the National Security Courts should be abolished. However, it was not until October 1990 that Barre actually announced a one-year abolition of those courts.

EXCLUSION

Article 1(F) reads as follows:

The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)he had 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 had been guilty of acts contrary to the purpose and principles of the United Nations.

Even if there has been no specific evidence or mention in the evidence of concrete acts that the claimant had committed, the nature of the court system. and its activities were such that it is enough for the panel to be shown that the claimant occupied a position of responsibility in that court and took no effective action to prevent such acts or to negate his own responsibility for them. This provides reasonable grounds for believing that Section 1(F) applies to the claimant.

Professor James C. Hathaway stated in his book The Law of Refugee Status [(Toronto: Butterworths, 1991) at p. 189] that:

(Similarly,) refugee status was not envisaged as the entitlement of every person genuinely at risk of persecution. Serious criminals [Convention relating to the Status of Refugees, 189 U.N.T.S. 2545, entered into force April 22, 1954 ("Convention") at Art. 1 (F) (a)-(b) 1 and persons whose actions have exhibited flagrant disregard for the purposes of the United Nations [Ibid., at Art. 1 (F) (c)] may face the possibilities of persecution in their state of origin, but they are outside the scope of the refugee definition. The Conventions exclusion clauses [Convention relating to the Status of Refugees, 189 U.N.T.S. 2545, entered into force April 22, 1954 ("Convention") at Art. 1 (F) (c)] are framed so as to bar persons who pose a critical risk to the receiving state, or whose own breach of fundamental standards of humane conduct renders them unworthy of protection.

Professor Hathaway goes on to say that there are very limited situations in which even persons genuinely at risk by reason of civil or political grounds may not qualify as refugees. He states at page 191:

Because these clauses are to be applied only in relation to persons who otherwise present a prima facie need for protection, they ought reasonably be strictly construed [see Note 2 below]. Nevertheless it is clear that a state's duty under international refugee law extends neither to persons who benefit from sufficient protection elsewhere, nor those whose own actions are inconsistent with the basic human rights undertaking.

Note 2:

"The cessation clauses are negative in character and are exhaustively enumerated. They should therefore be interpreted restrictively, and no other reason be adduced by way of analogy to justify the withdrawal of refugee status": United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, p. 27 (1979).

There is further grounds to believe that the claimant falls under Article 1(F) in the case of Jolly [Attorney General of Canada v. Jolly, [1975] F.C. 216 at 228 and 229 (C.A.)]. I am. of the view that there is no essential difference between the phrase "serious reasons for considering that" as mentioned in the Act and the phrase 1,serious reasons for believing that" referred to in Jolly. The Federal Court interpreted that phrase in the following way:

... No doubt one way of showing that there are no reasonable grounds for believing a fact is to show that the fact itself does not exist. But even when prima facie evidence negativing the fact had been given by the respondent there did not arise an onus on the Minister to do more than show that there were reasonable grounds for believing in the existence of the fact.

The Court went on to say

In short, as applied to this case it seems to me that even after prima facie evidence negativing the fact had been given it was only necessary for the Minister to lead evidence to show the existence of reasonable grounds for believing the fact and it was not necessary for him to go further and establish the fact itself of the subversive character of the organization.

Thus in the present case, the panel does not have to be shown that the claimant had actually committed any of the oppressive and inhuman acts of the Barre regime. We simply have to be shown that there are reasonable grounds for believing that he was a part of the subversive regime in Somalia. In my view, documentation [see Note 3 below] provides that there are reasonable grounds to believe that the claimant is guilty of a crime against humanity.

Note3:

(a)Exhibit R-1, Index to Standardized Country Files: Somalia (SCF), Immigration and Refugee Board, Toronto, March 1990

(b)Exhibit R-1, Item 2, Amnesty International Annual Report, 1991

(c)Exhibit R-1, Item 3, U.S. Department of State Country Reports on Human Rights Practices for 1990

(d)Exhibit R-1, Item 4, Critique of U.S. Department of State Report for 1990

(e)Exhibit R-3, Item 4, U.S. Department of State Country Reports on Human Rights Practices for 1983

(f)Exhibit C-1, Personal Information Form

(g)Exhibit C-3, Somalia, Report On An Amnesty International Visit and Current Human Rights Concerns, Amnesty International, AFR 52/01/90, January 1990

By continuing in a senior office, in my view, he actively furthered the goals of that regime. He was not a helpless bystander. He could not help but have been aware of the travesty of justice committed in the National Security Courts and the Military Courts; and yet it was not until a recommendation made by Amnesty International, that he suggested changes to the President.

I cannot accept that this claimant was not implicated in the well-documented vicious dreadful regime of Siad Barre. In my opinion the claimant was culpably implicated in the persecutory abuses of the Barre regime and should be excluded from Convention refugee status under Article 1 (F) (C). [See Note 4 below.]

Note 4:

(c)he had been guilty of acts contrary to the purpose and principles of the United Nations DATED in Toronto, this 13th day of May, 1992.

"Christine E. McNaughton"


 

Copyright notice: This document is published with the permission of the copyright holder and producer Immigration and Refugee Board of Canada (IRB). The original version of this document may be found on the offical website of the IRB at http://www.irb-cisr.gc.ca/en/. Documents earlier than 2003 may be found only on Refworld.

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