T. (X.Q.) (Re) Convention Refugee Determination Decisions

T. (X. Q.) (Re)
Convention Refugee Determination Decisions [1993] C. R. D. D. No. 193

Nos. U92-00079, U91-06175,U91-06176, U91-04622, U91-04943, U91-04621

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

Panel: B. Riddell and A. Nicholson In camera

Heard: January 31, March 11, 20, 23, April 7 and July 13, 1992

Decision: March 19, 1993

--Persecution for political opinion -- Procedural requirements -- Social group persecution.

Appearances:

David P. Yerzy and Michael A. Romoff, for the claimant (s).

John Kivlichan and Joel Rubinoff, Refugee Hearing Officers.

REASONS FOR DECISION

These are the reasons for the positive decision with respect to the claims of xxxxxxxxxxxxxxxxxxxxxxxx, his wife, xxxxxxxxxxxxxxxxxx, her brother xxxxxxxxxxxxxxx and sister xxxxxxxxxxxxxx, and her (xxxxxx's) cousin xxxxxxxxxxxxxxxxxx to be Convention refugees [as enacted by R. S. C. 1985 (4th Supp.), c. 28, s. 1] as defined in section 2 (1) the Immigration Act.

The xxxx' American-born son xxxxxxxxxxxx, whose designated representative at this hearing was his mother, is not a Convention refugee. Another of their minor children is a Canadian citizen and did not make a claIm. All of the claimants, with the exception of xxxxxxxxxxxx, are citizens of the Somali Democratic Republic (Somalia).

The hearing into these claims required a number of April 7, 1992, at 70 University Avenue, Toronto. As well, the panel reconvened the hearing on July 13, 1992, at the request of counsel, to hear new evidence with respect to the feasibility of an internal flight alternative (IFA) [Rasaratnam, Sivaganthan v. M. E. I. (F. C. A., no. A-23-2-91) Mahoney, Stone, Linden, December 5, 1991]. There six sittings were preceded by two pre-hearing conferences on December 17, and 30, 1991, which were held to deal with both procedural matters and the issues raised by the claims.

Xxxxxxxxxxxxxxx and xxxxxxxxxxxxxx were represented by David P. Yerzy, Barrister and Solicitor. All other claimants were represented by Michael A. Romoff, Barrister and Solicitor. John Kivlichan, who served as the Refugee Hearing Officer (RHO) was assisted by Joel Rubinoff, Senior Refugee Hearing Officer. Interpreters proficient in the Somali and English languages were present throughout the proceedings.

All claimants, with the exception of xxxxxxxxxxxx, the infant child, and xxxxxxxxxxxxxxxxxx, testified. Dr. xxxxxxxx, testified with respect to his deposition [Exhibit R-3] via telephone. An additional witness was xxxxxxxxxxxxxxxxxxxxxxxxxx, the former acting xxxxxxxx of Hargeisa, who has been accepted as a Convention refugee in Canada.

At the pre-hearing conference much of the discussion centred around the disclosure of information regarding the misrepresentation of certain of the claimants' true identities including their relationship to both the government and family of Mohamed Siad Barre, the deposed president of Somalia. The identity information, consisting of various personal documents had been intercepted by Canadian Immigration officials and passed on to the Immigration and Refugee Board (IRB). (In later testimony by xxxxxxxxxxxxxx, these material omissions were attributed to her fear of physical harm to the claimants at the hands of disaffected Somalis resident here, should the truth be known). The panel notes that xxxxxxxxxxxxxxxxxxxxxxxx had truthfully disclosed his identity in Vancouver where he first made a claim to Convention refugee status and where proceedings heard jointly with his uncle, xxxxxxxxxxxxxxxx, had begun.

The panel, after argument on the record, decided in the interest of fairness to require the RHO to disclose all information in his possession concerning the claimants to the claimants' counsels. As a result, after disclosure, new Personal Information Forms [Exhibits C-11 - C-15 inclusive] (PIF) were submitted for the claimants. The decision with respect to disclosure was influenced by the general principle (most recently outlined by the Supreme Court of Canada [R. v. Stinchombe (S. C. C., no. 21904), November 7, 1991]) that disclosure of all relevant information, subject to certain conditions outlined by that court, must be made. In non-adversarial hearings, which constitute the majority of Refugee Division proceedings, disclosure ought to be made as soon as practicable.

As noted earlier, the hearing into the claim of xxxxxxxxxxxxxxxxxxxxxxx had begun in Vancouver. However, he had not yet testified and his relationship xxxxxxxxxxxxxxxxxx to Mohamed Siad Barre, former President of the Somali Democratic Republic from 1969 until 1991, formed the basis for the fear of persecution expressed by the remainder of the claimants. This, as well as the fact that Mr. xxx was residing in Toronto with his family, led the panel to conclude that, on balance of convenience, it would be more appropriate to hear his claim in Toronto. As a result, pursuant to section 16(2) of the Convention Refugee Determination Division Rules, his claim was severed from the claim of his uncle in Vancouver and formally transferred to Toronto under CRDD rule 11.

Another issue that was raised by counsel, after the panel's decision to accept as evidence filed by the RHO, the deposition by Dr. xxxxxxx (later qualified as an expert witness [Exhibit R-3, attachments]), was a motion to subpoena Dr. xxxxxxx for cross-examination. The thrust of Dr. xxxxxxxx's deposition concerned the alleged activities of xxxxxxxxxxxxxxxx, but the deposition did mention xxxxxxxxxxxxxxxxxxxxxxx peripherally and did assert that the IFA applied to areas of Somalia held, at that time, by his xxxxxxxxxxx, Mohamed Siad Barre was viable. Although the panel was favourably disposed, in the interest of fairness, to allow such a cross-examination with respect to the IFA, we concluded that a subpoena, pursuant to CRDD Rule 24, would have no legal effect in the United States where Dr. xxxxxxxx resides. However, the panel instructed the RHO to arrange for a teleconference with Dr. xxxxxxx to allow for cross-examination by counsel. The teleconference was effected on March 20, 1992.

The issue of public access to the hearings was decided following applications by the Vancouver Sun and the Toronto Star (on the Sun's behalf) on two occasions. The Vancouver Sun had previously been granted access to the hearing into the join claims of xxxxxxxxxxxxxx xxxxxxxxx and his uncle, which had commenced in Vancouver. The issue of a hearing open to the public with respect to the Toronto claims had not been addressed. However, the Vancouver Sun successfully requested a copy of xxxxxxxxxxxxx xxxxxxxxx's PIF from the Registrar at Toronto II, which was forwarded on the basis that the Vancouver order granting public access to the hearing into his claim was still in force. Following counsel's objections to this process, the panel agreed to hear arguments on public access to the hearing. In this respect, the panel ruled that the issue of public access is a procedural matter which may be re-visited pursuant to CRDD Rule 6. Both the Vancouver Sun and the Toronto Star were advised that the question of public access would be dealt with at the March 11, 1992 sitting. However, neither newspaper attended to make arguments and Mr. xxxxxxxxxxxxxx xxxxxxxxx alone testified. He asserted that he and his family had personally experience threats from members of the Somali community while he was serving as a middle level diplomat at the United Nation, while attending at the embassy in Washington after the fall of his xxxxxxxxxxx, and while living in Florida before he and his family came to Canada to make refugee claims. He further stated that he lives on the outskirts of Toronto in an apartment building which was chosen for its formidable security. He noted that the family does not mix with the Somali community here in Toronto out of fear and that relatives of other warlords, currently committing atrocities Somalia on the basis of clan or family affiliation, are resident here. After reviewing the relevant case law1[1]1, the panel concluded that the claimants had demonstrated, on balance of probabilities, that there was a serious possibility of harm to them should their hearing be open to the public.

This decision was communicated to the Vancouver Sun, which subsequently requested that the panel re-visit the issue at the hearing on July 13, 1992. On that date, Moira Farrow, a Vancouver Sun reporter, attended the sitting and made representations. She offered, on behalf of the Vancouver Sun, not to publish the address of the claimants or the names of minor children. As well, she noted that the demonstrations in Vancouver's (considerably smaller) somali community had not been violent. With respect to Ms. Farrow's undertakings, the panel notes that the CRDD does not have any jurisdiction to deal with violations of these undertakings and that, once the hearing is open to the public, any member of the public may attend the hearing or have access to the testimony and documentary evidence. [Access to Information Act, R. S. 1985, c. A.-1, section 19(2).] The panel decided that nothing had changed to alter our earlier decision.

With respect to procedural issues, counsel requested on March 11, 1992, that the panel make a finding with respect to both panel and institutional bias. Briefly, this motion was made in response to what counsel perceived as an adversarial approach by the RHOs who had been involved with these claims, earlier changes in "seized" panels, the scheduling of this panel to hear the claims, and the rumoured interference of an Assistant Deputy Chairman in Toronto in the decision-making process of the CRDD. The remedies sought were removal of this panel, a change of venue to the CRDD office at One Front Street West in Toronto, and removal of the RHO. The panel after argument and reference to case law [Sethi v. M. E. I., [1988] 2 F. C. 552 (C.A.), Eton Construction Co. v. Ontario (1991), 6 O. R. (3d) 42 (Ont. Ct. Gen. Div.)] denied the motion on the basis that the motion was without merit.

The panel, after referring to Exhibit R-3 (the deposition of Dr. xxxxxxxx) and other documentary evidence submitted, concluded that family members of the former president Mohamed Siad Barre would face a serious possibility of persecution for reasons of their political opinion and membership in a particular social group (family) in areas of Somalia not controlled by their respective clans. However, there were three issues that remained to be addressed.

The first issue was the possible exclusion of the claimants from the Convention refuge definition because of their relationship to the former president of Somalia and their position as government officials. In this respect, the Minister of Immigration, although contacted by the RHO, chose not to be represented the hearing.

The second issue to be decided was the question of the nationality of xxxxxxxxxxxx, who was born in the United States.

Lastly, the issue of a suitable IFA for the claimants needed further exploration. xxxxxxxxxxxxxx xxxxxxxxx is a member of the Marehan clan, as are his children, while the remaining claimants are Majerten. At the time of Dr. xxxxxxx's deposition (January 3, 1992), the Majerten clan controlled their traditional homeland in northeastern Somalia, while the Marehan controlled the areas of Gedo and Abduwak in southern Somalia, near the Kenyan border. Dr. xxxxxxx raised the possibility of the IFA with respect to xxxxxxxxxxxxxxx xxxxxxxxx and his family, while not commenting in his deposition on the Majerten IFA, presumably because he was unaware of the clan of Mr. xxxx's family members.

With respect to possible exclusion, there was no evidence adduced throughout the proceedings that there were serious reasons to consider that the claimants had committed any crimes which could result in exclusion pursuant to section F of Article 1 of the Convention relating to the Status of Refugees, as set out in the Schedule to the Immigration Act [as enacted by R. S. C. 1985 (4th Supp.), c. 28, s. 34], in contrast to evidence adduced at the hearing of xxxxxxxxxxxxxxxx (largely the subject of Professor xxxxxxx's deposition), who was found by the Refugee Division panel in Vancouver to have committed crimes against humanity in his capacity as the commander of the notorious xxxxxxxxxx prison [CRDD V91-01359, May 14, 1992].

The panel notes that according to Dr. xxxxxxx, Mohamed Siad Barre's rule was not marred by widespread abuse of power until approximately three years before he was deposed and that, for much of his rule, he was considered by many Somalis in African context, to be a respected leader. This history coupled with the Somali emphasis on family or clan loyalty, leads the panel to conclude that inherited privilege or government service and continuing loyalty to a regime, in the absence of any evidence of complicity in excludable crimes, cannot be sufficient grounds to invoke the exclusion clause.

With respect to the second issue, xxxxxxxxxxxx was born to the family while they no longer had diplomatic status in the United States (which would have excluded him from United States citizenship) and he possesses both a United States passport, legally obtained, as well a social security card. Therefore, the panel concludes that xxxxxxxxxxxx, the infant child, is a citizen of United States. As he is not advancing a claim with respect to that country, the panel concludes that he is not a Convention refugee [A. G. Canada v. Ward, (1990) 2 F. C. 667 (C. A.)].

With respect to the IFA, Dr. xxxxxxx testified that, in Marehan controlled areas, the Majerten male protector, in this case xxxxxxxxxxxxxx xxxxxxxxx, in order to be safe. Additionally, there was dispute concerning the viability of Gedo or Abduwak as a practical IFA.

Similarly, in Majerten controlled areas, a Marehan would be at serious risk of harm because of the absence of male Majerten protector. As well, it appears that northeast Somalia lacks the stability necessary to be considered as a practical IFA, especially for this particular family, given its (the family's) Marehan and Majerten mix.

The panel was seriously considering Gedo as a suitable IFA for Mr. xxx, both because of his continuing loyalty to his xxxxxxxxxxx who was resident there, and the relative stability of the area based on the Marehan military strength. However, after the April 7, 1992 sitting, but before the decisions were rendered, counsel requested a reconvening based on newspaper reports that Mohamed Siad Barre and the Marehan had been driven from Gedo and Abduwak and that he and his clansmen were now seeking refuge in kenya. This new information [Exhibits C-17 and C-18] tendered at the reconvened hearing leads the panel to conclude that the IFA with respect to all the claimants is not viable.

Therefore, the panel determines that xxxxxxxxxxxxxx, xxxxxxxxxxxxxxxxxx, xxxxxxxxxxxxxxxxxx, xxxxxxxxxxxxxxx, and xxxxxxxxxxxxxx are Convention refugees on the basis of their political opinions, both real and perceived, and membership in a particular social group. As noted earlier, the panel finds that the minor child, xxxxxxxxxxxx is not a Convention refugee on the basis of his citizenship as an American.

DATED at Toronto, this 19th day of March, 1993.

"Brian Riddell"

Concurred in by: "Aideen Nicholson"

REASONS FOR DECISION

These are the reasons for the positive decision with respect to the claims of xxxxxxxxxxxxxxxxxxxxxxxx, his wife, xxxxxxxxxxxxxxxxxx, her brother xxxxxxxxxxxxxxx and sister xxxxxxxxxxxxxx, and her (xxxxxx's) cousin xxxxxxxxxxxxxxxxxx to be Convention refugees [as enacted by R. S. C. 1985 (4th Supp.), c. 28, s. 1] as defined in section 2 (1) the Immigration Act. The xxxx' American-born son xxxxxxxxxxxx, whose designated representative at this hearing was his mother, is not a Convention refugee. Another of their minor children is a Canadian citizen and did not make a claIm. All of the claimants, with the exception of xxxxxxxxxxxx, are citizens of the Somali Democratic Republic (Somalia).

The hearing into these claims required a number of sittings which were held January 31, March 11, 20, and 23, and April 7, 1992, at 70 University Avenue, Toronto. As well, the panel reconvened the hearing on July 13, 1992, at the request of counsel, to hear new evidence with respect to the feasibility of an internal flight alternative (IFA) [Rasaratnam, Sivaganthan v. M. E. I. (F. C. A., no. A-23-2-91) Mahoney, Stone, Linden, December 5, 1991]. These six sittings were preceded by two pre-hearing conferences on December 17, and 30, 1991, which were held to deal with both procedural matters and the issues raised by the claims.

Xxxxxxxxxxxxxxx and xxxxxxxxxxxxxx were represented by David P. Yerzy, Barrister and Solicitor. All other claimants were represented by Michael A. Romoff, Barrister and Solicitor. John Kivlichan, who served as the Refugee Hearing Officer (RHO) was assisted by Joel Rubinoff, Senior Refugee Hearing Officer. Interpreters proficient in the Somali and English languages were present throughout the proceedings.

All claimants, with the exception of xxxxxxxxxxxx, the infant child, and xxxxxxxxxxxxxxxxxx, testified. Dr. xxxxxxx, testified with respect to his deposition [Exhibit R-3] via telephone. An additional witness was xxxxxxxxxxxxxx xxxxxxxxxxxx, the former acting xxxxxxxx of Hargeisa, who has been accepted as a Convention refugee in Canada.

At the pre-hearing conferences much of the discussion centred around the disclosure of information regarding the misrepresentation of certain of the claimant's true identities including their relationship to both the government and family of Mohamed Siad Barre, the deposed president of Somalia. The identity information, consisting of various personal documents had been intercepted by Canadian Immigration officials and passed on to the Immigration and Refugee Board (IRB). (In later testimony by xxxxxxxxxxxxxx, these material omissions were attributed to her fear of physical harm to the claimants at the hands of disaffected Somalis resident here, should the truth be known). The panel notes that xxxxxxxxxxxxxxxxxxxxxxx had truthfully disclosed his identity in Vancouver where he first made a claim to Convention refugee status and where proceedings heard jointly with his uncle, xxxxxxxxxxxxxxx, had begun.

The panel, after argument on the record, decided in the interest of fairness to require the RHO to disclose all information in his possession concerning the claimants to the claimants' counsels. As a result, after disclosure, new Personal Information Forms [Exhibits C-11 - C-15 inclusive] (PIF) were submitted for the claimants. The decision with respect to disclosure was influenced by the Supreme Court of Canada [R. v. Stinchombe (S. C. C., no. 21904), November 7, 1991]) that disclosure of all relevant information, subject to certain conditions outlined by that court, must be made. In non-adversarial hearings, which constitute the majority of Refugee Division proceedings, disclosure ought to be made as soon as practicable.

As noted earlier, the hearing into the claim of xxxxxxxxxx xxxxxxxxxxxxx had begun in Vancouver. However, he had not yet testified and his relationship xxxxxxxxxxxxxxxxxxx to Mohamed Siad Barre, former President of the Somali Democratic Republic from 1969 until 1991, formed the basis for the fear of persecution expressed by the remainder of the claimants. This, as well as the fact that Mr. xxx was residing in Toronto with his family, led the panel to conclude that, on balance of convenience, it would be more appropriate to hear his claim in Toronto. As a result, pursuant to section 16 (2) of the Convention Refugee Determination Division Rules, his claim was severed from the claim of his uncle in Vancouver and formally transferred to Toronto under CRDD rule 11.

Another issue that was raised by counsel, after the panel's decision to accept as evidence filed by the RHO, the deposition by Dr. xxxxxxx (later qualified as an expert witness [Exhibit R-3, attachments]), was a motion to subpoena Dr. xxxxxxx for cross-examination. The thrust of Dr. xxxxxxx's deposition concerned the alleged activities of xxxxxxxxxxxxxxxx, but the deposition did mention xxxxxxxxxxxxxx xxxxxxxxx peripherally and did assert that the IFA applied to areas of Somalia held, at that time, by his xxxxxxx, Mohamed Siad Barre was viable. Although the panel was favourably disposed, in the interest of fairness, to allow such a cross-examination with respect to the IFA, we concluded that a subpoena, pursuant to CRDD Rule 24, would have no legal effect in the United States where Dr. xxxxxxx resides. However, the panel instructed the RHO to arrange for a teleconference with Dr. xxxxxxx to allow for cross-examination by counsel. The teleconference was affected on March 20, 1992.

The issue of public access to the hearings was decided following applications by the Vancouver Sun and the Toronto Star (on the Sun's behalf) on two occasions. The Vancouver Sun had previously been granted access to the hearing into the joint claims of xxxxxxxxxxxxxx xxxxxxxxx and his uncle, which had commenced in Vancouver. The issue of a hearing open to the public with respect to the Toronto claims had not been addressed. However, the Vancouver Sun successfully requested a copy of xxxxxxxxxxxxxx xxxxxxxxx's PIF from the Registrar at Toronto II, which was forwarded on the basis that the Vancouver order granting public access to the hearing into his claim was still in force. Following counsel's objections to this process, the panel agreed to hear arguments on public access to the hearing. In this respect, the panel ruled that the issue of public access is a procedural matter which may be re-visited pursuant to CRDD Rule 6. Both the Vancouver Sun and the Toronto Star were advised that the question of public access would be dealt with at the March 11, 1992 sitting. However, neither newspaper attended to make arguments and Mr. xxxxxxxxxxxxxx xxxxxxxxx alone testified. He asserted that he and his family had personally experienced threats from members of the Somali community while he was serving as a middle level diplomat at the United Nations, while attending at the embassy in Washington after the fall of his xxxxxxxxxxx and while living in Florida before he and his family came to Canada to make refugee claims. He further stated that he lives on the outskirts of Toronto in an apartment building which was chosen for its formidable security. He noted that the family does not mix with the Somali community here in Toronto out of fear and that relatives of other warlords, currently committing atrocities Somalia on the basis of clan or family affiliation, are resident here. After reviewing the relevant case law1, the panel concluded that the claimants had demonstrated, on balance of probabilities, that there was a serious possibility of harm to them should their hearing be open to the public.

This decision was communicated to the Vancouver Sun, which subsequently requested that the panel re-visit the issue at the hearing on July 13, 1992. On that date, Moira Farrow, a Vancouver Sun reporter, attended the sitting and made representations. She offered, on behalf of the Vancouver Sun not to publish the address of the claimants or the names of minor children. As well, she noted that the demonstrations in Vancouver's (considerably smaller) Somali community had not been violent. With respect to Ms. Farrow's undertakings, the panel notes that the CRDD does not have any jurisdiction to deal with violations of these undertakings and that, once the hearing is open to the public, any member of the public may attend the hearing or have access to the testimony and documentary evidence. [Access to Information Act, R. S. 1985, c. A.-1, section 19(2).] The panel decided that nothing had changed to alter our earlier decision.

With respect to procedural issues, counsel requested on March 11, 1992, that the panel make a finding with respect to both panel and institutional bias. Briefly, this motion was made in response to what counsel perceived as an adversarial approach by the RHOs who had been involved with these claims, earlier changes in "seized" panels, the scheduling of this panel to hear the claims, and the rumoured interference of an Assistant Deputy Chairman in Toronto in the decision-making process of the CRDD. The remedies sought were removal of this panel, a change of venue to the CRDD office at One Front Street West in Toronto, and removal of the RHO. The panel after argument and reference to case law [Sethi v. M. E. I., [1988] 2 F. C. 552 (C. A.), Eton Construction Co. v. Ontario (1991), 6 O. R. (3d) 42 (Ont. Ct, Gen. Div)] denied the motion on the basis that he motion was without merit.

The panel, after referring to Exhibit R-3 (the deposition of Dr. xxxxxxx) and other documentary evidence submitted, concluded that family members of the former president Mohamed Siad Barre would face a serious possibility of persecution for reasons of their political opinion and membership in a particular social group (family) in areas of Somalia not controlled by their respective clans. However, there were three issues that remained to be addressed.

The first issue was the possible exclusion of the claimants from the Convention refugee definition because of their relationship to the former president of Somalia and their position as government officials. In this respect, the Minister of Immigration, although contacted by the RHO, chose not to be represented the hearing.

The second issue to be decided was the question of the nationality of xxxxxxxxxxxx, who was born in the United States.

Lastly, the issue of a suitable IFA for the claimants needed further exploration. xxxxxxxxxxxxxx xxxxxxxxx is a member of the Marehan clan, as are his children, while the remaining claimants are Majerten. At the time of Dr. xxxxxxx's deposition (January 3, 1992), the Majerten clan controlled their traditional homeland in northeastern Somalia, while the Marehan controlled the areas of Gedo and Abduwak in southern Somalia, near the Kenyan border. Dr. xxxxxxx raised the possibility of the IFA with respect to xxxxxxxxxxxxxx xxxxxxxxx and his family, while not commenting in his deposition on the Majerten IFA, presumably because he was unaware of the clan of Mr. xxxx's family members.

With respect to possible exclusion, there was no evidence adduced throughout the proceedings that there were serious reasons to consider that the claimants had committed any crimes which could result in exclusion pursuant to section F of Article 1 of the Convention relating to the Status of Refugees, as set out in the Schedule to the Immigration Act [as enacted by R. S. C. 1985 (4th Supp.), c. 28, s. 34], in contrast to evidence adduced at the hearing of xxxxxxxxxxxxxxxx (largely the subject of Professor xxxxxxx's deposition), who was found by the Refugee division panel in Vancouver to have committed crimes against humanity in his capacity as the commander of the notorious xxxxxxxxxx prison (CRDD V91-01359, May 14, 1992].

The panel notes that according to Dr. xxxxxxx, Mohamed Siad Barre's rule was not marred by widespread abuse of power until approximately tree years before he was deposed and that, for much of his rule, he was considered by many Somalis in African context, to be a respected leader. This history coupled with the Somali emphasis on family or clan loyalty, leads the panel to conclude that inherited privilege or government service and continuing loyalty to a regime, in the absence of any evidence of complicity in excludable crimes, cannot be sufficient grounds to invoke the exclusion clause.

With respect to the second issue, xxxxxxxxxxxx was born to the family while they no longer had diplomatic status in the United States (which would have excluded him from United States citizenship) and he possesses both a United States passport, legally obtained, as well a social security card. Therefore, the panel concludes that xxxxxxxxxxxx, the infant child, is a citizen of United States. As he is not advancing a claim with respect to that country, the panel concludes that he is not a convention refugee [A. G. Canada v. Ward, (1990) 2 F. C. 667 (C. A.)].

With respect to the IFA, Dr. xxxxxxx testified that, in Marehan controlled areas, the Majerten claimants would have to be within hailing distance of a Marehan male protector, in this case xxxxxxxxxxxxxx xxxxxxxxx, in order to be safe.

Additionally, there was dispute concerning the viability of Gedo or Abduwak as a practical IFA.

Similarly, in Majerten controlled areas, a Marehan would be at serious risk of harm because of the absence of a male Majerten protector. As well, it appears that northeast Somalia lacks the stability necessary to be considered as a practical IFA, especially for this particular family, given its (the family's) Marehan and Majerten mix.

The panel was seriously considering Gedo as a suitable IFA for Mr. xxx, both because of his continuing loyalty to his xxxxxxxxxxx who was resident there, and the relative stability of the area based on the Marehan military strength. However, after the April 7, 1992 sitting, but before the decisions were rendered, counsel requested a reconvening based on newspaper reports that Mohamed Siad Barre and the Marehan had been driven from Gedo and Abduwak and that he and his clansmen were now seeking refuge in Kenya. This new information [Exhibits C-17 and C-18] tendered at the reconvened hearing leads the panel to conclude that the IFA with respect to all the claimants is not viable.

Therefore, the panel determines that xxxxxxxxxxxxxx, xxxxxxxxxxxxxxxxxx, xxxxxxxxxxxxxxxxxx, xxxxxxxxxxxxxxx, and xxxxxxxxxxxxxx are Convention refugees on the basis of their political opinions, both real and perceived, and membership in a particular social group. As noted earlier, the panel finds that the minor child, xxxxxxxxxxxx is not a Convention refugee on the basis of his citizenship as an American.

DATED at Toronto, this 19th day of March, 1993.

"Brian Riddell"

Concurred in by: "Aideen Micholson"



[1] Pacific Press Ltd. v. M .E. I., (1991) 2 F. C. 327 (C.A.); Blackwood v. M. E. I. (1991), 13 Imm. L. R. (2d) 246 (F. C. T. D); Armdale Communications Ltd. v. M. E. I. (1991), 14 Imm. L. R. (2d) 13 (F. C. A.)  

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