Khadra Hassan Farah, Mahad Dahir Buraleh, Hodan Dahir Buraleh

The claimants, Khadra Hassan Parah, 30, Hodan Dahir Buraleh, 10, and Mahad Dahir Buraleh, 7, are citizens of Somalia who arrived in Canada on October 29, 1993. They claim to have a well-founded fear of persecution on the grounds of membership in a particular social group, i.e. "women", in the case of the two female claimants and "minor", in the case of the male claimant.

The Refugee Division hearing into this case was held on May 10, 1994 pursuant to section 69.1 of the Immigration Act^[1]. The claimants were represented by Andrew M. Refuse, a Barrister and Solicitor, and they had the services of an English-Somali interpreter. The panel was assisted by Evelyn Nourse, a Refugee Hearing Officer (RHO). The three claims were heard jointly and Ms. Parah was the designated representative for her children, the two minor claimants.

The issue before us is to determine whether the claimants are Convention refugees as defined in section 2(1) of the Immigration Act^[2]. The definition reads in part:

"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...

The evidence adduced at the hearing consisted of Ms. Parah's oral testimony and documents submitted by her counsel and the RHO. In the reasons for the decisions that follow, Ms. Parah will be referred to as "the claimant" and only evidence relevant to the decisions will be cited.

THE EVIDENCE

The claimant testified that her family is from the Isaaq tribe and lived in Burao, in northern Somalia, until 1980 when they moved to Saudi Arabia where her parents still reside. When the claimant was sixteen years of age her father arranged her marriage to a man twenty years her senior. They lived in Saudi Arabia and had three children, currently aged 12, 10 and 7. The two younger children, Hodan and Mahad, are co-claimants in this matter and the eldest son, Yassin, lives in Somaliland with his father.

In 1989 the claimant, along with her husband and children, went to the United States as visitors and remained there until 1991. In March 1991, the claimant left her husband, Dahir Buraleh Ibrahim, and came to Canada to claim refugee status. Three of her siblings and two of her cousins had already been recognized as Convention refugees and reside in Toronto.

The claimant testified that her eleven-year marriage to Mr. Ibrahim was marked by conflict and acrimony. There were frequent arguments about her desire to be more independent. After three years of marriage she asked for a divorce but her parents were opposed to it and her husband began to verbally and physically abuse her. She testified that he drank excessively and repeatedly beat her and their daughter, Hodan, one of the co-claimants.

The claimant stated that she remained with her husband because she feared that he would carry out his oft-repeated threats of removing the children from her if she left him. He had taken their first-born out of the home in 1983, when he was a more one-year old. The claimant testified that this was an act of retribution against her after she asked for a divorce. More recently, in early 1992, he took this son from the home of the claimant's grandmother in Burao where he had been living for some time. He has since forbidden the boy any contact with his grandmother and the claimant has not heard from her son, now 12, since his abduction over two years ago.

The abduction coincided with a telephone conversation between the claimant and her husband who was then in Djibouti. They again argued about her independence and, when she refused to agree to move in with his cousins in Toronto, he went to Burao and took their son. Shortly afterwards, on June 6, 1992, he divorced the claimant.

The claimant testified that her former husband now lives in Somaliland and that he has ties to the Isaaq Somali National Movement (SNM). She stated that he is personally involved with many officials of the current government of Somaliland, including Ali Abdulla, the Police chief of Burao, to whom he is related. She stated that it would be impossible for her to escape the control of her former husband and his family if she returned to Somaliland today, especially because her own family, including her father and four brothers, no longer reside there.

The claimant testified that in Somalia fathers automatically gain custody of the children in the event of divorce. She fears that she would lose her two remaining children, the co-claimants, the way she lost her first-born. She stated that she would be destroyed if she could not see her children and that it would be better for her to be dead.

The claimant also emphasized that if she were to lose custody of her daughter, Hodan, she would be powerless to prevent the custom of female genital mutilation (FGM) widely practised in Somalia. She explained that she herself had been subjected to FGM when she was eight years old. She described the terror of the experience and the resulting health problems relating to menstruation, conception and childbirth once she reached adulthood.

In this connection, the claimant states in her Personal Information Form (PIF):

Should I be forced to go back to Somalia, my children will be taken away from me and my daughter will be subjected to the pain and agony that I had been subjected to.

During my stay in Canada, both my children had become acculturated to Canadian life. My daughter, Hodan, in particular enjoys the broad horizons of opportunity and freedom allowed to women in Canada. If she were to return to Somalia, she would be traumatized first by the infibulation and then by the severely restrictive role in which Somali women are placed by custom and by shariat, the Islamic law. (PIF Addendum, pages 4 and 5).

(Typed as per original with errors and/or omissions)

Finally, the claimant stated that if she were to lose custody of her son, Mahar, she would lose all contact with him as she has with her eldest son Yassin since his father abducted him in 1992. She emphasized that her former husband played virtually no role in the children's lives when they lived together as a family. She stated that he supported them financially but that the children were her exclusive responsibility. Her former husband took no part in their early training and discipline and since they came to Canada in 1991, the children never ask about their father. In short, the claimant is the only parent with whom they have had an ongoing bond.

ANALYSIS OF THE EVIDENCE

Based on the oral testimony and the documentary evidence before us, the panel has reached a positive decision for each of the claims in this case. We will set out our reasons separately for each claimant, beginning with the adult claimant.

ADULT CLAIMANT

The panel is of the view that the claimant's fear of losing custody of her two minor children under Sharia law in Somaliland today raises issues which are based on gender. Accordingly, we have followed the IRB Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution^[3].

Documentary evidence establishes that the independent state of Somaliland has adopted a "hardline Islamic stances" on women's rights opposed by the majority of educated women in the region^[4]. According to Zimzim Abdi, a women's rights advocate, "Somaliland means oppressed women. Men and women don't have equal rights."^[5] On the critical subject of divorce and child custody, Ms. Abdi states categorically that "If the husband divorces her she must give back the children..."^[6]. Other reports emphasize that "Women are harshly subordinated in Somali society. Somali culture is overwhelmingly restrictive and patriarchal."^[7] Because Somalia is a patrilineal society,"...children belong to the clan of their father and for this reason a divorced woman would not be given the custody of her children, either male or female."^[8]

In its "National Charter" the Republic of Somaliland incorporates international human rights instruments such as the Universal Declaration of Human rights (UDHR)^[9]. However, the Charter explicitly circumscribes human rights provisions by stating that "All the above stipulated liberties and privileges shall conform to the general norms and principles of ISLAMIC LAW."^[10] While this approach may not compromise human rights in principle, it may, in practice, lead to serious discrimination against women such as the claimant who automatically lose their custody rights on divorce under Sharia law.

The UDHR, Article 7, states:

All are equal before the law and are entitled without any discrimination to equal protection of the law.

Article 16 of the UDHR affirms:

1.         Men and women of full age, without any limitation due to race, nationality or religion, have the right to found a family. They are entitled to equal rights in marriage, during marriage and at its dissolution (our emphasis).

Moreover, the United Nations Convention on the Elimination of All Forms of Discrimination Against Women states, in Article 15:

1.         State Parties shall accord to women equality with man before the law.

Article 16 of the Convention affirms:

1.         State Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

c)         The same rights and responsibilities during marriage and at its dissolution (our emphasis);

d)         The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interest of the children shall be paramount;

The panel places considerable weight on the claimant's past experience regarding the loss of custody of her eldest son in 1992. In that instance her husband exercised his prerogative to unilaterally take the child and refuse the claimant any further contact with him. As well, we view seriously the fact that the claimant's husband had repeatedly beaten the claimant and threatened to take the children away from her. Having followed through with that threat once, there is no reason for us to believe that he would not do so again, especially when traditional custom and the law confer on him the absolute power to be the custodial parent.

The violation of the claimant's internationally protected rights as a parent are all the more serious because of the nature of her emotional bond to her children. She has been solely responsible for their upbringing since the separation from her husband over three years ago. Even when they lived together as a family, her testimony was that her husband had little if any involvement with the children and that he was physically violent with their daughter. The claimant would also be unable to prevent her daughter from being subjected to FGM if she loses custody of her. She is deeply opposed to the procedure based on her own experience as a young girl in Somalia. In our view, the psychological trauma which the claimant would suffer upon losing custody and access to her two remaining children would constitute "serious harm", in the Convention refugee sense. Having endured years of physical and emotional abuse in order to avoid losing her children, the claimant's statement that she would be "destroyed" if she lost her children now does not strike the panel as a mere figure of speech.

The panel is also mindful of the fact that if the claimant were to oppose her ex-husband's custody of the children she could face renewed threats and violence against her given her past experience when she failed to comply with his wishes. On the evidence before us, we are not satisfied that the claimant would be able to seek protection from her ex-husband in Somaliland. He is well connected to government officials and is related to the Police Chief in her home town of Burao. Moreover, none of her immediate family resides in Somaliland any more, except for an aging grandmother. Her father and four brothers all left Somalia years ago, a fact which would leave the claimant exposed and vulnerable in any custody dispute with her ex-husband and his family. According to documentary evidence, "...when a woman is divorced or widowed, her father, brother or next of kin takes the role of protector of the woman and her children, unless she remarries."^[11]

The recent Supreme Court decision in ward^[12] provides categories for defining "membership in a particular social group", the first of which is "groups defined by an innate of unchangeable characteristic" such as gender. The panel finds that the claimant fears persecution on account of her membership in a particular social group, namely, woman. As a divorced mother under the jurisdiction of Sharia law her rights as a parent and her right to personal security are not upheld as the international human rights instruments require. Accordingly, we find that Khadra Hassan Farah is a Convention refugee.

MINOR FEMALE CLAIMANT

The evidence establishes that this claimant's fear of persecution is related to the widespread practice of female genital mutilation (FGM) to which young girls in Somalia are subjected. In the panel's view this raises issues which are based on her gender and, accordingly, we will apply the Gender Guidelines in our analysis. Also at issue is claimant's status as a minor and we will, therefore, consider, the United Nation Convention on The Rights of the Child (Exhibit R-3).

Documentary evidence defines FMG as "…a traditional operation which involves the cutting away of part of the female genital organs and in some cases stitching the two aides of the vulva together."^[13] There are various forms of PGM practised in "at least 26 countries in Africa, in parts of Yemen, Indonesia, Malaysia, and among some groups in India, and in some Middle East countries."^[14] Practised in Somalia is infibulation the harshest form of FGM, which consists of "cutting off the whole of the clitoris, the whole of the labia minora and the adjacent parts of the labia majora and stitching the two sides of the vulva together, leaving a small opening for urination and menstruation."^[15]

Young girls subjected to FGM vary in age from infancy to adolescence and in Somalia "infibulation is practised on all females, almost without exception..."^[16]. Typically, the procedure is performed without the benefit of anaesthetic on "struggling children held down by force."^[17] The operators who perform PGM are often older women with no knowledge of anatomy^[18].

A deeply entrenched tradition, FGM is practised for a variety of reasons, including the fact that a girl is seen as unfit for marriage and her father is unable to collect the brideprice unless she has submitted to FGM to safeguard her virginity^[19]. Although neither Christianity nor Islam obliges women to be "circumcised", the majority of those who adhere to the practice believe that it is a moral or religious requirement^[20].

In order to assess the seriousness of the harm involved in FGM, the panel notes the typical consequences to a girl's physical and emotional health as outlined in documentary sources. Berhane "Ras-Work, President of the Inter-African Committee, lists under "immediate complications": haemorrhage; acute infections; bleeding of adjacent organs and violent pain. "Later complications" include chronic infections which can lead to infertility; obstetric haemorrhage during childbirth; psychological complications such as depression; psychiatric disturbances and AIDS^[21].

The experience of undergoing FGM as a young girl is graphically explained by the adult claimant who provided the following account in her Personal Information Form (PIF):

I was subjected to this operation when I was eight years old. One afternoon, a group of women, including my mother and aunts, gathered at our house so that they could circumcise me and my cousin who was of the same age. I was told that it is a common thing and that it would enhance my chances of getting married to a good man. They took me into an empty room and tying my arms behind my back. Two pairs of women grabbed my legs and spread them wide open. They hold my legs very tight so that I would not be able to move them. Then, another lady started to get a new blade and took the cover off of it. She was holding the blade in her hand when she disappeared between my legs. She inserted her fingers into my inside to search for my clitoris. She got a good grip of my clitoris and started to pull it out, and I felt the pain and started to scream. She cut off my clitoris with the blade and I screamed more and more. This did not deter her nor did it make her to stop cutting my body any further. She continued slicing away my labia minor at which point, I lost consciousness. Subsequently, she scraped raw the wall of my vulva and bound them together with thorns. She place a stick between the raw walls of my vulva so that I would have barely sufficient means to expel my bodily waste. I woke up in the middle of the night and realized that my legs were tied together to restrain me from any movement. I also saw my cousin lying next to me with her legs also tied together. We ware not not allowed to urinate for two days and we ware not given any liquids this drink. My legs were left tied together for ten days after tar which time I started to walk again with great difficulty and pain. Even though this event took place ever twenty years ago, I can still easily visualize the scene and feel the pair and trauma all over again when I start to talk about it.

(Typed as per original with errors and/or omissions)

The Gender Guidelines point to the use of the international human rights instruments to weigh the seriousness of the harm feared by the claimant. In our view, this minor Claimant's right to personal security would be grossly infringed if she were forced to undergo female genital mutilation in contravention of Article 3 of the Universal Declaration of Human Rights ("Everyone has the right to lift, liberty and the security of person").

Moreover, Article 37 of the United Nations Convention on the Rights of the Child explicitly protects children from acts of cruelty and torture:

States Parties shall censure that:

a) no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

Subjecting a young girl to FGM is seen as a "torturous custom" by women's rights advocates in Africa who are campaigning to eradicate the practice^[22].

Relevant in this connection is Article 19 of the Convention on the Rights of the Child which states:

1.         States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

Article 24 of the convention states:

1.         States Parties recognize the right of the child to the enjoyment of the highest attainable standards of health and to facilities for the treatment of illnesses and rehabilitation of health. The States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

3.         States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children (our emphasis).

The panel is satisfied that the authorities in Somalia will not protect the minor female claimant from the physical and emotional ravages of FGM given the evidence of its widespread practice in that country. There are reports of ongoing initiatives in African countries aimed at curtailing harmful traditional practices, however, "In spite of the urgency and the magnitude of this problem, very little action has so far been taken by government in the countries concerned to stop FGM. This problem affects to a great extent grass roots level women and their children, thus it fails to attract the attention of policy and decision makers.^[23] The panel notes that FGM was outlawed in Somalia in 1947 but, in spite of this fact, estimates are that 98 per cent of Somali women have undergone the procedure^[24].

Following the recent Supreme Court decision in Ward, the panel finds that the minor female claimant is a member of two particular social groups, namely, women and minors. Her gender is clearly an "innate or unchangeable characteristic", and the fact that she is below the age of majority is also, for the foreseeable future, something she cannot change. It is by reason of the fact that she is a female and a minor that the claimant fears persecution in the form of female genital mutilation in Somalia today. Accordingly, we find that Hodan Dahir Buraleh is a Convention refugee.

MINOR MALE CLAIMANT

The evidence establishes that this claimant's tear of persecution is related to being forcibly removed from the care and nurture of his mother. The panel accepts the fact that the claimant's father would exercise his prerogative under Sharia law to take custody of his son and deny him access to his mother, the only custodial parent with whom he has formed an enduring bond.

Moreover, we view seriously the fact that the minor claimant witnessed his father's violence in the home before his parents separated in 1991. According to his mother's testimony, the minor claimant worried about her safety and well-being. Whenever he saw that she was tired or unwell he would ask her if she had been beaten by his father. The panel notes that this claimant is only seven years of age at present which means his exposure to family violence began at a very tender age indeed.

In assessing the merits of this claim the panel is guided by the principles, articulated in the United Nations Convention on the Rights of the Child. The overriding consideration in international human rights law is the "best interest of the child" over and above any other competing interests.

Article 3 of the Convention on the Rights of the Child states:

1.         In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration (our emphasis).

In Article 9 of the Convention we find the following provisions:

1.         States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interacts of the child (our emphasis).

3.         State Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests (our emphasis).

Finally, Article 12 states:

1.         States Parties shall assure to the child who is capable of forming hip or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2.         For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rains of national law.

Based on the evidence before us, the panel is not satisfied that the best interests of this minor claimant would be considered at all in Somalia because his father's right to custody is automatic. There is no evidence to suggest that the claimant's own wishes would be taken into account; that he would be permitted to maintain contact with his mother; or that his father's violent behaviour would be a factor in the decision. Thus, the minor claimant would not have the benefit of his internationally, protected human rights in any decision regarding which parent is to have custody of him. It is worth noting that this analysis also applies to his sister, the other minor claimant, who would find herself in the same position were her father to claim custody of her under Sharia law in Somaliland today.

Following Ward, the panel finds that the minor male claimant is a member of a particular social group, namely, minors, based on the "innate or unchangeable characteristic" of being under the age of majority for the foreseeable future. His fear of persecution in Somalia is by reason of his membership in that particular social group. Accordingly, we find that Mahad Dahir Buraleh is a Convention refugee.

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^[1] as enacted by S.C. 1992, c.49, s.50

^[2] as enacted by R.S.C. 1985 (4th Supp.). c.28, s. 1

^[3] Issued pursuant to section 65(3) of the lmmigration Act, Immigration and Refugee Board, Ottawa, March 9, 1993.

^[4] "Somaliland. Women Fighting for Their Rights", Inter Press Service, March 26, 1992 (Exhibit C-1)

^[5] Ibid.

^[6] Ibid.

^[7] Country Reports on Human Rights Practices for 1993. United States Department of State, February 1993. p. 263, (Exhibit R-2)

^[8] Response to Information Request, Number: SOM 17433. E, 18 May 1994, The Documentation, Information and Research Branch, Immigration and Refugee Board, Ottawa, Canada

^[9] "The National Chapter", Republic of Somaliland General Meeting of the Elders of Somaliland, May 19, 1991, p.5 (Exhibit C-1)

^[10] Ibid.

^[11] "Women in Somalia", Human Rights briefs Series, Documentation, Information and Research Branch, Immigration and Refugee Board, Ottawa, Canada, April 1994, p.4

^[12] Canada Attorney General v, Ward, [1993] 2 S.C.R. 689

^[13] "Female Genital Mutilation", paper presented by Berhane Ran-Work, President of the Inter-African Committee at the Conference on Gender Issues and Refugees: Development Implications, York University, May 9-11, 1993 (Exhibit C. 1), p. 1

^[14] Ibid.

^[15] Ibid.

^[16] "The Hosken Report: Genital and Sexual Mutilation Females", by Fran P. Hosken, Women's International Network News, 1982, p.32

^[17] Ibid., p. 26

^[18] Ibid.

^[19] Ibid., p. 28

^[20] Supra, footnote 13, p. 4

^[21] Ibid., p. 2

^[22] Ibid., p. 1, 5

^[23] Ibid., p. 5

^[24] Supra, footnote 11, p. 14