Elmi v. Canada ( Minister of Citizenship and Immigration )
IMM-580-98
McKeown J.
12/3/99
9 pp.
Judicial review of CRDD determination applicant not Convention refugee-Applicant 16 at time of hearing-Left Somalia at age 10-CRDD finding internal flight alternative (IFA) test met-Application allowed-(1) Test to determine whether IFA exists set out in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.): (1) must be no serious possibility of persecution of applicant in proposed IFA; (2) must not be unreasonable for applicant to seek refuge in proposed IFA in all of circumstances-Agreed no serious possibility of persecution in proposed IFA-Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) stating IFA test flexible, taking into account claimant's particular situation, particular country involved-Applicant herein raising consideration not directly addressed by Thirunavukkarasu: whether necessary to consider that claimant child in deciding if IFA would be reasonable-Respondent submitting that in light of Thirunavukkarasu, CRDD not required to consider absence of friends, family, concerns regarding livelihood-Important to note these considerations only deemed irrelevant by Court of Appeal in context of adult claimants-Thirunavukkarasu also requiring question of "undue hardship" be approached having regard to particular claimant's circumstances-What is merely inconvenient for adult might constitute "undue hardship" for child-In case of child whose education already disrupted by war, and who would arrive in Bossaso (IFA) without any money, question arising not simply of "suitable employment", but of livelihood at all-Hardship suffered by child sent to unfamiliar place, without support of adult, prospect of livelihood commensurate with physical barriers to reaching IFA cited in Thirunavukkarasu-CRDD made no finding on these issues-Must do so to answer question posed by second part of IFA test-In failing to assess reasonableness of IFA from standpoint of particular applicant, CRDD committed error of law-(2) Baker v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 127 (C.A.) holding Convention on the Rights of the Child not implemented by Immigration Act-If Convention rights used as yardstick, could create legitimate expectations for child refugee applicants which would generate result contrary to Baker-(3) CRDD not erring in relying on specialized knowledge when concluded, based on its experience "from hearing scores of Somali cases", clan which controls area functions as de facto government agent of protection in area-CRDD gave notice as required in Immigration Act, s. 68(5) by stating relying on its specialized knowledge that clan members traditionally look after one another-Question certified: whether legal test of reasonableness of IFA same for adults, children in so far as absence of family, friends, inability to support oneself in proposed IFA not relevant considerations, and if so, in assessing reasonableness of IFA for children, whether child's age having any bearing on test-Immigration Act, R.S.C., 1985, c. I-2, s. 68(5) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18)-Convention on the Rights of the Child, signed by Canada May 28, 1990, [1992] Can. T.S. No. 3.