Date: 20051003

Docket: IMM-2216-05

Citation: 2005 FC 1342

Ottawa, Ontario, October 3, 2005

PRESENT: THE HONOURABLE MR. JUSTICE BLAIS

BETWEEN:

VALERY KOMENAN

Applicant

and

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated February 23, 2005, that Valery Komenan (the applicant) is not a Convention Refugee or a person in need of protection within the meaning of sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).

RELEVANT FACTS

[2]                The applicant is Christian, a citizen of the Ivory Coast. He alleges that he was kidnapped by Muslim rebels in September 2002. Those rebels allegedly beat and hurt him, threatening to kill him if he failed to do as they asked. The applicant and three of his friends managed to escape by hiding in the brush for five days.

[3]                The High Commission for Refugees had transferred the applicant to Abidjan in December 2002, where he reregistered for school. In the six months that followed, he allegedly travelled to Senegal, to Mali, to Cameroon and to Benin, to participate in interafrican athletic competitions.

[4]                The applicant arrived in Canada on July 9, 2003, in order to participate in the 110-metre hurdles. On July 21, 2003, before the end of the games, he asked for protection in Canada, fearing that he would be killed by the rebels and the "Death Squads", a government group.

ISSUE

[5]                Did the panel err in stating that the applicant had not established that there was a well-founded fear of persecution if he were to return to the Ivory Coast?

ANALYSIS

[6]                The applicant is attempting essentially to challenge the panel's findings of fact to the effect that there was an internal flight alternative in the Ivory Coast. In such a case, the appropriate standard of review is that of patent unreasonableness (Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.); Kumar v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 731; Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741; Mohammed v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1217)

[7]                The applicant alleges that he fears persecution by the Muslim rebels as well as by the government authorities. I shall begin my analysis with the first of the two groups.

[8]                The applicant alleges that he was persecuted by Muslim rebels in September 2002. Yet, since his escape from that group in November 2002, he never crossed their path again. Even the applicant admitted in his personal information form that when he returned to Abidjan in May 2003 (after going to Benin for athletic games), all was well and he was heartened.

[9]                In a document entitled UNHCR Position on the Return of Rejected Asylum Seekers to Cote d'Ivoire, referred to by the panel, we read the following:

5. In their plans, the rebels who were mostly concentrated in the center and the northern part of the country, intended to march towards Abidjan. However, with the rapid deployment of the French forces stationed in the country pursuant to a defense agreement signed with Côte d'Ivoire in 1963, the rebels' advancement towards Abidjan was halted.

(See page 131 of the tribunal record - UNHCR Position on the Return of Rejected Asylum Seekers to Cote d'Ivoire.)

[10]            A little further on in that same document, it is stated:

21. As regards individuals originating from Abidjan, where a relative level of security has been established, such persons may be returned there, provided that family members have been identified, to avoid creating a situation of internal displacement.

(See page 131 of the tribunal record - UNHCR Position on the Return of Rejected Asylum Seekers to Cote d'Ivoire.)

[11]            The applicant testified that he had two sisters and two brothers who still lived in Abidjan. Therefore, given the fact that the applicant had family in Abidjan and that the documentary evidence indicated that the Muslim rebels did not pose a threat to the applicant in Abidjan, it was not patently unreasonable for the panel to determine that Abidjan was for him a refuge.

[12]            I shall now address whether the panel erred in terms of the applicant's fear of the government forces, specifically the "Death Squads".

[13]            The panel determined that there was no risk to the applicant in view of the fact that the applicant was Christian and had never been involved in politics. Further, the applicant went to the Ivory Coast to participate in athletic games and was able to leave the country many times without any problem from the government. Further, the applicant always returned to Abidjan of his own volition.

[14]            Confronted with that evidence, it is not unreasonable to find that, first, the fact that the applicant would still return to Abidjan of his own volition would indicate that he did not have a true subjective fear of persecution. Of his own admission, he left the Ivory Coast, on several occasions, in order to visit Senegal, Mali, Cameroon and Benin.

[15]            Second, it was perfectly reasonable to find that the government did not consider the applicant as an opponent to the regime or as a partisan of the rebels, the groups that the "Death Squads" opposed:

During the year, security forces remained on heightened alert for potential rebel infiltrators or active sympathizers, erected numerous roadblocks, and searched Abidjan neighborhoods, frequently during nightly curfew. Individuals associated with opposition parties or rebellion leaders or believed to be sympathizers were subjected to increased harassment and abuse (see Sections 1.d. and 1.g.).

. . .

There were numerous reports of pro-government death squads operating in Abidjan during the first half of the year. Credible sources described "hit lists" of suspected rebels and rebel sympathizers circulated within secretive, loyalist security forces in Abidjan and other areas under government control (see Section 1.g.).

. . .

In May, Acting Minister of Security Zemogo Fofana ordered the secret service to investigate the death squads. While no results of the investigation were released, reports of death squad activity diminished greatly following Fofana's announcement.

(See page 131 of the tribunal record - U.S. Department of State Country Report on Human Rights Practices, 2003 Cote d'Ivoire.)

[16]            Not only did the government let the applicant leave the country without any problems, but it also paid his way to Canada to participate in a competition in Sherbrooke.

[17]            The questions of weighing and assessing the evidence clearly fall within the panel's jurisdiction. The applicant is asking this Court to do something that it cannot do in the context of an application for judicial review, namely to weigh and reassess the evidence that was before the panel:

After a careful review of the evidence and of the Refugee Division's decision, I am in no way able to conclude, as the appellant wishes me to do, that certain findings of fact made by the Refugee Division were perverse, capricious or without regard to the evidence. I entirely concur in the Judge's opinion that the evidence could reasonably serve as a basis for the Refugee Division's findings of fact. What the appellant is actually asking this Court to do is what we cannot do on an application for judicial review, that is, to reassess the evidence that was before the Refugee Division. [Emphasis added.]

(Zrig v. Canada (Minister of Citizenship and Immigration, 2003 FCA 178, [2003] F.C.J.. No. 565 at paragraph 42)

[18]            Considering all of the evidence, it was not patently unreasonable for the panel to determine that the applicant was not at risk of being a victim of repression by the Muslim, or by the government authorities, the security forces or the "Death Squads". Accordingly, the Court's intervention is not warranted.

ORDER

THE COURT ORDERS THAT:

1.       The application for judicial review be dismissed;

2.       There are no questions for certification.

"Pierre Blais"

Certified true translation

Kelley A. Harvey, BCL, LLB

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                           IMM-2216-05

STYLE OF CAUSE:                           VALERY KOMENAN v. MCI

PLACE OF HEARING:                     Montréal, Quebec

DATE OF HEARING:                       September 21, 2005

REASONS FOR ORDER AND ORDER:                           BLAIS J.

DATE:                                                 October 3, 2005

APPEARANCES:

Eveline Fiset

FOR THE APPLICANT

Marie-Nicole Moreau

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Eveline Fiset                                                                  FOR THE APPLICANT

Montréal, Quebec

John H. Sims, Q.C.                                                       FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec