Date: 20040629
Docket: IMM-5645-03
Citation: 2004 FC 935
BETWEEN:
ARMAND OTAADO SAWYER
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DAWSON J.
[1] Armand Otaado Sawyer is a citizen of Sierra Leone who claims a well-founded fear of persecution based on perceived political opinion and membership in the particular social group which is his family. He also claims to be a person in need of protection.
[2] The Refugee Protection Division of the Immigration and Refugee Board ("panel") dismissed his claims because it found there was insufficient credible and trustworthy evidence to establish that Mr. Sawyer was targeted in Sierra Leone by reason of his race, religion, nationality, political opinion, membership in a particular social group, or for any other reason. Alternatively, the panel found there was insufficient evidence to establish that Mr. Sawyer's fear of persecution is well-founded in Freetown, Sierra Leone or to establish a serious possibility that Mr. Sawyer is at risk to his life, or at risk of cruel and unusual treatment or punishment, or that there are substantial grounds to believe that Mr. Sawyer faces a danger of torture in Sierra Leone.
[3] With respect to its assessment of the credibility of Mr. Sawyer's evidence, the panel noted Mr. Sawyer's failure to claim refugee status in Ghana while in transit to Canada (he left Sierra Leone on September 3, 2001 for Ghana and left Ghana on September 6, 2001, arriving in Canada on September 7, 2001) and found that Mr. Sawyer's four month and ten day delay in claiming protection in Canada supported its decision on credibility. Central, however, to the credibility findings were what the panel characterized as "numerous discrepancies in the claimant's evidence which were central to his claim, that were not reasonably explained". The panel cited the following discrepancies in support of its finding:
i) The panel stated that when asked who he fears in Sierra Leone today, at times Mr. Sawyer clearly articulated that it was the Revolutionary United Front ("RUF"), and at other times claimed rebel groups, perhaps a different faction of the RUF, perhaps government troops, or rebels affiliated with the government, he was not sure. The panel drew a negative inference from this evidence stating that while it accepted that it was one thing not to know who targeted Mr. Sawyer in Sierra Leone in the past, "it is quite another to be sure it was the RUF one moment, and then be unclear the next".
ii) Mr. Sawyer testified that he believed that he told the immigration official present when he claimed refugee status that he had been beaten in Sierra Leone, however the officer told him it was not necessary at that time to repeat his whole claim. Mr. Sawyer also testified that while he had told the immigration official about a photograph which had linked him to the former army chief of staff, the officer made no note of that. The panel concluded that Mr. Sawyer's evidence was not reasonable as the panel did not accept that an immigration official would omit stating Mr. Sawyer was beaten and would not record his evidence about the photograph.
iii) Mr. Sawyer failed to mention to the immigration officer or in his Personal Information Form ("PIF") that after Mr. Sawyer left Sierra Leone his father was shot by rebels. The panel did not accept Mr. Sawyer's explanation that he overlooked this event.
iv) Mr. Sawyer was unable to articulate the reasons for his father's death in an understandable manner. The panel drew an adverse inference from this based upon Mr. Sawyer's qualifications as a nurse.
[4] With respect to the first asserted discrepancy relating to any confusion about who the agents of persecution were, Mr. Sawyer's evidence was that his persecutors told him that they were from the RUF. His testimony was clear and unchanging with respect to the physical description of his attackers. He said that some had on military attire and some had guns. He also testified that the rebels and government officials all wore SLA uniforms so that he would not be able to identify rebels and government soldiers. On the basis of a careful reading of the transcript, I am satisfied that the panel mis-characterized Mr. Sawyer's evidence when it stated that he was sure that he was targeted by the RUF one moment and then unsure the next. It was patently unreasonable for the panel to draw a negative inference based on its mis-characterization of Mr. Sawyer's evidence.
[5] As to any omissions in the notes taken by the immigration officer when Mr. Sawyer claimed refugee status, Mr. Sawyer testified that he told the immigration officer that he was identified by rebels on the basis of a photograph and he testified that he believed that he told the officer that he had been beaten but that the immigration officer told him "you don't have to tell me everything" and that he had to put things in his PIF. The panel rejected this testimony because it did not accept that an immigration official would not record Mr. Sawyer's evidence.
[6] However, the Minister's operations manual dealing with "Processing Claims for Protection in Canada" contains the following instructions to officers to whom a claim for refugee status is made:
Appropriate questions
The officer should ask the claimant the standard questions on the refugee claim and the answers must be recorded. However, the officer should not ask the claimant to elaborate on the basis of the claim unless the information relates to admissibility and eligibility. It is not the officer's responsibility to determine the credibility of the claim for refugee protection.
- Officers are encouraged to use the interview template created by NHQ (see Appendix A below)
- Claimants must explain how they entered Canada. [underlining added, Appendix omitted]
[7] In the face of this instruction it was in my respectful view, at least with respect to the evidence about mention of the photograph, patently unreasonable for the panel to reject summarily in the manner it did Mr. Sawyer's evidence that the officer told him that it was not necessary for him to give her his full story and this was why she did not record everything that he told her. I accept that the beating Mr. Sawyer received was an event central to his claim and so could not be said to be an elaboration of the basis of his claim. It was reasonable therefore to have expected Mr. Sawyer to have related this event and the officer to have recorded this event. However, the panel accepted that the beating occurred, but concluded it was the result of simple criminal activity. Because the panel concluded that Mr. Sawyer had not mentioned the photograph to the immigration officer it inferred that his testimony about the photograph before the panel was "an attempt to embellish his claim for protection and to provide a reason why he would be specifically targeted in Sierra Leone today". In concluding this testimony was an embellishment to establish a nexus to a Convention ground, the panel overlooked that the immigration officer's note recorded that Mr. Sawyer told her that his difficulty in Sierra Leone was caused by his uncle's friendship with former Chief of Defence staff of the Sierra Leone Army, Max Kangah. This was a clear prior statement about nexus so that it was an error for the panel to conclude that this claim to nexus was a recent embellishment.
[8] The panel's conclusions with respect to the remaining two discrepancies are not, in my view, patently unreasonable. However, in circumstances where the panel committed reviewable errors with respect to two of the four asserted discrepancies it relied upon, I conclude that a correct appreciation of the evidence may well have caused the panel to have reached a different conclusion as to the credibility of Mr. Sawyer's evidence. The panel's errors can not be said to be immaterial to its decision.
[9] Turning to the panel's conclusion with respect to state protection, in evidence before the panel was a communication from the United Nations High Commissioner for Refugees ("UNHCR") dated May 9, 2002 entitled "Sierra Leone - Return of Rejected Asylum Seekers". In it, the UNHCR states that:
Facilitated Voluntary Repatriation Operation
UNHCR continues to facilitate voluntary repatriation operations which began in December 2000 and February 2002 as emergency operations with the aim to evacuate refugees from Guinea and Liberia respectively because of a deterioration of the security situation in their countries of asylum. Although the situation in Liberia is still precarious the voluntary repatriation operations have since stabilised into more normalised operations aiming at a return in safety and dignity. Furthermore, facilitated repatriation from other countries of asylum in West Africa has begun. In facilitating voluntary repatriation UNHCR assists refugees who have made free and informed decisions to return.
It has to be stressed however that UNHCR has not yet begun promoting voluntary repatriation. This will be done once the following two criteria are fulfilled: Stability after free and fair elections and safety in the entire country allowing for a resettlement of IDPs and enabling returnees to go directly to their home areas instead of temporary sites. Provided durable peace and stability prevail after the elections, UNHCR will announce the date for commencement of promoted voluntary repatriation, likely after the rainy season in late 2002.
[...]
Return of rejected asylum seekers
In light of the above and taking into account lessons learned in the past in such a volatile environment, UNHCR believes that it is too early to conclude that the situation in Sierra Leone has consolidated to the point of warranting the return of rejected asylum seekers. Accordingly, the Office takes the position that States should continue to refrain from returning rejected Sierra Leonean asylum seekers to their country of origin until UNHCR begins to promote voluntary repatriation. Provided durable peace and stability prevail after the elections, UNHCR will announce the date for commencement of promoted voluntary repatriation, likely after the rainy season in late 2002. [underlining added]
As of the date of the hearing before the panel, the UNHCR had not announced a date for the commencement of promoted voluntary repatriation.
[10] The test for a well-founded fear of persecution requires a claimant to establish good grounds for fearing persecution. This has been expressed as a "serious possibility" of persecution. See: Adjei v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 169 (F.C.A.). In view of the UNHCR's advice that the return of rejected asylum seekers was not yet warranted and the fact that a claimant need only establish a serious possibility of persecution, cogent evidence and analysis were required in order to conclude that the situation in Sierra Leone was such as to permit the return of Mr. Sawyer to Sierra Leone.
[11] In my respectful view, the evidence cited and analysis provided by the panel was insufficient to justify its conclusion on state protection. While the panel found the UNHCR report to be contradictory, the voluntary repatriation operations facilitated by the UNHCR were generally those which began as emergency operations to evacuate refugees because of deteriorating security situations in their countries of asylum. In order for the UNHCR to begin to promote voluntary repatriation, the UNHCR noted that it would require stability after free and fair elections and safety in the entire country.
[12] The documentation relied upon by the panel to conclude that adequate state protection existed consisted of:
1. A Human Rights Watch briefing paper entitled "The Jury Is Still Out", which the panel observed stressed that while the peace remained fragile in some respects, there were good grounds for optimism.
2. The 2002 United States Department of State Report, which the panel noted stated that the government asserted control over the whole country, the program for the disarmament and demobilization of the insurgents was completed and that the United Nations peace keeping force of approximately 17,500 peacekeepers was to be gradually withdrawn by 2005.
3. The Human Rights Watch World Report 2003, which the panel said indicated that human rights groups were allowed to start operations outside of Freetown and that there had been dramatic improvement in prospects for peace, security and respect for human rights.
4. Human Rights Watch press releases which recounted that indictments were issued with respect to war crimes against humanity and violations of international human rights law and that a special court had been set up.
[13] Missing from the panel's reasons was any analysis of this information and any stated basis for the panel's conclusion that, notwithstanding the position of the UNHCR, there was insufficient evidence to establish a well-founded fear of persecution in Freetown. A more detailed analysis of the conflicting evidence in respect of a change in circumstances was required in order to properly conclude that the change in country conditions was meaningful and effective enough so that there was no well-founded fear of persecution.
[14] While the panel relied upon the facts that Mr. Sawyer had family in Freetown and the UNHCR had not mentioned Freetown as being unsafe, the issue of an internal flight alternative in Freetown had not been raised by the panel during the hearing.
[15] For these reasons the evidence and analysis of the panel did not support its conclusion that adequate state protection existed in Sierra Leone.
[16] It follows that the application for judicial review will be allowed and the decision of the panel will be set aside.
[17] Counsel requested the opportunity to make submissions with respect to the certification of the question on receipt of these reasons. Accordingly, counsel for the Minister will have seven days from the receipt of these reasons to serve and file any correspondence seeking certification of a question. Thereafter, counsel for the applicant will have seven days to serve and file responsive submissions following which counsel for the Minister will have four days to serve and file any reply submissions. After consideration of those submissions an order will issue allowing the application for judicial review and dealing with the issue of certification of a question.
[18] If the Minister does not propose certification of a question the Court would appreciate receiving correspondence to that effect.
"Eleanor R. Dawson"
Judge
Ottawa, Canada
June 29, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5645-03
STYLE OF CAUSE: Armand Otaado Sawyer
Applicant
- and -
The Minister of Citizenship and Immigration
Respondent
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: June 16, 2004
REASONS FOR ORDER: DAWSON J.
DATED: June 29, 2004
APPEARANCES:
David Matas For the Applicant
Kim Shane For the Respondent
SOLICITORS OF RECORD:
Barrister and Solicitor For the Applicant
Winnipeg, Manitoba
Mr. Morris Rosenberg For the Respondent
Deputy Attorney General of Canada
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