Date: 19990916
Docket: IMM-5047-98
OTTAWA, ONTARIO, SEPTEMBER 16, 1999
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
SEKOU SANOE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For the reasons given, this judicial review application is dismissed. No question for certification was proposed by counsel and none is certified.
"François Lemieux"
J U D G E
Date: 19990916
Docket: IMM-5047-98
BETWEEN:
SEKOU SANOE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
BACKGROUND
[1] The applicant, Sekou Sanoe, is a citizen of Liberia who claimed to be a Convention refugee by reason of his ethnicity, namely his Mandingo tribal affiliation. His fear is expressed in the context of a seven-year civil war which ended in 1996. The civil war was fuelled by elements of tribal animosity which, in the case of the Mandingo tribe, is overlaid by a religious element since that tribe is largely Muslim.
[2] The applicant names the National Patriotic Front of Liberia (NPFL), government of President Charles Taylor, as the agent of the persecution he fears, and states that the persecution of the Mandingo tribe continues. Mr. Sanoe gave evidence members of the Gio Tribe under the NPFL killed his parents and his wife in 1992 during the civil war. Mr. Sanoe says he left the capital Monrovia and sought sanctuary in the Poor River area (as did many other Mandingos) that was under the control of the United Liberation Movement of Liberia for Democracy (ULIMO-K forces). He said in order to receive protection he became involved with ULIMO as a supporter.
[3] After the civil war ended in 1996, an interim government was put into place. Mr. Sanoe returned to the capital Monrovia. Elections were held in July 1997. Charles Taylor's NPFL won. Mr. Sanoe said matters began to worsen for the Mandingos. The event which precipitated his flight from Liberia occurred on February 8, 1998. He was at home. Some unknown people came late at night, knocked on his door and called his name. He wrote in his PIF that he knew these men could not be his friends since his friends would never be out after midnight because the country was under the control of "the NPFL boys", who were in charge of security and yet at the same time doing secret killing. He did not open the door but asked who was there and the men refused to identify themselves. He slipped away that same night and sought refuge in a house which he said was standing open and did not seem to have any occupants. He said while in the house he found a passport and travel documents on a bed. He took these with him and fled to Sierra Leone and there he was able to have the passport altered to show his picture. He arrived in Canada on February 18, 1998.
THE FINDINGS OF THE REFUGEE DIVISION
[4] The Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD) on September 14, 1998, decided Mr. Sanoe was not a Convention refugee. The claimant's credibility was not an issue with the CRDD. Neither was Mr. Sanoe's subjective fear of persecution. The basis of the panel's finding was that Mr. Sanoe had not established an objective basis for a well-founded fear of persecution. This finding by the panel is based mainly on documentary evidence such as Human Rights Watch/Africa and Country Reports on Human Rights Practices for 1997 by the U.S. Department of State. This documentary evidence notes the changes which have occurred in Liberia. The CRDD cites the 1996 Peace Accord, the July 1997 elections said to be deemed fair and free, the election of Charles Taylor by a large majority of Liberians, the beginning of the process of reconciliation, the creation of a Liberian Commission on Human Rights to be followed by a Commission on Reconciliation, a reconstituted Supreme Court having been sworn in, the demobilization of 33,000 fighters during the period from November 1996 to February 1997, the creation of a Permanent Election Commission, the resumption of broadcasting by the Independent Star Radio. The CRDD noted, despite some concerns, particularly with regard to ethnic minorities such as the Mandingos, the U.N.H.C.R. was continuing its program of repatriation.
[5] The CRDD made this finding:
| The panel finds that although ethnic tension, particularly affecting the Mandingos and other minority tribes exists, there is insufficient evidence to conclude that any particular ethnic group is targeted for persecution by government forces or by guerrilla organizations in Liberia. |
The source for this finding is said to be exhibit R-2, page 26, being a Response to Information Request by the IRB.
[6] The CRDD, at page 3 of its decision, mentions the fact the claimant was able to obtain his birth certificate through the good offices of the Liberian Consulate General in New York and said this further demonstrates the Government's commitment to treat its citizens fairly, without discrimination.
[7] The CRDD also mentioned a taxi strike as a persuasive element in the following terms:
| In coming to the conclusion that the claimant has not established a well-founded fear of persecution despite his tragic experiences in the past, the panel considers persuasive the incident which occurred on January 16, 1998 when a Mandingo taxi driver was brutally murdered in Monrovia, and the reaction of fellow taxi drivers, most of whom are Mandingos. There is no indication that their wildcat strike was suppressed, or that the organizers and participants suffered any negative repercussions. |
ANALYSIS
[8] As noted, the CRDD decided not to recognize the applicant as a Convention refugee in finding the applicant's fear was not objectively well-founded.
[9] In Ward v. Canada, [1993] 2 S.C.R. 689, La Forest J., for the Court, held the focus of a refugee claim inquiry is whether there is a "well-founded fear of persecution". This is the first point a claimant must establish. At page 723 he said this:
| More generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134: |
| The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear. |
[10] A review of the transcript reveals that the thrust of the applicant's testimony dealt with the reasons why he had a subjective fear. As to whether objectively his fear was reasonable, i.e. founded on good grounds (Lai v. Canada (M.E.I), 8 Imm.L.R. (2d) 245 (F.C.A.)), Mr. Sanoe spoke of recent secret killings even after Mr. Taylor's election victory; he told of the death of Mandingo political leader Dr. Fofana and he referred to gangs of young boys; he related the February 8, 1998 event which the CRDD said the applicant had assumed his visitors were NPFC youths.
[11] In my view, the burden of the evidence in relation to the objective test was largely left to the documentary evidence emanating from the U.S. State Department Country Reports on Human Rights Practices, Human Rights Watch/Africa, Amnesty International, press reports and information updates from the Research Directorate, Immigration and Refugee Board, Ottawa.
[12] By its nature, such documentary evidence is more generalized because, quite often, it is not specifically related to the particular facts of an applicant's refugee claim. This is why this Court has said in a number of cases that when documentary evidence is preferred over the specific testimonial evidence of a claimant, the Refugee Division should say so and why. Counsel for the applicant correctly relies upon two decisions of the Federal Court of Appeal for this proposition, namely Kwame Okyere-Akosah v. Canada (M.E.I.), A-92-91, May 6, 1992 and Hilo v. M.E.I., A-260-90, March 15, 1991.
[13] As noted, the applicant did testify as to his objective fear. I agree with the characterization which counsel for the respondent placed on the applicant's viva voce evidence in this respect. It was generalized; it did not distinguish between events of persecution as contrasted with criminal incidents; some of that evidence related to events in 1992 in different times and circumstances; and he relied on his cousin in the United States to say that Liberia today was not safe.
[14] Counsel for the applicant, in argument, tried to give the applicant's generalized testimony some substance by linking it to the documentary evidence. One example is tying the applicant's testimony about young gangs of boys with the documentary evidence on child soldiers who have been demobilized.
[15] To accede to this argument would require me to reweigh the evidence. That is simply not my function on judicial review.
[16] Counsel for the applicant argues the CRDD ignored the evidence about how bad it was in Liberia now and did not analyze the documentary evidence but only conducted a paper review.
[17] In my view, the applicant's painting of the CRDD's reasons this way must fail. The CRDD, in its decision, specifically acknowledged that serious human rights issues remain and that a culture of violence, ethnic tension and impunity had taken root. The CRDD specifically found ethnic tension, particularly affecting the Mandingos and other minority tribes existed. However, the panel looked at some positive changes which are set out above.
[18] The applicant cited Okyere-Akosah, supra, in support. This was a case of religious discrimination suffered by the claimant, a Church elder, who, in direct testimony, deposed to the banning of his Church by the Rawling's Government and the arrest of many of its members, including his attempted arrest. The documentary evidence reported the banning of two other churches. The Federal Court of Appeal found fault with the Board's reasoning for not considering the claimant's detailed testimony on the practices of his Church when the Board had cast doubts based on documentary evidence after having, previously, accepted he was credible. Moreover, the Federal Court of Appeal found the Board had failed to consider the totality of the evidence before it and detailed several instances. This case does not, in my view, assist the applicant here. On the facts of this case, there was no clash between the applicant's personal story and the documentary evidence. The CRDD did not ignore his generalized personal evidence on the objective fear factor; as I see it, it weighed all of the evidence and came to the conclusion it did and this conclusion was reasonably open to it on a consideration of both the personal and documentary evidence.
[19] Ventura v. Canada (M.E.I.), IMM-6061-93, October 5, 1994, Cullen J., was also cited by counsel for the applicant in support. This case, also, in my view, does not favour the applicant. There was direct evidence by the applicant in that case that, because of his position as a Commander in the Salvatorian Police Force, he was a target of guerilla groups. Moreover, unlike here, in Ventura, the quality of the claimant's evidence on changed country conditions was focussed leading the Court to conclude that the Board failed to consider current country conditions. In the case at hand, the CRDD considered current country conditions. The evidence of the applicant did not satisfy the CRDD on the objective fear test.
[20] Lastly, Oblitas v. Canada (M.E.I.), IMM-2489-94, a February 5, 1995 oral decision of Muldoon J. was cited. This case turned on the CRDD ignoring direct relevant evidence which is not the case here.
[21] I mention two elements in the CRDD's reasoning which are weak in terms of drawing inferences and which counsel for the applicant says justifies a finding of unreasonableness or perversity by the CRDD. The inferences drawn by the CRDD are based on factual findings that the applicant was able to obtain a birth certificate from the Liberian Consulate General in New York as well as the impact of a taxi strike in Monrovia on current conditions. The CRDD said that these two instances demonstrated the Taylor Government's commitment to fundamental human rights. If the CRDD had only relied on these two instances as sufficient evidence to rebut the applicant's objective fear of persecution, I would have been inclined to set aside the determination. However, as noted, the CRDD had before it substantial evidence on this point. The totality of the evidence reasonably allowed the Board to make the determination it did. (Hassan v. Minister of Employment and Immigration, 147 N.R. 317 (F.C.A.).
DISPOSITION
[22] For all of these reasons, this judicial review application is dismissed. No question for certification was proposed by counsel and none is certified.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
SEPTEMBER 16, 1999
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