Date: 20120106
Docket: IMM-3000-11
Citation: 2012 FC 7
[UNREVISED CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, January
6, 2012
PRESENT: The Honourable
Justice Pinard
BETWEEN:
Thierno
Oumar SOW
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by
Louis Cousineau from the Refugee Protection Division of the Immigration and
Refugee Board (the panel) filed under subsection 72(1) of the Immigration
and Refugee Protection Act, SC (2001), c 27 (the Act). The panel rejected
Thierno Oumar Sow (the applicant)'s refugee protection claim , finding he was
not a refugee nor a person in need of protection within the meaning of the Act,
because there had been a change of conditions since he submitted his claim.
[2]
The
applicant is a citizen of Sierra Leone. His father is also from that country,
whereas his mother was born in Guinea. At the time of the armed conflict in Sierra
Leone, his aunt was married to the country's former president, Momoh.
[3]
The
applicant bases his claim on sections 96 and 97 of the Act, fearing he will be
persecuted, killed or tortured if he returns to Sierra Leone or Guinea because
of his family ties with former president Momoh and because he no longer has
family in Sierra Leone.
[4]
First,
the panel found the applicant did not have an objective fear because of changes
in Sierra Leone since his refugee protection claim was filed. Second, the panel
found that, regardless there were not any compelling reasons to justify
accepting the applicant's refugee protection claim.
[5]
The
applicant claims that the panel erred in its interpretation of the facts by
finding there was no evidence of recent persecution of individuals with ties to
former president Momoh in Sierra Leone.
[6]
The
applicant then claims that the panel erred by finding that his particular
circumstances do not constitute compelling reasons.
[7]
A
panel's finding on a change of conditions in a country is a question of fact (Rahman
v Canada (Minister of Employment and Immigration), [1994] FCJ No 562 (F.C.A.)
at para 1; Yusuf v. Canada (Minister of Employment and Immigration),
[1995] FCJ No 35 (F.C.A.) at para 2). A finding on whether there are
compelling reasons must be considered a question of mixed fact and law (Suleiman
v. Canada (Minister of Citizenship and Immigration), [2005] 2 FCR 26 at
para 11 [Suleiman]).
[8]
The
standard of review that applies to these questions of fact and mixed fact and
law is reasonableness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at
para 47 [Dunsmuir]).
[9]
After reviewing the relevant evidence and hearing counsel for the
parties, the panel's finding that the applicant did not have an objective fear
of persecution in Sierra Leone seems reasonable to me, and is supported by
evidence in the record.
[10] On
this subject, the following two paragraphs from the decision in question are of
critical importance:
[21] The panel also considered the letter dated November 22, 2010, as
well as the claimant’s testimony, particularly with respect to the threats made
against the claimant’s family. The claimant testified that he did not know when
these threats were made. He also testified that he did not know what might have
happened to his family’s property in Kono. In addition, the claimant testified
that he would not lay claim to his family’s property. He added that the
information was obtained by his uncle’s friend, who allegedly travels between
the United States and Sierra Leone.
[22] First,
the panel notes that, with the exception of the letter from the claimant’s
uncle dated November 22, 2010, none of the documentary evidence describing the
situation in Sierra Leone, especially since the war ended, discusses
difficulties for people with alleged ties to former president Momoh’s family.
The panel finds it reasonable to believe that, given that General Momoh
was a former president and that, according to the claimant’s testimony, the
family of the former president was well known, if the family had had problems
since the end of the war in Sierra Leone, from people from Kono or from
other sources, the documentary evidence would have information about this.
Consequently, in light of this lack of documentary evidence, the panel is of
the opinion that the claimant did not establish that he, as a member of former
president Momoh’s family, would face a “serious possibility” of persecution or
that, on a balance of probabilities, he would be personally subjected to a
danger of torture, a risk to his life or a risk of cruel and unusual treatment
or punishment, for that reason.
[11] The
panel's reasoning is supported by the case law. As I did in Sandhu v. Minister
of Citizenship and Immigration, 2005 FC 370, at paragraph 4, it is
sufficient to refer to Adu v. Minister of Citizenship and Immigration (January
24, 1995), A-194-92:
... The
Federal Court of Appeal in Adu v. Minister of Employment and Immigration
(January 24, 1995), A-194-92, stated that "the presumption that a
claimant's sworn testimony is true is always rebuttable, and, in appropriate
circumstances, may be rebutted by the failure of the documentary evidence to
mention what one would normally expect it to mention.
[12] As
for the applicant's second argument, I feel that the panel correctly summarized
the concept of "compelling reasons", relying on the relevant case
law. Such special and exceptional circumstances are only recognized for a very
small minority of people whose prior persecution is so extreme that their
experience alone is sufficient to not remove them, although they may no longer
have reason to fear new persecution (J.N.J. v. Minister of Public Safety and
Emergency Preparedness, 2010 FC 1088 at para. 39 citing Suleiman;
Suleiman at paragraphs 14 and 15).
[13] As
in Noori v. Canada (Minister of Citizenship and Immigration), [1997] FCJ
No 938 (T.D.) although the applicant may have our sympathy, this does not
justify the Court's intervention. The panel considered the evidence on the
record and noted the applicant's specific circumstances, including his young
age at the relevant period. Its finding that there were no compelling reasons
was therefore reasonable, being transparent and intelligible and "falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law." (Dunsmuir at para. 47).
[14] For all these
reasons the application for judicial review is dismissed.
[15] I agree with
counsel for the parties that no question for certification arises.
JUDGMENT
The
application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board rendered April 11, 2011, is
dismissed.
"Yvon
Pinard"
Certified
true translation
Elizabeth
Tan
Email this Content