Date: 19980716
Docket: IMM-4795-97
BETWEEN:
ISHA FOFANAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MULDOON J.
[1] This is an application for judicial review pursuant to section 82.1(1) of the Immigration Act R.S.C., 1985 Chap. 1-2 of a decision of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board. In that decision, the CRDD found the applicant not to be a Convention refugee.
[2] The applicant is a citizen of Sierra Leone and bases her claim to Convention refugee status on the grounds of perceived political opinion and on her family status as well as her gender.
[3] The applicant was born in 1976 in Freetown but she moved to Kambia in 1988. In December 1993, upon completion of her secondary studies the applicant commenced employment with the Minister of Finance. On January 20, 1995, while working at her office, the applicant heard the sound of gunshots. The gunshots came of soldiers who were shooting and burning down houses. The office in which the applicant worked was bombed but she managed to escape, only to be captured by rebel soldiers. After approximately two weeks, the applicant managed to escape.
[4] The applicant fled from Kambia to Makeni where the applicant was reunited with her mother and sister. It was then that the applicant learned that her father and uncle had been murdered by rebel soldiers and that their home had been destroyed. Although her father had not been involved in politics, he had relatives who had been in the government of President Momoh, who was overthrown in 1992. The rebels who killed her father accused him of being related to the Minister of Foreign Affairs at the time, Dr. Alusine Fofanah.
[5] After being reunited with her family the group fled to Freetown where they stayed with a friend of the applicant's aunt. Shortly after her arrival in Freetown, the applicant began to be harassed by Major Mansaray of the Sierra Leone Military Force. Major Mansaray claimed that the applicant's grandfather had promised the applicant in marriage to him when she was a mere three years old. The major threatened the applicant with death if she did not marry him. The applicant refused to marry him because she was already engaged to be married to Foday Kamara, who later became the applicant's husband.
[6] The applicant alleges that the major began harassing the applicant by coming to the house and firing shots into the air and threatening to kill her. Complaints made to the police and military in Freetown were disregarded.
[7] On September 16, 1995, the applicant invited some friends to her home to celebrate her nineteenth birthday. Major Mansaray and a group of soldiers appeared at her home. Shots were fired and guests were beaten. The applicant and her aunt were raped and the applicant was beaten until she lost consciousness. She was taken to a military hospital where emergency surgery was performed on her navel and stomach area. She remained in hospital for four weeks.
[8] The applicant's mother was also injured. She suffered from gunshot wounds and was beaten. While soldiers were beating her, they told her that if she allowed the applicant to marry Foday Kamara they would kill the applicant and Foday. Again, the applicant's complaints to the military government were ignored.
[9] The applicant returned to Freetown for one to two weeks after being released from hospital. On the recommendation of Major H.B. Johnson, a physician at the military hospital, she travelled to Guinea. Dr. Johnson arranged for the applicant to obtain a passport and paid for her travel as he felt that it was the only way that she could escape Major Mansaray. She remained in a refugee camp in Guinea from November 22, 1995 until December 2, 1995. The applicant states that she felt unsafe in Guinea because many Guinean troops were fighting for the military government in Sierra Leone and she feared a possible connection between the Guinean security forces and Major Mansaray.
[10] After returning to Freetown, the applicant remained in hiding awaiting the arrival of her fiancé on December 20, 1995. His purpose in returning to Sierra Leone was to perform burial rites for his mother who had been killed in an ambush in March 1995. After the arrival of her fiancé, the applicant learned that Major Mansaray was in Liberia for a month with the West Africa Peace-Keeping Force. The applicant decided to get married then so as to avoid any possibility that Major Mansaray might appear.
[11] The applicant remained in hiding after the marriage. Her husband was forced to leave Sierra Leone in January after his father had been killed by the military on January 10, 1996 in Makeni for his alleged involvement in planning a coup. The applicant's husband learned that he had also been accused of such involvement because of his father's activities and due to his own connections with the National Student Union, a group opposed to the military government because of its failure to hold democratic elections.
[12] After her husband's departure the applicant states that she felt even more vulnerable because she feared that she would be sought out by Major Mansaray and by the military government in connection with her husband's alleged activities. In January 1996, she learned that Major Mansaray had been informed that the applicant married at which time he continued to repeat death threats against the applicant.
[13] The applicant contacted her husband from Freetown and told him that she needed to go to a safe place. Her husband contacted a friend in Guinea who came to Freetown to accompany the applicant to Guinea on February 23, 1996. While in Guinea, the applicant again contacted her husband and informed him that she was still living in fear in Guinea, so he arranged to borrow money to bring the applicant to Canada. The applicant left Guinea on March 2, 1996 and arrived in Canada on March 5, 1996.
[14] After Major Mansaray learned of the applicant's departure, he threatened to harm her mother. Her mother and sister then fled Sierra Leone on March 10, 1996 and are currently staying in a refugee camp in Guinea.
[15] The applicant fears returning to Sierra Leone on the basis of the political opinion ascribed to her due to her connection with the former civilian government and her husband's stance against the military government. She also fears returning due to the fact that Major Mansaray's actions have gone unpunished. The applicant learned that he has been made the head of military operations in her hometown and has been promoted to Lieutenant Colonel. She feels that she is unable to receive protection from the authorities because of Mansaray's military connections.
[16] Based on the applicant's testimony and the information contained in her personal information form (PIF), the CRDD reached the following conclusion:
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The claimant asserts that she fears being targetted by rebels because she escaped from them when they captured her on January 20, 1995. The panel's finding is that she was in a group of people who were captured by rebels in an attack. The panel did not find that the claimant had been singled out by the rebels for capture, or that they had sought her since her escape in January of 1995. |
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The claimant also said that she fears the military government because her husband and his father were seen by the regime as opponents. But that particular military regime has long ceased to be in office, and the claimant is also separated from her husband. The panel does not find that her fear of persecution on account of the political opinions of her husband or his father against a former military regime is well-founded. |
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The claimant also fears the rebels because her father's cousin, Dr. Fofanah, had served in a former civilian government. But, Dr. Fofanah also served in the military government and was later removed and jailed. His wife and children moved to Guinea. The panel finds that the claimant, her mother and sister are not similarly-situated as the wife and children (the immediate family) of Dr. Fofanah and that her fear based on this relationship is not well-founded. |
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As for Major Mansaray, the claimant did not establish that he now poses a threat to her. The claimant asserts that he is determined to marry her, but she testified that his family never approached her family, as is the custom in Sierra Leone. The claimant also stated in her PIF that she and her family were harassed by Major Mansaray. But in her oral testimony the claimant testified that Major Mansaray only met her occasionally, and not her family, and asked her to marry him. The claimant had written in her PIF that Maj. Mansaray "continued to harass me by coming to the house and firing shots into the air, using abusive language and threatening to kill me." In her oral testimony, however, she stated that he did not come to the house but met her sporadically at some other places. The claimant stated in her PIF that she complained to the police and the military in Freetown but since Mansaray was a major, no action was taken. In her oral testimony the claimant denied making complaints herself but said complaints were made by Major H.B. Johnson, the chief medical officer at the Makeni Military Hospital, and by a friend of her aunt. The claimant testified that except for the September 16, 1995 incident, which the panel acknowledged as repugnant, in which her aunt was also raped, Major Mansaray had not sought out the claimant, nor sought to abduct or harm her. On Major Johnson's advice the claimant went to a refugee camp in Guinea on November 2, 1995, but returned to Freetown on December 2, 1995 and stayed there till her departure for Canada on March 5, 1996. At her hearing the claimant testified that she was living with her aunt's friend in Freetown. During the period the claimant was in Freetown there was no attempt by Major Mansaray to contact her, pressure her, harm her, abduct her or force her into marriage. (Major Mansaray had spent one month during his period with the West Africa peace-keeping forces outside Sierra Leone.) The claimant had written in her PIF that, after Sept. 16, 1995, Major Mansaray was "angry that we had been married and happy to learn that Foday's father had been killed. He repeated his death threats against my husband and I." At her hearing the claimant testified that a friend of hers by the name of Cynthia (she does not know her last name) had heard rumours that Maj. Mansaray was threatening to harm the claimant. The panel does not attach weight to these rumours. It finds for the reasons above that the claimant's fear of persecution from Maj. Mansaray is not well-founded. Having examined all the grounds listed in the claim the panel finds that the claimant's fear of persecution should she return to Sierra Leone is not well-founded and that Isha Fofanah is not a Convention Refugee under the Immigration Act. |
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[17] The applicant raises a number of issues in this application for judicial review which can be summarized as follows:
| 1. The CRDD erred in focusing on whether the applicant was singled out for persecution, and in doing so failed to make a proper determination as to whether the treatment experienced by the applicant at the hands of the rebels amounted to persecution; |
| 2. The CRDD failed to examine whether the change in military government was meaningful and effective enough for the applicant's fear of persecution to be no longer well-founded; and |
| 3. The CRDD erred in concluding that the applicant's experience with respect to Major Mansaray did not amount to persecution. |
The applicant's first argument is that the CRDD erred in finding that the applicant's fear of persecution is not well-founded due to the fact that she was in a group of people captured in an attack and was not singled out by the rebels for capture. The applicant relies on the Federal Court of Appeal's decision in Salibian v. Minister of Employment and Immigration (1990) 73 D.L.R. (4th) 551; (1991), Imm.L.R. (2d) 174 in which Mr. Justice Décary states the following at page 185:
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(1) the applicant does not have to show that he had himself been persecuted in the past or would himself be persecuted in the future; |
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(2) the applicant can show that the fear he had resulted not from reprehensible acts committed or likely to be committed directly against him but from reprehensible acts committed or likely to be committed against members of a group to which he belonged; |
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(3) a situation of civil war in a given country is not an obstacle to a claim "provided the fear felt is not that felt indiscriminately by all citizens as a consequence of the civil war, but that felt by the applicant himself, by a group with which he is associated, or if necessary by all citizens on account of a risk of persecution based on one of the reasons stated in the definition; and |
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(4) the fear felt is that of a reasonable possibility that the applicant will be persecuted if he returns to his country of origin (see Seifu v. Immigration Appeal Board, A-277-82, January 12, 1983, cited in Adjei v. Canada, [1989] 2 F.C. 680 at 683; Darwich v. Minister of Manpower and Immigration, [1979] 1 F.C. 365; Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129, at 133 and 134). |
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[18] While the applicant is correct in asserting that she does not have to be "singled out" for persecution in order to fit within the definition of a Convention refugee, as part 3 of the text states, the applicant must establish that her fear is not felt indiscriminately, but is felt by a group of people with whom the applicant is associated based on one of the reasons provided in the definition. The applicant did not demonstrate the required nexus. There was no evidence produced to indicate that the rebels were targeting any person or group of people on the basis of race, nationality, political opinion or membership in a social group. The evidence indicates that the events which occurred in January 1995 were acts of violence felt by many and the victims were not targetted on the basis of the grounds specified in the Convention.
The applicant's second argument is that the CRDD erred in not assessing whether the change in military government is meaningful and effective such that the applicant will no longer fear persecution due to the political opinion imputed to her. The applicant cites Yusuf v. Canada (Minister of Employment and Immigration) (A-130-92) (January 9, 1995) (F.C./A.) in which Mr. Justice Hugesson made the following comments at paragraph 2, pages 1 and 2:
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We would add that the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful" "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s.2 of the Act: does the claimant now have a well founded fear of persecution? * * * |
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[19] Simply because there is a change in the military government in Sierra Leone does not mean that the CRDD can evade its responsibility to assess whether there is a reasonable possibility that the applicant will be persecuted in the event she is returned there. It matters not that there is a change in the military government; what matters is whether the political opinions which were attributed to her family by virtue of her father's ties to members of the previous government and the opinions which were attributed to her husband will also be perceived as being contrary to the present military government. The focus is not on whether there is a change in government, but whether the change in government means an end to the applicant's fear of persecution. This mandates an assessment as to whether the political opinions which were attributed to the applicant, particularly in regard to her opposition to the military government for failing to hold democratic election, will also be perceived as a threat to the current military regime. As stated by Mr. Justice La Forest in Ward v. Canada (Attorney General) [1993] 2 S.C.R. 689 at page 747:
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The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. The political opinion that lies at the root of the persecution, therefore, need not necessarily be correctly attributed to the claimant. Similar considerations would seem to apply to other bases of persecution. |
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The CRDD erred in making no such assessment.
[20] The applicant's final argument is that the CRDD made a perverse finding of fact when it found that the applicant was free from threat from Lt. Col. Mansaray. The applicant argues that the CRDD misconstrued the dates in which the applicant was in Sierra Leone. In her testimony and in her PIF, the applicant states that she was in Guinea from November 22, 1995 until December 2, 1995. From December 2, 1995 until February 23, 1996 the applicant remained in Sierra Leone, in hiding. After her husband arrived on December 23, 1995 the applicant learned that Mansaray was away for one month. Effectively, that means that for approximately one month of the time the applicant was in hiding he did not come after her. The CRDD, however, was of the opinion that the applicant lived without an objective basis for fearing Mansaray for three months. This error in the length of time is material, in light of the total time spent by the applicant in Sierra Leone from the time of the initial attack. In light of this error and in light of the CRDD's failure to assess whether the applicant's perceived political opinion will lead to a possibility of persecution, this matter should be remitted back to the CRDD for redetermination, by a differently constituted panel, in full consideration of this Court's findings of error.
[21] One last point should be made. In its analysis of the evidence relating to Major Mansaray's determination to marry the applicant, the CRDD notes that he never approached the applicant's family as is the custom in Sierra Leone. While the CRDD accepted the applicant's testimony that she was raped by Major Mansaray, the CRDD did not believe that the Major was determined to marry the applicant as he had not followed custom and thus no longer posed a threat to the applicant. However, the CRDD should be reminded that a brute who rapes a woman is certainly not following traditional customary practices and therefore why would one expect him to ask politely for her hand in marriage?
[22] For the above reasons, this application for judicial review should be, and was, allowed. The differently constituted panel to whom the applicant's refugee claim is referred, to be adjudicated anew, is to contemplate these reasons in order to avoid the last panel's errors, so as to reach a correct decision.
Judge
Ottawa, Ontario
July 16, 1998
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