Sheriff v. Canada (Minster of Citizenship and Immigration), 2002 FCT 8

                                                                                                                                            Date: 20020104

                                                                                                                  Court File No.: IMM-5458-00

                                                                                                                   Neutral Citation: 2002 FCT 8

Ottawa, Ontario, this 4^th day of January, 2002

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                   MOHAMED IBRAHIM SHERIFF

                                                                                                                                                       Applicant

                                                                              - and -

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 The applicant, Mr. Mohamed Ibrahim Sheriff, is a 38 year old citizen of Sierra Leone, currently living in Bo, with his wife and three daughters. He has 16 years of formal education and recently completed a Master of Engineering degree at McGill University, in Montréal.

[2]                 The applicant seeks judicial review of a negative decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD) dated September 20, 2000. He claimed Refugee status based on his fear of the rebels in Sierra Leona and the government's inability to control the civil war which has been going on in the country.

[3]                 The applicant's testimony is that he and his family were forced to move as a result of the threat of attack and combat between rebels and government forces. He had relatives who were victims of violence. His home and place of business were destroyed. His wife was forced to leave her home in Bo because of the fighting. Her home was subsequently looted. The applicant witnessed troops at check points killing individuals who confronted them.

[4]                 The documentary evidence recounts a tragic situation in Sierra Leone where civilians are tortured and mutilated by rebels and other militants, some coming from beyond Sierra Leone's borders. The situation is described as a war of terror against civilians that has been persisting for more than 8 years.

[5]                 The applicant left Sierra Leone to come to Canada to study at McGill University on a Commonwealth Scholarship in January of 1997. He claimed Refugee status from Canada, more than two (2) years later, in June of 1999. He fears returning due to the uncertain nature of events and the possibility of another war erupting in his country.

[6]                 The CRDD, in its reasons concluded that the applicant testified spontaneously and without contradiction. The CRDD also found that the applicant had not met his burden to establish he had a well founded fear of persecution for Convention ground reasons.

[7]                 The applicant's main argument is that the CRDD erred in finding that the situation in Sierra Leone to be a civil war. The applicant contends that the situation in Sierra Leone should be characterized not as a conflict between citizens, but rather as a "war carried out by many different forces from several different countries within the confines of Sierra Leone." The applicant argues that the CRDD therefore erred in applying guidelines issued by the chairperson pursuant to subsection 65(3) of the Immigration Act, R.S.C. 1985, c. I-2, to circumstances applicable to civilian non-combatant fearing persecution in Civil War.

[8]                 There is clearly a tragic situation of war or armed conflict in Sierra Leone. It is not important, in my view, to determine whether the course of conflict is national or foreign, or whether we are dealing with a civil war or a war between nations. I agree with the respondent's contention that regardless of the identity or objectives pursued by the combatants, refugee claimants must establish that they fear persecution for a Convention reason in order to be refugees.

[9]                 Therefore, the only issue for consideration in this judicial review is whether the CRDD erred in finding that the applicant had not shown that he had been persecuted for one of the five (5) Convention grounds cited in subsection 2(1) of the Immigration Act.

[10]            The jurisprudence of this Court has generally accepted that the standard of review of decisions of the CRDD is patent unreasonableness. [Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300, p. 2 at para. 5].

[11]            The respondent submits that there is an armed conflict in Sierra Leone and that the applicant had the burden to establish that his fear was not that of all citizens who fall victim to armed conflict but, rather, to set forth that his fear could be linked with a Convention ground. The respondent argues that the applicant failed to establish nexus with a Convention ground before the Board.

[12]            The applicant argues he had established a nexus with a Convention ground, in that as a citizen of Sierra Leone he has a well-founded fear of persecution by reason of his nationality.

[13]            In Rizhallah v. M.E.I. (1992), 156 N.R. 1, Mr. Justice MacGuigan, of the Federal Court of Appeal, established that all refugee claimants must demonstrate the presence of a well-founded fear of persecution for a Convention reason. He wrote, "...Although the Refugee Division in the case at bar expressed itself incompletely in emphasizing only personal targeting, the evidence, as presented to us, falls short of establishing that Christians in the claimant's Lebanese village were collectively targeted in some way different from the general victims of the tragic and many-sided civil war."

[14]            In Salibian v. M.E.I., [1990] 3 F.C. 250 (F.C.A.), Mr. Justice Décary conducted a review of earlier decisions of the Court and set out therefrom a number of principles applicable to refugee claims. The learned judge established one such principle at page 258 of his reasons:

that a situation of civil war in a given country is not an obstacle to a claim provided the fear 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, even by all citizens on account of a risk of persecution based on one of the reasons stated in the definition. (My emphasis)

[15]            In my view, the evidence simply does not establish that the applicant was targeted in some way different from the general victims, or the general population of Sierra Leone. Nor is there any evidence that all citizens of Sierra Leone are being persecuted because of their "nationality". It may be that all individuals within Sierra Leone face more than a mere possibility of danger and persecution, but there is no bases to support the contention that they are being persecuted because of their "nationality".

[16]            In my view, the CRDD was correct in finding that the applicant's fear of persecution was not based on the fact that he was a citizen of Sierra Leone. The CRDD was therefore correct in finding that the applicant's fear of persecution was not based on a Convention ground, namely that of "Nationality".

[17]            For the above reasons, I find no reason to intervene in the findings of the CRDD and will therefore dismiss this judicial review.

[18]            The CRDD, in its reasons, found that, although the applicant may not be at risk of persecution for a Convention reason, it also stated that there is more than a mere possibility that the applicant would be at risk in the current dangerous context of Sierra Leone. I add my voice to that of the CRDD in urging that consideration be given, by the appropriate authorities, that the applicant be landed under humanitarian and compassionate grounds.

[19]            The applicant proposes the following question for certification:

In light of the Salibian case, (Salibian v. MEI) 1990 3FC 250 F.C.A., a decision of Justices Hugessen, MacGuigan and Décary and the four part test set out by the Justices at page 258 of that decision and in particular the 3^rd part of that test where it is stated "or, even, by all citizens on account of a risk of persecution based on one of the reasons stated in the definition;" what actually is the scope of this particular section of the 3^rd part of the test? Can this section be interpreted to include any national of a particular country where the claim is derived from situations of generalized oppression, and where the broadly based harassment or abuse is sufficiently serious to substantiate a claim for refugee status.

[20]            I have reviewed the submissions of the parties and conclude that the proposed question is one that raises no new issue of broad significance or general application that has not already been addressed by the jurisprudence. I agree with the respondent's submission that the applicant has not suffered persecution because he was a national of Sierra Leone or a member of an ethnic or linguistic group. He suffered the faith of many innocent citizens who find themselves embroiled in the difficulties which result from civil strife in Sierra Leone.

[21]            For these reasons I will not be certifying a question.

                                                                            ORDER

THIS COURT ORDERS that:

1.          The judicial review is dismissed.

                                                                                                                                "Edmond P. Blanchard"                  

                                                                                                                                                               Judge