Date: 20040816
Docket: IMM-7190-03
Citation: 2004 FC 1136
OTTAWA, ONTARIO, THE 16TH DAY OF AUGUST 2004
Present: THE HONOURABLE MR. JUSTICE HARRINGTON
Between:
MOUSSA MARIKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application for judicial review made pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 7 (the Act), is from a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel). In that decision the panel concluded that the applicant did not meet the definition of a "Convention refugee" as defined in section 96 of the Act and was not a "person in need of protection" under section 97 of the said Act.
[2] The panel refused to regard the applicant as a Convention refugee since it was not persuaded that the applicant's fear of persecution from the Mali police for his alleged political opinions was objectively well-founded.
[3] The applicant is a citizen of the Republic of Mali, who is 23 years old. He said he is being sought by the Mali police because he distributed pamphlets advertising a meeting of the Rassemblement des partis politiques (or RPP). The RPP is allegedly an opposition political party in Mali.
[4] The applicant is not himself a member or supporter of the party. He said he nevertheless agreed to distribute pamphlets to help his uncle, who is the leader of the RPP.
[5] According to the applicant, the Mali police burst into the RPP meeting advertised in the pamphlets which he distributed. He said the police arrested and imprisoned his uncle.
[6] The applicant managed to flee, but his uncle's wife later told him the police were looking for him. He now fears that the police want to put him in prison and mistreat him.
Impugned decision
[7] The panel refused to recognize the applicant as a Convention refugee. It was not persuaded that the applicant's fear of being imprisoned and mistreated by the Mali police for distributing RPP pamphlets was objectively well-founded.
[8] The panel based its conclusion inter alia on documentary evidence according to which the Mali government respects its citizens' political rights. The panel noted that the Constitution of Mali gives citizens the right to elect the government of their choice, which they do regularly through elections which, according to reports, are fair and free.
[9] Further, according to the documentary evidence the Government of Mali tolerates differences in political opinion. There are a large number of political parties in Mali (87 according to one report) and the documentary evidence makes no mention of political prisoners in Mali.
[10] Additionally, the panel observed there is no evidence to corroborate the applicant's testimony that he was in danger of being imprisoned and mistreated by the Mali police for distributing RPP pamphlets.
[11] Finally, the panel noted that there was no evidence to corroborate the applicant's statements about the existence of the RPP and the identity of its leader.
POINTS AT ISSUE
1. Did the panel correctly apply the evidentiary standard of the balance of probabilities in assessing the objective merits of the applicant's fear of persecution?
2. Did the panel fail to consider the applicant's membership in a particular social group as a reason for persecution?
Applicant's arguments
[12] The applicant was dissatisfied with the panel's decision. In his opinion the panel made two errors. First, he submitted that the panel incorrectly applied the evidentiary standard of a balance of probabilities, instead of the "serious possibility of persecution", in its analysis of the objective merits of the applicant's fear of persecution. This question was not discussed at length in the applicant's oral argument, but nevertheless deserves further examination.
[13] Then, the applicant argued that the panel failed to consider the applicant's membership in a particular social group (that of the family of a political prisoner or leader of an opposition political party) as a reason for persecution. In the applicant's submission, each of these two errors in itself warrants intervention by this Court.
Respondent's arguments
[14] The respondent maintained that the panel correctly applied the evidentiary standard of a balance of probabilities in determining that the applicant's fear of persecution in Mali was not objectively well-founded, and noted that the "serious possibility" of persecution is not, as the applicant maintained, a standard of evidence. Consequently, the respondent maintained that the panel's decision should be upheld on this point.
[15] The respondent admitted that the panel had a duty to consider the existence of a connection between the fear of persecution alleged by the applicant and all the reasons stated in the definition of a Convention refugee, even if the person seeking asylum did not expressly mention one of those reasons in his or her application for asylum.
[16] However, the respondent maintained that in the case at bar the panel correctly decided not to deal with the point, since there was no indication from the evidence presented by the applicant that he was in danger of being persecuted by the Mali police because of his family relationship to a political prisoner or leader of an opposition party, and in such circumstances the panel had no duty to consider this point.
[17] In short, the respondent considered that the decision contained no error and should consequently be treated with judicial restraint.
Analysis
1. Standard of evidence
[18] It is well settled in law that, for a fear of persecution to be regarded as objectively well-founded, there is a burden on the claimant for asylum to show he or she would be exposed to a "serious possibility" of persecution. In Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680, the Federal Court of Appeal stated per MacGuigan J.A.:
¶ 5 It was common ground that the objective test is not so stringent as to require a probability of persecution. In other words, although an applicant has to establish his case on a balance of probabilities, he does not nevertheless have to prove that persecution would be more likely than not . . .
¶ 6 The parties were agreed that one accurate way of describing the requisite test is in terms of "reasonable chance": is there a reasonable chance that persecution would take place were the applicant returned to his country of origin?
. . . . .
¶ 8 What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50 % chance (i.e. a probability), and the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility.
[Emphasis added.]
[19] Accordingly, the standard of evidence which an asylum claimant must meet in order to make out his argument of a "serious possibility" of persecution is that of a balance of probabilities.
[20] In the case at bar, the panel's reasons for decision indicated that the panel used the right test and the proper standard of evidence in determining whether the applicant had a fear of persecution in Mali that was objectively well-founded:
... the panel is not persuaded on a balance of probabilities in the circumstances of this case, that the claimant would face a serious possibility of persecution ...
... the panel is also not persuaded on a balance of probabilities that the claimant is at risk of being detained on an indeterminate basis by Malian authorities...
Accordingly, the panel made no error in applying the standard of evidence.
2. Membership in a particular social group
[21] The duty to consider the existence of a connection between the fear of persecution alleged by the applicant and all the reasons set out in the definition of a Convention refugee, even if the asylum claimant has not expressly mentioned one of those reasons in his or her application for asylum, was recognized by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, relying in part on the United Nations High Commission Handbook for Refugees, which provides that it is not up to the asylum claimant to identify the grounds of persecution in his or her application for asylum. Rather, it is for the person responsible for considering the application, in this case the RPD, to determine whether the conditions in the definition of a Convention refugee have been met.
[22] At paragraph 80 of that judgment the Supreme Court stated:
. . . the Court of Appeal had "erred in considering that the claimant's fear of persecution was based on membership in an organization". The additional ground was ultimately accepted by the appellant during oral argument. I note that the UNHCR Handbook, at p. 17, paragraph 66, states that it is not the duty of a claimant to identify the reasons for the persecution. It is for the examiner to decide whether the Convention definition is met; usually there will be more than one ground . . .
While political opinion was raised at a very late stage of the proceedings, the Court has decided to deal with it because this case is one involving human rights and the issue is critical to the case.
[23] In the case at bar, the applicant never testified he was at risk or being sought by the Mali police because of the fact he was related to the leader of the RPP or a political prisoner.
[24] According to the applicant's own testimony, the Mali police were looking for him because he was suspected of being involved in the RPP.
Aunt Assetou Traore, the wife of my uncle told me not to stay. She told me the police was looking for me since I was the one who was helping my uncle to distribute the flyer, to set up the hall where the meeting was held,
I am a victim because I helped my uncle to organize the meeting on March 4, 2001.
Applicant's Personal Information Form, affidavit of Moussa Mariko of October 17, 2003, Exhibit A, applicant's record, tab 3
Q: Now, you said the reason for your fear returning back home is because of your political opinion?
A: Yes.
Transcript of hearing before RPD on July 14, 2003, RPD's certified record, vol. 2, p. 262
Q: Now, how did the police - do you know how the police got to know your activities
A: They investigated my uncle's activities, all phone numbers and then they investigated me also.
Q: Why you?
A: Because I helped my uncle by distributing the pamphlets and also by fixing the meeting hall.
Transcript of hearing before RPD on July 14, 2003, RPD's certified record, vol. 2, p. 270
[25] Further, there was no evidence in the record to show that the applicant was at risk because of this family connection and there was no documentary evidence showing that members of the family of a political opponent are persecuted by the Mali police. In my opinion, therefore, the panel had no duty to consider this ground.
[26] In the case at bar, criticizing the panel for not taking the applicant's family situation into account is as absurd as blaming it for failing to consider the applicant's race, religion and nationality, other grounds which can be used as bases for a refugee claim under section 96 of the Act, as grounds of persecution.
[27] Despite this, from reading the panel's decision we note that it did nevertheless consider by implication the potentially dangerous consequences resulting from the applicant's family ties. At page 5 of the decision the panel said:
Accordingly, even if the claimant's uncle was detained as alleged, the panel is not persuaded on a balance of probabilities in the circumstances of this case, the claimant would face a serious possibility of persecution, or be subject personally to a danger of torture, a risk to his life or a risk of cruel and unusual treatment of [sic] punishment.
[28] Further, the applicant never alleged that the other members of his uncle's family _ his wife and two children _ were being sought by the Mali police. We should also bear in mind that it is the wife of the applicant's uncle who allegedly told him the police were looking for him after his uncle's arrest. This clearly shows that she had absolutely no fear of persecution, despite her family connection with the accused, and that ipso facto the fear was linked only to political activities, not family situation.
[29] All this leads the Court to conclude that the applicant cannot blame the panel for failing to consider the ground of membership in a particular social group as a reason for persecution. In the case at bar, it cannot logically be maintained that the panel made an unreasonable decision in concluding as it did. Accordingly, this is not an error that warrants intervention by the Court.
[30] In short, the panel correctly applied the right standard of evidence in considering the objective validity of the applicant's fear of persecution, and correctly decided not to accept the applicant's membership in a particular social group as a reason for persecution, and this Court does not see how it could justify intervening.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No serious question of general importance was certified.
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"Sean Harrington" |
Juge
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7190-03
STYLE OF CAUSE: MOUSSA MARIKO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: AUGUST 12, 2004
REASONS FOR ORDER AND ORDER: MR. JUSTICE HARRINGTON
DATED: AUGUST 16, 2004
APPEARANCES:
Jacques Despatis FOR THE APPLICANT
Marie Crowley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jacques Despatis FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada