Date: 20001110
Docket: IMM-5983-99
Ottawa, Ontario, the 10th day of November, 2000
Present: The Honourable Mr. Justice Pinard
Between:
Mamoudou DIALLO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed in part. The matter is sent back to a differently constituted panel of the Refugee Division for reconsideration, in light of the evidence as a whole, of the sole issue of the lack of a credible basis for the applicant's claim under subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2.
| J. |
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20001110
Docket: IMM-5983-99
Between:
Mamoudou DIALLO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision rendered on November 18, 1999 by the Refugee Division of the Immigration and Refugee Board, ruling that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act) and finding that there was no credible basis for his claim pursuant to subsection 69.1(9.1) of that Act.
[2] The applicant is a member of the Tulani ethnic group, originally from the Kaporo-Rails area in Guinea. He alleged before the Refugee Division that he had been persecuted in his country by reason of his political opinions and his membership in a particular social group (the Tulani).
[3] The panel declined to award the applicant refugee status, holding that his fear of being arrested by the authorities for causing the death of two individuals while he was fleeing detention is unrelated to his real or alleged political opinions. The panel held that the applicant actually feared having to answer for some acts under a law of general application. In this regard the Refugee Division cited the following passage from the Handbook on Procedures and Criteria for Determining Refugee Status of the Office of the United Nations High Commissioner for Refugees (Geneva, January 1979):
| Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim -- or potential victim -- of injustice, not a fugitive from justice. |
[4] This finding of fact by the panel is supported by the record. First, when questioned on the reason why he would be arrested in Guinea, the applicant replied:
| [Translation] |
| Q. But if they were to arrest you upon your return to Guinea, it would be for what reason in your view? What would the authorities there criticize you for at this point? |
| A. Because they will say I am the one who caused the accident and there were two (2) deaths as a result of that accident. |
| -- And... OK. |
| Q. So it is true, in the sense that you are the one who had grabbed the wheel, you provoked, without wanting it, maybe, but you provoked the accident? |
| BY THE ADVISOR (to the Refugee Claim Officer) |
| -- Yes. |
| BY THE REFUGEE CLAIM OFFICER (to the person in question) |
| -- And those are the reasons why they would probably arrest you if you were to return. |
| A. Yes. |
[5] The very existence of the law of general application is presumed from the documentary evidence, which refers to the existence of a "Penal Code" and from the above answers by the applicant, which do not specifically refer to his political opinions or his membership in a particular social group to justify his fear.
[6] In the circumstances, it is not the task of this Court to substitute its own assessment of the facts for that of the specialized tribunal, the Refugee Division.
[7] However, this was not a sufficient basis for the panel to conclude, automatically, from this consideration alone, that there was no credible basis to the claim under subsection 69.1(9.1) of the Act, since this was not a decision based on the applicant's lack of credibility. The record discloses in particular that, prior to the accident he provoked and for which he said he feared being arrested, the applicant was already under arrest to be taken to Camp Alfayaya:
| [Translation] |
| Q. Your personal fear, it is based on what, Sir? What do you fear at present? |
| ... |
| -- What I fear is that, since they had arrested us, we were about to be sent to Alfayaya, to Camp Alfayaya. And if I go there, I am lost. |
[8] Given that this latter arrest was made following a meeting of the Union pour la nouvelle république, held on March 29, 1998, in the market of Kaporo-Rails, at which the police are reported to have intervened, shots were fired, the crowd was teargassed, some people were wounded and even killed, and arrests were made, and given that the documentary evidence, including the Guinea Country Report on Human Rights Practice for 1998, dated February 26, 1999, reports extensively on the violation of human rights of the prisoners, the panel should in my opinion have considered the whole of the evidence including in particular the preceding factors before finding that there was or was not any credible basis to the applicant's claim.
[9] Consequently, the application for judicial review is allowed in part. The matter is sent back to a differently constituted panel of the Refugee Division for reconsideration, in light of the evidence as a whole, on the sole issue of the lack of a credible basis for the applicant's claim under subsection 69.1(9.1) of the Act.
| J. |
OTTAWA, ONTARIO
November 10, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: IMM-5983-99 |
| STYLE: MAMOUDOU DIALLO v. MCI |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: OCTOBER 10, 2000 |
REASONS FOR ORDER OF PINARD J.
DATED: NOVEMBER 10, 2000
APPEARANCES:
EVELINE FISET FOR THE APPLICANT
THI MY DUNG TRAN FOR THE RESPONDENT
SOLICITORS OF RECORD:
EVELINE FISET FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada