Date: 20040628
Docket: IMM-9091-03
Citation: 2004 FC 890
BETWEEN:
ALI ISACKO
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 of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated October 16, 2003, wherein the Board found that the applicant is not a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2] Ali Isacko (the applicant) is a citizen of the Central African Republic (the CAR) who claims to fear persecution because of his nationality and because of imputed political opinions. The applicant also claims to be a person in need of protection.
[3] The Board found that the applicant was not a Convention refugee or a "person in need of protection" because it found that there had been a change of circumstances in the CAR which displaced the situation giving rise to his fear of persecution. The Board also found that the applicant had not demonstrated that "compelling reasons" existed to prevent him from returning to the CAR.
[4] The applicant argues that the Board's conclusions with respect to the changed circumstances in the CAR were drawn without an evaluation of his particular situation and that its conclusion regarding the absence of "compelling reasons" is unreasonable. The respondent, on the other hand, submits that the Court has no reason to intervene in this case because the decision was reasonable and well-founded on the facts and the jurisprudence of this Court.
[5] According to paragraph 108(1)(e) of the Act, a claim for refugee protection shall be rejected where the reasons for which the person sought refugee protection have ceased to exist. The question of whether there has been a change in circumstances in the country of origin sufficient to negate a well-founded fear of persecution at the time the applicant fled his country is a question of fact to be determined by the Board (see Stoyanov v. Canada (M.E.I.) (1993), 157 N.R. 394 (F.C.A.)). The only issue to be considered in a case of changed circumstances is the factual question of whether there is a well-founded fear of persecution at the time of the hearing of the claim and each case must be determined on its own facts (Yusuf v. Canada (M.E.I.) (1995), 179 N.R. 11 (F.C.A.)).
[6] In this case, the applicant alleges to fear persecution as a result of his father's alleged links with the May 28, 2001 attempted coup d'état and the regime of ex-President Kolingba. The applicant submitted that his parents were still missing and that he feared that he would be arrested because of his connection to his father and because of his ethnicity as a yakoma, who were generally associated with the attempted coup d'état initiated by ex-President Kolingba. The Board found that according to the documentary evidence, the great majority of yakoma refugees who had fled the CAR following the attempted coup d'état had willingly returned since François Bozizé was named president. Moreover, the Board noted that according to the documentary evidence, a general amnesty was accorded to all who had been accused of links with the attempted coup d'état. Consequently, the Board concluded that there had been a significant change of circumstances in the CAR such that the applicant's fear of persecution was displaced. These changes in the CAR are directly relevant to the applicant's claim, since the evidence demonstrates that the circumstances in the CAR have changed to such an extent that a great number of people who are similarly situated as the applicant, may return safely to their homes in the CAR.
[7] Subsection 108(4) provides that where "compelling reasons" arise out of previous persecution which justifies the applicant's refusal to avail himself of the protection of the country which he left, then paragraph 108(1)(e) does not apply even though the applicant may no longer have any reason to fear further persecution (Canada (M.E.I.) v. Obstoj, [1992] 2 F.C. 739 (C.A.)). Subsection 108(4) is very similar to subsection 2(3) of the former Immigration Act, R.S.C. 1985, c. I-2, and therefore, the case-law that has developed with respect to subsection 2(3) of the former Act may be used as guidance in the interpretation of subsection 108(4) of the Act. The only difference between the old and the new versions of the "compelling reasons" provision is that subsection 108(4) specifies that "compelling reasons" may arise out of persecution, torture, treatment or punishment while subsection 2(3) is limited to previous persecution.
[8] The issue as to whether there are "compelling reasons" in a given case is a question of fact (Rasanayagam v. Canada (M.C.I.), [1995] F.C.J. No. 1080 (F.C.T.D.) (QL)). It is the Board, with its expertise and experience, that is best able to assess whether the applicant falls within the ambit of the "compelling reasons" provision (Hassan v. Canada (M.E.I.), [1994] F.C.J. No. 630 (F.C.T.D.) (QL)). However, this Court has recognized that the "compelling reasons" provision is an exception to the general rule of cessation of Convention refugee status set out in paragraph 108(1)(e) and that it applies only to a small minority of refugee claimants. In Hassan, supra, Rothstein J. noted, at paragraph 11, that:
. . . subsection 2(3) applies only to a tiny minority of present day claimants - those in a special and limited category who can demonstrate that they have suffered such appalling persecution, that their experience alone is a compelling reason not to return them to the country in which they suffered persecution. While many refugee claimants might consider the persecution they have suffered to fit within the scope of subsection 2(3), it must be remembered that the nature of all persecution, by definition, involves death, physical harm or other penalties. Subsection 2(3), as it has been interpreted, only applies to extraordinary cases in which the persecution is relatively so exceptional, that even in the wake of changed circumstances, it would be wrong to return refugee claimants.
[9] When evaluating whether the nature of the past persecution, torture, treatment or punishment gives rise to "compelling reasons" the Board has "the duty to consider the level of atrocity of the acts inflicted upon the applicant, the repercussions upon his physical and mental state, and determine whether this experience alone constituted a compelling reason not to return him to his country of origin" (Shahid v. Canada (M.C.I.), [1995] F.C.J. No. 251 (F.C.T.D.) (QL)).
[10] In this case, the Board considered the fact that the applicant was only seventeen years old when his parents were taken away by the army. However, the Board also noted the fact that the applicant was not himself targeted and he had not shown that he had valid reasons to fear persecution. Moreover, the Board considered that the applicant had not proven that he suffered any psychological trauma as a result of his parents' arrest that could be a compelling reason not to return to the CAR. Accordingly, the applicant did not establish that his past persecution had left any permanent psychological consequences of the level required for subsection 108(4) of the Act to apply. Although the applicant said he suffered a trauma as a result of the events in question, this assertion was not supported by any evidence before the Board, either by the applicant himself or by an expert witness. Consequently, in spite of the applicant's counsel's able presentation, I find that the applicant has not demonstrated that he falls within the very limited class of refugee claimants set out in subsection 108(4) of the Act and the Board's conclusion on this point was not patently unreasonable.
[11] In light of the reasons set out above, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
June 28, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9091-03
STYLE OF CAUSE: ALI ISACKO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 27, 2004
REASONS FOR ORDER BY: PINARD J.
DATED: June 28, 2004
APPEARANCES:
Mr. Michael Crane FOR THE APPLICANT
Ms. Angela Marinos FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michael Crane FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario