Date: 20010123
Docket: IMM-5437-99
Ottawa, Ontario, the 23rd day of January 2001
Present: The Honourable Mr. Justice Pinard
Between:
SJIBRIL SOUARE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision rendered October 8, 1999 by the Refugee Division, ruling that the applicant is not a Convention refugee, is dismissed.
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20010123
Docket: IMM-5437-99
Between:
SJIBRIL SOUARE
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 October 8, 1999 by the Refugee Division of the Immigration and Refugee Board (the RD), 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.
[2] The applicant is a citizen of Guinea. He alleges that he has a well-founded fear of persecution because of his political opinions. On March 23, 1998, he participated in a demonstration against the Guinean government, which was then demolishing the houses in the neighbourhood in order to build a highway there. The demonstrators wanted to be compensated and settled elsewhere at government expense.
[3] When a police officer attempted to arrest the applicant, the latter began to run and inadvertently collided with another policeman, who fell to the ground. The police officer then fired on the applicant, who continued to run in the fear that he would be caught and arrested.
[4] The applicant hid at the home of a friend who later informed him that he was being sought for assaulting a police officer. The applicant left and hid in another region of Guinea, working there as an electrician in the construction industry until the middle of August. Finally, on September 23, 1998, with the help of his friends, the applicant left his country for Canada, where he claimed refugee status a few days later.
[5] During his testimony, the applicant also mentioned that he had been held in 1996 for wearing a T-shirt of the Rassemblement du peuple guinéen, a political party. On this matter, however, the applicant's counsel acknowledged at the hearing before me that this was not the foundation for the fear of persecution that is alleged.
[6] The RD did not question the applicant's credibility. It based the dismissal of his claim on the conclusion that there was no "reasonable possibility" of persecution should he return to Guinea. The Division, in fact, found that the applicant essentially fears being prosecuted because he clashed with a police officer during a demonstration and because he would be considered an instigator of this incident.
[7] Concerning the applicant's fear of being prosecuted for clashing with a policeman, I think this is not an action that has any relationship to the Convention reasons. In Zolfagharkhani v. Canada (M.E.I.), [1993] 3 F.C. 540, the Federal Court of Appeal ruled that the fear of prosecution under a law of general application does not constitute a fear of persecution per se unless the applicant can show that this law is persecutory in nature in relation to a ground set out in the Convention, and this has not been established in the case at bar.
[8] In regard to the applicant's fear of being considered an instigator of the demonstration owing to his political opinions, this fear has no greater relationship with any ground in the Convention. In Musial v. M.E.I., [1982] 1 F.C. 290, the Federal Court held, at page 294 (per Pratte J.A.), that when a person is punished for violating a law of general application, it is because of the offence that was committed and not the political motivation behind his action:
A person who is punished for having violated an ordinary law of general application is punished for the offence he has committed, not for the political opinions that may have induced him to commit it. In my opinion, therfore, the Board was right in assuming that a person who has violated the laws of his country of origin by evading ordinary military service, and who merely fears prosecution and punishment for that offence in accordance with those laws, cannot be said to fear persecution for his political opinions even if he was prompted to commit that offence by his political beliefs.
[9] In any event, the evidence on the record clearly supports the RD's conclusion that there is no reasonable possibility that the applicant will be persecuted for his instigation of the revolt. In fact, a document published by Amnesty International, a credible and reliable source, indicates that the individuals arrested at the time were freed pursuant to a presidential pardon. The RD could of course prefer the documentary evidence to the applicant's testimony (see Zhou v. Minister of Citizenship and Immigration (July 18, 1994), A-492-91 (F.C.A.)).
[10] For all these reasons, the intervention of this Court is not justified, and the application for judicial review is dismissed.
J.
OTTAWA, ONTARIO
January 23, 2001
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-5437-99
STYLE: SJIBRIL SOUARE v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: NOVEMBER 15, 2000
REASONS FOR ORDER OF PINARD J.
DATED: JANUARY 23, 2001
APPEARANCES:
LUC R. DESMARAIS FOR THE APPLICANT
SHERRY RAFAI FAR FOR THE RESPONDENT
SOLICITORS OF RECORD:
LUC R. DESMARAIS
Montréal, Quebec FOR THE APPLICANT
MORRIS ROSENBERG
Deputy Attorney General of Canada FOR THE RESPONDENT