Ottawa, Ontario, November 30th, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Protection Board (the "Board") dated December 9, 2004 in which the applicant was found not to be a Convention refugee or person in need of protection because of credibility concerns with respect to the basis of the applicant's fear of persecution.
FACTS
[2] The applicant, a 45-year old citizen of Ghana, claims a well-founded fear of persecution based on political opinion at the hands of members of the Abudu tribe who would kill him if he returned to Ghana.
[3] At the risk of over-simplifying, there was inter-tribal violence in 2002 and 2003 between the Andanis tribe and the Abudus tribe (which are really two clans of Dagombas tribe). The cause of the violence was a dispute over the chieftaincy. I note that the US Department of State Report for Ghana makes reference to such chieftaincy disputes causing several deaths and injuries each year. The chieftaincy alternates between these two tribes. However, the Chief Talon-Na from the Abudas tribe was beheaded and that precipitated extreme violence by the Abudas tribe against members of the Andanis tribe. The applicant belonged to neither tribe, but worked as a research officer in the Tamale, the area where the violence was occurring. He provided eight members of the Andanis tribe with shelter in his house for three weeks. They were Christians, like the applicant, and were running away from the killings.
[4] The applicant claims to have been perceived by Abudus as a sympathizer of the rival Andanis tribe because: (1) he tutored children of the chief of the Andanis tribe; and (2) he sheltered eight Andanis members in his home during a tribal conflict in April 2003. Specifically, the applicant claims:
i. after sheltering the Andanis members for three weeks, armed Abudus raided his home in search of them; the applicant and his two sons escaped and fled;
ii. fearing pursuit by Abudus, he and his sons fled the same day to Kumasi, Ghana;
iii. on December 14, 2003, his two sons were killed by Abudus in his home while he was out; the applicant fled to Accra, Ghana where he stayed in hiding for two months; and
iv. the Abudus are spread all over Ghana, including the capital city Accra.
[5] On February 1, 2004 the applicant fled Ghana, arrived in Canada via the United States on February 3, 2004, and sought refugee protection.
THE DECISION
[6] The Board rejected the applicant's claim because he lacked credibility and because there is an internal flight alternative ("IFA") in the city of Accra, Ghana. For these reasons the panel found the applicant had no subjective fear of persecution. To succeed in this application for judicial review, the applicant must demonstrate that both the adverse credibility finding and IFA finding were patently unreasonable.
ISSUES
[7] Two issues are raised in this application:
1. Did the Board make a patently unreasonable credibility finding in respect of an issue material to the applicant's refugee claim?
2. Did the Board err in finding that an internal flight alternative was open to the applicant in Accra, Ghana?
ANALYSIS
Issue No. 1: Did the Board make a patently unreasonable credibility finding in respect of a material issue to the applicant's refugee claim?
[8] The applicant submits that the Board's cumulative credibility finding is patently unreasonable. Specifically, the applicant submits the Board erred by drawing an adverse inference from concluding the applicant's claim to have tutored children of the Andanis chief was an embellishment of his persecution, while ignoring his reasonable explanation.
[9] It is not the Court's function to re-evaluate the Board's fact findings on their merits. The Court will intervene where such findings are patently unreasonable, but will not disrupt reasonable findings which the Court would have concluded differently. See Chen v. Canada(Minister of Citizenship and Immigration), 2002 FCT 1194, where I held at paragraphs 4-5:
¶ 4 The Board is an expert tribunal in determining refugee claims. In 2001, the Board heard over 22, 000 refugee claims, allowing 13,336 claims and denying 9,551 claims. Moreover, the Board has direct access to the testimony of the witness, and is in the best position to assess the credibility of the witnesses. Accordingly, the standard for reviewing findings of credibility made by the Board is that of patent unreasonableness, see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.). In Aguebor, the Federal Court of Appeal said:
Who is in a better position than that Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
Before a credibility finding of the Board is set aside (and before leave is granted for an application with respect to a credibility finding), one of the following criteria must be established (or fairly arguable in the case of the leave application):
1. the Board did not provide valid reasons for finding that an applicant lacked credibility;
2. the inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. the decision was based on inferences that were not supported by the evidence; or,
4. the credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
See Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 at para. 11 per Madam Justice Reed.
¶ 5 Credibility findings of the Board are entitled to the highest degree of curial deference, and the Court will only set aside credibility decisions, or grant leave for applications for judicial review of credibility findings, in accordance with the criteria outlined above. The Court should not substitute its opinion for that of the Board with respect to credibility or plausibility except in the clearest of cases. For this reason, applicants seeking to set aside credibility findings have a very heavy onus to discharge both at the stage of seeking leave, and at the hearing if leave is granted.
Applicant's political profile
[10] The Board made an adverse credibility inference because the applicant's testimony on his political profile was inconsistent with his first PIF. At his hearing, the applicant explained that he did not include his tutor position in his original PIF because it was part-time employment and because it was not taxable income. The Board rejected his explanation as not reasonable because it was crucial to establishing how his persecutors identified him as an Andanis sympathiser. The applicant submits that the Board erred by ignoring his evidence that his political profile also stemmed from his persecutors' discovery that he was giving safe refuge to eight Andanis members in his house for three weeks. This evidence was both in oral testimony and in both PIFs. The respondent submits this evidence was not ignored, since the Board refers to it as an allegation at the outset of its decision. However, the Board does not refer to this when analysing the applicant's subjective fear of persecution; rather, the panel found the alleged tutoring position was central to his claimed political profile.
[11] It is well established that the Board is assumed to have weighed and considered all evidence before it, unless otherwise shown (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 at para. 1 (F.C.A.)), and the panel need not mention each evidentiary minutiae in its reasons, provided it considers the totality of evidence (Hassan v. Canada(Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). However, the Board must refer to and distinguish important, relevant and contradictory evidence, or else the Court will assume such evidence was ignored (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at paragraph 17 per Evans J.).
[12] The Court concludes that the Board erred by ignoring the applicant's evidence of sheltering the Andanis members and made a patently unreasonable finding of fact in concluding the applicant did not have the political profile he alleges without addressing this important evidence. The extension of safe refuge to the Andanis members ultimately led to the Abudus' raid on the applicant's house, which could reasonably explain how the Abudus became aware of his identity as an Andanis sympathizer, independent of his tutoring position for the Andanis chief. The raid on the applicant's home could also explain why his persecutors followed him to Kumasi and killed his sons. In the Court's view, the evidence pertaining to harbouring Andanis members was important, relevant, and credible, such that it required the Board to refer to it and identify why it rejected it or preferred the evidence relating to tutoring.
Issue No. 2: Did the Board err in finding that an internal flight alternative was open to the applicant in Accra, Ghana?
[13] The standard against which to review a decision of the Board on a question of internal flight alternative is patent unreasonableness (Ramachanthran v. Canada(Minister of Citizenship and Immigration), 2003 FCT 673). The applicant has the burden of establishing, on the balance of probabilities, that there is a risk of persecution throughout his entire country (Karthikesu v. Canada(Minister of Employment and Immigration), [1994] F.C.J. No. 772). The legal test is two-fold: first, the applicant must show that there is a serious possibility of being persecuted in the identified IFA, namely the city of Accra; second, he must show that the conditions in Accra are such that it would be unreasonable for him to seek refuge there (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589). For an IFA to be unreasonable, it requires the existence of conditions that would jeopardize the life and safety of a claimant in travellingor temporarily relocating to a safe area. See Ranganathanv. Canada(Minister of Citizenship and Immigration), [2001] 2 F.C. 164.
[14] The Board concluded that the applicant adduced insufficient evidence to establish Accra was not a viable internal flight alternative, noting that he was not contacted or confronted by Abudus during his stay in Accra prior to his coming to Canada. The applicant submits that the Board erred by ignoring his evidence or failing to address his explanation that he was hiding in Accra during the entirety of his time in that city, fearing that the Abudus would hunt him down and kill him, as they had killed his sons. The applicant also testified that the Abudus are located throughout the entire country of Ghana, and that they would be able to follow him as far as Accra, just as they had followed him from Tamale to Kumasi. The Court concludes that the Board erred in not addressing the applicant's evidence that he was in hiding, since that could explain the reason he was not identified and confronted by his persecutors in Accra. This evidence was sufficiently important and relevant to the issue of IFA that it was incumbent on the Board to properly address it in its reasons, which it did not do. Accordingly, this finding of fact was patently unreasonable.
[15] The Board's failure to address the applicant's evidence he was in hiding is also fatal under the second prong of the IFA test. The Court concludes that it would not be reasonable to require the applicant to return to Accra under conditions where he would have to remain in hiding in perpetuity, so as to avoid detection by Abudus who would harm him on discovery.
CONCLUSION
[16] Since the Board's determinations of credibility and internal flight alternative were both patently unreasonable, the Court is of the view that had the Board not erred, it may have reasonably found the applicant to have had a subjective fear of persecution in Ghana, and no IFA. Accordingly, the decision of the Board must be quashed and remitted to a different panel for redetermination.
[17] The parties did not propose a question of general importance for certification, and none is certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is allowed, the Board's decision dated December 9, 2004 is set aside and the matter remitted to a differently constituted panelfor redetermination.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10595-04
STYLE OF CAUSE: EDWARD OFFEI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 24, 2005
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
| Jeinis Patel
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| Nicole Butcher Department of Justice
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SOLICITORS OF RECORD:
| Jeinis Patel Persad, Patel LLP Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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