Federal Court Decisions

     IMM-2780-96

BETWEEN:

     SANNI MOHAMMAD MALLAM

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PINARD J.

         The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board dated June 25, 1996, in which the Refugee Division determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act. The applicant claims to have a well-founded fear of persecution in Ghana by reason of his religion and nationality, i.e. his tribal affiliation.

         In my opinion, the only real issue on this application is whether the Board erred in finding that the applicant failed to establish the inability of the state to protect him.

         In my view, the applicant's arguments with respect to the Board's credibility findings are not relevant to the present application. Although the Board did find that the applicant did not always testify in a straightforward and trustworthy manner, and noted some inconsistencies in his testimony, the Board nonetheless found the substance of the applicant's claim to be "acceptable". The Board thus accepted that he had established the subjective element of a well-founded fear of persecution. As to the applicant's written arguments regarding section 7 and section 12 of the Canadian Charter of Rights and Freedoms, it is my opinion that the decisions of the Federal Court of Appeal in Barrera v. Canada, [1993] 2 F.C. 3, Baker v. M.C.I. (November 29, 1996), A-441-95, and Williams v. M.C.I. (April 11, 1997), A-855-96, as well as numerous other decisions, have effectively disposed of these arguments.

         The applicant argues that the Board erred in finding that the Ghanaian authorities would be able to protect him from the tribal rituals which he fears. Following the decision in Canada (Attorney-General) v. Ward, [1993] 2 S.C.R. 689, it is now recognized that assessing the ability of the state to protect is a key part of the test for determining whether a refugee claimant has an objectively well-founded fear of persecution. In Ward, at page 722, Justice La Forest explained that:

It is clear that the lynch-pin of the analysis is the state's inability to protect: it is a crucial element in determining whether the claimant's fear is "well-founded", and thereby the objective reasonableness of his or her unwillingness to seek the protection of his or her state of nationality. . . .

         Justice La Forest went on to find at page 724 that although "clear and convincing confirmation of a state's inability to protect must be provided", nevertheless "only in situations in which state protection "might reasonably be forthcoming", will the claimant's failure to approach the state for protection defeat his claim". He stated that: "[P]ut another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state".

         As the Board correctly indicated in its decision, the onus is on the applicant to establish that the state is incapable of protecting him. Again, in Ward, Justice La Forest indicated at page 725 that "[A]bsent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens."

         In the present case, the Board concluded that the applicant had failed to displace the presumption that the state would be able to protect him. In addition to citing evidence pointing to the fact that the practice of ritual murder is officially condemned by the government, and that persons found to have engaged in such practices are prosecuted for murder, the Board relied particularly on the fact that "at no time did the claimant establish that he has sought the authorities' protection or that the authorities of his country have failed or have refused to protect him".

         It is well-established that assessment and weighing of evidence is at the heart of the Board's jurisdiction. Moreover, there is a presumption that the Board considered all of the evidence before it in arriving at its decision. In Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317, the Honourable Mr. Justice Heald made the following remarks on this subject, at page 318:

Counsel for the appellant submitted, however, as noted supra, that other portions of the Amnesty International Report were ignored by the Board and that such a circumstance represent a valid ground of appeal. I respectfully disagree. In my view the conclusions of the Board were reasonably open to it based on the totality of the evidence adduced and, consequently, it did not err in law. The fact that some of the documentary evidence was not mentioned in the Board's reasons is not fatal to its decision. The passages from the documentary evidence that are relied on by the appellant are part of the total evidence which the Board is entitled to weigh as to reliability and cogency. [. . .] My examination of the record before the Board persuades me that it did, in fact, consider and weigh the total evidence in a proper fashion. . . .

         In this context, the only question is whether the Board's finding that the applicant could benefit from state protection was unreasonable in light of all the evidence. A review of the transcript of the hearing indicates that the Board members went through the evidence before them in some detail, and questioned the applicant at length with respect to elements of his testimony and of the documentary evidence which caused them concern. Thus, there is no basis for saying that the Board members ignored evidence. Although I might have come to a different conclusion on the same facts, it is my opinion that the Board's finding that the applicant did not discharge the burden of showing that the authorities in Ghana would be unable to protect him is not so unreasonable as to warrant the intervention of this Court.

         For the foregoing reasons, the application is dismissed. I agree with counsel for the parties that this is not a matter for certification pursuant to section 83 of the Immigration Act.

OTTAWA, Ontario

June 30, 1997

                                

                                         JUDGE