Date: 19981022
Docket: IMM-14-98
BETWEEN:
ISAAC ARHIN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision rendered by the Immigration and Refugee Board (the "Board") on December 17, 1997, wherein it was determined that the Applicant was not a Convention Refugee because of his political opinion and membership to a particular social group.
[2] The Applicant, a citizen of Ghana, was born on October 12, 1967, in Kumasi. He trained as an auto-mechanic from 1984 to 1988 and eventually worked as a taxi-driver. In 1992, Mr. Ofori Attah, assistant secretary of Tafo NPP constituency in Kumasi, met the Applicant and he subsequently became of member of that party which was in opposition to the government.
[3] He became the chief driver of the party's branch at Tafo; driving officials to rallies; distributed posters and other party materials to members; he also repaired and serviced the broken down party vans.
[4] After the November 1992 presidential elections, the Applicant claims that three soldiers impounded the party van he was driving to transport supporters of his party to demonstrations. These soldiers set fire to the van; he escaped. For nearly two weeks following, the soldiers hunted for the Applicant; during this time, he hid at a friend's house. According to the Applicant, he was able to return home only after the intervention of the party secretary. As a result of this incident, the Applicant kept a very low profile for the next three years.
[5] In December of 1996, as the presidential elections approached, members and supporters of the NPP and PCP (The Great Alliance) held a massive rally at Tafo to boost the moral of the undecided voters to vote for the Alliance. On the day of the rally, the Applicant was put in charge of transporting drinks, food and other party items to the rally. However, during one of the trips, five NDC "well built fanatics" called "macho men", trained by the government to terrorize and harass political opponents, stopped the Applicant and ordered him to divert the items that he was transporting to their office.
[6] The Applicant was struck by one of them on the nose; the Applicant, in a spontaneous reaction, placed his van in gear and fled at high speed. He nearly hit one of them and the NDC reacted by pursuing him; he nevertheless escaped.
[7] A few hours following this incident, NDC fanatics attacked NPP supporters at the rally. The Applicant saw the men that previously had attacked him; he was struck down by one of them; another used his steel boot to squeeze his scrotum and ordered his partner to stab the Applicant with a knife. Some of the NPP supporters came to the Applicant's rescue and brought him to the hospital. While at the hospital, the Applicant claims that a "macho man", an NDC supporter disguised himself as an NPP member and tried to visit him. However, the visitor was searched by a guard who discovered a knife in his pocket; he was turned over to the police; no charges were laid.
[8] Following two days in the hospital, the Applicant hid at his cousin's house. The NDC men went to his residence where they beat his wife and told her that they would hunt down and kill her husband because he had allegedly attempted to hit one of them with the party van. On February 14, 1997, after being unable to receive police protection, the Applicant fled the country and came to Canada.
DECISION OF THE BOARD
[9] On December 17, 1997, and following three separate sittings, the Board determined that the Applicant was not a Convention Refugee. In arriving at this decision, the Board stated the following:
| "... the Division concludes on a balance of probabilities that the claimant was not attached by reason of his political opinion as a supporter of the NPP, nor as the son of Chief Paul ARHIN, member of the NPP. The evidence in this case demonstrates that low level NPP supporters in Ghana are not subject to serious harm amounting to persecution. More to the point, the Division concludes that the claimant was not a member of the NPP." |
The Board was of the opinion that the Applicant was not credible. In particular, the Board noted that he knew little about NPP ideology, history, structure and its top leadership. In this regard the Board stated:
| While a driver is not expected to display extensive knowledge of party ideology, a strong party supporter, as the claimant alleges to be, should be able to explain his interest in the party in a more substantial manner than the claimant did, if he is to be believed. Surely, he is expected to know, or at least, recognize the name of the presidential candidate. |
[10] The Board also noted that there existed certain discrepancies in the Applicant's testimony.
[11] The Board also did not attribute any probative value to a fax copy of an alleged NPP letter confirming the Applicant's story because they did not believe him.
[12] The Board also found no link between the alleged incidents involving the Applicant's father and the Applicant's alleged 1992 and 1996 incidents. The Board concluded that this was an attempt to embellish a false story of persecution.
[13] The Board also believed that the 1992 incident was a fabrication. In this respect, it stated:
| ... the claimant's testimony to the effect that the soldiers left after setting the care on fire militates against his contention that they hunted him for two weeks afterwards. Moreover, the panel does not find plausible that the soldiers would have abandoned the vehicle and its driver, and search for that driver afterwards for two weeks. |
[14] Regarding the Applicant's hospital stay, the Board again believed that this was a made-up story to support a false claim. In particular, the panel noted that the Applicant was unable to provide the attacker's name even though he had been handed over to the police. The Board did not accept the Applicant's testimony to the effect that these "people" were only known by their nicknames.
[15] With respect to the expert testimony provided by Kwatwo Appiaggyei, a lawyer by profession, on the conditions and the situation prevailing in Ghana, the Board noted the following:
| The panel restricted the opinion of the expert when pertaining to the claim itself since he had not met the claimant until after his counsel contacted him for the purpose of the hearing. We believe that an expert witness on the country conditions should report on those conditions and not comment on a specific claim with which he is unfamiliar. |
[16] Based on this expert testimony, the panel noted that it did not believe that the Applicant would be in the category of people likely to be targeted.
[17] Finally, the Board also did not accept the Applicant's evidence that he did not have to pay a fee to a complete stranger, an American smuggler, who helped him escape. To the panel it was unbelievable that a smuggler would never render such services without remuneration. Again, it noted that this was another invented story on the part of the Applicant. For these reasons, the Board concluded that the Applicant had concocted a false story of persecution to present an unjustified claim for the status of refugee and rejected his claim.
ISSUES
[18] Applicant's counsel claims that there is no basis for the negative decision as to credibility; he contends that the panel decisions are absurd, arbitrary and without regard to the evidence.
[19] The Applicant agrees that he was not able to explain the NPP ideology; but the Board did note that he was only a driver and should not be expected to have extensive knowledge of the party ideology.
[20] As to the panel's conclusions on the Applicant's father, it indicates bad faith; the Applicant was simply trying to show continued persecution against his family.
[21] The Applicant submits that his expert witness was not allowed to express his opinion with respect to the Applicant's case, that an expert witness should be allowed to provide his opinion on the facts of a case. Accordingly, by denying the expert to do so, the tribunal showed an absence of impartiality.
[22] The Applicant submits that the Board has a generally biased attitude towards the Applicant. In particular, the Board had an extremely negative attitude not only towards the testimony of the expert witness but also towards the Applicant.
[23] The Respondent submits that in its reasons, the Board stated in clear and unmistakable terms, the evidence on which it found the Applicant lacked credibility and doubted the veracity of his story.
[24] The Respondent submits that this Court should not intervene on questions of credibility unless the Applicant can establish that the decision of the Board is without support in the evidence.
[25] With respect to the Applicant's allegations surrounding the 1996 hospital attack; the Board had the benefit of seeing and hearing the manner in which the Applicant testified and found his allegations inconsistent and doubtful. Therefore, the Applicant did not establish any reasonable doubt to warrant this Court's intervention.
[26] With regard to the documentary evidence, the Board considered it and assessed its weight. The Board was under no obligation to expressly reject the documentary evidence and there is a presumption that the Board considered all evidence submitted at the hearing.
[27] The Court has had an opportunity of reading the entire transcript of the evidence and I have detected no error of law or misinterpretation of facts sufficient to support the Applicant's contentions.
[28] If he felt that there was bias prevailing during this hearing he should have raised it before submitting it in argument upon Judicial Review. He had ample opportunity over the several weeks that the hearing took place before the Refugee Board to raise the issue.
[29] As to credibility the Board's findings are supported by the evidence. Here we have an individual who considers himself a stalwart of a government opposition party but only attends rallies on two occasions over a three year period and expects the Board to accept that he is being sought for persecution in his homeland; that he hid for two weeks after a stay in hospital and found a charitable American smuggler that helped him escape his native Ghana? Incredible
[30] On the issue of the expert witness: there is no doubt that he was allowed to express his opinion on the country conditions in Ghana; but as the Board pointed out, how could he express an opinion on this claimant's situation having just met him. What risks the Applicant may face is a matter of fact and it is the Board's function to make such a determination.
[31] The finding of credibility is a question of fact.1 The panel of the IRB that hears a refugee claim is in a unique position to assess the claimant's credibility; findings of fact based on internal contradictions, inconsistencies and evasive statements are "the heartland of the discretion of triers of fact".2 Considerable restraint must therefore be exercised in judicial review proceedings in respect of findings relating to credibility, and they may not be set aside unless they were made in a perverse or capricious manner or without regard for the material before the Board.3
[32] As stated by Noel, J. in Oduro v. M.E.I.4:
| However, it is not for me to substitute my discretion for that of the Board. The question must consider is whether it was open for the Board on the evidence to conclude as it did ... the fact that I might have seen the matter differently does not allow me to intervene in the absence of an overriding error. |
Similarly, in Aguebor v. M.E.I.5, this Court held:
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the 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. |
[33] The application for judicial review is hereby dismissed.
[34] Following the hearing counsel for the Applicant was of the view that two questions should be submitted for certification pursuant to section 88 of the Immigration Act:
| "Is it proper in Law for the tribunal to limit the questioning of the expert witness and to not permit questions about the specific case relative to plausibility?" |
| "Is the tribunal right to refuse to hear the expert witness's opinion on the facts of the case?" |
[35] I am satisfied that no such question should be submitted for certification; this was a case determined on facts and credibility. An expert opinion is provided to assist the Court in cases where it is unable to arrive at a decision in areas outside its expertise or experience. The Board accepted the expert's opinion on country conditions but refused to hear his opinion on precisely how this Appellant's situation may relate to conditions in Ghana. This was for the Board to determine on the facts.
[36] The law on expert testimony has been sufficiently examined and defined, no further refinements, as it applies to refugee claimants, need be pursued.
__________________________
Judge
Ottawa, Ontario
October 22, 1998
__________________1 White v. R., [1947] S.C.R. 268.
2 Dan-Ash v. M.E.I. (1988), 93 N.R. 33 (F.C.A.); Giron v. Canada (M.E.I.) (1992), 143 N.R. 238.
3 Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R. 300 (F.C.A.)