Date: 20040225
Docket: IMM-5883-02
CALGARY, Alberta, Wednesday, the 25th day of February, 2004.
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
MARTIN ADOMAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated November 6, 2002. The Board found that the Applicant was not a Convention refugee nor was he a person in need of protection on the basis that he was not a credible or trustworthy witness, and he failed to present clear and convincing proof of the state's inability to protect him.
[2] The Applicant is a citizen of Ghana. He arrived in Canada on December 16, 2001. He claims persecution by reason of his political opinion and membership in a particular social group. In addition, he claims to be a person in need of protection.
[3] The Applicant is a member of the Twabiri Clan, one of three clans of the royal family in his town of Nsoatre. He fears persecution at the hands of a the Nsesreso Clan, a rival clan, and the police in connection with a dispute over the appointment of chief for the town. The Applicant's evidence was that in April 2000, the chief died, and in accordance with custom, it was the Twabiri Clan's turn to nominate a new chief. The Applicant was nominated chief, but decided to pass on the nomination to his nephew. The nomination was accepted by the Queen Mother and the council of elders, and the Applicant paid the "aseda", the customary token of appreciation. The Applicant learned that the Queen Mother and council of elders accepted a bride in exchange for allowing a member of the Nsesreso Clan to become chief. On March 4, 2001, the day before the installation of the new chief, a group of men from the Nsesreso faction attacked members of the Twabiri faction, and three people were killed. The Applicant gave evidence that the Nsesreso Clan aimed to kill the Applicant and his nephew to ensure the Nsesreso Clan's candidate would be installed as chief, however the Applicant and his nephew managed to escape. The Applicant stated that he learned that the Nsesreso Clan's candidate for chief and his supporters told the police that the Applicant had instigated the ensuing violence and should be arrested. The Applicant alleges that if he were returned to Ghana, he would be seriously harmed or killed by members of the Nsesreso faction or that he would be arrested by the police because of the allegations that he instigated the violence between the two Clans.
[4] The Board found the Applicant is not a credible witness on the basis that he did not attempt to obtain information concerning the current status of the chieftancy dispute and the current situation of his nephew. The Board rejected the Applicant's explanation that he did not seek such information because there were Nsesreso Clan members living in Toronto who could harm him, and he did not want anyone to know he was in Canada.
[5] The first finding made by the Board was a negative credibility finding which reads as follows:
Credibility
For the following reasons, I find the claimant not to be a credible and trustworthy witness. It is the claimant's evidence that, as a member of the Twabiri clan of the royal family, he had been actively involved in the political affairs of his town and had been responsible for financing and organizing his nephew's candidacy for chief. Given this evidence, the claimant was asked why he made no attempts to find out what was happening with the chieftancy dispute in Nsoatre, and in particular the current whereabouts of his nephew. The claimant testified that he asked his mother about his nephew and she thought his nephew was also in Canada. When asked whether he spoke to anyone else from his town in an effort to ascertain what has happened to his nephew, he testified that he did not speak to anyone else because he does not want anyone to know he is in Canada. He further testified that when he asks his mother about his nephew she starts crying and saying he must be dead. The claimant was again asked whether it was possible for him to contact anyone in his town to obtain information about the chieftancy dispute and the situations of he and his nephew. He testified that he has some friends in his town, but if he talks to them they will tell others where his is. When asked why this would be a problem since he was in Canada, the claimant testified that there are some people from the Nsesreso clan living in Toronto and that they could do something to harm him. The claimant's fear of being subjected to serious harm at the hands of members of the Nsesreso clan because of his financial and other support for his nephew's candidacy to be the new chief in Nsoatre is a central element of his refugee protection claim. As the Twabiri clan's candidate for chief in Nsoatre, the claimant's nephew is a person similarly situated to him. Therefore, I find the claimant's explanations for not attempting to obtain information concerning the current status of the chieftancy dispute and the current situation of his nephew to be unreasonable and not credible. I find the claimant's apparent lack of interest in attempting to obtain this information seriously undermines his credibility.
(Board Decision, p. 4) [Emphasis added]
[6] The Applicant argues that the negative credibility finding is based on a misunderstanding of the evidence, and, as a result, the finding is made in reviewable error.
[7] The evidence before the Board was as follows:
THE CLAIMANT: I always -- I always ask my mother about this nephew, and according to them they think that I am with him over here. So I -- I told them that no, since we separated that night in the village in the bush I didn't see him again.
BY MR. CYELESE:
Q. Okay. You said you always ask your mother, did you ask anybody else in your group?
A. No. I always tried to limit my communications to my mother. I don't want other people to know that even I am here.
Q. Okay, I'm talking about finding out information about your nephew that you were sponsoring for the chieftaincy title. What efforts have you made to find out what has happened to him?
A. Anytime I talked with my mother I ask her about this nephew and whenever I thought to talk --I thought to ask her about him, my mother would start crying. So I do feel that this guy is dead and they don't want to tell me.
Q. Okay. Then again I'll ask you what about the other members of the group that you were having the meeting that was disrupted, that you were conducting affairs of the village with and you were making representations to the chief. The other members of the group that you were associating with, have you contacted any of them?
A. No, I haven't done that.
Q. Why not, since you were very influential in the village?
A. I was -- my mother always advised me that I should not, you know, communicate with other people because if they got to know that I am here she doesn't know what will happen to me.
Q. Where does your mom live?
A. In Siatra.
Q. How do you communicate with your mother in Siatra?
A. By telephone.
Q. Is there any reason why it's only your mom you've talked to about this? Is there any reason why it's only your mom you're communicating with about affairs of the village and not other members of the group that are about your age group, that were actually involved in the whole chieftaincy matter?
A. Always I get the information I need from my mother so I don't see the reason why I should go outside her for additional information.
Q. Have you tried to contact any member of the Counsel of Elders, for example?
A. No.
Q. Why not?
A. My mother even old me (inaudible) that some of these sub-chiefs, it is alleged, took some money from this professor so (inaudible) even run away from the village.
[8] I agree with the Applicant that a comparison of the emphasized parts of the Board's decision with the emphasized parts of the evidence proves that the Board was operating under a misunderstanding of the evidence. In my opinion, the misunderstanding is significant because it negates the Board's finding that the Applicant's conduct was unreasonable. The Applicant's evidence supports the argument that he did make inquiries of the only person he could trust, being his mother.
[9] Given its significance, I find that the error renders the Board's decision as patently unreasonable.
ORDER
Accordingly, I set aside the Board's decision, and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J. F. C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5883-02
STYLE OF CAUSE: Martin Adomah v. The Minister of Citizenship
and Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: February 25, 2004
REASONS FOR ORDER AND ORDER : CAMPBELL, J.
DATED: February 25, 2004
APPEARANCES:
Ms. Roxanne Haniff-Darwent FOR APPLICANT
Ms. Carrie Sharpe FOR RESPONDENT
SOLICITORS OF RECORD:
Darwent Law Office
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT