Date: 20040416
Docket: IMM-1363-03
OTTAWA, Ontario, this 16th day of April, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
BERNARD ODOI CHARWAY
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 February 11, 2003, which determined that the applicant is not a Convention refugee or a person in need of protection because state protection and an internal flight alternative ("IFA") are available to the applicant.
FACTS
[2] The applicant is a 29 year old citizen of Ghana who alleges a well-founded fear of persecution because of his political opinion. The applicant arrived in Canada on August 8, 2001, as part of the Ghanian team that participated in the International Association of Athletics Federations World Track and Field Championships, held in Edmonton in August, 2001. He made a refugee claim on August 14, 2001.
[3] The applicant is a member of the National Democratic Congress political party ("NDC"), now the opposition party in Ghana. The applicant was the Youth Organizing Secretary for his constituency. After the elections of December 2000, tension flared between the NDC which lost the election, and the National Patriotic Party ("NPP"), which won the election. There were fights between individual members of both parties. The fights did not involve the applicant. The applicant alleges that opposition members, who are assaulted by NDC members, cannot expect police protection because the Ghanian police force supports the NPP, the party in power.
[4] The applicant fears for his safety because in February 2001, about ten youth members of NPP came looking for him at his school. The applicant escaped undetected by the youths, and went to live with his grandmother in Agomeda. He alleges that since that time, family members have informed him that NPP "supporters" have come to their homes, looking for him, and that his sister was mistreated by NPP "supporters". The applicant is particularly fearful because political campaigning is again increasing due to the upcoming 2004 national elections.
[5] The Board found that the applicant has a viable IFA in the Sekondi-Takoradi area of Ghana, which is about 100 miles away from the applicant's home town of Accra. The Board found that there was no reasonable chance that the applicant would face persecution in the IFA location because his past political profile would be of no interest to NPP youth, and the NPP organization would not be interested in expending resources to pursue him, outside his local area. At page 3 of its reasons the Board states:
[...] Although the claimant has a profile in his particular constituency, the panel finds that it is not one that would be recognized or attract attention beyond his constituency. The claimant suffered no personal mistreatment in the past. He heard rumours that he was wanted by those he fears. On one occasion he was called out of a class by a group of youths but he left through another exit to avoid them. The claimant's sister was stopped and mistreated by youths asking for his whereabouts; unknown people have come to his home. The claimant has never had any personal contact with those he allegedly fears. His knowledge that they are looking for him comes through rumours and his family members who have a vested interest in this claim.
[6] The Board found that the applicant experienced no difficulties while he was in hiding with his grandmother in Agomeda, which is only 40 miles away from Accra. The Board noted that during the period he lived in Agomeda, the applicant was able to work each day on his grandmother's farm, continue his athletic training, and attend the West Africa Games in Kumasi, without attracting the attention of his alleged persecutors. The Board concluded that the applicant's behaviour, while allegedly in hiding at his grandmother's house, was inconsistent with a well-founded fear of persecution.
[7] The Board found that the fear of friction between the NPP and NDC described by the applicant is a generalized risk to citizens and not specific to the applicant. The Board further found that even if the applicant were to continue with his political activities, state protection would be available to him in the IFA location. After consulting the documentary evidence the Board states, at page 4 of its decision:
At no time did the claimant approach the authorities for protection. The panel finds the principal claimant's testimony regarding his refusal to seek protection in his area because others he knew were detained did not provide "clear and convincing proof" the state would not be able to protect him if he were to relocate. He testified that one person he knew went to the police and now the claimant does not know where he is. The claimant told his coach about his problems and was advised to go to the police. At this time the claimant was in a different area of Accra and still did not seek protection or advice from authorities.
[8] The Board noted that the police had responded when the applicant's sister reported harassment by suspected NPP members, and concluded that there would be adequate state protection available to him in the IFA location. The Board also concluded that, on a balance of probabilities, there were no barriers to relocation to the IFA location, and that it would not be unreasonable for him to relocate.
ISSUES
[9] There are two issues which are determinative of this application:
(1) whether the Board erred in determining that a viable IFA exists for the applicant; and,
(2) whether the Board erred in determining that state protection is available to the applicant in the IFA location.
STANDARD OF REVIEW
[10] The Board's finding that a viable IFA exists, and that state protection is available are questions of fact. The standard of review for the Board's findings is patent unreasonableness. See Aire v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 75 per von Finckenstein J. at paragraph 4.
ANALYSIS
IFA
[11] The applicant submits that the Board failed to properly consider the reasonableness of the IFA and based its conclusions on erroneous findings of fact. In particular, the applicant submits that the Board failed to consider the geography of Ghana and whether the IFA is easily accessible to the applicant's persecutors. The applicant submits that the Board did not provide any factual basis to support its conclusion that "local youths in his area of Accra do not have the time, and resources, required to pursue him outside of his area". Finally, the applicant submits that the Board ignored documentary evidence indicating that the NPP relies on the police to enforce its actions against NDC members.
[12] There was evidence for the Board to conclude that the applicant had a viable IFA in the Sekondi-Takoradi area of Ghana. This location is 100 miles away from Accra, where he fears persecution; and, as the Board noted, the applicant experienced no problems when he took refuge in a village only 40 miles away from Accra. The threshold requires actual and concrete evidence of conditions which would jeopardize the life and safety of the applicant in travelling or relocating to a safe area. The applicant did not adduce any non-speculative evidence that he would be persecuted in Sekondi-Takoradi. The Board held that the state (or police) would protect the applicant in the IFA.
State Protection
[13] The applicant has not rebutted the presumption of state protection, see Canada (MCI) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A). The evidence of persecution and police inaction presented by the applicant is speculative. The applicant never sought police protection himself. He was allegedly afraid to do so because, on two occasions, NDC members were allegedly detained by the police when reporting assaults. However, the evidence is that in his hometown the police responded when his sister reported that she had been harassed by NPP youth. The applicant has failed to produce clear and convincing proof required by Villafranca, supra and Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. The Board stated at page 4 of its reasons:
[...] At no time did the claimant approach any authorities for protection. The panel finds the principal claimant's testimony regarding his refusal to seek protection in his area because others he knew were detained did not provide "clear and convincing proof" the state would not be able to protect him if he were to relocate. He testified that one person he knew went to the police and now the claimant does not know where he is. The claimant told his coach about his problems and was advised to go to the police. At this time the claimant was in a different area of Accra and still did not seek protection or advice from authorities. The claimant's sister called the police after she was stopped in her car by youths she believed were members of the NPP. She called the police but when they responded, the group and the person she recognized had disappeared. Although they have not caught the perpetrators, the panel finds the actions of the police reasonable. The panel finds that the reasons given by the claimant for not going to the police do not rebut the presumption of state protection. Having considered the testimony of the claimant in context of the documentary evidence, the panel finds there would be adequate state protection available to the claimant if he were to relocate to Sekondi-Takoradi. [...]
[14] Upon reviewing the evidence, I agree that the applicant has not rebutted the presumption of state protection. In Villafranca, supra the Federal Court of Appeal states, per Hugessen J.A. at page 337:
[...] The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid (clearly not the case here) or that the government itself is in some way prevented from giving it.
No government that makes any claim to democratic values or protection of
human rights can guarantee the protection of all of its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. [...]
Conclusion
[15] Since there is a viable IFA and state protection available to the applicant in the IFA so that he can continue to express his political views, this application for judicial review must be dismissed.
Certified Question
[16] At the conclusion of the hearing, both parties proposed a question for certification which was:
"Whether a reasonable IFA implied that the applicant could continue his political activities in the IFA location."
The parties thought that this question had not been considered. In fact, the Board specifically addressed this question at page 4 of its decision which states:
[...] As well, the claimant testified that there were fights all over Ghana and that he feels unsafe. The panel finds that the situation described by the claimant is one of a generalized risk to citizens and not specific to the claimant. If the claimant were to continue his political activities in the IFA location, would adequate state protection be available to him? The panel consulted the documentary evidence.
Ghana is a constitutional republic. Several security organizations report to various government departments. The police, under the jurisdiction of an eight-member Police Council, are responsible for maintaining law and order. A separate department, the Bureau of National Investigations (BNI), handles cases considered critical to state security and answers directly to the executive branch. Although the security apparatus is controlled by and responsive to the Government, the monitoring, supervision, and education of the police, in particular, remain poor. Police and other security forces committed some serious human rights abuses. There were no reports of politically motivated disappearances. Despite the provisions of law, abuses do occur. The system in not perfect. [...] (emphasis added)
[17] I find that the Board acknowledged existing problems within the Ghanian police organization, and that abuses do occur despite the provisions of law. After reviewing the documentary evidence, the Board considered the Federal Court of Appeal's decision in Canada (MEI) v. Villafranca (1992), 99 D.L.R. (4th) 334 (F.C.A.) and concluded that although the
Ghanian police system is not perfect, the applicant had failed to rebut the presumption of state protection. Accordingly, it is implicit that the applicant could continue his political activities in the IFA location because there would be adequate state protection available to him. Since the Board implicitly answered the proposed question, and since the proposed question does not raise a new question of general serious importance, no question will be certified. An IFA is only an IFA if the applicant could continue his political activities with adequate state protection.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1363-03
STYLE OF CAUSE: Bernard Odoi Charway v. MCI
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: April 6, 2004
REASONS FOR ORDER
AND ORDER BY : THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
Michael Tilleard FOR THE APPLICANT
Rick Garvin FOR THE RESPONDENT
SOLICITORS OF RECORD:
McMenemy & Tilleard
Edmonton, AB FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, ON FOR THE RESPONDENT