Ottawa, Ontario, August 11, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
THE APPLICATION
[1] This is an application for judicial review, made pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c.F-7, of a decision (Decision) of the Refugee Protection Division of the Immigration and Refugee Board (Board). In its Decision, dated August 30, 2005, the Board determined that the Applicant is neither a Convention refugee nor a person in need of protection.
BACKGROUND
[2] The Applicant is a citizen of Ghana. He says he is homosexual and that he was in a relationship in Ghana for nine years, from late 1995 until 2004. He alleges that on July 23, 2004, four of his neighbours called him “gay,” said he “deserved to be killed,” beat him and then threw what he “believe[d] to be urine” in his face. Neither the Applicant nor his partner had previously been targeted.
[3] The Applicant states that he immediately went to the police and reported the attack. The police asked the Applicant if he was gay. He said that he “was not gay.”
[4] The Applicant’s complaint was registered by the police. A typed report was prepared the same day, although the Applicant did not immediately receive a copy. The report states that the suspects “accused [the Applicant] of practicing as a ‘GAY’, who needs to be killed.” The report does not reflect the Applicant’s statement that he “was not gay.”
[5] The Applicant says that the police officer on duty gave him a “medical report form to seek medical intervention.” The Applicant was also asked “to call at the police station in a week’s time to check the status of the investigation.” He did not do so because he felt that the police did not have “any secure protection” for him. He says he “expected them to even drive [him] in the police vehicle to a nearby clinic or hospital, but rather they gave [him] a form that [he] should got to the -- to seek medical help [himself].”
[6] The Applicant states in his Personal Information Form that, after leaving the police station, he went to the hospital and “was examined, received treatment and medications for [his] injuries, and was discharged.” Before the Board, the Applicant added that he was also given a copy of the hospital report. The hospital report is a typed letter dated July 23, 2004 addressed “TO WHOM IT MAY CONCERN.” It summarizes the Applicant’s injuries and the medication he was prescribed. The letter also states that the Applicant “was asked to come back in a week’s time for further examination.” The Applicant says he did not report back because he “had already followed the medication given to [him]” and “was feeling better.”
[7] The Applicant says that, as a result of the attack, he “felt that [his] life was in [im]minent danger” and so he made the decision to leave Ghana and his partner to come to Canada. The Applicant arranged to have an “agent” obtain an illegal visa for him. He says this cost over $2,500.
[8] The Applicant arrived in Canada on September 24, 2004. He claimed refugee status approximately four-and-a-half months later. Questioned by the Board on this point, the Applicant testified as follows:
Because of what happened to me in Ghana, I was very confused and scared most of all. So I needed to -- time to get my thoughts back together and also to -- to find out, in particular, about what sort of treatment is given to gay people in Canada. That is why it took me such time.
[9] In support of his claim, the Applicant submitted to the Board a copy of the police report purportedly made when he reported the attack. The Applicant explained that he subsequently gave a friend in Ghana an “authorization” and told him to “go and get [the report].” His evidence was that his friend put the police report in an envelope and sent it without any accompanying letter.
DECISION UNDER REVIEW
[10] The Board rejected the Applicant’s claim. It found it “implausible that the police would give a copy of the report to someone not concerned with the incident when they did not give the complainant (the claimant) a copy,” particularly since the Applicant did not report back to the police as asked. The Board found that both the police and medical reports, the former having “give[n] rise” to the latter, were “untrustworthy documents” and drew a negative inference as to the Applicant’s credibility.
[11] The second principal reason for the Board’s rejection of the Applicant’s claim was the Board’s negative inference on the subjective fear of the claimant in not making a claim at the earliest opportunity he had. The Board rejected the Applicant’s explanation that he was “confused and scared,” and felt it was unreasonable for him to suggest confusion and fear when he himself made a conscious, expensive decision to come to Canada.
[12] The Board’s analysis of the claimant’s documents combined with his failure to claim protection at the earliest opportunity led the Board to find on a balance of probabilities that [he] is not gay.
[13] Alternatively, the Board concluded that, even if the Applicant was gay, he would not be sufficiently at risk if returned to Ghana. The Board cited document GHAV36100.E dated January 26, 2001 from the Research Directorate of the Immigration and Refugee Board, and quoted the following passage in its reasons:
Homosexual acts between men can be punished under provisions concerning assault and rape. This will only happen when one of those involved makes a formal complaint or when it concerns an act with a minor.
[14] The Board went on to refer to a September 1999 report by the U.K. Home Office, referred to in the document cited above, which stated that “the practice of homosexual acts is illegal in Ghana though the law is not strictly enforced and homosexuality is generally regarded with tolerance.”
[15] The Board concluded as follows:
[…] The claimant has not placed before me any persuasive evidence that homophobia in Ghana is such that, it reaches the serious possibility plateau of serious harm being directed at gays. […] [T]he claimant has failed to show, even if he is gay, that there is a serious possibility he will fall victim to homophobic elements in society and there is no objective reason to believe that his sexual orientation will lead to incarceration or sanction as long as he does not involve minors and is not involved in a forced sexual encounter.
ISSUES
[16] The Applicant submits that the Board erred in its credibility assessment and by ignoring relevant documentary evidence pertaining to discrimination against homosexuals in Ghana.
ARGUMENTS
Applicant
[17] The Applicant made no submissions with respect to the applicable standard of review. As to the issue of credibility, the Applicant submits that it was unreasonable for the Board to find that he is not gay. He argues that it is plausible that the police would have given his friend the police report and that the Board failed to appreciate his explanation for his delay in claiming refugee protection in Canada. Moreover, the Applicant argues that the Board erred in failing to consider a 2004 document showing that there is more than a mere risk of persecution for him if he is sent back to Ghana.
Respondent
[18] On the issue of credibility, the Respondent contends that the applicable standard of review is that of patent unreasonableness. The Respondent says it was not unreasonable for the Board to find that the Applicant is not gay, given his four-and-a-half months delay in claiming refugee protection and his statement that the police report was given to his friend. The Respondent further argues that the 2004 document does not contradict the Board’s decision and is not persuasive evidence that serious harm is inflicted on homosexuals in Ghana.
STANDARD OF REVIEW
[19] It is well established that the applicable standard of review as to the assessment of the credibility of a refugee claimant is that of patent unreasonableness (Sinan v. Canada (Minister of Citizenship and Immigration), 2004 FC 87, at paragraph 8). The same standard of review applies to the assessment of country conditions, as such an assessment is also a question of fact (Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, at paragraph 16).
ANALYSIS
[20] Regarding the Board’s credibility assessment, the Applicant submits that “common sense supports the Applicant’s position that his friend, armed with the Applicant’s own written authorization, could retrieve [the police report] on his behalf.” The Applicant adds that “there was no documentary evidence before the Board that would suggest otherwise.”
[21] The Respondent submits that it was not “completely unreasonable” for the Board to surmise that if the police did not “originally give a copy of the report to the Applicant” then they would not “subsequently give one to a friend of the Applicant.”
[22] The Applicant also says that the Board inaccurately oversimplified his explanation for the delay in claiming refugee status. The Board, in its reasons, said the Applicant’s explanation was that “he was confused and scared.”
[23] I find the Applicant’s arguments persuasive concerning the board’s treatment of credibility. However, it is clear from the Decision that the Board relied upon alternative grounds for its conclusions that he was not a Convention refugee and was not at risk:
Thus, the claimant has failed to show, even if he is gay, that there is a serious possibility he will fall victim to homophobic elements in society and there is no objective reason to believe that his sexual orientation will lead to incarceration or sanction as long as he does not involve minors and is not involved in a forced sexual encounter.
[24] In my view, the objective aspects of the Decision contain no reviewable error and can stand alone to support the Decision.
[25] The Applicant argues that the Board ignored “more recent” documentary evidence indicating that “there is significant discrimination against homosexuals in Ghana.” Specifically, the Applicant refers to the U.S. Department of State Report on Human Rights Practices in Ghana, 2004, which indicates as follows:
The law is discriminatory toward homosexuals, and homosexuality is criminalized in the country. There is a minimum misdemeanour charge for homosexual activity, and homosexual men are often subjected to abuse in prison. In May, the Acting Commissioner for CHRAJ publicly suggested that the Government consider decriminalizing homosexuality to conform to international standards of human rights. Homosexuality was socially taboo in the country, and many persons continued to erroneously link the prevalence of HIV/AIDS only with a homosexual orientation.
[26] The Applicant submits that the above “directly contradict[s]” the documentary evidence upon which the Board did rely and that the Board’s failure to refer to it shows that it was “ignored.”
[27] It is trite law, however, that the Board is entitled to prefer some documentary evidence over other documentary evidence, and that it need not refer in its reasons to every piece of evidence before it: see Gomez v. Canada (Minister of Citizenship and Immigration), 2006 FC 406 at paragraph 16. In my view, in this case, the Board did not fail to discuss “contradictory” evidence that will support a conclusion that it ignored or misapprehended the evidence before it. The U.S. Department of State Report cited by the Applicant is not really contrary to other documentary evidence before the Board. In particular, I do not feel that the passage cited by the Applicant contradicts the 1999 report by the U.K. Home Office in a way that suggests the Board overlooked contrary evidence. The Board reviewed evidence that was, at times, different in its emphasis, and the Board makes it clear that its assessment of the evidence overall leads it to draw certain conclusions that, in my view, are not really contradicted by the passage relied upon by the Applicant. As this Court has held on many occasions, the fact that a tribunal fails to recite all of the evidence does not lead inevitably to a conclusion that evidence was overlooked. See, for example, Johal v. Canada (Minister of Citizenship and Immigration, [1997] F.C.J. No. 1760, at paras. 9 and 10; and Maximenko v. Canada (Solicitor General), [2004] F.C.J. No. 606, at para.. 18.
[28] The Board concluded that there was no “persuasive evidence” before it that “homophobia in Ghana is such that, it reaches the serious possibility plateau of serious harm being directed at gays,” and that “there is no objective reason to believe that [the Applicant’s] sexual orientation will lead to incarceration or sanction as long as he does not involve minors and is not involved in a forced sexual encounter.” I am satisfied that this conclusion was reasonably open to the Board on the documentary evidence before it.
[29] In his Further Memorandum of Argument, the Applicant raises a further issue and alleges, on the basis of the decision in Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16 regarding the Chairperson’s Guideline 7, that “his hearing was conducted in a manner that offends the principles of natural justice.” However, this additional matter was withdrawn at the hearing and there is no need to deal with it in these reasons.
JUDGMENT
THIS COURT ORDERS that:
1. This application for judicial review is dismissed.
2. There is no question for certification.
“James Russell”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5808-05
STYLE OF CAUSE: ISAAC ANKOMAH HACKMAN v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 18, 2006
APPEARANCES:
Robert Bafaro FOR RESPONDENT
SOLICITORS OF RECORD:
Michael Korman
Otis and Korman
Barristers and Solicitors FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Ontario Regional Office
Toronto, Ontario