Date: 20030704
Docket: IMM-4979-02
Citation: 2003 FC 832
Ottawa, Ontario, July 4th, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
KWASI APPIAH DANQUAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] Kwasi Danquah is a 32-year old citizen of Ghana who brings this application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), rendered on September 24, 2002. The Board held that the applicant was not a Convention refugee nor a "person in need of protection" under paragraphs 97(1)(a) and (b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
The Facts
[2] The applicant claims that he is persecuted on the ground of political opinion and fears harm from his uncle and officials of the National Democratic Congress ("NDC"), the former ruling party in Ghana.
[3] In his Personal Information Form ("PIF") the applicant states that after completing his education he was employed by two companies owned by his uncle, Mr. Yaw Sarkodie. In 1996, the applicant was introduced to the NDC party by Mr. Sarkodie, and he became a party member and then a branch secretary in the Abeka Lapaz, Okaikwei-North constituency.
[4] On May 13, 2001, a friend of the applicant called to warn him to stop his activities in support of the NDC party. This friend was a member of the NDC and had been beaten by his own colleagues and became disabled. After this, the applicant began to assume a low profile with the party.
[5] A month later, the applicant told his uncle, Mr. Sarkodie, that he felt the need to stop active politics and distance himself from the NDC party. He states that Mr. Sarkodie asked him if he wanted to live or die and asked whether he had forgotten that he had sworn an oath of secrecy.
[6] On June 30, 2001, the applicant received a call from a friend warning him that his uncle and some NDC henchmen were planning to kill him. The same night the applicant was subjected to a severe beating by goons, believed to be from the NDC party. The attackers took his money and his belongings and left him bleeding from his nose and his mouth.
[7] With the help of a "good Samaritan", the applicant went to the police station and made a formal complaint. The officer on duty asked him to return the next day with a completed medical report form. The applicant returned three days later to file the form.
[8] The applicant sought refuge with a second uncle, Mr. John Owusu Afriyie. The applicant states that he disclosed to his uncle that Mr. Sarkodie had masterminded the beating of a New Patriotic Party (NPP) Member of Parliament. He also disclosed that Mr. Sarkodie had helped to instigate the violence in the Accra Sports Stadium, which claimed 126 lives.
[9] The applicant was taken by Mr. Afriyie to a private doctor, who treated him. The applicant then fled Ghana for Canada, and arrived on July 9, 2001.
Issues
[10] The following two issues were argued on this judicial review;
1. Did the Board err in finding that the applicant had not established with clear and convincing evidence that state protection would be reasonably be forthcoming?
2. Did the Board err in concluding that the applicant had not established a well-founded fear of persecution for a Convention reason?
Standard of Review
[11] The above issues raise questions of mixed fact and law. On questions of mixed fact and law, the standard of review is reasonableness simpliciter: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748; Cihal v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 577 (Q.L.); Balogh v. Canada (Minister of Citizenship and Immigration), 2002 FCT 809, [2002] F.C.J. No. 1080 (QL).
Analysis
[12] At the hearing, it was conceded by both parties that the primary issue in this application is that of state protection. I agree. Indeed, I find the issue of state protection to be determinative of the application and my analysis in these reasons will focus essentially on this issue.
[13] The relevant legal principles were succinctly summarized by Dawson J. in Adewumi v. Canada (Minister of Citizenship and Immigration) 2002 FCT 258, [2002] F.C.J. No. 337 (QL). At para. 10 of that decision, she wrote the following with respect to state protection:
The applicable legal principles are as follows:
i) In the absence of a complete breakdown of the states apparatus, there is a presumption of state protection. Therefore, a claimant must adduce clear and convincing confirmation of the state's inability to protect its subjects. By way of example, a claimant may advance testimony of similarly situated individuals which the state was unable or unwilling to protect, or may advance testimony of past personal incidents in which state protection did not materialize.
ii) Where the state is in effective control of its territory, has military, police and civil authority in place, and makes a serious effort to protect its citizens, the simple fact that it is not always successful will not be enough to establish that victims are unable to avail themselves of state protection.
See: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, especially at paragraph 57; Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.).
[14] In the present case, the Board found that after the applicant was assaulted on the night of June 30, 2001 he went to the police, where he received a medical form he was to have completed and return the next morning.
[15] The Board also found that there was no indication in the applicant's PIF narrative that he sought further protection from the police or that he returned with the medical form. This latter finding of the Board was subsequently shown to be erroneous. The report of the Criminal Investigation Department of the Ghana Police dated July 3, 2001 indicates that the applicant did return to the police station to file a complaint and a medical report.
[16] The applicant submits that the Board overlooked this evidence and consequently erred in concluding that the applicant had not met the burden of discharging the presumption of adequate state protection.
[17] The respondent concedes that the Board did not fully take into account the facts as stated in the police report. However, the respondent submits that the police report referred to above shows that the police did in good faith investigate the incident but were unable to make an arrest at that time because the applicant was unable to identify the assailants. The respondent submits that the report tends to indicate the presence of a functioning police force.
[18] The respondent further submits that, in spite of the error of fact noted above, the Board did not make a material error in finding that the applicant had not rebutted the presumption of state protection. The respondent refers to Smirnov v. Canada (Secretary of State), [1995] 1 F.C. 780, [1994] F.C.J. No. 1922 (QL), in which Gibson J. stated, at para. 11:
Random assaults, such as those suffered by the applicants, where the assailants are unknown to the victim and there are no independent witnesses are also difficult to effectively investigate and protect against. In all such circumstances, even the most effective, well-resourced and highly motivated police forces will have difficulty providing effective protection.
[19] The respondent also relies on Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (QL), in which Huguessen J.A. (as he then was) stated:
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.
[20] The respondent argues that, even accepting that the applicant went to the police and filed a report, the evidence does not show that the police are unwilling or unable to protect the applicant.
[21] I am of the view that the Board's conclusions about whether the applicant followed through with his visit to the police with the completed medical form was not a material error. The above-noted jurisprudence shows that an applicant must objectively show that the police were prevented from protecting him, or that he is physically prevented from seeking his government's aid. In my view, the applicant has failed to do so and, consequently, has not discharged his burden of showing that he is unable to avail himself of his state's protection.
[22] The report of the Ghana police indicates that the applicant was unable to identify his assailants and that the police did not make any arrests for that reason. The report also states that the investigation remained open and that the applicant was instructed to keep to police apprised of further developments. There is therefore no evidence that the police refused to investigate the complaint filed by the applicant. Indeed, the evidence is that the police provided a medical form to the applicant and requested that the applicant return so that it could further its investigation.
[23] The essence of the applicant's argument is that the police were unable to protect him. In support of this contention, he referred to numerous reports and newspaper articles detailing problems within the Ghana police force. The applicant argues that the documentary evidence shows that the NPP government does not have effective control over the police or the security services and as a result cannot protect individuals from members of the NDC. He points to examples of extra judicial killings, such as the killing of a chief government spokesperson, and argues that there are great fears on the part of government that its own security is at risk due to the presence of former government partisans in the security services.
[24] I am satisfied that the Board could reasonably conclude as it did on the issue of state protection. The documentary evidence indicates that the Ghana constitution guarantees the right of Ghanaians to belong to a political party of their choice. In addition, although the documentary evidence details incidents of police corruption, unlawful detention and excessive force by police, the state has publicly acknowledged these problems and attempted in 1999 and 2001 to address these problems through reforms.
[25] While counsel for the applicant referred to reports of attacks against political leaders in addition to police corruption and overzealousness, I am satisfied that this evidence does not relate to the applicant's situation. The applicant is an ordinary NDC member who is being pursued by members of his own party, notably his uncle, for leaving the party and allegedly divulging party secrets. He is not a high level member of the NDC, nor a former political leader intent on destabilizing the current regime.
[26] The Board found that the applicant had not clearly established that the authorities in Ghana are unwilling or unable to provide a reasonable level of protection to him. The Board also held that it did not believe that the evidence indicated that the NPP government would have any reason to refuse protection to someone who wished to leave an opposing political party. On the evidence, I find that the Board could reasonably reach this conclusion.
[27] The Board was not required to canvass every piece of evidence in its decision. I am satisfied that the Board considered the documentary evidence put before it. Consequently, I conclude that the Board did not err in finding that the applicant had not rebutted the presumption of state protection.
[28] In addition to finding that the applicant had not rebutted the presumption of state protection, the Board held that he had not established that his fear was linked to a Convention ground. The Board accepted that the applicant was a member of the NDC, but found no nexus because the applicant had not expressed any "strongly-held political views" about events in Ghana. In my view, the Board's interpretation of the Convention ground of "political opinion" may have been unduly narrow. However, in view of my determinative finding with respect to the reasonableness of the Board's conclusion on state protection, I need not comment further on the Board's finding concerning nexus to a Convention ground.
[29] Although not argued at the hearing, the applicant also submits in his memorandum of fact and law that the Board violated s. 7 and s. 12 of the Charter of Rights and Freedoms, Schedule B, Part I to the Canada Act 1982 (U.K.) 1982 c. 11, (the "Charter") in failing to live up to its obligation not to deport the applicant to Ghana where he will face torture.
[30] The respondent submits that this argument is brought prematurely and against the wrong decision maker since the Board did not make a deportation or removal order against the applicant, but rather determined the applicant's status as a Convention refugee or a "person in need of protection". In Kofitse v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1168 (QL), Pinard J. held that the applicant's Charter arguments against deportation raised on judicial review of a negative refugee decision were premature, since "the decision at issue is not the final stage in the applicant's deportation, but is limited to the conclusion that the applicant was not a Convention refugee (Barrera v. Canada (M.E.I.), [1993] 2 F.C. 3 (F.C.A.)".
[31] I am of the view, following Kofitse, supra, that the applicant's Charter arguments, as raised in this proceeding, are without merit. The impugned decision determined that the applicant was not a Convention refugee, and arguments on judicial review must address the merits of that decision.
[32] For the above reasons the application for judicial review will be dismissed.
[33] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Act, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board dated September 24, 2002, is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4979-02
STYLE OF CAUSE: Kwasi Appiah Danquah v. MCI
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: May 27, 2003
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: July 4, 2003
APPEARANCES:
Me Stewart Istvanffy FOR APPLICANT
Me Caroline Cloutier FOR RESPONDENT
SOLICITORS OF RECORD:
Me Stewart Istvanffy FOR APPLICANT
Montréal, Québec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Montréal, Québec