VB8-04441

RAD File / Dossier de la SAR : VB8-04441 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa ON Appel instruit / entendu à Date of decision February 26, 2019 Date de la décision Panel Christina Harrison Baird Tribunal Counsel for the person(s) who is(are) the subject of the appeal Leonardo Aniceto Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX is a citizen of Ghana. He appeals the decision of the Refugee Protection Division (RPD), which rejected his claim. He alleges that if he returns to his country he will be killed because he fathered a child out of wedlock, and because he is Christian. The mother of his child is Muslim and is the daughter of an XXXX. The Appellant states that when she was seven or eight months pregnant, her father discovered their relationship and sent Muslim youth to his house to beat him. He claims that violence erupted again when he attempted to carry out the naming ceremony for his child in XXXX 2014. The Appellant says that he will not be safe anywhere in Ghana from the XXXX and his representatives. [2] The determinative issue in this appeal is whether the RPD erred in its assessment of the Internal Flight Alternative (IFA). The RPD found that Cape Coast was a viable IFA because the Appellant would not face a sufficient risk of harm there to meet the legal test; and because it was reasonable for him to locate there in his particular circumstances. [3] The RPD was correct in its assessment of the IFA. The Appellant has shown neither that there is a serious possibility of persecution, nor that he is more likely than not to face torture, a risk to his life or cruel treatment in Cape Coast. He also has not shown that it is unreasonable to expect him to locate there. Therefore I dismiss the appeal. The Appellant is not a Convention refugee or a person in need of protection. ANALYSIS Parts of the Appellant's affidavit are admissible as new evidence [4] In light of the RPD's conclusion regarding the IFA in Cape Coast, the Appellant has proposed new evidence. The Appellant may present only evidence that arose after the rejection of his claim, or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.1 In addition, the jurisprudence requires his proposed evidence to be new, credible and relevant.2 [5] The Appellant proposes the following: * Appellant's Affidavit dated September 15, 2018;3 * Exhibit A to the Affidavit: Letter of Appeal;4 * Exhibit B to the Affidavit: Map of Ghana;5 * Exhibit C to the Affidavit: Ghana 2017 Crime & Safety Report;6 and * Exhibit D to the Affidavit: News article on Cape Coast dated May 24, 2018.7 Admissible as new evidence [6] I accept that the Appellant's Affidavit and its Exhibit A, the Letter of Appeal, were made after the rejection of his claim. The stated purpose of the Affidavit is "to make an explanation on why the presiding member made an error in denying my claim for refugee status".8 I admit the portions of it that contain facts that arose after that rejection and that I find new, credible as to their source, and relevant to the determinative issue of IFA. These facts are: * The Appellant does not have any friends or relatives in Cape Coast; * The Appellant holds the view that "it is hard for a local to live there especially on the issue of personal safety" and that he is "not confident that considering the state of criminality in Cape Coast, ?he? will be safe there"; and * The mother of the Appellant's child is in Ghana but hiding from her father, the XXXX, in fear for her life.9 [7] Similarly, with respect to Exhibit A, the Letter of Appeal, I exclude the parts that consist solely of argument or more detailed explanations of evidence that was before the RPD. I also exclude demographic statistics for the Muslim population in Ghana, which are not new and which the Appellant himself argues do not address his issue. I admit the portions of the Letter of Appeal that contain facts or corrections to the record that arose after the RPD rejection. I find the following are new, credible as to their source, and relevant to the determinative issue of IFA: * By car, Cape Coast is nearly 300 km from Enchi, while Accra is 435 km away from Enchi; * The Appellant's brother in Enchi reports that rumours are still circulating about threats to the Appellant's life made by the XXXX and those under his influence; and * The office of The Daily Digest newspaper is located in Accra.10 [8] The above-noted portions of the Appellant's Affidavit and its Exhibit A are admitted as Exhibit PA-1 in this appeal. Inadmissible as new evidence [9] Exhibits B and C to the Appellant's Affidavit are not admissible as new evidence, since they already form part of the RPD Record.11 Exhibit D to the Appellant's Affidavit is not admissible as new evidence because it does not meet the statutory criteria: since the article was published on May 24, 2018, this evidence did not arise after the rejection of the Appellant's claim on July 18, 2018. Moreover, this article was taken from the internet and therefore appears to have been reasonably available for the Appellant to access between the time of his RPD hearing on May 1, 2018, and the rejection of his claim. Even if I were to accept his premise that the RPD did not give him the opportunity or reasonable notice to prepare for the issue of IFA in Cape Coast before his hearing,12 it was open to the Appellant and his Counsel to include this article in post-hearing submissions before the RPD decision. No oral hearing is convened [10] The general rule is that the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD.13 The RAD only has discretion to hold an oral hearing when there is additional documentary evidence and three conditions are met.14,15 [11] I have held that portions of the Appellant's Affidavit and its Exhibit A, the Letter of Appeal, meet the criteria for admission as new evidence. Although the Appellant does not request a hearing, I consider the possibility for completeness. Neither of the admitted documents raises an issue with respect to the credibility of the Appellant that is both serious and central to my decision, and that could result in the rejection or the acceptance of this refugee claim. Therefore these documents do not meet the criteria for examination at an oral hearing. RPD analysis of the IFA was correct [12] The RPD correctly stated the two-part legal test for IFA in Cape Coast, including the aspects of both risk and reasonableness. Once the RPD had raised IFA as an issue, the onus was on the Appellant to show that he did not have a viable IFA in Cape Coast.16 Appellant would not face a serious possibility of persecution in Cape Coast [13] The RPD found that the Appellant was not at risk of persecution or other harm in Cape Coast. The Appellant argues that he did not have enough notice of the proposed IFA. He also submits that the passage of time will not have softened the resolve of his enemies. Furthermore, he argues that they are motivated and able to find him anywhere in Ghana. In particular, he argues that Cape Coast is smaller than Accra and even closer to Enchi, where he was living before. As a result, he submits that it will be easier for his enemies to find him there and Cape Coast is not safe for him. [14] I am not persuaded by the Appellant's argument about notice of the IFA. I find that it was open to Counsel to ask his client more questions about Cape Coast during the RPD hearing, to request time to research it, and to request time for written submissions. The RPD did not render its decision until two and a half months after the hearing. [15] I acknowledge that religious intolerance, combined with shame and revenge can be strong human motivators. I accept that the Appellant has heard rumours that there are still threats to his life in Enchi five years after the birth of his child. It may be that the XXXX still resents the Appellant deeply. However, the Appellant has not established with credible evidence that the XXXX wields the power and influence, or possesses the will to harm him that he alleges. [16] His evidence is that representatives of the XXXX found him in Accra within two days of him fleeing Enchi in XXXX 2014, and that the conflict was reported in a newspaper having its headquarters in Accra, which suggests interregional or national reach. He adds that now the mother of his child is in hiding. [17] There are two points to be made here. First, the Appellant fled to stay with his uncle in Accra in XXXX 2014, and neighbours in Enchi knew his location. Therefore, it is logical that the XXXX representatives could find the Appellant quickly. In contrast, if the Appellant were to relocate in Cape Coast, where he testified he has no friends or family, the link to Enchi and the XXXX known sphere of influence would be broken. Logically, the Appellant would be more difficult to find. I find that the newspaper article is of diminished relevance five years on, especially because, as the RPD noted, it does not contain a picture of the Appellant and therefore would be less useful to identify him. Second, the mother of the Appellant's child was living with the XXXX after the baby was born. Moreover, the Appellant testified before the RPD that she had moved to Accra, where she had family. If she is in hiding there, it would likely be more difficult for her (than for the Appellant) to evade her father, because he would know many of her connections. Yet, we have no evidence that harm has come to her in the five years since her child was born. I find that the mother of the Appellant's child is similarly situated to the Appellant, and her ability to live safely with her father and subsequently in Accra allows me to draw an inference that the XXXX motivation or ability to punish his daughter and the Appellant is not as strong as the Appellant fears. [18] It is true that Cape Coast is closer to Enchi than is Accra, and that it is also a smaller centre. I find that these two facts do not prevent it being a viable IFA for the Appellant. The evidence indicates that Cape Coast is frequented by tourists, which may be contrasted with the Zongos like Enchi, which are predominantly Muslim settlements.17 On this record, I find that the XXXX networks within the Muslim community likely would be stronger in the Zongo. The Appellant has not shown that Cape Coast is close enough in proximity to Enchi to be material to the viability of the IFA. Moreover, he has not supported his assertion that the simple presence of any Muslim in the IFA will result in his arrival being noted and his location traced for the XXXX. He has not given sufficient credible evidence about how his enemies would find him. In my view, the Appellant would not have to hide if he located in Cape Coast. Therefore I find there is no serious possibility of persecution in the IFA. The Appellant has not demonstrated why fleeing within Ghana could not be safe for him. The RPD was correct. Appellant likely would not risk torture, death or cruel treatment [19] The Appellant also must not be subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment in Cape Coast. The reasoning I used above to analyze the risk of persecution also extends to my analysis of these additional risks. The Appellant has not shown that the XXXX or his representatives would be motivated to find him in Cape Coast. On this record, I cannot conclude that it is more likely than not that the Appellant faces a risk of torture, or a risk to life or a risk of cruel and unusual treatment or punishment in Cape Coast. Since the burden of proof is a "balance of probabilities" for these additional risks, and this is more onerous than the "serious possibility" burden of proof for persecution, the Appellant has not met the burden for torture, risk to life or cruel treatment either. The RPD was correct. It is reasonable for the Appellant to relocate in Cape Coast [20] The RPD found it was not objectively unreasonable for the Appellant to relocate in Cape Coast. On appeal, he argues that it is unreasonable to locate in Cape Coast due to crime. The Appellant has not provided any evidence that is both admissible and credible to support his allegation that the crime rate in Cape Coast renders it an unreasonable IFA. Despite his subjective view of Cape Coast, I cannot find that the crime rate makes it unduly harsh. [21] I find that locating in Cape Coast is a realistic, attainable option for the Appellant. This tourist centre is easily and safely accessible by air and road travel. He will be within 150 km of the last reported residence of his child in Accra. The Appellant acknowledged at his RPD hearing that there was no reason, aside from his safety, that he could not relocate in Cape Coast.18 He has worked in business, tire replacement and in a slaughterhouse, demonstrating flexibility and job skills that should assist him to find work. He did not raise any cultural factors that would impede his ability to settle in Cape Coast. I find that the Appellant would not face any undue hardship to locate in Cape Coast and that it is objectively reasonable to expect the Appellant to seek safety inside Ghana, rather than a haven in Canada. The RPD was correct. CONCLUSION [22] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division confirms the decision of the RPD that XXXX XXXX is neither a Convention refugee nor a person in need of protection. [23] The appeal is dismissed. (signed) "Christina Harrison Baird" Christina Harrison Baird February 26, 2019 Date 1 Subsection 110(4), Immigration and Refugee Protection Act (IRPA). 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII) at paras. 38 and 44-49. 3 Appellant's Record, pages 20?24. 4 Ibid., pages 26?30. 5 Ibid., page 32. 6 Ibid., pages 34?39. 7 Ibid., pages 41?43. 8 Appellant's Record, Affidavit of the Appellant dated September 15, 2018, para. 2, page 21. 9 Ibid., paras. 9, 10, and 12, pages 22?23. 10 Appellant's Record, Exhibit A to the Affidavit of the Appellant, paras. 5, 10, 14, and 16, pages 26?29. 11 RPD Record, National Documentation Package (NDP) for Ghana, April 30, 2018, Tabs 1.1 and 7.1. 12 Appellant's Record, Affidavit of the Appellant dated September 15, 2018, para. 4, page 21. 13 Subsection 110(3), IRPA. 14 Subsection 110(6), IRPA. 15 Balde v. Canada (Minister of Citizenship and Immigration), 2015 FC 624 at para. 32. 16 RPD Reasons, para. 11. 17 Transcript of the RPD hearing on May 1, 2018, page 23, line 30. 18 Transcript of the RPD hearing on May 1, 2018, page 27, line 39 to page 28, line 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-04441 9 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (September 18, 2018) Disponible en français