VC2-11386

RAD File / Dossier de la SAR : VC2-11386 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision July 7, 2023 Date de la décision Panel Rita Aggarwala Tribunal Counsel for the person who is the subject of the appeal Jonathan Gruszczynski, C.J.C. Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are my reasons for dismissing this appeal and confirming the Refugee Protection Division (RPD)'s decision that XXXX XXXX XXXX is neither a Convention1 refugee nor a person in need of protection. Mr. XXXX is a citizen of Ghana. On December 5, 2022, the RPD denied him refugee protection. He is appealing that decision to the Refugee Appeal Division (RAD). [2] Mr. XXXX says that two of his cousins in Ghana (KS and PA), along with their supporters, threatened his life because he was chosen by the village elders to be the chief of his village, a title that the two cousins want. He fears he will be killed if he returns to Ghana, because KS and PA continue to want the role and no one can succeed Mr. XXXX until he is dead. He says that if he gives up the chieftaincy, as demanded by KS and PA, he will face grave illness and spiritual dangers because he will have disappointed the village elders by not fulfilling the role they chose for him. [3] Mr. XXXX says the RPD was wrong in concluding that if he gives up his chieftaincy position, he will not, on a balance of probabilities, face a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture (a "Section 97 Harm") 2 if he returns to Ghana. He argues that: a. his claim should have been decided based on section 96 of the Immigration and Refugee Protection Act (IRPA) because he belongs to a particular social group: he was chosen to be chief based on immutable genealogical characteristics; b. requiring him to give up the chieftaincy is a violation of his fundamental right to practice his religion, since chiefs in Ghana are seen as owners of the local shrines; and c. the RPD overlooked objective evidence confirming that if he gives up the chieftaincy, he will suffer illness and bad luck because he will be disappointing the elders of his community. [4] For the reasons below, I agree with the RPD that Mr. XXXX claim is properly assessed under section 97 of the IRPA and that he does not face a likelihood of a Section 97 Harm if he refuses the chieftaincy, based on the evidence in front of me. Also based on the evidence before me, I disagree with Mr. XXXX argument that requiring him to give up the chieftaincy is a violation of his fundamental right to practice his religion. [5] My role is to look at all the evidence and decide if the RPD made the correct decision.3 Where the RPD has a meaningful advantage in assessing the evidence, I am required to give appropriate deference to the RPD. In this case, the RPD did not have any meaningful advantage in assessing the evidence, and I have not given any deference to its findings. I have accordingly reviewed all the evidence and submissions, including the audio recording of the RPD hearing. These reasons are based on my independent assessment of the evidence, informed by Mr. XXXX appeal arguments. [6] The National Documentation Package (NDP) for Ghana in effect at the time of the appeal's perfection was the January 31, 2023 version. That version remains current and forms part of the record of this appeal. ANALYSIS [7] I accept Mr. XXXX factual evidence as true, on a balance of probabilities. In particular, I accept that Mr. XXXX was appointed as chief of his village in Ghana in 2019 by elders and was verbally threatened, including with death, by two of his cousins and their supporters in 2016, 2017 and 2019, because those cousins wanted the chieftaincy position. I accept that the elders tried more than once, unsuccessfully, to resolve the issue of the threats and that the police did not effectively assist Mr. XXXX when he told them about the threats. I accept that Mr. XXXX moved to another town in 2017 and then to other countries in 2019 before returning to Ghana and being appointed as chief. I accept that KS and PA visited Mr. XXXX mother after he left his home village but before he left Ghana and told her they wanted Mr. XXXX to return. The police did not intervene. His mother relocated to live with his wife after he left Ghana, in a village about a day's journey away, and his family has not been visited or threatened by his cousins or their supporters since then. Finally, I accept that the two cousins who threatened Mr. XXXX told him he had to give up the chieftaincy in order for the threats to cease and that Mr. XXXX fears that if he gives up the chieftaincy, he will face illness and spiritual danger because he will have disobeyed the elders. The claim should be assessed under Section 97 of the IRPA [8] I find Mr. XXXX is not a member of a particular social group, nor does he otherwise have a nexus to the Convention. Mr. XXXX argues that his claim should be assessed under section 96 of the IRPA (Convention refugee), which requires a lower threshold of establishing future risk than section 97 (person in need of protection). He argues that he is a member of a particular social group for the purposes of section 96, because chiefs in his village are chosen based on their genetic make-up, which is an immutable characteristic. Specifically, he was chosen to be a candidate for chief because he is part of the XXXX family. Had he not been a part of that family, he would not have been a candidate for chieftaincy, nor would he have been chosen as chief. [9] Mr. XXXX argument cannot be successful in this case. In order for Mr. XXXX to be considered under section 96 of the IRPA, he must be targeted because of his genealogy. He is not targeted because he is a member of the XXXX family. He is targeted because he was chosen by the elders of the village to be the next chief. Although a pre-requisite for being chief is belonging to the XXXX family, the reason for the persecution is not his membership in the XXXX family but rather his coveted position in the village. Mr. XXXX argument is akin to arguing that a leader of a national political party is targeted by a rival for that leadership because they are a citizen of the nation. Although citizenship may be required to lead the party, the reason for the targeting is not the citizenship but the position of leadership. [10] I agree with the RPD that Mr. XXXX cousins' motivation is based on their desire for power and wealth through the chieftaincy. There is no nexus to the Convention, and the claim is properly assessed under Section 97 of the IRPA. In any case, even if the claim were to be assessed using the threshold of "serious possibility" under Section 96, Mr. XXXX future risk would not rise to the level of risk required under that section. Requiring Mr. XXXX to give up the chieftaincy title is reasonable and is not a violation of his fundamental human right to practice his religion as chief [11] The RPD found, and I agree, that if Mr. XXXX gives up his chieftaincy, the threat from his two cousins will cease to exist. Furthermore, the RPD found, and I agree, that it is reasonable to expect Mr. XXXX to take that step so the risk from his two cousins will cease to exist.4 [12] It is not disputed that the two cousins who want the power of chief will stop threatening Mr. XXXX if he gives up the chieftaincy. In other words, if he gives up the chieftaincy, KS and PA will cease to be agents of persecution. Although Mr. XXXX testified that he remains chief until he dies, he also testified that giving up the chieftaincy was an option he did not want to choose. Considering this evidence together, I find that Mr. XXXX is considered chief until he dies or until he gives up the position voluntarily. Therefore, I must consider whether it is reasonable to expect Mr. XXXX to give up the chieftaincy position voluntarily to avoid the risk from his cousins, and whether Mr. XXXX faces a risk requiring Canada's surrogate protection even if he returns to Ghana and gives up that position. [13] Mr. XXXX counsel points to an item in the NDP for Ghana which describes chiefs in Ghana as owners of shrines or gods.5 His counsel argues that renouncing the chieftaincy will deprive Mr. XXXX of his fundamental right to practice his religion as chief and owner of his god. Therefore, it is not reasonable for the RPD or the RAD to suggest or expect that Mr. XXXX give up his position as chief if he returns to Ghana. [14] Based on the evidence specific to Mr. XXXX, I find, on a balance of probabilities, that the duties of chief in Mr. XXXX village are not religious in nature, nor does Mr. XXXX view them as such. I have reviewed the evidence relating to chieftaincy in Mr. XXXX village carefully. Mr. XXXX described the chief's duties as representing the people in the village and taking a lead in solving problems among people. There was no mention of a religious component to the job, nor of religious qualifications. Mr. XXXX testified that he was chosen based on being respected, working hard and being a XXXX XXXX. [15] The NDP item referred to by Mr. XXXX counsel speaks to chiefs in Ghana generally and does not mention Mr. XXXX village specifically. I prefer Mr. XXXX direct testimony about the role of chiefs in his village to the general information in the NDP. I find that Mr. XXXX decision to be chief was not based on his desire to practice his religion in his capacity as chief, on a balance of probabilities, nor is the position religious in nature in his village. I find, it is reasonable to expect him to decline the role in order to avoid persecution from the two cousins who seek that position. Mr. XXXX does not face a likelihood of Section 97 Harm based on disappointing the elders if he renounces his chieftaincy [16] Based on the evidence presented, I agree with the RPD that the evidence in this case does not establish that the elders or anyone else would subject him to persecution if he returns to Ghana and declines his appointment as chief. Mr. XXXX argues that if he gives up the chieftaincy, he will be punished and ostracized for disobeying the elders' wishes. He believes that most of his family members would die, and that he would have a big problem because he would have disappointed the elders by disobeying their wishes. He explained that when the elders task you with something and you refuse, it is considered disrespectful. Mr. XXXX said he would become ill through ritual spirituality, and that life would not go well. He said he knows someone who disrespected the elders and had similar problems. [17] The RPD member pointed out to Mr. XXXX that he had been tasked with leading the community as chief in 2019 but he has failed to perform his duties by leaving Ghana, thereby disobeying the elders. Mr. XXXX said this was not something that bothered the elders because by his being away, they took the role of chief. He believes they enjoy the current state of affairs. [18] I agree with the RPD that although Mr. XXXX is genuinely worried that he might suffer illness and bad luck if he declines the chieftaincy, there is an insufficient objective basis to support this fear. Mr. XXXX argues that there is objective NDP evidence stating that people who decline chieftaincy positions can be subjected to spiritual punishment. This can prey on their minds and make them worry that they may be spiritually punished, even if they move far away from their communities.6 [19] Mr. XXXX testimony is that he does not think the elders are currently upset with him for leaving Ghana. Therefore, he is not worried about spiritual punishment in Canada. His testimony is that if he declines the chief position, he will face spiritual and social persecution by the elders; however, if he continues to keep the title of chief, even while in Canada, he does not face that sort of emotional punishment. In my view, this is speculative, based on the evidence. [20] I must consider all the evidence in determining whether Mr. XXXX will face a likelihood of Section 97 Harm from the elders if he returns to Ghana and declines the position of chief. In addition to the NDP evidence pointed out by Mr. XXXX about the mental toll of declining a chieftaincy position, there is also evidence in the same NDP item that states some elders may be understanding of the circumstances leading someone to decline chieftaincy. Another NDP item indicates there are generally no or minimal consequences to refusing chieftaincy.7 [21] The evidence specific to Mr. XXXX is that the elders have been sympathetic to the threats Mr. XXXX has faced in the past and have tried, albeit unsuccessfully, to facilitate a solution. There is no evidence that they have disturbed Mr. XXXX family members, including his mother while she was still living in the village after Mr. XXXX left. They have not approached or had discussions with any immediate family members at their new location, nor is there any evidence that they have expressed anger with Mr. XXXX even though he has not fulfilled his duties for years. Mr. XXXX did not provide any meaningful details about the event involving someone he knows who disobeyed the elders and I cannot put anything more than minimal weight on that evidence. [22] Taking the mixed NDP evidence together with the evidence particular to this case, that the elders have been responsive to and understanding of threats received by Mr. XXXX and have tried to seek solutions, and that the elders are not currently angry with Mr. XXXX for not fulfilling his role as chief nor have they made any demands of or otherwise approached his family, I find Mr. XXXX has not established a likelihood (or a serious possibility) that he will face a risk of mental torture, persecution, or any Section 97 Harm from the elders or anyone else if he returns to Ghana and declines the chieftaincy. CONCLUSION [23] I dismiss the appeal and confirm the decision of the RPD that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) Rita Aggarwala Rita Aggarwala July 7, 2023 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, section 97. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Sanchez v. Canada (Citizenship and Immigration), 2007 FCA 99. 5 NDP for Ghana (January 31, 2023), item 13.1. 6 National Documentation Package (NDP) for Ghana (January 31, 2023), item 13.1: Consequences of refusing a fetish priest or chieftaincy position, and whether there is state protection available, Immigration and Refugee Board of Canada (IRB). 7 Ibid., item 13.3: State involvement in chieftaincy matters, such as blood rituals for deceased chiefs and their successors, including legislation; consequences of divulging a secret ritual to another member of the same ethnic group, including the Kotokoli in the Volta region; state protection available to individuals that do not comply with chieftaincy rules and traditions (2014-April 2017), IRB. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC2-11386 RAD.25.02 (August 20, 2021) Disponible en français 2 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 (August 20, 2021) Disponible en français