TB5-02610

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 File No. / N° de dossier de la SAR : TB5-02610 Private Proceeding / Huis clos Redetermination of the Appeal Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Date(s) of hearing Date(s) de l'audience Appeal heard/considered at Toronto, Ontario Appel instruit à Date of decision July 20, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Solomon Orjiwuru Barrister and Solicitor Conseil(s) de la (des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Ghana, is appealing the decision of the Refugee Protection Division denying his claim for refugee protection. He has submitted new evidence in support of his appeal, and he is requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellant is asking the RAD to substitute a positive determination, or in the alternative, to remit the matter to a newly constituted panel of the RPD for re-determination. DETERMINATION [2] This appeal is allowed. Pursuant to sections 111(1)(c) and 111(2) of the Immigration and Refugee Protection Act (IRPA), the RAD refers this matter back to the RPD for re-determination by a differently constituted panel. Background [3] The Appellant and his family are supporters of Dr. Nana Agyare Bofour, whom they view as the true chief of Kojo Bofour. However, the paramount chief of the entire Yeji Traditional Area, Nana Pemapem Yaw Kagbrese (Pemapem) does not recognize Dr. Nana Agyare Bofour as chief of Kojo Bofour and installed a rival chief in the town, which led to conflict and tension between the supporters of the chiefs. [4] The Appellant was an XXXX to Dr. Nana Agyare Bofour. He and other supporters accompanied Dr. Bofour to a XXXX XXXX XXXX on XXXX XXXX XXXX 2013. However, upon arrival, they were shot by supporters of Pemapem. Many individuals from the Appellant's group were injured, and two supporters were killed. [5] Following the attack, the Appellant went into hiding in the town of XXXX. His sister told him not to return home as twelve supporters of Pemapem have violently destroyed his personal property and threatened to kill him when they found him. [6] The Appellant went to Tema to hide with a relative, named XXXX XXXX. However, while there, he received a phone call stating that his whereabouts were known, and hence, he moved and stayed with others until he left Ghana [7] The Appellant was able to utilize a Canadian visitor's visa that he had applied for prior to the attack for the purpose of attending a XXXX XXXX. Dr. Bofour and other supporters remain in hiding and although there have been some arrests relating to this matter, the Appellant does not believe that those responsible will be held accountable for their actions. [8] The Appellant fears he will be harmed or killed by supporters of Pemapem if he returns to Ghana and that the state will not protect him. MINISTER'S INTERVENTION AT THE RPD [9] The Minister intervened by submissions only pursuant to paragraph 170(e)of the IRPA and according to Section 29 of the Refugee Protection Division Rules with respect to credibility of the Appellant. * The Appellant declared on XXXX XXXX XXXX 2013 at Toronto Lester B. Pearson International Airport during an interview with an immigration officer that the purpose of his trip to Canada was to attend a XXXX XXXX XXXX XXXX; however, a search on the Global Case Management System (GCMS) indicates that he applied for a temporary resident visa (TRV) to attend the XXXX XXXX XXXX XXXX held in XXXX in XXXX, Ontario. * The Minister notes that on his TRV application made on August 19, 2013, he indicates his employment as a XXXX in Kumasi since 2005, which differs from his declared work history.1 * The Appellant's family composition differs from what is described in his BOC. 2 * The Appellant stated that his brother was killed on XXXX XXXX, and that he lost his wife and children. * In his BOC, the Appellant's family members aside from his father are not listed as deceased. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL Express statutory conditions [10] Section 110(4) of the IRPA provides that 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. [11] The following new evidence has been submitted:3 * "XXXX XXXX XXXX XXXX XXXX XXXX XXXX", XXXX XXXX XXXX (Monday, XXXX XXXX XXXX 2015 (XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX), at p.7; * The Ghanaian News (May 2015) (Vol. 19, No. 5)(Toronto, Ontario), at cover and p.7. [12] The Appellant submits that "XXXX XXXX XXXX" provides confirmation of the chieftaincy dispute. Moreover, it mentions the Appellant by name and establishes that persecution at the hands of Pemapem is ongoing. It is further submitted that the article demonstrates how authorities in Ghana have not sufficiently protected individuals such as the Appellant. [13] It is submitted that the Ghanaian article provides corroborative evidence of the power and influence of Pemapem. [14] The RAD admits the foregoing evidence as it meets the statutory requirements pursuant to ss. 110(4) of the IRPA. (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim [15] The RAD finds, in assessing the new evidence, that it alone would not justify allowing or rejecting the refugee protection claim. While the RAD acknowledges that it relates to the central allegation of the claim, there are other credibility concerns with respect to the personal targeting of the Appellant which led to the final credibility findings by the RPD. Accordingly, the RAD declines to conduct an oral hearing as it could not be restricted to this evidence alone. ROLE OF RAD [16] Counsel has made no submissions on the role of the RAD. The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,4 provides us with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. The justices stated at paragraph 103: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. SUBMISSIONS BY THE APPELLANT * Did the RPD err in its credibility findings? * Did the RPD err in its assessment of State Protection? Pursuit by the paramount chief at the Appellant's home [17] The RPD drew a negative inference from the Appellant's account as to what happened when the chief had come to the family home looking for him. For example, the Appellant had testified that his sister had told him that five people had come to his home. However, his BOC indicated that twelve persons had come to the home. The Appellant's explanation was that five persons had come inside his room, while the others remained outside. Given that the question was "how many people had come to the home?", the RPD rejected the Appellant's explanation. [18] The RPD further found discrepancies surrounding what actually occurred. For example, the affidavit from the Appellant's sister 5 states that the perpetrators shot indiscriminately, broke into rooms, destroyed television sets and attempted to set the house ablaze. The BOC, on the other hand, indicates questions about his whereabouts, searching of his room and damage to his television. His explanation was that perhaps his sister had not told him everything that had transpired so she put more details in the affidavit. However, the RPD noted that he testified that he was not aware of these details. The RPD rejected the explanation given the difference from damage to a television set (trivial in comparison) to the fact that shots were fired indiscriminately around or about the home and an attempt to set the house on fire (far more serious). The RPD found it unreasonable to believe that the Appellant's family would not have told him what occurred at the family home and the amount of destruction it caused and as a result, found this evidence lacking in credibility. The RPD concluded, on a balance of probabilities, that supporters of Pemapem did not go to his family home looking for him. [19] It is submitted that the Appellant made it clear that he was not at home at the time; however, he had relied on his sister and what she had told him. It is argued that the Appellant's sister provided a more detailed account of what had occurred, including the attackers firing indiscriminately before they entered the house and intending to set the house on fire. [20] With respect to the number of persons who were present during the attack, the Appellant testified that based what his sister had told him, they were about 12 in total, however, only five actually making it into the home. The Appellant submits that the RPD made a reviewable error when it made findings that on the one hand, the Appellant was specific and on the other hand he provided little details. [21] The RAD finds that in light of the new evidence in which it indicates that the Appellant's house has burned down, this incident must be re-examined. This information contained in the new evidence belies the Appellant's own evidence with respect to the damage to his home, and also is not totally in line with the Affidavit provided by the Appellant's sister. Moreover, the article provides no date of when this alleged burning of the house occurred. The RAD finds that had the RPD been in possession of this evidence, this credibility finding could not have been sustained. Omission in BOC narrative that XXXX XXXX was an XXXX to Nana Agyare Bofour [22] The RPD noted that the Appellant testified that he and his cousin XXXX XXXX became XXXX XXXX to the instool chief in 2010, and that they were the ones XXXX XXXX XXXX XXXX XXXX surrounding the stool or chieftaincy to XXXX XXXX. As a result, the Appellant further testified that once one of the XXXX was eliminated, then he would suffer the same elimination. Given the fact that XXXX was an XXXX and this information was not written in his BOC, the Appellant was asked for an explanation. At the second sitting, the RPD noted that he testified that he was very confused when he arrived and that there were other points that escaped him, but he remembered later. The RPD drew a negative inference when the above was not stated in the Appellant's BOC. It reached this conclusion based on the fact that his testimony indicates that he and XXXX XXXX shared a unique role in XXXX Dr. Nana Agyare Bofour and that he knew that he would be killed next once XXXX XXXX had been eliminated. Given the lack of detail, the vagueness, and the referral to XXXX XXXX as a fellow supporter in his BOC, the RPD drew a negative inference. [23] The Appellant submits that the RPD was microscopic in its finding, when he stated that there were a lot people who were involved in the conflict and that he had mentioned that XXXX XXXX was one of the persons killed. It is argued that the RPD's suggestion that XXXX XXXX was targeted merely because he was an XXXX, when his evidence shows that other supporters of Bofour were targeted, is unreasonable. [24] The RAD finds that this is a significant issue, as the Appellant alleges that by virtue of his association with XXXX XXXX, he is a target. The RAD concurs with the RPD that this omission is a material aspect of the claim and therefore the RPD's finding is absent of any error. Phone calls to XXXX [25] The RPD drew a negative inference from the omission in the Appellant's BOC that XXXX had received more than one phone call from the supporters of Pemapem saying that they were aware that the Appellant was with him. The Appellant was provided the opportunity to respond to this omission at the second sitting of this claim. He then responded that XXXX continued to receive calls asking about his whereabouts after he had arrived in Canada, and that he found out about the other calls in XXXX 2013. However, the RPD questioned why the Appellant had not amended his BOC to reflect this. Given the lack of explanation, the RPD found it would be reasonable to expect that if there were multiple calls, that the Appellant would have volunteered this evidence, as opposed to providing it when confronted. The RPD drew a negative inference from the Appellant's evolving testimony. Moreover, it reached this conclusion also noting that the affidavit from XXXX XXXX XXXX 6 indicates "...several phone calls on him at my place....." The RPD concluded that the Appellant was not credible regarding the phone calls at XXXX home from supporters of Pemapem. [26] It is submitted by the Appellant that the RPD misapprehended his evidence. It is argued that it was not until he came to Canada and contacted XXXX, that he learned of the subsequent calls. [27] The RAD finds that notwithstanding the fact that the Appellant may have only learned of these subsequent calls when he arrived in Canada, he could have amended his BOC. More importantly, however, one way or the other, there is an inconsistency as the affidavit from XXXX indicates "several phone calls on him at place." Since this indicates continuing pursuit on the part of the perpetrators, the RAD finds that the RPD's decision on this issue is absent of any error and goes to the issue of ongoing pursuit of the Appellant. Port of Entry [28] The RPD found the Appellant not to be credible when he had told the officer at the port of entry that he had lost his wife and three children in a fire incident at his home. Given that the Appellant had not listed his family as being deceased (wife and children on his BOC), the Appellant was asked to explain the discrepancy. He explained that he had provided inaccurate information of the purpose of his trip, so that the Immigration officers would not refuse his admission to Canada. He was told to return to his wife and children, whereupon he informed the officers that they had died. The RPD found that even in the process of making his refugee claim, the Appellant was deliberately untruthful with the Officer while initiating his claim. It further found that given that he had shown a willingness and ability to be untruthful with Canadian authorities, it made it more difficult to accept the credibility of his account. [29] The RPD further noted that at the port of entry, the Appellant had stated that his brother was killed on XXXX XXXX, whereas his BOC was silent on the death of a brother. The Appellant explained that he was confused when he provided this date and that his brother was killed on XXXX XXXX. Moreover, he explained that he refers to XXXX XXXX as his brother because his father and XXXX father were brothers. Since the RPD considered the events of XXXX XXXX to be central to his allegations, the RPD did not accept the Appellant's explanation. The RPD found, given the magnitude of this event (28 people were seriously injured and two persons were killed by the rival chief), that it would have been reasonable that the appellant could recall the exact date of the attack if he was truly being pursued because of it. Accordingly, the RPD found that the Appellant was not credible regarding his allegations that he is being pursued by supporters of a rival chief. [30] It is submitted by the Appellant that when the officer threatened to return him to Ghana, he made this statement out of fear. [31] While the RAD does not condone untruths, given the option of being deported to Ghana, one can understand an individual making a statement which would eliminate such a possibility. With respect to the date of his brother's death, the Appellant ought to have remembered it was XXXX XXXX and not XXXX XXXX. However, giving the benefit of the doubt to the Appellant, his psychological report does indicate some memory problems, the RAD finds that this may have been the cause of this erroneous date. The RAD concurs with the Appellant that the words "cousin" and "brother" are interchangeable in many countries other than North America. Psychological Assessment [32] The RPD considered the psychological report from Dr. XXXX. Given the credibility concerns, coupled with the self-reported information, the RPD assigned little weight. [33] It is submitted by the Appellant that the RPD's failure to accord probative value to a psychological assessment, is a reviewable error. It is argued that the report indicates that the Appellant has symptoms of major depressive disorder and post-traumatic stress disorder, as well as memory problems. [34] The RAD understands that the RPD sees numerous psychological reports from particular practitioners, and that these reports can be repetitive, or almost identical, in their recitation of symptoms.7 It may even be that Dr. XXXX report crossed the line separating expert opinion from advocacy when he wrote that the Appellant's "condition can improve with appropriate care and guaranteed freedom from removal."8 It was open to the RPD to require Dr. XXXX to testify, and to question him on the methods he used to reach his conclusion, and even on the remarkable similarity between the Appellant's psychological report and others cited in years of Federal Court jurisprudence. It was open to the RPD to consider whether the report's value was diminished by Dr. XXXX apparent advocacy on behalf of the Appellant. However, it was an error for the RPD to simply disregard the psychologist's conclusion that the Appellant suffers from concentration and memory problems, especially in light of his observation that such problems are not uncommon among people exposed to traumatic stress. [35] If indeed the Appellant has problems with concentration and memory, the RPD was required to factor these difficulties into its assessment of credibility. It did not do so, and as such that credibility analysis cannot stand. Documents [36] The RPD considered the information that the Appellant had provided in support of his visa application.9 The Appellant was asked to explain the difference in the family composition compared to his BOC, including the amendment. He explained that in the visa application, he had only included siblings who were employed. Moreover, XXXX XXXX, who provided the affidavit,10 is one of the three siblings not listed on the Appellant's visa application. Given the prior credibility concerns, the RPD assigned little weight to this affidavit. [37] The RPD also considered a letter from XXXX XXXX XXXX, who states he is the XXXX XXXX to Dr. Nana Agyare Boffour IV.11 The RPD noted the lack of security features and the fact that this was second-hand information, and therefore assigned little weight to this letter. [38] The RPD considered the newspaper articles12which indicate that a clash occurred on XXXX XXXX XXXX 2016 due to a chieftaincy dispute involving Pemapem and Dr. Nana Agyare Borour. However, while acknowledging that this confirms the altercation, the RPD found that it did not confirm the Appellant's involvement. [39] Although counsel made no submissions with respect to the foregoing, the RAD finds that at the very least, the corroborative evidence did not serve to establish the central allegations of this claim, as it relates specifically to the Appellant. State Protection [40] The RPD found that the Appellant had not rebutted the presumption of state protection. [41] It is submitted that the Appellant testified that he did not approach the Ghanaian police after the incident because the paramount chief, Pemapem, was a very powerful and influential man. In fact, it is argued that the only reason he went to the police was to demonstrate the police's ineffectiveness, as those who were arrested were summarily released and nothing was done to them. [42] It is submitted that the evidence of the Appellant with regards to the attitude of the police to victims of chieftaincy disputes in Ghana is in line with objective documentary evidence on the subject of chieftaincy conflicts in Ghana. Moreover, it is argued that documentary evidence also shows that Ghana police is a reactive, not proactive force. And that notwithstanding that the police knew of the potential danger and conflict instead of offering protection, they did not take any measure to stop it, hence their protection is ineffective and inadequate. [43] In light of the RAD's conclusion, it declines to make a finding in this regard. RAD'S FINDINGS [44] Firstly, the RAD finds that the RPD erred when it did not consider the memory problems as enunciated in the psychological report. This may have affected the Appellant's ability to recall certain dates, eg. the date of his brother's death. [45] The new evidence raises issues of credibility which may affect the negative credibility findings by the RPD. Further examination of this evidence is required as there is no date attached to the statement that the Appellant's home has burned down. However as stated above, this new evidence alone does not obviate the need to further explore the personal targeting of the Appellant, in light of the sustainable credibility findings with respect to the Appellant's association with XXXX XXXX and hence his belief that he is the next target, and the ongoing pursuit on the part of the perpetrators while the Appellant was in hiding. [46] The RAD further finds that if the credibility issue of pursuit by the perpetrators is resolved, then the RPD ought to examine the viability of the "internal flight alternative", in light of the local aspect of this incident. [47] This appeal is allowed. Pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently constituted panel. (signed) "Roslyn Ahara" Roslyn Ahara July 20, 2016 Date 1 Exhibit RPD-1, RPD's Record, p. 69, Schedule A, question 8. 2 Ibid., p. 23, BOC, question 5. 3 Exhibit P-3, pp. 1-3. 4 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 5 Exhibit RPD-1, RPD's Record, pp. 160-161. 6 Exhibit RPD-1, RPD's Record, pp. 123-124. 7 For example, a remarkably similar report from Dr. XXX is discussed in XXX XX v. M.C.I. (F.C., no. IMM-XXX-XX), Russell, XXXX 2011, 2011 FC 964, at para. 54, which suggests that Mr. XX and the Appellant here suffer from very similar symptoms; see also XXX. v. M.C.I. (F.C., no. IMM-XXX-XX), Gibson, XXX, 2009, 2009 FC 749, paras. 15-16, which are similar to RPD's Record, pp. 100 and 102; also XXX XXX v. M.C.I. (F.C., no. IMM-XX-XX), O'Keefe, XXXX XX 2008, 2008 FC 201, para. 15; and XXX XX v. M.C.I. (F.C., no. IMM-XXX-XX), Russell, XXXX XX, 2012, 2012 FC 1347, at para. 12; and XXX XXX v. M.C.I. (F.C., no. IMM-XXX-XX), Russell, XXX XX, 2003, 2003 FC 1498, para. 65; and XXX XXX v. M.C.I. (F.C., no. IMM-XXX-XX), von Fickenstein, XXX XX, 2003, 2003 FC 1190, para. 9; and XXXX v. Canada (Public Safety and Emergency Preparedness), (F.C.T.D., no. IMM-XX-XX), Lemieux,XXX XX, 2009, 2009 FC 45, para. 22. 8 Exhibit RPD-1, RPD's Record, p. 102; the Federal Court had concern with identical language, provided by Dr. XXX to another refugee claimant, in XXX XX v. M.C.I. (F.C., no. IMM-XXX-XX), Mosley, XXX XX, 2015, 2015 FC 317, paras. 32-24. Justice Mosley, noting that Dr. XXXX used language very similar to that in prior reports, found that his report lacked the "required imprimatur of reliability." In XXX XXX v. M.C.I. (F.C., no. IMM-XXX-XX), Kane, XXX XXX, 2013, 2013 FC 752, para. 13, the Court noted that two separate reports, prepared some months apart by Dr. XXX, had almost identical wording. 9 Exhibit RPD-1, RPD's Record, pp. 150-155. 10 Ibid., pp. 160-161. 11 Ibid., p. 107. 12 Ibid., pp. 108-112. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June, 2015) RAD.28.07 (June 2, 2015) RAD File No. / N° de dossier de la SAR : TB5-02610