TB6-15322

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 : TB6-15322 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 28, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Gabriel Ukueku Barrister and Solicitor Conseil(s) du (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 the Republic of Ghana (Ghana) is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination. The Appellant submits new evidence in support of his appeal and requests an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection. The RAD dismisses the appeal. Background [3] The Appellant alleges that he will be forcibly enstooled as the paramount Chief of XXXX Traditional Area. One is not allowed to refuse the chieftaincy. Following the death of the Chief, the Appellant's XXXX, XXXX XXXX XXXX, on XXXX XXXX, 2015, the Appellant learned that there is a rival faction claiming rights to the chieftaincy and they have vowed to never allow the Appellant to become chief. The Appellant fears that he will be forced to accept the position of chief and then he will be killed by the rival faction. [4] The Appellant accepted an invitation to visit a friend in Canada. He arrived in Canada on XXXX XXXX, 2016. [5] The death of the former chief was not publicized, as custom requires, until XXXX XXXX, 2016 at which time his death was announced. This announcement formally started the preparations for burial and funeral rites. Much effort would now be made by the kingmakers to get the replacement for the chief. [6] The Appellant made a claim for refugee protection on April 20, 2016. [7] The Appellant had a refugee determination hearing on June 30, 2016. In a written decision issued on July 14, 2016, the RPD rejected the claim. The RPD member found that there was little evidence to support the Appellant's allegations of harm. The RPD also found that there was adequate state protection for the Appellant. [8] Appeal pleadings were received on August 24, 2016. In his appeal, the Appellant argues that the RPD made its decision based on a serious misunderstanding of the evidence. The Appellant submits that the RPD erred in law and fact. The Appellant further submits that the RPD failed to observe a principle of natural justice and procedural fairness. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [9] As provided for in section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD, and may accept documentary evidence and written submissions from the Minister and refugee claimant. Section 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [10] The Appellant submitted the following new evidence with his appeal: a) A letter from XXXX XXXX XXXX XXXX XXXX XXXX, (Legal Practitioners, Consultants & Notary Public), dated November 26, 2015;1 b) Response to Information Request (RIR) GHA104154.E, 16 August 2012;2 c) A List of Principal Stool/Skins - Volta Region, dated September 3, 1994;3 d) Facebook postings of XXXX XXXX, dated March 20 (the RAD assumes the year to be 2016); 4 e) A document issued by the XXXX Traditional Council, dated February 19, 2016;5 f) RIR GHA104608.E, dated October 1, 2013;6 g) Internet article entitled "Away with this senseless chieftaincy violence", dated September 29, 2015.7 [11] The RAD is following the guidance in the Federal Court of Appeal (FCA) decision of Singh,8 in determining the admissibility of new evidence under subsection 110(4) of the IRPA. The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in section 110(4). [12] If the proposed new evidence meets the tests set out in the statutory requirements, the RAD will then go on to assess the FCA's considerations in Raza9 with the exception of materiality which is to be considered only in relation to s. 110(6) of the IRPA. [13] As the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD - either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellants could not have been expected to present it to the RPD. [14] Section 110(4) does not provide an opportunity for the Appellant to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.10 [15] The fact that evidence presented does not go as anticipated is not a reason that other available evidence could not have been presented as well. [16] In the case at hand, the Appellant submits that document a), a letter from the lawyers representing the "Rival family", establishes the fact that there is a potential chieftaincy dispute or conflict that may escalate if the Appellant accepts the chieftaincy position. The Appellant submits further that the document in question provides evidence that the rival family has made it known that his life would be at risk. [17] The RAD does not accept document a) because it is not new evidence. The Appellant provided document a) at the port of entry (POE) and it was later entered as evidence for his hearing before the RPD.11 [18] Regarding document b), RIR GHA104154.E, the Appellant submits that the RPD erred in its decision based on a misunderstanding of information in this particular documents. [19] The RAD does not accept document b). Document b) is contained in the independent documentary evidence that was in evidence at the Appellant's hearing before the RPD.12 [20] The Appellant made no particular submissions regarding document c), a List of Principal Stool/Skins - Volta Region. The RAD does not accept document c) because it was in evidence for the Appellant's RPD hearing.13 [21] The Appellant made no particular submissions regarding document d), Facebook postings by XXXX XXXX. The RAD does not accept document d) for the following reasons. The postings are dated three days after the Appellant arrived in Canada on March 17, 2016. The Appellant has provided no explanation as to why he did not provide this evidence for his hearing before the RPD. Given that this document was downloaded from the internet the RAD finds there have been no reasonable explanation as to why it was not provided by the Appellant for his hearing before the RPD. [22] The Appellant made no particular submissions regarding document e), an official announcement of the death XXXX XXXX XXXX. The RAD does not accept document e) because it is not new evidence. The Appellant provided document e) at the port of entry (POE) and it was subsequently entered as evidence for his hearing.14 [23] The Appellant submits that document f), RIR GHA104608.E, was produced in August 2016 and, therefore, does not predate the hearing. The RAD does not agree with the Appellant's submission. The document provided by the Appellant appears to have been downloaded from the internet on August 10, 2016. However, this particular RIR was issued by the Immigration and Refugee Board (IRB) on October 1, 2013 and was entered as evidence as part of the independent documentary evidence for the Appellant's hearing before the RPD.15 The RAD, therefore, does not accept document f). [24] The Appellant submits that document g), an internet article, provides evidence regarding clashes between rival chiefs which goes against the RPD's conclusion that there was little evidence to support his assertion that he would face violence with his enstoolment. [25] For the following reasons the RAD does not accept this document g). The article predates the Appellant's hearing by more than nine months. The Appellant has provided no explanation as to why he did not provide this article for his hearing before the RPD. Given that this document was downloaded from the internet, the RAD finds there have been no reasonable explanation as to why it was not provided by the Appellant for his hearing before the RPD. Similar evidence was on file for the Appellant's hearing before the RPD.16 Request for an oral hearing [26] The Appellant requests that an oral hearing be held under subsection 110(6) of the IRPA. [27] The RAD may only convene an oral hearing if there is new evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, that is central to the decision with respect to the refugee protection claim; and that, if accepted, would justify allowing or rejecting the refugee protection claim. Here the RAD has rejected all documents submitted as new evidence. Therefore, the RAD denies the request for an oral hearing. ROLE OF THE RAD [28] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,17 provides the RAD 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. [29] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD is to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ANALYSIS OF THE EVIDENCE Violence associated with the Appellant's enstoolment Lack of documentary evidence [30] The RPD found that there was very little evidence to support the Appellant's assertions that he would face violence associated with his enstoolment. The RPD depended upon information contained in an RIR18 contained in the independent documentary evidence which states that a person may travel to avoid the possibility of being offered the position as chief and that there is no practice of punishing people who do not accept the position of chief. The RPD found that at most the Appellant might be marginalised by his tribe. In its reasons, the RPD noted that no violence had been reported in the past regarding the Appellant's tribe in this respect. The RPD noted that the Appellant alleged that twice in 2011 persons attempted to force his enstoolment as regent because the present chief was elderly. The RPD found that the Appellant could not explain why, if previously people did not follow up on forcing him to be enstooled as regent even though his whereabouts was known, another person could not now be chosen to be enstooled as chief. The RPD did not find it reasonable that people who had wanted the Appellant to be regent in 2011 did not take issue when the Appellant's father was appointed as regent as the Appellant alleged. [31] The Appellant submits that the position of regent is more of a care-taker position and very different from that of the position of paramount chief. The Appellant submits that this explains why the community accepted his father as the regent, holding that position in trust for the rightful paramount chief after enstoolment. The Appellant submits that he was chosen as chief over his 70 year old father because, as a young, educated son of the chosen family, he seemed like the right candidate. [32] The Appellant submits that the RPD misunderstood the independent documentary evidence referred to in its decision. The Appellant submits that it was inaccurate of the RPD to use the information in the particular RIR to represent the practices of every community in Ghana. The Appellant submits further that the information in the RIR is inconsistent with his clan or every other clan in Ghana. [33] The Appellant also submits that the RPD ignored the following information contained in the RIR: Furthermore, even if they themselves are ... Christian or ... Muslim, from cultural belief, they can reasonably expect to be subject to spiritual/health "punishment" for not doing their duty. [For example], they can be "worried"/anxious/stressed-out in the likely fact that their clan's ancestors will seek to punish them, and/or that certain shamans/gods may seek their downfall, and/or that "witchcraft" may be worked against them ... and preying on their mind, even should they travel far away, to "get away from" their group and duty. [T]heir action may also cause family splits, [that are] not easily repaired. Any such individual "decision" has serious community effects and implications, in this world and in the realm of spiritual powers. Such a person may in fact be "scared to death" of the consequences. 19 [34] Although the RAD does not believe that the RPD erred in distinguishing the role of regent as compared to paramount chief, the RAD finds that the Appellant's submissions in this regard have merit. The RAD finds it possible that since the position of regent would have been a temporary position while the chief, as an elderly man, could not adequately perform his duties, those wishing to force the Appellant to accept the regent position did not follow up on their motivation at that time. [35] However, for the following reasons, the RAD is not persuaded by the Appellant's other submissions. [36] The RIR in question, which deals with the consequences of refusing a chieftaincy position, refers to Ghanaian clans in general. The Appellant has provided no persuasive evidence to support his submission that the information in the RIR is inconsistent with the practices of his Ewe clan. [37] The RAD appreciates that the RPD did not refer to information in the RIR which indicates that those who refuse the chieftaincy position may suffer anxiety due to the their clan's ancestors seeking to punish them, or that certain shamans/gods may seek their downfall, or that witchcraft may be worked against them. The RAD finds that this argument must fail as there is no nexus between the Appellant's allegations of a spiritual power being able to punish a person and the provisions of sections 96 and 97(1)(a) and (b) of the Immigration and Refugee Protection Act (IRPA). The belief that spiritual powers, such as those of ancestors, shamans, gods or witchcraft, to harm an individual may be part of the Appellant's belief system. It is not, however, a dimension that is within the purview of the IRPA. The IRPA has no provision for the effects of spiritual powers on individuals. Principal of natural justice and procedural fairness [38] The Appellant submits that the RPD's decision raises a reasonable apprehension of bias because the RPD was too quick to conclude that the Appellant had little evidence to support his assertions that he would face violence associated with his enstoolment. The Appellant submits that the RPD's finding that no violence had been reported in the past concerning this issue is rebutted by new evidence in the form of an RIR which indicates the following: [N]ot just anybody can become a chief, if you do not come from a royal family, you are not supposed to become a chief. If kingmakers chose a non-royal, there could be a chieftaincy dispute. If 4 people are supposed to approve the selection of chief, and only 3 have given their approval, then the process has not been well followed. There could be a dispute in a situation where one party or one particular royal family monopolizes the power and doesn't allow another family to come into the process (if say two royal families alternate chieftaincies, and the one whose turn it is not allowed to select a candidate).20 [39] The RAD has previously found that the Appellant mistakenly identified this RIR as new evidence. Because the RIR is contained in the NDP in evidence for his claim before the RPD,21 the RAD will consider the Appellant's submissions in this regard. [40] The RAD does not agree with the Appellant's submissions. While there may be situation when the RPD did not consider all of the evidence on file with regards to a particular issue, the RAD finds that this does not amount to an apprehension of bias on the part of the RPD. In any case, the RAD does not agree that the documentary evidence referred to by the Appellant, quoted above, supports the Appellant's allegations of violence associated with enstoolment. The document refers to a possible "dispute" over the approval of chieftaincy candidates. The Canadian Oxford dictionary defines "dispute" as a controversy, a quarrel or a heated debate. The RAD finds that the term "dispute" does not, in and of itself, imply violence. [41] The Appellant submits that a letter from lawyers22 offered as evidence for his hearing establishes the fact that there is a potential chieftaincy dispute or conflict that may escalate if the Appellant accepts the chieftaincy position. [42] For the following reasons, the RAD is not persuaded by the Appellant's submission. [43] The letter provides evidence of the death of the former chief, XXXX XXXX XXXX XXXX. The letter also provides evidence that through the norm and accepted practice, by virtue of the rotational practice of the former chief's stool, the new chief is to be a member of the XXXX XXXX XXXX descendants of XXXX. The letter provides no evidence of a potential chieftaincy dispute that might escalate if the Appellant accepts the chieftaincy position. [44] The RAD finds that information contained in the independent documentary evidence or the Appellant's documentary evidence does not support the Appellant's allegations that he would suffer persecution as a result of refusing the position of the paramount Chief of XXXX XXXX Area. [45] The RAD concurs with the RPD that there is insufficient evidence to find a serious possibility of persecution if the Appellant were to return to Ghana. State Protection [46] The RPD founds that the Appellant would get adequate state protection. [47] The Appellant submits that while the RPD found that there is sufficient evidence to demonstrate that the police would be able to provide state protection in cases where chieftaincy disputes led to violence, the RPD did not provide any evidence to suggest that these settled disputes occurred in the Appellant's clan. The Appellant submits further that effective state protection in some communities does not necessarily mean state protection would be the same in every part of Ghana. The Appellant submits that he provided clear and convincing evidence of the inefficiency of authorities in Ghana through his testimony. The Appellant submits further that the evidence referred to by the RPD with regard to state protection was not clear and convincing. [48] The RAD is not persuaded by the Appellant's submissions. [49] In assessing the issue of state protection, the RAD is guided by the jurisprudence from the Supreme Court of Canada, the Federal Court of Appeal and the Federal Court. The courts have established a number of principles relating to state protection and the RAD will apply those principles to the appeal at hand. [50] The presumption of state protection was articulated by the Supreme Court of Canada in the Ward decision where the Court stated: The issue that arises, then, is how, in a practical sense, [an Appellant] makes proof of a state's inability to protect its nationals as well as the reasonable nature of the [Appellant's] refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, [an Appellant] might advance testimony of similarly situated individuals let down by the state protection arrangement or the [Appellant's] testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting [an Appellant].23 [51] There is a presumption that, except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. The presumption that a state is capable of protecting its citizens underscores the principle that international protection comes into play only when a refugee claimant has no other recourse available. Having canvassed the country condition documents,24 the RAD finds, as did the RPD in its decision, that Ghana is a democracy in effective control of its territory and has in place a constitution of the country as well as a judiciary independent from the government. [52] According to the independent documentary evidence, the government interferes in chieftaincy disputes by sending in the police and sometimes the army. Apparently, if there is destruction to life and property the government sets up an inquiry commission which make a report with recommendations.25 [53] As the RPD noted in its decision, the Ghanaian government has warned that it will not tolerate any breach of public peace by factions in chieftaincy disputes.26 [54] As found by the RPD in its decision, according to an RIR, referred to earlier in this decision, the Ministry of Chieftaincy has resolved many chieftaincy disputes in Ghana which has brought about peace and security to those regions. The RIR provides particular examples in which the police have responded to chieftaincy related problems. In one municipality a curfew was imposed following a rival chief's installment and the chief was brought in for questioning. In another district, nine people were arrested following an argument over rival chieftaincy factions as police deployed a number of patrol teams and armoured vehicles. In Sekondi, police arrested two people in relationship to a chieftaincy dispute and the High Court ordered parties to sign a peace bond in Wenchi until the outcome of the dispute. In Teshie, four people were arrested in a chieftaincy clash and police were seeking other suspects while the Minister of Chieftaincy was called in to lead peace-building efforts and a fact-finding committee was appointed. [55] Ward27 has established that the onus is on the Appellant to produce clear and convincing evidence that the state cannot provide protection. [56] The question of what is clear and convincing evidence was addressed by the Federal Court in the Sztojka decision.28 In relying on the Carrillo decision of the Federal Court of Appeal,29 the court stated: An applicant bears both an evidentiary and legal burden; she must introduce evidence of inadequate state protection and must convince the trier of fact that the evidence adduced establishes that the state protection is inadequate. The evidence will have sufficient probative value if it convinces the trier of fact on the balance of probabilities that the state protection is inadequate. Therefore the evidence must be relevant, reliable and convincing.30 [57] According to the Appellant's testimony, no threats were made against him while he lived in Ghana. He testified that the police would not involve themselves in a chieftaincy dispute until it was too late. As the RPD found, simply asserting a subjective belief that state protection is not available is not enough to rebut the presumption.31 [58] As a result of the analysis above, the RAD finds that the independent documentary evidence indicates that there would be adequate state protection for the Appellant in a chieftaincy dispute. In Summary [59] When considering in totality of the objective evidence, the RAD finds that the Appellant has not established that he will be persecuted as a result of violence associated with his enstoolment. [60] The RAD agrees with the RPD that there is adequate state protection for the Appellant in Ghana. CONCLUSION [61] The Appellant is neither a Convention refugee nor a person in need of protection. Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "Lesley Mason" Lesley Mason November 28, 2016 Date 1 Exhibit P-2, Appellant's Record, pp. 23-24. 2 Ibid., pp. 25-28. 3 Ibid., p. 29. 4 Ibid., pp. 30-31. 5 Ibid., p. 32. 6 Ibid., pp 33-39. 7 Ibid., pp. 40-41. 8 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 9 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 10 Singh, 2016 FCA 96, para. 54. 11 Exhibit RPD-1, RPD's Record, pp. 70-71. 12 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Ghana (May 13, 2016), item 13.1. 13 Exhibit RPD-1, RPD Record, p. 142. 14 Exhibit RPD-1, RPD's Record, p. 68. 15 Ibid., NDP for Ghana (May 13, 2016), item 13.2. 16 Exhibit RPD-1, RPD's Record, pp. 72-84. 17 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 18 Exhibit RPD-1, RPD's Record, NDP for Ghana (May 13, 2016), item 13.1. 19 Ibid., p. 3. 20 Exhibit P-2, Appellant's Record, p. 33. 21 Exhibit RPD-1, RPD's Record, NDP for Ghana (May 13, 2016), item 13.2. 22 Exhibit RPD-1, RPD's Record, pp. 70-71. 23 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85, at para. 724 and 725. 24 Exhibit RPD-1, RPD's Record, NDP for Ghana (May 13, 2016), items 2.1, 4.2, and 7.1. 25 Ibid., item 13.2, p. 4. 26 Ibid., item 1.5, p. 9, ss. 3.10.6. 27 Ward, supra, footnote 23. 28 Sztojka, Andras v. M.C.I. (F.C., no. IMM-2005-11), Mosley, October 20, 2011, 2011 FC 1202. 29 Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C., no. IMM-822-06), O'Reilly, March 26, 2007, 2007 FC 320. Reported: Flores Carrillo v. Canada (Minister of Citizenship and Immigration, [2008] 1 F.C.R. 3 (F.C.); Flores Carrillo, Maria Del Rosario v. M.C.I. (F.C.A., no. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94. Reported: Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.). 30 Sztojka, Andras v. M.C.I. (F.C., no. IMM-2005-11), Mosley, October 20, 2011, 2011 FC 1202, para.12. 31 M.C.I. v. Olah, Bernadett (F.C.T.D., no. IMM-2763-01), McKeown, May 24, 2002. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-15322