TB4-05103

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 : TB4-05103 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXX XXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 28, 2014 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ohene K. Andoh 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] XXXXX XXXXX, (the Appellant), a citizen of Ghana, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant did not submit new documents to be considered as new evidence in support of his appeal, and the Appellant is not requesting an oral hearing. [3] The Appellant requests that the appeal be allowed and the negative decision of the RPD be set aside and that the RAD substitute a positive determination. DETERMINATION [4] This appeal is dismissed. Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD finds and confirms the RPD's decision that the Appellant is neither a Convention refugee nor a person in need of protection. Background [5] The Appellant alleged before the RPD that XXXXX XXXXX XXXXX XXXXX XXXXX XXXXXin his hometown of XXXXX. XXXXX XXXXX XXXXX XXXXXXXXXX XXXXX XXXXX. The Appellant XXXXX XXXXX XXXXX XXXXX the position, however the Appellant objected to the nominations due to his religious beliefs. He was a practicing Pentecostal Christian. As a result, the Appellant was severely beaten by four youths in his hometown on XXXXX, 2012 and was threatened that they would kill him if he continued to refuse the nomination. [6] The Appellant fled to his home in XXXXX to get away from the situation. However, he was beaten again on XXXXX, 2012, and the assailants threw a substance on his hand which burned him. These assailants were from his hometown, who had travelled to XXXXX. He went to the police after each attack, but they did not assist him. [7] After the second attack, he became worried that he would be killed and knew he would have to leave Ghana. He left Ghana on XXXXX, 2012 and arrived in Canada the next day. He claimed protection in February, 2014. The RPD rendered a written decision dated May 14, 2014. The RPD found that the Appellant lacked well-founded fear of persecution and that he was not credible. The Issues [8] The Appellant raised the following issues: * Did the Board err in determining that the claimant has no nexus? * Did the Board err in finding the claimant not credible in his claim? * Did the Board err in finding that the claimant is neither a Convention refugee nor a person in need of protection pursuant to section 96 and subsection 97(1) of IRPA? * Did the Board member err in not assessing the claimant's evidence objectively? [9] I will focus on whether the RPD erred and whether the Appellant's alleged fear of return to Ghana, having refused the appointment of fetish Priest, is well founded. The Role of the RPD [10] I am guided by the Federal Court decision in Huruglica1 which considered the issues related to appeals to the RAD, and stated that the RAD is to conduct its own independent assessment of the evidence and decide if the person is in need of refugee protection, and that the RAD is to show deference to RPD credibility findings and findings in areas where the RPD has a particular advantage (over the RAD). The Court stated: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error." Merits of the Appeal [11] After a thorough review of the evidence before me, I am able to confirm the RPD's finding that the Appellant is neither a Convention refugee nor a person in need of protection for the following reasons. [12] There are several material issues that go to the heart of the claim. The RPD panel identified these issues to the Appellant and gave him the opportunity to provide an explanation for the discrepancies, errors and omissions. Having considered the explanation provided by the Appellant, the RPD panel found these to be unreasonable. After considering the record and the audio recording of the hearing, I defer to/concur with the RPD's finding. Some of the issues are discussed below. [13] Two documents were sent to the Appellant by the RAD soliciting submissions. The documents that were sent are Response to Information Requests (RIR)2 and include: Response to Information Request (RIR) GHA42842.E Ghana: The distinction between a fetish priest and chief/chieftain, especially regarding which is more privileged in the community; likelihood of physical punishment or reprisals for refusing to accept the position of fetish priest. Response to Information Request GHA41340.E Ghana: Consequences of refusing to assume an inherited position of tribal or clan chief and state protection available to the individual. [14] These two documents provide objective information on different priests, chiefs and potential repercussions for refusing to accept such positions. [15] The Appellant, in response, submitted "GHA42842-E mentions that XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX." The Appellant also submitted in response and quoted the Response to Information Request GHA42626-E that states: "XXXXX XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX (XXXXX XXXXX) XXXXX XXXXX, "XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX "XXXXX" XXXXX "XXXXX XXXXX." The title of this RIR is, "Information on fetish called Akwasi-Akwasi in the Akan tribe, including whether the position of the Fetish Priest is hereditary by eldest nephew upon the priest's death, and the consequences of refusing the position." The Appellant submitted that the RPD panel misunderstood the RIR and that this is an "error in law" and also erred in "assessment of the facts" and on that ground wants the RAD to grant the appeal. The Appellant submitted that the Panel misinterpreted the RIR GHA10415 in the memorandum at page 42 of the Appellant's Record. [16] I am not persuaded because the Appellant's own evidence, his sister's letter,3 states the XXXXX XXXXX "XXXXX XXXXX" "XXXXX XXXXX XXXXX XXXXX "XXXXX XXXXX." XXXXX XXXXX, XXXXX, XXXXX XXXXX XXXXX "XXXXX XXXXX" "XXXXX XXXXX". Therefore, I find that the Appellant's arguments in his memorandum, paragraphs 16 to 24, are without merit. Even if I were to accept that the RPD erred in this interpretation, I will consider the two RIR's mentioned above and based on that I find that, even if the RPD erred, this is not fatal to the RPD's determination. [17] The RAD is empowered to consider the totality of the evidence and is able to supplement the RPD decision and/or make its own determination. In this case, I find that, despite this alleged error by the RPD, the Appellant is neither a Convention refugee nor a person in need of protection, and thus able to confirm the RPD's determination. I will consider the issue of the Appellant XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, XXXXX, XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. [18] First, the Response to Information Request GHA41340.E, XXXXX XXXXX talks about the consequences of refusing to inherited traditional position of tribal or clan chief and states: I would say that the consequences of refusing to accept an office is about the same for all of them. Young men do not want to [be] chosen, because it takes up their time and money, and has few rewards they seek. They incur the wrath of the elders, but there is no evidence of any harm done as a result. That the notion of physical punishment for refusing an offered stool is a belief among evangelical Christians, probably originating from missionaries who preached that traditional beliefs in ancestors and gods (integral to the traditional chieftaincy system) was devil worship. There are no known reported cases of anybody being harmed for refusing an offered stool. (Those that refuse, usually young men who would see the duties as an imposition, simply stay away for a few years until the elders cool off, thus they do not get access to stool land during that time; [but] most of [them] are pursuing an urban career so do not feel the loss). The Director of the African Studies Centre at the University of Cambridge and co-convenor of a January 2003 conference held in Accra, Ghana, entitled "Chieftaincy in Africa: Culture, Governance and Development" corroborated the information above stating that, "in general, there are no serious negative consequences from turning down a stool position" and that "I haven't heard of anyone being targeted for actually refusing a stool." (Those that refuse, usually young men who would see the duties as an imposition, simply stay away for a few years until the elders cool off, thus they do not get access to stool land during that time; [but] most of [them] are pursuing an urban career so do not feel the loss). There is all kinds of violence that has occurred involving stool disputes - but those are about one person wanting to be the chief, and a group of people trying to prevent that, or to destool him from the position. Although one academic source suggests that harm could be directed towards an individual who refuses an offered stool (Adjunct professor of sociology 5 May 2003), corroborating information could not be found among the sources consulted by the Research Directorate. As well, no documentary evidence regarding the consequences for refusing an inherited position of tribal or clan chief could be found among the sources consulted by the Research Directorate. Regarding the issue of state protection, the Director of the African Studies Centre at the University of Cambridge stated that "the police would most definitely get involved in protecting any affronted party. ... It's been a democracy for a while now and there are several legal avenues a person can take to redress imbalances" Ghanaians are quite offended that such ideas are being perpetrated; that their culture and society is not so harsh. [19] The other RIR GHA42842.E explains the distinction between a fetish priest and chief/chieftain, and that no serious harm comes following refusal to accept such position. This RIR states: that most villages have only one chief but several fetish priests a chief operates in the public, political sphere of life while a fetish priest operates in the more private, religious sphere. A 1986 book entitled Ancient Ashanti Chieftaincy described how potential candidates for chieftaincy positions in the Ashanti culture of Ghana vie for favour of the elders who are considering their selection (Obeng 1986, 42-43). However, more recent information suggests that candidates may deliberately try to avoid being selected as chief in order to pursue alternative careers. The international development consultant explained that many bright, well-educated young men prefer to avoid becoming chiefs and so they are likely to flee when the elders are considering candidates for the position (12 July 2004). He indicated that these men do not face repercussions for fleeing and that many return to their home villages after the new chief has been selected and "enstooled". [20] Both of these documents contain information obtained from numerous objective sources and XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX XXXXX, XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. This clearly casts a doubt on the Appellant's testimony that the police did not help him, and further supports the RPD finding. [21] The Appellant submits that the RPD assigned little weight to corroborative evidence including the medical report. I agree with the RPD that the medical report4 is rather unusual; it describes two alleged incidents that have taken place weeks apart in two different places (the first in XXXXX and the second in XXXXX) and yet there is one report. I also note that the Appellant went to the same police station to report two incidents that allegedly took place in two different places and yet he goes to the same police station to report. In light of the documentary evidence that police responds and protects such persons, I cannot find that the RPD erred in its credibility assessment and I defer to its credibility assessment. Therefore, I place little weight on these reports. [22] It is trite law that the RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.5 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of evidence, there must be a basis in the evidence to support such inferences.6 I find that the RPD's concerns about the Appellant's credibility have foundation and the central issue in this claim was given sufficient treatment. The RPD's determination rested, in large part, on conclusions that are defensible in fact. [23] Having considered the totality of evidence before me, I find that the Appellant is neither a Convention refugee nor a person in need of protection, thus I will confirm and not disturb the RPD's determination. DISPOSITION [24] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the determination of the Refugee Protection Division. [25] This Appeal is therefore dismissed. (signed) 'Atam Uppal' Atam Uppal October 28, 2014 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-3632-13), Phelan, August 22, 2014, 2014 FC 799. 2 RPD Record, Exhibit 3, NDP Ghana 3 Appellant's Record, Page 28. 4 Appellant's Record, page 22. 5 Numbi, Gaston Kipa v. M.C.I. (F.C., no. IMM-92-12), Boivin, August 30, 2012; 2012 FC 1037 at 19. 6 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05103