Date: 20060811
Docket: IMM-5808-05
Citation: 2006 FC 968
Ottawa, Ontario, August 11, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ISAAC
ANKOMAH HACKMAN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
THE
APPLICATION
[1]
This is an application
for judicial review, made pursuant to sections 18 and 18.1 of the Federal
Courts Act, R.S.C. 1985, c.F-7, of a decision (Decision) of the Refugee
Protection Division of the Immigration and Refugee Board (Board). In its
Decision, dated August 30, 2005, the Board determined that the Applicant is
neither a Convention refugee nor a person in need of protection.
BACKGROUND
[2]
The Applicant is a
citizen of Ghana. He says he is homosexual and that he
was in a relationship in Ghana for nine years, from late 1995 until
2004. He alleges that on July 23, 2004, four of his neighbours called him “gay,”
said he “deserved to be killed,” beat him and then threw what he “believe[d] to
be urine” in his face. Neither the Applicant nor his partner had previously
been targeted.
[3]
The Applicant states
that he immediately went to the police and reported the attack. The police
asked the Applicant if he was gay. He said that he “was not gay.”
[4]
The Applicant’s
complaint was registered by the police. A typed report was prepared the same
day, although the Applicant did not immediately receive a copy. The report
states that the suspects “accused [the Applicant] of practicing as a ‘GAY’, who
needs to be killed.” The report does not reflect the Applicant’s statement that
he “was not gay.”
[5]
The Applicant says
that the police officer on duty gave him a “medical report form to seek medical
intervention.” The Applicant was also asked “to call at the police station in a
week’s time to check the status of the investigation.” He did not do so because
he felt that the police did not have “any secure protection” for him. He says
he “expected them to even drive [him] in the police vehicle to a nearby clinic
or hospital, but rather they gave [him] a form that [he] should got to the --
to seek medical help [himself].”
[6]
The Applicant states
in his Personal Information Form that, after leaving the police station, he
went to the hospital and “was examined, received treatment and medications for
[his] injuries, and was discharged.” Before the Board, the Applicant added that
he was also given a copy of the hospital report. The hospital report is a typed
letter dated July 23, 2004 addressed “TO WHOM IT MAY CONCERN.” It summarizes
the Applicant’s injuries and the medication he was prescribed. The letter also
states that the Applicant “was asked to come back in a week’s time for further
examination.” The Applicant says he did not report back because he “had already
followed the medication given to [him]” and “was feeling better.”
[7]
The Applicant says
that, as a result of the attack, he “felt that [his] life was in [im]minent
danger” and so he made the decision to leave Ghana
and his partner to come to Canada. The Applicant arranged to have an “agent”
obtain an illegal visa for him. He says this cost over $2,500.
[8]
The Applicant arrived
in Canada on September 24, 2004. He claimed
refugee status approximately four-and-a-half months later. Questioned by the Board
on this point, the Applicant testified as follows:
Because
of what happened to me in Ghana, I was very confused and scared most of
all. So I needed to -- time to get my thoughts back together and also to -- to
find out, in particular, about what sort of treatment is given to gay people in
Canada. That is why it took me such time.
[9]
In support of his
claim, the Applicant submitted to the Board a copy of the police report
purportedly made when he reported the attack. The Applicant explained that he
subsequently gave a friend in Ghana an “authorization” and told him to “go
and get [the report].” His evidence was that his friend put the police report
in an envelope and sent it without any accompanying letter.
DECISION
UNDER REVIEW
[10]
The Board rejected
the Applicant’s claim. It found it “implausible that the police would give a
copy of the report to someone not concerned with the incident when they did not
give the complainant (the claimant) a copy,” particularly since the Applicant
did not report back to the police as asked. The Board found that both the
police and medical reports, the former having “give[n] rise” to the latter,
were “untrustworthy documents” and drew a negative inference as to the Applicant’s
credibility.
[11]
The second principal
reason for the Board’s rejection of the Applicant’s claim was the Board’s
negative inference on the subjective fear of the claimant in not making a claim
at the earliest opportunity he had. The Board rejected the Applicant’s
explanation that he was “confused and scared,” and felt it was unreasonable for
him to suggest confusion and fear when he himself made a conscious, expensive
decision to come to Canada.
[12]
The Board’s analysis
of the claimant’s documents combined with his failure to claim protection at
the earliest opportunity led the Board to find on a balance of probabilities
that [he] is not gay.
[13]
Alternatively, the Board
concluded that, even if the Applicant was gay, he would not be sufficiently at
risk if returned to Ghana. The Board cited document GHAV36100.E
dated January 26, 2001 from the Research Directorate of the Immigration and
Refugee Board, and quoted the following passage in its reasons:
Homosexual
acts between men can be punished under provisions concerning assault and rape.
This will only happen when one of those involved makes a formal complaint or
when it concerns an act with a minor.
[14]
The Board went on to
refer to a September 1999 report by the U.K. Home Office, referred to in the document
cited above, which stated that “the practice of homosexual acts is illegal in
Ghana though the law is not strictly enforced and homosexuality is generally
regarded with tolerance.”
[15]
The Board concluded
as follows:
[…]
The claimant has not placed before me any persuasive evidence that homophobia
in Ghana is such that, it reaches the serious
possibility plateau of serious harm being directed at gays. […] [T]he claimant
has failed to show, even if he is gay, that there is a serious possibility he
will fall victim to homophobic elements in society and there is no objective
reason to believe that his sexual orientation will lead to incarceration or
sanction as long as he does not involve minors and is not involved in a forced
sexual encounter.
ISSUES
[16]
The Applicant submits
that the Board erred in its credibility assessment and by ignoring relevant
documentary evidence pertaining to discrimination against homosexuals in Ghana.
ARGUMENTS
Applicant
[17]
The
Applicant made no submissions with respect to the applicable standard of
review. As to the issue of credibility, the Applicant submits that it was
unreasonable for the Board to find that he is not gay. He argues that it is
plausible that the police would have given his friend the police report and
that the Board failed to appreciate his explanation for his delay in claiming
refugee protection in Canada. Moreover, the Applicant argues that the Board
erred in failing to consider a 2004 document showing that there is more than a
mere risk of persecution for him if he is sent back to Ghana.
Respondent
[18]
On the
issue of credibility, the Respondent contends that the applicable standard of
review is that of patent unreasonableness. The Respondent says it was not
unreasonable for the Board to find that the Applicant is not gay, given his
four-and-a-half months delay in claiming refugee protection and his statement
that the police report was given to his friend. The Respondent further argues
that the 2004 document does not contradict the Board’s decision and is not
persuasive evidence that serious harm is inflicted on homosexuals in Ghana.
STANDARD OF REVIEW
[19]
It is well
established that the applicable standard of review as to the assessment of the
credibility of a refugee claimant is that of patent unreasonableness (Sinan
v. Canada (Minister of Citizenship and
Immigration),
2004 FC 87, at paragraph 8). The
same standard of review applies to the assessment of country conditions, as
such an assessment is also a question of fact (Thamotharem v. Canada
(Minister of Citizenship and Immigration), 2006 FC 16, at paragraph 16).
ANALYSIS
[20]
Regarding the Board’s
credibility assessment, the Applicant submits that “common sense supports the Applicant’s
position that his friend, armed with the Applicant’s own written authorization,
could retrieve [the police report] on his behalf.” The Applicant adds that
“there was no documentary evidence before the Board that would suggest
otherwise.”
[21]
The Respondent
submits that it was not “completely unreasonable” for the Board to surmise that
if the police did not “originally give a copy of the report to the Applicant”
then they would not “subsequently give one to a friend of the Applicant.”
[22]
The Applicant also
says that the Board inaccurately oversimplified his explanation for the delay
in claiming refugee status. The Board, in its reasons, said the Applicant’s
explanation was that “he was confused and scared.”
[23]
I find the
Applicant’s arguments persuasive concerning the board’s treatment of
credibility. However, it is clear from the Decision that the Board relied upon
alternative grounds for its conclusions that he was not a Convention refugee
and was not at risk:
Thus,
the claimant has failed to show, even if he is gay, that there is a serious
possibility he will fall victim to homophobic elements in society and there is
no objective reason to believe that his sexual orientation will lead to
incarceration or sanction as long as he does not involve minors and is not
involved in a forced sexual encounter.
[24]
In my view, the
objective aspects of the Decision contain no reviewable error and can stand
alone to support the Decision.
[25]
The Applicant argues
that the Board ignored “more recent” documentary evidence indicating that
“there is significant discrimination against homosexuals in Ghana.” Specifically, the Applicant refers to the U.S. Department
of State Report on Human Rights Practices in Ghana,
2004, which indicates as follows:
The
law is discriminatory toward homosexuals, and homosexuality is criminalized in
the country. There is a minimum misdemeanour charge for homosexual activity,
and homosexual men are often subjected to abuse in prison. In May, the Acting
Commissioner for CHRAJ publicly suggested that the Government consider
decriminalizing homosexuality to conform to international standards of human
rights. Homosexuality was socially taboo in the country, and many persons
continued to erroneously link the prevalence of HIV/AIDS only with a homosexual
orientation.
[26]
The Applicant submits
that the above “directly contradict[s]” the documentary evidence upon which the
Board did rely and that the Board’s failure to refer to it shows that it was
“ignored.”
[27]
It is trite law,
however, that the Board is entitled to prefer some documentary evidence over
other documentary evidence, and that it need not refer in its reasons to every
piece of evidence before it: see Gomez v. Canada (Minister of Citizenship
and Immigration), 2006 FC 406 at paragraph 16. In my view, in this case,
the Board did not fail to discuss “contradictory” evidence that will support a
conclusion that it ignored or misapprehended the evidence before it. The U.S.
Department of State Report cited by the Applicant is not really contrary to
other documentary evidence before the Board. In particular, I do not feel that
the passage cited by the Applicant contradicts the 1999 report by the U.K. Home
Office in a way that suggests the Board overlooked contrary evidence. The Board
reviewed evidence that was, at times, different in its emphasis, and the Board
makes it clear that its assessment of the evidence overall leads it to draw
certain conclusions that, in my view, are not really contradicted by the
passage relied upon by the Applicant. As this Court has held on many occasions,
the fact that a tribunal fails to recite all of the evidence does not lead
inevitably to a conclusion that evidence was overlooked. See, for example, Johal
v. Canada (Minister of Citizenship and Immigration, [1997] F.C.J. No. 1760, at paras. 9 and
10; and Maximenko v. Canada (Solicitor General), [2004] F.C.J. No. 606,
at para.. 18.
[28]
The Board concluded
that there was no “persuasive evidence” before it that “homophobia in Ghana is
such that, it reaches the serious possibility plateau of serious harm being
directed at gays,” and that “there is no objective reason to believe that [the Applicant’s]
sexual orientation will lead to incarceration or sanction as long as he does
not involve minors and is not involved in a forced sexual encounter.” I am
satisfied that this conclusion was reasonably open to the Board on the
documentary evidence before it.
[29]
In his Further
Memorandum of Argument, the Applicant raises a further issue and alleges, on
the basis of the decision in Thamotharem v. Canada (Minister of Citizenship
and Immigration), 2006 FC 16 regarding the Chairperson’s Guideline 7, that
“his hearing was conducted in a manner that offends the principles of natural
justice.” However, this additional matter was withdrawn at the hearing and
there is no need to deal with it in these reasons.
JUDGMENT
THIS COURT
ORDERS that:
1.
This application for
judicial review is dismissed.
2.
There is no question
for certification.
“James Russell”
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