Kwayisi v. Canada (Minister of Citizenship and Immigration), 2005 FC 533

Date: 20050420

Docket: IMM-3756-04

Citation: 2005 FC 533

Ottawa, Ontario, April 20, 2005

PRESENT:    THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON

BETWEEN:

VIDA KWAYISI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]    Ms. Kwayisi says that state protection in Ghana is woefully inadequate and that the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board concluding otherwise is perverse. Regrettably, I cannot agree.

FACTS

[2]    A citizen of Ghana, Ms. Kwayisi will soon be 35 years of age. When she met her partner (Kojo) in February, 2001, she was immediately attracted to him. He was about 20 years her senior, kind, thoughtful, and very handsome. He was also a politically connected, wealthy, influential, and prominent man involved in an export-import business. Her family was thrilled with him. Ms. Kwayisi's father's death in 1988 had resulted in hard times. Kojo's kindness and generosity substantially improved her family's plight.

[3]    After eight months of dating, with her mother's encouragement and blessing, Ms. Kwayisi moved in with Kojo. Everything changed. He became possessive and jealous, controlling and bothersome (telephoning her at work at least three times a day) and verbally abusive. Before long, he began physically and sexually assaulting her.

[4]    Following a specific incident, Ms. Kwayisi turned to her mother and sisters for support. Because Kojo was supporting them, they feared that the support could stop and so they encouraged her to be submissive and give him a chance. Ms. Kwayisi then turned to the local police and reported the incident. When she mentioned her partner's name, the police refused to record the complaint and stated that it was a domestic matter best dealt with by her family elders.

[5]    Ms. Kwayisi's work performance deteriorated. She applied for a student visa but was refused. She attempted to do exactly what Kojo expected of her but the abuse continued.

[6]    In March, 2003, Kojo beat her so badly that she required medical attention. Again, she went to the police. Again, the police refused to record the complaint and stated that it was a domestic matter best dealt with by family elders. When Ms. Kwayisi insisted on charges, she was escorted from the station.

[7]    Again, she approached her family and was accused of embellishing her circumstances. A cousin, at Koforidua in the eastern region, was the lone sympathetic family member willing to assist. Ms. Kwayisi travelled to Koforidua but after only four weeks, Kojo and her sister arrived and removed her from her cousin's home. Having already threatened Ms. Kwayisi with death should she leave him, Kojo turned his wrath on her cousin and warned her to never harbour Ms. Kwayisi in her home.

[8]    Ms. Kwayisi and her cousin, by telephone, plotted a plan for escape. Her cousin arranged for an agent who obtained a false British passport. When Kojo scheduled a business trip out of the country for the week of July 16^th, Ms. Kwayisi booked a flight for July 20, 2003. She arrived in Canada the following day.

[9]    Since her arrival in Canada, she has spoken with her cousin and her former employer, both of whom have informed her that Kojo is searching for her and has vowed to teach her a lesson. He has threatened everyone, including her mother and sisters, because he does not believe that they had no part in her flight. In the past, he has threatened to kill her and Ms. Kwayisi says that she fears for her life.

THE DECISION

[10]                        The RPD rejected Ms. Kwayisi's claim on the basis that she had not rebutted the presumption of state protection. It stated that domestic violence is still a problem in Ghana and that state protection is not perfect, but it is adequate. Referencing the documentary evidence, the RPD determined that state protection is available from the Women and Juvenile Unit (WAJU) of the police in Ghana. Because of its finding on state protection, the RPD found that it could not invoke the Chairperson's Guidelines on Women Refugee Claimants to Ms. Kwayisi's advantage.

THE ARGUMENT

[11]                        Ms. Kwayisi alleges that the RPD ignored documentary evidence stating that domestic violence remains a pernicious problem in Ghana. She notes that WAJU is an integral part of the police force rather than an autonomous body as the reasons of the RPD portray it. Thus, she argues, WAJU is part of the same police force that rebuffed her twice when she attempted to report the abuse. Moreover, the statistics contained in the documentary evidence before the board hardly illustrate WAJU effectiveness. Given the lack of adequate state protection in Ghana, Ms. Kwayisi contends that the RPD ought to have invoked the gender guidelines to her advantage.

ANALYSIS

[12]                        Although I am sympathetic to Ms. Kwayisi's plight and am deeply troubled by her experiences, there are a number of principles applicable to the issue of state protection that are binding on me.

[13]                        Absent a situation of complete breakdown of state apparatus, it is generally presumed that a state is able to protect its citizens. This presumption serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant. Refugee claimants must present clear and convincing confirmation of a state's inability to protect them in order to rebut the presumption that states are capable of protecting their citizens: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. A claimant must do more than demonstrate that the state protection is not perfect. No government that makes a claim to democratic values or protection of human rights can guarantee the protection of all of its citizens at all times: Canada (Minister of Employment and Immigration) v. Villafranca (1992), 99 D.L.R. (4th) 334 (F.C.A.).

[14]                        When the state is democratic, the burden on the claimant to seek state protection is higher. It is not enough for a claimant to merely show that the government has not always been effective at protecting persons in his or her particular situation. The claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful: Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532 (F.C.A.).

[15]                        It is against this backdrop that the decision of the RPD must be examined. The board considered Ms. Kwayisi's evidence in its assessment of whether the government's efforts to protect abused women are adequate. It acknowledged that domestic violence and spousal abuse are pernicious problems in Ghana and that the state continues to face difficulties in its efforts to combat these ills. The board reviewed the documentary evidence and referred to the steps taken and the strides made since 1996, and concluded that the government's efforts were adequate.

[16]                        It specifically noted the existence of WAJU in different centres across Ghana, including the area where Ms. Kwayisi resided. The board noted that cases of domestic violence were handled by WAJU itself, through its outreach programs, and through its coordination with government departments and non-government agencies. The WAJU services, since inception in 1998, had been expanded and WAJU had benefited from financial support. Offenders had been prosecuted or domestic disputes had been settled amicably. The RPD noted that the Cape Coast WAJU unit, in the one year since its opening, had recorded 2,023 cases. The regional police commander had announced that a law would soon be passed on marital rape. The United States Department of State Report for 2002 stated that WAJU has offices in nine cities around the country and that it works closely with the department of social welfare and the legal aid board. As of September 30, 2002, WAJU recorded a total of 3,155 cases. The RPD did not perceive WAJU as being an autonomous association; it described it as a special unit within the police force.

[17]                        The RPD also considered Ms. Kwayisi's two attendances at the police station. It commented that she is an educated and urbanized woman. Although she takes issue with this statement and maintains that domestic abuse transcends all stratifications, the board did not state otherwise. In my view, when the comment is placed in context, the RPD found that Ms. Kwayisi (an educated and urbanized woman) had the benefit of an available medical report to positively identify her abuse and her abuser and therefore, with a concerted effort, she could approach WAJU for assistance and have her complaint taken seriously. In other words, she had the wherewithal to utilize the WAJU. It acknowledged her comment that she was not aware of WAJU, but decided that, with effort, she could have been.

[18]                        Ms. Kwayisi tendered two articles which she claims the board did not consider. While the RPD did not specifically refer to the contents of these articles in its reasons, it did state that it had considered the documents produced by Ms. Kwayisi's counsel. The documents are not overly helpful to Ms. Kwayisi's cause in any event. One merely notes that some police officers still view domestic violence issues as mere family or domestic matters that do not warrant police interference.    The respondent notes that this by no means suggests that all police officers harbour this perception and that the recorded successes attributed to those officers attached to the WAJU units establishes otherwise. The second article purports to report an increase in cases of violence against women but what it actually discusses is an increase in the number of women reporting cases of domestic violence.

[19]                        In the end, after reviewing the documentary evidence and that of Ms. Kwayisi, the RPD concluded that Ghana, though not perfect, is proving itself able and willing to assist abused women. It concluded that Ms. Kwayisi had not rebutted the presumption of state protection. Having reviewed the contents of the record, I can not conclude that the board's determination was not open to it. Even on a standard of review of reasonableness simpliciter, I am bound to apply the test enunciated in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 where, at paragraph 55, Mr. Justice Iacobocci stated:

A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, [1997] 1 S.C.R. 748 at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).

[20]                        The decision of the RPD meets this test and my intervention is therefore not warranted. Counsel did not suggest a question for certification and none arises in this matter.

ORDER

THIS COURT ORDERS THAT the application for judicial review is dismissed.

      "Carolyn Layden-Stevenson"