Date: 20020812
Docket: IMM-1096-00
Neutral Citation: 2002 FCT 851
Ottawa, Ontario, this 12st day of August 2002
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
MAXWELL AMOAKO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division ("CRDD") which found that the applicant Maxwell Amoako was not a convention refugee. The basis of the CRDD's decision is that it did not believe the applicant when he said he was a student activist who was targeted by the Ghanian security forces. It disregarded two telegrams from friends warning him to stay away. It gave no weight to contemporary newspaper reports confirming a crackdown on striking students at the applicant's university. The applicant objects to the CRDD's assessment of his credibility.
[2] The Applicant says that he was active in student politics while studying for his undergraduate degree. Upset at the government's failure to increase student loans, the applicant was instrumental in organizing a demonstration on his campus in March 1993. He also helped organize transportation for students to the site of the demonstration because of his contacts with the transportation union. The authorities warned the students not to proceed with the demonstration. When the demonstration went ahead anyway, the students were met by armed units. The applicant was arrested, beaten and released. Following this, a friend whose uncle was a police officer warned the applicant that the security forces had him under surveillance.
[3] After completing his B.Sc degree in June of 1993, the applicant completed his national service by teaching at a school in an area of central Ghana. He took advantage of the opportunity to raise the consciousness of the local people about the excesses of the government. This resulted in a night time visit by ten men, including the local chairman of the governing party, who advised him that he should cease his political activity. Fearing for his safety, the applicant terminated his political involvement for the balance of his teaching assignment.
[4] The applicant returned to studies for a Master's degree in nutrition in April 1995. At about that time, the university lecturers went on strike to protest their low wages. The applicant says he got involved in organizing demonstration in support of the lecturers. He was arrested for his participation, beaten, and labelled as a student activist.
[5] The applicant says that in August 1997 he helped organize a protest by graduate students which was brutally suppressed. The applicant says was arrested again. He was struck in the abdomen and chin, suffering injuries which required two hours of treatment at a local clinic. In October 1997, the applicant left Ghana for a conference in Montreal. He says he was questioned by security personnel at the airport for several hours so that he almost missed his flight but in the end he was allowed to go. The questioning appeared to center on his political activities. The applicant remained in Canada for several weeks and then returned to Ghana as scheduled.
[6] In 1998, another student demonstration took place, this time over the government's plan to charge "residential fees". Knowing that he was under surveillance, the applicant did not participate in the planning for the demonstration. In spite of this, the applicant was arrested and questioned for eight hours in a small cell, in the course of which he was assaulted. In the end he was released upon payment of a bribe with a warning that he would face indefinite detention if he were involved in any more demonstrations.
[7] The applicant came to Canada again in November 1998 to attend a conference on Rural Health and Safety in a Changing World and a "Festival du Cinéma" in Rouyn-Noranda, Québec. He says that the latter was relevant to his studies in nutrition because his interest was in educating the public about nutrition which would include the use of film as a medium of instruction. While at the "Festival du Cinéma" he received two messages, by fax and telegram, from individuals in Ghana. One said "Please Danger Back Home so Don't Come Thanks". The other said "Problem Back Home So Do Not Come Back". The applicant also received a letter from a friend who was a student activist. This letter, dated October 14, 1999, covers many of the aspects of the applicant's claim. A number of newspaper clippings were also submitted to substantiate the occurrence of the demonstrations which the applicant said he had a hand in organizing.
[8] The Applicant contacted his family who told him that agents of the Bureau of National Investigations had searched his residence at the university and had taken away some of his papers. He was also advised that he would be arrested upon his return. Faced with this news, the applicant decided to seek refugee status in Canada.
[9] The applicant says that he is known as a student activist and a member of the opposition party known as the New Patriotic Party. He says that he conducted a survey in rural area as part of a national survey seeking to determine what would have to be done to improve their electoral standing. He fears for his personal safety upon his return to Ghana as a result of his political activism.
[10] At his hearing the applicant was questioned in chief by his counsel. In the course of his evidence, he was able to name a number of leading student activists whose names appear in the newspaper reports of the events which the applicant described. He was able to produce a newspaper photo which he says showed him in the company of some of these student leaders, though he is unrecognizable in the photo, and is not identified in the caption. A reading of the transcript shows that the applicant became confused and had difficulty answering questions during cross examination. It is also evident that the panel members were somewhat exasperated by his inability to follow a line of questioning. He damaged his own credibility when he volunteered that he had been told and that he personally feared that a hit squad could be sent from Ghana to dispatch him. His own counsel warned him that this made his story sound "weird" (page 375-376 Tribunal Record).
[11] The CRDD did not believe most of what the applicant told them. They did not believe that the applicant could help organize transportation for students from various universities to the site of the demonstration because of his contacts with the transportation union. The applicant claimed to have contacts with the transportation workers union because his father had run a successful commercial transportation company with eight buses. Unfortunately that these were confiscated by the government when the applicant was 13 years old. The CRDD could not understand how his father's involvement in the bus business would result in the applicant having contacts with the union if the business was seized when the applicant was 13.
[12] The CRDD could not believe that the applicant had a genuine fear of persecution since he voluntarily returned to Ghana in 1997 after spending time in Canada. When questioned about this the applicant said that he wanted to complete his studies and that his fear was not yet "at that level":
Q. At any point in time when you left Ghana for the first time did you fear for your life?
A. Yes. Looking at what happened to me in previous years, I feared for my life.
Q. Could you explain then to the panel why you didn't claim refugee status at your earliest opportunity when you were in Canada in 1997?
A. Well, I thought in the first place I hadn't, I was in a course. I was doing my Master's and I hadn't finished. So if anything, why should I take refugee status whilst I see that sort of fear at that time wasn't like that I should take to that level that I should take refugee status. Because this time in 1998, when I came back and my consultant, my family they told me that the BNI were visiting event the recent demonstration that happened, they knew, they thought I was around. So my mom told me that they came to the house asking her my whereabouts. They even thought I was in the country .
...
Q. So you answered yes, that you feared for your life in 1997 because of the previous years. But your answer was because you hadn't finished your Master's and that your fear wasn't at that level. Well, if you feared for your life, whatever other level would there have been sir?
A. Yes, right now, what they are doing is that ...
Q. Not right now sir. In 1997, if you feared for your life, whatever level did you need to be really fearful?
A. I feared, the level was that to the level of let's say killing.
BY PRESIDING MEMBER (to the person concerned)
Q. Of?
A. To the level let's say catching me and detaining me indefinitely. That they can, they could detain you with the (inaudible) probably kill you.
BY COUNSEL (to the person concerned)
-Okay
Q. What is the difference between 1997 and 1998? That's what all of these questions are about.
A. Okay.
Q. Is there any difference between the two years? And if there is, explain it please.
A. Okay. In 1997, the idea, the problem was that student's weren't ... there wasn't all that pressure in the system. But in 1998, the pressure in the system was too much for the government to bear. She he felt that by tracking down the student's leadership that will be, that will save the government.
[13] The CRDD was not persuaded by these answers. Nor were they persuaded by the documentary evidence submitted by the applicant. It found that the telegram and the fax were so similar in wording as to lead to the conclusion that they were solicited by the applicant. This conclusion also extends to the letter from his friends.
[14] The applicant is deeply critical of the CRDD's dismissal of his claim on the ground of lack of credibility, rejecting the documentary evidence and written proof which he submitted. He argues that while the CRDD is entitled to make findings of credibility, it is not entitled to ignore the evidence on the mere assertion that it does not believe him. He says that the CRDD is bound to give reasons for rejecting the evidence which is put before it and cannot simply ignore that evidence. A number of cases are cited as authority for this proposition.
[15] The applicant also attacks the CRDD's finding that his voluntary return to Ghana in 1997 (and by extension, his failure to make a refugee claim at that time) and his delay in making a refugee claim in 1998 are indications of a lack of subjective fear. The applicant says that his reasons for returning to Ghana in 1997 have been explained and are credible. As for 1998, the applicant says that he made his claim as soon as he found out that the authorities were actively looking for him. The applicant relies upon case law that says that the mere fact of delay in making a claim is not, in and of itself, conclusive of the issue of subjective fear.
[16] The respondent says that the CRDD exercised its right to make findings of credibility and that these should not be disturbed simply because the applicant does not agree with them. It is for the CRDD to decide which evidence it will accept and what weight it will give that evidence. As for the conclusion of lack of subjective fear based upon delay in advancing a claim for refugee status, there is authority to the effect that this is a conclusion which is open to the CRDD.
[17] The Applicant is essentially unhappy about the CRDD's credibility findings. He objects to the fact that his evidence and the documents which he tendered to support his case were not believed. He argues that the CRDD could not ignore the documentary evidence confirming the student unrest in which he was implicated.
[18] Dealing with the last point first, the CRDD has a wide latitude with respect to its treatment of documentary evidence. It can prefer documentary evidence to the sworn testimony of an applicant. Zhou v. Canada, [1994] F.C.J. No. 1087 (C.A.). However, it is not free to completely disregard documentary evidence which would support the applicant's claim. In Gourenko v. Canada, [1995] F.C.J. No. 682 Simpson J. identified the two factors to be considered when determining whether a tribunal's failure to refer to documentary evidence constitutes an error of law: the reliability of the author and the relevance of the evidence to the issues in the case. The underlying assumption however, is that the evidence is probative.
[19] In this case, the documentary evidence confirms student unrest at the time the Applicant says he was involved in student politics. The photo which he tenders as evidence of his involvement is of no assistance to him as he is unrecognizable in the photo and his name does not appear in the caption. All that the CRDD had before it was information which was in the public domain which did not assist it in determining whether this applicant was in fact involved in Ghanian student politics. This evidence was of such little probative value that the CRDD's failure to examine in it detail is not surprising and certainly does not justify the intervention of this court.
[20] The other issue is the CRDD's rejection of the applicant's evidence and of the documents from third parties which he submitted in support of his application. The CRDD's assessment of the applicant's credibility was based upon factors which it was entitled to take into account: his manner of giving evidence, the implausibility of two communications containing virtually the same content arriving at virtually the same time, the implausibility of the applicant having contacts with the transportation workers' union, the fact of not making a refugee claim at the first opportunity. These are all conclusions which were available to the CRDD on the basis of the evidence before it.
[21] The applicant also raises a Charter based upon the risk of inhumane or degrading treatment upon his return to Ghana. Given the CRDD's conclusion that the applicant would not face a reasonable likelihood of persecution upon his return to Ghana, there is no factual basis for the argument of inhumane treatment. Consequently, the Charter issue does not arise.
[22] For these reasons, there is no basis upon which this court can intervene. The application for judicial review will be dismissed.
[23] Neither party suggested a question for certification.
ORDER
For the reasons set out above, the application for judicial review is dismissed.
"J.D. Denis Pelletier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:IMM-1096-00
STYLE OF CAUSE:Maxwell Amoako
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING:Montreal, Quebec
DATE OF HEARING:December 12, 2000
REASONS FOR ORDER OF: The Honourable Mr. Justice Pelletier
DATED:August 12, 2002
APPEARANCES:
Me Stewart IstvanffyFOR APPLICANT
Me Sherry Rafai FarFOR RESPONDENT
SOLICITORS OF RECORD:
Me Stewart IstvanffyFOR APPLICANT
Montreal, Quebec
Morris RosenbergFOR RESPONDENT
Deputy Attorney General of Canada
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