IMM-4462-96
B E T W E E N:
FRANK
KOBENA BERKO
Applicant
-
and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR ORDER
WETSTON, J.:
The applicant, a 45 year
old male from Ghana at the time of the hearing, was the Chair of the Sampa
District Committee for the Defense of the Revolution (CDR). He had held this
position for seven years, having previously served as a member of the CDR for
one year. As part of his duties, the applicant regularly heard complaints
against the militia and meted out minor punishments such as the imposition of
fines.
In January 1991, the
applicant was beaten and warned not to interfere with the militia. In June
1992, he was arrested and detained by members of the Ghana Bureau of National
Investigation for criticising a militia shooting in correspondence to the
regional secretary of the CDR. He was beaten during his detention, and upon
his escape in August 1992, he fled to Canada.
Pursuant to section Article
IF(a) of the United Nations Convention Relating to the Status of Refugees
(the "Convention")(incorporated as a schedule to the Immigration
Act, R.S.C. 1985, c. 28 (4th Supp.), s. 2(1)), the Board found that the
applicant was excluded from protection as a "refugee" because it
found serious reasons for considering that the applicant was complicit in the
commission of crimes against humanity.
The Board nonetheless went
on to conclude that the applicant did not have a well-founded fear of
persecution, should he be returned to Ghana, because of documented improvements
in Ghana's human rights record, as well as its political and legal
institutions.
The issues to be
considered in this review are:
1.whether
the Board failed to afford natural justice to the applicant by directing
applicant's counsel not to question him further to establish his credibility;
and
2.whether
the Board erred in law by its characterization of whether the applicant
committed, or was complicit in, crimes against humanity.
1. Natural Justice
The applicant alleges that
the Board directed the applicant's counsel not to question the applicant
further to establish his credibility. I disagree with the applicant's
submission that he was denied natural justice. The applicant was fully aware
that credibility was an issue in this proceeding. For the applicant to draw
an erroneous conclusion from an alleged direction of the Board that credibility
was no longer an issue does not, in this case, constitute a reviewable error by
the Refugee Division. In my view, credibility was an issue throughout
the hearing. The applicant was not deprived of the opportunity to establish
his credibility and to make full submissions with respect thereto.
2. Exclusion
The Board determined that
it did not believe the applicant when he insisted that he was "a paragon
of virtue" in the midst of the institutions of a brutal regime. While it
did accept that the applicant had been punished on two occasions for speaking
out against human rights abuses, it also noted the length of his tenure as CDR
Chair, and the opportunities to leave that position, of which he did not take
full advantage. The Board further noted that the applicant's omission of his
purported self-employment on his PIF indicates that he had profited from his
role as CDR Chair.
Based on the documentary
evidence before it, the Board also found that the CDR and militias were
instrumental in perpetrating various crimes against humanity in Ghana, and that
their institutional relationship was not as the applicant had described.
Although the applicant did not admit to his complicity in human rights abuses,
his testimony that such abuses did take place nonetheless corroborated the
documentary evidence that the CDR and militia did perpetrate such crimes on a
systematic basis.
It is important to note
that the Board is not required to base its exclusion finding on evidence
sufficient to prove, on a balance of probabilities, that the applicant
committed crimes against humanity. Rather, it need only have serious reasons
for considering that such behaviour took place (Ramirez v. M.E.I.,
[1992] 2 F.C. 306 (F.C.A.)). The board may rely on general documentary
evidence, even though it may contradict an applicant's sworn testimony.
In this case, the Board
had sufficient evidence before it to find that the CDR was involved in
"systematic and grave human rights abuses." Given the applicant's
lengthy tenure in a CDR leadership role, the fact that he had voluntarily
joined the CDR and had accepted his acclamation as Chair, as well as his
failure to step down when afforded the opportunity to do so, the Board was
entitled to draw an inference that the applicant was sufficiently aware of his
organisations involvement in such crimes to have been found complicit in their
commission (Sivakumar v. M.E.I., [1994] 1 F.C. 433 (F.C.A.) at
para. 10).
Given my conclusions
above, there is no need, at this time, to consider whether the Board erred in
determining that the applicant had a well-founded fear of persecution if returned
to Ghana. There is no question for certification.
The application shall be
dismissed.
"H. Wetston"
Judge
Toronto, Ontario
September 29,
1997
FEDERAL
COURT OF CANADA
Names
of Counsel and Solicitors of Record
COURT NO: IMM-4462-96
STYLE OF CAUSE: FRANK
KOBENA BERKO
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
DATE OF HEARING: SEPTEMBER
16, 1997
PLACE OF
HEARING: TORONTO, ONTARIO
REASONS FOR
ORDER BY: WETSTON, J.
DATED: SEPTEMBER
29, 1997
APPEARANCES:
Mr.
Raoul Boulakia
For
the Applicant
Ms.
Cheryl Mitchell
For
the Respondent
SOLICITORS
OF RECORD:
Raoul
Boulakia
Barrister
and Solicitor
45
Saint Nicholas Street
Toronto,
Ontario
M4Y
1W6
For
the Applicant
George Thomson
Deputy
Attorney General
of
Canada
For
the Respondent
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