Docket: IMM-4390-11
Citation: 2012 FC 127
Ottawa, Ontario, February 1, 2012
PRESENT: The Honourable Mr. Justice
Mandamin
BETWEEN:
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NAFIU ABDUL RAHMAN
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
Nafiu Abdul Rahman applies for judicial review of the June
3, 2011 decision of the Refugee Protection Division of the Immigration and
Refugee Board (RPD) refusing his claim for refugee protection pursuant to section
96 and subsection 97(1) of the IRPA.
[2]
Mr. Rahman, a member of the Mamprusi tribe, claimed refugee
protection because of two attacks by members of the Kussasi tribe: he had been
attacked at a roadblock in Ghana and very shortly afterward his family home had been attacked and his
father killed in Bawku in north eastern Ghana.
[3]
The RPD found the conflict between the Kussasi and Mamprusi
was mainly confined to north eastern Ghana, the attack on the Applicant was an
isolated incident and the Applicant had an Internal Flight Alternative (IFA) in
Accra, the capital city in
southern Ghana.
[4]
I conclude that this application for judicial review should
be dismissed for reasons that follow.
Facts
[5]
The Applicant, Nafiu Abdul Rahman, is a citizen of Ghana. He is a member of the Mamprusi tribe of Bawku in the
north eastern region of Ghana. There is a long-standing violent conflict between the Kussasi and the
Mamprusi tribes over ownership of land in Bawku.
[6]
In August 2009, the Applicant was working as a mechanic at
a roadside workshop in Ghana. The place of employment was located away from Bawku. He took a car for
a test drive and was stopped at a roadblock where he suffered a beating at the
hands of Kussasis. The Applicant fled to the neighbouring country, Togo, and stayed with his brother’s business partner. The next
day the Applicant’s brother also arrived in Togo. The brother was injured and he told the Applicant that their family home
back in Bawku had been attacked by Kussasis and that their father had been shot
and killed.
[7]
In September 2009, the Applicant left for Canada. That November, he made his refugee claim, alleging fear
of members of the Kussasi tribe, government security forces who he said
favoured the Kussasis, and members of his own Mamprusi tribe who he said
regarded him as a traitor for fleeing the conflict.
Decision
Under Review
[8]
The RPD found that the Applicant’s fear was not objectively
well-founded and that the Applicant had an Internal Flight Alternative (IFA).
[9]
The RPD accepted the Applicant’s identity and the
Applicant’s claim of long-term conflict between the Mamprusi and Kussasi tribes
in Bawku. The RPD also accepted that the Applicant was assaulted at the
roadblock but found that this was a single isolated incident as it happened away
from Bawku and the neighbouring northern regions of tribal conflict.
[10]
The RPD determined this attack did not did not constitute
persecution given the Applicant did not experience any problems related to the
conflict between the Kussasi and Mamprusi tribes when he lived and studied in
Ghana outside of northern regions from 1998 to 2000 and from 2006 to 2007.
[11]
The RPD rejected the Applicant’s submission that the
northern tribal conflict had spread south into the capital city of Accra and
the city of Kumasi because of two incidents,
one where some Mamprusis were killed in Accra and one where Kussasi and Mamprusi
clashed in a Kumasi market.
[12]
The RPD also did not accept the Applicant’s claim that the
government was complicit with the violence against the Mamprusi because a Kussasi
held a prominent role in the Ghanaian government. The RPD noted the current
President has pleaded with the Mamprusis and Kussasis for peace. The RPD also
noted that since 2002 the government has spent significant amounts to maintain
law and order in the three northern regions where the conflict was greatest.
The RPD found that the Ghanaian Government was making attempts to improve the
situation in northern Ghana by trying to work with both tribal groups.
[13]
While accepting the Applicant had a subjective fear of
persecution, the RPD found that objective documentary evidence did not support
the Applicant's fear of persecution.
[14]
The RPD also found that the Applicant had an IFA in the
capital city of Accra in
southern Ghana. The RPD noted Accra is
located in the far south on the Gulf of Guinea which was well removed from Bawku where the tribal
conflict occurred.
[15]
The RPD noted Accra had a population of approximately four million people and since the
Applicant was not a prominent person in the Mamprusi tribe or involved in
politics at any level, he would not be targeted.
[16]
The RPD found the Applicant could relocate to Accra. The Applicant now had overseas educational and work
experience. The RPD found that the Applicant could finish his studies for auto
mechanics in Accra educational institutions and find employment opportunities
in Accra. Finally, the RPD noted that
Ghana’s constitution provides for
freedom of movement and that the Ghanaian government generally respected these
rights.
[17]
The RPD concluded that the Applicant was not a Convention
refugee as he did not have a well-founded fear of persecution in Ghana. The RPD also determined that the Applicant was not a
person in need of protection in that his removal to Ghana would not subject him to risk to his life or cruel and unusual treatment
or punishment.
Relevant
Legislation
[18]
The Immigration and Refugee Protection Act, SC 2001,
c 27 provides:
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96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection
of each of those countries; or
(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
…
97. (1) A person in need of protection is a person in Canada whose
removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former
habitual residence, would subject them Personally
(a) to a danger, believed on substantial grounds to
exist, of torture within the meaning of Article 1 of the Convention Against
Torture; or
(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the
protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard
of accepted international standards, and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
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96. A qualité de réfugié au sens de la Convention — le
réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa
race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette
crainte, ne veut se réclamer de la protection de chacun
de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa
résidence habituelle, ne peut ni, du fait de cette
crainte, ne veut y retourner.
…
97. (1) A qualité de personne à protéger la personne qui
se trouve au Canada et serait personnellement, par son renvoi vers tout pays
dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel
elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans
le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement
pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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Issues
[19]
The Applicant raises several issues in this application,
three of which are most relevant to this application:
1.
Was the RPD’s determination that the Applicant did not face
persecution reasonable?
2.
Was the RPD’s determination of the availability of an IFA
option for the Applicant reasonable?
3.
Was the RPD required to consider compelling reasons
pursuant to section 108(4) of IRPA?
Standard
of Review
[20]
The Supreme Court of Canada has held in Dunsmuir v New
Brunswick, 2008 SCC 9, [Dunsmuir] that there are only two
standards of review: correctness for questions of law and reasonableness
involving questions of mixed fact and law and fact. The Supreme Court has also
held that where the standard of review has been previously determined, a
standard of review analysis need not be repeated.
[21]
The RPD’s determination regarding the viability of an IFA
is a question of mixed law and fact to be assessed on a standard of
reasonableness: Melvin Alonso Cruz Pineda v Canada (Minister of Citizenship & Immigration), 2011
FC 81 at para 29.
Analysis
Was
the RPD’s determination that the Applicant did not face persecution reasonable?
[22]
The Applicant claims the RPD failed to consider his claim
of persecution as a well-founded fear. The Applicant submits his fear arises as
a result of the undoubted conflict between the Kussasi tribe and the Mamprusi
tribe and because he feared the government security forces. The Applicant
submits that the RPD’s failure to provide reasons for preferring the
documentary evidence over his sworn testimony constitutes a reviewable error.
[23]
The Applicant also takes issue with the RPD’s finding that
the Applicant did not face persecution. The Applicant submits that persecutory
acts directed against a person’s close family should be considered persecutory
acts directed against a claimant. The Applicant also submits that the
cumulative effect of a series of incidents constitutes persecution.
[24]
In my view the RPD is entitled to consider documentary
evidence in determining the extent of the violent conflict between the Kussasi
and the Mamprusi tribes. The RPD did not ignore the Applicant’s documentary
evidence about tribal conflict. It was entitled to consider documentary
evidence about the limited regional nature of the conflict, being confined to
the Bawku and the two neighbouring regions, against the Applicant’s testimony
and his documentary evidence about the spreading violence. The attack on the
Applicant and the attack on his family in Bawku, although very close in time,
were separated in location and the Applicant did not provide any evidence of a
nexus beyond tribal conflict between these two attacks.
[25]
I have some concern about the RPD’s failure to address the
important fact that the Applicant was attacked at a roadblock which
suggests a more widespread tribal conflict instead of a random opportunistic
attack. However, I find the issue of an IFA determinative.
Was
the RPD’s determination of the availability of an IFA for the Applicant
reasonable?
[26]
The Respondent emphasises that the RPD found the Applicant
had an IFA in Accra.
[27]
The Applicant submits that the RPD’s finding of the
existence of an IFA in Accra is wrong. The Applicant submits the RPD failed to properly consider the
test set out in Adjei v Canada (Minister of Employment and Immigration), [1989]
2 FC 680, (FCA). The
RPD was required to inquire whether the Applicant, on a balance of
probabilities, would face a serious possibility that he would suffer
persecution in Accra.
Given the evidence put before the RPD concerning the violence in Accra, the RPD should have answered this question in the
affirmative and stopped the inquiry there. The Applicant contends that the
RPD’s finding of an IFA was not reasonable because the Applicant had shown that
his life and safety would be jeopardised in Accra as a result of the attacks on the Mamprusi there. This risk was
compounded due to the government’s bias against the Mamprusi.
[28]
In Butt v Canada (Minister of Citizenship & Immigration),
2010 FC 28, Justice Pinard stated the test for a finding of an IFA at
paragraph 13:
The test for a finding
of an IFA is that the Board must be satisfied, on a balance of probabilities,
that there is no serious possibility of the applicant being persecuted in the
proposed IFA and that in the circumstances particular to the claimant it is not
unreasonable for the claimant to seek refuge there.
Justice Pinard also
stated that the onus of proof is on an applicant to demonstrate that he will be
persecuted anywhere in his country of origin or that it is unreasonable to
expect him to move if an IFA is found.
[29]
The RPD found that Accra, the capital city of Ghana, was a valid IFA available to the Applicant. The RPD noted
that Accra is well removed from the
northern area where Bawku is located since Accra is located in the south on the
Gulf of Guinea.
[30]
The Applicant referred to but two incidents in the very
large metropolitan area around Accra. The RPD considered both. His allegation of government bias against
Mamprusi was considered and weighed by the RPD against the President’s statements
and government measures demonstrating the contrary. The RPD considered the
Applicant’s examples to be isolated incidents. There was little documentary
evidence that the conflict in Bawku had spread beyond Bawku, and, in
particular, to Accra. In
my view it was reasonable for the RPD to conclude as it did that the Applicant
did not face a serious possibility of persecution in Accra. This satisfies the first part of the IFA test.
[31]
As to the second part of the Adjei IFA test, the RPD
did consider the personal circumstances of the Applicant. The RPD noted that
the Applicant would not be targeted because he was not a person of power in the
Mamprusi tribe nor was he was involved in politics. The RPD also noted that the
Applicant was studying to be a mechanic and that the Applicant would be able to
finish his studies towards being an auto mechanic as there are many
institutions of higher education in Accra. The RPD observed the Applicant now had overseas experience and that
there would be plenty of work opportunities in the capital city. Finally, the
RPD noted that the Ghana
constitution provides for freedom of movement and that the government generally
respected these rights in practice.
[32]
I am of the view the RPD’s conclusion that the Applicant
could avail himself of the IFA in Accra was reasonable. It considered general circumstances as well as multiple
factors relating to the Applicant, such as profile, opportunity and freedom of
movement, all of which supported the RPD’s conclusion that Accra was an available IFA for the Applicant.
Was the RPD required to consider compelling reasons pursuant to section
108(4) of IRPA?
[33]
The Applicant submits the RPD also erred in failing to
consider whether compelling reasons under section 108(4) of IRPA applied
to the Applicant. The Applicant submits there was persecution which the RPD
failed to acknowledge. The Applicant argues that had the RPD found the
Applicant faced persecution, then the RPD would have had to consider whether
the Applicant had ceased to be a Convention refugee due to the availability of
an IFA in Accra. The Applicant submits the
RPD would then have had to determine, pursuant to section 108(4), whether there
were compelling reasons arising out of past persecution for the Applicant to
refuse to avail himself of the protection of Ghana.
[34]
The jurisprudence on section 108(4) is clear in that the
RPD must first find a refugee claimant to be a Convention refugee or person in
need of protection: Salazar v Canada (Minster of Citizenship &
Immigration), 2011 FC 777 at para 31.
[35]
The Respondent submits that a determination of a valid IFA
precludes the necessity to consider whether compelling reasons exist pursuant
to section 108(4) since a person cannot be a refugee or a person in need of
protection if there is an IFA. I agree.
[36]
The RPD’s finding of a valid IFA is determinative and there
is no basis for any requirement to conduct a section 108(4) analysis as argued
by the Applicant.
Conclusion
[37]
The RPD’s finding of an IFA is reasonable and is
determinative of this case. The application for judicial review must be
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
The application for judicial review is dismissed.
2.
No question of general importance is certified.
“Leonard S. Mandamin”
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