Date: 20080107
Docket: IMM-6475-06
Citation: 2008 FC 14
Ottawa, Ontario, January 7,
2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
ANDARATU SALIFU
(a.k.a. Anderatu Salifu)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
Introduction
[1]
Two
issues are raised in this judicial review application by Andaratu Salifu (the
“applicant”), a citizen of Ghana, whose claim for refugee status was
rejected on November 15, 2006 by the Refugee Protection Division (the
“tribunal”) on two grounds: credibility and state protection.
[2]
The
Applicant, who is 34 years of age, fears her father and other family
members who attempted on her a forced but failed female genital circumcision.
This attempted circumcision is coupled to an arranged marriage with an older
man contrary to her wishes. She was born to Muslim parents in Tamale located
in the northern part of that country. She completed a university degree in 1998
and began working as a social worker.
[3]
As
to credibility, the tribunal cited two instances of internal inconsistencies in
her testimony for finding she had not established an objective basis for her
fear she will be forced to undergo circumcision and the arranged marriage if
she returns to Ghana: 1) an inconsistency why the attempted circumcision in
February 2004, in her father’s village in northern Ghana, failed and, 2) an
internal inconsistency as to what her father said to her when she first met him
after the failed attempt when she returned to the family home.
[4]
The
second issue is state protection. The applicant did not seek protection from Ghana and, in
particular, from the police force’s Women and Juvenile Unit (WAJU) which
changed its name in 2004/2005 to the Domestic Violence Victim Support Unit. The
applicant testified she was justified in not seeking protection from WAJU
because of her personal experience as a social worker and the lack of response
from WAJU when one of her friends sought protection from that organization, a
protection which was not forthcoming. On this issue, the tribunal, after
examining the documentary evidence on WAJU’s role in assisting abused women and
juveniles, including its power to prosecute cases of domestic abuse, preferred
that documentary over the applicant’s evidence to conclude state protection in Ghana was
available in cases of domestic abuse and was effective.
The tribunal’s decision
[5]
My
reading of the tribunal’s decision leads me to conclude the principal reason
which led the tribunal to refuse the applicant’s claim is the availability of
state protection in Ghana against forced circumcision. This finding is
determinative of this case if it was not reached erroneously.
[6]
The
applicant’s evidence is clear she did not request assistance from WAJU. She had
heard of WAJU but never had personal contact with that organization. This
organization had the power to “protect the rights of women and children against
all forms of abuse … provide advice on crime prevention to perpetrators and
members of the public; and arrest and prosecute where necessary”.
[7]
As
noted, one reason for not doing so was because a friend had once gone to WAJU
to request assistance and had been told it was “a family issue”. Her friend’s
case was not one of forced circumcision but one of domestic abuse at the hands
of her husband.
[8]
The
tribunal found the applicant went to Accra on several occasions;
it found her to be educated and urbanized. It concluded she had the skills and
ability to approach the WAJU or other services available to women in Ghana, and request
protection.
[9]
The
tribunal also held she had not requested assistance from the police in her
father’s home village because she “did not know where the police station was
located” and “if you report your parents to the police, you will be declared as
a bastard”.
[10]
The
tribunal’s analysis of the issue of state protection is expressed in the
following paragraphs of the tribunal’s decision:
“The Supreme Court of Canada in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, at 724-725 found that
except in a situation where the state is in a state of complete breakdown,
states must be presumed capable of protecting its citizens. This presumption
can be rebutted by “clear and convincing” evidence of the state’s inability to
protect. In the case at hand, the Panel notes that Ghana is a democratic state and there was no
evidence to suggest that there has been a breakdown of its state or judicial
authority. The claimant had specific knowledge of the unit then known as
WAJU, but chose not to avail herself of its services. The Panel is
unable to find that the claimant has rebutted the presumption that the state of
Ghana is not capable of providing
her with reasonable protection. [Emphasis mine.]
Given the documentary evidence, the Panel
is satisfied that the level of state protection available to the claimant was adequate.
It suggests that the state is making a serious effort to protect women from
domestic violence. In turn, the claimant has a duty to make herself aware of
these services and accept assistance. But, the claimant stated that she made
plans to study abroad instead. For this reason, the Panel is of the view
that the claimant did not fully take the initiative to secure available
protection in Ghana; rather, she chose to come to Canada. Thus, the claimant failed to fully
seek state protection prior to requesting international protection.
[Emphasis added.]
…
Based on the evidence suggesting that
state protection is reasonably available, the Panel has concluded that the
claimant has failed to establish that she has an objective basis for her fear
of persecution. Also, as state protection is reasonably available, the Panel is
unable to invoke the Chairperson’s Guidelines on Women Refugee Claimants on
behalf of the claimant.
Thus, upon reviewing the documentary
evidence, the Panel is satisfied that Ghana,
though “not perfect,” is willing and able to protect women. Citing the Reasons
for Judgment of my colleague Justice Layden-Stevenson in Kwayisi, Vida
v. M.C.I., 2005 FC 533.
[11]
To the Tribunal’s analysis, I quote the
following additional comment from Ward. In Ward, above, at page
724, Justice La Forest formulated the test for state
protection as follows:
“only in situations in which state
protection "might reasonably have been forthcoming", will the
claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will
not meet the definition of "Convention refugee" where it is
objectively unreasonable for the claimant not to have sought the protection of
his home authorities; otherwise, the claimant need not literally approach
the state.” [Emphasis mine.]
[12]
Justice
La Forest then asked himself how, in a practical sense, a claimant makes proof
of a state’s inability to protect its nationals as well as the reasonable
nature of the claimant’s refusal to actually seek out this protection. He
continued:
“On
the facts of this case, proof on this point was unnecessary, as representatives
of the state authorities conceded their inability to protect Ward. Where
such an admission is not available, however, clear and convincing
confirmation of a state's inability to protect must be provided. For
example, a claimant might advance testimony of similarly situated individuals
let down by the state protection arrangement or the claimant's testimony of
past personal incidents in which state protection did not materialize. Absent
some evidence, the claim should fail, as nations should be presumed capable of
protecting their citizens.”
[13]
Counsel for the applicant argues, on the objective evidence, it was
not unreasonable for her not to claim protection from WAJU for the following
reasons:
1) Because, in
her personal experience, that protection would not be reasonably forthcoming;
2) She stated it
was an organization that is out to help in mediating domestic violence cases or
issues (transcript, hearing of February 22, 2006 at page 219 of the certified
record). She recognized she did not have, at any time, any association with
that organization;
3) In answer to
a question from the tribunal: “Would you have reported it to the police if you
had known where the station was located?” She said:
“I would have done it, but the response
from the police wouldn’t have been something positive. Even if I were to
do it that would have been the end of my life for me. In my culture, in the
northern culture, if you report your parents to the police then it means you
have sold them out, and you will never be recognized in the family, you will be
declared as a bastard. Though I did not even report my dad he still sees me to
be a bastard because I don’t want to take his instruction, I don’t want to do
whatever he says so he doesn’t see me to be part of the family.
The police if you go and tell them they
tell you, “It’s a family issue, it’s between you and your dad, he has brought
you in the world. You should go home and then resolve the issue with him”.
(Transcript, ibid, pages 228 and 229).”
4) At
transcript, page 240, the applicant was asked again whether she thought of
going to WAJU. She stated she did not go to WAJU and provided the following
answer to the question: “Why not?”:
“WAJU in Ghana it’s an organization that do not protect
women. The role of WAJU in Ghana is to help women, and what they do is carry out
educational campaigns and violence issues, like in terms of protecting
women who are at risk. I have been telling people that on paper we hear what
WAJU does, but in practical terms working as a social worker I haven’t seen
the impact of WAJU in terms of protecting women who are at risk. With my
experience with WAJU a friend of mine who had an issue with her husband had to
go to report to WAJU, and finally she was beaten up and the eye was swollen.
She went to WAJU and what was done was to ask the husband to come, and when the
husband came they were told to take the issue home and resolve it because it’s
a family issue. Usually in the north we say -- we don’t take -- you don’t take
a family member to the police. If you take a family member to the police you
have sold the family to the police, and even in my organization a colleague of
mine son abused a girl, and the girl’s mother reported the case to the police
and WAJU. The guy came to boast that he went and paid 200,000 to withdraw the
case for them to resolve it at home. So the poor woman was left alone by being
told that she should go home with the guy and resolve the issue because they
live in the same house.”
[14]
The
applicant was asked whether WAJU had been revamped and renamed and whether she
knew anything about this. She answered no. She also stated at line 20 of page 240
that when she was in Ghana it was still called WAJU.
Analysis
(a) The standard of review
[15]
The
parties agreed on the applicable standard of review for the two issues involved
in this judicial review. I endorsed the view of counsel on both points as being
supported by recent jurisprudence of this Court and that of the Court of
Appeal.
[16]
On
the availability (adequacy) of state protection or the unwillingness of a
claimant to seek it, the Federal Court of Appeal in Hinzman et al v. the
Minister of Citizenship and Immigration, 2007 FCA 171, at paragraph 38,
recently confirmed the standard of review was reasonableness.
[17]
In
order to set aside the tribunal’s finding of credibility, which is a finding of
fact, those findings must have been drawn by the tribunal arbitrarily or
capriciously or without regard to the evidence before it which includes a
misreading of that evidence. The standard of review is, therefore, one of
patent unreasonableness.
(b) Conclusion
[18]
Counsel
for the Minister characterized the tribunal’s determination on state protection
in Ghana in terms of
female genital circumcision or mutilation (F.G.M.) as one where the tribunal
preferred the objective documentary evidence on the issue over her testimony.
After reviewing the two volumes of the certified tribunal record (C.T.R.), I
agree counsel for the Minister’s characterisation captures the essence of the
matter. The documentary evidence dated in 2003 shows the practice of F.G.M. has
been illegal in Ghana since 1994. This practice is most present in
northern Ghana. I refer to documentary
evidence of an arrest, prosecution and a five year sentence for F.G.M. but that
documentary evidence also deplores the small number of arrests since the law
came into force and seeks the reason why. This documentary evidence stresses
the role of WAJU played in the arrest (see page 174 of the C.T.R.).
[19]
Similar
documentary evidence can be found:
- In the Research
Directorate’s update on state protection in Ghana
regarding F.G.M. and WAJU’s role (C.T.R., page 141);
- In the Research
Directorate’s April 6, 2006 update on the Domestic Violence Victim Support Unit
replacing WAJU and the effectiveness of that unit (C.T.R., page 147);
- In the Research
Directorate’s Ghana Update (C.T.R., page 138);
- See generally the
documentary evidence (C.T.R., pages 178 to 205).
[20]
What
this documentary evidence shows is that on the reasonableness standard, it was
reasonably open for the tribunal to come to the conclusion it did on state
evidence in the fight against F.G.M. – state protection was available
to the applicant should she return to Ghana and therefore her fear
was not objectively well founded. She was not justified in not approaching
WAJU. As noted, the tribunal referred to my colleague Justice
Layden-Stevenson’s decision in Kwayisi, above.
[21]
I
reviewed my colleague’s decision. It dealt with state protection in Ghana for a 34
year old female who feared physical abuse from her husband. The Tribunal
concluded by reference to WAJU state protection was available to her. The Kwayisi
case is on point. For these reasons this judicial review application must
be dismissed. As state protection is determinative there is no need for me to
deal with the credibility issue.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial review application be
dismissed. No certified question was proposed.
“François Lemieux”
__________________________
Judge
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