Date: 20081008
Docket: IMM-935-08
Citation: 2008 FC 1135
Ottawa, Ontario,
October 8, 2008
Present: The
Honourable Mr. Justice Zinn
BETWEEN:
FRANK
ATTA FOSU (aka FRANK FOSU ATTA)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
To
say that an internal flight alternative exists if the homosexual refugee
claimant lives a “discreet” existence, is to say that it is not an internal
flight alternative.
BACKGROUND
[2]
This
is an application for judicial review of a decision of a member of the Refugee
Protection Division, dated February 7, 2008, wherein the Member found that the Applicant
was not a Convention refugee or a person in need of protection.
[3]
The
Applicant is a Ghanaian citizen who claims to fear persecution by the police
and the family of his former same-sex partner, Kofi Adu, on the basis of his
homosexuality. He says that his problems began after Kofi introduced him to
his family as his partner in March 2005. Shortly thereafter, their dog was
poisoned and Kofi’s store was vandalized. He claims that they were mistreated
generally whenever they went about in Berekum, the town in which they lived.
[4]
In
November 2005, while the Applicant was staying overnight in another town where
he was engaged in the construction business, Kofi was severely beaten and later
died in hospital. The Applicant saw him prior to his death and Kofi warned him
that the attackers had been looking for someone else, whom he supposed to be the
Applicant. Mr. Adu’s family threatened the Applicant at the funeral service.
[5]
The
Applicant then went to the chief of the town with some gay friends. The chief
told them that they should keep their homosexuality secret and that he did not
wish to discuss it. The Applicant then went to stay with a friend in Kumasi. After four
weeks, at the end of December 2005, he went to Koforidua to stay with another
friend. At the end of January 2006, he was attacked by two men in Koforidua. They
claimed that he was a child molester. He was taken to the police station and
detained overnight. He was freed the following day after his friend paid a
bribe. He then decided that he should leave Ghana and he fled,
via Amsterdam, at the end
of April 2006.
[6]
After
fleeing Ghana, in early
May 2006, the Applicant’s twin brother was attacked and beaten by men who
wished to know where the Applicant was. The attackers threatened his brother with
death if he did not tell them.
[7]
The
Board found that an internal flight alternative existed for the Applicant and
therefore held that no determination on his identity as a homosexual needed to
be made. It was noted that the Applicant and his partner had reported the
death of their dog and vandalism of the shop to police, thereby showing that
they did not fear the authorities and expected assistance. It was found that
while the Applicant had faced discrimination, it was insufficient to prevent
him from living openly with his same-sex partner. The Member found that the Applicant
could live as a homosexual, “discreetly”, in the city of Accra.
[8]
The
Member further was not persuaded that Mr. Adu’s family was large and
resourceful enough to seek the Applicant in all parts of the country, including
Accra. She was
not persuaded that there was a correlation between the assault the Applicant
claims to have suffered in Koforidua was related to his sexual orientation or
relationship with Mr. Adu.
[9]
As
for the reasonableness of the IFA, the Member found that, based on the Applicant’s
age and employment record, he would not be at a greater disadvantage in finding
employment in Accra than any
other Ghanaian. She also found that there was no evidence his family would not
support him there. Finally, she found that the discrimination which exists in Ghana against
homosexuals is not equivalent to persecution. She found that laws against
certain types of sexual behaviour are not, per se, persecutory and that,
while the Applicant might face sanction if returned to Ghana, it would
not be imposed in disregard of acceptable international standards.
ISSUES
[10]
The
Applicant raised two issues:
(a) Whether the
RPD erred in finding that an IFA existed; and
(b) Whether the RPD
erred in failing to make a finding on the Applicant’s claim of sexual
orientation?
ANALYSIS
[11]
The
Applicant submits that a finding of an IFA is reviewable on a test of reasonableness:
see Ramachanthran v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 673 which, before the decision
in Dunsmuir v. New Brunswick, 2008 SCC 9, held that
the standard was patent unreasonableness. However, he submits that the failure to
make a finding on the Applicant’s claim that he is homosexual was a failure to
exercise jurisdiction.
[12]
The
Respondent submits that the finding of an IFA is factual and should not be set
aside if it was open to the RPD on the evidence before it. Further, it is
submitted that the IFA finding is a complete answer to a refugee claim and the
RPD did not need to address the Applicant’s claimed sexual orientation.
[13]
The
test on the IFA finding is reasonableness. In light of the findings that
follow I need not address whether the failure to address the issue of the
Applicant’s sexual orientation is a failure to exercise jurisdiction. It is
very exceptional that a Member would explicitly make no findings on whether the
claimant is a member of the social group on which he or she bases the claim for
protection. It may be that the failure to make such a finding is an error of
law, being as it is the ultimate grounding of the claim. As such, the standard
might be seen to be correctness. However, it could be equally argued that the
refusal to make this factual finding is perverse and capricious and would fail
against the reasonableness standard.
Did the RPD err in
finding that an IFA existed?
[14]
The
finding of an IFA is a two-step test: is there another location within the
country where the claimant does not face a serious possibility of being
persecuted; and, is it unreasonable for the claimant to move to the IFA, given
his or her personal circumstances.
[15]
In
my view, the Member failed to address evidence which was sufficiently important
and relevant to the IFA to make the decision thereon unreasonable. In
particular, the failure to address the evidence of the Applicant that he was in
hiding before leaving Ghana is a reviewable error. It would not be
reasonable, under the second prong of the IFA test, to require the Applicant to
remain in hiding or otherwise conceal his true identity so as to avoid
detection by those who would harm him.
[16]
Further,
there was no evidence with respect to the family of Mr. Adu, other than that of
the Applicant. As such, the Member engaged in speculation when finding that Mr.
Adu’s family’s influence did not extend to Accra and this made Accra an IFA.
[17]
Further,
the Member erred in suggesting that he would find safety in Accra so long as
he was “discreet” and appears to have assumed that he could be prepared to do
so, and there was no evidence of this, or that he would be able to keep his
sexuality secret in such a large city. I cannot accept that the Member’s
decision can be reasonable in arriving at a finding which requires the claimant
to deny or hide the innate characteristic which forms the basis of his claim of
persecution: see, for example, Sadeghi-Pari v. Canada (Minister of
Citizenship and Immigration), 2004 FC 282, at paragraph 29. The Member
was clearly of the opinion that the discrimination the Applicant would face was
not tantamount to persecution, but it also appears that she was assessing the
danger through the lens of the conditions she would impose on him – conditions
that are not reasonable or acceptable.
[18]
On
this basis alone, the decision must be set aside and referred back for a
redetermination by another member. There is no certifiable question and none
was proposed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This
application for judicial review is allowed and the matter is remitted back to
the Board for determination by a different member of the Board; and
2.
No
question is certified.
“Russel W. Zinn”
Email this Content