Date:
20130524
Docket:
IMM-6784-12
Citation:
2013 FC 540
Toronto, Ontario,
May 24, 2013
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
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ROSINA NIMAKO
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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 ORDER AND ORDER
[1]
The
issue in the present Application is whether, in considering the Applicant’s
claim for refugee protection as a citizen of Ghana, the Internal Flight
Alternative found by the Refugee Protection Division is supportable on the
evidence presented.
[2]
The
RPD Member who heard the Applicant’s claim rendered a sensitive and
straightforward decision. The Member accepted the Applicant’s evidence supporting
her claim recounted in the decision as follows:
Since the claimant's parents were
poor, a man Kwaku Mensah ("Kwaku") agreed to pay for the claimant's
education and assist her parents financially if they promised the claimant to
him after she finished school.
In August 1980, while home during
school vacation, the claimant was asked to go to Kwaku's house to help him
clean. While there, the claimant was drugged and raped by Kwaku. Although she
informed her parents, they did not take any action against Kwaku because he
threatened to stop paying for the claimant's education and to ask for the money
back he had given her parents. The claimant became pregnant as a result of the
rape and was taken to have an abortion by Kwaku.
After completing her studies, the
claimant was informed by her parents that she had been promised to Kwaku. In
September 1981, she was appointed to teach in Kaasi and a few months later,
started living with Kwaku. Although, there was tension over the claimant's
inability to get pregnant, the claimant did not experience any serious problems
with Kwaku until 2011.
In June 2011, Kwaku beat the
claimant badly resulting in her having to receive treatment at the hospital.
She reported the abuse to the police, but no action was taken. The claimant
then attempted to transfer to a teaching position outside her region, but no one
was willing to transfer with her. In September 2011, the claimant was again
badly beaten by Kwaku. She went to the police and was directed to the Domestic
Violence and Victim Support Unit (DOVVSU). Although DOVVSU promised to send
someone to apprehend Kwaku, no one came. When she returned home after being
treated for her injuries, Kwaku threatened to kill the claimant. Again, she
went to DOVVSU, but no one came to the house or followed up. After sharing her
experiences abuse with a friend, the friend assisted her in leaving the country.
(Decision, paras. 3 to 6)
[3]
With
respect to the availability of state protection in Ghana, the Member found as
follows:
The panel considered the
availability of state protection. According to the claimant, she reported the
physical abuse she received at the hands of Kwaku and even though it was
referred to DOVVSU, the authorities did not provide any assistance when
approached by the claimant. Although, the country is taking steps to address
domestic violence, no evidence is available to support the existence of
effective protection for victims of domestic abuse throughout the country.
(Decision, para. 9)
[4]
On
the basis of the findings made, the Member then turned to determining whether
an IFA would be available in Ghana. The central factual issue of concern was
whether Kwaku would search for the Applicant if she resided away from her
family home in a larger area such as Accra. When asked by the Member whether
the Applicant had considered such an IFA before fleeing to Canada, she replied
that she had but a number of factors predominated: Kwaku is very influential; has
money to use for bribery and to search for her; could use the police to assist
in searching for her; and in his business he travels to most regions of the country.
Because of the danger arising from these factors, the Applicant testified that
she agreed to accept the advice and help of a friend to get out of the country
(Certified Transcript, p. 118, lines 9 to 20).
[5]
Nevertheless,
the Member made the following finding that the Applicant would not be at risk
away from her family home:
The panel also asked the claimant
what efforts, her common-law spouse, Kwaku, had made in trying to locate her.
She replied that other than going to her family's house, she is unaware of any
other attempts. No persuasive evidence was available that suggests that Kwaku
has made any efforts to search for the claimant beyond going to her family's
house. Her brother's letter that Kwaku has been to their home several times
and made threats and as a result they have taken the claimant's mother to her
hometown - apparently they do not believe Kwaku will search for them there.
The panel is, therefore, not persuaded that Kwaku would have the interest to
search for the claimant outside their home area, Kaasi or the Greater Kumasi
area.
[Emphasis added]
(Decision, para. 13)
[6]
Counsel
for the Applicant argues that the Member’s conclusions are not supported by the
evidence, in particular, with respect to the following passage from the letter
from her brother dated November 25, 2011:
Sister, Mr. Kwaku Mensal as I told you on the phone
has been here several times after you left. He is so furious and says he is
tracking you to bring you back to his house. He does not know you are out of
the country. He came again last Sunday saying you have fooled him and has
wasted his time and money as well as his time. He swore in our presence that
while he gets you, you will pay with your blood. Because of the threats, we
have taken mother to her hometown, Ekeso to stay there since it will not help
her health wise.
(Certified Tribunal Record, p. 69)
[7]
I
agree with Counsel for the Applicant’s argument. The issue is not whether Kwaku
has made efforts to search for the Applicant beyond going to the family home,
the issue is whether he has the probable means and motivation to do so.
According to the Applicant’s evidence and the quotation from the letter, he has
both. The letter can be read as establishing that Kwaku is dedicated to finding
the Applicant and harming her. The fact that the Applicant’s mother moved from
the family home is evidence that the man is perceived as a violent threat.
There is no evidence to support the conclusion that the family believes that
Kwaku will not search for them or that the range of his search for the
Applicant will be only in the vicinity of the family’s home. I find that the
Member’s failure to apply the Applicant’s evidence is a reviewable error.
[8]
On
the issue of whether an IFA anywhere in Ghana is reasonable, I find that to
properly apply the Chairperson’s Gender 4: Women Refugee Claimants Fearing
Gender-Related Persecution it was incumbent on the Member to consider the emotional
impact on the Applicant of being required to live her life in the fear that, at
any moment, she could be confronted by the violent predator. I believe that my
previously expressed view on this issue is apt: for the Member to properly take
the Guidelines into account in deciding the IFA issue in the present
case, before placing any expectations on the Applicant, it was necessary for
the Member to judge any potential expectation against the reality of the
Applicant’s life, including the tremendous upset she suffered as a result of
the extreme violence she endured (see: Perez v. Canada (Minister of Citizenship
and Immigration), 2006 FC 425, para. 8). Unfortunately, the Member’s
sensitive treatment of the Applicant’s claim did not extend to this
consideration.
[9]
As
a result, I find that the Member’s IFA determination is made in reviewable
error.
ORDER
THIS
COURT ORDERS that the decision under review is set aside,
and the matter is referred back for redetermination, but on the following
directions:
GIVEN that
the Applicant’s credibility was not placed in issue in the decision under
review;
AND
GIVEN
that the only reviewable error found in the decision under review is with
respect to the IFA finding as described in the reasons provided;
The
redetermination is to be conducted by accepting and applying the Applicant’s
evidence already given before the RPD as credible, and by accepting and
applying the lack of state protection finding made in the decision under review.
Thus, the only issue
to be determined on the reconsideration is whether an Internal Flight
Alternative exists. On this issue, the redetermination is to be conducted on the
evidence on the present record, and in accordance with the reasons provided
herein, with leave to add evidence as considered appropriate by the presiding
Member.
“Douglas
R. Campbell”
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