Docket: IMM-5285-16
Citation:
2017 FC 627
Montréal, Quebec, June 30, 2017
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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MATTHEW YEBOAH
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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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JUDGMENT AND REASONS
(rendered on the bench)
I.
Nature of the matter
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision of the Refugee Appeal Division [RAD] dated
November 29, 2016, wherein the RAD dismissed the Applicant’s appeal and
confirmed the decision of the Refugee Protection Division [RPD] that the
Applicant is neither a Convention refugee nor a person in need of protection.
II.
Background
[2]
The Applicant, aged 44, is a citizen of Ghana.
His spouse [Mrs. Sarpong] fled Ghana in September 2013 and was granted refugee
status in Canada on December 23, 2013. The Applicant then claimed refugee status
in Canada on the same factual basis as his spouse, on November 28, 2014.
[3]
According to their narrative, when her
grandmother died in March 2013, Mrs. Sarpong was expected to become her
successor as Queen Mother of their village. Mrs. Sarpong accepted this
traditional role until she became aware that she would have to perform a stool
ritual, which included female genital mutilation [FGM] for both her and her
young daughters. As Mrs. Sarpong refused to become the next Queen Mother, this
role would pass to a rival family and her family would lose its privileged
status and wealth. This is why the Applicant and his spouse began to be
threatened and persecuted by the elders of her family’s village in July 2013. A
complaint to the police was unsuccessful.
[4]
Mrs. Sarpong, then, long into her pregnancy,
fled her village before seeking refugee status in Canada. Soon after, the
Applicant became the target of the elders’ threats, who accused him of
pressuring his wife to decline the role of Queen Mother and of revealing the
ritual. He entrusted their two young children to the care of his aunt and went
into hiding in Ghana, but to no avail, as he kept being found by his
persecutors. When another complaint to the authorities did not result in
intervention on part of the police, he fled to Canada. The Applicant fears his
spouse’s family now wants the Applicant’s eldest daughter to become the next
Queen Mother.
III.
Impugned Decision
[5]
The Applicant’s claim was refused by the RPD on
February 13, 2015, for lack of credibility and this decision was upheld by
the RAD on December 17, 2015. The first decision of the RAD was set aside by
Justice René L. Leblanc of the Federal Court on July 8, 2016, and was returned
for redetermination (Yeboah v Canada (Citizenship and Immigration), 2016
FC 780).
[6]
A de novo appeal was presented before a
second panel of the RAD in respect of the RPD decision that the Applicant is
not a Convention refugee or a person in need of protection was confirmed anew
on November 29, 2016.
[7]
First, the second RAD decision addressed the
concerns raised by Justice Leblanc in paragraphs 26-29 of his judgment that the
first RAD panel had failed to properly consider the RPD decision granting the
Applicant’s spouse refugee status in December 2013.
[8]
The RAD panel in the case at bar noted the
Federal Court’s current jurisprudence confirming that the RPD is not
automatically bound by decisions of other members, even when family relatives
rely on similar facts (Arias Garcia v Canada (Minister of Citizenship and
Immigration), 2006 FC 310; Rahmatizadeh v Canada (Minister of Employment
and Immigration), [1994] FCJ No 578). The RAD held that the RPD panel
which heard Mrs. Sarpong’s claim was willing to set aside omissions in her
written forms and gave much weight to her significant testimonial evidence.
Given that the Applicant left Canada over a year later and had more time to
collect evidence at his hearing, the RAD agreed with the RPD that he should
have been able to provide corroborating documents for the central element of
his story that is the death of his spouse’s grandmother. The RAD also noted,
with regard to the time when his spouse had become aware of the rituals tied to
the Queen Mother position, of discrepancies between the notes of the
Applicant’s interview with a CBSA Officer upon his arrival in Canada and his
BOC narrative, once he had met with his counsel in Canada. As the RPD did, the
RAD noted that the Applicant’s spouse is a highly educated professional woman, the
couple did not live in her village; both were well-known members of a Christian
Church and the evidence did not suggest that the Applicant’s spouse was a person
subject to village custom and tradition; furthermore, the RAD did not find
credible that the Applicant would leave his two young daughters at risk of FGM
in Ghana and flee the country without them. Finally, the RAD found that the RPD
did not err in considering that documentary evidence; and, did not support the
Applicant’s allegations that a person refusing the position of Queen Mother
would be at risk of cruel or unusual treatment or punishment. Consequently, the
RAD did not find that the RPD erred by not following the decision rendered in
his spouse’s case.
[9]
Second, the RAD member rejected the Applicant’s
claims that the RPD gave more importance to documentary evidence than to his
testimony and that the RPD gave no weight to the documentary and personal evidence
he had filed. After reviewing all relevant objective documentation as well as
the documents submitted by the Applicant, the RAD found, as did the RPD, that
the Applicant was not credible. The panel member noted that the Applicant,
despite a long period of answering leading questions by his counsel, was unable
to explain his allegations during the hearing and the problems raised by the
evidence: a) Queen Mothers are considered to be wise elders who have a
function of mediation and conflict resolution in their villages with respect to
women’s matters; b) there is no impartial evidence that husbands or young
girls would be forced to suffer genital mutilation and accept the position of
Queen Mother; c) there is no evidence that persons who refused the position
of Queen Mother were harmed physically; and d) the Applicant did not
explain why he left his eldest daughter in Ghana if she was in danger of being
kidnapped. The RAD confirmed the RPD finding that the Applicant’s testimony and
documents did not address the problems raised by the evidence.
[10]
Third, the RAD considered the weight given by
the RPD to the decision granting asylum to the Applicant’s spouse. The RAD
determined that the RPD member’s decision to grant Mrs. Sarpong asylum was
based on her testimony, despite the lack of documentary evidence before it. The
Applicant’s testimony was not deemed credible by the RPD. The RAD found the RPD
member was entitled to examine the documentary evidence to determine whether
there was objective evidence to support the Applicant’s claim and to rule that
the objective evidence did not support his allegations. Since the Applicant
failed to answer valid concerns central to his claim, the RPD was entitled to
find the Applicant not credible and to give little weight to the RPD’s decision
granting his spouse refugee status.
IV.
Issues
[11]
In the case at bar, the Court is to determine if
the RAD committed a reviewable error when determining the appeal of the RPD
decision anew. The standard of review applicable to the RAD decision is that of
reasonableness (Canada (Citizenship and Immigration) v Huruglica, 2016
FCA 93 at paras 32, 35).
V.
Analysis
[12]
The Applicant contends the board member rendered
an unreasonable decision considering the lack of assessment as to the key issue
of the Queen Mother’s profile and the likelihood of Mrs. Sarpong’s nomination; that
is in light of the assessment as to the nomination of the Queen Mother and the
custom and tradition, thereon. The dispute as to the qualifications for the
chieftaincy must take into account the decision of Justice Leblanc as to the
evidence which he discusses. Although the Applicant was unable to provide proof
of the female Applicant grandmother’s death, significant evidence was
nevertheless provided in respect of key elements of the narrative of the
Applicant, in addition to the consequences which he faced and further feared as
per uncontradicted testimony.
[13]
The Respondent argues that the RAD provided
sufficient reasons to support its decision, not to follow the RPD decision,
rendered in Mrs. Sarpong’s case; and, had reached reasonable conclusions with
respect to the Applicant’s lack of credibility.
[14]
Although each decision is rendered on a case by
case basis, the Court finds that it was incumbent for the RAD to ensure
adherence to the judgment of Justice Leblanc; that was not done. As the facts
are almost identical to the elements of persecution that remain of pertinence,
Justice Leblanc’s decision is most relevant. As the first decision of the RAD
was set aside as specified in paragraph 5 of Justice Leblanc’s judgment, the
Court, in this current judgment, again, notes that failure to file
corroborating evidence on the issue specified is not fatal in such case, when
the testimony of a subjective nature is corroborated, in large measure, by the
objective evidence. In addition, the subjective evidence which is of a personal
nature, thereon, as per that provided by the church of the Applicant (page 41
of the Applicant’s record) specifically addresses the most significant facts of
the case. The key allegations of the Applicant were not contradicted whatsoever
by any evidence on file (significant reference is made to Ahortor v Canada
(Minister of Employment and Immigration, 65 FTR 137, 41 ACWS (3d) 863 at
para 46).
VI.
Conclusion
[15]
As per paragraph 29 of Justice Leblanc’s
decision:
… Had it (the RAD)
reviewed the Applicant’s testimony in light of the RPD’s decision granting Mrs
Sarpong refugee status, it may have come to a different conclusion. The matter
will therefore be sent back to another member of the RAD for redetermination.
[16]
Therefore, just as in Justice Leblanc’s
decision, this matter is returned for determination anew by another member of
the RAD.
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