Date: 20030228
Docket: IMM-1796-02
Neutral citation: 2003 FCT260
Ottawa, Ontario, this 28th day of February, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
GAMEL ABDUL
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated March 20, 2002, wherein the Board determined that Gamel Abdul (the "Applicant") was not a Convention refugee.
Background
[2] The Applicant is a citizen of Ghana. In his original submissions to the Board, the Applicant claimed to have a well-founded fear of persecution from the authorities in Ghana by reason of his political opinion.
[3] The Applicant testified that, during the events described, he was an active member of an opposition party, the New Democratic Party ("NDP") and worked as a field coordinator for Needs Care International, a non-governmental organization assisting street kids.
[4] After discovering that local government officials were misappropriating materials donated by foreign donors to street kids, he reported this matter to a newspaper and then began facing persecution. He claimed that he was detained twice: once on June 10, 1999 for one week and the second time on September 15, 1999 for a day. On both occasions, he was physically and sexually assaulted.
[5] He testified that he had to report daily to the police station after his release from his first detention and continued reporting until he went for his Canadian Visitor's Visa ("CVV") interview on September 28, 1999. He also testified that after his second detention on September 15, 1999, he was given one week to sign a confession and apology to the local newspaper. After he was issued his CVV on September 29, 1999, he went into hiding and left Ghana on October 10, 1999 using a genuine passport.
[6] Since December 2000, the NDP forms the government in Ghana. Accordingly, the Applicant sought to have the Board consider whether there were compelling reasons to allow the Applicant to remain a Convention refugee under subsection 2(3) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
Decision of the Board
[7] The Board determined that the Applicant was not credible or trustworthy, basing its conclusion on the following:
. · It was unreasonable that the Applicant would continue to report to the police after September 22, 1999 when he allegedly had been threatened with harm if he had not signed the confession by that date.
· It was not reasonable that the Applicant was able to leave the airport using a genuine passport if the authorities were allegedly looking for him after September 28, 1999.
· The Applicant testified that, when he called home after arriving in Canada, he discovered that his father and brother had fled their home because of harassment by officials. His mother had remained at home. It was not reasonable that the Applicant's mother would remain at home if the authorities had been harassing the Applicant's family regarding the his whereabouts.
[8] The Board also found that the Applicant did not have a well-founded fear of persecution. The documentary evidence indicates that the ruling party was defeated by the NDP in presidential and parliamentary elections that took place in December 2000. Accordingly, the Board found that there was less than a mere possibility that the Applicant would be targeted by the ruling NDP.
[9] The Board also considered whether there were compelling reasons to allow the Applicant to remain in Canada under subsection 2(3) of the Act. This subsection provides as follows:
| (3) A person does not cease to be a Convention refugee by virtue of paragraph (2)(e) if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution.
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(3) Une personne ne perd pas le statut de réfugié pour le motif visé à l'alinéa (2)e) si elle établit qu'il existe des raisons impérieuses tenant à des persécutions antérieures de refuser de se réclamer de la protection du pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée.
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The Board found that there were no compelling reasons in this case.
Analysis
[10] In my view, this application should be allowed. My reasons follow.
Issue 1: Was the Board's credibility finding patently unreasonable?
[11] At the core of the Board's decision, both with respect to the Applicant's claim of fear of persecution and his claim that there are compelling reasons that he should not cease to be a Convention refugee, were the Board's findings that the the Applicant was not credible or believable.
[12] The Applicant submitted that the Court can overturn the Board's decision if its conclusions were perverse on the face of the record and if the Board drew unreasonable inferences from the evidence (Sabaratnam v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No.901 (C.A.)(QL)).
[13] The standard of review in this case was best described in Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (C.A.) (QL) where the Federal Court of Appeal stated at paragraph 4:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review...
[14] The Board attacked the Applicant's credibility on the three grounds described above at paragraph 7. These findings were solely based on the implausibility of the Applicant's story.
[15] The Board is entitled to make reasonable findings based on implausibilities, common sense and rationality, and is entitled to reject uncontradicted evidence if not consistent with the probabilities affecting the case as a whole (Aguebor, supra; Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (C.A.) (QL)). While the Board may reject even uncontradicted testimony, the Board cannot ignore evidence explaining apparent inconsistencies and then make an adverse credibility finding (Owusu-Ansah v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 442 (C.A.) (QL)). Where the Board finds a lack of credibility based on inferences, including inferences concerning the plausibility of the evidence, there must be a basis in the evidence supporting the inferences (Miral v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 254 (T.D.) (QL)).
[16] Based on his testimony, the Board concluded that it was not reasonable for the Applicant to continue to report to the police after September 22nd, when he allegedly had been threatened with harm, if he had not signed the confession by that date. The reasons state the following:
The panel notes that the claimant allegedly was given until 22 September 1999 to sign a confession, and that he allegedly continued to report daily to the police until 28 September 1999. No evidence was presented to indicate that the claimant faced any serious problems between 22 September 1999 and 28 September 1999.
The panel finds it not reasonable that the claimant would continue to report to the police after 22 September 1999 when he allegedly had been threatened with harm if he had not signed the confession by that date.
[17] A review of the transcript indicates that the Board never asked the Applicant why he continued to report after the deadline had passed. Given the fact that this was the crux of its implausibility finding on this issue, the Board ought to have put this implausibility concern to the Applicant.
[18] While the Board may not be required to put every inconsistency or implausibility to the plaintiff, when such findings are at the heart of the claim, the Applicant must be given an opportunity to explain.
[19] In my view, it was an error for the Board to conclude that it was unreasonable for the Applicant to continue reporting when they never asked him why he did.
[20] The Applicant also argued that the Board erred in drawing a negative inference regarding credibility from the Applicant's account of the whereabouts of his parents. The Board stated the following:
The claimant testified that after his arrival in Canada he telephoned Ghana in November 1999 and was told that his mother still lives in the family home, but that his father and brother had left home because they were being harassed by security agents who wanted to know the claimant's whereabouts.
The panel finds it not reasonable that the claimant's mother would remain home if the authorities had been harassing the claimant's family regarding the claimant's whereabouts. The panel therefore finds the claimant's testimony that his father and brother left home because they were being harassed by the authorities not to be credible or trustworthy.
[21] A review of the transcript reveals that, while not directly asked, the Applicant did provide an explanation as to why his mother remained at home. The transcript states:
PRESIDING MEMBER: ...So, you were told your mom was still living there but your father?
CLAIMANT: Had left and my brother also had left because the harassment they were getting. My mom, like she was actually not having too good health, so probably she chose there was no point running.
[22] The Board completely failed to mention this explanation in their reasons. As stated above, while the Board can choose not to believe uncontradicted testimony if it is not plausible, it cannot ignore explanations of inconsistencies and then draw negative credibility inferences based on it (Owusu-Ansah, supra). Clearly the Board rejected the explanation but made no mention of it in its reasons. This was an error.
[23] Finally, I also have difficulties with Board's finding regarding the Applicant's ability to leave Ghana with a genuine passport. I find it patently unreasonable that the Board found it implausible that the Applicant was able to leave Ghana with a genuine passport if the authorities were looking for him. There is no evidence on the record concerning the efficiency and co-ordination of police and security personnel around Ghana. The panel is simply speculating that airport security personnel and authorities had a way of tracking the Applicant from the police station "wanted" list to airport security. There was simply no evidence to support this speculation. When a tribunal bases its credibility conclusion on findings of implausibility, there must be some evidence to support this finding. There was no such evidence before the Board.
[24] Therefore, given the above analysis, the negative credibility findings made against the Applicant cannot stand.
Issue 2: Did the Board err in its application of subsection 2(3) of the Act?
[25] The Applicant submitted that the Board erred in not providing reasons for rejecting the Applicant's claim under subsection 2(3) of the Act. The Respondent, on the other hand, argued that the Court has stated in Ogbebor v.Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 770 (T.D.)(QL) that, before considering an application under this provision of the Act, the Board had to find past persecution which, but for changed circumstances, would have entitled the Applicant to refugee status.
[26] I agree that compelling reasons can only be based on past persecution. If the Board finds there was no credible or trustworthy evidence of previous persecution, it does not even have to consider subsection 2(3). If, however, the Board finds the claimant to be credible, it must apply the appropriate test to the consideration of subsection 2(3).
[27] In this case, since I am of the view that the Board erred in its credibility findings, the issue of the past persecution will have to be reconsidered by a newly constituted panel before the applicability of this provision can be addressed. A finding that the Board erred with respect to its credibility finding does not mean that the Applicant did in fact face past persecution. Only a newly constituted Board can determine the issue of past persecution. Therefore the alleged errors of the Board with respect to s.2(3) become irrelevant until an appropriate finding of credibility is made.
[28] In conclusion, based on the Board's errors with respect to its credibility finding, the Applicant's application should be allowed and the case returned for redetermination by a newly constituted panel.
[29] Parties did not propose any question for certification.
ORDER
THIS COURT ORDERS that:
1. this application for judicial review is allowed;
2. there is no question for certification.
"Judith A. Snider"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1796-02
STYLE OF CAUSE: GAMEL ABDUL v. MCI
DATE OF HEARING: February 26, 2003
PLACE OF HEARING: Toronto, Ontario.
APPEARANCES BY: Mr. A. Emeka Nwoko
For the Applicant
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD: Mr. A. Emeka Nwoko
Barrister & Solicitor
4101 Steeles Ave. West
Suite 201, Toronto
M3N 1V7
Tel: 416-633-5553
Fax:416-633-8555
For the Applicant
Mr. Tamrat Gebeyehu
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
Tel:416-973-9665
Fax:416-954-8982
For the Respondent
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