Date: 20051220
Docket: IMM-295-05
Citation: 2005 FC 1653
BETWEEN:
AKUA SERWAA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated December 2, 2004, wherein the Board found that the applicant is not a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Akua Serwaa (the "applicant") is a citizen of Ghana who alleges a well-founded fear of persecution by reason of her gender, domestic persecution.
[3] The Board concluded that the applicant is not a Convention refugee or a "person in need of protection" because she had not rebutted the presumption of State protection (she had not presented credible or trustworthy evidence that she in fact made any efforts to seek protection in Ghana), nor was the Board persuaded from the applicant's testimony that after the divorce in September 2000 she faced any risk of serious harm.
[4] The applicant alleges that the Board ignored, misapplied, misapprehended or failed to consider key evidence of gender persecution, in that it failed to accept the notion that stalking can constitute a form of gender persecution.
[5] While the applicant does not claim physical abuse after the divorce in 2000, she gave evidence concerning her ex-husband stalking and harassing her over the next three years, until she left Ghana. The applicant also took serious measures, restricting her life immensely, to avoid her ex-husband.
[6] Generally, persecution means the harassment or affliction with repeated acts of cruelty or annoyance. Physical harm or mistreatment is not necessary to establish past persecution (see Rajudeen v. Canada (M.E.I.), [1984] F.C.J. No. 601 (C.A.) (QL) and Amayo v. Minister of Employment and Immigration, [1982] 1 F.C. 520 (C.A.)). It seems that stalking would be included in this definition, depending on the facts of the case.
[7] It is possible that the applicant is correct in her submission that the Board erroneously found that if the applicant were in fact stalked, that this would not constitute serious harm or persecution. The Board states:
. . . Prior to the divorce, her abusive husband told her that if she went through with the divorce he would kill her and kill himself. As it turned out, not only did he not carry out this threat he actually had no contact with her. . . .
[. . .]
. . . Nor has she shown objectively that any serious harm befell her following her divorce.
[8] It is also possible that the Board did not intend that stalking be excluded as a means of persecution, but instead was using the above wording to express that it found the applicant to be incredible, and that it disbelieved her testimony that her ex-husband had been stalking her since 2000.
[9] It is unfortunate that the Board's intended meaning with regard to the above paragraphs is unclear. However, the Board's conclusion that "any serious harm befell her following her divorce" was only a subsidiary one to the actual reason for it denying her refugee claim, which was her failure to rebut the presumption of State protection. The applicant had not presented credible or trustworthy evidence that she in fact made any efforts to seek protection in Ghana. The Board found the omission in her Personal Information Form of any mention that she made a report to the police, the evasiveness in her testimony about the police report, and the failure to mention that she told the police about the alleged death threat from her husband, until the Board asked her specifically about this, to be detrimental to her credibility. Additionally, if she had sought police assistance, she would have found the police in Ghana have set up the Women and Juvenile Unit.
[10] This Court cannot substitute its opinion for that of the Board with respect to credibility findings unless the applicant can demonstrate that the Board's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard for the material before it (subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7). The Board is a specialized tribunal, capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and its reasons are expressed clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.)).
[11] It is possible that the Board was mistaken in not finding stalking to be persecution, if that is what the Board meant by the impugned paragraphs, however, it was not patently unreasonable for the Board to disbelieve the applicant's testimony regarding her seeking State protection. It is noteworthy that the applicant has not made any submissions in the present application (i.e. in her written memorandum of argument) regarding the Board's main finding, that is, that the applicant did not rebut the presumption of State protection (see Radha v. Canada (M.C.I.), [2003] F.C.J. No. 1309 (T.D.) (QL), Sandhu v. Canada (M.C.I.), [2000] F.C.J. No. 902 (C.A.) (QL) and Lanlehin v. Canada (M.E.I.), [1993] F.C.J. No. 207 (C.A.) (QL)).
[12] For the reasons outlined above, the application for judicial review is therefore dismissed.
JUDGE
OTTAWA, ONTARIO
December 20, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-295-05
STYLE OF CAUSE: AKUA SERWAA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 8, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: December 20, 2005
APPEARANCES:
Joel Etienne FOR THE APPLICANT
Lisa Hutt FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joel Etienne FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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