Date: 20010212
Docket: IMM-6144-99
Neutral Citation: 2001 FCT 53
BETWEEN:
ISAAC OSEI-AMPADU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning ascribed to that phrase in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 29th of November, 1999.
BACKGROUND
[2] The applicant is a 30 year old citizen of Ghana who bases his claim to Convention refugee status on his perceived political opinion arising out of his alleged role in the escape of a small group of coup plotters from Ghana and on his membership in a particular social group, namely journalists who exposed Ghanian government shortcomings on social issues and, in particular, state abuse of human rights. The CRDD accepted that the applicant was a citizen of Ghana and of no other country, that, in Ghana, he was Executive Director of Nonviolence International, that, in that capacity, he spoke out against government actions and policies on a wide range of social issues, and further that the applicant participated in the pursuit of human rights in Ghana. In all other respects, the CRDD found the applicant not to be a credible or trustworthy witness.
[3] The applicant filed a lengthy and detailed narrative statement with his Personal Information Form in which he described the circumstances leading to his flight from Ghana. At the opening of the hearing before the CRDD, he attested to the accuracy of the narrative statement. In that statement, he described how he had obtained a Canadian Visitors' Visa, valid from May 20 to June 15, 1998 for the purpose of attending a conference in Canada. He failed to attend the conference held at Quebec City from May 26th to May 30th, 1998, but had apparently procured an invitation to a second conference in Canada to be held between June 9th and 11th, 1998. His evidence was to the effect that on the 2nd of June, 1998, he learned that he was being investigated in relation to an alleged coup plot in Ghana. He promptly left for Canada to attend the second conference.
THE ISSUES
[4] Counsel for the applicant urged that the CRDD made three reviewable errors: first, in its determination that the applicant's involvement in the coup plot was simply not credible; second, in its determination that the applicant is not at risk as a member of the particular social group to which he attested he belongs, namely, journalists exposing Ghanian government shortcomings on social issues and, in particular, state abuse of human rights; and finally, in its determination that the applicant had not been subjected to abuse in Ghana in the period from September 1991 until the time of his departure for Canada that amounted to "brutality towards him" or "serious mistreatment".
THE REASONS FOR DECISION OF THE CRDD
[5] With respect to the first issue, the CRDD concluded in the following terms:
| The claimant has provided thorough documentary evidence of a particular alleged conspiracy, its accused key players and the trial of their co-conspirators. The account is a solid one. He has tried, and in our view, failed, to fit himself into it. In our opinion, the claimant's sole purpose in personalizing the conspiracy account was to enhance his claim for Convention refugee status in Canada. In our opinion, the claimant's account of events in that regard, demonstrates not only his tendency to embellish, but also his ability to spin a tale. We do not find his story plausible. Counsel submits that the claimant might well be one of the "others" noted in the Bill of Indictment [brought against the co-conspirators of the "key players" in the coup plot]. We reject counsel's submission as being entirely speculative. We find no credible evidence that the claimant was in any way involved in the incident at the core of his claim. |
| Credibility concerns undermine the claimant's alleged fear of persecution on the grounds at the heart of his claim. No credible evidence is before us that he is sought by Ghanaian authorities because of any participation in the escape of the coup plotters. We find in that regard, that he does not have good grounds for fearing persecution should he return to Ghana. |
[6] The applicant alleged that it was his discovery that he was being investigated for his role in the coup plot that lead to his hasty exit from Ghana to Canada. In his narrative statement, the applicant had written:
| When I learned, however, that I might soon be arrested, I secured another invitation for a different conference scheduled for June 9 to 11, 1998, and so advised the visa office.2 [emphasis added] |
[7] In his oral testimony, the applicant indicated that he confirmed his second invitation rather than secured it. He was confronted with this discrepancy by a member of the CRDD panel. When confronted, the applicant acknowledged the discrepancy, indicated that, notwithstanding that he had sworn to the veracity of his narrative statement, he had been aware of the discrepancy and had brought it to the attention of his counsel who, for whatever reason, did not make an appropriate correction at the opening of the hearing before the CRDD. In this regard, the applicant's counsel before the CRDD volunteered to testify regarding the discrepancy. The members of the CRDD panel left the issue of whether counsel should testify to the applicant and his counsel. In the event, counsel did not testify. The CRDD found this discrepancy to be a "...major error [in the applicant's narrative statement] going to a crucial area of his claim." The CRDD concluded:
| The claimant failed to explain why the PIF was prepared with an error so diametrically opposed to the documentary evidence, in the first place. He said that he had previously told counsel of the error. He forgets that he had already been caught in his web of deceit. We do not believe him. |
[8] The applicant attested that a cousin of his was one of the "co-conspirators" in the coup plot identified in the Bill of Indictment. The applicant attested that he attended some portions of his cousin's trial. In this respect, the CRDD found:
| ...we do not find it plausible that he would be so confident in the secrecy of his role that he attended the early stages of that same cousin's trial as he claims. At the trial, the seriousness of the claimant's alleged danger would have been crystal-clear. |
[9] It was these two findings that underlay the CRDD's conclusion that the applicant's account of his involvement in the escape from Ghana of coup plot members was simply not plausible.
[10] With regard to the issue of the applicant's membership in a particular social group, the CRDD wrote:
| It is our opinion that the claimant does not fit the profile of journalists harassed by Ghanaian authorities. No evidence is before us of any articles he has written which are critical of government policies, actions or personnel. Indeed, he has tendered no articles attributed to him as a journalist. Many newspaper articles are in evidence which quote the claimant as Executive Director of Non-violence International. Also in evidence are his letters to the editor and published statements issued by him in that capacity. However, despite this abundance, there is nothing before us which contains the claimant's by-line. |
| The claimant maintains that he worked as a journalist from 1993 through 1998 and offers some documentary evidence in support of this. Yet his self-identification in his passport, issued in April 1997 is as journalist/social worker. For the reasons above, we conclude that, while he may have moved in press circles, he was not a journalist of any significance in Ghana. We are not satisfied, on a balance of probabilities, that he would have come to the attention of the government as a journalist critical of its policies or actions. He has never been charged with any form of libel. In our opinion, the claimant does not fit the profile of working journalists at risk of harassment or persecution by the state in Ghana. |
[11] On the final issue, lack of abuse of the applicant in Ghana, the CRDD wrote:
| We acknowledge that, as Executive Director of Nonviolence International, the claimant was active in trying to right wrongs on a broad range of social issues, including human rights and, that in doing so, he was openly critical of the Ghanaian government. Even if we accept that he has a history of problems with state authorities, for the following reasons, we find that he has not suffered a pattern of harassment amounting to persecution. |
| The claimant has included in his PIF, items which we consider to be extraneous in that they might be reasonably explained by reasons other than state harassment. These include an alleged failure to call him to an interview for a position with the Ministry of Foreign Affairs and reported sharp words from the sector Minister, Ministry of the Interior, after alleged critical comments he made during an alleged NBC/TSN interview. In our opinion, the claimant has exaggerated the wrongs done to him by authorities. Many newspaper articles quote him as critical of government. Yet, the claimant appears to have gone about his business quite freely, including, according to him, attending without incident and returning to, the high-profile trial of his alleged cousin. |
| The claimant's alleged detentions have been for short periods of time. In September 1991, he was released on bail after 24 hours detention following his alleged arrest and interrogation regarding his distribution of a Special Investigation report which had not been made public. In 1998, he was held for only 6 hours at the police station where he was making inquiries relating to unlawful detentions. In 1993, he was not held at police headquarters, but was "escorted" to police hospital for medical treatment after alleged injuries suffered during a student demonstration. |
[12] On the basis of the foregoing, the CRDD concluded that there was before it insufficient credible evidence to satisfy it that the claimant suffered serious mistreatment at the hands of police and, therefore, the CRDD found, on a balance of probabilities, that the applicant had not, in the past, suffered harassment amounting to persecution by state authorities in Ghana.
ANALYSIS
[13] In its reasons, the CRDD described the applicant as "...an intelligent, literate man." Nonetheless, the CRDD found a range of implausibilities in his evidence that it determined destroyed entirely the credibility of the applicant's story of the events underlying his claim. In reaching its conclusions regarding the implausibility of the applicant's story, the CRDD:
| - relied heavily on a nuanced discrepancy between his narrative statement and his oral testimony; |
| - rejected outright his explanation of reliance on his counsel in failing to correct the discrepancy and placed the applicant's counsel in a remarkably intractable position as a result; |
| - rejected the applicant's explanation for his attendance at portions of his cousin's trial when that explanation would appear to have been entirely consistent with the applicant's role as perhaps a journalist and certainly a human rights activist; |
| - erred in concluding that there was nothing in the documentary evidence before it that amounted to an article under the claimant's by-line; |
| - drew a fine distinction between published letters to the editor emanating from the applicant and published statements issued by him on the one hand and articles under his by-line on the other; and |
| - took an extraordinarily narrow view of the particular social group which the applicant indicated that he was a member of when the line between his role as a journalist and his role as a human rights activist might very well not have been a line that would be readily discerned or recognized as significant by Ghanaian authorities. |
[14] It is worthy of note that the CRDD records no concerns regarding the demeanour or the mode of testimony of the applicant before it. I can only conclude that the reasons of the CRDD in this matter, disclose a complete but remarkably unexplained dislike or distrust of the applicant that the CRDD chose to express in obtuse or ill-supported findings of want of credibility.
[15] It is trite that decisions of the CRDD based on credibility findings are more open to review when the finding of want of credibility is based, as here, entirely on findings of implausibility rather than on findings of contradictions, inconsistencies, evasiveness and the like. In the classic case of Giron v. Minister of Employment and Immigration3, Mr. Justice MacGuigan wrote:
| The Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") chose to base its finding of lack of credibility here for the most part, not on internal contradictions, inconsistencies, and evasions, which is the heartland of the discretion of triers of fact, but rather on the implausibility of the claimant's account in the light of extrinsic criteria such as rationality, common sense, and judicial knowledge, all of which involve the drawing of inferences, which triers of fact are in little, if any, better position than others to draw. |
[16] On the facts of that matter, the Court of Appeal concluded that the CRDD based its decision on erroneous findings of fact that it made in a perverse or capricious manner. I reach the same conclusion here.
[17] In Yada v. Canada (Minister of Citizenship and Immigration)4, my colleague Mr. Justice MacKay wrote at paragraphs 24 and 25:
| The reasons or the bases set out for finding particular aspects of the applicants' evidence to be implausible simply do not reasonably relate to the evidence before the panel. Its conclusions might be reached by another panel, but the reasons for those conclusions must be rationally related to the evidence. Here that is not the case. The decision is patently unreasonable in the absence of reasons related to the evidence adduced. |
| Where the finding of a lack of credibility is based upon implausibilities identified by the panel, the Court may intervene on judicial review and set aside the finding where the reasons that are stated are not supported by the evidence before the panel, and the Court is in no worse position than the hearing panel to consider inferences and conclusions based on criteria external to the evidence such as rationality, or common sense. |
For the foregoing, Mr. Justice MacKay cites the Giron decision. I am satisfied that Mr. Justice MacKay's comments apply equally on the facts of this matter. I adopt them as my own.
CONCLUSION
[18] In the result, this application for judicial review will be allowed, the decision of the CRDD that is under review will be set aside and the applicant's application for Convention refugee status will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[19] Neither counsel recommended certification of a question. No question will be certified.
___________________________
J. F.C.C.
Ottawa, Ontario
February 12, 2001
__________________
1 R.S.C. 1985, c. I-2.
2 Tribunal Record, page 29
3 (1993), 143 N.R. 238 (F.C.A.).
4 (1998), 140 F.T.R. 264 (not cited before me).
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