Osei v. Canada (Secretary of State), docket IMM-4839-93

     IMM-4839-93

Between:

     PAUL KOFI OSEI and DORA JUBIN,

     Applicants,

     - and -

     THE SECRETARY OF STATE FOR CANADA,

     Respondents.

     REASONS FOR ORDER

REED, J.

     This application for judicial review was heard on June 30, 1994. Reasons were issued on July 14, 1994, together with an Order adjourning the final disposition of this application until a Court of Appeal decision had been rendered concerning what was then an unsettled state of the law.

     It was unclear, at that time, what was the appropriate test to be applied when assessing changed country conditions in the context of a convention refugee claim. If the appropriate test was an analysis of the three elements listed in Professor Hathaway's text, and a conclusion had to be made with respect to each of them, then, the Board's decision in this case would have to be set aside because it had not engaged in such an analysis. On the other hand, if the applicable test was that the Board need only assess whether the changes, as a matter of fact, led to a conclusion that an objective basis to the applicants' claim no longer existed, then, a different approach to a review of the Board's decision would apply. The Court of Appeal, on April 28, 1997, rendered a decision in IMM-2057-93 (A-267-94), which pending application was referred to in my Order of July 14, 1994. Indeed the issue had in fact been settled at an earlier time by the decision in Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11 (F.C.A.). The second alternative set out above was adopted as the appropriate test.

     I turn then to a review of the Board's decision on that basis. Counsel for the applicants argued that the evidence before the Board could not support the conclusion that the Board reached. It is argued that while there were indications that the system of Public Tribunals was to be abolished, this had not yet occurred, and the general amnesty which had been declared was a qualified amnesty that did not apply to the applicants. With respect to the evidence before the Board, I cannot conclude that it does not support the Board's decision. While the system of Public Tribunals had not yet been abolished this was to occur on a specific date measured from the date of the adoption of the new constitution. The constitution had been adopted.

     The male applicant's argument concerning the qualified nature of the amnesty is connected to a warrant for his arrest which is found in the record. His counsel argues that this was not assessed by the Board. The Board did not refer to it in its reasons. The document in question states that the male applicant is wanted in connection with investigations concerning seditious activities. The documentary evidence indicates that amnesty has been granted to political opponents, but not with respect to persons convicted of subversion or conspiracy to overthrow the government. The male applicant's evidence was that he was being persecuted because he had been the acting Regional Financial Secretary of the Movement of Freedom and Justice ("MFJ") and had been caught in possession of and distributing anti-government literature. The Board noted that the MFJ was now a legal organization which had given birth to numerous political parties, that measures had been taken to allow for freedom of the press, that a human rights monitoring organization had been established, that the measures had been instituted to prevent arbitrary detentions of more than fourteen days.

     I do not think it was an error not to refer to the document which seems to implicate the male applicant in seditious activities. Boards do not have to refer to every piece of evidence before them. The Board was clearly aware that it was still an open question whether democracy had arrived in Ghana but the Board was absolutely certain that the changes which had occurred deprived the applicants' fear of persecution of any objective basis. The Board assessed the grounds on which the male applicant said he feared persecution in the context of the present and probable future situation in Ghana. It concluded: "we do not believe that the Ghanaian government would have the slightest interest in taking action against this claimant". That conclusion is supported by the evidence.

     Counsel argues that insofar as the female applicant is concerned, the Board tied her claim to that of her husband's and did not assess it independently. I do not read the record or the Board's decision as supporting that argument. The Board assessed the female applicant's claim on two bases: insofar as it depended on her husband's claim, it was not supportable because his was not supportable; insofar as it depended on facts peculiar to her and her involvement, or rather lack of involvement, with the 31st December Women's Movement, it lacked an objective foundation.

     For these reasons the application is dismissed.

                             (Sgd.) "B. Reed"

                                 Judge

June 13, 1997

Vancouver, British Columbia