FACTS:
This is an application for judicial
review of a decision of the Convention Refugee Determination Division of the
Immigration and Refugee Board [hereinafter the "Board"]. On July 31,
1996, the Board found that the applicant was not a Convention refugee.
Mr. Appiah alleged before the Board
that he had suffered persecution in Ghana because of his family's history of
opposition to that country's military regime. At the end of 1981, an uncle in
the military had led an unsuccessful counter-attack against Flight Lieutenant
Jerry Rawlings. In the aftermath, Mr. Appiah and his parents were detained,
interrogated and beaten by security forces for three days. Upon their release,
for three years, Mr. Appiah and his parents had to report to the military
police on a monthly basis.
In November 1992, there was an
uprising and protests in the streets against Rawlings because of allegations of
electoral fraud. Mr. Appiah was swept up in the police round-up after the
protests were quelled. When the police learned his family name, he was
questioned, beaten and subjected to torture. He was only released after his
family paid a large sum of money. Mr. Appiah was again told to report to the
police on a monthly basis. During his last mandatory visit to the police
station in December, 1994, the applicant claimed that he was sexually assaulted
for over an hour by two men in plain clothes. When he was released, he was told
to continue reporting to the same two men. Mr. Appiah then attempted to bring
the assault to the attention of the authorities. He was ridiculed and abused
when he tried to lodge a criminal complaint at a different police station. He
was simply told to obey his instructions. Soon after, Mr. Appiah fled to
Canada and sought refugee status.
The Board's Decision
The Board did believe that Mr. Appiah
had been sexually assaulted and was still suffering under the weight of that
traumatic event. However, the Board did not see a link between the sexual
assault and Mr. Appiah's family history. It stated, "although the panel
believes the claimant's assertion that he was sexually abused on that date, we
do not believe that the claimant's detention is politically
motivated......" (page 7, Board Decision, page 13, applicant's Record).
The Board doubted the applicant's credibility on a number of elements because
of what it called "internal inconsistencies" (page 4, Board Reasons,
page 10, applicant's Record) and implausibilities. Primarily, the Board
contested the existence of Mr. Appiah's uncle, an officer in the Ghanian
military who had led an unsuccessful opposition effort to Flight Lieutenant
Rawlings' coup in 1981.
The applicant's Grounds of Review
The applicant offers three grounds of
review. Firstly, the applicant submits that the Board made a patently
unreasonable evaluation of his credibility. According to the applicant, the
Board failed to fully acknowledge what impact the sexual assault and the
ensuing Post Traumatic Stress Disorder ("PTSD") would have on his
testimony before the Board.
Secondly, the applicant argues that
the Board failed to properly assess the documentary record. The Board did not
make any reference to the documentary record describing human rights violations
in Ghana. Thus, according to the applicant, the Board failed to acknowledge an
important element that could shed light on the applicant's credibility.
Thirdly, the applicant states that
the Board failed to respect the Canadian Charter and International
treaties against torture. The applicant argues that as a consequence of the
Board's decision, a recognized victim of sexual assault will be sent back to
a country where torture is committed and fundamental human rights violated.
ISSUES:
1. Did the Board err in assessing the
applicant's credibility?
2. Did the Board err in failing to pay
any heed to the documentary record on Ghana?
3.Did the Board
fail to respect the Canadian Charter of Rights and Freedoms and Canada's
obligations under international law?
DISCUSSION:
1. The Credibility Assessment
The respondent highlights the high
standard for judicial intervention in reviewing a Board's credibility finding:
(see Bagaragaza v. S.G.C., IMM-65-94, December 15, 1994
(F.C.T.D.)). I am satisfied that the Board did commit a reviewable error in
assessing the applicant's credibility. The Board accepted only one prong of a
two-pronged argument. The first prong concerns the applicant's evidence of
sexual assault. The second prong relates to the impact of the sexual assault on
the applicant's ability to testify. The Board accepted as fact the applicant's
story of sexual assault or what the Board itself called "an important
element in the claimant's story" (page 7, Board Decision, page 13,
applicant's Record). The Board did not elaborate on why it believed this key
element of the applicant's claim except to note that in both Mr. Appiah's oral
testimony and written Personal Information Form, he described the sexual abuse
"at the police station" (page 7, Board Decision, page 13, applicant's
Record). The Board also highlighted the medical and psychological evidence
detailing Mr. Appiah's PTSD and the consistency of his symptoms with the
occurrence of a traumatic event. The Board concluded that it had "no
reason to doubt Mr. Appiah's story of being sexually abused and that his
behaviour presents a severe and chronic Post-Traumatic Stress Disorder"
(page 9, Board Decision, page 15, applicant's Record). The Board also cited
the medical report recommending "that the hearing be conducted in a
delicate manner to avoid any deterioration in the claimant's situation"
(page 9, Board Decision, page 15, applicant's Record).
In my view, judicial review is
warranted because the Board did not evaluate or consider the second prong of
the argument, namely how the PTSD could influence the applicant's recall of
events or demeanour before the Board. The psychologist was specifically asked
to determine "whether a PTSD has consequences on the capacity of an
individual to testify about traumatic events he or she has experienced"
(page 21, applicant's Record). In fact, Dr. Louise Gaston indicated in her
psychological evaluation that for sufferers of PTSD, "it is natural that
the facts are reported with difficulty and even sometimes with
contradictions...Moreover, he may respond hesitantly, since the interrogator
might be associated to the situation in which he found himself to be the victim
of torture.." (page 23, applicant's record).
Once the Board had made the first
step of accepting the sexual assault because of the weight of the medical and
psychological evidence, it had to follow through on all the ripples and
repercussions of this finding. Thus, the Board should have expressly
acknowledged the second prong of the PTSD evidence. In other words, not only
did the hearing have to be conducted in a "delicate manner", but the
Board also had to weigh the possible consequences of the PTSD on its assessment
of Mr. Appiah's credibility. It is clear that it did not do so. In fact, the
Board emphasized the "claimant's hesitancy" (my emphasis) in
providing information (page 5, Board Reasons, page 11, applicant's Record).
The Board's assessment of credibility
in this instance is linked to its consideration of the psychological and
medical evidence. Certainly, this is not the case of a Board
"ignor[ing]" the evidence as occurred in Galindo v. Minister
of Employment and Immigration, [1981] 2 F.C. 781 (F.C.A.). The Board did
in fact refer to the medical evidence of PTSD. However, it failed to give this
evidence the proper weight or recognition on the crucial issue of credibility.
Admittedly, there is a presumption that a decision-maker takes into account all
of the evidence provided and that there is no need to explicitly refer to each
piece of evidence: (Hassan v. Canada (Minister of Employment &
Immigration (1992), 147 N. R. 317 (hereinafter "Hassan")).
However, in this instance, the Board in fact mischaracterized the medical
evidence because it did not highlight the effects of PTSD on the applicant's
credibility when credibility was the linchpin of its decision.
Furthermore, I am puzzled by the
Board giving much significance to the fact that the police were seemingly
belated in making inquiries about Mr. Appiah's whereabouts three weeks after
the sexual assault. With respect, I find this aspect of the Board's analysis
to be patently unreasonable, capricious and hardly a determining factor in the
applicant's credibility. Once the Board accepted the fact of sexual assault, it
had no cause to attack the applicant's credibility because the perpetrators'
were slow on the mark in pursuing their victim.
Moreover, I find the Board's
reasoning to be contradictory and inconsistent. On the issue of the identity of
the perpetrators, the Board expressly accepted that the assailants were police
officers or individuals working "at the police station" (my
emphasis). The Board also stated that it doubted the motivation behind the "claimant's
detention" (my emphasis). The use of the word detention is very
revealing. One is "detained" by the police or the state authorities;
an individual does not complain of "detention" at the hands of
non-governmental authorities. And yet, the Board did not take the next step of
believing that Mr. Appiah was at the police station for a political cause even
as it had no doubt that he had been raped there. One can only infer from the
Board's reasoning that Mr. Appiah was a victim of bad luck and timing. According to the Board,
Mr. Appiah just happened to be in the wrong place, a police station rife with
sexually predatory police officers, for the wrong reasons. If Mr. Appiah had
been at the police station for the "right", that is political
reasons, then presumably the Board would have found in his favour. I am
therefore at a loss to find how the Board, on the basis of hesitancy and minor
inconsistencies on peripheral details, could reasonably decide as it did on the
"reasons" for Mr. Appiah's appearance at the police station.
I also believe that the Board acted
unreasonably when it found that Mr. Appiah had no uncle or family history of
opposition to the ruling forces in Ghana. In my view, the Board acted unreasonably
and capriciously when it pinpointed alleged inconsistencies in Mr. Appiah's
reporting date to the police authorities as evidence of deception: (see Aguebor
v. Canada (Minister of Employment & Immigration) (1993), 160
N.R. 315 (F.C.A.)). The Board found Mr. Appiah not to be a credible witness
because at one point he stated that he had to report the first day of every
month while he later acknowledged that it was in fact the first Monday
of every month. I fail to see how such a refinement or nuance of the evidence
on a slight detail undermines Mr. Appiah's credibility. One thing is clear and
remains constant. Despite the possible effects of PTSD, Mr. Appiah never
wavered from his testimony that he did in fact have to report to the police.
However, on at least one other facet
of the applicant's credibility, the Board's finding appears reasonable. In
letters supposedly written by Mr. Appiah's uncle himself, there was some
inconsistency about the rank occupied by the uncle in the Ghanian army. In one
letter, the uncle signed himself "Lieutenant-Colonel". In a second
letter, he gave himself the rank, "Captain Appiah....".The applicant
explains in his affidavit written in support of the application for judicial
review that the different ranks are the result of a simple oversight on his
uncle's behalf (paragraph 5, page 19, applicant's Record). The uncle only
received the higher rank shortly before his exile. According to the applicant,
the uncle is therefore more used to calling himself by the rank of "Captain".
The Court, however, cannot give any weight to this evidence because it was not
before the Board. On a judicial review application, the Court can only review
the official record, not ex post facto explanations, whatever their
apparent merit.
Aside from the letters, the other
issues cited by the Board in its assessment of credibility are unfounded and
unreasonable. For instance, the Board doubts the applicant's credibility
because he alone of his siblings had been targeted by the police. However, the
Record reveals that Mr. Appiah offered an explanation for this discrepancy. Mr.
Appiah lived with his parents in the family home while his siblings lived
elsewhere in the country.
2. The Documentary Record
The Board, in this instance, failed
to pay any consideration to the documentary record describing Ghana's political
climate and human rights situation. I accept the principle that a Board need
not to refer to each piece of documentary evidence. For instance, in Hassan,
supra, Justice Heald writes at page 319: "The fact that some of the
documentary evidence was not mentioned in the Board's reasons is not fatal
to its decision. The passages from the documentary evidence that are relied on
by the applicant are part of the total evidence which the Board is entitled to
weigh as to reliability and cogency" (my emphasis). Nonetheless, the Court
must intervene when the Board has seen fit to refer to none of the
documentary evidence provided by the claimant or the refugee hearing officer.
The Board's official record contains many pages of material describing Ghana's
decidedly mixed human rights picture.
The respondent rejects the need for
the Board to evaluate the documentary record after it had already squarely
discounted the applicant's tale of persecution. However, in a case of a
claimant alleging a family history of opposition to the ruling regime,
particularly on the basis of specific uprisings in 1981 and 1992, it is
incumbent on the Board to consider circumstances in the country of origin, if
only to acknowledge how they do or do not affect the applicant's story. Is the
applicant's claim that the police dismissed his attempt to lay charges against
his assailants borne out by the documentary evidence? In Ghana, are rogue
police officers allowed to go unchecked, even after they sexually assault
detainees? The Board does not even contemplate these vital questions in its
reasons. Thus, the documentary evidence, if any, describing the treatment of
opponents of Rawling's state machinery escapes the Board's decision. This error
also warrants judicial review: (see Lai v. Canada(Minister of
Employment & Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.))
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