Docket: IMM-182-16
Citation:
2016 FC 780
Ottawa, Ontario, July 8, 2016
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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MATTHEW YEBOAH
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of a
decision of the Immigration and Refugee Board of Canada, Refugee Appeal
Division [RAD], dated December 17, 2015, which confirmed the finding of the
Refugee Protection Division [RPD] that the Applicant is neither a Convention
Refugee nor a person in need of protection pursuant to sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001 c 27 [the Act].
II.
Background
[2]
The Applicant is a 42 year old citizen of Ghana. He lived in Kumasi where he met his wife Judith Aduako Sarpong [Mrs Sarpong].
[3]
Mrs Sarpong’s grandmother was the “Queen Mother” of her village, Odumase. The position
of Queen Mother allegedly passed between two families in the village, the
Sarpongs and the Aduana family. The Applicant alleged that before passing away,
the Queen Mother chose Mrs Sarpong to take her place. When Mrs Sarpong’s
grandmother died unexpectedly, the elders elected Mrs Sarpong to take her place
as Queen Mother.
[4]
Once Mrs Sarpong learnt that in order to become
Queen Mother she would have to perform in a stool ritual, which involved female
genital mutilation [FGM], she refused the position. Her family began
threatening her for abdicating the position because the role would now pass
onto the Aduana family, which would result in a loss of wealth and status for
the Sarpong family. Faced with mounting threats from her family, including an
attempted kidnapping, Mrs Sarpong was forced to flee Ghana. She was recognized
as a refugee by the RPD in December 2013.
[5]
The Applicant alleged that he suffered
persecution from members of Mrs Sarpong’s family who accused him of pressuring
his wife to refuse the stool. The elders accused the Applicant of revealing the
untold ritual and wanted to punish him by performing the ritual on him and then
maybe kill him. The Applicant alleged that the elders and his wife’s family are
very upset since they do not wish to lose the reign of Queen Mother to the
Aduana family.
[6]
The Applicant also alleged that in order to keep
the Queen Mother position within the Sarpong family, Mrs Sarpong’s family now
want the Applicant’s eldest daughter, Larisa Sarpong (Larisa) to become the
next Queen Mother.
[7]
Fearing for his life, the Applicant left Ghana and arrived in Canada in November 2014 with false travel documents. When confronted about
the false documents, the Applicant claimed refugee protection.
[8]
In a decision dated February 13, 2015, the RPD
denied the Applicant’s claim because it found that the Applicant lacked
credibility. The Applicant appealed that decision to the RAD.
[9]
In discussing the standard of review to be
employed, the RAD followed Huruglica v Canada (Citizenship and Immigration),
2014 FC 799, 461 FTR 241 [Huruglica FC] and Njeukam v
Canada (Citizenship and Immigration), 2014 FC 859, and concluded that
since the appeal turns on questions of fact, it must show a degree of deference
to the RPD’s credibility findings. The RAD also recognized that it must provide
its own assessment of the evidence to reach its own conclusions on appeal.
[10]
The RAD then reviewed the documentary evidence
and concluded that the Applicant was not credible since his allegations
regarding the selection of the Queen Mother do not fit the profile of the
general process of selecting a Queen Mother in Ghana.
[11]
The RAD found that the RPD identified detailed
and authoritative evidence that Mrs Sarpong would be an unlikely candidate to
be a Queen Mother because of her age and lack of experience in the community.
Moreover, while the Applicant alleged that his wife was chosen because she was the
former Queen Mother’s granddaughter, the RAD found that since Mrs Sarpong left
the country, other female members of Mrs Sarpong’s family could accept the title.
[12]
The RAD found that the Applicant’s credibility
was also tarnished by the fact that he alleged that the elders seek to appoint
the Applicant’s 8 year old daughter as Queen Mother. The RAD found it
implausible that the elders would set aside the now deceased Queen Mother’s
choice for Mrs Sarpong’s daughter when the elders can choose from one of Mrs
Sarpong’s half-sisters or one of her maternal cousins who went through Queen
Mother training with her.
[13]
The RAD agreed with the RPD’s finding that the
Applicant had a burden to provide corroborating evidence of the passing of the
Queen Mother and that the absence of this corroborating evidence is a major
credibility issue.
[14]
The RAD recognized that there are problems with
Chiefs and that the police and security forces are often called on for
protection. However, the RAD found that the Applicant did not provide the RPD
with any examples of cases where the selection of the Queen Mother could be
dangerous. However, the RAD recognized that the Applicant provided evidence
that a “loss of power” might be dangerous.
[15]
The RAD also found that the Applicant’s
allegation that state protection is not available to him raises credibility
concerns since the Applicant submitted evidence that wherever there are
problems related to the Queen Mother system, there has been police involvement
or an investigation.
[16]
The Applicant contends that the RAD erred in its
assessment of the Queen Mother’s profile and the likelihood of Mrs Sarpong’s
and Larisa’s nominations and its assessment of the chieftaincy dispute. The
Applicant also contends that the RAD erred in basing its reasons on general
assumptions and general inferences. The RAD failed to explain why it preferred
the documentary evidence over the Applicant’s testimony and the RPD’s decision granting
Mrs Sarpong’s claim. In addition, the Applicant argues that the RAD did not
give sufficient weight to the RPD’s decision which granted refugee status to
Mrs Sarpong based on the same factual basis as the Applicant’s claim.
[17]
The Applicant also argues that the RAD’s
decision violates sections 7 and 12 of the Canadian Charter of Rights and
Freedoms and that the decision-maker did not assess the Applicant’s claim
fairly or impartially.
III.
Issue and Standard of Review
[18]
The issue to be determined in this case is
whether the RAD committed a reviewable error as contemplated by subsection
18.1(4) of the Federal Courts Act, RSC, 1985 c F-7.
[19]
The reasonableness
standard of review applies when reviewing the RAD's conclusions on its own
decision-making process and the RAD's review of the RPD's decision (Canada
(Minister of Citizenship and Immigration) v Huruglica, 2016 FCA 93, at
paras 32, 35 [Huruglica FCA]; Ghauri v Canada (Citizenship and
immigration), 2016 FC 548, at para 22 [Ghauri]; Ngandu v Canada (Citizenship
and Immigration), 2015 FC 423, at para 12).
[20]
Regarding the RAD’s selection of the appropriate
standard of review, the Respondent contends that the
selection of the applicable standard of review by the RAD ought to be reviewed
on the reasonableness standard. While the Applicant is silent on this issue, in
Ghauri, Justice Gleeson found that the Federal Court of Appeal’s
decision in Huruglica FCA says that the RAD “must apply the correctness standard of review when reviewing
findings of law, as well as findings of fact and mixed fact and law of the RPD
that raise no issue of credibility of oral evidence” (Ghauri, at
para 23). However, the RAD must take a “case-by-case
approach to the level of deference it owes to the relative weight of testimony
and their credibility or lack thereof” (Ghauri, at para 23; see Huruglica
FCA, at paras 37, 69-71, 103).
[21]
As stated previously, in reviewing the RPD’s
decision, the RAD followed Huruglica FC and gave deference to the RPD’s
credibility findings. Further to reading the RAD’s decision, I am of the view that
the RAD conducted a thorough and independent review of the Applicant’s file. As
stated by Justice Diner in Gabila v Canada (Citizenship and Immigration), 2016
FC 574, “so long as the RAD conducted, in substance, a
thorough, comprehensive, and independent review of the kind endorsed in Huruglica
FCA” its selection of the Huruglica FC standard “does not mean that the RAD has committed a reviewable error”
(at para 20). I therefore find that the RAD reasonably selected its standard
of review of the RPD decision.
IV.
Analysis
A.
Is the RAD Decision Reasonable?
[22]
As is well-established, a refugee claimant’s
testimony is generally presumed to be true (Maldonado v Canada (Minister of
Employment and Immigration) (1979), [1980] 2 FC 302, 1 ACWS (3d) 167).
However, “there are circumstances under which the Court
may prefer the description of the situation in a country to that of the
appellant's testimony” (Grinbergs v Canada (Citizenship and
Immigration), 2013 FC 826, at para 15). Yet, where a tribunal chooses to
believe the documentary evidence instead of a claimant’s oral testimony, it must
provide reasons for doing so (Agranovsky v Canada (Minister of Citizenship
and Immigration), 68 ACWS (3d) 713, at para 12; Sidhu v Canada (Minister
of Employment and Immigration) (1993), 70 FTR 104, 45 ACWS (3d) 516).The
RAD must also provide explanations for failing to address prior decisions rendered
by the Immigration and Refugee Board (IRB) or evidence contained therein (Commer
Mora v Canada (Citizenship and Immigration), 2010 FC 235, at para 23).
[23]
In my view, the RAD committed a reviewable error
by failing to properly consider the RPD’s decision granting Mrs Sarpong refugee
status.
[24]
The RPD decision granting Mrs Sarpong’s refugee
claim found Mrs Sarpong to be credible since she testified in a straightforward
and spontaneous manner. The RPD therefore believed her testimony that she was
chosen to be the Queen Mother following the passing of her grandmother since
her mother was her grandmother’s first daughter. The RPD found that while the
documentary evidence provided little indication that violence resulted from
refusing the Queen Mother position, one source said that circumstances vary
from situation to situation and from community to community. The RPD accepted
that the fact that the Queen Mother position would now pass onto a rival family
made Mrs Sarpong’s situation different from normal circumstances and accepted
that the loss of wealth to Mrs Sarpong’s family explained why Mrs Sarpong faces
a risk to her life in Ghana for refusing the Queen Mother position. The RPD
also recognized that state protection was unavailable to Mrs Sarpong because
the police in Ghana have a pattern of not wanting to get involved in family
matters.
[25]
It is correct to say, as the Respondent
contends, that this Court has established in a large number of cases that the
IRB is not bound by the result in another claim, even if the claim involves a
relative. Refugee claims are determined on a case by case basis (Noha v
Canada (Citizenship and Immigration), 2009 FC 683 at para 103, 347 FTR 265).
[26]
However, in a case such as the present, where
the Applicant’s narrative is exactly the same as his wife’s, as are the agents
of persecution, the RAD was required to provide sufficient reasons, grounded in
the evidence, to support its conclusion that Mrs Sarpong was never chosen to be
Queen Mother, which is a marked departure from the RPD’s previous positive
decision.
[27]
I find that the RAD’s explanations in this
regard are superficial and based on mere speculations. The RAD stated that it
did not find the Applicant’s account to be credible since it found that the
documentary evidence indicated that Mrs Sarpong was too young to be named Queen
Mother. I have reviewed the evidence and I cannot agree with the RAD’s
conclusion in this regard. The documentary evidence submitted by the Applicant refers
to a study in which only 25 Queen Mothers participated in. The paper indicates
that of the 25 participants in the study, the ages of the Queen Mothers ranged
from 38 to 76 years old and that the average age of the Queen Mothers
participating in the study was 53 years old (Collins Adjei Mensah, Kwabena
Marima Antwi & Suleman Dauda, “Female Traditional
Leaders (Queen Mothers) and Community Planning and Development in Ghana”
(2010) 3 Envtl Mgmt & Sustainable Dev 205 at 211). The claimant’s wife was
32 years old when allegedly designated. In my view, this evidence provides a
snap shot of the characteristics of 25 Queen Mothers with dramatically varying
ages. I therefore find that the RAD’s reasons in this regard are insufficient
to depart from the RPD’s previous finding that Mrs Sarpong was elected as Queen
Mother.
[28]
The same can be said of the RAD’s concern regarding
a lack of evidence corroborating the death of the previous Queen Mother. This
Court reminds that an applicant’s failure to file corroborating documentation “cannot be related to the applicant's credibility, in the
absence of evidence to contradict the allegations” (Ahortor v Canada
(Minister of Employment and Immigation), 65 FTR 137, at para 46, 41 ACWS
(3d) 863).
[29]
While the RAD raised some credibility concerns
regarding the Applicant’s testimony, its rejection of the Applicant’s claims
regarding his wife’s selection as Queen Mother, including the death of Mrs
Sarpong’s grandmother, were key in the RAD’s rational for dismissing the
Applicant’s appeal. Had it reviewed the Applicant’s testimony in light of the
RPD’s decision granting Mrs Sarpong refugee status, it may have come to a
different conclusion. The matter will therefore be sent back to another member
of the RAD for redetermination.
[30]
Given my finding that the RAD’s decision is
unreasonable, there is no need to determine the other grounds of review raised by
the Applicant.
[31]
No question of general importance has been
proposed by the parties. None will be certified.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. The application for judicial review is allowed;
2. The decision of the Refugee Appeal Division, dated December 17,
2015, is set aside and the matter is remitted back to a different member for
redetermination;
3. No question is certified.
"René LeBlanc"
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