Docket: IMM-4398-03
Citation: 2004 FC 1258
Calgary, Alberta, September 15, 2004.
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
CHARLES ANKAMAH
Applicant
and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is a forty-two-year-old citizen of Ghana, from the village of Baano, who claims a well-founded fear of persecution by reason of his religion and membership in a particular group, that being his family. He fears persecution by his villagers and family for his refusal to assume the position of a fetish priest. He also claims a risk to his life or a risk of cruel and unusual treatment or punishment for the same reason.
[2] The Applicant claims that members of his community were convinced that the gods chose him to be the successor to the village fetish priest when he was approximately eighteen-years-old. He received training from the elders of the shrine so that he could assume the role when the current fetish priest died.
[3] In 1998, the Applicant became a Christian and expressed his intention to refuse the role of a future fetish priest. In December 2001 the Applicant was to be initiated as the new fetish priest but avoided the initiation. In April of 2002, the Applicant's family and the Elders once again attempted to conduct the initiation, however, the Applicant refused, and a riot resulted. Further altercations took place in the weeks following this second initiation attempt.
[4] Fearing for his life and for those who belonged to his Christian congregation, the Applicant left the village, and from June to August, travelled to Drobo, Kwamebikrom and Accra. However, the Applicant testified that the gods knew of his whereabouts, as they left signs that they had discovered his hiding places (i.e., chicken blood and feathers, broken eggs). The Applicant further testified that he believed the elders would be able to locate him anywhere in Ghana, and although he was not afraid of the gods, he was afraid that the elders would have to punish him by killing him, as he was not willing to be a mediator between the gods and his community.
[5] In August, the Applicant travelled to Canada via Israel where he claimed refugee status. In May 26, 2003, the Immigration and Refugee Board ( Board) determined that the Applicant was not a Convention refugee or a person in need of protection since there was an Internal Flight Alternative available to him in Accra, Ghana. The Applicant now seeks judicial review of that decision.
ISSUES
[6] The central issue in this case is whether the Board erred in finding that the Applicant had an Internal Flight Alternative in Accra, Ghana?
[7] Standard of Review
[8] Both parties agree, based on Chorny v. Canada (M.C.I.) [2003] F.C.J. No 1263 that the applicable standard of review is patently unreasonable.
ANALYSIS
[9] The Board acknowledged that the Applicant had a subjective fear of persecution, fearing that the group he calls Elders of the Gods would kill him for refusing to become a fetish priest. However it found that he had failed to establish on an objective basis that there was no Internal Flight Alternative available for him.
[10] In examining the availability of an Internal Flight Alternative, the Board must consider whether it is objectively reasonable to do so, or if it would cause undue hardship to the claimant. In Thirunavukkarasu v. Canada (M.E.I.) [1994] 1 F.C. 589, Linden J.A. described in para 14 the test as follows :
An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling or in staying there.
[11] In Rasaratnam v. Canada (M.E.I.) [1992] 1 F.C. 706 Mahoney, J. found ( in respect of Sri Lankan refugee),in para 10 that in order to find that an Internal Flight Alternative existed:
...the Board was required to be satisfied, on a balance of probabilities, that there was no serious possibility of the appellant being persecuted in Colombo, and that, in all the circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the appellant to seek refuge there..
[12] Thus, in order to reject a refugee claim on the basis of the existence of an Internal Flight Alternative, the Board must be satisfied the claimant can move to that area of the country without undue hardship and that the claimant will not suffer persecution in that area. The burden is on the Applicant to establish, on a balance of probabilities, that there is a serious possibility that he will be subject to persecution in the area which is alleged to be an Internal Flight Alternative.
[13] In this case, the Board explained why Accra would be objectively reasonable as an Internal Flight Alternative. The Board recognized that it is a large city (over one million people), and that it is located far from the Applicant's home (150 miles).
[14] While the Board accepted his subjective fear of persecution, the Board was not convinced that objectively he would suffer persecution in Accra. While the Applicant testified that the Elders of the gods would kill him if they found him, (Tribunal Record p. 12) the documentary evidence states otherwise. The IRB report found at p. 165 of the Tribunal Record states
When a person refuses to become a priest or priestess, they may be socially ostracized, he emphasized that although the situation is not life threatening, the person may perceive it as such if he or she has a strong belief in supernatural powers
(underlining added)
[15] On the basis of written evidence and oral evidence by the Applicant the conclusion reached by the Board was not patently unreasonable. Accordingly for the reasons mentioned beforehand this application cannot succeed.
Question sought to be certified
[16] The Applicant sought certification of the following question of serious general importance:
Subsection 97(1)(b)(ii) of the Immigration and Refugee Protection Act speaks only of a risk to the claimant in every part of the country and does not specifically add a requirement for a 'reasonableness element' such as this Honourable Court has on numerous occasions deemed to be a necessary element for an IFA. Does it follow therefore that this whole body of case law is no longer applicable in IFA considerations when considering the risk of a Person in Need of Protection?
[17] The origin for this question is based on the following excerpt from the Board's reasoning (Tribunal record p. 06)
With regard to the claimant's fear of a risk to his life, or a risk to him of cruel and unusual punishment or treatment, the panel relies on the same analysis in finding that there is no serious possibility of such a risk to him in Accra. In addition, the panel notes the documentary evidence indicating that there is freedom of movement in Ghana, and finds that Accra is reasonably accessible to him. It cannot go on, however, to consider other aspects of the reasonableness of an internal flight alternative in Accra, for the following reasons. Section 97(1)(b)(ii) of the Immigration and Refugee Protection Act speaks only of a risk to the claimant in every part of the country. It does not add a reasonableness element, an element that has been extensively interpreted by the Federal Court in the context of Convention refugee claims. Since the panel is satisfied, based on the foregoing analysis, that Accra is reasonably accessible to the claimant, and that he would not face a serious possibility of a risk to his life, or a risk to him or cruel and unusual treatment or punishment, in Accra, the panel finds that an internal flight alternative is available to him in Accra.
(underlining added)
[18] Counsel for the Crown conceded that the underlined portion of the foregoing quote is clearly wrong. However, this is an immaterial error. The Board had already made a finding regarding Internal Flight Alternative under s. 96 of the IRPA and any analysis under s. 97 would inevitably come to the same conclusion. Thus this error does not invalidate the decision, nor does it require a certification of the question posed by the Applicant.
[19] Accordingly for the reasons mentioned above this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
"K. von Finckenstein"
J. F. C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4398-03
STYLE OF CAUSE: Charles Ankamah v. The Minister of
Citizenship & Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: September 15, 2004
REASONS FOR ORDER AND ORDER : von Finckenstein J.
DATED: September 15, 2004
APPEARANCES:
Ms. Roxanne Haniff-Darwent FOR APPLICANT
Ms. Laura Dunham FOR DEFENDANT
SOLICITORS OF RECORD:
Darwent Law Office
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT