Date: 20020704
Docket: IMM-2993-01
Ottawa, Ontario, this 4th day of July, 2002
Present: The Honourable Mr. Justice Pinard
Between:
BENJAMIN OSEI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of the Refugee Division of the Immigration and Refugee Board dated May 22, 2001, in which it determined the applicant was not a Convention refugee, is dismissed.
JUDGE
Date: 20020704
Docket: IMM-2993-01
Neutral Citation: 2002 FCT 743
Between:
BENJAMIN OSEI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated May 22, 2001, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The applicant is a citizen of Ghana, but was granted permanent resident status in Sierra Leone, renewable on a yearly basis. The applicant's claim is based on the fact that he fears persecution from elements of the Sierra Leonean army, resident in Ghana, who perceive the applicant as a rebel collaborator.
The Board determined the applicant not to be a Convention refugee because he is not credible and does not have a well-founded fear of persecution in Ghana. The Board also found that if the applicant did return to Ghana, adequate state protection is available to him.
The applicant's primary argument is that the Board erred in that it misunderstood his claim and took into account irrelevant considerations. At paragraph 8 of his written submissions, the applicant states that in fact he "fears persecution from elements of the Sierra Leonean forces, resident in Ghana, who perceive the applicant has (sic) a rebel collaborator."
In the present case, after having read the oral and written testimonies as well as reviewed the decision, I feel that the Board correctly understood and assessed the basis of the applicant's claim. In its reasons, the Board makes the following statements which I feel coincide entirely with the applicant's claim:
. . . Nor does the panel find it credible or plausible that the Ghanian government would not provide him protection from the Sierra Leonean refugees in Ghana. . . .
[. . .]
. . . The panel finds that if the claimant did return to Ghana and if the Sierra Leonean refugees there who suspected him of being a rebel collaborator did attack him, adequate state protection is available to him. . . .
[. . .]
. . . The panel finds that if the claimant did come in contact with any Sierra Leone refugees in Ghana who held that view, that the claimant would be able to obtain adequate protection from the Ghanian authorities.
The applicant further alleges that the Board erred in determining that he was not credible. It has been confirmed that with respect to credibility and the assessment of evidence, this Court may not substitute its decision for that of such a tribunal, when the applicant has failed to prove that the tribunal's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7).
Generally, the Board is entitled to infer that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable (Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)) and that its reasons are set out in "clear and unmistakable terms" (Hilo v. M.E.I., 15 Imm.L.R. (2d) 199 (F.C.A.)).
Here, the applicant was clearly given the benefit of the doubt as the Board gave him several opportunities to explain facts that are extremely pertinent to his application such as the following: Nigerian troops assisted the applicant in leaving Sierra Leone when he was allegedly suspected of being a rebel collaborator; the applicant's attendance at a refugee camp in Ghana where both Sierra Leone rebels and soldiers were present and his alleged previous persecution at the hands at both and finally, the applicant's intention of establishing a skill training ministry in Ghana to assist Sierra Leone refugees. After reviewing the evidence, and without necessarily adopting the Board's analysis in its entirety, I am not persuaded that most of the inferences of the Board, which is a specialized tribunal, could not reasonably have been drawn (Aguebor, supra). I do not feel that any significant evidence was misconstrued or rejected without reasons.
I am also of the impression that, given the circumstances, the Board's perception that the applicant is not credible in fact amounts to a conclusion that there was no credible evidence to justify his claim to refugee status (see Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 at 244 (F.C.A.)).
Given the above findings, it will not be necessary to deal with the applicant's argument with respect to state protection.
For all these reasons, the application for judicial review is dismissed.
The applicant has proposed certification of the following question:
1. In relation to "Convention refugee" as defined in s.2(1) of the Immigration Act, can a state refuse protection because he had not followed proper procedures to attend a refugee camp? To put it another way, can state protection be determined to be forthcoming (or effective) even if state protection is actually refused because a claimant had not followed proper procedures to attend a refugee camp?
In my view, the proposed question ought not be certified given the fact that the Board did not accept that there was a credible objective basis to the applicant's claim. In such a context, the issue of state protection would not be determinative of the appeal.
JUDGE
OTTAWA, ONTARIO
July 4, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2993-01
STYLE OF CAUSE: Benjamin Osei v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 29, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: July 4, 2002
APPEARANCES:
Micheal Crane FOR THE APPLICANT
Matthew Oommen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Micheal Crane FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario