Date: 20000525
Docket: IMM-1159-99
Ottawa, Ontario, this 25th day of May 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
FREDA NEWTON
VANESSA NARTEY
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] In an age where visiting the sins of the father upon the sons has fallen out of favour, the evidentiary inadequacies of this mother may be visited upon her daughter. This is a case where the applicant, Freda Newton, fled Ghana with her daughter after a brawl which erupted when the family of her lover insisted that their 1 year old daughter would have to submit to female genital mutilation as a condition of their marriage. In the course of the brawl, she struck her lover's sister on the head with a wooden club for which she was jailed. She managed to escape with her daughter but believes that they are still sought by her former lover's family, who are wealthy and connected with the current regime. She fears that if she returns to Ghana, they will take her daughter and enforce their savage custom upon her.
[2] Her difficulty, or more particularly, her daughter's difficulty is that she was not found to be credible. The Convention Refugee Determination Division ("CRDD") identified three instances of contradictions or improbabilities in her evidence on the strength of which they found that she lacked credibility and rejected her application.
[3] The facts, briefly stated, are as follows. The applicant resided in a village in Eastern Ghana. She met Jonothan Nartey, a muslim from Northern Ghana, when he came to her village to manage a branch of his father's business. They became lovers and she bore him a daughter, the applicant, Vanessa Nartey. Marriage was discussed and on January 7, 1996, when Vanessa was approximately one year old, a meeting was arranged between Mr. Nartey's family and Ms. Newton's to discuss their marriage. Since Ms. Newton's father is not present, her uncle was the spokesman for her family. The discussions progressed relatively well until Mr. Nartey's father announced that Vanessa would be expected to undergo female genital mutilation before the marriage. This was immediately and vocally objected to by Ms. Newton and her uncle. A brawl ensued in the course of which Mr. Nartey's sister was left the worse for wear as a result of contact with a wooden club wielded by Ms. Newton.
[4] The police came and took Ms. Newton to the local station where they held her for approximately two weeks, during which she was subjected to beatings and burning with cigarettes. After about two weeks, she found herself in the hospital in circumstances which she described as follows:
...One evening there was this policeman in my cells. So this policeman said if I would allow him to have sex with me, he will allow me to go and see my daughter, but I refused. I said no, I wouldn't. So he continued hitting my joints and force me into a corner.
So on the 24th while recovering, I realized that I've been admitted to the Ojobee hospital. So when I recovered I asked them how come I'm here. What's the purpose of being here. So they said when they visited me at the prison they found me collapsed, and then I was taken to hospital"
[5] With the help of a nurse, Ms. Newton managed to escape from the hospital and on March 1, 1996 she left Ghana on her way to Canada. When she was interviewed at the point of entry, she was asked if she had ever been in prison. She replied that she had not. She was admitted to Canada and made a refugee claim. In the process of accumulating the necessary documentation, she wrote to her uncle asking him to provide birth certificates for herself and her daughter. At the hearing, Ms. Newton testified that she already had a copy of her own birth certificate in Ghana but her uncle was able to retrieve it and had another issued through a contact he had in the Ghanian bureaucracy. Both Ms. Newton's birth certificate and her daughter's show April 28, 1998 as the date of registration.
[6] Ms. Newton had another daughter in Canada, Philmore Nartey, born November 11, 1996. Ms. Newton's evidence was that the father of this child is also Jonothan Nartey but that she last saw him some time before the January 7, 1996 family meeting which gave rise to this trouble. When pressed by the CRDD about the 10 month or so gestation period that this would necessarily entail, Ms. Newton continued to maintain that Mr. Nartey is the father of both her children.
[7] A reading of the transcript of the hearing before the CRDD discloses that there were a number of points in Ms. Newton's narrative about which the CRDD appeared to have reservations. However, when the decision issued, it identified 3 major implausibilities on the basis of which Ms. Newton's credibility was impeached.
[8] The first ground was the assertion that Mr. Nartey was the father of her second child even though the date of her last contact with him (which is known only as having been no later than January 7, 1996) meant that her gestation period would have been approximately 44 weeks. There was no medical evidence before the CRDD which relied upon the conventional knowledge that the normal gestation period is 9 months. The CRDD had difficulty with this and apparently decided that if Mr. Nartey was the father, Ms. Newton could not have been in jail as she said she was and therefore her story was not credible.
[9] The CRDD then questioned whether Ms. Newton could truly have had her birth certificate prior to leaving Ghana since the registration date was two years after she left Ghana. The date of issuance can be made out on the certificates and it is April 29, 1998, the day after the date of registration. Counsel argued that late registration is common in many third world countries but, with respect, that is not the issue. Ms. Newton testified that she had a birth certificate at a time when, according to the records she produced, her birth had not yet been registered.
[10] Finally, the CRDD focussed on the contradiction between what she told the officer at the point of entry about not being in prison and her testimony (and Personal Information Form) which were to the effect that she had been held by the police for two weeks. The CRDD found that this contradiction on an important element of her story undermined her credibility. Counsel argued that in English there was a well known distinction between going to prison and being held in police cells. One notes that Ms. Newton's personal information form was translated and that her evidence before the CRDD was given through an interpreter. While this may suggest that there was a translation problem, it does not support the view that Ms. Newton was simply being precise in her use of language.
[11] Counsel argues that the CRDD's treatment of these three instances is unreasonable. In the first case, he suggested that the normal gestation period is rather more elastic than the nine months which are conventionally allowed for gestation. If that were to be the answer to the CRDD's inquiry, then it ought to have been the subject of medical evidence. Counsel then suggested that, despite her evidence as to paternity, Ms. Newton could have been beaten senseless by her jailhouse interlocutor, who then raped and impregnated her. Given that she was out of jail by January 24, 1996, this may or may not answer the question as to gestation period, a subject on which there is no evidence. In fairness to Ms. Newton, her evidence before the CRDD could be read to reflect a jailhouse rape, an occurrence which in many cultures can be seen to be deeply shameful and which is to be covered up by naming one man as the father of all her children. But it is also possible to treat it as did the CRDD as evidence, that if she were having a sexual relationship with Mr. Nartey after the events which are said to have taken place on January 7, 1996, either the events did not take place or the consequences are not as they were represented to be. Such a construction of the evidence is not unreasonable.
[12] With respect to the question of the birth certificates, it is an issue which does not engage the major events of her claim but is purely a matter of credibility. Counsel raises the possibility of multiple registrations of the same birth, which he says he is aware of from his own experience. Unfortunately, there is no evidence before the Court on that issue. Furthermore, it is within the competence of the CRDD to be aware of local conditions including the practices as to the issuance of identity documents. In the absence of evidence to the contrary, one is left with the document itself which recites that her birth was only registered on a date after Ms. Newton had left the country. She could therefore not have had the document in her possession when she said she did. The weight to be accorded to this inconsistency is a matter for the CRDD.
[13] Finally, the question as to whether Ms. Newton told the officer at the point of entry that she was not imprisoned because she distinguished between a prison and a police station is one of plausibility. Given that interpreters were used in all cases, one would have thought that the level of linguistic precision would be less rather than more but once again this is a matter within the competence of the CRDD.
[14] In the end, the question becomes one of standard of review. Was the decision of the CRDD unreasonable on the evidence before it. I find that it was not unreasonable and that there is therefore no reason to interfere.
[15] At the hearing, counsel raised for the first time the application of the Guidelines with respect to Gender Based Discrimination, arguing that this decision failed to refer to or consider the Guidelines. Counsel for the respondent objected to the argument being made since it had not been previously raised, and was not referred to in the applicant's materials. I defer to Mr. Justice Huguessen in Greens At Tam O'Shanter Inc. v. Canada [1999] F.C.J. No. 260 where he says:
First, it is intended that the moving party should fairly inform the opposite party of the legal and factual basis of the motion that is being brought. Such information is not only a requirement of fairness but may also in fact contribute to a saving of the Court's time, in that the motion may well be agreed to by the party responding thereto. There may be a substantial saving of costs as well. The Rules also make special provision for the awarding of costs against a party who opposes a motion that should not have been opposed. The other, I think, obvious purpose of written representations is to inform the Court and to assist it in the disposition of the motion. These points are both taken by the defendant in the presentation of the motion this morning and I think they are well taken.
[16] In this case, both the Court and counsel for the respondent were surprised to see the Guidelines raised as an issue when they had not been raised before the CRDD and were not mentioned in the applicant's comprehensive written submissions. Were this claim only in relation to Ms. Newton, I would have no hesitation in ruling that the representations with respect to the Guidelines would be given no weight. But because Vanessa Nartey has an independent claim for refugee status, in that she is personally a potential victim of persecution and not merely a dependent applicant, I will consider whether the Guidelines would affect her situation.
[17] The Guidelines are an aid for the CRDD panel in the assessment of the evidence of women who allege that they have been victims of gender-based persecution. The Guidelines do not create new grounds for finding a person to be a victim of persecution. To that extent, the grounds remain the same, but the question becomes whether the panel was sensitive to the factors which may influence the testimony of women who have been the victims of persecution. Since Vanessa did not testify, there is no room for the application of the Guidelines with respect to her claim.
[18] Vanessa's mother did testify. Would the application of the Guidelines lead to a different conclusion as to her credibility? The only issue on which the Guidelines might come into play is with respect to the issue of Vanessa's paternity. Ms. Newton's insistence that Mr. Nartey is Vanessa's father gave rise to one of the credibility issues upon which the CRDD based its findings. It may be that Ms. Newton chose to credit Mr. Nartey with Vanessa's conception because the alternative would require her to admit to rape by the prison staff, a matter which might be devastating in Ms. Newton's culture. If the panel had been alive to that possibility, they may have come to a different conclusion on that issue. On the other hand, the panel cannot create evidence as to the cultural significance of rape. It is now known that the victims of rape find it to be a deeply degrading experience and that, even in Western culture, many rapes are not reported because of the victim's feelings of shame. One must presume that these considerations were present to the mind of the panel when it was assessing Ms. Newton's testimony. The Guidelines cannot be treated as corroborating any evidence of gender-based persecution so that the giving of the evidence becomes proof of its truth.
[19] This case offers an additional twist in that the Guidelines are being relied upon to say that Ms. Newton should not be believed on a material element of her account. The CRDD would be asked to disregard Ms. Newton's evidence as to the paternity of her child in favour of a theory which she did not advance. One cannot enhance a claimant's credibility by saying she should not be believed.
[20] In the end result, the application of the Guidelines would not reasonably lead to the conclusion that a different result would have been arrived at.
[21] Counsel also raised arguments arising from the Charter and various international agreements. The application of these arguments to these facts depends upon a finding that Ms. Newton's version of events is true. The CRDD has found that it is not. Therefore, the Charter and the various conventions cited by counsel do not assist either.
[22] In conclusion, the CRDD's decision that Ms. Newton's account of events is not credible is one which was reasonably open to it on the evidence before it. In the result, the application for judicial review is dismissed.
ORDER
The application for judicial review of the decision of the Convention Refugee Determination Division dated February 19, 1999, reasons for which are dated February 3, 1999 is dismissed.
"J.D. Denis Pelletier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON RECORD
COURT FILE NO : IMM-1159-99
STYLE OF CAUSE : FREDA NEWTON et al
v.
M.C.I.
PLACE OF HEARING: Montreal (Quebec)
DATE OF HEARING : FEBRUARY 29, 2000
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PELLETIER
DATED : le 25 mai 2000
APPEARANCES :
M. Stewart Istvanffy FOR THE APPLICANT
Mme Josée Paquin FOR THE RESPONDENT
AVOCATS INSCRITS AU DOSSIER
M. Stewart Istvanffy FOR THE APPLICANT
M. Morris Rosenberg FOR THE RESPONDENT
Sous-procureur général du Canada