Date: 20010523
Docket: IMM-3999-00
Neutral citation: 2001 FCT 518
BETWEEN:
SARAH ADJOA QUAYE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (Board), dated July 13, 2000 (orally), and August 29, 2000, which determined that the applicant was not a Convention refugee.
[2] The applicant is a 29-year-old citizen of Ghana who claims Convention refugee status based on her race, perceived political opinion and membership in a particular social group, namely battered women.
[3] The applicant is a member of the Akan tribe who lived in a small farming village where the practice of arranged marriage is still common. The applicant's parents had pre-arranged a marriage for her to a proposed husband who had paid for her schooling (a rich, important man in her village who lived in Germany), although she was already involved in a common law relationship and pregnant with twin children of that relationship. They demanded that she marry the proposed husband and that she have an abortion. She refused and, as a result, she suffered social ostracism by her family and tribe members. Fearing for her life, the applicant left Ghana and came to Canada. The applicant fears returning to Ghana because her tribe would kill her. She also fears for the safety of her children and her common-law husband.
[4] The Board concluded that the applicant had a well-founded fear of persecution within the ambit of gender persecution. The Board then considered whether the applicant could be returned to Ghana and found that there was an internal flight alternative (IFA) in Accra, the principal city of Ghana.
[5] The Board found that there was no more than a mere possibility that the proposed husband and her family would pursue the applicant in Accra. The suitor lives in Germany and there was no evidence that his wealth and influence extended beyond the applicant's village.
[6] The Board noted that the government enacted legislation which doubled the mandatory sentence for rape and adopted amendments to the 1960 Criminal Code providing additional protection for women and children, including the criminalization of forced marriages.
[7] In addition, the police administration in Accra established a special unit to handle cases involving domestic violence, among other issues. The unit works closely with other non governmental organizational bodies which provide assistance in the area of domestic/gender violence.
[8] The Board also noted that the President of Ghana, and the First Lady, are among the most outspoken advocates of women's rights.
[9] Based on the foregoing, the Board concluded that there was not a reasonable chance or serious possibility that if the claimant is returned to Ghana she will be persecuted.
[10] The Federal Court of Appeal first dealt with the IFA concept in Zalzali v. Canada (M.E.I.), [1991] 3 F.C. 605 (F.C.A.) where Décary J.A. stated at p. 614-615:
I do not have to decide here what is meant by "government". I know that in principle persecution in a given region will not be persecution within the meaning of the Convention if the government of the country is capable of providing the necessary protection elsewhere in its territory, and if it may be reasonably expected that, taking into account all the circumstances, victims will move to that part of the territory where they will be protected.
[11] The Federal Court of Appeal further developed the IFA concept in Rasaratnam v. Canada (M.E.I.), [1992] 1 F.C. 706 (F.C.A.) where Mahoney J.A. stated at p. 710 that:
[...] the IFA concept is inherent in the Convention refugee definition. That definition requires the claimant to be outside the country of nationality or former habitual residence and unable, or unwilling, to return to it by reason of a well-founded fear of persecution for one of the stated reasons: race, religion, nationality, membership in a particular social group or political opinion. I see no need to reach a concluded opinion that fear of persecution so circumscribed is necessarily co-extensive with deprivation of the enjoyment of "the basic and fundamental human rights". I would, accordingly, restate the first proposition: the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.
[...] [S]ince by definition a Convention refugee must be a refugee from a country, not from some subdivision or region of a country, a claimant cannot be a Convention refugee if there is an IFA. It follows that the determination of whether or not there is an IFA is integral to the determination whether or not a claimant is a Convention refugee. I see no justification for departing from the norms established by the legislation and jurisprudence and treating an IFA question as though it were a cessation of or exclusion from Convention refugee status. [Emphasis added].
[12] After a careful review of the evidence, I am not satisfied that it provided a reasonable basis for the Board's conclusion that the applicant had an IFA in Accra.
[13] First, the evidence does not support the finding that the applicant has only a mere possibility of being pursued by either her suitor, her family or tribe members in Accra. It is speculative for the Board to conclude that the suitor's influence does not extend beyond the applicant's village. As a businessman, who can live abroad in Germany and send money for her education, it is likely that his wealth and influence extend beyond the village and that he could find the applicant in Accra if he wanted to. Further, I believe it is more than likely that if she was put into an arranged marriage from infancy, the family would continue to be governed by traditional thinking and seek her out for punishment or force her to marry. I agree with the applicant that cultural and traditional normes do not change overnight and the mere enactment of new laws is not in itself sufficient to provide the applicant with an IFA in the capital.
[14] Second, the Board misconstrued the evidence when it concluded that, although the applicant was credible on the issue of gender violence, the documentary evidence is to be preferred because it indicates some effort by the government to combat abuse against women.
[15] To the contrary, the documentary evidence before the Board recognized that "[v]iolence against women, including rape and domestic violence, remains a significant problem throughout Ghana (including Accra). A 1998 study revealed that at least 54 percent of women have been assaulted in recent years." (Exhibit R-1, item 2.1, U.S. Department of State Country Reports on Human Rights Practices for 1999 (February 25, 2000).
[16] As noted by the Federal Court of Appeal, Ahmed v. Canada (M.E.I.) (1993), 156 N.R. 221 (F.C.A.), the internal flight alternative requires a finding that the applicant can reasonably and without undue hardship find, in her own country, a secure substitute home away from the place where she was persecuted. I am not satisfied that in the present case this will prevail.
[17] The application for judicial review is allowed, the decision of the Board is set aside and the matter is referred back for redetermination by a newly constituted panel.
"Danièle Tremblay-Lamer"
J.F.C.C.
Toronto, Ontario
May 23, 2001.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3999-00
STYLE OF CAUSE: SARAH ADJOA QUAYE
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, MAY 22, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: TREMBLAY-LAMER J.
DATED: WEDNESDAY, MAY 23, 2001
APPEARANCES BY: Mr. Moses
For the Applicant
Mr. Butterfield
For the Respondent
SOLICITORS OF RECORD: Moses and Associates
Barristers & Solicitors
480 University Ave.
Suite 610
Toronto, Ontario
M5G 1V2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010523
Docket: IMM-3999-00
Between:
SARAH ADJOA QUAYE
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER