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Kudjoe v. Canada (Minister of Citizenship and Immigration)

Publisher Canada: Federal Court
Author Federal Court of Canada, Trial Division
Publication Date 4 December 1998
Type of Decision IMM-5129-97
Cite as Kudjoe v. Canada (Minister of Citizenship and Immigration), Canada: Federal Court, 4 December 1998, available at: http://www.refworld.org/cases,CAN_FC,43fecb862.html [accessed 21 January 2018]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

Between :

ROMMEL KUDJOE

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

PINARD, J. :

[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated November 5, 1997, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act by virtue of article 1F(a) of the exclusion clause.

[2] The applicant is a 33 year-old citizen of Ghana who claims refugee status because of membership in a particular social group and imputed political opinion. He alleges a fear of persecution in Ghana at the hands of members of the Bureau of National Investigations (BNI) because he resigned from the organization.

[3] The application is dismissed on the grounds that the applicant has failed to establish that the Board erred in finding that the BNI was primarily directed towards a limited brutal purpose, that the applicant had a personal involvement with the persecutorial acts and that he did not resign at the earliest, safe opportunity.

[4] There was evidence that the BNI was an internal security agency composed of both civilian and military personnel whose role was to establish close surveillance over opponents of the Government. According to Response to Information Request GHA12111 dated December 4, 1992, the BNI had the power to interrogate and detain people whom they suspected of subversion without trial indefinitely, on grounds of national security. The expert witness, Mr. Kwadwo Appiagyei Atua, testified that the BNI had two functions: one was as a national security intelligence agency and the other was as a security force for the Government in power. He testified that human rights abuses would occur with this second function. In that context, given the additional documentary evidence at pages 104, 106 and 108 of the Court's Record, the Board's conclusion that the BNI was "principally directed to a limited brutal purpose" ought not to be disturbed.

[5] It appears that the applicant's duties were related to the first function of the organization, that of a national intelligence agency. However, when the applicant was in the country, he worked in the same office where people were brought in by commandos and beaten. Given the applicant's knowledge of those activities and the fact that he continued to work for the BNI several weeks after gaining this knowledge, the inference that the applicant was not a mere "innocent bystander" is not unreasonable.

[6] In Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315, at pages 316-317, Décary J.A., writing for the Federal Court of Appeal, described the standard of deference applicable to the Board's finding of credibility:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.

[7] Considering that the burden of proof which must be met by the Minister to demonstrate that the Convention does not apply to a given individual is less than the balance of probabilities (see Ramirez v. M.E.I. (1992), 135 N.R. 390; 89 D.L.R. (4th) 173 (F.C.A.); Moreno and Sanchez v. M.E.I. (1993), 159 N.R. 210 (F.C.A.) and Sivakumar v. M.E.I. (1993), 163 N.R. 197 (F.C.A.)), I am satisfied that the Board could reasonably conclude as it did.

[8] Also, considering that the applicant's arguments are essentially based on facts, and given the above decisions of the Federal Court of Appeal in Ramirez, Moreno and Sanchez and Sivakumar1, I am of the view that the matter does not raise any question of general importance for the purpose of certification. Consequently, the application for judicial review is dismissed.

JUDGE

OTTAWA, ONTARIO

December 4, 1998


__________________

1 See also Bazargan c. M.E.I. (1996), 205 N.R. 282.

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