[1994] 1 F.C. 30
A-856-92
Yaw Twum Barima (Applicant)
v.
Minister of Employment and Immigration (Respondent)
Indexed as: Barima v. Canada (Minister of Employment and Immigration) (T.D.)
Trial Division, MacKay J.—Toronto, August 11; Ottawa, August 17, 1993.
Citizenship and Immigration — Status in Canada — Convention refugees — Participation in armed opposition by farmers in Ghana to destruction of crops, farms by military in implementation of expropriation without compensation for forest reserve — Whether fear of prosecution for breach of law of general application or of persecution within Convention refugee definition.
The applicant, a citizen of Ghana, had been chairman of the executive committee of a local farmers’ association. Their lands were expropriated, without compensation, for a government forest reserve. They made their opposition known but did not take legal proceedings. When the military moved in to level crops and buildings, some of the villagers, including the applicant, took up arms in defence of their property. Soldiers and villagers were killed and many villagers arrested. Fearing that if apprehended, he would be dealt with by a harsh and biased system of “public tribunals” operating outside the regular legal system, the applicant fled and came to Canada. He claimed Convention refugee status on the grounds of a fear of persecution because of his political opinion and his membership in a social group. The Refugee Division dismissed his claim on the basis that his fear of persecution was in fact a fear of prosecution for having violated an ordinary law of general application and that upon his return to Ghana, there was no more than a mere possibility that he would be persecuted by the authorities for any of the reasons set out in the Convention refugee definition. This was an application for judicial review to set aside that decision.
Held, the application should be dismissed.
On the evidence before the Refugee Division, it was open to it to conclude that the action of the applicant was not indicative or demonstrative of political opinion within the meaning of Convention refugee in subsection 2(1) of the Immigration Act. Nor did the Refugee Division err in finding that any punishment of the applicant would not be related to the grounds of persecution defined in the definition of Convention refugee. Furthermore, it was open to the Refugee Division to conclude that any prosecution or punishment the applicant might face would be in relation to his actions, not in relation to his membership or his position in the farmers’ group.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 51.
Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
CONSIDERED:
Musial v. Minister of Employment and Immigration, [1982] 1 F.C. 290; (1981), 38 N.R. 55 (C.A.).
REFERRED TO:
Re Inzunza and Minister of Employment and Immigration (1979), 103 D.L.R. (3d) 105 (F.C.A.).
AUTHORS CITED
Black’s Law Dictionary, 5th ed., St. Paul, Minn.: West Publishing Co., 1979, “political”.
Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, September 1979.
APPLICATION FOR JUDICIAL REVIEW to set aside the decision of the Refugee Division of the Immigration and Refugee Board that fear of persecution following armed opposition to lawful expropriation did not justify the applicant’s claim to Convention refugee status. Application dismissed.
COUNSEL:
John A. Ligtenberg for applicant.
Sally E. Thomas for respondent.
SOLICITORS:
McIver & McIver, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
MacKay J.: This is an application for judicial review to set aside the decision made March 2, 1992 by John Williams, Q.C. and J. Pearce, members of the Refugee Division of the Immigration and Refugee Board, wherein they determined that the applicant is not a Convention refugee. The application was heard in Toronto on August 11, 1993, when decision was reserved. After further consideration of submissions then made, on the following day an order issued dismissing the application. These are reasons for that order, filed in accord with section 51 of the Federal Court Act, R.S.C., 1985, c. F-7.
The applicant is a citizen of Ghana, born in 1957, who arrived in Canada on January 28, 1991 and claimed Convention refugee status on the grounds of a fear of persecution because of his political opinion and his membership in a social group. He had been chairman of the executive committee of a local farmers’ association. In May 1989 members of the association learned from an announcement by the government that their lands would be expropriated for a government forest reserve, without compensation. They raised their concerns with the local agricultural officer and petitioned against the proposed expropriation, without success. In June 1990, representatives of the association spoke with Commander Obimpe, Head of Agriculture, about the situation but that did not lead to any change, though the farmers were not given a specific date to leave their property. They did not commence legal proceedings to contest the planned expropriation, in the applicant’s view because they had too little time, and government would not have agreed in any case.
On or about November 10, 1990 the farmers’ village was besieged by members of the military, who proceeded to cut down crops and tear down buildings. Some of the villagers, including the applicant, took up arms, or in the case of the applicant, a stick, in defence of their property and in the ensuing battle soldiers and villagers were killed and many villagers arrested. The applicant escaped and went into hiding in Accra. His wife informed him that the military was looking for him. Fearing severe punishment if he were apprehended, because of his position in the farmers’ association and because he believed he would be perceived by government as an enemy of the State, he fled Ghana and came to Canada.
In particular, the applicant feared he would be dealt with by the system of “public tribunals”, established in Ghana to deal with crimes perceived by the government to be serious or to involve security offenses. Documentary evidence, which the panel accepted, indicated that the public tribunals operated outside the regular legal system, that they did not provide a fair trial for accused and they imposed severe penalties, including the death sentence.
In its decision, after reviewing the evidence before it, the panel of the Refugee Division considering his claim concludes:
In order for the claimant to be determined to be a Convention refugee, the evidence must establish that he has good grounds (Adjei v. M.E.I., [1989] 2 F.C. 680 (C.A.)) for fearing persecution in Ghana for one of the reasons set out in the definition of Convention refugee contained in the Immigration Act.
In the panel’s view, the central issue in determining whether the claimant is a Convention refugee is whether his fear is of prosecution for breach of a law of general application, or persecution within the Convention refugee definition.
The claimant claims to have a well-founded fear of persecution by reason of his political opinion and membership in a particular social group.
The particular social group of which the claimant was a member is the Village Co-operative, of which he was its president. The Village Co-operative was not a political organization, but rather a communal group established to represent the collective interests of the farmers of the village. The claimant was not involved in any political organization or activities. No evidence was adduced to suggest or establish that he was perceived by the government as being engaged in any political activities contrary to the interests of the state, and he was not involved in any such activities. He was the innocent victim of a government policy of land expropriation without benefit of compensation.
On the evidence, rather than seeking legal means of redress, the claimant, together with his equally aggrieved farm neighbours, engaged in armed conflict with military government forces who were carrying out a decree to clear their expropriated farmlands.
No evidence was adduced to suggest or establish that the claimant’s breaking of the law was based on any of the grounds set out in the definition of Convention refugee. His sole reason for taking the law into his own hands was in an attempt to prevent the soldiers from levelling his crops and farm buildings, and forcing him off his farm.
Paragraphs 56 and 57 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status provide useful guidance on the issue of prosecution versus persecution.
56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim—or potential victim—of injustice, not a fugitive from justice.
57. The above distinction, may, however, occasionally be obscured. In the first place, a person guilty of a common law offence may be liable to excessive punishment, which may amount to persecution within the meaning of the definition. Moreover, penal prosecution for a reason mentioned in the definition (for example, in respect of “illegal” religious instruction given to a child) may in itself amount to persecution.
The panel members find that the claimant’s illegal actions have made him a fugitive from justice, even though he has been a victim of injustice by having his farm taken from him without being compensated for the loss. However, the injustice is outside any of the five grounds of persecution as set out in the Convention refugee definition.
Paragraph 57 of the Handbook raises the issue of the punishment being excessive for having committed a common law offense. In this regard, the claimant testified that upon his return he would be summarily tried by a Tribunal and sentenced to death.
Counsel, in his submission, opined that the claimant would be persecuted upon his return to Ghana because there is a denial of fair public trial in that country, according to the current country documentation [“Country Reports on Human Rights Practices for 1990”, U.S. Department of State Reports, February 1991]. A separate public tribunal system was set up by the government in 1982 to bypass the regular court system and speed up the judicial process by restricting procedural rights of defendants. Most sensitive cases and those involving security issues and capital punishment are heard by public tribunals. Law 24 empowers public tribunals to impose the death penalty for any crime specified a capital offense by the government, or if the tribunal determines that it is merited in a particular case, even if the crime is not punishable by the death penalty under the regular statutes.
In this particular case, there is no evidence before the panel to establish that any formal charges were ever laid against the claimant, so that it would be speculative for the panel to determine what charge the claimant would be subject to upon his return, the penalty that he might be subjected to if convicted, or if he would even receive a fair public trial, depending on whether or not he would be before a public tribunal, or before a regular court of justice.
However, both the issue of the excessiveness of the penalty in relation to the crime, and the matter of denial of a fair trial, only become matters for consideration by the panel members if it is first determined that there is a nexus between the persecution as alleged by the claimant, and any one of the grounds in the Convention refugee definition. The key question is whether the claimant will suffer an unduly severe sentence, or be denied a fair public trial, because of his having a well-founded fear of persecution because of his race, religion, nationality, membership in a particular social group, or political opinion.
In the opinion of the panel members, the claimant fears prosecution for having violated an ordinary law of general application, and that there is no nexus between his fear of persecution and the stated grounds of persecution as set out in the definition of Convention refugee in the Immigration Act.
The RHO suggests that paragraph 85 of the Handbook may assist the panel in determining whether the claimant’s fear is that of persecution or prosecution. However, paragraph 85 and related paragraphs 84 and 86, only have application if the claimant is, or is perceived by authorities to be a political offender. The panel members are of the opinion that the government of Ghana does not perceive the claimant to be a political offender, but rather a person who has taken the law into his own hands in defying a government decree to surrender his farm property to the government without benefit of compensation. Consequently, the panel members find paragraphs 84 through 86 not to be applicable in this particular case.
On the evidence, the panel members are of the opinion that the claimant’s fear of persecution lacks an objective basis, and that upon his return to Ghana there is no more than a mere possibility that he will be persecuted by the authorities for any of the reasons set out in the Convention refugee definition.
It is urged by the applicant that the panel erred in excluding the conduct of the applicant from the definition of political activity or opinion, that by excluding reference to paragraph 85 in the United Nations Handbook on Procedures and Criteria for Determining Refugee Status the panel erred in failing to give proper consideration to the likelihood of excessive punishment as an indication of persecution, and finally that the panel erred in failing to deal with the applicant’s claim as it concerned membership in a social group.
The applicant relies upon the definition of “political” from Black’s Law Dictionary (5th ed.) to urge that the activity of the applicant, and his association, in forcibly resisting the military action to destroy their crops and their village and to drive them from their lands, was political activity which demonstrated their opposition to the government and its policy of expropriation. It was also urged that the government of Ghana would perceive the activity as political and as demonstrating opposition to the government, the test enunciated by Kelly D.J. in Re Inzunza and Minister of Employment and Immigration (1979), 103 D.L.R. (3d) 105 (F.C.A.), at page 109. However, counsel acknowledges that there was no evidence but only a logical inference concerning the view which the government had of the farmers’ resistance by force to its action to take over the expropriated lands.
In the broad sense of the word “political”, the conduct of the applicant here might be deemed to be political and demonstrative against a particular policy of government, just as the activities of committed environmentalists who seek to disrupt the lawful activities of others in this country could be deemed political in the sense of demonstrating action and commitment against a particular policy of government. As the Supreme Court of Canada indicates in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at page 746, the words “political opinion” as used in the definition of Convention refugee in subsection 2(1) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1)] concern in a general sense “any opinion on any matter in which the machinery of state, government, and policy may be engaged.” Persecution stems from the desire to put down any dissent, viewed as a threat to the persecutors, whether they be government, or a group opposed to government in circumstances where government may not be able to provide protection. The political opinion may not have been expressed outright, it may be perceived from the actions of the claimant, and it need not necessarily conform to the claimant’s true beliefs. In Ward the claimant’s fear of persecution by the execution of a death sentence threatened by his former Irish nationalist confrères for his assisting hostages to escape, was, in the circumstances of that case, considered to be fear of persecution related to political opinion, manifested by his act which was not merely an isolated incident devoid of greater implications.
In this case, the claimant Barima had not expressed any political opinion; the attribution of political opinion arises from the act, in which he engaged with others, of forcibly resisting military action to occupy their farmlands, destroy their houses and dispossess the farmers. Did the Refugee Division err in finding that this activity may have made him a fugitive from justice in Ghana but that it was not related to political opinion, rather it was simply intended to prevent the military from levelling his crops and buildings and forcing him off his farm?
In Musial v. Minister of Employment and Immigration, [1982] 1 F.C. 290 (C.A.), refusal of a claim to Convention refugee status based upon fear of prosecution for evading military service requirements for what were claimed to be political motives was not subject to judicial review for the interpretation of Convention refugee applied by the Immigration Appeal Board could not be said to be an error in law where the Board considered the facts, including the motives claimed by the applicant.
In my view, on the evidence before the Refugee Division in this case, it was open to it to conclude that the action of the applicant was not indicative or demonstrative of political opinion within the meaning of Convention refugee in subsection 2(1) of the Immigration Act. While the result in Ward, supra, was different, the decision of the Refugee Division here is consistent with the principles enunciated by the Supreme Court in that case. Even if, on the evidence, I might have reached a different conclusion, this Court will not intervene by judicial review unless the interpretation of the Act by the Refugee Division, a tribunal with particular expertise in the application of the Act, is unreasonable, and I do not find it so.
For essentially the same reason I am not persuaded that the decision erred in excluding from consideration paragraph 85 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status in assessing whether the fear of the applicant was of persecution related to political opinion because of the possibility of imposition of particularly severe punishment if the applicant returned to Ghana. Paragraph 85 provides in part:
85…. Prosecution for an offence may, depending upon the circumstances, be a pretext for punishing the offender for his political opinions or the expression thereof. Again, there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence. Such excessive or arbitrary punishment will amount to persecution.
The possibility of excessive punishment was not ignored by the panel, for it makes reference to that possibility, and the applicant’s fear of that as persecution, in its reference to paragraph 57 of the United Nations Handbook which also raises the possibility of excessive punishment as persecution, or of penal prosecution related to a ground included in the definition of Convention refugee. But its conclusion is, in the facts of this case, that any punishment of the applicant would not be related to the grounds of persecution defined in the definition of Convention refugee. The Refugee Division found “no nexus between his fear of persecution and the stated grounds of persecution as set out in the definition of Convention refugee in the Immigration Act”. Again, in my view, that application of the Act to the facts of this case cannot be said to be unreasonable, and this Court ought not, therefore, to intervene.
Finally, I do not accept that the Refugee Division made no decision on the applicant’s claim of fearing persecution because of his membership in a social group. The decision does make reference to the particular social group in which the applicant was involved, “the Village Co-operative, of which he was its president”, “a communal group established to represent the collective interests of the farmers of the village”. As earlier noted, in its final four paragraphs the decision states that:
The key question is whether the claimant will suffer an unduly severe sentence, or be denied a fair public trial, because of his having a well-founded fear of persecution because of his race, religion, nationality, membership in a particular social group, or political opinion.
In the opinion of the panel members, the claimant fears prosecution for having violated an ordinary law of general application, and that there is no nexus between his fear of persecution and the stated grounds of persecution as set out in the definition of Convention refugee in the Immigration Act.
…
On the evidence, the panel members are of the opinion that the claimant’s fear of persecution lacks an objective basis, and that upon his return to Ghana there is no more than a mere possibility that he will be persecuted by the authorities for any of the reasons set out in the Convention refugee definition.
In my view that passage clearly deals with all grounds included in the definition, including membership in a social group, and political opinion. In Ward, supra, the meaning of “social group” is discussed, but even conceding that the farmers’ association in this case is such a group, just as the Supreme Court concluded in Ward, it was open to the Refugee Division here to conclude that any prosecution or punishment the applicant might face would be in relation to his actions, not in relation to his membership or his position in the farmers’ group. Again, on the facts of this case I cannot conclude that the Refugee Division was unreasonable in its conclusion that the applicant’s membership in the farmers’ association or co-operative was not a likely reason for any prosecution or punishment he might face if he were now returned to Ghana.
For these reasons, an order issued dismissing this application for judicial review.