Addo v. Canada (Minister of Employment and Immigration)

BETWEEN: SAMUEL ADDO, Appellant - and - THE MINISTER OF EMPLOYMENT AND IMMIGRATION, Respondent

[Indexed as: Addo v. Canada (Minister of Employment and Immigration)]

Federal Court of Appeal

May 7, 1992

KEYWORDS: [*1] IMMIGRATION -- Refugee status -- Requirements -- Appellant was beaten by Ghana police for his part in political demonstration and escaped following warning of impending execution -- Decision that appellant was not refugee, on ground of fleeing prosecution and not persecution, was misunderstanding of claim and was error -- Appellant was declared to be convention refugee(5 pp.)

COUNSEL: Mr. Lorne Waldman for the Appellant

Ms. Marie-Louise Wcislo for the Respondent

SOLICITORS OF RECORD,

Lorne Waldman Toronto, Ontario for the Appellant

Mr. John C. Tait, Q. C Deputy Attorney General of Canada Ottawa, Ontario for the Respondent

JUDGES: Mahoney, Hugessen JJ.A. and Gray D. J.

Mahoney, J. A.

The Convention Refugee Determination Division made no adverse finding as to the credibility of the Appellant or his story. In its decision, the panel stated as follows.

... The claimant, a citizen of Ghana, testified to the following evidence. The claimant is a 29-year-old teacher's assistant from Abetifi Vocational School. When he enroled at the vocational school in 1983, he automatically became a member of the National Union of Ghana Students (NUGS). After he graduated from the vocational school in December 1987, [*2] he stayed on at the school as a teacher's assistant in 1988 he was elected President of NUGS and got the students involved in serious discussions in eying to find solutions to the problems of their community and the country of Ghana, particularly the inability of the ordinary people to freely express themselves about the day-to day matters and events that effect their lives. He also became conscious of the heavy hand of the present regime in using military power to smash any expression of dissent by the people. Because of this consciousness, he decided to organize a demonstration against the district elections to be held December 6,1988. The government did not accept the organizations nomination as the candidates and at a meeting on December 1st, the government introduced their own candidate to the meeting of about 2,000 people. Most of the people were very upset by this government interference and so the claimant and three others organized a demonstration for the early morning of December 6, the day of the election.

About seventy students and four hundred citizens joined in the march on the community centre and it was their intention to interrupt the election and steal the ballot box. As they approached the community centre, three policemen appeared and attacked the claimant, who was in front of the demonstration and carrying a placard which read, "RAWLINGS NO WAY". He was beaten unconscious by the three policemen and the crowd of about five hundred demonstrators ran away. Shortly after 8:00 am., the claimant was in a cell at the police station and was held all day and overnight without food or water. He was not interrogated, nor was he further harmed. The next morning (December 7th) his uncle, who was a police sergeant in a neighbouring village, arrived at about 8:00 am. and spoke to him for about five minutes and told him to take every opportunity to escape as his life was in danger. His evidence in fact was that his uncle had told him, "He had head that they were going to take me to kill me the next day." That such had happened in Ghana was established by documentary evidence generated by the Emigration and Refugee Board and Amnesty International.

It is unnecessary to recount the story of his escape from jail and flight to Canada via Togo, Nigeria and Great Britain.

Moving from its review of the Appellant's evidence to analysis, the panel continued, From a detailed examination of the claimant's testimony, it appeared he had no difficulty with the police, except on the day of the demonstration. He had been at the public meeting on December 1st and had shouted his opposition to the government candidate. He was not arrested or harassed by the police during the five days before the election. It is a small town and his leadership at the school must have been well known. He organized the demonstration with the express purpose of disrupting the election and stealing the ballot box. The panel notes that this act could be viewed by the police as an illegal act. [References to other cases and quotations omitted.]

The panel is of the opinion that the claimant would face consequences equivalent to the crime of disrupting a public election and an attempt to steal a ballot box if he were to return to Ghana. Persecution must be distinguished from punishment for a common law offence.

The panel concluded that what the Appellant feared was prosecution, not persecution.

This is another case in which the basis of the refugee claim has been misunderstood and not addressed. The Appellant's claim was not based on fear of facing a criminal charge; it was based on fear of summary execution. We are all of the view that the appeal should succeed. e.g. Ababio v Canada , 5 Imm. L.R. (2d) 118; Padilla v Canada , 13 Imm. L.R. (2d) 1.

As to remedy, the Respondent argues that the panel's recitation of facts, partly set out above, is not to be taken as findings of fact but merely a summary of the Appellant's evidence, in view of the introductory sentence, The claimant, a citizen of Ghana, testified to the following evidence." It follows, in the Respondent's submission, that, notwithstanding that the panel made no adverse findings of credibility, there are no findings of fact upon which the Court ought to exercise its power under s. 52(c)(i) of the Federal Court Act to give the decision the panel should have given.

We have carefully considered this submission and are all of the opinion that the basis for it is obviated by the panel's ultimate finding. In this case, the claimant performed certain acts which led to his being arrested. This, in the panel's opinion, is prosecution, not persecution.

In finding that he had "performed certain acts which led to his being arrested", the panel clearly accepted as true what the Appellant said he had done and what happened to him up to the point of his arrest. We are satisfied that, notwithstanding the ambiguity of the introductory sentence, what followed was intended by the panel to be its finding of the relevant facts. Had the panel correctly applied the law to those facts, it would have found the Appellant to be a Convention refugee.

The appeal will be allowed and, pursuant to s. 52(c)(i) of the Federal Court Act the Appellant will be declared to be a Convention refugee.