[1] These reasons follow the hearing on the 21st of June, 2005 of an application for judicial review of a decision of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board wherein the RPD determined the Applicant not to be a Convention refugee or a person otherwise in need of Canada's protection. The decision under review is dated the 17th of June, 2004.
BACKGROUND
[2] The Applicant is from Ethiopia. He was born in 1972 to a father who was Ethiopian but of Eritrean origin and to a mother who was also Ethiopian but not of Eritrean origin. Until the summer of 1998, the Applicant lived throughout his live in Addis Ababa.
[3] During the Ethiopian-Eritrean war of 1998, the Applicant's father disappeared and his business was seized by Ethiopian authorities. In July of 1998, the Applicant alleges that security personnel came looking for him and inquired of his mother about his involvement with the Eritrean People's Liberation Front (the "EPLF"). The Applicant alleges that he had no involvement with the EPLF, nonetheless, by reason of fear that government authorities would not believe him when he alleged that he considered himself to be Ethiopian since he was born in Ethiopia and his mother was Ethiopian, he went into hiding with his only other relative in Ethiopia, an aunt, who lived in Awassa. The Applicant alleges that he remained in hiding for two and a half (2.5) years until he was able to leave Ethiopia.
[4] The Applicant alleges that he has a well founded fear of persecution if he is required to return to Ethiopia because government officials will consider him to be Eritrean, while the Eritrean government will consider him to be Ethiopian. In the result, he fears he will be denied citizenship rights in Ethiopia and detained and deported.
THE DECISION UNDER REVIEW
[5] The RPD determined the Applicant not to be a Convention refugee or a person otherwise in need of Canada's protection on the basis that his long delay in leaving Ethiopia was not consistent with a genuine subjective fear and on the further basis that, at the time of the decision under review, country conditions in Ethiopia were such that there was no basis for a well-founded objective fear on the part of the Applicant. The RPD noted that persons born in Ethiopia or abroad whose father or mother was Ethiopian were Ethiopian nationals. It thus concluded that the Applicant was an Ethiopian national. It further noted that no Ethiopian could be deprived of his or her nationality by governmental authority without the consent of the individual in question.
THE ISSUE ON THIS APPLICATION FOR JUDICIAL REVIEW
[6] Counsel for the Applicant urged that the RPD erred in law in concluding that the Applicant will be recognized as a citizen of Ethiopia and thus has no basis to fear persecution. Counsel noted that the RPD had before it cogent country conditions documentation that spoke eloquently of a different conclusion from that reached by the RPD in respect of persons similarly situated to the Applicant. Counsel relied on the following passage from Cepeda-Gutierrez et al v. Canada (Minister of Citizenship and Immigration) where Justice Evans, then of the Trial Division of the Federal Court of Canada, wrote at paragraphs 16 and 17:
... the reasons given by administrative agencies are not to be read hypercritically by a court ... nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it .... That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
However, the more important the evidence that is not mentioned specifically and analysed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": ... In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts.
[citations omitted]
ANALYSIS
[7] The evidence on which counsel for the Applicant relies consists of two (2) "country conditions" documents, the first, a report from Human Rights Watch dated January, 2003 and entitled "Eritrea & Ethiopia - The Horn of Africa War: Mass Expulsions and the Nationality Issue (June 1998-April 2002)" and a letter from P.S. Gilkes to counsel for the Applicant dated the 22nd of March, 2004.
[8] Both documents relied on by counsel were cited by the RPD in its reasons. That being said, I am satisfied that they were cited very selectively. In one case, the RPD wrote:
Even after the deportations had stopped in June 2000 when the ceasefire was signed between Ethiopia and Eritrea the claimant stayed on for six more months.
The paragraph of the Gilkes letter cited for the proposition that deportations had stopped in June 2002, in fact reads in part:
With the ceasefire signed in June 2000, Ethiopia essentially stopped large-scale deportations ... [emphasis added]
[9] More particularly, the RPD made no reference whatsoever to the following extracts from the conclusions of Mr. Gilkes' 24-page letter:
... Ethiopia has implemented its constitution of 1995 but without most of the required enabling legislation, its 1930 Nationality Law still remains the basis of citizenship requirements. Both countries, however, introduced extensive additional ad hoc arrangements.
Deportations began in 1991 when the de facto Eritrean government removed 150,000 Ethiopians or Eritreans with Ethiopian links. During their 1998-2000 war and after, both sides deported thousands more. ... Both Ethiopia and Eritrea have also detained significant numbers of each other's citizens and instituted regulations restricting their rights.
During the conflict both Ethiopia and Eritrea introduced significant restrictions on those applying for entry into their respective countries. These continue to apply. There are stringent constraints on those applying for Eritrean passports while Ethiopia refuses travel to Ethiopians with any Eritrean links, even as limited a connection as a single grandparent. It might be premature to use the phrase "ethnic cleasning" but the actions of both governments suggest they think, and act, in these terms ... [emphasis added]
[10] While counsel's reliance on Cepeda-Gutierrez, supra, is not directly on point, I am satisfied that it applies by analogy. On the facts of this matter, I conclude that the RPD substantially distorted the thrust of directly applicable country conditions documentation that was before it in arriving at the decision under review. In the circumstances, I am satisfied that the RPD erred in a reviewable manner. That is not to say that the decision that it arrived at might not have been open to it. It is merely to say that its analysis, in the reliance on the documentation before it, was simply not supportable, even against a standard of review of patent unreasonableness..
CONCLUSION
[11] Based on the substance of the foregoing brief analysis, counsel at hearing were advised at the close of hearing that this application for judicial review would be allowed. Neither counsel recommended certification of a serious question of general importance. The Court itself is satisfied that no such question arises. In the result, no question will be certified.
______________________________
J.F.C.
Ottawa, Ontario
June 30, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-6587-04
STYLE OF CAUSE: THOMAS NEGASH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
& IMMIGRATION Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 21, 2005
REASONS FOR ORDER
AND ORDER BY: GIBSON, J.
DATED: June 30, 2005
APPEARANCES BY: Mr. Paul VanderVennen
For the Applicant
Mr. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD:
Mr.Paul VanderVennen
Barrister & Solicitor
Toronto, ON
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20050630
Docket: IMM-6587-04
BETWEEN:
THOMAS NEGASH
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
Tribunal record, page 87.
Tribunal record, page 190.
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