Docket: IMM-5859-11
IMM-5861-11
Citation: 2012 FC 371
Ottawa, Ontario, March 29,
2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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ROZINA GEBREHIWOT TEWELDBRHAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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AND BETWEEN:
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Merhawit Okubu TEWELDBRHAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
[1]
These
are reasons for judgment in two applications for judicial review under section
72 of the Immigration and Refugee Protection Act, SC 2001, c 27 of two
decisions of an Immigration Officer finding the applicants not to be members of
the Convention refugee abroad class.
[2]
The
applications were heard together and the facts, issues and arguments presented
in both are very similar. Accordingly, the Court will provide one set of
reasons for the two applications. Unless otherwise specified, the analysis
applies to both applications.
BACKGROUND:
[3]
The
applicant for Court file IMM-5859-11, Mrs. Rozina Gebrehiwot Teweldbrhan (“Mrs.
Rozina”), and the applicant for file IMM-5861-11, Ms. Merhawit Okubu
Teweldbrhan (Ms. Merhawit”), are citizens of Eritrea. They were
born in Addis
Ababa,
Ethiopia of Eritrean parents. The applicants are cousins. In mid-1999, during
the Ethiopian-Eritrean war, their respective families, save for themselves,
were deported to Eritrea.
[4]
Mrs.
Rozina was 17 years old when her family was deported. She claims she was not
deported because she was at school when the deportation took place. She took
refuge in a neighbour’s house as the family house was locked down. She
continued attending school and she worked at a bakery/café for the 6 following
years. In the 2005 Ethiopian election, Mrs. Rozina voted for an opposition
party. The government allegedly became aware of that information and arrested
her. During three weeks of detention, she says she was tortured and beaten by
members of the Ethiopian Security Forces. She was released on condition that
she report back each week. Mrs. Rozina fled to Kenya where she
stayed 2 days in Moyale and 10 days in Nairobi. She says
that she left Nairobi because of
the brutal treatment accorded Eritreans. She arrived in Kampala, Uganda in
July 2005. Mrs.
Rozina made contact with Ms. Merhawit, who was already in Kampala, upon her
arrival. She was also able to contact her family in Eritrea for the
first time since the 1999 deportation.
[5]
Ms.
Merhawit was 14 years old when her family was deported. She managed to escape
deportation as she was in a neighbour’s house when the event took place.
Friends of the family took care of her while she continued to attend school.
She remained in Ethiopia for 6 years. Ms. Merhawit says she
did not vote during the 2005 election because she feared she would be targeted
because of her ethnicity. She fled to Kenya following the
post-election violence. She spent two weeks in Nairobi and then
moved to Kampala for the same
reasons as Mrs.
Rozina. Ms. Merhawit arrived in Kampala first and made contact
with Mrs.
Rozina when the latter arrived.
[6]
In
2006, Mrs.
Rozina met Mr. Hadish Teara Tesfaye, her dependent in the application before
the Immigration Officer, through a mutual friend. Mr. Tesfaye was also an
Eritrean national who fled Ethiopia. He was accused by the
Ethiopian authorities of working with the opposition group Shaba. He was
allegedly detained for five months and eventually released without
documentation. He too fled to Kenya and worked there for 4 years before
travelling to Kampala in 2006. He
had no status in Kenya. Mrs. Rozina and Mr. Tesfaye were married on
18 May 2007. They have two children together.
[7]
The
applicants and Mr. Tesfaye applied for and obtained Convention refugee status
in Uganda. Ms. Merhawit
obtained her refugee card in 2009, and Mrs. Rozina and her husband obtained
theirs in 2011. The applicants are being sponsored to come to Canada as members
of the Refugee Abroad Class by their aunt, who lives in Canada, and by the St.
Patrick parish in Ottawa. They were interviewed by an Immigration
Officer in Kampala on 13 April
2011.
DECISION UNDER REVIEW:
[8]
The
decisions for both applicants were issued on the same day. Letters dismissing
their applications were sent on June 27 2011. The Officer’s reasons are set out
in the letters and her Computer Assisted Immigration Processing System
(“CAIPS”) notes. The Officer found the applicants not credible because the
answers they gave during the interview were vague, contradictory and
implausible. The Officer specifically found implausible the fact that their
entire families had been deported except for the applicants and that they were
both able to live 6 years in Ethiopia after the deportation events.
[9]
The
Officer did not believe Mr. Tesfaye’s story of arrest, transfer and release to
be credible and indicated that his credibility was also affected by the fact
that he did not seek assistance from the UNHCR during his 4 years in Kenya. The Officer also found
that the information provided by the UNHCR contradicted Mr. Tesfaye’s testimony.
[10]
The
Officer stated that Mrs. Rozina was unable to indicate why she was targeted in
2005 and was unable to provide any details of her arrest. The Officer also
indicated that Ms. Merhawit was unable to present any evidence of her
persecution in 2005. The Officer found that the applicants had no well-founded
fear of persecution and that the applicants had not been and were not seriously
and personally affected by civil war, armed conflict or massive violation of
human rights in their country of origin.
[11]
In
the CAIPS notes, the Officer also indicated that the Officer did not believe
the marriage of Mrs. Rozina and Mr. Tesfaye to be genuine. He indicated that Mrs.
Rozina did not identify clearly what were the risks if she were to go back to Addis Ababa. He also speculated that
Ms.
Merhawit and
Mrs. Rozina probably went to Kampala to seek employment and/or resettlement to Canada.
ISSUES:
[12]
Several
issues were raised in the applicants’ written and oral submissions. They may be
reduced to two determinative issues:
a. Did the Officer err by
failing to have due regard to the Ugandan Government’s decision to grant
refugee status to the applicants?
b. Did the Officer err, in
IMM-5859-11, in his credibility assessment by focusing on the credibility of
the husband and on the genuineness of the marriage?
RELEVANT LEGISLATION:
[13]
Sections
145 and 147 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 are relevant to these applications:
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145. A
foreign national is a Convention refugee abroad and a member of the
Convention refugees abroad class if the foreign national has been determined,
outside Canada, by an officer to be a Convention
refugee.
147. A foreign national is a member of the
country of asylum class if they have been determined by an officer to be in
need of resettlement because
(a)
they are outside all of their countries of nationality and habitual
residence; and
(b)
they have been, and continue to be, seriously and personally affected by
civil war, armed conflict or massive violation of human rights in each of
those countries.
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145.
Est un réfugié au sens de la Convention outre-frontières et appartient à
la catégorie des réfugiés au sens de cette convention l’étranger à qui un
agent a reconnu la qualité de réfugié alors qu’il se trouvait hors du Canada.
147.
Appartient
à la catégorie de personnes de pays d’accueil l’étranger considéré par un
agent comme ayant besoin de se réinstaller en raison des circonstances
suivantes :
a) il se trouve hors de tout
pays dont il a la nationalité ou dans lequel il avait sa résidence
habituelle;
b) une guerre civile, un
conflit armé ou une violation massive des droits de la personne dans chacun
des pays en cause ont eu et continuent d’avoir des conséquences graves et
personnelles pour lui.
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STANDARD OF REVIEW:
[14]
The
issues are questions of fact dealing with the consideration and assessment of
evidence by, and the credibility findings of an Immigration Officer. The
standard of review is, therefore, reasonableness: Singh v Canada (Minister
of Citizenship and Immigration), 2007 FC 267 at paras 17-18; and Dunsmuir
v New
Brunswick,
2008 SCC 9 at para 53.
[15]
Reasonableness
is based on the existence of justification, transparency and intelligibility
within the decision-making process and whether the decision falls within a
range of possible,
acceptable outcomes which are defensible in
respect of the facts and law: Dunsmuir, above, at para 47.
Preliminary
issue:
[16]
As a
preliminary matter, the respondent objected to the introduction in evidence of
three affidavits found in each of the two application records. The objections
went to the form of affidavits signed by the two applicants and to the content
of affidavits sworn by an articling student.
[17]
The
Court has reviewed the affidavits and considered the parties’ arguments, and is
satisfied that the applicant’s affidavits are admissible and should be
considered notwithstanding minor irregularities as to their form.
[18]
With
respect to the affidavits sworn by the articling student, the objection is that
the attached documentary exhibits were not before the decision maker at the
time the decisions were made. These exhibits contain information pertaining to
the country conditions in the region and are of a nature commonly considered in
refugee determinations. Counsel for the respondent was candid in acknowledging
that his client was not prejudiced by their introduction. In any event, the
content of the documents had no material effect on these applications. I saw no
reason to strike them from the record.
ANALYSIS:
Did the Officer err by failing to have due
regard to the Ugandan Government’s decision to grant refugee status to the
applicants?
[19]
The
applicants submit that the Officer erred in failing to have due regard to Uganda’s decisions to grant
them refugee status. They claim that the Officer has an obligation to consider
the Republic
of Uganda’s assessment of their
status and to explain why his was contrary.
[20]
Section
13.3 of the Citizenship and Immigration Canada Guidelines OP 5 Overseas
Selection and Processing of Convention Refugees Abroad Class and Members of the
Humanitarian-protected Persons Abroad Classes (hereafter OP 5) reads as follow:
Other
factors determining persecution to consider in determining eligibility for
refugee status:
•
a decision by the UNHCR or a signatory country with regard to an applicant’s
refugee status
[21]
In a recent line of
decisions this Court has interpreted OP 5 s. 13.3 and the principle found in Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), 157 FTR 35, [1998] FCJ
No 1425 as obliging officers to have due regards to the decision of the UNHCR to
grant refugee status: Ghirmatsion v Canada (Minister of Citizenship and
Immigration), 2011 FC 519 at paras 54-59; Weldesilassie v Canada
(Minister of Citizenship and Immigration), 2011 FC 521 at paras 30-34; and Kidane
v Canada (Minister of Citizenship and Immigration), 2011 FC 520 at paras
29-33.
[22]
Notably,
Justice Snider, at paragraphs 58 and 59 of Ghirmatsion, above, held
that:
[58]
The evidence of the
UNHCR designation was so important to the Applicant's case that it can be
inferred from the Officer's failure to mention it in her reasons that the
decision was made without regard to it. This is a central element to the
context of the decision. The Officer, faced with a UNHCR refugee, should have
explained in her assessment why she did not concur with the decision of the
UNHCR. The Officer was not under any obligation to blindly follow the UNHCR
designation; however, she was obliged to have regard to it. Unless a visa
officer explains why a UNHCR designation is not being followed, we have no way
of knowing whether regard was had to this highly relevant evidence.
[59] This error made by the Officer is a
sufficient basis on which to overturn the decision. I wish, however, to repeat
that the UNHCR determination is not determinative; the Officer must still carry
out her own assessment of the evidence before her, including the evidence of
the UNHCR refugee status.
[23]
In
this case, the Officer asked questions about the current refugee status of the
applicants, but stopped when it was established that they had full refugee
status. Considering that the decision of the Republic of Uganda, a signatory to the Convention
Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137, to grant
refugee status to the applicants is highly relevant to the determination of the
applicants’ refugee status by the Officer, his analysis should have not stopped
there.
[24]
Although,
as indicated by Ghirmatsion, above, the Officer was not bound by the Uganda decisions to grant
refugee status, he did have the obligation to consider those decisions and
explain why he arrived at a different conclusion. Without such an explanation,
the Court is left with the impression that the Officer did not consider
evidence that strongly supported the applicants’ cases.
[25]
The
respondent submits that should the Court find that there are gaps in the
Officer’s reasons, the Court could supplement them by reference to the records
in each case: Newfoundland and Labrador Nurses'
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC
62. In this case, such an exercise would be unhelpful as the records contain no
information that could assist the court to conclude that the Officer properly
considered the matter.
[26]
Considering
the above jurisprudence and the OP 5, I find that the Officer erred by failing
to give due regard to the decisions of Uganda to grant refugee status to the applicants. As
indicated by Justice Snider in Ghirmatsion, above, Weldesilassie,
above, and Kidane, above, this error is sufficient on its own to grant
the applications for judicial review.
Did the Officer err, in IMM-5859-11, in his
credibility assessment by focusing on the credibility of the husband and on the
genuineness of the marriage?
[27]
The
applicant Mrs. Rozina submits that the Officer erred by considering irrelevant
factors in making his credibility findings. These irrelevant factors are the
credibility of the Mr. Tesfaye’s narrative and the genuineness of his marriage
to the applicant.
[28]
Credibility
findings should not be based on insignificant or irrelevant facts and must be
rationally related to the applicant's credibility: Owusu-Ansah v Canada
(Minister of Employment and Immigration), (1989) 8 Imm LR (2d) 106 (FCA); and Shaheen
v Canada (Minister of
Citizenship and Immigration), 2001 FCT 670 at paras 13-14.
[29]
The
CAIPS notes indicate that the Officer took a significant amount of time to
determine the credibility of Mr. Tesfaye and the genuineness of his marriage
to the applicant Mrs. Rozina. They also indicate that the Officer used those credibility
findings to draw negative inferences with regards to the Mrs. Rozina’s
credibility. These findings are immaterial to the determination of the refugee
status of Mrs. Rozina. Mr. Tesfaye was not applying for refugee status
and he is linked to Mrs.
Rozina’s
application only because he is her dependent. Whether his story is credible or
not bears no impact on the credibility of the applicant’s narrative.
[30]
Furthermore,
the Officer’s task was not to determine the genuineness of Mrs. Rozina and Mr. Tesfaye’s
marriage. Whether the Officer believed or not that their marriage was genuine
is irrelevant to the determination of Mrs. Rozina’s refugee status. Both
findings are not rationally related to the applicant's credibility. It was
unreasonable of the Officer to rely on those findings to determine that the
applicant was not credible.
[31]
The
Court therefore finds the decisions of the Officer in both IMM-5958-11 and
IMM-5861-11 to be unreasonable for lack of transparency, intelligibility and
justification as the Officer did not have due regard to Uganda’s decision to
grant refugee status to the applicants and, in IMM-5861-11, made irrelevant and
unreasonable credibility findings.
“Richard G. Mosley”
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