Date: 20120518
Docket: IMM-6918-11
Citation: 2012 FC 613
Ottawa, Ontario, May 18,
2012
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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GENET DEMISSIE TESEMA
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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 AND
JUDGMENT
[1]
Mrs.
Genet Demissie Tesema (the “Applicant”) seeks judicial review of a decision
made by the Immigration and Refugee Board, Refugee Protection Division (the
“Board”). In that decision, dated September 1, 2011, the Board determined that
the Applicant is not a Convention refugee nor a person in need of protection
pursuant to section 96 and subsection 97(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”), respectively.
[2]
The
Applicant came to Canada in February 2010 to visit her pregnant
daughter. She entered Canada on a visitor’s visa. In April of 2010, she
received a call from another daughter in Ethiopia, advising
that her husband had been imprisoned and her son had gone missing.
[3]
The
Applicant applied for refugee protection on April 8, 2010. At the time of her
hearing before the Board, her son had been located in South Africa, but her
husband was still imprisoned and had not been charged or appeared before a
Court since his detention began.
[4]
The
Applicant is a citizen of Ethiopia. She based her claim
for protection upon a fear of persecution for her political opinion and
membership in a particular social group, specifically her membership in the
Kinijit political party in Ethiopia, support for the Unity
for Democracy and Justice (“UDJ”) political party in Ethiopia, and membership
in the Unity for Human Rights and Democracy (“UHRD”) group in Canada. The Kinijit
party, the UDJ party, and the UHRD are opposed to the governing party in Ethiopia, that is the
Ethiopian People's Revolutionary Democratic Front (“EPRDF”).
[5]
The
Applicant joined the UHRD group in Canada on May 21, 2010. It is
described as an action group for Ethiopian refugees to express opposition
against the current government in Ethiopia.
[6]
The
Board rejected the Applicant’s claim because it was not persuaded that she had
been involved in any significant political activities or had significant
problems with Ethiopian authorities as a result of her limited political
involvement. It noted that there was no evidence that her husband had been
arrested for political activities or beliefs and that her children have not
experienced problems in Ethiopia. It concluded that the
Applicant had no strong political convictions and that she had become involved
with the UHRD in Canada in order to strengthen her claim.
[7]
The
Applicant challenges the Board’s decision on several grounds. First, she argues
that the Board erred by failing to give her an opportunity to respond to
concerns about her credibility. She casts this argument in terms of procedural
fairness, reviewable on the standard of correctness. She further submits that
the Board made unreasonable findings with respect to her claims that she had
been detained by the authorities in Ethiopia on two occasions.
[8]
The
Applicant challenges the Board’s finding that she had only limited involvement
with Ethiopian politics in Ethiopia and that she had joined
the UHRD after arriving in Canada in order to bolster her claim. In this
regard, the Applicant submits that the Board failed to provide her with an
opportunity to respond to concerns about her political beliefs and involvement
in Ethiopia. She also
submits that the Board was relying on specialised knowledge to diminish the
importance of her membership in the UHRD, that the specialised knowledge should
have been disclosed and that she should have been given an opportunity to
respond to it. Failure to do so amounts to a breach of procedural fairness,
reviewable on the standard of correctness.
[9]
Further,
the Applicant argues that the Board’s reasons are insufficient and that this
issue is reviewable on the standard of correctness.
[10]
As
well the Applicant submits that the Board erred by failing to conduct an
analysis pursuant to subsection 97(1) of the Act, to determine whether she was
a person in need of protection within the scope of that provision.
[11]
The
Minister of Citizenship and Immigration (the “Respondent”) argues that the
Applicant had misled the Court as to the nature of her involvement with the
Kinijit in Ethiopia. The
Respondent notes that in her affidavit filed in support of the application for
leave and judicial review, the Applicant described herself as a “member” of
that party in 2005 and that she and her husband were only “supporters” of the
UDJ party, the successor to the Kinijit party. The Respondent says this
evidence contradicts the Applicant’s statements in the Personal Information
Form (“PIF”) and her testimony before the Board.
[12]
In
both her PIF and her written refugee application, the Applicant described
herself as a member of the UDJ. She repeated that description at the expedited
hearing before a refugee protection officer (“RPO”). However, at the full
hearing of her claim before the Board, the Applicant described herself as “supporter”
of the UDJ. The Respondent submits that on the basis of this
mischaracterization of her status, repeated in the Reply memorandum filed by
her, that the Applicant misled the Court and that this application for judicial
review should be dismissed on that basis alone.
[13]
The
first matter to be addressed is the applicable standard of review. The standard
of review for questions of procedural fairness is correctness; see the decision
in Canada (Minister of
Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 at
para 43. The issue of sufficiency of reasons is subsumed in the issue
concerning the reasonableness of those reasons and will be reviewed upon the
standard of reasonableness per se; see the decision in Newfoundland and
Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
[2011] 3 S.C.R. 708 [“Newfoundland and Labrador Nurses’ Union”]. I will
first address the alleged issues of procedural fairness, that is the failure of
the Board to allow the Applicant the opportunity to address its concerns as to
her credibility.
[14]
The
Applicant’s submissions concerning the alleged failure to allow her to respond
to concerns about credibility arise from the Board’s findings that she had
failed to present credible evidence about her political opinion and whether
that political opinion would support a claim for protection pursuant to section
96 of the Act. Her arguments in this regard are not so much an allegation of
breach of procedural fairness but an attack upon the Board’s alleged failure to
give her the opportunity to address its credibility concerns.
[15]
I
see no merit in the Applicant’s arguments on this issue. It is trite law that
an Applicant, seeking protection as either a Convention refugee or as a person
in need of protection, carries the burden of establishing his or her case; see
the decision in Kovacs v. Canada (Minister of Citizenship and Immigration),
[2006] 2 F.C.R. 455 at para 33.
[16]
In
the present case, the Applicant had the opportunity to be heard. She had the
opportunity to present her case. There was no obligation upon the Board to
point out to her, in the course of the hearing, that it had concerns about her
credibility. This argument must fail.
[17]
The
Applicant also argues that the Board breached procedural fairness by failing to
provide adequate reasons. This argument cannot succeed. In its decision in Newfoundland
and Labrador Nurses’
Union,
above at para. 22, the Supreme Court of Canada ruled that as long as reasons
are provided, there is no basis for arguing insufficiency of reasons.
[18]
Turning
now to the remaining arguments raised by the Applicant, it appears that she is
challenging the Board’s findings that she was not at risk on the basis of her
political opinion and affiliation. The Board did not find the Applicant
to be credible. The Board’s findings on credibility are reviewable on the
standard of reasonableness; see Aguebor v. Canada (Minister of Employment
and Immigration) (1993), 160 N.R. 315 (FCA) at para 4 and Wu v. Canada (Minister of
Citizenship and Immigration), 2009 FC 929 at para 17.
[19]
Upon
reviewing the evidence in the certified tribunal record, including the
Applicant’s oral evidence before the Board, I am not persuaded that the Board’s
finding on credibility is unreasonable. The Applicant had the benefit of an
expedited hearing before the RPO. She was advised that her credibility
was an issue when her claim was referred to a full hearing before the Board. It
was up to the Applicant to present the evidence necessary to establish her
claim. The Board found that the Applicant’s evidence with respect to her
political affiliation was not believable. Having regard to the evidence in the
certified tribunal record, I am not persuaded that the Board committed any
reviewable error in reaching this conclusion.
[20]
Finally,
the Applicant argues that the Board committed a reviewable error by failing to
conduct an independent analysis of her claim pursuant to subsection 97(1) of
the Act. I agree with the submissions made by the Respondent, that the Board
was not required to conduct such a separate analysis when the same evidence was
used for the credibility assessment with respect to both section 96 and
subsection 97(1); see the decision in Soleimanian v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1660 at paras 22 and 24.
[21]
In
the result, this application for judicial review will be dismissed. The
Applicant has not shown that the Board breached procedural fairness or
otherwise committed a reviewable error. However, notwithstanding dismissal of
this application, it is necessary for me to comment on the bad faith argument
raised by the Respondent.
[22]
In
the course of the hearing, I advised counsel that I did not think the
Respondent had shown that the Applicant or her counsel had misled this Court,
either in the materials filed in the application for leave and judicial review
or in the Reply memorandum filed by the Applicant. In my opinion, the argument
advanced by counsel for the Respondent on this point was highly technical and
unfounded.
[23]
In
the result, the application for judicial review is dismissed, no question for
certification arising.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed, no question for certification arising.
“E.
Heneghan”
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