Date: 20110505
Docket: IMM-6009-09
Citation: 2011 FC 521
Ottawa, Ontario, May 5, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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TSEGAY KIFLAY WELDESILASSIE
(A.K.A. TSEGAY FIKLAY WELDESILASSIE)
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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
I. Introduction
[1]
The
Applicant, Mr. Tsegay Kiflay Weldesilassie, is a citizen of Eritrea. In February
2007, he paid a broker to arrange for him to travel by plane to Egypt. In 2008,
the Applicant applied for permanent residence in Canada as a refugee
outside Canada. In a letter
(also referred to as the rejection letter) dated September 21, 2009, a visa
officer (the Officer) with the Canadian Embassy in Cairo, Egypt refused his
application. The Applicant seeks to overturn this decision. For the reasons
which follow, I will allow this application for judicial review.
II. Issues
[2]
The
issues raised by this application are as follows:
1.
Did
the Officer err by failing to have regard to the Applicant’s status as a UNHCR
refugee or by failing to have regard to CIC Guideline OP 5 (discussed below)?
2.
Did
the Officer make erroneous findings related to credibility, by failing to have
regard to the evidence before her or by misunderstanding or misinterpreting the
evidence?
3.
Did
the Officer err by failing to assess all possible grounds of persecution –
specifically, the Applicant’s claim to have left Eritrea as a
military service evader?
4.
Did
the Officer err by failing to give adequate reasons?
5.
Does
the Officer’s decision give rise to a reasonable apprehension of bias?
III. The
Related Files
[3]
This
file is one of four judicial review applications heard together by this Court.
The other three files are Court File Nos. IMM-6000-09 (Henok Aynalem
GHIRMATSION), IMM-6005-09 (Tsegeroman Zenawi KIDANE) and IMM-6010-09 (Selam
Petros WOLDESELLASIE). These four files are representative of a group of almost
40 files, for which judicial review applications have been commenced. The
remaining files have been held in abeyance pending the outcome of these four
files. The common elements of the four files and, as I understand it, of the
entire group of files, are as follows:
·
each
of the claimants is an Eritrean citizen;
·
each
of the Applicants claims to be a member of the Pentecostal Church;
·
the
applications for permanent residence were refused for each; and
·
the
same Officer interviewed each of the claimants and made the decision to refuse
the application for permanent residence.
[4]
While
the individual merits of each of the applications for judicial review are
raised in the separate application records, the four cases were selected as
representative cases because, in the words of the Applicant, “they evince
several distinct errors and patterns of decision making that are common to many
or all of the other cases”.
[5]
I
wish to stress that this decision is addressed to this particular application
by this Applicant. I make no overall finding or order that binds the disposition
of any of the remaining files. Each file presents a unique set of facts and
requires separate review and determination.
[6]
Having
said this, there are issues that are common to the four files. With respect to
those common issues, I present my analysis and conclusions more fully in the
first of the four files – IMM-6000-09. The Reasons for Judgment and Judgment in
that file can be found at Ghirmatsion v. Canada (Minister of
Citizenship and Immigration), 2011 FC 519 [Ghirmatsion]. Where
appropriate, in these Reasons, I will refer the parties and the reader to the
applicable sections of Ghirmatsion, above.
IV. The
Affidavits
[7]
In
Ghirmatsion, above, I reviewed the affidavits that were filed in support
of the judicial review application.
[8]
The
affidavits presented in this case by the Applicant (besides that of the
Applicant himself) are identical. I have the same concerns as were previously
expressed. For the reasons set out at paragraphs 6 to 23 of Ghirmatsion:
·
the
affidavits of Ms. Janet Dench will be given little weight;
·
the
affidavit of Mr. Tewolde Yohanes will be given little weight;
·
Dr.
William Griffin is accepted as an expert in matters related to the Pentecostal
faith and, if required, the evidence and opinions set out in his affidavit will
be treated as expert evidence provided to assist the Court; and
·
the
documents attached to the affidavit of Ms. Natalia Shchepetova were not before the
Officer and will not be considered by this Court.
[9]
To
the extent that the affidavit of the Officer purports to add to or amend her
reasons, as set out in the computer assisted immigration processing system (CAIPS)
and the rejection letter, it will not be considered.
V. Background
of the Applicant
[10]
In
this section of these reasons, I will briefly set out the background of the
Applicant as he has described it. I observe that this is the Applicant’s story,
primarily as set out in the narrative that was part of his application; I make
no findings of its truth or of the merits of the claim.
[11]
The
Applicant, Mr. Tsegay Kiflay Weldesilassie, was born on January 9, 1986 in Ararib, Eritrea.
The Applicant was raised a Catholic but converted to Pentecostalism as a
teenager in 2001. In
May 2002, the government of Eritrea banned minority churches, including Pentecostal churches,
and began a concerted effort to target adherents of such religions and to shut
down their churches.
[12]
In
2004, the Applicant was to report to the Sawa Defence Training Centre to begin
compulsory National Military Service. In October 2004, the Applicant was
arrested for failing to report for service and taken to the Adi Abeto prison.
The Applicant was interrogated and tortured, denied food for three days and
forced to sleep outside without blankets or shoes. The Applicant escaped in
November 2004 and went into hiding. On March 6, 2005, the Applicant was
discovered and rearrested during a worship service. He was taken to another
prison where he was punished severely.
[13]
In
April 2006, the Applicant was transferred by truck to Sawa with 170 other
prisoners. While in traffic, the Applicant and 22 other people were able to
jump from the truck; two prisoners were killed by the guards in the process.
The Applicant had some money which he used to take a taxi to Embagliona. The
Applicant stayed with a relative because he was afraid to return home.
[14]
The
Applicant paid $2000 to smugglers to help him to cross the border illegally
into Sudan.
[15]
In
February 2007, the Applicant was arrested by Sudanese police but was released
on payment of a bribe. The Applicant then paid a broker to arrange for him to
travel by plane to Cairo,
Egypt.
[16]
On
March 23, 2007, the Applicant entered Egypt and, in July 2007, registered as a UNHCR asylum
seeker. On September 15, 2009, the Applicant was recognized as a UNHCR refugee.
VI. The
Interview
[17]
On
September 16, 2009, the Applicant was interviewed by the Officer. The interview
was conducted in English and Tigrinya, with the aid of an interpreter. There is
no transcript of the interview. The Officer took notes on her computer during
the interview and copied the notes into CAIPS, apparently on September 17,
2009.
[18]
Further
descriptions of what went on during the interview are contained in the
affidavits of the Officer (sworn on September 5, 2010) and the Applicant (sworn
on February 23, 2011). Given the time that has passed between the interview and
the affidavits, during which time memories can become dim or distorted, I am
reluctant to rely on these affidavit versions of the details of the interview
held in 2009.
[19]
In
this case, as was also the situation in Ghirmatsion, above, the
Applicant came to the attention of an organization known as Africa and Middle East
Refugee Assistance (AMERA). The role of AMERA is described in more detail in Ghirmatsion,
above, at paragraphs 33 and 34.
[20]
The
Applicant was interviewed by a representative of AMERA on November 1, 2009,
during which interview he provided further details of his interview with the
Officer. The notes are attached to the Applicant’s affidavit. The notes were
made within a short time following the interview with the Officer; they are
more contemporaneous than the comments in the affidavits of either the Officer
or the Applicant. As I concluded in Ghirmatsion, above, and for the same
reasons, I will accept the AMERA notes with considerable reservations that may
go to weight.
VII. The
Decision
[21]
In
her rejection letter dated September 21, 2009, the reasons for rejection were
set out as follows:
After carefully assessing all factors
relative to your application, I am not satisfied that you are a member of any
of the classes prescribed because I am not satisfied that you have been
forthcoming at your interview. I am not satisfied that you were indeed a
follower of the Pentecostal faith. You were unable to provide specific details
concerning the Pentecostal religion. Further, the story of your escape is not
credible. I find it unreasonable that 170 prisoners are guarded by only six
guards. In addition, I am satisfied that you left Eritrea in order to evade national service.
Evading national service obligations does not constitute persecution or
violation of human rights. As I do not find you credible, I am not satisfied
that you meet the country of asylum definition; that you have not been and do
not continue to be seriously and personally affected by massive violation of
your civil rights or that you meet the convention refugee definition of having
a well-founded fear of persecution or the source country definition nor that
you are not inadmissible.
[22]
The
above paragraph contains the reasons for the rejection of the application. As I
understand the decision, the Officer made the following observations or
findings concerning the Applicant:
1.
he
was not forthcoming;
2.
he
was unable to provide “specific details” about the Pentecostal religion;
3.
the
Officer did not believe the Applicant’s story of escape because it is
“unreasonable” that only six guards would be in charge of 170 prisoners; and
4.
he
had left Eritrea to evade
mandatory military service, which – in the Officer’s view – does not constitute
persecution.
[23]
Although
not expressed clearly, it is apparent that the Officer did not believe that the
Applicant had been held in detention or that he was of the Pentecostal faith.
Whether these two key conclusions should stand depends on the reasonableness of
the underlying analysis.
[24]
It
is common ground that the Officer’s reasons are those set out in the decision
letter augmented by the contents of the CAIPS notes on the file. What
additional reasons for the key
findings can be obtained from the CAIPS
notes? The portions of the CAIPS notes reproduced in these reasons are
transcribed as closely to the original version as possible.
1.
Not
forthcoming: Nothing whatsoever is contained in the CAIPS notes to
explain what the Officer meant by “not forthcoming”.
2.
Six
guards:
The CAIPS notes show that the Applicant provided details of his escape which
took place during the transportation of prisoners from one camp to another. As
set out in the notes, the Applicant described the escape as follows: “AROUND
6AM THE CAR SLOWED DOWN, THE PRISONERS STARTING ESCAPING, TWO WERE KILLED, I
WAS [LUCKY] TO ESCAPE”. The Officer then asked: “HOW MANY GUARDS”, to which the
Applicant replied “170 PRISONERS, 6 GUARDS”.
3.
Pentecostal
Faith:
The complete portion of the CAIPS notes dealing with the Applicant’s knowledge
of the Pentecostal faith is as follows:
WILL NOW ASK ABOUT PENTECOSTAL REL.WHAT
REL WERE YOU BEFORE PENTE? CATHOLIC.
WHAT IS THE DIFFERENCE BETWEEN THE TWO
RELS? BAPISTIZED [SIC] OLDER, INSTEAD OF YOUNGER,
DON’T PRAY FOR ANGELS
DON’T USE PHOTOS
WHAT OTHER DIFFERENCES? PRAY IN DIFFERENT
LANGUAGES.
As the
interview was ending, the Officer apparently expressed her concerns:
“I ASKED SPECIFIC QUESTIONS RELATED TO
THE PENTECOSTAL RELIGION AND YOU HAVE NO IDEA WHAT I WAS TALKING ABOUT . . . YOUR
KNOWLEDGE IS VERY BASIC FOR SOMEONE WHO HAS BEEN STUDYING FOR 8 YEARS.”
4.
Draft
Evasion:
In her closing comments in the CAIPS notes, the Officer wrote:
BELIEVE PA WAS EVADING MILITARY SERVICE
SINCE HE DID NOT AGREE TO GO TO SAWA WHEN HE WAS INSTRUCTED TO DO SO IN 2004.
[25]
In
short, the CAIPS notes do not provide us with very much in the way of
additional reasons for the refusal.
VIII. Statutory
Framework
[26]
A
brief outline of the statutory scheme affecting this application is described
in my reasons in Ghirmatsion, above, at paragraphs 41 to 45. The full
text of the relevant statutory provisions is set out in Appendix A to that
those reasons.
[27]
In
summary form, to be eligible for resettlement in Canada as a refugee abroad
under s.139(1), s. 144 and s. 145 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [IRPA Regulations], a person
·
must
meet the Convention refugee definition;
·
must
be outside Canada; and
·
must
meet the requirement that there is no reasonable possibility in a foreseeable
amount of time of any other durable solution such as,
o
voluntary
repatriation or resettlement in their country of nationality or habitual
residence; and
o
resettlement
or an offer of resettlement to another country.
IX. Standard of
Review
[28]
Overall,
the decision of a visa officer is reviewable on a standard of reasonableness.
When reviewing a decision on the standard of reasonableness, the Court is
concerned with "the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law" That is, the decision will stand unless it
does not fall “within
the range of possible, acceptable outcomes which are defensible in respect of
the facts and law” (New Brunswick v Dunsmuir, 2008 SCC 9, [2008] 1 SCR.
190 [Dunsmuir], at para 47).
[29]
However,
the issues of failure to consider a ground for protection, reasonable
apprehension of bias and the adequacy of reasons are reviewable on a standard
of correctness (Ghirmatsion, above, paras 46-53).
X. Failure to
have regard to certain factors or evidence
A. UNHCR
Status
[30]
The
Applicant has been recognized as a Convention refugee by the United Nations High
Commission for Refugees (UNHCR), as evidenced by a “blue card” issued on September
15, 2009, following an interview with the UNHCR. As I understand it, the blue
identity card shows that the bearer has been individually assessed and is
officially acknowledged by this UN body as a refugee. The Applicant submits
that the Officer erred by failing to give any consideration to the UNHCR status
as a factor relevant to her determination. The Officer listed the “blue UNHCR
card” as a document establishing the Applicant’s identity but made no further
reference to this document.
[31]
The
importance of the UNHCR designation is discussed in some detail in Ghirmatsion,
above, and is not repeated here. I restate that Citizenship and Immigration
Canada (CIC) Guideline OP 5, “Overseas Selection and Processing of
Convention Refugees Abroad Class and Members of the Humanitarian-protected
Persons Abroad Classes” (August 13, 2009)(OP 5) teaches the Officer the
importance of the UNHCR refugee recognition. At section 13.3 of OP 5, visa
officers are instructed that a decision by the UNHCR with regard to an
applicant’s refugee status is a factor to consider in determining eligibility
for refugee status.
[32]
Beyond
the bare reference to the UNHCR card as an identity document, there is no further
reference in the CAIPS notes or the decision to the Applicant’s status with the
UNHCR. I recognize that UNHCR status as a refugee is not determinative; the
Officer’s mandate is to assess the Applicant’s credibility and to determine the
merits of his claim under applicable Canadian laws. Nevertheless, OP 5
recognizes the importance and relevance of the UNHCR in the processing of
applications under the Refugee Abroad Class. In my view, the Applicant’s status
as a UNHCR refugee was a personal and relevant consideration.
[33]
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 of the Officer was made without regard to it (Cepeda-Gutierrez
v Canada (The Minister of Citizenship and Immigration) (1998), 157
FTR 35, [1998] FCJ No 1425 (QL)(FCTD), at para 17). This is a central element to the context
of the decision. The Officer, faced with a UNHCR refugee, should have explained
why her assessment did not concur with that of the UNHCR. She 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 that
highly relevant evidence.
[34]
This
error 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, including the
evidence of the UNHCR Refugee status.
B. Failure to
Assess Eligibility as set out in OP 5
[35]
As
noted above, the Officer rejected the claim of the Applicant on the grounds
that she did not find the Applicant to be credible. The Applicant argues that
the Officer failed to carry out an assessment as to whether he met the
definition of a Convention refugee. In particular, the Applicant faults the
Officer for not explicitly following the steps outlined in OP 5, section 13.3.
[36]
This
argument was raised and rejected by me in Ghirmatsion, above. For the
same reasons, I am not persuaded that the Officer erred by failing to follow
the steps set out in OP 5, section 13.3.
[37]
As
in Ghirmatsion, above, the problem with the Applicant’s argument on this
point is that it ignores that the Officer’s decision was based on a negative
credibility finding. Thus, much of the documentary evidence related to the persecution
of Pentecostals in Eritrea, or to the treatment of
those who left Eritrea illegally, was not
relevant. Thus, if the credibility findings are sustainable, I would conclude
that there was no error by the Officer in failing to refer to each and every
step outlined in section 13.3 of OP 5.
XI. Reasonableness
of Credibility Findings
[38]
As
noted above, the Officer’s negative credibility determination contained two
elements; specifically, the Officer did not believe that the Applicant had ever
been detained or that he was of the Pentecostal faith. I will examine each of
these findings.
A. Detention
[39]
The
reason expressed by the Officer for disbelieving the Applicant’s story of his
detention related to his escape from detention in April 2006. According to the
Applicant’s testimony (as recorded in the CAIPS notes) the Applicant escaped
detention during the transportation of 170 prisoners by truck. In response to
the only question asked about his escape, the Applicant told the Officer that
there were about six guards with the trucks. The Officer, in the rejection letter,
stated that, “I find it unreasonable that 170 prisoners are guarded by only six
guards”. That is the only reason provided by the Officer for rejecting the
Applicant’s story of detention. If there were other reasons for her disbelief,
the Officer did not provide the Applicant (or this Court) with such additional
reasons.
[40]
There
was absolutely no documentary evidence before the Officer about the ratio of
prisoners to guards in similar situations. The Officer, when cross-examined on
her affidavit, was questioned about the basis for her determination that a
prisoner-to-guard ratio of 170:6 was not credible or plausible. Her response
was simply that “it just seems a bit low”. She also admitted that she had no
evidence to ground this conclusion (Cross-Examination of AnnMarie McNeil, March 22-23,
2011, Q784, Q788, and Q791).
[41]
In
my view, this implausibility finding is pure speculation or conjecture. Neither
the Officer nor this Court can have any idea of how many guards are needed to
transport 170 prisoners from one camp to another in Eritrea. Was the second camp a
long distance away? How were the guards armed? Were any of the prisoners
shackled or otherwise restrained? A conclusion that the Applicant was never
detained is simply not supportable on the basis of the Officer’s belief that
the ratio “seems a bit low”.
[42]
The
Applicant’s treatment during detention is a key component of his claim. It was
open to the Officer to disbelieve the Applicant’s story. However, the Officer
erred by doing so on the basis of pure conjecture or speculation. The Officer’s
error provides sufficient grounds to overturn her decision.
B. Pentecostal
Faith
[43]
The
other credibility finding was that Officer did not believe that the Applicant
was a follower of the Pentecostal faith. The only reason provided
in the rejection letter was that the Applicant was unable to provide “specific
details concerning the Pentecostal religion”. The CAIPS notes add little to
this:
I ASKED SPECIFIC QUESTIONS RELATED TO THE
PENTECOSTAL RELIGION AND YOU HAVE NO IDEA WHAT I WAS TALKING ABOUT . . . YOUR
KNOWLEDGE IS VERY BASIC FOR SOMEONE WHO HAS BEEN STUDYING FOR 8 YEARS.
[44]
The
CAIPS notes set out a few questions that were asked. As recorded, the Applicant
provided very basic answers to the questions about the difference between his
previous religion, Roman Catholicism, and the Pentecostal faith.
[45]
This
is not a case where the Officer posed questions that did not accord with the
fundamental beliefs of the Pentecostal religion. Moreover, the record shows
that the Officer asked a number of questions and follow-up questions in
an attempt to elicit more information from the Applicant about his conversion
and his beliefs.
[46]
In
general, it is reasonable to expect a claimant who has undertaken a
life-changing religious conversion to have considerable knowledge of his
newly-acquired faith. The CAIPS notes do not reflect that the Applicant had
such knowledge.
[47]
In
the notes from his AMERA interview, the Applicant told the interviewer that,
when asked by the Officer why he converted, he provided a scripture reference.
He also said that the Officer was asking for “one word that most Pentecostal
people use”. When he asked what that word was, the Officer would not tell him.
In cross-examination on her affidavit, the Officer stated that she did not
recall asking about “one word”. I have difficulty accepting the Applicant’s
AMERA interview responses for the truth of what was said at the interview. The
AMERA interview was held after the Applicant was aware of his rejection and
after he had some time to reflect on the answers that he could have given in
the interview. In particular, I doubt that the Applicant provided a specific
scripture reference to the Officer, without the Officer’s contemporaneous notes
including this reference. This gives rise to a doubt about the accuracy of the
Applicant’s memory of his interview with the Officer. In this case, I give
little weight to the AMERA interview notes.
[48]
On a
standard of reasonableness, I cannot conclude that the finding of the Officer
on the Applicant’s adherence to the Pentecostal faith to be outside the range
of possible, acceptable outcomes which are defensible in respect of the facts
and the law (Dunsmuir, above, para 47).
[49]
I
highlight that this is not a finding that the Applicant is not Pentecostal.
Rather, it means that, based on the Applicant’s responses to the questions, the
Officer’s determination was not unreasonable.
C. Conclusion
on Credibility
[50]
Although
I would conclude that the finding with respect to the Applicant’s faith is
supported by the record, as a whole the credibility finding made by the Officer
is unreasonable. This is based on two findings. First, the Officer based her
decision that the Applicant’s detention was not credible on speculation.
Secondly, there is no justification provided for the Officer’s statement that
the Applicant was not “forthcoming”.
XII. Other
Grounds of Persecution
[51]
In
this case, the Officer considered only one ground of persecution. Specifically,
she examined whether the Applicant was at risk on grounds of religious
persecution.
[52]
The
Applicant submits that, as reflected in his narrative, he also fears
persecution on the basis of being a military service evader. He argues that the
Officer erred by not considering this additional grounds of persecution.
Further, the Applicant asserts that his illegal departure from Eritrea would also expose him
to risk if he were to return. Documentary evidence, in his view, strongly
suggests that persons who depart the country illegally, including draft evaders,
are subject to harsh treatment by Eritrean authorities upon their return to Eritrea.
[53]
In the
rejection letter, the Officer states that, “I am satisfied that you left Eritrea in order to evade
national service”. The Officer continued on to state that: “Evading national
service does not constitute persecution or violation of human rights”. In other
words, the Officer did not doubt the Applicant’s claim that, by leaving Eritrea, he had escaped
mandatory military service.
[54]
During
cross-examination on her affidavit, the Officer continued to assert that the
only basis of the Applicant’s claim was religious persecution. However, she
also acknowledged that she found, as a fact, that the Applicant was a draft
evader (Cross-Examination
of AnnMarie McNeil, March 22-23, 2011, Q801). With respect to the potential risk to the
Applicant, the following exchange took
place during
cross-examination (Cross-Examination of AnnMarie McNeil, March 22-23, 2011, Q 819-821):
Q.
Would you agree that objective evidence indicates that draft evaders are at
risk?
A.
I agree.
Q.
Did you believe you had any obligation to consider that, in the context of this
case?
A.
I have no answer for that.
Q.
But in fact, you did not consider that risk, is that correct, in this case?
A.
That’s correct.
[55]
With
the clear acknowledgement by the Officer that the Applicant was a draft evader,
and that documentary evidence put such a claimant at risk, the Officer had a
duty to assess that risk (see Canada (Attorney General) v. Ward, [1993] 2 SCR
689, 20 Imm LR (2d) 85 [Ward] at para 89). Failure to do so was a reviewable error
and sufficient grounds to overturn this decision.
[56]
In
addition, the Officer did not find whether the Applicant had (as he described
in his narrative and oral testimony) or had not left Eritrea illegally. The Officer
could have considered this aspect of the Applicant’s story and concluded that
it was not credible. However, she could not simply ignore it. Once again, I
conclude that the Officer’s failure to consider this part of the Applicant’s
claim was a reviewable error.
[57]
It
would have been open to the Officer to consider the additional ground of
persecution and reject it; however, this is not what the Officer did. The
Officer had no explanation for why she did not assess this risk. The Respondent
would like this Court to accept that the Officer was under no obligation to
consider this additional risk because she did not find the Applicant’s story to
be credible. However, that was not the reason why the Officer did not consider this
additional ground of persecution. She had no explanation. This is a reviewable
error.
XIII. Adequacy of
Reasons
[58]
The
Applicant asserts that the reasons of the Officer are inadequate. For the
reasons set out in Ghirmatsion, above, on the narrow question of whether the
reasons are adequate to meet the Officer’s duty to provide reasons, I would
conclude that the Officer’s reasons are adequate.
XIV. Reasonable Apprehension of Bias
[59]
The
Applicant asserts that the decision of the Officer raises a reasonable apprehension
of bias. For the reasons set out in Ghirmatsion, above, I do not agree
with the Applicant.
XV. Conclusion
A. Summary of
decision
[60]
Returning
to the issues raised near the beginning of these reasons, I would conclude that
the decision as a whole is unreasonable and should be overturned. Specifically,
the Officer made the following reviewable errors:
1.
the
Officer erred by failing to have regard to the Applicant’s status as a UNHCR
refugee;
2.
the
Officer’s finding that the Applicant was not detained in Eritrea was based on
mere speculation; and
3.
the
Officer erred by failing to consider the risk to the Applicant as a military service
evader.
[61]
These
conclusions are sufficient to warrant the intervention of the Court. However,
to complete this summary, my other conclusions are as follows:
1.
the
Officer did not err by failing to refer to or follow explicitly the steps outlined in OP
5, section 13.3;
2.
the Officer’s
finding that the Applicant was not a follower of the Pentecostal faith was reasonably
open to her on the evidence;
3.
the
Officer’s reasons (the CAIPS notes and the rejection letter) satisfy the
Officer’s duty to give reasons;
4.
the
Applicant has not met his burden of demonstrating that the Officer’s decision
gives rise to a reasonable apprehension of bias.
B. Remedies
[62]
The
Applicant seeks a number of remedies that extend beyond a re-determination of
the application by a different decision maker. As stated in the “Applicants’
Further Memorandum of Argument” (a submission common to all four of these
judicial reviews), the Applicant seeks the following:
The
Applicants request that this Court quash the decisions of the visa officer in
each of the four “lead cases”, and remit the matters to a senior decision maker
not based at the Cairo visa post for redetermination of eligibility within 60
days; in the event of a positive eligibility decision the applicants request
further that background checks be completed within a further 30 days and visas
issued within 7 days thereafter.
[63]
I am
prepared to quash the decisions and have the matter remitted to a different
visa officer for re-determination. I am also prepared to order that the
Applicant be able to submit such further material as he feels is necessary to
support his claim. However, I am not prepared to issue the detailed order that
the Applicant would like to see in this case. In respect of the balance of the
request, I refer to my reasons in Ghirmatsion, above, at paragraphs 118 to
122.
C. Costs
[64]
The
Applicant seeks costs in this and the related three files. The Applicant will
have until May 27, 2011 to make further submissions on costs. The submission is
to be a joint submission for all four related files and must not exceed ten
pages in length. Further, the submission should identify the total amount of
costs sought, either for each file or for the four files together. The
Respondent will have until June 9, 2011 to provide reply to the Applicant’s
submissions on costs.
D. Next Steps
[65]
As
noted at the beginning of these Reasons, the Applicant is one of almost forty
claimants in similar circumstances. In Reasons for Judgment and Judgment
released at the same time as this, I have concluded that the judicial review
applications for the other three files heard at the same time as this one will
also be allowed. As I did early in these Reasons, I wish to stress that this
decision is addressed to this particular application by Mr. Tsegay Kiflay
Weldesilassie. I make no finding or order that binds the disposition of any of
the remaining files. Each file presents a unique set of facts and requires
separate review and determination. However, I am hopeful that these reasons will permit
counsel for the Applicant and the Respondent to reach an agreement on the
proper disposition of some or all of the remaining applications in the group.
[66]
At
the close of the hearing, the parties expressed some interest in convening a
conference with me to discuss the next steps. If the parties continue to
believe that such a conference would be helpful, they are invited to make such
a request through the Court Registry.
E. Certified
Question
[67]
Neither
party proposes a question of general importance for certification. I agree that
there is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that :
1.
The
application for judicial review is allowed, the decision of the Officer is
quashed and the matter remitted to a different officer for reconsideration.
2.
The
Applicant will be permitted to provide any additional materials to the
newly-designated visa officer that he believes are relevant to the
determination of his claim.
3.
The
Applicant will have until May 27, 2011 to make further submissions on costs.
The submission is to be a joint submission for all four related files and must
not exceed ten pages in length. Further, the submission should identify the
total amount of costs sought. The Respondent will have until June 9, 2011 to
provide reply to the Applicant’s submissions on costs.
4.
No
question of general importance is certified.
“Judith
A. Snider”
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