Date: 20071004
Docket: IMM-4972-06
Citation: 2007 FC 1000
BETWEEN:
EMEBET MELESSE MANE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of the decision of a Pre-Removal Risk
Assessment (PRRA) Officer (the Officer), dated August 17, 2006, wherein the Officer
denied the applicant’s request for protection.
* * * * * * *
*
[2]
The
applicant is a citizen of Ethiopia and claims to be a
member of the All Amhara People’s Organization (AAPO). The AAPO is now known as
the All Ethiopian Unity Party (AEUP). She claims that she and her husband were
members since 1992. Her husband was imprisoned because of his involvement with
the AEUP and died in prison in September 1994. The applicant’s house was
searched and political documents were seized. She states that she and her two
daughters were abused by the authorities, and that she was interrogated and
detained for approximately one week.
[3]
The
applicant also states that she was involved in demonstrations and other
activities against the Ethiopian government in the United States and Canada, and that
these activities have put her in jeopardy because the Ethiopian government
monitors political activities abroad.
[4]
The
applicant first made a claim for asylum in the United States. Her story
was deemed not credible by American authorities in 1997. She remained in the United
States
for six years before coming to Canada.
[5]
The
applicant made a refugee claim in Canada in 2003. It was also
denied for credibility reasons. Specifically, the Board did not believe that
she participated in the AEUP. The Board also found that there were
inconsistencies between the applicant’s American and Canadian claims.
* * * * * * *
*
[6]
This
matter raises the following issues:
-
Did the
Officer err in its consideration of the applicant’s refugee sur place claim?
-
Did the
Officer err in finding that the applicant should have sought state protection in
Ethiopia?
-
Did the
Officer err in concluding that remaining in the United States for six years
demonstrated that the applicant did not fear returning to Ethiopia?
* * * * * * * *
Refugee sur place
[7]
According
to subsection 113(a) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, (the Act) an Officer need only consider new evidence that
arose after the refugee hearing, or evidence that was not reasonably obtainable
at the time.
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113. Consideration of an
application for protection shall be as follows:
(a) an applicant whose claim to refugee protection has been
rejected may present only new evidence that arose after the rejection or was
not reasonably available, or that the applicant could not reasonably have
been expected in the circumstances to have presented, at the time of the
rejection
|
113. Il est disposé de la demande comme il suit :
a) le demandeur d’asile débouté ne peut présenter que des
éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas
normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable,
dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment
du rejet;
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[8]
An
examination of all of the evidence establishes that the applicant has never
before raised the issue of persecution as a refugee sur place as a
result of her activities in Canada. Therefore, her sur place claim
constitutes a “new claim.” In her Pre-Removal Risk Assessment (PRRA) application,
she equates her risk with that described in her Personal Information Form
(PIF), submitted to the Refugee Protection Division (RPD). However, she adds, “[i]n
addition to this I have been active politically in Canada…” (emphasis
added). In reading both the applicant’s PIF and the decision of the RPD, there
is no evidence that the applicant raised a sur place claim during her
refugee hearing. She had not, at that time, been in Canada long, and it
seems that her activities and demonstrations post-date the time of her refugee
hearing. Thus, the refugee sur place claim constitutes new evidence as
to the applicant’s fear of persecution.
[9]
The
question then becomes whether the applicant’s circumstances make her a refugee sur
place. First, the applicant has provided some evidence relating to
demonstrations she has attended. The Officer does not appear to have been
unreasonable in concluding that the pictures provided by the applicant have
little probative value. In reviewing the pictures, I was not able to identify
the applicant, nor was I able to identify the topic of the protest with enough
specificity to link the protest to elements of the applicant’s claim. If, as
the applicant submits, the pictures were adduced to corroborate her political
activities in Canada, then they
should either identify her as a protester, or identify the subject-matter of
the protest. Neither factor is substantiated by the pictures.
[10]
It
may be a stretch to say that the pictures submitted by the applicant in this
case support the applicant’s evidence. The pictures merely establish that there
were protests in Ottawa pertaining to the mistreatment of Ethiopians by
the Ethiopian government. Thus, the Officer’s conclusion that the pictures have
little probative value was not unreasonable.
[11]
However,
the letter from Bishu Mamo of the All Ethiopia Unity Cultural and Relief
Organization (the Canadian branch of the AEUP, according to the IRB publication
of June 3, 2004 at page 69) affirms the presence of the applicant at protests
in support of persons killed by the government in Addis Ababa. This letter
also attests to the applicant’s regular attendance at meetings of this
organization. The letters from her daughters and the person who posted her bail
suggest the ongoing persecution of her relatives and close associates because
of their membership. These letters corroborate her story.
[12]
Similarly,
the information on a protest from the Andrenet news source states that
the protesters were acting out against violence and atrocities against
Ethiopians by the Ethiopian government arising out of electoral problems. It
explicitly identifies the Coalition for Unity and Democracy (CUD) and the
United Ethiopian Democratic Forces (UEDF) Joint Committees of Ottawa and Toronto (although it
does not identify their roles directly). The AEUP is one party within the CUD
coalition, according to the United States Department of States report (DOS
report).
[13]
Finally,
as the Officer never raised the credibility of the applicant, it is logical to
assume the Officer believed her story. It appears that the Officer at least
believed that the applicant participated in the demonstrations.
[14]
In
sum, it appears that, despite the lack of probative value of the pictures
submitted by the applicant, the applicant has established that she participated
in demonstrations against the Ethiopian government, as a member of the AEUP’s
Canadian branch organization. The final stage is to evaluate the evidence
submitted by the applicant as to whether the Ethiopian government persecutes
members of the AEUP, and also whether the Ethiopian government persecutes those
who protest abroad.
[15]
The
documentary evidence is very clear that the Ethiopian government currently
persecutes minority opposition groups. The DOS report states that “in the
period following the elections, authorities arbitrarily detained, beat, and
killed opposition members, ethnic minorities, NGO workers, and members of the
press.” The DOS report also identifies that members of AEUP/CUD were killed for
political reasons in 2005. Some of these deaths were from armed militia, and
some from police. There were also many reports of disappearances, some due to
the election violence. Detainees were at a risk of torture. The DOS report
notes explicitly that authorities allegedly took no action against police or
militia responsible for beatings and attacks in 2004, including against
opposition AEUP members. People were beaten during demonstrations. It is
unquestionable that the government is endorsing the detention of opposition
parties, including the CUD coalition. The DOS report specifically states that
“authorities took no action against Amhara Region government militia, district
officials, and police who arbitrarily detained AEUP members in April and May
2004…” This evidence is repeated in several other sources, including Amnesty
International and Human Rights Watch.
[16]
The
report from Mr. Gilkes clearly states that a person would be subject to persecution
in Ethiopia for
political actions against the ruling party outside the country. He wrote:
5. In this
connection I would also note that the EPRDF [Ethiopian People’s Revolutionary
Democratic Front] authorities in Addis Ababa
would certainly be aware of AAPO activity in Canada, or the United States. One of the main jobs of
Ethiopian embassy personnel is keep a close watch on opposition activity,
attending all demonstrations and public meetings, noting and recording the
views expressed and by whom. On occasions, as I have observed here in London, demonstrations are certainly
filmed. The information collected is passed on to Addis Ababa. In North America, overall control of
these operations is run by the Ethiopian embassy in Washington. The importance attached to them can be
gauged by the fact that an officer as senior as the deputy head of the Federal Police
force, in charge of internal security, was seconded to Washington to oversee
the process a couple of years ago. He was subsequently sent to London to carry out similar work.
Anybody involved in opposition movements like AAPO can expect to have their
views reported to Addis
Ababa.
[17]
Mr.
Gilkes notes further that “[t]here is no indication that this relates to
position within the organisation, just mere membership. The EPRDF government is
clearly aware of opposition activities abroad and monitors them closely.” Thus,
this letter establishes that the applicant could be at risk of persecution
because of her behaviour in Canada.
[18]
The
letter from Mr. Gilkes was written in 2001. However, as the sur place claim
is a new claim, it would not have been reasonable for the applicant to have
provided it during her refugee claim. Thus, Mr. Gilkes’ evidence falls under
the portion of the subsection 113(a) that allows for the consideration
of evidence that “could not reasonably have been expected in the circumstances to [be]
presented.”
[19]
The
Officer did not address Mr. Gilkes’ letter, nor did the Officer address the
evidence as to state conditions that contradicted the positive elements
highlighted in the decisions. For this reason, the Officer’s decision is
unreasonable. These pieces of evidence are of integral importance to
determining the success of the applicant’s sur place claim and for that
reason it was an error for the Officer to not even mention the contradictory
evidence. As the applicant points out, the case of Cepeda-Gutierrez v.
Canada (M.C.I.) (1998), 157 F.T.R. 35, is widely cited in support of the
proposition that where there is contradictory evidence directly related to the
issues of concern, the Officer must address the evidence. At paragraphs 16 and
17, Justice Evans states:
.
. . 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 analyzed
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": Bains v. Canada (Minister of Employment and
Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's
burden of explanation increases with the relevance of the evidence in question
to the disputed facts. Thus, a blanket statement that the agency has considered
all the evidence will not suffice when the evidence omitted from any discussion
in the reasons appears squarely to contradict the agency's finding of fact. Moreover,
when the agency refers in some detail to evidence supporting its finding, but
is silent on evidence pointing to the opposite conclusion, it may be easier to
infer that the agency overlooked the contradictory evidence when making its
finding of fact.
[20]
In
King v. Canada (M.C.I.), 2005 FC 774 at paragraph 15, Justice
O’Keefe considered it to be an error where a Board member did not consider
contrary evidence within a document it cited, as was the situation in this
case, and where the member failed to cite the evidence provided by the applicant.
Thus, the Officer clearly erred in its consideration of the applicant’s sur
place claim. The Officer is in error even if the appropriate standard of
review is patent unreasonableness.
State protection
[21]
The
Officer’s conclusion with respect to the availability of state protection is
also an error. In Jeremy Hinzman et al. v. The Minister of Citizenship and
Immigration, 2007 FCA 171, the Federal Court of Appeal stated the following
at paragraph 54:
. . . The presumption of state protection
described in Ward [Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689],
therefore, applies equally to cases where an individual claims to fear
persecution by non-state entities and to cases where the state is alleged to be
a persecutor. This is particularly so where the home state is a democratic
country like the United
States. We must
respect the ability of the United
States to
protect the sincerely held beliefs of its citizens. Only where there is clear
and convincing evidence that such protections are unavailable or ineffective
such that state conduct amounts to persecution will this country be able to
extend its refugee protections to the claimants.
[22]
Here,
the agent of persecution is the highest level of the state, the ruling
political elite, and similarly situated persons are clearly, on the documentary
evidence, being persecuted. What is at issue here is the conflict between
political parties, and the dominance by violence of one party over another,
leading to persecution of members of the non-ruling coalitions on account of
their political opinion.
[23]
Furthermore,
the letter from the applicant’s two daughters identifies that the applicant’s
brother is now facing persecution on account of his political affiliations. The
letter from the neighbour demonstrates that she faces persecution on account of
her association with the applicant, even as recently as 2004. Similarly situated
individuals are being persecuted.
[24]
Similarly,
the respondent’s suggestion that the Ethiopian Human Rights Council and other
similar Non-Governmental Organizations (NGO) could protect the applicant from
the state apparatus is not reasonable. Even if these were legitimate recourses
to state protection, which is questionable in itself, reference to these
recourses is usually made when the state is unable to protect, or when the
issue is state complicity, not when the state is the agent of persecution.
Furthermore, the Officer never attempted to say that NGOs and human rights
organizations would offer protection. The respondent unilaterally asserted the
availability of this avenue of recourse in its memorandum of fact and law.
[25]
The
respondent’s submission is even less reasonable in light of the documentary
evidence demonstrating that investigators for the Ethiopian Human Rights
Council have themselves been persecuted on account of political intervention.
The Human Rights Watch report dated June 15, 2005 states that three
investigators for the Ethiopian Human Rights Council were detained while
working to gather information about arrests of CUD supporters. The BBC news and
Amnesty International reported that six people from the Council were arrested.
[26]
The
respondent also cites other organizations that are part of the state apparatus,
but the Officer never explained why these would be legitimate recourses for
protection. For instance, from the documentary evidence, it appears that the
Federal Commissioner of Police plays an integral part in the detention of CUD
supporters.
Subjective fear and
delay leaving the United States
[27]
The
applicant’s argument in this regard is compelling. First of all, the delay
leaving the United
States
is obviously not relevant with respect to the sur place claim.
[28]
Second,
the Officer merely said that the delay in leaving suggested a lack of fear. The
respondent unilaterally stated that the delay demonstrated a lack of fear
because the applicant would have tried to regularize her status if she was
really afraid of being returned. This is the respondent’s reasoning, not that
of the Officer. The statement by the Officer that a delay leaving the United
States
demonstrates a lack of fear is unreasonable. The cases on delay all state that
delays in making a refugee claim can be considered evidence of a lack of fear.
However, there was no delay on the applicant’s part in making a refugee claim,
either upon her arrival in Canada or in the United States. Instead,
the applicant failed to leave the United States to return to Ethiopia after she
failed in her asylum claim, regardless of her status. This, in fact, is more
demonstrative of the presence of fear, if it demonstrates anything at all.
[29]
Third,
the applicant, in her PIF, discussed her time in the United States living
without status. She notes that she was petrified when her claim failed in the United
States
and she feared return to Ethiopia. A church, however,
found her a place to live with a family who was kind. Unfortunately, she later
lived with an unkind family. It was at that time that a priest informed her
that she might be successful in a claim in Canada. She applied
for protection in Canada immediately, again evidencing the presence of a
fear.
[30]
Thus,
with no further explanation as to why her behaviour suggests that she was not in
fear, I am of the view that the Officer’s finding is unreasonable. Again, even
if the standard were patent unreasonableness, the Officer’s finding is still an
error.
* * * * * * *
*
[31]
For
all the above reasons, the application for judicial review is allowed and the
matter is sent back for re-determination by a different Pre-Removal Risk
Assessment Officer.
“Yvon
Pinard”
Ottawa, Ontario
October
4, 2007
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