Date: 20081117
Docket: IMM-1877-08
Citation: 2008 FC 1223
Ottawa, Ontario, November 17,
2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
DEREGE
LEMMA WOLDEGABRIEL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2002, c. 27 (the Act), of a decision of a
PRRA officer (the officer), dated March 6, 2008, rejecting the application of
a pre-removal risk assessment (PRRA) by Derege Lemma Woldegabriel (the
Applicant).
I. Issues
[2]
This
application raises the following issues:
a. Did the PRRA
officer err in attaching minimal weight to the declaration of the Applicant’s
father because the father had a vested interest in support of a positive
outcome for his son?
b. Did the PRRA
officer err in failing to consider evidence which suggested that the Applicant
was at risk in Ethiopia as a suspected supporter of an opposition
party?
c. Did the PRRA
officer err in failing to consider evidence which suggested that the Applicant
was at risk in Ethiopia as a young male?
[3]
For
the following reasons, the application for judicial review shall be
dismissed.
II. Factual
Background
[4]
The
Applicant, a 30 year old citizen of Ethiopia and permanent resident
of Canada who was
granted landing on May 7, 1993, was ordered deported for criminality. The
Immigration Appeal Division (IAD) granted the Applicant a stay of his
deportation order on terms and conditions, but the Applicant re-offended,
resulting in the cancellation of his stay by a decision of the IAD on May 23,
2007. As a person under an effective removal order, the Applicant was offered
the possibility of applying for a PRRA.
[5]
The
Applicant’s father, Lemma Woldegabriel, is a former citizen of Ethiopia who was
at one time a member of the Ethiopian Democratic Union (EDU) which stood
in opposition to the ruling party. The Applicant’s father attended numerous
rallies in opposition to the government and was arrested on three separate
occasions by government officials. The father’s three eldest brothers were also
EDU members who were arrested and one of the father’s brothers was tortured by
government officials.
[6]
The
Applicant’s father left his wife and children behind and bribed his way out of Ethiopia in 1981. He
made his way to Kenya, where he applied for asylum and was accepted
as a Convention refugee. The Applicant’s mother was harassed on countless
occasions in relation to her husband’s whereabouts.
[7]
The
Applicant and his siblings were smuggled out of Ethiopia as their
father reasoned that they would never have been issued a passport because of his
activities. The Applicant made his way to Canada in 1993.
[8]
In
Ethiopia, the
authorities took the Applicant’s mother into custody after the departure of her
children. The mother became sick while in custody and later died.
[9]
The
Applicant’s brother, Alemayehu Woldegabriel, was deported from Canada to Ethiopia in 1998. After
landing at the airport, he was kept in custody for a week, where he was beaten.
[10]
During
student protests in Ethiopia in 2001, the Applicant’s uncle and cousin were
arrested in relation to allegedly letting students photocopy anti-government
pamphlets at the uncle’s work premises. The Applicant’s brother Alemayehu and
his cousin were tortured. Following this incident, Alemayehu was required to
report to the police on a weekly basis but he fled to Kenya and
forwarded a claim for asylum, which was awaiting adjudication at the time of
the Applicant’s PRRA hearing.
[11]
The
Applicant submitted a PRRA application on April 9, 2007, where he set out the
following four fears:
a) He would be
targeted by Ethiopian authorities in relation to his father’s membership in the
EDU party. He would be kept in custody on the suspicion that he is or was a
sympathizer or a member of two branches of the EDU, the Coalition for Unity and
Democracy (CUD) (also known as Kinijit) or the United Ethiopian Democratic
Forces (UEDF) and would be tortured and/or killed.
b) He would be
targeted because he is a young Ethiopian male. All young males are at
significant risk of arrest and torture by the government on the suspicion that
they are subversive.
c) The Applicant
would be tortured and/or killed by the Ethiopian authorities for having previously
bribed his way out of Ethiopia.
d) He would be
targeted by the authorities because of his brother Alemayehu’s history with the
authorities and his brother’s failure to report as required. The authorities
would either impute an anti-government agenda to the Applicant, believe him to
be complicit in his brother’s crimes and punish him for this or they would simply
punish him for his brother’s failure to report.
III. Decision
Under Review
[12]
The
officer rejected the application and determined that the Applicant would
not be subject to a risk of persecution, a danger of torture, a risk to life or
a risk of cruel and unusual treatment or punishment if removed to his country
of nationality.
[13]
The
officer attached minimal weight to the declaration by the Applicant’s father
for the following reasons:
a) The father
had a vested interest in support of the positive outcome of his son.
b) The declaration
did not substantiate the allegations set out in the Applicant’s application for
protection, which were speculative and unsupported by objective evidence.
c) The declaration
indicated that he was an EDU party member who held up posters and attended
rallies that opposed the government. The evidence was insufficient to
demonstrate that the Applicant’s father was such a prominent activist or high
profile member within the EDU movement that the authorities would detain or
harm the Applicant based on his ties with his father. The officer relied on a
UK Home Office Operational Guidance note which mentioned that the calming of
the political situation in 2006 meant that claimants who were mid or low
profile activists or associates within the CUD alliance of parties were
unlikely to be at risk of ill treatment amounting to persecution.
[14]
The
evidence did not satisfy the officer that the Applicant would be a person of
interest to the authorities in Ethiopia based on his father’s
membership in the EDU party. The officer also noted that the Applicant’s
father has been absent from Ethiopia for 20 years.
[15]
The
officer then rejected the Applicant’s argument that he is at risk as a young
Ethiopian male as this risk was unsupported by objective documentary evidence. Citing
Kaba v. Canada, 2007 FC 647, 160 A.C.W.S. (3d) 524, the officer stated
that the Applicant did not provide sufficient evidence of a personalized risk
that is distinguishable from that of the general population in Ethiopia.
[16]
The
officer concluded that the Applicant would not be targeted because of his
illegal exit of Ethiopia for the following reasons:
a) The
Applicant had left Ethiopia over 10 years beforehand and the evidence was
insufficient to satisfy the officer that the Applicant would be a person
of interest to the authorities should he return.
b) There
was no evidence to indicate that authorities were aware of the Applicant’s
departure from Ethiopia, nor was there any documentary evidence
introduced regarding the persecution of persons who had left Ethiopia illegally.
[17]
The
officer also rejected the Applicant’s argument that he is at risk because of
his brother’s history at the hands of the authorities because this risk was
unsupported by documentary evidence. The letter submitted by the Applicant’s
brother did not identify the personal circumstances of the Applicant, nor did
it corroborate the risks identified in the PRRA application.
[18]
The
Applicant’s declaration was accorded minimal weight, as it did not substantiate
any of the risks identified in the PRRA application, because the declaration
simply stated that the Applicant’s fears are set out in the declaration of his
father. Moreover, the Applicant’s declaration did not contain any additional
information relating to his personal circumstances nor did it contain any
objective evidence to support the alleged risks outlined in the PRRA
application.
[19]
The
officer commented the country conditions in Ethiopia and
acknowledged that opposition leaders and party members were harassed,
intimidated and in some cases detained prior to and during the 2005 elections.
However, the PRRA process is an assessment of risk on a forward-looking basis.
As such, based on the totality of evidence, the officer found on a
forward-looking basis, there is no more than a mere possibility that the
Applicant would be persecuted in Ethiopia nor is he more likely than not to
face a risk of torture, or risk to life, or a risk of cruel and unusual
treatment or punishment should he return to Ethiopia.
IV. Analysis
A. Standard of Review
[20]
Prior
to the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, a PRRA decision was assessed on a standard of
reasonableness simpliciter (Figurado v. Canada (Solicitor
General),
2005 FC 347, [2005] 4 F.C.R. 387 and Demirovic v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1284, 142 A.C.W.S. (3d) 831). It
was also held that questions of fact were to be reviewed on a standard of
patent unreasonableness, questions of mixed fact and law on a standard of
reasonableness, and questions of law on a standard of correctness (Kim v.
Canada (Minister of Citizenship and Immigration), 2005 FC 437, 272 F.T.R.
62 at paragraph 19).
[21]
Following
Dunsmuir, the review of PRRA decisions should continue to be subject to
deference by the Court and are reviewable on the newly articulated standard of
reasonableness. As a result, this Court will only intervene to review a PRRA
officer’s decision if it does not fall “within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above at paragraph 47). For a decision to be reasonable there must be
justification, transparency and intelligibility within the decision making
process.
1.
Did the PRRA officer err in attaching minimal weight to the declaration
of the Applicant's father because he had a vested interest in support of a
positive outcome for his son?
[22]
The
officer attached little weight to the declaration of the Applicant’s father on
the basis that it was self-serving. The Applicant submits that in doing so, the
officer erred in law. The declaration prepared by the Applicant’s father confirmed
he was a member of the EDU, which ultimately devolved into two different
parties. The Applicant asserted that because of the current government’s
documented treatment of members and sympathizers of the two new opposition
parties (the UEDF and the CDU), there were substantial grounds to believe that
the Applicant would be detained and tortured because of his father’s previous
links to the EDU, which would cause the current government to believe that he
was sympathetic to the political agenda of the opposition parties.
[23]
According
to the Applicant, the officer ignored the part of the father’s declaration
mentioning the Applicant’s brother, who was in a similar situation to that of
the Applicant and who was taken into detention for a week by the Ethiopian
authorities upon his return to that country and beaten, because of a lack of
objective evidence. The Applicant submits it is reasonable to believe that the
Applicant would suffer the same type of treatment his brother endured if he was
returned to Ethiopia.
[24]
The
Respondent asserts that the officer’s reasons for attaching minimal weight to
the declaration were several and well-reasoned. He provided clear reasons for
attaching minimal weight to the declaration of the Applicant’s father which
went well beyond the statement that he had a vested interest in a positive
outcome for his son (Kimbudi v. Canada (Minister of Employment and
Immigration), 40 N.R. 566 (F.C.A.).
[25]
I
find that the officer’s decision to attach minimal weight to the
declaration of the Applicant’s father was reasonable in the circumstances. His
analysis probed beyond the vested interest of the father and considered other
elements such as the father’s role and position within the opposition party and
the fact that the Applicant’s father left Ethiopia over 20
years ago.
2.
Did the PRRA officer err in failing to consider evidence which
suggested that the Applicant was at risk in Ethiopia as a suspected supporter of an
opposition party?
[26]
According
to the Applicant, the Ethiopian authorities had been brutal in their treatment
of political dissent. He noted the government’s propensity to engage in
arbitrary arrest and detention, particularly of those suspected of sympathizing
with or being members of the opposition and he pointed out reports that
detainees were often beaten or mistreated by security officials (Applicant’s
Record, pages 40, 42 and 69). The Applicant states that he would be at risk of
persecution, torture or being subjected to cruel and unusual treatment or
punishment if he were returned to Ethiopia in relation to the
crimes of his brother in the belief that he was complicit.
[27]
The
Applicant contends that the officer ignored the fact that the Applicant’s
brother was tortured and beaten in relation to alleged anti-government
activities and fled Ethiopia in contravention of the requirement to sign in
every week with the police. Given that his mother was repeatedly harassed and
jailed following her husband’s flight from Ethiopia, the
Applicant alleges that there are substantial grounds to believe that the
Ethiopian authorities would arrest and target a family member in relation to
the crimes of his brother or to the political beliefs of his father.
[28]
The
Applicant believes he is at risk upon return to Ethiopia because of
his father’s previous membership in the EDU and that he would be stigmatized by
his father’s membership in an opposition party and targeted as a suspected
member or sympathizer of an opposition party.
[29]
The
officer found the fear of the Applicant to be speculative and unsupported by
the documentary evidence. He found that the Applicant’s father’s profile was
not sufficiently high that the Applicant would be detained and harmed upon
return to Ethiopia. He relied
on a UK Home Office report, which indicated that only higher level activists
were at risk of ill treatment amounting to persecution.
[30]
The
Applicant does not dispute that the officer was entitled to prefer the findings
of the UK report over
those he cited in the U.S. Department of State report. However, the Applicant
cites Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration),
157 F.T.R. 35 (F.C.T.D.) and submits that the officer erred because he
overlooked or misconstrued the evidence that suggests that it was not just high
profile activists, but even those suspected of sympathizing with political
opposition parties, who were at risk of persecution.
[31]
The
Respondent argues the PRRA officer provided a very detailed analysis of the
documentary evidence and assessed the Applicant’s claimed risks according to
that evidence. The officer concluded that the Applicant lacked the profile or
personal circumstances of an individual who, on a forward-looking basis, would
face more than a mere possibility of risk of harm. That conclusion was
reasonably open to the officer.
[32]
According
to the Respondent, the Court has consistently held that it will not reweigh the
evidence that was before the decision-maker because this task belongs to the
officer conducting the assessment and this does not give rise to
judicial review. There is also a presumption that the PRRA officer has
considered all of the evidence before him. The Respondent cites many cases to
illustrate that a decision-maker must not refer to every piece of evidence
before him and the failure to mention a piece of evidence does not mean that it
was not considered.
[33]
As
noted by the Respondent, there is a presumption that the officer has considered
all the evidence before him. The Applicant cites Cepeda-Gutierrez and
submits that the officer failed to consider or omitted to discuss contradictory
evidence in his reasons because this would contradict his findings of fact.
However, on page 4 of his reasons, the officer enumerates various submissions
provided by the Applicant and states: “I have conscientiously reviewed and
considered all of the evidence for the purposes of this assessment.”
[34]
This
Court concludes that the decision-maker has considered the facts of this case
and the relevant evidence before him. He has provided a reasonable conclusion
which does not warrant the Court’s intervention.
3.
Did the PRRA officer err in failing to consider evidence which
suggested that the Applicant was at risk in Ethiopia as a young male?
[35]
The
Applicant fears he would be subject to arbitrary arrest and torture as a young
Ethiopian male because the Ethiopian government has a history of targeting such
individuals. The Applicant’s position is supported by Donald N. Levine, a
professor of sociology with the University of Chicago and a
monitor of Ethiopia’s 2005
election, who chronicled the arrest of thousands of young males and transport
to distant hardship prisons. The Applicant submits that by ignoring and failing
to comment on this information which suggested that he was at risk as a young
male, it is submitted that the officer breached the principles
set out in Cepeda-Gutierrez and erred in law.
[36]
The
Respondent says that after reviewing the documentary evidence, the officer
concluded that the evidence did not support the Applicant’s claim that all
young Ethiopian males are at significant risk of arrest and torture by the
government on suspicion that they are subversive. The fact that the officer did
not mention a portion of a sentence from a journal article does not mean that
the officer erred. As the Court stated in Cupid v. Canada (Minister of
Citizenship and Immigration), 2007 FC 176, 155 A.C.W.S. (3d) 396, at
paragraph 17: “the PRRA Officer did not err by failing to make explicit
reference to every negative comment in the country condition documentation”.
[37]
The
officer correctly determined that the Applicant’s specific allegation was
unsupported by the objective documentary evidence. As previously mentioned, he has
considered the evidence before him and his conclusion was reasonable. The
Court finds no reviewable error in the officer's analysis of the objective
evidence.
[38]
The
parties did not propose any serious question of general importance and in my
view, none arises.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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