Date: 20080404
Docket: IMM-5365-06
Citation: 2008 FC 448
Ottawa, Ontario, April 4, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SULTAN
MOHAMMED ALI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and THE
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 [Act], for judicial review of a
decision of the Refugee Protection Division of the Immigration and Refugee Board
(Board) dated July 5, 2006, (Decision) wherein the Board determined that the Applicant
was not a Convention refugee under section 96 of the Act, nor a person in need
of protection under section 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 58-year-old citizen of Eritrea. He belongs to the
Jeberti ethnic group, originally a Tigray group in northern Ethiopia, a number of
whom have resettled in Eritrea. The Applicant claims
he left the region in 1975 during the war of independence from Ethiopia and
went to Saudi
Arabia.
He alleges that at that time a number of young people, suspected by the ruling
Dergue regime of being freedom fighters, left for neighbouring countries. He
has not returned to what is now Eritrea since his departure
thirty-one years ago.
[3]
While
in Saudi
Arabia,
the Applicant married and the couple had a daughter and son.
[4]
The
Applicant claims that, while living in Saudi Arabia, he was a supporter
of the Eritrean People’s Liberation Front (EPLF), a rebel group involved in the
action for independence against the Ethiopian government. He supported the EPLF
financially and helped with the recruitment of new members.
[5]
In
1987, the Applicant arrived in the United States with his family. They
applied for asylum against Ethiopia. The Applicant’s claim
was based on his political opinion as a member of the EPLF. The family’s claims
were refused in March 1989. Shortly afterwards, the Applicant allegedly
resigned his membership in the EPLF after discovering that his two uncles and
two brothers were killed in Sudan by the EPLF because they were supporters of
the Eritrean Liberation Front (ELF), another armed opposition group. According
to the Applicant, suspected opposition members were brutally treated by the EPLF,
and Jebertis were singled out as suspects and perceived members of the
opposition. Consequently, many Jebertis, including the Applicant’s relatives,
fled to Ethiopia and other
neighbouring countries.
[6]
Eritrea gained its
independence from Ethiopia in 1991. The EPLF came to power in 1993. The
EPLF is the only authorized political party in Eritrea and has
refused to allow democratic and national elections.
[7]
On
October 6, 2003, the Applicant came to Canada with his daughter and made a
refugee claim. His claim was based on a fear of persecution because of his
political opinions and membership in a particular social group: the Jeberti
ethnic tribe in Eritrea. He also claimed protection under section 97 of
the Act because of his diabetic condition, high blood pressure, heart trouble
and visual impairment, which he feared would put his life at risk because he
would be unable to receive necessary medical treatment in Eritrea.
[8]
The
Applicant’s son later joined the Applicant and his daughter in Canada and also
applied for refugee status. The three claims were heard together on July 7,
2006.
DECISION UNDER REVIEW
[9]
In
its Decision dated August 29, 2006, the Board concluded that the Applicant was
not a Convention refugee or a person in need of protection, because he was not
credible and did not have a well-founded fear of persecution on a Convention
ground in Eritrea.
[10]
The
Board found the Applicant lacked credibility because of a number of omissions
and inconsistencies in his evidence, including the following:
a. At the Port
of Entry (POE), the Applicant omitted to mention any fear of return because of
his political profile or ethnic identity, indicating instead that “the main
thing is my medical condition”;
b. Inconsistent
with his statements at the POE, the Applicant indicated in his Personal
Information Form (PIF) narrative that his fear was based on his Jeberti
ethnicity, a family affiliation with the ELF, and his renunciation of the EPLF;
c. The Applicant
failed to mention events in his PIF that triggered his exit from Ethiopia,
including the killing of his uncle, aunt and cousin in 1975, and his being
informed that military agents were looking for him;
d. The Applicant
omitted to mention that he withdrew his membership in the EPLF in 1989 upon
learning that the EPLF had killed two of his brothers in Sudan;
e. It was
implausible that the Applicant would recollect a number of important details
from his past, such as the killing of his uncles, but not remember the actual
incidents that caused him to leave Ethiopia or to renounce his
membership in the EPLF.
[11]
When
asked why he had failed to mention these details and other fears in his POE
declaration, the Applicant stated that he had forgotten. The Board did not
accept that his forgetfulness was due to his memory having been impaired by
diabetes, pointing out that the medical evidence submitted by the Applicant did
not state that memory impairment necessarily follows in all cases of diabetes.
Further, the Applicant submitted no clinical evidence supporting his own
condition.
[12]
The
Applicant’s failure to provide a satisfactory explanation for the omissions,
coupled with the significance of the fears and events in his claim, led the Board
to draw a negative inference from the Applicant’s failure to mention them. The
Board concluded that the Applicant had not established a subjective fear of
returning to Eritrea.
[13]
With
respect to the well-foundedness of the claim, the Board did not believe that
the Applicant had a profile that would place him at risk if he returned to Eritrea. The Board
noted as follows:
a. The Applicant
testified that he had not been in contact with anyone associated with the EPLF
since 1992 and had not received any information that the EPLF was looking for
him or was interested in him;
b. The Applicant
sought assistance from the government of Eritrea by requesting an Eritrean
identification card in 1992 from the EPLF Embassy in Washington after he had
withdrawn his membership in the EPLF. The cooperation of the EPLF provisional
government, evidenced by their sending him an Eritrean identity card after they
knew he had withdrawn his membership and criticized the EPLF, was inconsistent
with the Applicant’s fear that the government was seeking to harm him;
c. There was no
documentary evidence to show that a person of the Applicant’s particular
profile would come to the attention of the authorities in Eritrea;
d. Although
there was evidence that deportees from Malta had been
arrested and badly treated by the government of Eritrea in 2002, there was no
evidence of any returnee from the United States or Canada being so
treated;
e. There was
insufficient evidence to suggest that the Jeberti people face persecution in Eritrea.
[14]
The
Board also determined that the Applicant could not receive protection under
section 97 of the Act because inadequate medical care is not a basis of such protection.
[15]
The
Board refused the son’s refugee application but granted the Applicant’s
daughter refugee status after finding that, upon returning to Eritrea, she would
face compulsory conscription into the military in Eritrea and there
was a serious possibility that she would be sexually abused by male members of
the military.
[16]
The
Applicant and his son were granted leave for judicial review of the Board’s Decision
refusing their claims for refugee status. The son’s application for judicial
review, however, was discontinued.
ISSUES
[17]
The
Applicant does not challenge the adverse credibility findings made by the
Board. The sole issue that he raises on this judicial review is as follows:
1. Did the Board
err by ignoring or misapprehending the evidence?
ARGUMENTS
[18]
The
Applicant submits that the Board erred by failing to make reference to all the
documentary evidence in its reasons and by ignoring evidence from Amnesty
International that failed asylum claimants are at risk. The Board had evidence
before it that deportees and failed asylum claimants, people who fit the
Applicant’s particular profile, were persecuted upon arrival in Eritrea, but the
Applicant says that the Board ignored this evidence when it came to its Decision.
[19]
The
Applicant further argues that the Board misapprehended the evidence regarding
returnees to Eritrea by failing
to understand the difference between the situation of voluntary returnees from
refugee camps and that of deportees returning after failed asylum claims in the
West.
[20]
The
Respondent argues that the Applicant has failed to demonstrate that the Board
committed a reviewable error. According to the Respondent, the Applicant has
not established that the Board ignored evidence that proved the Applicant would
personally be at risk if returned to Eritrea. The Respondent further
submits that the Applicant has failed to establish that his profile is similar
to those who were detained upon their return from Malta. The
evidence showed that persons who may be in danger upon returning to Eritrea are
those who left Eritrea to avoid military service. The Applicant,
because of his age, is not required to enter the military.
[21]
The
Respondent further argues that there is no blanket persecution of those who
return to Eritrea after living
abroad. The Respondent notes that, although the Board recognized that the human
rights situation in Eritrea is very poor and some returnees are mistreated, the
Board also found that there was no documentary evidence that a person with the
Applicant’s profile would come to the attention of the authorities; nor was
there any evidence that the government of Eritrea would have any interest in
the Applicant. The Respondent submits that Eritrea’s poor human
rights record is not sufficient to establish a specific and individualized fear
in this case without proof linking the general documentary evidence to the
Applicant’s specific circumstances. Thus, says the Respondent, the Applicant is
not entitled to international protection.
REASONS
[22]
Recently, in Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir],
the Supreme Court of Canada reconsidered the standard of review analysis
applicable to administrative decisions and referred to two standards:
reasonableness and correctness. In determining the appropriate standard of
review in a given case, the Supreme Court provided the following guidance:
[…] questions
of fact, discretion and policy as well as questions where the legal issues
cannot be easily separated from the factual issues generally attract a standard
of reasonableness while many legal issues attract a standard of correctness.
Some legal issues, however, attract the more deferential standard of
reasonableness (Dunsmuir at para. 51).
The Court
also noted that the standard of review analysis is composed of two steps:
First, courts
ascertain whether the jurisprudence has already determined in a satisfactory
manner the degree of defence to be accorded with regard to a particular
category of question. Second, where the first inquiry proves unfruitful,
courts must proceed to an analysis of the factors making it possible to
identify the proper standard of review (Dunsmuir at para. 62).
[23]
In light of the Supreme Court’s decision in Dunsmuir, I
conclude that the applicable standard of review in this case is
reasonableness. When reviewing a decision on the standard of
reasonableness, the analysis will be 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” (Dunsmuir at para. 47). I note, however, that regardless
of the standard of review analysis applied in the present case, either pre-Dunsmuir
patent unreasonableness or post-Dunsmuir reasonableness, my findings as
set out below would be the same.
[24]
It
is well established that the Board need not cite in its reasons all of the
documentary evidence before it. There is a presumption that all documentary
evidence has been weighed and considered unless the contrary is shown (Florea
v. Canada (Minister of
Citizenship and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL)).
Further, as part of its role and expertise, the Board may select the evidence
it prefers (Ganiyu-Gina v. Canada (Minister of Citizenship and Immigration),
[1995] F.C.J. No. 506 at para. 2 (F.C.T.D.) (QL)). However, as stated in Tahmoursati
v. Minister of Citizenship and Immigration, 2005 FC 1278, [2005] F.C.J. No.
1558 (F.C.T.D.) (QL) at paragraph 37:
…the Board may make a reviewable error if it fails to mention
and analyse important evidence that points away from its own conclusions and
the Court infers from this silence that the Board has made erroneous findings
without regard to the evidence before it. In the present case, the corroborate
evidence pointed to a different conclusion from that reached by the Board and,
although the Board is not required to refer to every piece of evidence that is
contrary to the Board's finding, the importance of the evidence put forward by
the Applicant required that it be addressed. Put in another way, the nature of
the evidence required the Board to go beyond a blanket statement that all of
the evidence had been considered.
[25]
Further,
as Justice Shore stated
in J.O. v. Canada (Minister of
Citizenship and Immigration) (2004), 41 Imm.
L.R. (3d) 305, 2004
FC 1189 (F.C.T.D.) at paragraphs 26-27:
26 The
Court deems that the Board did ignore documentary evidence before it. It is
true, as the Respondent states, that there is a presumption that the Board has
taken all the documentary evidence into consideration. Where, however, the
documentary evidence is directly relevant to the Board's findings, but the
Board does not discuss the documentary evidence, a conclusion may be drawn that
the Board ignored the evidence. In the case at bar, the Board identified
specific forms of discrimination and stated that there was no evidence that
these forms of discrimination occurred in Nigeria.
However, the documentary evidence did cite examples of specific forms of
discrimination, including those identified by the Board.
27
It is for the Board to determine how the documentation applies to the
Applicant; however, to do so, the Board is obliged to relate how it arrives at its
conclusions in demonstrating that it has considered the evidence as a whole,
and not in a manner that would appear to serve a specific orientation in the
circumstances, without having taken all diverse elements of the evidence into
consideration.
[26]
In
the present case, the Board had the following to say about the lack of
documentary evidence at page 13 of its Decision:
[The Applicant] presented no documentary
evidence that a person of his particular profile would come to the attention of
the authorities. The panel concedes that Eritrea has a very poor human rights
record, but there is evidence that returnees are not mistreated on their return
to Eritrea, and are provided assistance
from organizations such as the UNHCR in their resettlement efforts. While the
panel has also considered that many deportees from Malta were arrested and badly treated by the
Eritrean government in 2002, there is no such evidence of any returnee from the
United States or Canada being so treated.
[27]
In
my opinion, the Board erred in two respects. First, there was sufficient
evidence that a person of the Applicant’s particular profile would come to the
attention of the authorities upon returning to Eritrea. The 2004
report from Amnesty International entitled “Eritrea: ‘You have no right to ask’
– Government resists scrutiny on human rights” (AI Index AFR 64/003/2004) indicated
that failed asylum claimants suspected of opposing the government are at risk
of arbitrary detention, torture and ill-treatment, and possible extra-judicial
execution. In particular, that report listed persons “known or suspected to
have criticised the government or the President” and “anyone suspected of
disloyalty to the government” as being at risk. It further stated that “even
the act of applying for asylum abroad would be regarded as evidence of
disloyalty and reason to detain and torture a person returned to Eritrea after
rejection of asylum.” Upon returning to Eritrea under the normal deportation
procedures, the authorities would immediately be alerted to the Applicant’s
presence and his failed attempt to seek refuge in Canada. The
documentary evidence suggests that this, in and of itself, would be sufficient
to lead to a suspicion on the part of authorities that the Applicant had been
disloyal to the EPLF.
[28]
Second,
in support of its conclusion, the Board relied on an IRINnews report from May 2002
which stated that Eritrean refugees living in refugee camps in Sudan had
returned to Eritrea with the
help of the United Nations. The Board then recognized that deportees from Malta had been
arrested and badly treated in 2002, but found that there was no such evidence
of returnees from the United States or Canada being so
treated.
[29]
In
my view, the Board has used the documentary evidence selectively, as there was
also evidence that the United Nations suspended the voluntary repatriation of
refugees in Sudan in October
2002 for security reasons. Further, although the Board recognized that failed
claimants from Malta had been arrested and mistreated, there was evidence of
deportees from Libya having been imprisoned and held without charge in July
2004 and reportedly freed in May 2005, as well as evidence that one person
returning from the United States on an Eritrean passport had been arrested in
connection with the detention of her husband, a member of the dissident “Group
of 15.” Lastly, as noted in the Country of Origin Information Report of April
2006, the UNHCR reported in January 2004 that “deportees from Malta to Eritrea
may have faced persecution owing to an imputed political opinion, conscientious
objection or other reasons” and added that “[i]t cannot be excluded that future
deportees would face a similar risk.” In April 2005, the UNHCR affirmed its
earlier recommendation “that states refrain from all forced returns of rejected
asylum seekers to Eritrea and grant them complementary forms of
protection instead, until further notice.” Also, although the Board considered
the voluntary repatriation of refugees in Sudan as evidence in support of its
finding that there was no objective fear of persecution, the Board rejected or
ignored the evidence of the detention of a person returning voluntarily from
the United States stating that, unlike the deportees from Malta who were
arrested and badly treated by the Eritrean government, “there was no such
evidence of any returnee from the United States or Canada being so treated.”
[30]
Although
the Board is entitled to select the evidence it prefers, the Board committed a
reviewable error by failing to at least address this important and relevant
information that seemingly pointed to a different conclusion than the one
reached by the Board. The Board’s failure to address this evidence in its
analysis leads me to the conclusion that the Board ignored documentary evidence
before it.
[31]
There
was evidence before the Board that, among Eritreans returning from abroad,
those at risk included anyone known or suspected of having criticised the
government or the President and anyone suspected of disloyalty to the
government, and that even the act of applying for asylum abroad would be
regarded as evidence of disloyalty and reason to detain and torture a person
who had been denied asylum.
[32]
The
risks faced by the Applicant were the risks faced by voluntary asylum seekers
and not the risks faced by voluntary returnees, so that the evidence cited by
the Board was not relevant to the risks identified by the Applicant.
[33]
Those
aspects of the evidence that supported the Applicant’s case and the risks that
he identified were faced by failed asylum seekers should have been addressed by
the Board. As Justice Evans pointed out in Cepeda-Gutierrez v. Canada
(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, [1998]
F.C.J. No. 1425 (QL), at paragraphs 15 and 17:
15 The Court may infer that the administrative
agency under review made the erroneous finding of fact "without regard to
the evidence" from the agency's failure to mention in its reasons some
evidence before it that was relevant to the finding, and pointed to a different
conclusion from that reached by the agency….
[…]
17 …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
[34]
For
these reasons, I conclude that the Board, in making its Decision, based its
decision on one or more erroneous findings of fact that it made without regard
to the material before it. The application for judicial review is allowed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The decision of the Board is set aside and the matter is
returned for reconsideration by a differently constituted Board.
2.
There
is no issue for certification.
“James
Russell”
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