Date: 20080526
Docket: IMM-4048-07
Citation: 2008 FC 667
Ottawa, Ontario, May 26,
2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
AYALNEW BERHANU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and
background
[1]
Ayalnew
Berhanu, a citizen of Ethiopia of Amhara ethnicity, claims to have a
well-founded fear of persecution by the Ethiopian government based on his
political opinion as a member and supporter of All Amhara People’s Organization
(AAPO) an opposition party which was formed in 1991 and also because of his
ethnicity. He claims that on January 23, 1992, security forces of the Ethiopian
People Revolutionary Democratic Front (EPRDF) stormed into his office
and searched it at gunpoint. He was warned not to continue his activities with
the AAPO. On March 10, 1992, his office and home were searched and papers taken
away. He claims he went into hiding. He left for the United States on March 29,
1992 on a student visa in order to enrol into a college but never did. He
applied for asylum in the United States which was denied. While
in that country, he claims to have participated in activities for the Coalition
for Unity and Democracy (the CUD), a successor to AAPO. These activities, he
says, have brought him to the attention of the Ethiopian authorities.
[2]
He
remained in the United States illegally until early 2006 when he came to
Canada to seek the
protection of this country. In Canada, he continued to publicly oppose the
Ethiopian regime. He was denied asylum by the September 17, 2007 decision of
the Refugee Protection Division (the tribunal), a decision which he challenges
in this judicial review application.
The tribunal’s decision
[3]
Credibility
was not a factor in the tribunal’s decision. It found his testimony he
was of Amhara ethnicity to be credible; it also said “Overall, the claimant
testified in a credible manner”. The tribunal ruled, however, he did not have a
well-founded fear of persecution because of his political activities in
Ethiopia, in the United States and in Canada nor did he
have a well-founded fear because he was an Amhara.
[4]
The
focus of the tribunal’s decision was on the nature and extent of the
applicant’s political activities. The tribunal first concluded his activities
in 1991 and 1992 in Ethiopia “would not raise his profile amongst government
or security officials should he return there.”
[5]
On
this point the tribunal wrote:
The claimant testified that his
activities in Ethiopia were modest (attending speeches/lectures,
talking about the need for change with colleagues, modest recruiting on behalf
of the AAPO) and occurred during the early years of the EPRDF government, as
well as formative years of the AAPO party. The claimant confirmed that he
was never physically harmed, arrested or charged for any of his political
activities in Ethiopia. The claimant’s allegations
of being threatened by Kebele officials and by security forces at work were not
supported by any evidence provided by the claimant. As such, the panel finds that there is
not a serious possibility that the claimant would be subject to persecution for
his past political involvement while in Ethiopia. This conclusion was supported by the
findings of the U.S. Immigration Judge (dated March 18, 1996), which concluded
that the claimant’s allegations of harassment while in Ethiopia were found to be unrelated to the
claimant’s own particular political opinion. The panel therefore concludes that
the claimant does not have a well-founded fear of persecution based on his
opposition activities in Ethiopia before his departure.
[Emphasis mine.]
[6]
In
the tribunal’s view “the claim turned on whether or not the applicant has
provided sufficient credible or trustworthy evidence that his opposition
activities during his 14 years in the United States and now in Canada would result
in a serious possibility of persecution should he return to Ethiopia.”
[7]
In
respect of his activities in the United States, the tribunal found he
had provided credible evidence on his political activities such as:
·
Attending
several demonstrations in 1997, 2002, 2003 and 2005;
·
“Embassy
meetings”;
·
Fundraising
activities.
[8]
In
Toronto, the
tribunal found he attended CUD meetings and participated in an anti-government demonstration
in June 2006.
[9]
The
basis of his fear of return, according to the tribunal was “his belief that the
Ethiopian government has spies who document the activities of opposition supporters
around the world.” The tribunal said to support his belief, the applicant
relied upon an article from Addisvoice.com dated June 27, 2006 which “claims
that an Ethiopian Embassy representative [in Washington]” asked his superiors
in Addis Ababa for $20,000 to compile a name list and photos of
Ethiopians who attended a protest vigil outside the White House and in a letter
that official wrote on December 9, 2005 work had already started on photo
prints from the video they had recorded.
[10]
The
tribunal gave this article little weight giving the following reason:
… since it was impossible
for the panel to assess whether or not the allegations were genuine as they
were based on a leaked letter and were not verified. The Addis Voice
appeared to be an opposition website as in its masthead it claims to be:
“A pro-democracy voice for Ethiopia” and it keeps track of how
long opposition CUD leaders and journalists have been jailed by the second. As
such, the panel found that Addis Voice was not an independent source of
information, and the panel did not assign significant weight to the
contents of a leaked document which had not been authenticated. Furthermore,
neither the claimant nor his counsel provided any evidence that the Ethiopian
Embassy in Washington’s request for funds to document opposition members in the
United States had been received or acted
upon by the Ethiopian government. The article further weakens the
claimant’s claim of potential persecution as virtually all of his alleged
opposition activities pre-date the December 9, 2005 embassy official request
for resources to make the list. During his testimony the claimant did not
provide evidence that his name was taken or identity confirmed by embassy officials
at the meeting in Crystal City in 2000, at the 2005 demonstration outside the
Ethiopian embassy, or any other opposition activity. In addition, the
claimant did not provide evidence that he was approached and warned by embassy
officials and local EPRDF supporters for his actions in the United States.
The claimant’s subjective fear of being
persecuted for his opposition activities outside Ethiopia is not supported in the documentary
evidence in R/A-1, or additional evidence presented by counsel. The panel did
not find any reference to Ethiopian embassies or the government documenting
opposition supporters outside Ethiopia, nor could the panel find any
accounts of opposition supporters living abroad being persecuted upon their
return to Ethiopia. As such, the panel finds
that the claimant has not established that Ethiopian government officials have
engaged in spying and the drafting of lists of opposition supporters in the
United States or around the world, and therefore the claimant cannot establish
a well-founded fear of persecution in Ethiopia.
[11]
The
tribunal accepted the applicant was a party member but not one who had played a
leadership role in an opposition party in or outside Ethiopia since his
activities focused on supporting and promoting the party through:
·
Small
scale fundraising (selling T-shirts);
·
Modest
promotional activities (discussions with colleagues, distributing 20-30
leaflets to Ethiopian restaurants in Toronto);
·
Helping
to arrange people to show up at demonstrations;
·
Attending
lectures, meetings and demonstrations.
[12]
The
tribunal found these activities confirm the “applicant’s status as an
opposition supporter but would not raise his profile as that of an opposition
leader, organizer or militant” holding “that the documentary evidence indicated
CUD leaders and organizers were being persecuted for organizing before and
after the 2005 election and that documentary evidence did not “indicate” that
CUD supporters have routinely been persecuted since mass arrests associated
with the June 2005 election protests and the November 2005 CUD support rallies.”
[13]
The
tribunal then analyzed his allegation based on his Amhara ethnicity finding
he had not established his claim because:
·
He
had not demonstrated past persecution on this ground;
·
He
had not provided any documentary evidence that would support his claim of
potential persecution on this ground;
·
The
2005 U.K. Home Office Report still indicates the Amharas are a politically and
culturally dominant ethnic group of between 14 and 22 million people;
·
Amharas
are represented in the government by the Amhara National Democratic Movement
which won 134 seats in the 2000 elections and is affiliated to the ruling EPRDF.
The applicant’s case
[14]
Counsel
for the applicant argued the tribunal’s decision should be set aside on account
of the following errors:
1)
The
tribunal misread the documentary evidence when it concluded such evidence drew
a difference between a high profile member and mere members or supporters in
terms of being threatened by the Ethiopian security service.
2)
The
tribunal erred in its consideration of the Addis Voice article which the
applicant placed into evidence. Counsel asserted there was no discussion about that
article during the hearing, the applicant was not asked any questions about it then
and therefore the tribunal had no evidentiary foundation for discrediting the
article the way it did; furthermore, the documentary evidence substantiated the
article in terms of the Ethiopian Government practice of paying informers.
3)
The
tribunal erred in its finding the authorities at Addis Ababa airport
would not be interested in him upon his return. The tribunal failed to consider
or comment upon his evidence that after he went into hiding, the police came to
his house three times looking for him. It also failed to consider his claim
that he illegally left the country which would heighten the interest of the
Ethiopian authorities in him.
Analysis
a) Standard of review
[15]
Counsel
for the applicant’s attack on the tribunal’s decision focuses on the errors of
fact which the tribunal made in considering or assessing the evidence before
it. In my view, this engages the provisions of section 18.1(4)(d) of the Federal
Courts Act which provides this Court may grant relief where a tribunal
reached its decision based on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard to the material before it, a
breach of which in the post Dunsmuir era is judged against the standard
of review of reasonableness although it is clear if this section is breached,
the decision cannot be but unreasonable.
b) Discussion and conclusion
[16]
Findings
of fact command the highest degree of deference from the Court. The Court in
not to reweigh the evidence on judicial review. I cite the Supreme Court of
Canada decision in Canadian Union of Public Employees, Local 301 v.
Montreal (City), [1997] 1 S.C.R. 793, at paragraph 85:
85
We must remember that the standard of review on the factual findings of an
administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La
Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh
the evidence. Only where the evidence viewed reasonably is incapable of
supporting the tribunal’s findings will a fact finding be patently
unreasonable. An example is the allegation in this case, viz. that there is
no evidence at all for a significant element of the tribunal’s decision:
see Toronto Board of Education, supra, at para. 48, per
Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a
determination may well be made without an in-depth examination of the record:
National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per
Gonthier J., at p. 1370.
[17]
I
also cite that Court’s decision in Boulis v. Minister of Manpower and
Immigration, [1974] S.C.R. 875 for the principle the reasons
of a tribunal “must not be
read microscopically; it is enough if they show a grasp of the issues that are
raised and of the evidence addressed to them, without detailed reference. The
record is available as a check on the Board’s conclusions.”
[18]
For the reasons that
follow, I am of the view this judicial review application must succeed because
fundamentally the tribunal misread the evidence both in terms of the
applicant’s testimony as well as the documentary evidence. In coming to this
conclusion, I examined all of the evidence contained in the applicant’s
application record, the documentary evidence in terms of country reports on Ethiopia, as well as the transcript of the applicant’s testimony
which, as noted, was deemed by the tribunal to be credible. Cumulatively, the
errors described below warrant this Court’s intervention on the basis the
decision is based on findings of fact in breach of section 18.1(4)(d) of the Federal
Courts Act and may thus be characterized as unreasonable in Dunsmuir
v. New Brunswick, 2008 SCC 9. Underlying my conclusion
is the recognition in all of the documentary evidence that the regime in power
in Ethiopia, since 1991, is a repressive regime
whose human rights record is very poor and, despite the advances of democracy
in that country, uses coercive means to cling to power including the detention
of political opponents.
[19]
First,
the documentary evidence does not draw a sharp line, as the tribunal did, to
the effect only opposition leaders, organizers or militants are persecuted by
the regime in power in Ethiopia. The documentary
evidence is replete with indicators showing Ethiopia’s security
forces detain members, supporters and demonstrators (see applicant’s record,
pages 125, 128, 143, 149, 155, 161, 166, 170, 180, 192, 200). The tribunal
specifically recognized the applicant was a member of the CUD in the United
States
and had been a member of the fledgling AAPO in Ethiopia and was threatened by Ethiopia’s security
forces on that account.
[20]
Second,
the tribunal appeared to minimize the applicant’s role as a CUD member in the United
States.
It failed to mention his involvement in recruiting members to oppose the regime
and to influence Congress through demonstrations. It did not mention the
applicant’s corroborative evidence from CUD members in the U.S. to this
effect.
[21]
Third,
the tribunal failed to take account of the applicant’s testimony that while in
hiding, the security forces came three times to his house before he fled.
[22]
Fourth,
the tribunal failed to recognize the impact of the applicant’s testimony he
would be politically active in Ethiopia if returned.
[23]
Fifth,
the tribunal’s assessment of the Addis Voice article introduced into evidence
by the applicant was unreasonable on a number of grounds: (1) it was not
weighed against the applicant’s oral testimony that during demonstrations in
front of the Ethiopian Embassy in Washington, many photos were taken of the
demonstrators by unknown individuals and the documentary evidence which showed
that the Ethiopian regime paid informers (applicant’s record, page 162;
certified tribunal record, page 426); (2) it was unreasonable for the tribunal
to corroborate that the Ethiopian Embassy had actually received the $20,000
sought from Addis Ababa; and (3) no questions were put to the applicant exactly
who was behind Addis Voice and why this evidence should be discounted.
[24]
Sixth,
the tribunal erred in deriving comfort from the fact the applicant’s
claim in the United
States
failed. That claim filed in 1993, was not advanced on the basis of the
applicant’s political opinion but rather on account of his ethnicity.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is allowed, the tribunal’s decision is quashed and the
applicant’s refugee claim is remitted for reconsideration by a differently
composed tribunal. No certified question was proposed.
“François
Lemieux”
___________________________
Judge
Email this Content