Docket: IMM-250-14
Citation:
2015 FC 590
Ottawa, Ontario, May 6, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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OBSE MOHA MUSE
(BY HER LITIGATION GUARDIAN SUSAN WOOLNER)
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The Court finds that the Applicant’s particular
circumstances and vulnerabilities attract an increased vigilance for procedural
fairness (see: Benitez v Canada (Minister of Citizenship and Immigration),
[2007] 1 FCR 107 at para 113 [Benitez]).
[2]
Nonetheless, the onus rests upon the Applicant
to establish identity and the well-foundedness of her claim (see section 106 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]).
[3]
Whether further explanations will, in fact, be
forthcoming is a matter of speculation as to what the ultimate outcome of the
RPD will be; however, the principles of procedural fairness require that the
Applicant, at least, be given the opportunity to provide answers. This will
ensure that procedural fairness is witnessed in the examination and
understanding given to the Applicant’s claim, in light of her particular
circumstances (of acknowledged mental challenges, in addition to scars and
burns on her body as per the evidence, which must be adequately considered as
per Singh v Canada (Minister of Employment and Immigration), [1985] 1
SCR 177 [Singh]).
II.
Introduction
[4]
This is an application for judicial review
pursuant to subsection 72(1) of IRPA of a decision rendered by the Refugee
Protection Division [RPD] denying refugee protection pursuant to sections 96
and 97 of the IRPA.
III.
Factual Background
[5]
The Applicant is a 30-year-old citizen of
Ethiopia who claims refugee status on the basis of her Oromo ethnicity and
perceived political opinion. The Applicant claims that the following facts led
to her refugee claim.
[6]
In 2001, the Applicant’s father, who is a
well-known and respected member of the Oromo community in Jimma, Ethiopia, was
falsely accused of involvement with the Oromo Liberation Front [OLF] and
detained by the authorities.
[7]
The Applicant claims that she and her family
have since been targeted by the authorities as part of the widespread
persecution of the Oromo ethnic community.
[8]
In 2001, the Applicant, her siblings and their
mother were detained for six months without trial following a complaint they
made to the authorities in respect of the Applicant’s father’s detention.
[9]
While in detention, the Applicant was threatened
with sexual violence, injured and questioned about her alleged involvement with
the OLF by prison guards.
[10]
After their release, the family was repeatedly
visited by the police and questioned, harassed and accused of being involved
with the OLF. On one occasion, the Applicant’s mother was arrested and detained
for five months, during which time the Applicant and her siblings lived with
their grandmother in another town, out of fear of police harassment.
[11]
The Applicant ceased attending school because
she suffered from depression and mental health issues related to her treatment in
detention and the stress and anxiety associated with her father’s situation.
[12]
In 2004, the Applicant and her mother returned
to the police station to inquire about the whereabouts of the Applicant’s
father. Following a verbal altercation with the police, the Applicant and her
mother were arrested and detained for eight months. While in detention, the
Applicant was questioned about the OLF and attacked by the prison guards. After
their release, the police continued to search the Applicant’s home.
[13]
In 2008, the Applicant married and fled her
hometown for Addis Ababa to escape police harassment; however, while she was
living in Addis Ababa, the Applicant was informed by her mother that police
were looking for the Applicant.
[14]
Having lived in fear in Addis Ababa for two
years, the Applicant saved enough money and traveled to Egypt with false documents.
The Applicant’s experience in Egypt proved challenging, as she had difficulty
finding work and survived an attempted rape and robbery. The Applicant was then
employed as a housekeeper and nanny for four children by a wealthy Egyptian
woman [the employer]. Although the employer was abusive towards her, the
Applicant felt as though she had nowhere to go. Moreover, the Applicant’s
husband informed the Applicant that the authorities were still looking for her
in Ethiopia.
[15]
The employer asked the Applicant to travel with
her in order to look after her children and do housework during a trip to
Canada, to which the Applicant acquiesced.
[16]
Upon arrival at the Toronto airport, the
Applicant escaped from her employer and claimed refugee status with a Canadian
Border Services Agency [CBSA] officer.
[17]
In response to the Applicant’s diagnosis of
suffering from schizoaffective disorder, depressive type, which impacts her
ability to recall events, their chronology and duration, Ms. Susan Woolner was
appointed as the Applicant’s designated representative. Ms. Woolner assisted
the Applicant in completing her Personal Information Form [PIF] and currently
acts as the Applicant’s litigation guardian.
[18]
The Applicant’s refugee claim was heard before
the RPD on October 29, 2013.
IV.
Impugned Decision
[19]
On December 17, 2013, the RPD rejected the
Applicant’s refugee claim on the basis of identity, credibility issues and a
lack of well-foundedness to the Applicant’s fear of persecution.
A.
Identity
[20]
In its decision, the RPD identifies numerous
issues regarding the Applicant’s identity and finds that it is “not persuaded that the claimant is necessarily who she says
she is and a citizen of Ethiopia” (RPD Decision, at para 10).
[21]
First, the RPD notes that the documents provided
by the Applicant do not have reliable security features.
[22]
Second, the RPD raises concerns over the fact
that the photograph used in the Applicant’s national identity card, of a woman
wearing a hijab, is the same photograph used in her school transcript from five
years earlier. The RPD also notes that the photograph of the Applicant taken at
the Port of Entry [POE] shows a woman without a hijab, and at the hearing, the
Applicant, also, appeared without a hijab.
[23]
Third, the RPD finds that the Applicant provided
inconsistent dates in respect of her marriage, as they appear on her marriage
certificate and in her PIF and testimony. The RPD finds that the Applicant
failed to provide a valid explanation for this discrepancy.
[24]
Fourth, the RPD notes that the evidence relating
to the passport used by the Applicant to travel to Canada is contradictory. In
particular, the Applicant testified that she used an Egyptian passport under
her own name; however, in an interview with a CBSA officer at the POE, the
Applicant claimed that her employer held onto her passport because she feared
that the Applicant would run away from her. The RPD finds it implausible that
the employer would withhold the Applicant’s passport with the objective of
deterring the Applicant from escaping.
[25]
Finally, the RPD finds that the Applicant failed
to establish her Ethiopian nationality. The RPD notes that the Applicant’s
knowledge of the Oromo language alone is insufficient to identify her as an
Ethiopian citizen because this language is also spoken by natives of Somalia
and northern Kenya.
[26]
The Court notes that although the RPD states
that the Applicant’s knowledge of the Oromo language “does
sufficiently identify her as an Ethiopian citizen”; this is an apparent
error, in articulation, given the RPD’s previous analysis, it is clear that the
RPD rejected the Applicant’s knowledge of Oromo as sufficient for establishing
identity (RPD Decision, at para 15).
B.
Credibility
[27]
The RPD identifies numerous incoherencies in the
Applicant’s testimony and evidence which undermine her credibility.
[28]
First, the RPD finds that the Applicant’s
account to the CBSA officer with respect to her mistreatment and abandonment at
the airport by the employer for the purpose of withholding four months’ worth
of the Applicant’s earnings is implausible.
[29]
The RPD acknowledges that the Applicant was
fearful, anxious and had difficulties understanding the interpreter at the POE.
The RPD also does consider the counsel of the Applicant’s submissions,
specifying, that little weight should be assigned to the POE notes due to the
Applicant’s mental state; however, it finds nonetheless, that the Applicant had
previously stated and confirmed, in her PIF and also with the CBSA officer,
that she understood Amharic, which is, in fact, significantly, the
language in which the POE interview was conducted and not Oromo, which the RPD
find problematic. That is important to her identity as Amharic must be considered
due to where it is spoken, and who speaks it.
[30]
The RPD further notes that the Applicant omitted
to include her second detention in her Claim for Refugee Protection in Canada
application form (IMM5611), which further undermines her credibility.
C.
Well-foundedness of the Applicant’s fear
[31]
The RPD finds that there is insufficient
evidence to support a finding that the psychological symptoms experienced by
the Applicant are a result of her alleged persecution and detentions, rather
than a result of her mental illness arising out of other circumstances.
Although the RPD accepts that the Applicant had experienced trauma, it is not
persuaded that the persecutory events described by the Applicant took place.
[32]
The RPD finds that even if the Applicant’s
evidence were to be found credible, it fails to establish a well-founded fear
of persecution or a risk of facing harm or being arrested by the police upon
return, for her perceived involvement with the OLF.
[33]
Moreover, the RPD assigns little weight to
letters provided by the Applicant’s mother, uncle and school friend, inasmuch
as they are undated, and were considered to lack credibility because of their
uncertain authenticity.
[34]
Finally, the RPD concludes that the Applicant’s
moves, first to Addis Ababa, then to Egypt, and finally to Canada, were
motivated by a desire to improve her economic situation rather than a need to
escape persecution (RPD Decision, at para 30).
V.
Legislative Provisions
[35]
The following provisions of the IRPA apply to
the determination by the RPD of the Applicant’s refugee claim:
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Convention refugee
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Définition de « réfugié »
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96. A Convention refugee is a person
who, by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
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96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
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(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
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a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
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b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1) A person in need of protection
is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
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97. (1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling
to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(ii) the risk would be faced by the person in every part of
that country and is not faced generally by other individuals in or from that
country,
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(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
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(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
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(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the inability of that country
to provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité
du pays de fournir des soins médicaux ou de santé adéquats.
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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VI.
Issues
[36]
The following issues were raised by the
Applicant:
a)
Did the RPD breach its duty of procedural
fairness?
b)
Did the RPD err in its credibility findings?
c)
Did the RPD err in considering the
well-foundedness of the Applicant’s claim?
VII.
Standard of Review
[37]
The RPD’s findings relating to identity and
credibility, which are questions of fact and of mixed fact and law, and which
stand at the core of the RPD’s expertise, attract the standard of
reasonableness (Liu v Canada (Minister of Citizenship and Immigration),
2012 FC 377; Diarra v Canada (Minister of Citizenship and Immigration),
2014 FC 123 at para 18).
[38]
Consistent with the jurisprudence, issues of
procedural fairness are reviewable on the standard of correctness.
VIII.
Analysis
[39]
The Applicant argues that she has been denied
participatory rights inasmuch as the RPD did not allow her the opportunity to
respond to its preoccupations in respect of the evidence provided, including
answers in respect of the matters of time and place which the Applicant gave.
Significantly, the Applicant allegedly is not aware of the Gregorian calendar
as opposed to the Ethiopian calendar which requires consideration.
[40]
In particular, the Applicant submits that the
RPD made adverse identity and credibility findings on the basis of
inconsistencies which were not put to her, including the following:
a) The RPD made a negative inference from the fact that the Applicant’s
identity documents’ photographs showed a woman with a hijab, whereas in her
photograph taken at the POE, and at the hearing, the Applicant was not wearing
a hijab.
The Applicant submits that
this observation is inaccurate because the Applicant wore a hijab at the
hearing and at the POE. The Applicant could have easily explained that she had
been asked to remove her hijab by a CBSA officer for her POE photograph.
The Applicant argues that
the RPD’s failure to confront the Applicant with this perceived inconsistency
amounts to a breach of procedural fairness.
b) The RPD found that the evidence in respect of the Applicant’s travel
documents was inconsistent. The RPD found that the POE officer’s notes indicate
that the Applicant traveled with a passport under the name Zeneba Musadik
Mohamed, which the Applicant did not recognize when it was showed to her by a
CBSA officer at the POE.
The Applicant submits that
the RPD did not confront her with these perceived contradictions emerging from
the CBSA officer’s notes, denying her the opportunity to meaningfully respond
to the RPD’s preoccupations. Moreover, the Applicant submits that she was
consistent in testifying that she was unaware of the nature and contents of her
passport used to travel to Canada because her employer withheld it from her
during their travels.
c) The RPD found that the Applicant’s knowledge of the Oromo language
was not sufficient to establish her identity as an Oromo woman from Ethiopia,
because Oromo is also spoken in Somalia and Northern Kenya.
The Applicant contends
that the RPD never confronted the Applicant with this apparent inconsistency
for the purposes of establishing her identity, and failed to consider the
Applicant’s testimony in regard of her knowledge of the Oromo community,
customs, culture, and geography.
d)
The Applicant further submits that the RPD
failed to consider the explanations provided by the Applicant in respect of
different dates of marriage, as found in her marriage certificate and as
declared in her PIF, which were due to the Ethiopian and Gregorian calendars,
respectively. The Applicant submits that the RPD erred in concluding that the
Applicant “had no explanation” for this apparent
inconsistency.
[41]
The content of procedural fairness is variable
and contextual (Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at par 21 [Baker]).
[42]
The right of a hearing in the context of a
refugee claim requires that an individual be given a meaningful opportunity to
present his or her case fully and fairly and “have
decisions affecting their rights, interests, or privileges made using a fair,
impartial and open process, appropriate to the statutory, institutional and
social context of the decision” (Baker, above at paras 28 and
30).
[43]
This is consistent with the principle that
proceedings under the IRPA which might result in deprivation of life, liberty
or security of the person concerned, and which are based on a credibility
assessment, must be conducted in accordance with the principles of fundamental
justice, which in this case, require a full fair hearing (Singh,
above).
[44]
This Court has found that where a claimant has
failed to present acceptable documentation in respect of establishing identity,
the RPD must consider the evidence as a whole. The RPD must also take into
account whether the claimant has provided a reasonable explanation for the lack
of documentation or has taken reasonable steps to obtain the documentation (Yang
v Canada (Minister of Citizenship and Immigration), [2009] FCJ 848 at paras
6 and 7).
[45]
Nonetheless, the onus rests upon the Applicant
to establish identity and the well-foundedness of her claim (see section 106 of
the IRPA).
[46]
The Court finds that the Applicant’s particular
circumstances and vulnerabilities attract an increased vigilance for procedural
fairness (see: Benitez, above at para 113).
[47]
Most notably, the evidence clearly specifies
that the Applicant suffers from a schizoaffective disorder, a depressive type
of such due to traumatic past experiences, as well as a history of suicidal
behavior, all of which requires particular consideration of the directives
found in the Chairperson Guideline 8: Procedures with Respect to Vulnerable
Persons Appearing Before the IRB and in the Chairperson Guidelines 4:
Women Refugee Claimants Fearing Gender-Related Persecution (Psychological
Assessment Report by Dr. Gerald M. Devins, Ph.D., dated August 4, 2012;
Certified Tribunal Record).
[48]
The Court is not convinced that the RPD raised
its major concerns with the Applicant and that she had been given a meaningful
opportunity to make observations to dispel the RPD’s doubts in respect of her
identity, as required by the principles of procedural fairness. For instance,
it is unclear whether the Applicant was wearing a hijab at the POE, which led
the RPD to conclude that the woman wearing a hijab in the Applicant’s identity
documents may not have been the Applicant, contrary to the RPD assertion. It is
significant that evidence on file states that the Applicant, in fact, wore a
hijab at her RPD hearing. This aspect of the Applicant’s claim requires further
examination.
[49]
Whether further explanations will, in fact, be
forthcoming is a matter of speculation as to what the ultimate outcome of the
RPD will be; however, the principles of procedural fairness require that the
Applicant, at least, be given the opportunity to provide her answers. This will
ensure that procedural fairness is witnessed in the examination and
understanding given to the Applicant’s claim, in light of her particular
circumstances (of acknowledged mental challenges, in addition to scars and
burns on her body as per the evidence, which must be adequately considered as per
the Singh decision above).
[50]
As the reasonableness of the RPD’s credibility
findings hinges upon the procedural fairness issues, it is unnecessary for the
Court to address them in turn.
IX.
Conclusion
[51]
In light of the aforementioned, the application
is granted for a hearing anew by a differently constituted panel.
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