Docket: IMM-1805-16
Citation:
2016 FC 1197
Toronto, Ontario, October 27, 2016
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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MEKEDES MELAKU
HARAMICHEAL
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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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REASONS AND JUDGMENT
I.
Nature of the Matter
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act] of a decision rendered by a Member of the Refugee
Appeal Division of the Immigration and Refugee Board [RAD], where it confirmed
that the applicant was neither a Convention refugee nor a person in need of
protection pursuant to sections 96 and 97 of the Act.
II.
Facts
[2]
The applicant is a citizen of Ethiopia. She is
of Amhara origin and a member of the Ethiopian Orthodox Church. She alleges
that she is a political activist and that she has a long-standing history of
being involved in activities opposing the ruling party in Ethiopia.
[3]
In November 2014, she came to Canada to visit one
of her daughters. During her visit, she discussed the state of Ethiopian
politics with family members and friends. Following these discussions, they
allegedly decided that they would support the families of political prisoners
with money and support letters that the applicant would bring to them upon her
return to Ethiopia.
[4]
At the airport in Addis Ababa, her luggage was
searched and the money and letters found by the authorities. The applicant was
allegedly detained for five days and released on bail. She was put under
constant surveillance and asked to report to the authorities several times. She
was also threatened with prosecution under the anti-terror laws if she did not
join the ruling party within two months.
[5]
Her husband and she decided that she should
return to Canada, where she landed on August 10, 2015. She made a refugee claim
on September 24, 2015, which was rejected on December 1, 2015.
III.
Decision
[6]
The RAD concluded that the determinative issue
was the credibility of the applicant’s allegations. It found that based on the
detailed history of alleged harassment from the authorities in Ethiopia
contained in her narrative, it was not credible that she had taken the risk to
bring money and support letters in her luggage back to her home country. The
RAD noted that she had indicated in her refugee claim forms that she was not a
member of any organization and found that the omission of her support for the
Unity for Democracy and Justice Party [UDJ] was significant in light of her
narrative.
[7]
The RAD gave little weight to the psychological
report submitted as new evidence. While it acknowledged that the report
explained some deficiencies in the applicant’s testimony before the Refugee
Protection Division [RPD], it noted that if the underlying facts of a medical
report are disbelieved, the report may be disregarded and that psychological
reports are not cure-alls for lapses in credibility. It found that the report
could not explain the significant omission of the applicant’s support of UDJ
from her forms.
[8]
The RAD further concluded that the applicant’s
return to Ethiopia in spite of a long history of abuses endured by the
applicant and her family undermined her credibility. It acknowledged that the
RPD had made an error in stating her ethnicity, but nonetheless found that she
had provided insufficient evidence that she would be persecuted in Ethiopia
based on her Amhara ethnicity and her membership in the Orthodox Church. It
found that the organizations she had joined in Canada, both political and
spiritual, had been joined for the purpose of bolstering her claim.
IV.
Issues
1.
What is the applicable standard of review?
2.
Did the RAD commit a reviewable error in finding
that the applicant was not a Convention refugee or a person in need of
protection?
V.
Submissions of the Parties
A.
The Applicant
[9]
The applicant submits that the RAD’s assessment
of her credibility lacks proper foundation in the evidence. She submits that
she did not omit to mention her membership in UDJ in her form, because she was
not a member of the organization but only a supporter. The question on the form
gave contradicting instructions as to whether support or actual membership was
the threshold for an organization to be mentioned. Nevertheless it is a minor
inconsistency in light of her testimony and the remainder of the record.
[10]
The psychological report was tendered as
evidence of the applicant’s poor health at the time of the RPD hearing, and not
as evidence of her allegations. Furthermore, the RAD’s conclusion on
reavailment ignores that the applicant’s airport detention upon her return to
Ethiopia is the event which triggered the refugee claim.
[11]
The applicant argues that the RAD did not
consider the apparent inconsistencies in her testimony in light of the totality
of evidence and ignored evidence of her detention which contradicts its
conclusions.
B.
The Respondent
[12]
The respondent submits that it was open to the
RAD to note the omission in the applicant’s form that she had supported the UDJ
party. Moreover, the RAD had other credibility concerns in addition to the
omission. The applicant’s testimony was hesitant and her course of action in
returning to Ethiopia was not plausible in light of the history of harassment
she alleged. The psychological report could not explain the deficiencies in the
applicant’s evidence.
[13]
The respondent further argues that the Court has
held that reavailment typically suggests an absence of risk or a lack of
subjective fear of persecution (Ortiz Garcia v Canada (Citizenship and
Immigration), 2011 FC 1346 at para 8).
VI.
Analysis
1.
What is the applicable standard of review?
[14]
Questions of credibility and weight of the
evidence are factual in nature. As such, the RAD is afforded considerable
deference on these issues (Ortega Ayala v Canada (Citizenship and
Immigration), 2011 FC 611 at para 14). The Court will not intervene if the
decision is justified, transparent and intelligible and falls within the range
of acceptable, possible outcomes in light of the facts and the law (Dunsmuir
v New Brunswick, 2008 SCC 9, para 47).
2.
Did the RAD commit a reviewable error in finding
that the applicant was not a Convention refugee or a person in need of
protection?
[15]
The principles governing the assessment of an
applicant’s credibility in the refugee context are well-established within this
Court. The RAD is entitled to make findings of credibility based on
implausibility, common sense and rationality (Lubana v Canada (Minister of
Citizenship and Immigration), 2003 FCT 116). Adverse credibility findings
should however not be based on a microscopic evaluation of issues peripheral or
irrelevant to the case (Attakora v Canada (Minister of Employment and
Immigration), [1989] FCJ No 444).
[16]
As to the RAD’s assessment of the evidence, it
is also well-established that, 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””
(Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration),
[1998] FCJ No 1425).
[17]
While it does not have to mention or analyze all
the evidence, it is reasonable to expect the RAD to examine the one piece of
evidence corroborating the applicant’s story. The record contains a receipt for
bail to the amount of 2000 birrs, issued on January 13, 2015, a date
which would be consistent with her return to Ethiopia. I am concerned that both
the RPD and the RAD are silent on corroborative evidence of her detention.
While on its own, and in light of the other credibility issues, this document
may not be sufficient to overcome the credibility findings, it nevertheless
should have been examined. As I stated in Teklewariat v. Canada (Citizenship
and Immigration), 2016 FC 1026 the absence of any mention of a key piece of
evidence is suspicious. The Court cannot speculate on whether or not this
evidence would have influenced the RAD’s credibility findings.
[18]
For this reason alone, the judicial review is
granted and the matter is remitted back for redetermination by a different member.
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