Docket: IMM-944-16
Citation:
2016 FC 1138
Ottawa, Ontario, October 12, 2016
PRESENT: The
Honourable Mr. Justice Russell
|
BETWEEN:
|
|
TEMESGEN ARKESO
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of
the decision of an immigration officer in the Canadian High Commission in Pretoria
[Visa Officer], dated August 30, 2013 [Decision], which denied the Applicant’s
application for permanent residence as a member of the Convention refugee
abroad class or as a member of the humanitarian-protected persons abroad
designated class.
II.
BACKGROUND
[2]
The Applicant is a 38-year-old citizen of
Ethiopia and has resided in South Africa since 2003, where he holds
asylum-seeker status. He claims a fear of return to Ethiopia based on his
membership in the Hadiya Nationality Democratic Organization, an ethnic-based
political group that became part of the Southern Ethiopia Peoples’ Democratic
Coalition [SEPDC], a political party in Ethiopia.
[3]
The Applicant says that he was arrested in July
2001 and detained by the ruling political party, the Ethiopian Peoples’ Revolutionary
Democratic Front [EPRDF], for 18 months after he promoted the SEPDC by
distributing pamphlets on the street. During this time, he was interrogated and
tortured. After his release in December 2002, he left Ethiopia with his wife
and arrived in South Africa in April 2003 and subsequently had two children. His
wife has obtained formal recognition of refugee status in South Africa.
[4]
The Applicant and his family applied for
permanent residence in Canada under the Convention refugee abroad class or the
humanitarian-protected persons abroad designated class. The Applicant was
interviewed at the High Commission of Canada in Pretoria, South Africa on
August 27, 2013. The interview was conducted in English with the assistance of
an Amharic interpreter.
III.
DECISION UNDER REVIEW
[5]
A decision sent from the Visa Officer to the
Applicant by letter dated August 30, 2013 determined that the Applicant did not
qualify for immigration to Canada in the Convention refugee abroad class or
humanitarian-protected persons abroad designated class.
[6]
The Visa Officer concluded that the Applicant
did not meet the requirements of s 96 of the Act as he did not come under
the definition of a Convention refugee. Furthermore, the Visa Officer
concluded that the Applicant did not meet the requirements of the protected
classes under s 139(1)(e) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [Rules]. The Visa Officer was not satisfied that
the Applicant was at risk of persecution due to political activism if he were
to return to Ethiopia. The Visa Officer based this decision on the UK Border
Agency’s 2009 Operational Guidance Note [OGN] that mid or low profile activism
with the opposition alliance is unlikely to result in ill treatment by EPRDF amounting
to persecution due to the calming of the political situation that arose after
the disputed May 2005 elections. The Visa Officer was not convinced that the
Applicant was a high level activist with SEPDC and, as such, voluntary
repatriation to Ethiopia was a viable option.
IV.
ISSUES
[7]
The Applicant submits that the following are at
issue in this application:
1. Did the Visa Officer either fail to have regard to or consider
perversely relevant country condition information?
2. Was the Decision made without regard to the evidence before the Visa
Officer of the personal circumstances of the Applicant?
3. Was the Decision reasonable?
4. Does the Decision give rise to a reasonable apprehension of bias?
V.
STANDARD OF REVIEW
[8]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis
need not be conducted in every instance. Instead, where the standard of review
applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[9]
The first three issues raised by the Applicant
ask whether the Visa Officer failed to appropriately consider the UK Border Agency’s
OGN documentation and took into account irrelevant facts. This is not a
procedural fairness issue. A visa officer’s assessment of an application
for permanent residence involves questions of mixed fact and law and is
reviewable under the standard of reasonableness: Canada (Citizenship and
Immigration) v Young, 2016 FCA 183 at para 7; Odunsi v Canada
(Citizenship and Immigration), 2016 FC 208 at para 13.
[10]
As a matter of procedural fairness, the bias
allegations will be reviewed under the standard of correctness: Khosa v Canada
(Citizenship and Immigration), 2009 SCC 12 at para 43 [Khosa].
[11]
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.” See Dunsmuir, above, at para 47, and Khosa,
above, at para 59. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[12]
The following provisions from the Act are
relevant in this proceeding:
|
Convention refugee
|
Définition de réfugié
|
|
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,
|
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:
|
|
(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
|
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;
|
|
(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.
|
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.
|
[13]
The following provisions from the Rules are
relevant in this proceeding:
|
General
Requirements
|
Exigences
générales
|
|
139 (1) A
permanent resident visa shall be issued to a foreign national in need of
refugee protection, and their accompanying family members, if following an
examination it is established that
|
139 (1) Un
visa de résident permanent est délivré à l’étranger qui a besoin de
protection et aux membres de sa famille qui l’accompagnent si, à l’issue d’un
contrôle, les éléments suivants sont établis :
|
|
…
|
…
|
|
(d) the
foreign national is a person in respect of whom there is no reasonable prospect,
within a reasonable period, of a durable solution in a country other than
Canada, namely
|
d) aucune
possibilité raisonnable de solution durable n’est, à son égard, réalisable
dans un délai raisonnable dans un pays autre que le Canada, à savoir :
|
|
(i) voluntary
repatriation or resettlement in their country of nationality or habitual
residence, or
|
(i) soit le
rapatriement volontaire ou la réinstallation dans le pays dont il a la
nationalité ou dans lequel il avait sa résidence habituelle,
|
|
(ii) resettlement
or an offer of resettlement in another country;
|
(ii) soit la
réinstallation ou une offre de réinstallation dans un autre pays;
|
|
(e) the
foreign national is a member of one of the classes prescribed by this
Division;
|
e) il fait
partie d’une catégorie établie dans la présente section;
|
|
…
|
…
|
|
Member of
Convention refugees abroad class
|
Qualité
|
|
145 A foreign
national is a Convention refugee abroad and a member of the Convention
refugees abroad class if the foreign national has been determined, outside Canada,
by an officer to be a Convention refugee.
|
145 Est un
réfugié au sens de la Convention outre-frontières et appartient à la
catégorie des réfugiés au sens de cette convention l’étranger à qui un agent
a reconnu la qualité de réfugié alors qu’il se trouvait hors du Canada.
|
|
Person in
similar circumstances to those of a Convention refugee
|
Personne
dans une situation semblable à celle d’un réfugié au sens de la Convention
|
|
146 (1) For
the purposes of subsection 12(3) of the Act, a person in similar circumstances
to those of a Convention refugee is a member of the country of asylum class.
|
146 (1) Pour
l’application du paragraphe 12(3) de la Loi, la personne dans une situation
semblable à celle d’un réfugié au sens de la Convention appartient à la
catégorie de personnes de pays d’accueil.
|
|
Humanitarian-protected
persons abroad
|
Personnes
protégées à titre humanitaire outre-frontières
|
|
(2) The
country of asylum class is prescribed as a humanitarian-protected persons
abroad class of persons who may be issued permanent resident visas on the
basis of the requirements of this Division.
|
(2) La
catégorie de personnes de pays d’accueil est une catégorie réglementaire de
personnes protégées à titre humanitaire outre-frontières qui peuvent obtenir
un visa de résident permanent sur le fondement des exigences prévues à la
présente section.
|
VII.
ARGUMENTS
A.
Applicant
[14]
The Applicant submits that the Visa Officer’s
Decision was both unreasonable and procedurally unfair.
[15]
The Visa Officer’s conclusion that the Applicant
does not come under the definition of a Convention refugee is wrong and
troubling. In the Decision letter, the Visa Officer quotes the UK Border Agency’s
OGN: “the calming of the political situation in
2006/2007 means that claimants who have adduced evidence of mid or low profile
activism or association within the CUD alliance of parties are unlikely to be
at risk of ill treatment amounting to persecution. In such cases the grant of
asylum is not likely to be appropriate.” However, this quote is taken
out of context; the preceding paragraph in the OGN describes the “political situation” as events that occurred in May
2005. Since the Applicant left Ethiopia in 2001, the change in circumstances arising
from the May 2005 elections is not relevant to the Applicant’s claim. The
Applicant argues that since there is no change in circumstances, the
presumption that a person who has been persecuted will continue to be
persecuted should apply to his situation, which means that he is still at risk.
[16]
The Visa Officer’s consideration of the UK
Border Agency’s OGN also demonstrates reliance on outdated information. The UK
Border Agency’s 2012 OGN, available at the time of the Decision, revises the
criteria for granting asylum: “If a claimant has a
sufficient profile within one of the opposition parties, is known to the
Ethiopian authorities and likely to be/remain of adverse interest, then a grant
of asylum is likely to be appropriate as internal relocation would not be a
viable option.” The 2012 OGN also states that low-level party members
whose involvement is limited to attending meetings and paying contributions are
not likely to result in monitoring by the EPRDF. However, the Applicant’s
activism included promoting SEPDC publicly, which led to beatings and
detention. The Applicant submits that had the 2012 test been applied, he may
have been recognized as a refugee.
[17]
Furthermore, the Applicant notes that the three
other agency reports mentioned in the Visa Officer’s notes were published in
2012, yet only the UK Border Agency’s 2009 OGN was quoted in the Decision. The
Applicant says the usage of an outdated report suggests bias against the
Applicant and that the Visa Officer was looking to find a reason to refuse the
claim.
B.
Respondent
[18]
The Respondent submits that the Visa Officer’s Decision
was made reasonably and fairly without apprehension of bias.
[19]
In response to the Applicant’s submission that
the UK Border Agency’s 2009 OGN was out of date, the Respondent says the
criteria for granting asylum status has not changed because both the 2009 and
2012 OGNs indicate that only opposition activists with a profile of some
magnitude are at risk. The Visa Officer reasonably concluded that the
Applicant’s activism of handing out pamphlets on the street does not meet the
criteria in either report.
[20]
As regards the change of circumstances following
the 2005 elections not being relevant to the Applicant’s situation, the
Respondent says that the Visa Officer did not err in finding that the country
condition information reflected a change in risk to mid- or low-level activists
between the time the Applicant left Ethiopia and the time the Decision was
made. Additionally, since there is no presumption in Canadian jurisprudence
that a person who has been persecuted will continue to be persecuted, the
Applicant cannot be presumed to be at risk based solely on past treatment.
[21]
The Respondent submits that the threshold to
establish bias, actual or perceived, is high: Koky v Canada (Citizenship and
Immigration), 2015 FC 562 at para 48. The usage of an outdated country
condition document does not meet the threshold of a closed mind or
predisposition.
VIII.
ANALYSIS
[22]
While I do not accept the Applicant’s arguments
on irrelevancy, presumption of persecution, or bias, I do feel that this matter
needs to be returned for reconsideration.
[23]
On the central issue of future risk of
persecution to the Applicant, the Visa Officer relied upon outdated country
documentation, namely the UK Border Agency’s 2009 OGN. I agree with the
Applicant that the more current July 2012 OGN that was available to the Visa Officer
presents a different picture of those political activists at risk in Ethiopia.
[24]
The 2009 OGN draws a clear line between someone
who is a “prominent activist or high profile leader
with the COD alliance of parties” and “mid or
low profile activism or association with the COD alliance of parties.”
The 2012 OGN says that the “political profile of the
applicant must be carefully considered together with up to date country
information, to determine whether the Ethiopian authorities are likely to
view the applicant adversely” [emphasis added].
[25]
Although the 2012 OGN says that “Low-level party members with involvement limited to
attending meetings and paying contributions are not reasonably likely to result
in being monitored or identified,” it also asserts as follows:
If a claimant has a sufficient profile with
one of the opposition parties, is known to the Ethiopian authorities and likely
to be/remain of adverse interest, then a grant of asylum is likely to be
appropriate as internal location would not be a viable option.
[26]
In my view, the Visa Officer does not address
these factors in his Decision and relies upon the clear-line approach in the
outdated 2009 OGN. The Applicant promoted SEPDC publicly and has already been
detained and tortured by the authorities for his political activities, and he
left Ethiopia because he faced further detention.
[27]
The Applicant may not be a prominent activist or
a high profile leader identified in the 2009 OGN as being at risk, but his
unquestioned activities in promoting the party, sending people to vote,
distributing information and pamphlets about the party, which led to an
18-month detention and beatings in the past and possible further detention, may
in the future provide the “sufficient profile”
and continuing interest of the authorities that the 2012 OGN says justify a
grant of asylum. The Visa Officer did not consider the Applicant’s situation in
full and the evidence from the perspective of the more current country
information and guidance. This was unreasonable and constitutes a reviewable
error.
Email this Content