Docket: IMM-5474-15
Citation:
2016 FC 747
Toronto, Ontario, July 4, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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AMLESAT HADESH
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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
[1]
This is a judicial review of a decision of the
Refugee Protection Division [RPD] of the Immigration and Refugee Board of
Canada, determining that the Applicant is not a Convention refugee pursuant to
section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27
[IRPA] nor a person in need of protection pursuant to section 97 of IRPA. The
RPD also found that the Applicant’s claim does not have a credible basis.
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Applicant, Amlesat Hadesh, claims to be a
national of Eritrea, and alleges fear of persecution there on the basis that
she evaded military service. She left Eritrea and went to Sudan in July 2009
and then to Israel in April 2010, residing in Israel for approximately 5 years
before arriving in Canada on July 14, 2015.
II.
Impugned Decision
[4]
The RPD found that the determinative issues in the
Applicant’s claim were identity and credibility as it relates to identity. It
rejected her claim on the basis that she was not a credible witness and had not
met the burden to establish her identity on a balance of probabilities as
required by Section 106 of IRPA and Rule 11 of the RPD Rules.
[5]
The Applicant did not have any identity
documents from Eritrea. She therefore presented other supporting documents to
establish her identity including Israeli resident documents, a baptism
certificate, and letters and national identity cards [NICs] from family
members. She also called as a witness a former resident of Eritrea, now a Canadian
citizen, who testified to knowing her and her family in Eritrea prior to 1997.
[6]
The RPD found that inconsistencies in the
Israeli documents undermined the Applicant’s credibility as to her identity.
This included reversal of her first name and surname from one document to
another, different spellings of her name, and the fact that her Israeli
temporary permits cards gave a different surname (Beyane) which did not appear
in any other Israeli document or her Basis of Claim [BOC] form. The RPD also
gave the Israeli documents no weight, because the Applicant testified that she
did not present any identity documents to Israeli authorities when she entered
Israel, and there was no evidence as to how Israel determined her identity.
[7]
The RPD also afforded no evidentiary weight to the
Applicant’s baptism certificate, as it gave only her first name and no surname,
and used a spelling of her first name and her mother’s first name different
than the Applicant had used in her BOC. There were also no security features on
the certificate or accompanying photo to establish that it was properly issued
and was issued to the Applicant.
[8]
The Applicant’s evidence included a letter from
Mr. Hadish Beyene, who claimed to be her father, attaching copies of NICs for
him and the Applicant’s mother. The NICs have different years of birth for the
parents than the Applicant had identified in her BOC. When questioned on this, she
testified that she did not know the exact dates of birth for her parents and
simply guessed. The RPD rejected this explanation, as she had the assistance of
counsel in completing her BOC, which gives instruction to give a person’s
approximate age if the date of birth is not known.
[9]
With respect to the witness who testified before
the RPD, it remarked that his knowledge of the Applicant and her family was
very basic and limited and that he had had no contact with her since 1997.
While the RPD accepted that the witness personally knew the Applicant in
Eritrea at some point in time before 1997, it found his evidence did not
establish her identity or her current national identity as a citizen of Eritrea
and no other country.
[10]
In rejecting the Applicant’s claim on the basis
that she had not established her identity on a balance of probabilities, the
RPD also determined that, given her lack of credibility and the lack of
independent credible evidence linking her to potential persecution or risk of
harm, there was no credible basis for her claim.
III.
Issue and Standard of Review
[11]
The Applicant submits that the RPD erred in
concluding both that her evidence was not credible and that there was no
credible basis for her claim. The parties agree, and I concur, that the
decision is to be reviewed on a standard of reasonableness.
IV.
Analysis
[12]
The Respondent argues that the RPD is experienced
in reviewing identity documents and that its assessment of such documents
should be given significant deference. I agree with this submission.
Nevertheless, I do not find the RPDs decision to be a reasonable one. As argued
by the Applicant, the RPD failed to consider evidence contained in its National
Documentation Package [NDP] on Eritrea that might have alleviated some of the principal
concerns that resulted in it giving no weight to key documentary evidence
offered to establish the Applicant’s identity. While the RPD must be afforded
deference because of its expertise, this expertise extends to assessment of the
country condition documentation. As explained below, there is information in
the NDP which arguably assists in explaining some of the main inconsistencies
in the Applicant’s identity documents identified by the RPD, which information
does not appear to have been taken into account by the RPD in reaching its
decision.
[13]
The NDP includes a Country of Origin Information
Report related to Eritrea issued by the European Asylum Support Office (EASO)
in May 2015, which explains that Eritrean names do not have surnames in a
European sense. Rather, the first name is followed by a person’s father’s first
name and his or her grandfather’s first name.
[14]
The NDP also includes a Response to Information
Request from December 2014, related to Eritrean birth certificates, which
refers to information provided by a United States embassy official that there
is no standard transliteration of Tigrinya (the language spoken in Eritrea), as
a result of which name changes and different spellings are seen on Eritrean
birth certificates. While the embassy official’s particular comments relate to the
spelling of the name of the central region “Zoba
Maekel” or “Zoba Maakel”, the point about
transliteration and non-standardization of spellings appears to be one of more
general application. The Applicant argues that the lack of a standard
transliteration from the Tigrinya alphabet to the Latin alphabet results in
there being different spellings of Eritrean names.
[15]
These two points (the Eritrean naming system and
the lack of a standard transliteration) could serve to explain some of the main
inconsistencies identified by the RPD in what are arguably the most significant
identity documents, the Israeli documents and the baptism certificate. These
inconsistencies are as follows:
A.
While the Applicant’s Israeli prison medical
record states her name as “Amleset Hadesh”
(consistent with her BOC), her Israeli temporary permit cards and Israeli
Population and Migration Authority decision record a different spelling of her
first name (Amlest) and a different surname (Beyane);
B.
The baptism certificate records no surname;
C.
The baptism certificate records the first name
as “Amlesat”, while it is recorded in the
Applicant’s BOC with a different spelling “Amleset”;
D.
The Applicant’s mother’s name is recorded in the
baptism certificate as “Letankel Gebre”, while
her BOC records her name as “Letmichael Gebre”.
[16]
The inconsistent spellings identified by the RPD
could be a function of non-standard transliteration. The inconsistent surnames
(Hadesh and Beyane) could be a function of the Eritrean naming system not
employing surnames in the European sense but relying on multiple names in the
paternal line. In that respect, it is relevant, but was not noted by the RPD,
that the baptism certificate records the Applicant’s father’s name as “Hadesh Beyene” which, except for the varied spelling
of “Beyene”, contains the two surnames, one of
which appeared in each of her Israeli prison medical record, temporary permit
cards and Israeli Population and Migration Authority decision. This is
consistent with the evidence from the NDP as to how Eritrean surnames are
derived. That information about the Eritrean naming system also assists in
understanding why the baptism certificate identifies the Applicant’s father’s
name rather than expressly referring to a surname.
[17]
I am conscious that the RPD is not required to
refer to every piece of evidence it has considered. However, the more important
the evidence that is not mentioned and analyzed, the more willing a court may
be to infer that a finding was made without regard to that evidence (see Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425,
157 FTR 35 at paras 16-17). My conclusion is that the failure either to refer
to the information available from the NDP as described above, or to conduct an
analysis of the identity documentation with an evident understanding of the
information surrounding the Eritrean naming system and transliteration from the
Tigrigna script, renders the decision unreasonable.
[18]
I appreciate that the RPD’s decision contains
other reasons for giving no weight to the Applicant’s identity documents,
including the reversal of the Applicant’s first name and surname on the prison
identity documents. It also found that there was no evidence that the
Applicant’s name and personal information as recorded in the Israeli documents
by Israeli authorities originated from reliable sources, and that she did not
have any knowledge of what information would have been presented in order to
obtain the baptism certificate. However, the RPD’s decision was sufficiently
influenced by the concerns about the variety of spellings and surnames that the
Court cannot know whether it would have discounted the Israeli documents and
the baptism certificate to the extent it did, and therefore would have reached
the same decision with respect to her credibility, had it not made the errors
identified above.
[19]
Having concluded that this application for
judicial review must be allowed based on errors in the RPD’s credibility analysis,
and as the no credible basis finding followed from the adverse credibility
determinations, that finding must also be revisited.
[20]
The parties did not propose any question of
general importance for certification for appeal, and none is stated.
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