Docket: IMM-3292-16
Citation:
2017 FC 337
Ottawa, Ontario, March 30, 2017
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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EDEN TEKESTE
TESFAMICHAEL
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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]
The Applicant seeks judicial review of the
decision of an immigration officer [the Officer] at the Canadian High
Commission in Dar es Salaam, Tanzania, dated August 11, 2016, dismissing her
application for permanent residence in Canada as a member of the Convention
Refugee Abroad Class or of the Humanitarian-Protected Persons Abroad Class on
the basis of credibility concerns.
[2]
The relevant facts can be summarized as follows.
The Applicant is a national of Eritrea. She moved to Uganda in August 2007 where
she sought refugee protection, claiming persecution from the Eritrean
authorities due to her religious beliefs. The Applicant claims to be a born
again Christian of Pentecostal faith. In 2008, she applied for permanent
residence in Canada under the Convention Refugee Abroad Class. However, her
application was closed as she failed to appear for her scheduled interview.
[3]
In March 2013, the Applicant married Samuel Habtemichael
Yebyo, who is also of Eritrean nationality and a follower of Pentecostal
faith. Mr. Yebyo is claiming asylum in Uganda on the basis of his religious
beliefs. In 2014, the Applicant submitted her current application for permanent
residence in Canada and listed her husband as a dependant. She claims that she
suffered greatly due to her religious beliefs since 2002 when the government of
Eritrea decided to ban minority faith groups, close worship places and
indiscriminately detain members of the Pentecostal faith. According to her narrative,
she was arrested by government security officials in December 2006 while
attending a prayer program at a friend’s home, detained for six months and,
while in detention, subjected to torture and humiliation and at gun point,
ordered to change her faith.
[4]
On June 14, 2016, the Applicant and her husband
were interviewed by the Officer. The Officer noted a number of contradictions
in the Applicant’s evidence, specifically with regard to her escape from Eritrea
and her detention where she responded “no” when
asked if she had been tortured. He also noted that the Applicant claimed to be three
or four years older than her husband while the later claimed to be one or two
years older than the Applicant. Given that the Applicant alleges being born in
1979 and that her husband was supposedly born in 1985, these inconsistencies
raised concerns concerning the Applicant’s identity.
[5]
The Officer concluded as follows in his letter
for decision:
After carefully assessing all factors
relative to your application, I am not satisfied that you are a member of any
of the classes prescribed because I am not satisfied of your eligibility. There
are contradiction on facts and dates provided and the chronology of your story
in unclear. I have concerns on your credibility, which affects the basis of
your claim. I also am not satisfied of your identity; as date of births for you
and your husband were unclear and contradictory. I have also assessed your
husband’s eligibility, but given the contradictions and gaps in his timeline, I
also have concerns on his credibility, which affects the basis of his claim. Therefore,
I am also not satisfied that he is eligible. I considered your responses
and your husband’s responses when given an opportunity to provide an
explanation, but I do not find them sufficient to explain the issues
stated above. Therefore, I am not satisfied that either you or your husband
meet the Convention refugee definition nor the asylum class. Therefore you do
not meet the requirements of this paragraph […]
[6]
In his interview notes, the Officer had this to
say regarding his concerns:
Eligibility concerns: REFUSED I have
significant concerns on PA’s eligibility. There are contradiction on facts and
dates and the chronology is unclear. For example, the PA first said she fled
Eretria in 2006. She later said 2007. Flight dates are therefore unclear. The
PA also wrote in her application that she was tortured when she was in prison. However,
when asked if she was tortured in prison, she responded “no”. When prompted
about that contradiction, the PA responded “It has been a long time, it was 9
years ago so I’m forgetting some”. I do not find that explanation satisfactory,
as someone who has gone through torture – a traumatic experience – would
remember. When I explained to the PA the contradictions in her claim and my
concerns on her credibility, she responded “It has been a long time and I
forget things. If you can help me please because I am totally confused.” I also
do not find that the fact it has been a long time explains the contradictions
in her claim. I also have concerns on the PA and the husband’s ID. The
applicant says that her husband is 3 or 4 years younger than her. The husband
says he is 1 or 2 years younger than the PA. He also claims that the DOB on his
refugee ID card is wrong and that it is not 1985. It is odd that they would not
know their age difference or their actual DOB, even though they claim to have
been married since March 2013. They do not seem to know basic information about
each other. I therefore have concerns about the genuineness of the
relationship. Since DOB is essential to identification, I also have concerns
about their ID. […].
[7]
The Applicant submits that the Officer erred in
four ways: (i) by failing to recognize the Ethiopian calendar when concluding
that there were contradictions on the date she fled Eretria; (ii) by making
unreasonable findings on evidence of torture; (iii) by doubting the Applicant’s
identity without regard to the material before her; and (iv) by questioning the
Applicant’s credibility on the basis of the Applicant’s husband own
credibility.
[8]
Decisions as to whether or not an applicant is a
member of the Convention Refugees Abroad Class or the Country of Asylum Class
involve questions of fact or mixed fact and law, and as a result, are to be
reviewed using the reasonableness standard (Sivakumaran v Canada
(Citizenship and Immigration), 2011 FC 590 at para 19). Reasonableness, as
is now well-settled, is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process, and whether
the impugned decision falls within a range of possible, acceptable outcomes (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59; Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
[9]
With respect, I see no reason to interfere with
the Officer’s decision.
[10]
First, I do not find the Applicant’s arguments
based on the Ethiopian calendar compelling. As the Respondent points out, the
difference between the Ethiopian and Western calendars was not raised by the
Applicant when she was confronted by the Officer about the inconsistencies
regarding the date she fled Eritria. She rather attributed her memory failures
to the passage of time. There is no evidence either suggesting that this
difference may have been the source of the Applicant’s inconsistent evidence. As
for the Applicant’s claim that the Officer was under a duty to consider the
existence of the Ethiopian calendar irrespective of the fact she herself never
raised it when asked about the inconsistencies, I find this Court’s decision in
Haji c Canada (Citizenship and Immigration), 2015 FC 868, where this
argument was dismissed, to be persuasive authority.
[11]
Second, I consider the Officer’s findings
respecting the evidence of torture to be reasonable. The fact that the
Applicant responded “no” to the question “Did they torture you?” contradicts her narrative in
support of her permanent residence application in which she stated “[…] we were taken to Mysirwa detention center where we were
subjected to torture and humiliations”. The Applicant’s contention that
the question was ambiguous, particularly given the various legal definitions of
the notion of torture, is without merit. The question was straightforward and
unambiguous.
[12]
Again, the Applicant was given a chance to
answer the Officer’s concern regarding this contradiction and responded that “it had been a long time, it was 9 years ago so I am
forgetting some”. Her further contention regarding possible memory
suppression or post-traumatic syndrome disorder as a reason for her forgetting
the torture is also without merit since there is no evidence whatsoever on
record to support it. Also, it does not explain, as the Respondent rightfully
puts it, why the Applicant remembered having been tortured when she wrote her application’s
narrative but said she was not at the interview with the Officer. The fact the
Officer told the Applicant that if she had been tortured she would remember
was, in these particular circumstances, a reasonable and logical assumption.
[13]
Third, the Applicant claims that the Officer’s
concerns about her identity are unreasonable given that she gave a consistent
date of birth in her application materials and at the interview. The Officer’s
concerns arose from the inconsistent evidence given by the Applicant and her
husband about their age difference despite being married since 2013. The
Applicant first testified that she was three to four years older than her
husband. Then, when confronted with her year of birth and that of her husband,
she indicated that the age difference was about five to six years. The husband
testified that he was a year or two older than the Applicant.
[14]
The Respondent agrees that the Officer could not
use the husband’s credibility finding against the Applicant. However, he claims
that the Officer was permitted, as is often done in cases with multiple
applicants being interviewed together (Musse v Canada (Citizenship and
Immigration), 2012 FC 883 [Musse]) to consider the husband’s answers
to assess the credibility of the Applicant’s own evidence provided she was aware
of her husband’s answers. The Respondent contends that this is the case here as
the Applicant and her husband, who had also put forth a permanent residency
claim although he was not the principal applicant, were interviewed together.
[15]
I am prepared to accept that the Officer was
allowed to consider the contradictions with regards to age difference and to conclude
as he did on that point. But even assuming that the Officer was not entitled to
do so or exceeded what Musse allowed him to do, this, in my view, would
not affect the reasonableness of the Officer’s decision when considered as a
whole.
[16]
Finally, the Applicant contends that the Officer
erred by blending his assessment of the Applicant’s application and that of her
husband’s. In other words, she claims that the Officer was not entitled to
assess them as a couple. I agree that the Officer was not empowered to do so
but when one looks at the Officer’s interview notes I am satisfied that the
Officer proceeded to make an independent assessment of the Applicant’s claim
and that he came up with separate findings with respect to the Applicant and
her husband’s claims based on their respective evidence. As the Respondent
correctly points out, ultimately, the Officer’s findings regarding the
Applicant’s credibility and her claim were based on evidence that she submitted
and concerns that were put to her. Again, I see no reason to interfere with
these findings.
[17]
The judicial review application is dismissed. No
question is certified.
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