Docket: IMM-2164-17
Citation:
2017 FC 1172
Ottawa, Ontario, December 20, 2017
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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TSINAT TESFAY
YHDEGO
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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] Before the Court is an application for judicial review of the
decision of a visa officer of Citizenship and Immigration Canada (the Visa
Officer), dated November 18, 2016, which denied the applicant’s application for
a permanent resident visa as a member of the Convention refugee abroad class or
the humanitarian-protected persons abroad designated class. The Visa Officer
was concerned that the applicant had not answered truthfully all questions put
to him for the purpose of examining his application, as required by s. 16(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27.
[2] For the reasons that follow, I have determined that this application
should be dismissed.
II.
Facts
[3] The applicant, Tsinat Tesfay Yhdego, is a citizen of Eritrea. He
asserts a fear of the Eritrean government following his desertion from the
Eritrean military. The applicant claims he was a guard at a military prison
beginning in January 2007. He also claims he was imprisoned and tortured there
from July 2008 to December 2009 for failing to shoot suspected illegal border
crossers who ran away from him after being detained. This event, the detention
of suspected illegal border crossers and the applicant’s subsequent
imprisonment for not shooting those who fled, is referred to herein as the Key
Event.
[4] The applicant fled to Sudan following his release from prison. He
also claims continuing fears of arrest and other hardships associated with
living as a Christian refugee in Sudan. These fears include the possibility of
deportation back to Eritrea.
[5] The applicant obtained his status with the United Nations High
Commission for Refugees in Sudan on May 17, 2010. On February 5, 2016, the
applicant submitted his application for permanent residence in Canada,
appending a narrative of the events (including the Key Event) that led to his
flight from Eritrea (the Narrative). The applicant’s former employment with the
Eritrean military caused the Visa Officer to be concerned about the applicant
on security grounds, and prompted an interview with the applicant. The
applicant was interviewed on July 19, 2016, in Khartoum, with the assistance of
an interpreter (the Interview).
[6] The Visa Officer later noted that the applicant had not mentioned
the Key Event during the Interview. Presumably because the applicant had not
been asked to explain that omission during the Interview, a procedural fairness
letter was sent to the applicant on September 26, 2016 (the PFL), in which he
was invited to do so. The wording of this invitation is important, and so the
relevant portion of the PFL is reproduced here:
You wrote the following in the narrative on
file: “…In 14th July 2008 when a group of 20 men were out for
gathering fire wood, we saw three young people passing by. Our chief ordered us
to stop [them] and as we later knew were, making their way to Sudan as a
teenage girl confessed when interrogated. The chief nominated me to take them
to our base garrison and two of them, the boys, started to run away blindly
while I fired warning shots into the air the only way to stop them was by
shooting at them but I still refrained from doing so and I remained with only
the girl and handled her to the main officer after narrating to him all what
had happened. When the squad head came back I was summoned to the main officer.
They suspected me of assisting the individuals to flee. They continued putting
baseless allegations against me and said I was trying to hinder them in their
endeavour to stop illegal border crossing. The main chief of my unit said ‘you
had the gun in your hand why didn’t you shoot them’. Thus I was taken
responsible for the escape of the boys and as a charge of I was jailed from 15th
of July 2008 to 10th of December 2009 at the prison centre of my
respective place…”
During your interview in Khartoum on July 19th
2016, you failed to mention this incident even though the Visa Officer asked
several questions that would have been relevant occasions to do so. For
example, the Visa Officer asked you:
- what were your duties as a guard?
- did you see prisoners being detained while you were guarding?
- did you ever see anyone trying to escape?
- were you part of the team controlling to make sure no one
escaped?
- what happened to that made you escape?
- when you were guarding did you have an order to shoot anyone
you say [sic] escaping?
Your answers to all of these questions do
not reflect the facts presented in the written narrative. This is a significant
discrepancy that is highly relevant to your admissibility assessment.
I would like to provide you with the
opportunity to explain the discrepancy.
[7] The applicant’s response to the PFL (the Response Letter) referred
to the Key Event and expanded on his answers to the questions listed in the
PFL. However, the applicant failed to explain why he did not mention the Key
Event during the Interview.
III.
Impugned Decision
[8] The Visa Officer rejected the application principally due to the
applicant’s failure to provide the missing explanation. The Visa Officer also
noted several discrepancies between the Narrative, the Interview and the
Response Letter. The reasons for the Visa Officer’s decision are found in a
letter that was sent to the applicant, as well as in Global Case Management
System (GCMS) notes.
[9] The cited discrepancies are discussed below.
[10]
Ultimately, the Visa Officer was of the view
that the discrepancies undermined the applicant’s credibility, which in turn
hindered the Visa Officer’s admissibility analysis. The following extract from
the GCMS notes shows the Visa Officer’s reasoning:
Based on careful consideration of all of
these facts and the discrepancies in the information presented by PA, I am not
satisfied that he is credible. Credible information about his experience during
this period is critical for the completion of a proper assessment of whether or
not PA is admissible to Canada, specifically whether or not he might be
described in A35(1)(a) for having participated in actions against prisoners
which could constitute a crime against humanity. Given the large body of
evidence in the form of human rights reports about the violent treatment of
prisoners in Eritrea during the period while PA was a prison guard, clear and
credible facts about PAs activities in national service are central to this
assessment. They are also central to the determination of whether or not, based
on his experience, he would face persecution in Eritrea. In the absence of
credible information that is directly relevant, am not satisfied that PA meets
requirements for immigration to Canada. Refused.
IV.
Issues
[11]
The applicant raises two categories of issues.
First, the applicant argues that the PFL was not sufficiently clear in asking
for an explanation as to why the applicant did not mention the Key Event during
the Interview. The applicant argues that, without having put the applicant on
notice of the Visa Officer’s concern, it was unfair to make any decision on
this basis.
[12]
The second category of issues raised by the
applicant concerns the various discrepancies noted by the Visa Officer in the
GCMS notes. The applicant argues that the differences cited are minor and it
was unreasonable to characterize them as discrepancies or to draw any negative
conclusions from them.
V.
Analysis
A.
Standard of review
[13]
The parties do not appear to disagree on the
subject of the applicable standard of review. Procedural fairness is reviewed
on a standard of correctness: Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43. The various inconsistencies found by the Visa Officer,
and the conclusions drawn therefrom, are findings of fact and mixed fact and
law which are reviewed on a standard of reasonableness: Rocha v Canada
(Citizenship and Immigration), 2015 FC 1070 at para 19.
B.
Procedural Fairness
[14]
In my view, it was reasonable for the Visa
Officer to be concerned about the applicant’s failure to mention the Key Event
during the Interview. The Key Event (the escape of the detainees and the
applicant’s consequent imprisonment) was the principal trigger mentioned in the
Narrative for his flight from Eritrea.
[15]
The PFL was important because the applicant had
not been asked during the interview to explain his omission. Fairness required
that he be given a chance to provide an explanation. This was particularly so
in view of the Visa Officer’s opinion, as subsequently reflected in the GCMS
notes, that this was “a major discrepancy” which
was the “primary concern”.
[16]
The applicant argues that the PFL failed to ask
the specific question that was the main concern: “Why
didn’t you mention the Key Event during the Interview?” The applicant
argues that, instead, the Visa Officer simply pointed out the omission and then
listed a number of questions in response to which the Key Event might have been
mentioned. He argues that the request thereafter to explain the discrepancy is
not sufficiently clear to give the applicant notice of the Visa Officer’s
primary concern. That request is reproduced here for convenience:
Your answers to all of these questions do
not reflect the facts presented in the written narrative. This is a significant
discrepancy that is highly relevant to your admissibility assessment.
I would like to provide you with the
opportunity to explain the discrepancy.
[17]
I accept that the PFL could have been clearer in
communicating the Visa Officer’s primary concern. I hold this view because the
request for an explanation is in relation to “the
discrepancy”, which is defined in the PFL’s preceding paragraph, and can
only really be understood by reference to the extract from the applicant’s
narrative which is quoted several paragraphs earlier in the PFL. An explicit
question of the kind provided in the previous paragraph would have been
clearer.
[18]
Nevertheless, I am not convinced that the
applicant was not given fair notice that the Visa Officer wanted an explanation
as to why he failed to mention the central event of his Narrative when he was
interviewed. For one thing, it was clearly an important omission, especially
given some of the questions that were asked during the Interview (see
discussion below). In addition, a careful reading of the PFL shows a clear reference
to the omission, followed by a characterization thereof as “a significant discrepancy”, followed by a request for
an explanation for “the discrepancy”. In the
circumstances of this case, it is my view that the Visa Officer’s concern and
wish for an explanation were fairly put to the applicant, and the mere fact
that the request in the PFL could have been written more clearly is not
sufficient to establish otherwise.
[19]
My view is not altered by the fact that the
applicant clearly has difficulty with the English language. The applicant’s
difficulty in understanding the Visa Officer’s primary concern appears to be
more in relation to the applicant’s diligence in reading the PFL than any
translation issues.
[20]
I am also mindful that, even now, the Court has
not been provided with a convincing explanation as to why the applicant failed
to mention the Key Event during the Interview.
[21]
Once the Visa Officer had fairly put the concern
to the applicant and requested an explanation, there was no need to repeat that
request in a second procedural fairness letter, even in the absence of the
requested explanation in the applicant’s Response Letter.
C.
Cited Discrepancies
[22]
As indicated above, the applicant responded to
the PFL by expanding on his answers to the six questions listed therein. The
Visa Officer found discrepancies in the applicant’s statements in relation to
each of those six questions. Each of these is discussed separately under the
respective headings below. I begin each section with a reproduction of the
relevant portion of the Visa Officer’s GCMS notes. For ease of reading, I have
reformatted these notes, though without altering the wording. I have not
attempted to make any corrections to spelling, grammar or syntax. It should be
noted that the references to the applicant’s statements and answers in the GCMS
notes are not always verbatim. However, in my view, they are a fair indication,
for the purposes of this analysis, of what the applicant said.
(1)
Question: What were your duties as a guard?
[23]
Text from GCMS notes:
Narrative: On
1 January 2007 I was deployed to the army unit 6th brigade at Mietr Military
detention and rehabilitation and reformation centre to work there as a sentinel
for the prisoners.
Answer at interview: I was in the gate and our job was to control the staff members of
the prison that they don’t help the prisoners to escape and we check who goes
in and out because the gate is 100 meters from the prison.
Answer in response to PFL: duties were to patrol at the gate, of the entire prison compound
and controlling in and out let of the prison. Main duties was being in the gate
to register for every on or item or any one of my colleagues and different
police members and office staffs, works and soon and to surrender my all the
documents’ I had received from the guard who was before me to the next in
queue.
Discrepancies between the answers: PA [principal applicant] has provided contradictory information
about whether he was responsible for monitoring the prison and prisoners or
simply located at the gate with no direct contact with prisoners. While in the
narrative he referred to being a sentinel for prisoners, and in the response to
PFL he declared he was responsible for the entire prison compound, at interview
he stated that “We were located a bit far from [the prisoners] and they have
their own staff. We can see them from far but I have never been close to the
prison because it is surrounded by a wire gate.”
[24]
In my view, it was not unreasonable for the Visa
Officer to find an inconsistency between the suggestion in the applicant’s
Narrative that he had contact with prisoners, and the suggestion during the
Interview that he did not.
[25]
Moreover, the applicant’s statement during the
Interview that he had never been close to the prison is particularly difficult
to reconcile with his statement in the Narrative that he spent about 17 months
there as a prisoner. Though the Visa Officer did not focus on this particular
inconsistency, it is an important additional consideration related to the
applicant’s failure to mention during the Interview the Key Event, or the
imprisonment and torture that followed it.
(2)
Question: Did you see prisoners being detained
while you were guarding?
[26]
Text from GCMS notes:
Narrative: as
cited in the PFL, describes an event when PA was directly involved with
detaining fleeing prisoners.
A: We were
located a bit far from them and they have their own staff. We can see them from
far but I have never been close to the prison because it is surrounded by a
wire gate.
Answer in response to PFL: “as I was there it was a must issue to see for the prisoners to
observe them while they are going out and inside of the gate where I was assigned
for patrolling the gate.”
PA has provided contradictory information
about whether or not prisoners used the gate he was guarding. In the narrative,
he describes observing prisoners go out for firewood gathering activities and
in response to the PFL he stated that prisoners did use the gate he guarded but
at interview he stated that he was controlling the staff of the prison and
those providing food and water to the prison.
[27]
The applicant argues that the Narrative suggests
that the young people discussed in the context of the Key Event who were
detained and who then fled were not prisoners but simply passers-by who were
detained as suspected illegal border crossers. The applicant also argues that
there is no inconsistency between his statement that he observed prisoners and
the suggestion that he was not responsible for guarding them. The applicant
argues that it was therefore unreasonable for the Visa Officer to perceive any
discrepancy here.
[28]
It may be technically correct that the suspected
illegal border crossers were detainees and not prisoners. However, I am not
convinced that it was unreasonable for the Visa Officer to perceive a
discrepancy here. In his Narrative, the applicant described his involvement in
the collection of firewood by a group of 20 men (presumably prisoners) and his
assignment to take charge of detainees. His proximity to prisoners and
detainees as described in the Narrative in the context of the Key Event stands
in stark contrast to the impression given during the Interview that he had
little contact with prisoners.
[29]
Again, his statement in response to this
question during the Interview that he had seen prisoners from far but had never
been close to the prison is difficult to reconcile with his claim that he was a
prisoner there himself over a period of 17 months.
(3)
Question: Did you ever see anyone trying to
escape?
[30]
Text from GCMS notes:
Narrative:
describes a specific event when he was directly involved with prisoners trying
to escape.
A: The place
is not a place where you can try to escape. It is a dead area with high
temperature. No one can escape from there and there is a serious controlling.
Answer in response to PFL: Yes, Sure…
While PA declared in the narrative and in
response to the PFL that he did see prisoners escape on at least one very
memorable occasion, he made no reference to that central event at his
interview. This is a significant discrepancy.
[31]
Again, it is possible that the detainees who
fled from the applicant’s custody were not technically prisoners at the time.
But again, I am not convinced that the Visa Officer’s characterization of them
as prisoners amounts to a reviewable error. In attempting to reconcile the
information in his Narrative and the answers he gave during the Interview, the
applicant did not explain that he did not consider the escapees described in
the Narrative as prisoners. Rather, he appears to focus on stating that it was an
unusual occurrence for him to have charge of detainees.
[32]
In my view, it was reasonable for the Visa
Officer to perceive a discrepancy here. Certainly, when asked during the
Interview whether he had ever seen anyone trying to escape, his failure
to mention the Key Event was conspicuous and demanded an explanation.
(4)
Question: Were you part of the team controlling
to make sure no one escaped?
[33]
Text from GCMS notes:
Narrative:
describes an event when he was part of a team controlling to make sure no one
escaped.
A: I was not
in charge of that thing. I was in charge of the staff, who comes in and who
comes out. There is a gate, we check in the water truck when we come in and
out.
Answer in response to PFL: No.
Again, significant discrepancy in answers to
this question.
[34]
This is yet another instance in which the
applicant’s answers during the Interview seem to ignore the Key Event, and
conspicuously so. The fact that the applicant’s omissions concern events in
which he was in charge of prisoners/detainees gives reason to the Visa
Officer’s concern. Based on the whole of the reasons, including the passage
quoted in paragraph [10] above,
the Visa Officer seems to have been concerned that, during the Interview, the
applicant may have sought to minimize the appearance that he had involvement
with prisoners.
[35]
I see no error here.
(5)
Question: What happened that made you escape?
[36]
Text from GCMS notes:
Narrative:
after being accused of failing to shoot at the escaping prisoners, PA was
imprisoned for 18 months. After this experience, days after he was discharged
from jail he fled.
A: I grew up
with my grandmother and when I was first posted to the military it was not by
my own will it was because I was over age and they said I can’t proceed with my
education and I didn’t like that. And I had stayed 3 years in military and this
was not what I wanted. There is always stress and the people you deal with
don’t have the same mentality as I so I decided to leave the country.
Answer in response to PFL: fled after being tortured and imprisoned and deprived if
education.
Major discrepancy in the answers in that at
interview PA did not mention imprisonment as a reason for deciding to leave
Eritrea.
[37]
The applicant argues that a person may have more
than one reason for fleeing his home country, and that the Visa Officer’s
perception of a discrepancy here was unreasonable.
[38]
While I accept that a person may have more than
one reason for fleeing, it was reasonable for the Visa Officer to be concerned
about the failure to mention the Key Event during the Interview, especially
since it was the principal reason that was mentioned in the Narrative. It was
also reasonable for the Visa Officer not to be satisfied with the applicant’s
Response Letter, which did not attempt to explain why the Key Event was not
mentioned.
[39]
In view of the applicant’s silence about the Key
Event during the Interview, it would have been reasonable for the Visa Officer
to form the impression that the applicant did not have that event in his mind
at that time, and to question how that could be. I myself have formed that
impression and have that question.
[40]
If the applicant did have the Key Event in his
mind during the Interview, he seems to have gone to some length to avoid
mentioning it. I note a passage from the GCMS notes of the Interview where the
applicant was asked how long he acted as a guard at the prison. His answer is
indicated as “1 year and five months Jan 2007 to
December 2009.” This indicates two different periods. The “1 year and five months” correctly reflects the time
from the applicant’s arrival at the prison until his imprisonment. However, the
“Jan 2007 to December 2009”covers the whole
period that he was at the prison, either as a guard or as a prisoner. This is
another instance that makes it difficult to understand how the applicant could
have failed to mention the Key Event during the Interview.
(6)
Question: When you were guarding did you have an
order to shoot anyone you saw escaping?
[41]
Text from GCMS notes:
Narrative: PA
fired warning shots into the air as the only way to stop escaping prisoners and
was later blamed for not shooting them.
A: Because we
were in the gate and we did not have that kind of order?
Answer in response to PFL: no, but he was accused of not shooting youths on the day of the
escape.
PA has provided slightly different answers
to all these questions on three occasions. Overall, my greatest concern is that
the incident which is most central to his refugee story as presented in the
narrative submitted with the original application was not mentioned at all at
interview. In response to my PFL, PA did confirm that the event described in
the narrative did occur, but he did not explain why he failed to mention it at
interview.
[42]
The applicant argues that he never indicated
that he had received any orders to shoot prisoners. He acknowledges that he was
imprisoned for failing to shoot escapees, but he does not acknowledge having
received orders to do so. The applicant also notes that the Visa Officer
acknowledged that the differences between the applicant’s various statements on
this point are slight. The applicant argues that it would be more suspicious if
the applicant did not have slight differences in his answers to the same
question asked three times.
[43]
First, the Visa Officer’s acknowledgement that
the differences in the applicant’s statement are slight suggests that less
weight was given to these differences. The Visa Officer’s initial concerns with
regard to orders to shoot are not indicated in the GCMS notes as a discrepancy.
[44]
More importantly, this is another instance in
which the applicant’s failure to mention the Key Event during the Interview is
conspicuous, and the Visa Officer’s concern that this failure was not explained
is reasonable. It is difficult to understand how the applicant, having been
asked during the Interview about orders to shoot anyone, could have failed to
mention the central event of his Narrative which involved his receiving severe
punishment and torture for having failed to shoot people.
(7)
Conclusion regarding Perceived Discrepancies
[45]
In my view, all of the concerns expressed by the
Visa Officer in the GCMS notes are reasonable. I see no reviewable error in the
conclusions reached with regard to discrepancies in the applicant’s various
statements and answers.
VI.
Conclusions
[46]
This application should be dismissed.
[47]
The parties are agreed that there is no serious
question of general importance to be certified in this case.
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