Docket: IMM-841-19
Citation: 2019 FC 1411
Ottawa, Ontario, November 12, 2019
PRESENT: The Honourable Mr. Justice Roy
| BETWEEN:
|
| ZELALEM FISIHA WOLDEMARYAME
|
| Applicant
|
| and
|
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
[1]
This judicial review application concerns a redetermination by the Refugee Appeal Division [RAD] following a judgment of this Court granting a judicial review application with respect to a previous RAD decision (2018 FC 58). This second challenge to a RAD decision is made pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA or the Act]. For the reasons that follow, the Court concludes that this redetermination violated procedural fairness principles and must therefore be set aside.
I.
Facts
[2]
Given the result reached in this case that the RAD decision fails procedural fairness principles, it will not be necessary to consider the facts in any details. Indeed, neither the Refugee Protection Division [RPD] nor the RAD ever reached the merits of the claim for protection as the adjudication of the claim has not gone beyond the issue of the identity of the applicant.
[3]
For our purposes, it will suffice to refer to the short description of the allegation in support of the claims made pursuant to sections 96 and 97 of the Act:
[4] Details of the claimants’ allegations are documented in his Basis of Claim (BOC) form narrative and in oral testimony. The claimant alleges that he is a citizen of Ethiopia, and that he has been persecuted by the government of Ethiopia for his political opinion, namely, for his membership in the Coalition for Unity and Democracy (CUD). The claimant joined the CUD in January, 2005, and states that he was arrested in December, 2005 and detained for three months before being released on a promise not to support the CUD. The claimant states he was detained again on November 3, 2008, accused of continuing involvement with the CUD, and was detained until he was able to escape on November 29, 2008. He then fled to South Africa, where he lived illegally until January, 2015, when he left to travel to the United States with a smuggler. The claimant arrived in the USA on March 17, 2015 where he made an asylum claim which was refused. The claimant travelled to Canada on July 2, 2016 and made a refugee claim shortly thereafter.
[RPD decision, para 4.]
II.
The proceedings
[4]
The RPD concluded, on October 17, 2016, that the applicant had not established his personal and national identity; accordingly the claim was rejected, as “without a proven identity, the panel cannot find a serious possibility of persecution or risk to the person”
(RPD decision, para 9).
[5]
On appeal before the RAD, the decision was upheld (May 29, 2017). The initial RAD decision is not an easy read jumping from pillar to post in an attempt to conclude that the identity of the claimant had not been established. It is not always possible to relate comments made by the RAD to the issue it purports to decide, that of the claimant’s identity. Pursuant to section 110(4) and 110(6) of the Act, the applicant sought to present new evidence and for the RAD to hold a hearing. Perhaps the most important new piece of evidence was ruled to be inadmissible and an oral hearing was denied.
[6]
The RAD admitted, in the first appeal decision, as new evidence five articles. They are:
Article from Human Rights Watch, titled Ethiopia: State of Emergency Risks New Abuses, published October 31, 2016;
Article from Aljazeera, titled Ethiopia State of Emergency Arrests Top 11,000, published November 12, 2016;
Article from Quartz Africa, titled Posting on Facebook is now a crime under Ethiopia’s state of Emergency, published October 17, 2016;
Article from the World News, titled Ethiopia announces new curbs as part of state of emergency measures, published October 16, 2016;
Article from Human Rights Watch, titled Legal Analysis of Ethiopia’s state of Emergency, published October 30, 2016.
It admitted into evidence a copy of an email from the Ethiopian Embassy in Canada about Ethiopian birth certificates (November 21, 2016). Having reviewed the email, the RAD describes its contents as confirming that the birth certificates do not contain security features; the certificate can be identified by the seal and signature of the issuing authority; and the Embassy can verify the legality of any birth certificate issued in Ethiopia.
[7]
However, the RAD ruled that the National ID card [Kebele], arguably the most important new piece of evidence submitted by the applicant, was not admissible. It was not overly clear why it had to be rejected as inadmissible. That is the conclusion reached by this Court on judicial review. My colleague Campbell J. reproduces in their entirety paragraphs 24 to 30 of the RAD reasons. He found that “the RAD immediately resorted to an unfounded implausibility finding and unfounded speculation”
(FC decision, para 13). The Court is critical of RAD comments about the lack of persuasive evidence concerning the state of emergency in Ethiopia, saying that “the RAD resorted to sheer speculation that the Applicant’s state of emergency evidence was “designed to deflect and avoid further exploration” ”
(FC decision, para 15).
[8]
Furthermore, the RAD had found that the evidence concerning the state of emergency in Ethiopia did not support the applicant’s contention that he was prevented from obtaining documents or accessing mail or courier services to send documents to Canada; Campbell J. took issue, finding “that the RAD’s propensity of making findings with no evidentiary basis constitutes reviewable error …”
(FC decision, para 16). In fact, the RAD stated that the applicant had alleged that the National ID card was not located earlier because of the state of emergency: our Court found that it was rather a different explanation that had been given. When asked, the applicant’s sister said originally that the ID card could not be located. It is only when the sister investigated with her mother’s neighbours, in a different location, who, upon the applicant’s and his sister’s mother death, cleared out the house that the ID card was found. That, says the applicant, explains why the ID card was not available earlier. For Campbell J., that constitutes a further erroneous finding as the applicant did not make the allegation that what prevented the obtaining of the National ID card was the state of emergency prevailing in Ethiopia. The Federal Court found the RAD decision unreasonable and remitted the matter for redetermination by a differently constituted panel. The RAD decision under review constitutes that redetermination.
III.
The decision under review
[9]
The only decision before this Court is the RAD decision of January 9, 2019 which considered anew the appeal from the RPD decision of October 17, 2016. I will refer to that second RAD decision as (“Decision II
”
).
[10]
Once again, the RAD concluded “that the RPD did not err in its findings that the Appellant did not establish his identity and was otherwise not credible in respect of the merits of his claim, or in its assessment of the documentary evidence”
(Decision II, para 68).
[11]
Conducting a new appeal, as it should, the RAD made for all intents and purposes “tabula rasa”
. Applying section 110(4) of the Act in view of Canada (Minister of Citizenship and Immigration) v Singh, 2016 FCA 96, [2016] 4 FCR 230, the RAD accepted the National ID [Kebele] card as new evidence. Because of the importance attributed to this new piece of evidence, I reproduce paragraph 13 of Decision II:
[13] In relation to the Singh and Raza factors, the document is certainly relevant and new in terms of its capability of addressing and rebutting the RPD’s finding that the Appellant had not established his identity. In relation to credibility, the timing of the document appearing from the Appellant’s sister after he had vehemently and repeatedly stated he would not be able to get this document is of particular concern. However, having examined the original, on its face, the document does not appear to have any issues. The document therefore meets the initial credibility factor for admission, and further analysis can be conducted below. I therefore admit the Kebele Card as new evidence.
[12]
The articles received into evidence by the first RAD panel are also admitted in the redetermination process. The same is true of the Ethiopian Embassy email which confirms, among other things, that there are no security features on birth certificates. Conversely the RAD accepted into evidence on redetermination two letters rejected by the original panel despite some misgivings about their availability earlier, at the time of rejection. The redetermination panel finds “that because of the state of emergency issue, on its face [sic], the letters were not reasonably available at the time of rejection, and therefore meet the requirements of s.110(4) of the IRPA”
(Decision II, para 20). These letters came from friends of the applicant. They tend to attest to the identity of the applicant.
[13]
The RAD declined to hold an oral hearing, pursuant to section 110(6) of the Act. The reasons given are somewhat unclear. First, the RAD considers it has sufficient evidence to render its decision. Thus it seems that the RAD, at a very early stage, has already decided that case against the applicant. Second, the RAD states being satisfied that the new evidence “is still insufficient to justify allowing the claim, as the new evidence only relates to the identity and not the credibility issue. A new hearing cannot address the merits credibility issues [sic], as the new evidence does not address this”
(Decision II, para 23). It is unclear what is meant by “credibility issue”
and “merits credibility issues”
, even more so when, four paragraphs later, the RAD speaks of “the determinative issues in this case are the Appellant’s identity and the credibility of his claim”
(Decision II, para 27). Indeed, the RAD speaks also of “the credibility of the card”
(Decision II, para 29).
[14]
Is equally nebulous, in my view, the refusal to hold a conference to discuss the Kebele ID card and steps to be taken for verification of authenticity, pursuant to rule 26 of the Refugee Appeal Division Rules, SOR/2012-257. The RAD simply states:
[25] I do not consider a conference necessary to discuss authentication of the Kebele card. I did ask to examine the original card as part of my independent analysis. The Appellant had the ability to get an authentication of the card completed without permission or consultation of the RAD, but did not do so.
[15]
Having admitted into evidence the Kebele ID card, but refusing to hold a conference to discuss issues, relevant facts or any other matter in order to make the appeal fairer, the RAD proceeds to find little value in the card. Here the RAD speaks of the credibility of the card in relation to how it was obtained. The conclusion appears to be based on two grounds. First, the RAD seems to fault the applicant for having told the RPD that it would be almost impossible for his sister to send documents, yet the Kebele ID card was received a few weeks later. Second, it is clear that the RAD had an uneasy doubt about the card itself. Here, the RAD speculates on the appearances of ID cards which, we are told by the RAD, differ from region to region. That makes the RAD conclude that “I would not therefore necessarily expect the Appellant’s card to look the same as the samples in the RIR [Response to Information Request]”
(Decision II, para 33). Evidently, the RAD has qualms about what it called “the credibility of the card in relation to how it was obtained”
(Decision II, para 29), which cannot be anything other than the authenticity of the ID card. Beyond the authenticity of the ID card per se, the RAD seems to see some equivalency between a Kebele card not being accepted by an Ethiopian Embassy for the issuance of a passport, and the same card being, for instance, one element of circumstantial evidence to establish someone’s identity. We read at paragraph 35 of Decision II:
[35] However, the RIR also states that when it comes to the issuing of Ethiopian passports “… regional identity cards, such as kebele cards, are not accepted by the embassy as a document proving Ethiopian nationality for the issuance of passports [citation omitted].”20 If the Ethiopian authorities don’t accept Kebele cards as valid identity documents for their own nationals, it is difficult to see why I should accept the Appellant’s card.
[16]
The RAD continued to put little weight on other elements tending to establish the applicant’s identity. It is said that the “birth certificate is a weak identity document and has little probative value”
(Decision II, para 40); the fact that the US authorities noted the country of origin of the applicant in his US asylum claim does not find favour with the RAD because it did not find that the US authorities conducted a full assessment or, assuming that some assessment was made, on what grounds it was accepted; the fact that the applicant speaks the Amharic language carries little weight because “(l)anguage does not automatically infer a person’s citizenship …”
(Decision II, para 47).
[17]
Then followed the comments on the credibility of the claim. First, the RAD saw some inconsistencies in the testimony of the applicant before the RPD, before the US authorities and in his statement in his Basis of Claim. Accordingly to the RAD, there are variations, in that the applicant’s claims about having been beaten change, from being beaten while in detention to being beaten on his way to detention, to the beating not being mentioned at all. Second, the RAD takes issue with letters of support that are said to be “almost identical”
and extremely brief. Third, the credibility of the applicant is also disputed. However, it is difficult to see how that finding of absence of credibility of the applicant was made. Two issues are considered regarding the applicant’s credibility: there is little to show that he would still be wanted in Ethiopia and, although it is plausible that the documentary evidence of the applicant’s involvement in politics around 2005 does not exist anymore, he is still blamed for not having witnesses and documentary evidence to corroborate his involvement.
IV.
Arguments and analysis
[18]
The judicial review application is based mainly on the alleged violation of procedural fairness in that the RAD, on redetermination, imported findings on identity and credibility without notice or providing the applicant with a chance to respond. Subsidiarily, the applicant argues that those findings on credibility and identity are unreasonable. In view of the conclusion reached in respect of procedural fairness, it will not be necessary to address the reasonableness argument.
[19]
The standard of review is not the subject of dispute. Failure to observe a principle of natural justice or procedural fairness is to be determined on the basis of a correctness standard of review (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 43; Mission Institution v Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para 79). There is therefore no deference owed to the decision maker.
[20]
Perhaps the most important of the procedural fairness principle is that someone has the right to be heard: audi alteram partem. That rule of natural justice is now subsumed under the duty of fairness. In this day and age, it is rather what constitutes the precise procedural content of the duty of fairness in a particular case that attracts attention. The five factors developed in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, for determining what is required in a particular context were helpfully summarized in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650:
5 The content of the duty of fairness on a public body varies according to five factors: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In my view and having regard to the facts and legislation in this appeal, these considerations require the Municipality to articulate reasons for refusing the Congregation’s second and third rezoning applications.
No one doubts that a refugee claim is one of those decisions that is important to an individual. The process followed was also an important factor, especially where the decision maker makes new findings, as an appellate body who did not hear the evidence. Clearly, the applicant was concerned about the new evidence, and it is not an egregious expectation that he should be heard. A person must be afforded a fair opportunity to participate in the decision-making process.
[21]
In their Judicial Review of Administrative Action in Canada (by D. Brown and the Honourable J. Evans, with the assistance of D. Fairlie, Thomson Reuters, loose-leaves), the authors expose succinctly the raison d’être of procedural requirements at paragraph 7:1211:
The underlying premise of this rationale is that the observance of appropriate procedures will increase the likelihood that decisions are more accurate, better informed and thoughtful. Moreover, it is less likely that individuals will be denied their rights or will suffer some other form of prejudice that might result if the administrative action was based on erroneous, incomplete or ill-considered findings of fact, conclusions of law, or exercises of discretion.
Furthermore, requiring procedures that meet a minimum standard of rationality also serves an important public policy purpose. In particular, the public interest, in the equal application of the law requires a minimum standard of rationality in the decisions made. Indeed, without that element of rationality, like may not be treated alike, and the perception, if not the fact, of arbitrariness will more easily arise in the delivery of administrative programmes.
This comment is in my view particularly apposite in this case.
[22]
It is not in the purview of these reasons for judgment to determine precisely the requirements of procedural fairness. The case was not presented on that basis. The applicant limits himself to arguing that the RAD did not afford him an opportunity to participate fully in a decision that is of great significance and, in so doing, the RAD was unable to reach an accurate and better informed decision: the lack of participation in the decision-making process results in the erroneous and ill-considered findings of facts participation may help prevent.
[23]
The applicant in this case sought to have the issues surrounding the Kebele ID card to be the subject of a hearing or a conference, as requested specifically by the applicant, that could have been ordered by the RAD. But he does not argue that the only way to participate is through a full blown hearing. He is happy to limit the argument to not having been given an opportunity to participate by having been made aware of considerations which were new. That is the narrow basis on which this Court must decide this case.
[24]
In the context of immigration decisions, it is well settled that “a party should have an opportunity to respond to new issues and concerns that will have a bearing on a decision affecting them”
(Ching v Canada (Minister of Citizenship and Immigration), 2015 FC 725, at para 74).
[25]
In Kwakwa v Canada (Minister of Citizenship and Immigration), 2016 FC 600, the Court was confronted to the same issue as in this case. It is described in the following fashion at paragraph 17:
[17] Mr. Kwakwa alleges that the RAD breached natural justice, as it advanced a new set of arguments, implausibility findings and reasoning without affording Mr. Kwakwa an opportunity to reply. Mr. Kwakwa contends that, if the RAD wanted to pursue new arguments as to what the RPD’s reasons should have been or why Mr. Kwakwa’s testimony that he did work as a journalist and lived under his claimed identity in the DRC should be disbelieved, Mr. Kwakwa should have been given an opportunity to respond.
[26]
In the view of the Court, “(a) “new question” is a question which constitutes a new ground or reasoning on which a decision maker relies, other than the grounds of appeal raised by the applicant, to support the valid or erroneous nature of the decision appealed from”
(para 25). Hence, the Court found at paragraph 26 :
[26] This is the case here. I conclude that, in reaching its decision, the RAD identified additional arguments and reasoning, going beyond the RPD decision subject to appeal, and yet did not afford Mr. Kwakwa with an opportunity to respond to them. More specifically, the RAD relied on arguments about the wording of Mr. Kwakwa’s Congolese identity documents and asserted that there ought to be an address in the heading of the voter identity card and that a journalist card should not ask authorities to cooperate with the journalist. I find that the RAD made a number of additional comments regarding the documents submitted by Mr. Kwakwa in support of his Congolese identity, and that were not raised or addressed specifically by the RPD. It may be that these findings and arguments can effectively be supported by the evidence on the record, but I agree with Mr. Kwakwa that he should at least have been given an opportunity to respond to those arguments and statements made by the RAD before the decision was issued.
[My emphasis.]
[27]
This is very similar to what occurred in the case at bar. The Kebele ID card is a case in point. It is clear that it became a critical piece of evidence. It should be recalled that the card was not before the RPD and that the first RAD panel refused to admit it into evidence. The decision under review saw fit to admit the card; it could have returned the matter to the RPD for redetermination (s. 111(1)(c) of the Act). It did not. Instead the RAD proceeded to discount the value of the ID card: by proceeding as it did, the RAD was acting at its own risk and peril by assessing a critical piece of evidence for the first time on redetermination. At the very least, it should have advised the applicant of its concerns before ruling on the matter.
[28]
The applicant is right that the concerns raised by the RAD were unknown: they could have been alleviated had the RAD chosen to hold a formal hearing or a conference call, or simply allowing submissions in writing once the issue was flagged. The RAD, as part of the discounting of the just admitted ID card, argued that the applicant testified extensively before the RPD that it was impossible for his sister to send documents because of the state of emergency then prevailing in Ethiopia. First, if the RAD were to refer to that part of the testimony before the RPD, it should have sought clarification by the applicant in one fashion or another, whether it be a hearing or a “fairness letter”
. Second, the evidence relied upon is mischaracterized, at least in the view of the applicant. He claims that once put in context, his testimony was in response to questions from the RPD about a communication blackout which prevented him from communicating with his sister. The social media blackout was lifted after the RPD hearing. Furthermore, argues the applicant, his evidence concerned getting new documents issued by the Government of that time: that had nothing to do with how his sister was able to retrieve documentation kept by neighbours of his deceased mother.
[29]
That concern about how the ID card arrived is one thing. But the RAD, having admitted the ID card, continued to have issues with the ID card itself. Relying on a response to information request, the RAD found that the embassy did not consider such card as proof of nationality for the purpose of issuing passports, getting the RAD to quip that “(i)f the Ethiopian authorities don’t accept Kebele cards as valid identity documents for their own nationals, it is difficult to see why I should accept the Appellant’s card”
(para 35). Thus, instead of considering the card as having reduced value, but perhaps to be considered with other identity indicia, it appears to be altogether rejected. But, more importantly, the passage used by the RAD refers only to the view of an Ethiopian official at the Embassy in Canada. A number of reports in the National Documentation Package project a very different picture. The applicant refers specifically to the following at paragraph 68 of his memorandum of fact and law:
a. From the IRB Research Directorate: Availability of Fraudulent Documents and state efforts to combat fraud (2014-2016): “The main requirement to obtain a passport is to present valid Kebele Residential Identification Card (ID).”60
b. IRB Research Directorate: Ethiopia: Passport Issuance Procedures within the Country (2012-April 2015): In order to obtain a passport for the first time, the applicant must submit: “Two copies of a document showing Ethiopian Citizenship, including… A Kebele Identification Card”61 [sic]
c. From the US Department of State Reciprocity Schedule: “Registration Criteria and Procedure for Obtaining Passport: Submit ID Card and Birth Certificate”.62
[Underlined in the original and footnotes omitted.]
[30]
The point of the matter is not to resolve the issue, but rather to illustrate why an opportunity to address the issue is essential to the fairness of the process. This constitutes another example for the raison d’être of having a process that is procedurally fair, which allows a party to be heard on new issues.
[31]
The applicant also asserts new credibility findings at the redetermination stage. That may constitute a violation of procedural fairness rules (Farooq v Canada (Minister of Citizenship and Immigration), 2013 FC 164). One that appears to be particularly striking, and was said by the RAD to be “most concerning”
, is that letters from friends state that the applicant was unable to work after his detention. That is portrayed by the RAD as a contradiction with the applicant’s testimony that he worked privately as a painter. The applicant claims that this is misstating the evidence: he was terminated from his job because of his political opinion after detention in 2005, but was able to perform some work for some private companies.
[32]
The applicant filed an affidavit for this application to which the respondent did not object. It is presumably filed as an exception to the rule prohibiting fresh evidence on judicial where the issue raised is procedural fairness (Bernard v Canada (Revenue Agency), 2015 FCA 263, at paras 25-26). At any rate, there was no objection to its use. In it the applicant affirms:
12. … the decision twice finds it contradictory that supporting letters say I could not work safely after my arrest, while at my hearing I testified that I did work privately as a painter.
13. I do not see this as a contradiction. As I testified, I had previously worked for Gondar Hospital but was fired after my arrest. I wish I could have known about the Member’s concern on this point so that I could clarify that I did feel unsafe in Ethiopia and that I did have trouble finding a job. This is why I had to work cash jobs doing painting for private companies until I fled the country.
[Italics in original.]
Once again, it is the importance (“most concerning”
) of the alleged contradiction raised by the RAD which makes the finding without notice especially problematic from a procedural fairness stand point.
[33]
This suffices to establish the violation of procedural fairness in this case. I would add a word of caution though. An applicant’s disagreement on an assessment of the evidence with that of the decision maker does not imply procedural fairness and there is no obligation for the decision maker to give a preview of the decision to come in order to allow the parties “another kick at the can”
or to offer a running tally of “concerns”
that may emerge. This does not constitute an invitation to turn a reasonableness analysis into a correctness one where no deference is owed to the decision maker. A decision that is not in accord with the evidence is reviewable on a reasonableness standard of review, not correctness. It follows that an applicant must show more than a disagreement with the assessment of the evidence as presented. Some of the allegations made by the applicant may have been of that nature:
a. The RAD notes a new perceived inconsistency that one of the letters refers to the Applicant and his father’s membership in the Unity for Democracy and Justice (UDJ) party rather than the CUD.75 If notified of this concern, the Applicant could have explained that as the UDJ is the predecessor party to the CUD, many Ethiopians refer to the two parties interchangeably.76
b. The RAD curiously finds under the heading “Applicant was not credible" that there is no evidence that a “low-level member” of an opposition party like him would be wanted by Ethiopian authorities.77 If the Applicant had known the RAD had this concern, he could have directed the RAD to the voluminous evidence of arbitrary detention of members of any parties who seek to unseat the brutal EPRDF regime.78 This finding is particularly problematic because objective risk was not raised as an issue at the RPD.79
c. The RAD makes a negative inference from a lack of evidence from those who worked with Zelalem during his political activities.”80 If the Applicant had known of this concern, he could have explained that he did make efforts to find fellow activists who he had known in Ethiopia nearly 15 years ago but given his travel and the passage of time he was unfortunately unsuccessful.81
[Memorandum of fact and law, para 83. Footnotes omitted.
My emphasis.]
[34]
The difficulty in this case stems from the fact that the RPD decided the case on the basis of deficient identity, which did not include the Kebele ID card. The RAD admitted into evidence the ID card and raised in its decision questions that could not have been reviewed by the RPD that did not have the card before it, for the purpose of discrediting the evidence just admitted. That creates an obligation to raise the matter with the parties (Ojarikre v Canada (Minister of Citizenship and Immigration), 2015 FC 896, at para 20, and Jianzhu v Canada (Minister of Citizenship and Immigration), 2015 FC 551, at para 12; Laag v Canada (Minister of Citizenship and Immigration), 2019 FC 890, at para 23) as it constitutes a new question that was not, and could not, have been dealt with before.
V.
Conclusion
[35]
As a result, the judicial review application must be granted and the matter remitted to a different panel for redetermination. The parties are in agreement that there is no serious question of general importance. I share that viewpoint.
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