[1] This is an application for judicial review of a decision by a migration officer [Officer] of the High Commission of Canada in South Africa, dated December 6, 2023 [Decision]. After a personal interview with the Applicant in Durban, South Africa, the Officer refused the Applicant’s application for permanent residence under the Convention Refugees Abroad and Country of Asylum classes, pursuant to ss 139(1), 145, and 147 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR] and ss 11(1) and 16(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Decision was based on the Officer’s finding on multiple bases that the Applicant was not truthful.
II. Facts
[2] The Applicant is a citizen of Ethiopia. She left Ethiopia in 2014 and is currently living in South Africa as an asylum seeker.
[3] In July 2019, she applied in South Africa for permanent residence in Canada as a member of the Convention refugees abroad class or country asylum class. The Applicant alleged fear of arrest and persecution in Ethiopia based on her real and imputed political opinion and activities. In her application, the Applicant said she had been arrested and detained illegally for 20 days in March 2014 based on her political activities. However, as will be discussed further below, the responses she gave during the interview contained numerous inconsistencies leading to her application being dismissed.
III. Decision under review
[4] The Officer refused the application based on serious credibility concerns. The Officer was not satisfied the Applicant responded to all questions truthfully either in her application forms or in the interview, contrary to s 16(a) of IRPA.
[5] The Decision concludes:
After carefully assessing all factors relative to your application, I am not satisfied that you are a member of any of the classes prescribed. I am not satisfied that the information you provided regarding your fear of persecution in Ethiopia is truthful. I am not satisfied that the information you provided regarding when or why you left Ethiopia is truthful. I am not satisfied that the information you provided regarding why you believe you cannot return to Ethiopia at present is truthful. I am not satisfied that there is an objective basis to your declared fear of persecution. I am not satisfied that you have been and continue to be, seriously and personally affected by civil war, armed conflict or massive violation of human rights in Ethiopia. Therefore, you do not meet the requirements of [s 139(1)(e) of IRPA].
[Emphasis added]
[6] The Global Case Management System [GCMS] notes outline the Officer’s concerns in more detail:
The applicant stated in the Schedule A that she was illegally detained for 20 days in March 2014. She declared that she was a student and in training until she left Ethiopia in March 2014. She wrote that she was a group leader of the UDJ from January 2010 to January 2014.
In the Schedule 2, the applicant likewise wrote that she was detained in March 2014 for “some time” and that she fled Ethiopia as a result to avoid being detained again.
At interview, the applicant declared that she was working at the Addis Loan and Credit Institution in 2002 in the Ethiopian calendar/roughly 2009 or 2010 Gregorian calendar. She declared that she joined Genejet as a formal member in 1997 Ethiopian calendar/2005 Gregorian calendar. She stated that she was a member of Genejet for one year, from roughly 2004 to 2005 or 2005 to 2006 Gregorian calendar. She later declared that she joined in 1995 Ethiopian calendar, not 1997, and was a member for one year. She stated that she was detained for 20 days at the end of 1997 Ethiopian calendar/roughly 2004 Gregorian calendar. She later declared she was detained in 1995 Ethiopian calendar/roughly May 2003 Gregorian, not 1997/2004. She declared that she left Ethiopia in 2013 Gregorian calendar, not 2014 as stated in her forms. The applicant declared that she remains at risk in Ethiopia due to her Amhara ethnicity. She could not specify as to why she decided to leave Ethiopia in 2013 or 2014 specifically.
I am satisfied that the applicant is a citizen of Ethiopia. I am satisfied that she speaks Amharic and may be of Amhara ethnicity. I am not otherwise satisfied as to which aspects, if any, of her story are true. I am not satisfied that the information provided by the applicant may be relied upon to assess her eligibility or admissibility to Canada.
I provided each of these concerns to the applicant at interview and gave her the opportunity to respond. I am not satisfied that the information she provided is truthful. While I note that there may be misunderstandings due to the Gregorian versus Ethiopian calendars, the applicant was permitted to use whichever calendar she wanted. There were inconsistencies that persisted despite this (e.g. 10 years that passed between alleged detention and alleged departure at interview, versus a few months between alleged detention and alleged departure in the application forms).
[Emphasis added]
[7] The Officer’s notes also include a transcript of the Applicant’s interview. The Applicant explained the basis of her fear of persecution in the following exchange:
A: After the election, the government in power was coming after people who were in opposition. My parents also encouraged me to leave the country.
Q: Why would anyone come after you if you’d last been involved approximately eight years before? I have serious concerns this story did not happen to you. I am not satisfied you have been credible. I am not satisfied you are eligible in the category in which you have applied.
…
A: In our country, most of the people in power are from certain ethnic groups. I am Amhara. That group is being killed by political leaders. I didn’t choose my ethnic group. The government still targets me. The government still kills certain ethnic groups because of their political performance.
Q: In what sense has the government targeted you because of your ethnic group? When did this occur? Please be specific about what happened to you personally.
A: Based on the past history of the country. Currently, political groups are kidnaping ethnic groups. There is currently targeting of certain ethnic groups. There is nothing they can do. Even currently with my family, certain things have happened to my family members.
Q: What specifically has happened to you personally?
A: Since the leading party is Tigray, they would come to our place and harass us verbally and physically. Then I was arrested for 20 days. That’s when I decided to flee.
…
Q: … [T]here was a decade between your alleged arrest and your departure in 2013. You were not arrested, detained, or persecuted during that decade. What is the link between your alleged arrest and your departure from Ethiopia?
A: I was very young at that time. I was also travelling to other cities.
Q: You weren’t. You were going to school, weren’t you?
A: I was staying in a relative’s house.
Q: You were going to school and working. That is not being in hiding.
A: I was still in fear.
Q: In what sense? You were living a regular life from the way you describe it. You were not in hiding if you had a full time job and studies as well. In what sense were you being sought, persecuted, in hiding, etc. during this decade?
A: The leading party was still targeting certain ethnic groups.
Q: I asked you if you’d been personally targeted and you said no.
A: Since I was involved in the political party and as an advocate. The leading party was against this.
[8] The Officer in my view took great concern with the Applicant’s credibility, stating, “I do not think this story is your personal story. … I have concerns you borrowed someone else’s story. I do not think these events happened to you.”
The Officer summarized these concerns to the Applicant at the interview:
- Two sisters were not declared.
- You told me you were involved in a political party for one year. On the forms, you wrote you were involved for four years.
- You told me you were involved in a political party for one year in 1995 or 1997. That would be 2003 or 2004 in the Gregorian calendar. On the forms, you wrote you were involved from 2010 to 2014 in the Gregorian calendar.
- You told me you were detained for 20 days in 1995 in the Ethiopian calendar. That would be May 2003 in the Gregorian calendar. On the forms, you wrote you were detained in March 2014. There is a difference of 11 years between these dates.
- On the forms you wrote you fled because you had just been detained due to your political involvement. Now you say you had been detained 10 years before and that you fled due to generalized ethnic issues that had not affected you personally. You state were never detained or arrested again after May 2003. You could not explain why exactly you decided to leave Ethiopian in 2013, as opposed to any other time before or after.
- You declare you were working in Ethiopia. On the forms, you said you were only a student. You did not declare any employment in Ethiopia.
- You say you were handing out leaflets only in the party for one year only, a decade before you left Ethiopia. In the forms, you said you were one of the leaders of the party and that you were involved in the party up to your detention and departure from Ethiopia. Taken together, I do not think you were involved in politics or would be imputed to have a political opinion by anyone in Ethiopia. As such, I do not think your declared fear of persecution in Ethiopia on this basis is well-founded. Likewise, I am not satisfied that your fear of persecution on the basis of your race is well-founded. …
[9] When asked to address the Officer’s concerns, the Applicant responded:
A: It was my brother who sent the forms. The person who helped me with interpretation is a guy I worked with who is not very good with language.
Q: Why didn’t you ask your brother or your sister in Canada for help? Why didn’t you ask someone you trust rather than a guy who doesn’t have good English?
A: In the location where I was staying, there was no one around. I lived by myself. The only person I could ask was the guy.
...
Q: It’s not the guy trying to go to Canada, it’s you. You’ve had four years in which you could have submitted corrected documents if there were errors in your forms. You swore to me at the start of the interview that all the information in the forms is true.
A: I have been losing my phone continuously. I could not reach out to my brother to discuss certain things. It was hard for my brother to reach me as well.
[10] The Officer also raised concerns about the Applicant’s reasons for leaving Ethiopia:
Q: Apart from my serious credibility concerns, a concern I have is that if you were detained (which I do not think happened), that was ten years before you left. I have concerns that you left because you wanted to emigrate, not due to a well-founded fear of persecution in Ethiopia. There does not appear to be any link between your alleged political involvement and your alleged detention and when you actually departed Ethiopia. The fact that you remained for a decade without being arrested, detained, questioned, etc. also suggests that Ethiopian authorities do not impute you to have a political opinion. Likewise, they do not appear to have targeted you in any way based on your race or other Convention grounds during that period.
[PA does not understand issue; concerns rephrased]
Q: Why did you leave in 2013? You had not been arrested in 10 years. You were not detained. You were not involved in politics. You were not accused in politics. Why was it necessary to leave in 2013?
A: There were crimes happening in the country.
Q: What specifically happened to you? I am aware of the situation in Ethiopia. What specifically happened to you?
A: My brother was murdered due to political issues.
…
Q: Why did you fail to declare this brother on the forms?
A: He was deceased.
Q: The question explicitly states to include deceased brothers and sisters. You did not declare him.
A: When I came here, I was young. I was not that knowledgeable of the language. It was a language barrier. I didn’t know I didn’t need to include deceased persons.
Q: You declared your mother who was deceased, suggesting you knew you had to declare deceased people. You were 22 years old when you came here. You were an adult. You were not a child. Likewise, you are not a child now and were not a child when you filled out the application forms for Canada.
A: I improved my language since I came here.
Q: What happened in 2013 that meant you left Ethiopia? What specifically happened then?
A: I saw what happened to my brother at a very young age. I was so worried about it. There were people I knew who were murdered. My father used to encourage us to leave to find a better place.
Q: Why hasn’t your father left?
A: He is blind.
IV. Issues
[11] The Applicant raises the following issues:
1. Did the Officer err in finding that the Applicant’s fear of persecution on the basis of her Amhara ethnicity was not well-founded?
[12] Respectfully, the issue is whether the Decision is reasonable.
V. Standard of review
[13] The standard of review is reasonableness. With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued contemporaneously with the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov], the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[14] In the words of the Supreme Court of Canada in Vavilov, a reviewing court must be satisfied the decision-maker’s reasoning “adds up”
:
[104] Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.
[105] In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.
[106] It is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case. However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely: the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached.
[Emphasis added]
[15] The Supreme Court of Canada in Vavilov at paragraph 86 states, “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision-maker to those to whom the decision applies.”
Vavilov provides further guidance that a reviewing court decide based on the record before them:
[126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.
[Emphasis added]
[16] Vavilov makes it abundantly clear the role of this Court is not to reweigh and reassess the evidence unless there are “exceptional circumstances.”
The Supreme Court of Canada instructs:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
[Emphasis added]
[17] The Federal Court of Appeal held in Doyle v Canada (Attorney General), 2021 FCA 237 that the role of this Court is not to reweigh and reassess the evidence unless there is a fundamental error:
[3] In doing that, the Federal Court was quite right. Under this legislative scheme, the administrative decision-maker, here the Director, alone considers the evidence, decides on issues of admissibility and weight, assesses whether inferences should be drawn, and makes a decision. In conducting reasonableness review of the Director’s decision, the reviewing court, here the Federal Court, can interfere only where the Director has committed fundamental errors in fact-finding that undermine the acceptability of the decision. Reweighing and second-guessing the evidence is no part of its role. Sticking to its role, the Federal Court did not find any fundamental errors.
[4] On appeal, in essence, the appellant invites us in his written and oral submissions to reweigh and second-guess the evidence. We decline the invitation.
[18] Moreover, Vavilov requires the reviewing court to assess whether the decision subject to judicial review meaningfully grapples with the key issues:
[127] The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.
[128] Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker, at para. 39.
[19] With respect to credibility determinations and deference upon review, I follow Justice Rochester (as she was then) in Onwuasoanya v Canada (Citizenship and Immigration), 2022 FC 1765 at paragraph 10:
[10] Credibility determinations are part of the fact-finding process, and are afforded significant deference upon review (Fageir v Canada (Citizenship and Immigration), 2021 FC 966 at para 29 [Fageir]; Tran v Canada (Citizenship and Immigration), 2021 FC 721 at para 35 [Tran]; Azenabor v Canada (Citizenship and Immigration), 2020 FC 1160 at para 6). … Credibility determinations have been described as lying within “the heartland of the discretion of triers of fact […] and cannot be overturned unless they are perverse, capricious or made without regard to the evidence” (Fageir at para 29; Tran at para 35; Edmond v Canada (Citizenship and Immigration), 2017 FC 644 at para 22, citing Gong v Canada (Citizenship and Immigration), 2017 FC 165 at para 9).
VI. Relevant legislation
[20] The Convention Refugees Abroad class is set out in ss 144 and 145 of the IRPR:
Convention refugees abroad class
|
Catégorie
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144 The Convention refugees abroad class is prescribed as a class of persons who may be issued a permanent resident visa on the basis of the requirements of this Division.
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144 La catégorie des réfugiés au sens de la Convention outre-frontières est une catégorie réglementaire de personnes qui peuvent obtenir un visa de résident permanent sur le fondement des exigences prévues à la présente section
|
Member of Convention refugees abroad class
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Qualité
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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.
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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.
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[21] IRPA further defines Convention refugee as:
Convention refugee
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Définition de réfugié
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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,
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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 :
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(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
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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;
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(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.
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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.
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[22] Meanwhile, ss 146 and 147 of IRPR set out the Country of Asylum class, also referred to as the Humanitarian Protected Persons Abroad class:
Person in similar circumstances to those of a Convention refugee
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Personne dans une situation semblable à celle d’un réfugié au sens de la Convention
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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
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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.
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Humanitarian-protected persons abroad
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Personnes protégées à titre humanitaire outre-frontières
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(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
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(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.
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Member of country of asylum class
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Catégorie de personnes de pays d’accueil
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147 A foreign national is a member of the country of asylum class if they have been determined by an officer to be in need of resettlement because
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147 Appartient à la catégorie de personnes de pays d’accueil l’étranger considéré par un agent comme ayant besoin de se réinstaller en raison des circonstances suivantes :
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(a) they are outside all of their countries of nationality and habitual residence; and
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a) il se trouve hors de tout pays dont il a la nationalité ou dans lequel il avait sa résidence habituelle;
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(b) they have been, and continue to be, seriously and personally affected by civil war, armed conflict or massive violation of human rights in each of those countries.
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b) une guerre civile, un conflit armé ou une violation massive des droits de la personne dans chacun des pays en cause ont eu et continuent d’avoir des conséquences graves et personnelles pour lui.
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VII. Submissions of the parties
A. Preliminary issue: Admissibility of new evidence
[23] The Respondent submits Exhibits B to F of the Applicant’s Record were not before the Officer and should not be considered by this Court as requested by the Applicant. These five new documents contain National Documentation Package [NDP] evidence on Ethiopia and a pre-removal risk assessment program update from 2021 noting “worsening conditions in Ethiopia.”
[24] The Respondent submits this evidence is being used “to boost the objective merits of [the Applicant’s] claim”
and “reinvent the record,”
and does not meet the criteria for exceptions to the general rule against new evidence in an application for judicial review set by the Federal Court of Appeal in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright] at paragraph 20.
[25] The Applicant submits the evidence is relevant and the Officer should be expected to know the country conditions of Ethiopia and about a program delivery update issued by his employer. The Applicant cites Saifee v Canada (Citizenship and Immigration), 2010 FC 589 [Saifee, per Mainville J as he then was] which states at paragraphs 30 and 31:
[30] In this case, even though the tribunal record shows no reference to any country conditions documentation concerning Afghanistan, it may be assumed that the officer was either knowledgeable of these country conditions or could easily access available country conditions documentation in order to carry out his duties properly. I would add further that if it can be showed that the officer made a decision without knowledge of country conditions, this in itself could constitute a valid reason to overturn the decision in judicial review. It would indeed be unconscionable if Canadian visa officers were making a refugee claim determination without any reference to or knowledge of country conditions.
[31] I am comforted in this approach by the prescriptions of CIC Manual OP 5 which specifically provide that officers unfamiliar with the history of the refugee movement or the social and political situation in a specific area should either contact a visa office with appropriate expertise or visit various Web sites, including the Immigration and Refugee Board Web site. Though I fully recognize that this CIC Manual OP 5 is not necessarily binding on the officer and certainly not binding on this Court, it nevertheless can offer useful insight into the purpose and meaning of the Act and of the Regulations: Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), 2002 FCA 270, [2003] 1 F.C. 219, [2002] F.C.J. No. 950 at para. 37 (QL); Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126, [2007] 1 F.C.R. 409, 267 D.L.R. (4th) 324, [2006] F.C.J. No. 491 at para. 15 (QL); Farhat v. Canada (Minister of Citizenship and Immigration), 2006 FC 1275, 302 F.T.R. 54, [2006] F.C.J. No.1593 at para. 28 (QL).
[Emphasis added]
[26] The Respondent submits the case at bar “cannot be likened to the Court’s allowance in
Saifee of a single U.S. DOS report that contained a perfect response to a visa officer’s quick dismissal of a Hazara claimant’s victimization by local bigwigs (not to mention it also held a silver bullet for Hazara claimants generally).”
[27] I am not persuaded by the Applicant’s submissions for several reasons. First the proposed new evidence raises ethnicity which was not raised in her written application for convention refugee status. Second, it appears the Applicant was not without access to assistance in making her application, which was signed and endorsed by Canadian sponsors. Third, and very importantly, Justice Mainville’s (as he then was) decision in Saifee calls for these matters to be dealt with by informed and experienced officers and, with respect, nothing suggests the Officer in this case was either uninformed or inexperienced: they are assumed otherwise as Justice Mainville held. Fourth, and as a general rule, raising a new issue based entirely on new evidence on judicial review is not permitted: see Access Copyright and see Haile v Canada (Citizenship and Immigration), 2023 FC 1424 at paragraph 19:
[19] The Applicant in her affidavit filed with this Court submits both new personal evidence and extensive new country condition evidence. None of this was placed before the Officer. The Respondent submits, and I agree, it is improper on judicial review to raise information for the first time unless it meets limited exceptions. I also agree that neither her personal information nor the new country condition evidence fit the exceptions in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 20.
[28] In point of fact, and significantly, the Applicant’s Amhara ethnicity was actually both considered and directly addressed by the Officer:
I am satisfied that the applicant is a citizen of Ethiopia. I am satisfied that she speaks Amharic and may be of Amhara ethnicity. I am not otherwise satisfied as to which aspects, if any, of her story are true.
…
I am not satisfied that the applicant’s declared fear of persecution on the basis of her Amhara ethnicity is well-founded. I note that this fear was not raised in the application forms. I am not satisfied that the applicant has provided reliable, credible, and truthful information to suggest that Ethiopian authorities or anyone else would persecute her in Ethiopia on the basis of her ethnicity.
[Emphasis added]
[29] Overall and in my respectful view, the proposed new country condition evidence is simply not relevant to the determinative issue in this case, which is the Applicant’s credibility. Notably the Applicant takes no issue with the Officer’s numerous negative credibility findings.
B. Was the Decision reasonable?
[30] The Applicant submits the Officer unreasonably found her fear of persecution was not well-founded. The Applicant points out the Officer accepted she “speaks Amharic and may be of Amhara ethnicity.”
The Applicant submits the Officer should have made a clear finding regarding her ethnicity, and that by not doing so, her evidence regarding ethnicity “must be accepted as uncontradicted and credible.”
As a result, the Applicant submits the Officer failed to meet their duty to consider all grounds of persecution inferred from the evidence (Barak v Canada (Citizenship and Immigration), 2017 FC 648 at paragraph 11, citing Canada (Attorney General) v Ward, 1993 CanLII 105 (SCC), [1993] 2 S.C.R. 689 at 745.
[31] The Applicant also submits the Officer “failed to consider objective evidence indicating the persecution of Amhara in Ethiopia, including targeting by state and non-state actors, arbitrary arrest, detention, kidnapping, enforced disappearance, displacement, and extrajudicial killings,”
referencing the NDP new evidence discussed above.
[32] The Respondent submits the Applicant has not established why a clear finding on her ethnicity could have impacted the Officer’s reasons for refusing her claim. Further, the Respondent submits the Officer “clearly assumed”
her ethnicity “for the purpose of analyzing the well-foundedness of that claim.”
The Respondent maintains its position on the inadmissibility of new evidence.
[33] The Applicant’s submissions are answered by and cannot succeed in the face of my earlier findings on the inadmissibility of the new country condition evidence. Moreover, it seems to me the Applicant is impermissibly attempting to create an objective basis for her claim, which however cannot overcome lack of credibility found by the Officer, who I note, had the inestimable advantage of having personally interviewed the Applicant. And see Obozuwa v Canada (Citizenship and Immigration), 2019 FC 1007 at paragraph 15 per Diner J.
[34] The Applicant further argues the Decision is unreasonable because the Officer did not meaningfully assess her eligibility under the Country of Asylum class or demonstrate a chain of analysis on this issue. The Applicant submits the Officer only assessed her application against the requirement of Convention refugee abroad class, making the Decision unreasonable per Saifee.
[35] There is no merit in this submission.
[36] First, I note in Saifee, the Officer’s “notes clearly show that the officer rejected the Applicants’ permanent residence application on the sole basis of the Convention refugee class, and consequently failed to conduct a determination as to the eligibility of the Applicants under the country of asylum class. The officer erroneously concluded in his CAIPS notes that to meet the eligibility criteria, the Applicants had to meet the definition of the Convention”
(at para 42). This is not the situation here.
[37] When read holistically, the GCMS notes establish lack of credibility was the basis for the Officer’s refusal. The credibility findings are transparent, intelligible and fully justified on the record. Indeed they are not even challenged. The Officer specifically notes credibility concerns led them to doubt the Applicant was “a member of
any of the classes prescribed”
(emphasis added), including the Country of Asylum class. The Officer also specifically considered whether the Applicant “ha[s] been and continue[s] to be, seriously and personally affected by civil war, armed conflict or massive violation of human rights in Ethiopia”
pursuant to s 147(b) of the IRPR.
VIII. Conclusion
[38] In the result, this application will be dismissed.
IX. Certified question
[39] Neither party proposes a question for certification, and I agree none arises.
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