Date: 19990325
Docket: IMM-2786-98
BETWEEN:
SEBSIBE HAILE ASFAW
Applicant
- and -
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR JUDGMENT
SHARLOW, J.:
[1] This is a judicial review of a decision of the Convention Refugee Determination
Division (CRDD) holding that the applicant is not a Convention refugee.
[2] The principal basis of the decision is the CRDD's finding that the applicant was not credible. The CRDD also concluded that the activities of the applicant since arriving in Canada do not provide a basis for a sur place claim to Convention refugee status.
[3] With respect to the latter point, counsel for the applicant argued that the CRDD made a serious error in its factual conclusions. The CRDD's reasons indicate that they believed that the applicant was invited to speak at a particular meeting of the AAPO in Calgary, and that his remarks related to visas and working legally in Alberta. The CRDD concluded that:
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.. these remarks would not place the claimant at risk of persecution were they to become known to the Ethopian authorities, and further that there is no reasonable chance the Ethiopian authorities have or will learn of these activities. |
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[4] The uncontradicted and unchallenged evidence of the applicant was that someone else spoke on those points, and he was invited to speak concerning the AAPO and the situation in Ethopia.
[5] Counsel for the Minister objected to this argument being raised at the hearing because it was not referred to in the applicant's record and he had no notice of it. However, he did not suggest any basis on which I could find that the Minister would be prejudiced if I permitted this argument to be made. Therefore, I have considered it.
[6] In my view, it is apparent on the face of the record that the CRDD erred with respect to the contents of the applicant's remarks at the meeting. However, I agree with counsel for the Minister, who pointed out that even if this was an erroneous finding of fact, it was open to the CRDD to conclude that there was no reasonable chance that the Ethiopian authorities would have learned of the applicant's participation in that particular meeting.
[7] The remainder of the arguments made on behalf of the applicant relate to the CRDD's conclusions with respect to the applicant's credibility.
[8] In the reasons for decision of the CRDD, the first basis for its negative assessment of the applicant's credibility was that he had stated in his personal information form and in his oral evidence before the CRDD that he had participated in a protest in 1994 against the imprisonment of Professor Woldeyes, but he had not mentioned that fact in his eligibility interview.
[9] As I understand it, the eligibility interview relates to the "access criteria" in section 46.01 of the Immigration Act and is intended only to determine whether the applicant must be excluded from the process for one of a number of listed reasons.
[10] The eligibility interview is not intended to assess the merits of the applicant's refugee claim. The information the applicant provides in the course of that interview is not and is not intended to be the basis of the refugee claim. I assume it is for that reason that applicants are not told that the information they provide in the course of the eligibility interview will be considered by the CRDD, if the application reaches that stage. In any event, nothing of that kind was said to the applicant at the time of his eligibility interview.
[11] The report of the applicant's eligibility interview consists of a form containing printed questions, with the answers written apparently in the interviewer's handwriting. Attached is a handwritten statement signed by the applicant that expands on some of the answers. It is in that statement that the CRDD apparently expected to find mention of the 1994 protest, despite the limited function of the eligibility interview.
[12] The applicant's failure to mention the 1994 protest in the eligibility interview was noted prior to the hearing before the CRDD. Counsel for the applicant did not object to this point being raised or argue that it was not relevant. Instead, in direct examination he asked the applicant about the omission. The applicant said that he had not mentioned the point in the eligibility interview because he did not have time.
[13] The applicant was not cross-examined on this explanation. There is no indication in the transcript of the hearing that the CRDD indicated to the applicant or his counsel that there was any question as to the acceptability of that reason. No submissions were made with respect to the omission or the explanation offered by the applicant.
[14] I agree with counsel for the applicant that the CRDD did not act fairly in reaching a negative conclusion on the applicant's credibility, in so far as it relied on the applicant's failure to mention the 1994 protest in the eligibility interview and his explanation for the omission. The CRDD erred in failing to give the applicant fair notice that the explanation he gave for failing to mention that fact was in question before the CRDD, so as to permit the applicant to adduce further evidence on the point, or to permit counsel to address the point in submissions.
[15] However, the CRDD gave other reasons for finding the applicant not to be credible, and those must also be considered. As I read the reasons for the CRDD's decision, the most important of these were as follows:
| 1. It was implausible that the applicant, having been detained for three days in June of 1996 during which he suffered the psychological torture of being deprived of sleep and threatened with a gun, would be able to return home on the third day and go home, change and go to work. |
| 2. It was implausible that the applicant was of interest to the Ethiopian authorities, given that he was a government employee who had qualified to leave the country on a government sponsored program, he had been detained by the authorities for three days in June of 1996 as he described, and very shortly afterward was allowed to renew his passport and leave the country under that program. |
[16] Despite the able arguments of counsel for the applicant, I cannot conclude that these conclusions are unreasonable.
[17] With respect to the first point, I do not accept that the CRDD must be expert in psychology to assess the plausibility of the applicant's assertion that he was able to go to work after three days of detention during which he suffered the abuse described in his evidence. It was open to the CRDD to conclude, as they did, that if the applicant had been subjected to the treatment alleged, he would not have been able to resume his duties at his workplace so shortly after his release.
[18] With respect to the second point, I do not accept that the CRDD could not reach this conclusion without evidence of the degree of communication between passport officials, airport security, and the police. Given the very short space of time between the alleged detention of the applicant and his departure from Ethiopia, it was open to the CRDD to find this aspect of the applicant's story implausible.
[19] The question then becomes whether the CRDD's error in failing to give fair notice of its view of the eligibility interview is sufficient, standing alone, to set aside the finding that the applicant was not credible.
[19] Based on my review of the record that was before the CRDD and their reasons, it seems to me that if the CRDD had disregarded the initial interview altogether, or had believed as credible the applicant's explanation for his failure to mention the 1994 protest, there would remain sufficient grounds to justify a negative conclusion as to the applicant's credibility. It follows that I have no basis for interfering with the finding of the CRDD on credibility, and no basis for quashing its decision.
[20] Counsel for the applicant argued that this was an appropriate case for a certified question under subsection 83(1), worded as follows:
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Does procedural fairness require that a claimant be informed, in advance of the eligibility interview, of the fact that the information which he provides at an eligibility interview may be submitted to the Board for their consideration in relation to his claim along with other preliminary materials provided by him to Canada Immigration? |
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[21] In my opinion no serious question of general importance is involved in this case.
[22] The application for judicial review is dismissed.
"Karen R. Sharlow"
Judge
March 25, 1999
Calgary, Alberta
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2786-98
STYLE OF CAUSE: SEBSIBE HAILE ASFAW v. MCI
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: March 24, 1999
REASONS FOR JUDGMENT OF THE HONOURABLE MADAME JUSTICE SHARLOW
DATED: March 25, 1999
APPEARANCES:
Mr. Charles R. Darwent for the Applicant
Mr. Brad Hardstaff for the Respondent
SOLICITORS OF RECORD:
Mr. Charles R. Darwent
Calgary, Alberta for the Applicant
Mr. George Thomson
Deputy Attorney General
of Canada
Ottawa, Ontario for the Respondent
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