Date: 19990831
Docket: IMM-3272-98
BETWEEN:
SAMUEL MENGESHA
TSEHAY MENGESHA OF TSEHAY MENGESHA SPONSORSHIP GROUP
Applicants
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGEMENT
[1] This is an application for judicial review of a Visa Officer"s decision dated June 4, 1998, pursuant to which the Applicant"s application for permanent residence in Canada as a Convention refugee seeking resettlement and as an independent immigrant was refused.
[2] The Applicant, Mr. Samuel Mengesha, is a citizen of Ethiopia and alleges persecution on the basis of membership in the Eritrean ethnic group. His written statement outlining the grounds of persecution is as follows:
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Though my family had big problems with the Ethiopian security men just for its belonging to the Eritrean ethnic group living in Addis Abeba I continued my education under stress and terror. |
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My sister Tsehay and Gebriela had already fled the country to save themselves from further arrests and tortures by the Ethiopian police, by the anti government movements and all the members of the family underwent harassment. My brother had to flee the city and join the Eritrean Liberation Force acting in the Southern East part of the country to avoid arrest by the Ethiopian Police and harm from the other Eritrean faction. |
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I beleived [sic] that with the fall of the communist regime situation would have gotten better and we would all have moved to Eritrea, Asmara where my father and uncle were arrested by the new Eritrean police and accused of treason against the independence of Eritrean for refusing to contribute, connivance with our brother who has joined the other faction and for concealing the contributor register which my brother had left at home. |
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Since I was terrorized by the threats, beating and the horrible things I used to see when I was called to the security officer and because of that I could not bear staying any longer in the country. I immediately moved back to Addis Abeba where my aunt succeeded to get me a visa to Jamaica as she did to my sisters Netsanet and Awot Megesha. |
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And here I am now applying to be allowed to join my sisters Tsehay, Gebriela, Hanna, Netsanet and Awot in Canada and live in peace and freedom. |
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[3] On October 27, 1997, the Department of Citizenship and Immigration Canada approved a group sponsorship from the Tsehay Sponsorship Group on behalf of the Applicant.
[4] One month later, the Applicant was informed that he was to attend an interview on February 10, 1998 at the Canadian High Commission in Jamaica.
[5] On February 10, 1998, the Applicant attended his first interview with his sister, Tsehay Mengesha, before Visa Officer Kathleen O"Brien.
[6] During the week of April 21, 1998, the Applicant attended another interview, this time with another sister, Gebrela Mengesha, and again in front of Ms. O"Brien.
[7] On May 28, 1998, the Applicant met with Ms. O"Brien for a third time.
[8] By letter dated June 4, 1998, Ms. O"Brien informed the Applicant that he did not meet the requirements for immigration to Canada as a Convention refugee. The Visa Officer wrote to the Applicant on June 4, 1998, outlining her reasons for coming to a negative conclusion. The letter reads, in part, as follows:
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This refers to your application for permanent residence in Canada as a Convention refugee seeking resettlement and to your interview in Kingston, Jamaica on 10 February 1998. You were interviewed with the assistance of your sister, Tsehay Mengesha, who performed the function of translator, fully fluent in English and Amharic. At no point in time did you indicate that you were unable to understand the translator. |
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I have now completed the assessment of your claim and regret to inform you that I am unable to approve this application. You do not meet the requirements for immigration to Canada as a Convention refugee seeking resettlement. |
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Subsection 2(1) of the Canada"s Immigration Act, 1976, defines who may be considered to be a Convention refugee... |
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You were not able to demonstrate a personal fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. You advised in both this initial interview, and again in late April 1998, during our subsequent conversation in the Canadian High Commission, during which, in the presence of your sister, you responded to questions and asked questions in english [sic], without the assistance of an interpreter, that on four Saturdays in June 1997 you had been asked to attend the local police station (the name or location of which you could not recall) to answer questions related to the whereabouts of your brother. This was the only reason you stated for not wishing to return to Ethiopia, your country of citizenship or Eritrea, your country of habitual residence. Until your departure from Eritrea you were attending Netsanet Secondary School, in Asmara, Eritrea on a full time basis, residing with your mother. You claimed no difficulty in completing your studies for any reasons, and based your fear of persecution on four visits to a police station for what appeared to be routine questioning. Despite three opportunities to advise of any other incidents which would substantiate a refugee claim, when you attended this office, and your initial submission in writing related to your circumstances in Eritrea, you advised of no other circumstances that would be relevant to the consideration of a refugee claim. As such in my opinion you did not meet the definition of a "convention refugee seeking resettlement". |
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Finally, I have also assessed your application under the selection criteria established for Independent Immigrants. Under Paragraph 8(1) of the Immigration Regulations, 1978, independent applicants are evaluated based on the following selection criteria: education, professional preparation, experience, occupational demand, validated offer of employment or designated occupation, demographic factors, age, knowledge of English or French and personal suitability. As you have no work experience, I have assessed your application as a Student [NOC 9911] and as a new Worker [NOC 9914]. |
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Section 11(2) of the Immigration Regulations, 1978 does not permit issuance of an immigrant visa to an independent applicant, who has received zero units of assessment for the occupational demand factor unless the applicant has an offer of suitable employment approved by Human Resources and Development Canada. Unfortunately, the occupational demand for the occupations for which you are qualified and prepared to follow in Canada are zero. You do not have an offer of employment approved by a Canada Employment Centre. You therefore come within the inadmissible class of persons described in section 11(2) of the Immigration Act and your application has been refused. |
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I realized that this decision will be a disappointment to you and regret that it could not be favourable. However, I advise that should any of your sisters apply to sponsor either or both of your parents, under the Family Class of Immigrants, if you are able to demonstrate that you have remained in full-time school, since attaining 19 years of age, less the one year break in studies that you are currently enjoying, you may qualify for immigration to Canada as an accompanying dependent. In your case, however, you must enrol in and attend a program of full-time studies by September 1998 in order to remain eligible as an accompanying dependent, and remain in full-time studies until such time as you may be issued a visa. |
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[9] In his Memorandum of Fact and of Law, the Applicant submits that his application for judicial review raises the following issues:
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(A) Did the visa officer fail to observe the duty of fairness and violate the principles of natural justice? |
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(B) Did the visa officer misinterpret and misapply the definition of a Convention refugee? |
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(C) Did the visa officer base her decision on an erroneous finding of fact that she made capriciously? |
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(D) Did the visa officer ignore relevant evidence and base her decision on irrelevant considerations? |
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(E) Did the visa officer misapprehend the evidence on which she based her decision? |
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[10] The Applicant submits that the Visa Officer erred in a number of ways. This is how the Applicant puts it in his Memorandum of Fact and Law:
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2(A)(2) The statements and conduct attributed to the Visa Officer in the Affidavits of Tsehay and Gebrela demonstrate a reasonable apprehension of bias, even when the denials and explanations in the Visa Officer"s Affidavit are taken into consideration. |
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2(B)(1) Even though the Visa Officer properly recited the relevant part of the definition of a Convention refugee, she used language in her reasons from which it could be inferred that she did not use the proper criteria and imposed a higher standard or a heavier burden of proof than that prescribed by Canadian law. |
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2(C)(1) It is respectfully submitted that the Visa Officer"s conclusion in her CAIPS notes that there are no reasons to prevent Samuel Mengesha from residing in either Eritrea, or Ethiopia, without any consideration or analysis of Samuel Mengesha"s status in Eritrea is capricious. |
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2(C)(2) It is further submitted that the Visa Officer"s finding that Samuel Mengesha intentionally presented himself as not understanding any English is equally erroneous and capricious because it disregards the information previously submitted in Samuel Mengesha"s application for permanent residence. Furthermore, the statement in the Visa Officer"s CAIPS notes that "at certain points during this interview the subject would answer questions in English, then stop and his sister would answer." is not entirely consistent with her initial note that "the entire interview, less a few remarks were translated by sister." |
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2(D)(1) It is submitted that the Visa Officer essentially ignored crucial evidence in the statement submitted by Samuel Mengesha in support of his application and thereby erred in law. This submission is reinforced by the undisputed deposition in paragraph 27 of the Affidavit of Tsehay that although the interview lasted from 8:30 to noon, the Visa Officer spent less than thirty minutes on the issue of Convention refugee status. |
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2(D)(3) It is evident from his written statement that Samuel Mengesha"s refugee claim was primarily based on his membership in a particular social group, to wit: his family. Although it may not have been articulated in perfect English, the written statement reveals that Samuel Mengesha"s fear was generated to a large extent by the fact that both his father and uncle were arrested by the Eritrean police and accused of treason, and collaboration with his older brother Yordanos, who joined a dissident Eritrean faction. The cavalier manner in which the Visa Officer dismissed the arrest of the Applicants" father in the following statement from her CAIPS notes is striking: "Although claims father has been arrested, no toher [sic] family members, including sisters, who fled in 96, or mother who remians [sic] in Eritrea have been arrested." As noted in her reasons for decision, all the Visa Officer focused on was whether there were other incidents; and ultimately her decision rested on her finding that there were no other incidents to substantiate Samuel Mengesha"s claim. |
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[11] Unfortunately, there is no transcript of the interviews. I have before me the Applicant"s written statement, which I have already reproduced, and I also have before me the CAIPS notes file. Regarding the discussion, during the interviews, concerning the claim for refugee status, the Visa Officer, at paragraphs 5, 6 and 7, as well as paragraphs 15 and 16 of her affidavit, dated August 31, 1998, makes the following statements:
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5. At the interview on 10 February 1998, I asked Mr. Mengesha to provide the reasons why he believed that he was a convention refugee. Mr. Mengesha stated that each of four Saturdays in June 1997, he was called to the local police station in Osmara, Eritrea, and asked questions related to the whereabouts, activities and any correspondence that he may have received from his elder brother Yordanus Mengesha, whom he claimed was acting in the Eritrean Liberation Force. He stated that he walked to the local police station with a friend, and after answering some questions, he and his friend walked home. He advised that he was neither detained nor arrested, and that other than these four incidents in which he was asked questions he has had no involvement with the police. |
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6. Also during the interview on 10 February 1998, Mr. Mengesha advised that he had attended Netsanet Secondary School in Eritrea on a full-time basis until June 1997 when he travelled to Ethiopia. Until he left Eritrea in June 1997 he lived with his mother. |
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7. During the week of 20 April 1998, the subject arrived in the Canadian High Commission, with another sister, and asked to speak to me. I met with the subject in the waiting room. On this occasion, the subject spoke in near perfect English, without the aid of his sister as interpreter. He advised that Jamaican immigration officials were waiting for him at the German Embassy so that he could apply for a transit visa to return to Ethiopia. He stated that his mother, living in Eritrea, wanted to remain in Eritrea, as his father was in prison, and extended family were with her. I again asked him to explain why he felt he was a refugee. He advised that the basis for his claim was the four visits to the local police station. He also advised that once he was sick, and had to spend a night in a hospital. I asked if there was anything else that he wanted to tell me related to his claim as a refugee. He provided no other information. |
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15. In my assessment of this application, I provided the applicant three occasions to present information related to his application, and on each occasion, the first through translation, and the subsequent two in his own words, in English, he repeated the identical scenario, i.e. four visits to the local police station, which he attended with a friend, to answer questions related to his brother, and during which he was neither detained or arrested. No other statements related to a refugee claim were made by the applicant or either of his two sisters, one of whom is the sponsor Tsehay, who was present during the initial interview. |
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16. I determined that Mr. Mengesha was not a convention refugee because he was not able to provide any evidence of persecution beyond the four visits to the local police station for what appears to be routine questioning, and he did not flee at the time that his two sisters did. |
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[12] The Applicant did not file an affidavit in support of his judicial review application. However, he filed the affidavits of his sisters Tsehay and Gebrela, sworn on July 23, 1998. In her affidavit, Tsehay Mengesha proceeds to give evidence in support of her brother"s claim for refugee status. That evidence, as far as I can see from the record, was not before the Visa Officer, and I will therefore not consider it. As to Gebrela Mengesha"s affidavit, it is of no help in regard to the substance of the Applicant"s claim for refugee status in Canada.
[13] On the evidence before her, I cannot see how the Visa Officer could have come to a different conclusion regarding the Applicant"s claim for refugee status. The evidence is, no doubt, totally insufficient to make out a claim. Whether better evidence could have been adduced, I do not know. However, if such evidence was available, it should have been made before the Visa Officer. Perhaps the Applicant"s sisters should have testified or given additional information to the Visa Officer. In any event, the evidence presented to the Visa Officer was clearly insufficient.
[14] The language used by the Visa Officer in dismissing the Applicant"s claim may not have been "perfect", but the meaning thereof , in my view, is clear: the evidence is not sufficient to make out a claim for refugee status.
[15] The Applicant submits that the Visa Officer misapplied the Convention refugee definition by basing her decision on the erroneous fact that the Applicant could have resided in either Eritrea or Ethiopia.
[16] The evidence that the Applicant had been attending school in Eritrea, where his mother lived, upon which the Visa Officer based her decision, was provided to her by the Applicant. From this, the Visa Officer concluded, according to the CAIPS notes, that "there are no reasons for prevent him from residing in either Eritrea, or Ethiopia". The conclusion reached by the Visa Officer was not, in my view, made capriciously and does not constitute an error.
[17] The Applicant further submits that the Visa Officer ignored the Applicant"s written statement to the effect that his claim was based on his membership in a particular social group, his family. In his written statement, the Applicant states:
| My sister Tsehay and Gebriela had already fled the country to save themselves from further arrests and tortures by the Ethiopian police, by the anti government movements and all the members of the family underwent harassment. My brother had to flee the city and join the Eritrean Liberation Force acting in the Southern East part of the country to avoid arrest by the Ethiopian Police and harm from the other Eritrean faction. |
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| I beleived [sic] that with the fall of the communist regime situation would have gotten better and we would all have moved to Eritrea, Asmara where my father and uncle were immediately arrested by the new Eritrean police and accused of treason against the independence of Eritrean for refusing to contribute, connivance with our brother who had joined the other faction and for concealing the contributor register which my brother had left at home.1 |
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[18] The Applicant submits that the Visa Officer ignored this submission and, in her letter of denial she concluded that "You were not able to demonstrate a personal fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion."2 Again, on the basis of the evidence before her, I am of the view that the Visa Officer did not make a reviewable error. The Applicant simply did not adduce any evidence to support his claim.
[19] The Applicant submits that the Visa Officer"s finding regarding his ability to converse in the English language, is capricious. In that regard, the CAIPS notes are relevant and they provide the following:
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AT CERTAIN POINTS DURING THIS INTERVIEW [the first interview] THE SUBJECT WOULD ANSWER QUESTIONS IN ENGLISH, THEN STOP AND HIS SISTER WOULD ANSWER. I WAS NOT CONVINCED OF HIS LIMITED LANGUAGE ABILITY.. |
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SUBJ NOW SPOKE IN NEAR FLAWLESS ENGLISH [During the second interview] WIOTHOUT [sic] THE NEED OF HIS SISTER AS INTERPRETER. HE EXPLAINED THAT A MR. REID OF IMMIGRATION JAMAICA WAS WAITING FOR H IM TO ATTEND AN INTERVIEW AT THE GERMAN EMBASSY TO GET A TRANSIT VISA TO RETURN TO ETHIOPIA, AS THE JAMAICANS WERE NOT PREPARED TO EXTEND HIS STAY. HE THEN EXPLAINED THAT HIS MOTHER WANTED TO STAY IN ERITREA, AS HIS FATHER WAS IN PRISON, AND SHE HAD ALL SORTS OF PROBLEMS, LIKE OTHER FAMILY MEMBERS (SISTERS ETC) LIVING WITH HER. |
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I ASKED THE SUBJ WHY IT WAS THAT HE COULD NOW SPEAK PERFECT ENGLILSH [sic] WITHOUT THE AID OF ANY TRANSLATION AND A MERE 8 WEEKS BEFORE HE COULDN"T ANSWER A QUESTION LIKE WHAT IS YOUR NAME? HE HAD NO EXPLANATION, STATED HE HAD NOT BEEN ATTENDING SCHOOL, AND ONLY STAYED AT THE ETHIOPIAN CHURCH, AND READ THE BIBLE. |
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ON THE WHOLE I DO NOT BELIEVE THIS CLIENT TO BE CREDIBLE. HE INTENTIONALLY PRESENTED HIMSELF AS NOT UNDERSTANDING ANY ENGLISH DESPITE MY DESIRE TO LEARN OF HIS CIRCUMSTANCES IN HIS OWN WORDS. ON HIS SECOND AND SUBSEQUENT VISITS TO THIS OFFICE HE WAS FLUENT IN ENGLISH, AND VERY ARTICULATE.3 |
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[20] In view of the above, I am of the opinion that the Visa Officer"s determination regarding the Applicant"s credibility cannot be qualified as unreasonable. The Visa Officer gave the Applicant the opportunity to explain why his English had suddenly improved. Consequently, no reproach can be made of the Visa Officer"s finding. I agree with counsel for the Respondent that the fact that the Visa Officer"s finding on this issue is not set forth in her letter of June 4, 1998, is irrelevant.
[21] The Applicant submits that the Visa Officer ignored relevant evidence by failing to take into consideration the arrest of other members of his family, i.e. the fact that his uncle was arrested, and failing to recognize that a claim of persecution could be based on membership in a particular family. The Visa Officer"s CAIPS notes contain the following statements:
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ALTHOUGH CLAIMS FATHER HAS BEEN ARRESTED, NO TOHER [sic] FAMILY MEMBERS, INCLUDING SISTERS, WHO FLED IN 96, OR MOTHER WHO REMIANS [sic] IN ERITREA HAVE EVER BEEN ARRESTED. DESPITE DEPARTURE OF SISTERS, HE WAS ONLY QUESTIONED BY POLICE ON FOUR SATURDAYS PRIOR TO HIS DEPARTURE TO ETHIOPIA.4 |
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[22] In his written statement, which I have already reproduced, the Applicant states that his father and uncle had been arrested by the Eritrean police. The Visa Officer appears to have forgotten that the uncle was also arrested. However, if that omission can be qualified as an error, I am of the view that it is not a material error. The plain fact is that the Applicant did not provide the Visa Officer with sufficient evidence on his refugee claim, and as a result, the Visa Officer was not convinced. The Applicant"s claim did not fail because the Visa Officer failed to recognize that his claim of persecution could be based on membership in a particular family, but rather, because of the lack of evidence.
[23] I now turn to the last issue raised by this application. That issue is whether, in all of the circumstances, the Visa Officer failed to observe the duty of fairness and violated the principles of natural justice. More particularly, the Applicant submits that the conduct and statements made by the Visa Officer during the interviews demonstrate a reasonable apprehension of bias.
[24] There is no dispute that the test for bias is that set out in the [1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at 386, that an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision-maker would unconsciously or consciously decide the issue unfairly.
[25] Or, as Lord Denning MR put it in Metropolitan Properties v. Lannon,[1969] 1 QB 577 (CA) at 579:
| In considering whether there was a real likelihood of bias, the court does not look at the mind of the decision-maker. It does not look to see if there was a real likelihood that he could or did in fact favor one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was an impartial as he could be, if a rightminded person would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit ... nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough ... there must be circumstances from which a reasonable person would think it likely or probable that the decision-maker would or did favor one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favor one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: "the judge was biased". |
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[26] In Principles of Administrative Law5, the author states that the rule against bias applies beyond those with judicial and quasi-judicial powers to those with merely administrative powers:
| In theory, the rule against bias applies to precisely the same ambit of delegated powers as the first principle of natural justice, audi alteram partem. Although it used to be thought that audi alteram partem only applied to the exercise of a judicial or quasi-judicial power, the law developed so that the principles of natural justice and fairness apply as well to delegated powers which were formerly characterized as being merely administrative in nature. Although legal analysis has tended to treat the two principles of natural justice separately, the right to be heard by an impartial and unbiased decision-maker is really only one aspect of fairness and, indeed, of audi alteram partem. |
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[27] The Applicant"s sisters, Tsehay and Gebrela Mengesha, allege a number of incidences of bias during the interviews with the Visa Officer. I should point out here that the Applicant did not file his own affidavit. No explanation was ever given to me as to why he had not done so. Ms. O"Brien denies most of these allegations and some she does not comment on. I will begin by listing the allegations and denials of comments allegedly made during the interviews.
[28] Tsehay Mengesha alleges that Ms. O"Brien said the following with regard to the Applicant"s English abilities:
| 25. Ms. O"Brien also refused to believe that my brother had difficulty speaking English and insisted on proceeding without an interpreter before giving up and requesting my assistance. |
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| 26. I also recall that at one point during the interview Ms. O"Brien became visibly irate because my brother was able to answer a question, without my assistance, by pointing to June 1997, on a calendar, as the date when he was summoned to the police station. |
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[29] To these allegations, Ms. O"Brien responds as follows:
| 4. In response to paragraphs 25 and 26 of the Affidavit of Tsehay Mengesha, my intention was to ascertain the level of Mr. Mengesha"s English language ability without the assistance of his sister. Once it became evident that he was unable or unwilling to answer in English, I asked his sister to translate for him. During the interview, Mr. Mengesha was able to understand many of my questions without the assistance of his sister as an interpreter, and on one occasion, he responded to a complex question regarding what he told immigration officials at the airport before his sister provided the translation. I brought this to the attention of the subject and his sister, noting that he had a better comprehension of English than I had been led to believe. I was not irate. Furthermore, I was able to communicate very effectively in English with Mr. Mengesha on his second and third conversation with me. |
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[30] Next, Tsehay Mengesha says the following about an alleged statement made by Ms. O"Brien:
| 30. While I do not remember every word uttered by Ms. O"Brien during the entire interview, I have a very clear recollection of some of the disturbing things she said and did. |
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| 31. Ms. O"Brien said to both of us in a very angry tone that "You are taking advantage of the refugee system". |
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[31] To this, Ms. O"Brien responds as follows:
| 14. In response to paragraph 31 of the Affidavit of Tsehay Mengesha, I did not state that Mr. Mengesha was taking advantage of the refugee system. I did state that if Ms. Mengesha sponsored her mother and Mr. Mengesha as accompanying dependents, Mr. Mengesha would not be required to meet the definition of a Convention refugee. |
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[32] Gebrela Mengesha swears the following about statements made on the expiration of the Applicant"s visitor visa:
| 9. In response to my questions, Ms. O"Brien denied that she was the one who had given the Jamaican police a copy of my brother"s passport and informed them about the expiration of his status. |
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[33] Ms. O"Brien responds to this as follows:
| 8. In response to paragraph 9 of the Affidavit of Gebrela Mengesha, I confirm that I did not contact any police authorities regarding Mr. Mengesha"s expired Jamaican Visa. I verified the authenticity of Me. Mengesha"s visitor visa by meeting with the Director of Immigration in Jamaica, who is not a police officer, to confirm that the visa was properly issued. |
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[34] Gebrela Mengesha says the following about an alleged threat made by Ms. O"Brien:
| 10. Ms. O"Brien also stated unequivocally that she would not give the applicant Samuel Mengesha any letter or help him to stay in Jamaica. |
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[35] Ms. O"Brien responds to this as follows:
| 9. In response to paragraph 10 of the Affidavit of Gebriela Mengesha, when Ms. Mengesha and Mr. Mengesha requested that I prepare a letter to prevent Mr. Mengesha"s removal from Jamaica, I informed them that I was not in a position to issue a document of this nature, and that I could not interfere with the actions of Jamaican officials in this manner. |
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[36] Gebrela Mengesha alleges the following about a question asked by Ms. O"Brien:
| 14. One of the questions Ms. O"Brien asked the applicant Samuel Mengesha, on this occasion, is why he could not go to Somalia, Egypt or somewhere else and attend or find something else to do. |
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[37] Ms. O"Brien responds to this as follows:
| 11. In response to paragraph 14 of the Affidavit of Gebriela Mengesha, I did not ask Mr. Mengesha why he could not go to Somalia, Egypt or somewhere else. In response to my question to Mr. Mengesha as to why he had chosen to come to Jamaica, he advised that he could not get a visa to Egypt. |
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[38] Gebrela Mengesha alleges the following about another statement made by Ms. O"Brien:
| 15. Ms. O"Brien even gave the applicant Samuel Mengesha an application form for independents and told him to go back to Eritrea or somewhere else and apply, even though it is obvious from her own reasons for decision that he could not qualify as an independent. |
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[39] Ms. O"Brien responds to this as follows:
| 12. In response to paragraph 15 of the Affidavit of Gebrela Mengesha, I did not tell Mr. Mengesha to go back to Eritrea of [sic] somewhere else and apply. Mr. Mengesha was given an "Independent Application Kit" for his own interest in order that he understand the process to apply as an independent. He was strongly encouraged to return to school to allow this application. |
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[40] On the issue of Ms. O"Brien"s knowledge of Ethiopia and Eritrea, Gebrela Mengesha says as follows:
| 16. Ms. O"Brien also made a comment along the lines that she does not see why she should be expected to know anything about Ethiopia or Eritrea. |
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[41] Tsehay Mengesha states the following on the same topic:
| 28. Ms. O"Brien also admitted to us that she did not know anything at all about Ethiopia and Eritrea. |
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| 29. Nevertheless, when I tried to provide her with some information about the two countries and what occurred, she told me not to even bother because she would not understand anyway. |
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[42] Ms. O"Brien responds to these allegations as follows:
| 13. In response to paragraph 16 of the Affidavit of Gebriela Mengesha and paragraphs 28 and 29 of Tsehay Mengesha, I did not make the comments alleged by the affiants. I explained that I was not completely knowledgeable of the circumstances in Ethiopia and Eritrea, and I gave Mr. Mengesha and his sisters the opportunity to explain his claim for convention refugee status. In response, Mr. Mengesha reiterated his account of the four times that he had been questioned at the police station. He also referred to his written statement regarding his father"s imprisonment and his brother joining the Liberation Force. This was all the information that as offered. At no time did Ms. Tsehay Mengesha offer to provide information about the two countries, nor did I tell her not to bother as I would not understand it. |
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[43] Tsehay Mengesha makes the following comments on Ms. O"Brien"s demeanour during the interview:
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20. From the outset, it was apparent from her facial appearance that Ms. K. O"Brien, the visa officer who had carriage of the applicant Samuel Mengesha"s file, was unhappy or upset about something. |
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21. Initially, the applicant Samuel Mengesha and I thought that Ms. O"Brien was just having a rough day at the office. |
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22. However, it quickly became very obvious from her statements, questions, tone of voice and general demeanor, during the interview, that it was my brother"s file and his very presence which Ms. O"Brien could not stand. |
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[44] Ms. O"Brien responds to these comments as follows:
| 19. I have been characterized in the Affidavit of Tsehay Mengesha as unhappy, upset, visibly irate, speaking in an angry tone, and biased. I disagree entirely with these and other negative characterizations. |
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[45] I have listed the allegations of bias made against Ms. O"Brien and her complete denial of these allegations. Without a transcript of the interviews, and with only the Visa Officer"s CAIPS notes, it is difficult to make a proper determination. Different people may view the same interaction in very different ways, depending upon their perspective. I have no doubt that, given the importance of the interviews, the Applicant"s sisters were very sensitive to the comments and expressions of Ms. O"Brien. Ms. O"Brien, on the other hand, had no doubt interviewed a number of refugee claimants and formed an impression of the veracity of their stories. I expect that these varying experiential contexts influenced how each party came to the interviews and perceived the interaction that took place there.
[46] Tsehay Mengesha makes the following allegations of bias that Ms. O"Brien does not respond to:
| 32. Ms. O"Brien said to the applicant Samuel Mengesha that "You are only here because the Canadian High Commission accepted your sisters". |
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| 33. Ms. O"Brien asked us scornfully "Do you think that the Canadian High Commission in Jamaica is a train station?" |
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| 34. Ms. O"Brien said to me, in reference to my brother "If we accept him you will bring another brother". |
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| 35. Another telling moment for me occurred when Ms. O"Brien took the Ethiopian passport used by the applicant Samuel Mengesha and remarked that his Jamaican visa had expired. "Tell me why I should not report you to the Jamaican authorities?", she asked in a very aggressive and intimidating manner. "You are here illegally!", she exclaimed loudly. "As an officer, I have an obligation to report your status," she continued. |
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| 36. Before she concluded the interview, Ms. O"Brien stamped the passport used by the applicant Samuel Mengesha and warned him that "this stamp will show that you have already made an application and if you try to apply for a visitor"s visa, we will know that you have already been here". |
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Ms. O"Brien neither admits nor denies these statements in her affidavit.
[47] In Jiang v. Canada (MCI) (1997), 138 F.T.R. 230, there was before Lutfy J. an application to set aside a Visa Officer"s refusal of an application for permanent residence on the basis that the Visa Officer"s actions created a reasonable apprehension of bias. After the Visa Officer would pose a question to the applicant, his wife would whisper to him in Chinese. The Visa Officer admitted to telling the applicant"s wife to "shut up" so that the Visa Officer could check his English. Mr. Justice Lutfy allowed the application and found that the Visa Officer"s behaviour gave raise to a reasonable apprehension of bias.
[48] Lutfy J. says the following about how the principle of reasonable apprehension of bias applies to Visa Officers during their interviews with prospective immigrants. At page 232, he says the following:
| The principles of natural justice and procedural fairness apply to the visa officer"s meeting with the applicant. The visa officer has a serious responsibility during such interviews in assessing whether the applicant will be able to become successfully established in Canada. The visa officer must maintain a level of decorum conducive to an open and fair exchange, even in circumstances which must be sometimes difficult and trying. ... On balance, the visa officer when challenged by inappropriate conduct by the persons being interviewed, must remain composed in maintaining an orderly meeting. The visa officer presides over the interview. As the decision-maker, the visa officer has the duty to provide, to the extent possible, a calm environment as the applicant attempts to meet the selection criteria. |
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The test is thus whether the Visa Officer has maintained a level of decorum conducive to an open and fair exchange during the time in which the applicant attempts to meet the selection criteria.
[49] Jiang is distinguishable from the present instance. The Visa Officer in Jiang denies neither the accusations about her demeanour during the interview nor the language attributed to her. However, Ms. O"Brien denies most of the accusations made against her. In addition, in my view, nothing Ms. O"Brien is alleged to have said created the type of environment which is not conducive to an open and fair exchange.
[50] Varaich v. Canada (M.E.I.) (1994) 75 F.T.R. 143 is a case in which objections were made about the translation that took place during a hearing. At issue was whether the adjudicator"s comment concerning completeness of a translation created a denial of an impartial hearing. Madame Justice Tremblay-Lamer determined that the adjudicator"s behaviour, although at some points hostile and abrupt, did not give rise to a reasonable apprehension of bias. Tremblay-Lamer J. says the following at page 146 of her decision,
| ...the principle [sic] issue is whether the applicant was accorded a fair hearing. Sarcastic or harsh language are not in themselves sufficient to find a denial of natural justice. The fact that a Board member may have been over-aggressive in questioning the claimant does not mean that he or she lost their impartiality. The Court in Mahendran v. Minister of Employment and Immigration (1991),134 N.R. 316; 14 Imm.L.R. (2d) 30 (F.C.A.), stated [the] following in rejecting the applicant"s submission to this effect: |
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| ...one can perhaps have some understanding for Tribunal members who, in their enthusiasm to perform their duties in a credible fashion, may sometimes create a perception of over-aggressiveness and unfairness. |
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[51] The only remarks that are not expressly denied by Ms. O"Brien are the following: "You are only here because the Canadian High Commission accepted your sisters"; Ms. O"Brien asking scornfully, "Do you think that the Canadian High Commission in Jamaica is a train station?"; and Ms. O"Brien saying in reference to the Applicant"s brother, "If we accept him you will bring another brother". The other two alleged remarks about the Applicant"s expired Jamaican visa were in the Visa Officer"s authority to make.
[52] In my opinion, Ms. O"Brien"s strong opposition to false claims cannot, in itself, be taken as an indication of bias or as giving rise to a reasonable apprehension of bias. In my view, the allegations made against Ms. O"Brien simply show that she was frustrated and impatient. Ms. O"Brien appears to have used a harsh tone and to have made a few intemperate remarks. Ms. O"Brien"s decision should only be set aside if the Applicant establishes that the Visa Officer"s conduct and words are such that they would lead the "informed person" to conclude that the Visa Officer would reach a conclusion on a basis other than the evidence. In my view, that informed person, viewing the matter realistically and practically, and having thought the matter through, would not, on the evidence before me, reach that conclusion.
[53] As I have already indicated, there is no transcript of the interviews between the Visa Officer and the Applicant and his sisters. The only evidence I have regarding the interviews are the CAIPS notes. The affidavits filed by the Applicant"s sisters and by the Visa Officer clearly indicate a disagreement regarding what was said during the interviews. The Applicant, as I have already indicated, did not file an affidavit and I was not given any explanation for that omission. In my view, the Applicant ought to have filed an affidavit, certainly insofar as the issue of reasonable apprehension of bias was concerned. Since the burden of proof on this issue rests with the Applicant, and since he did not file an affidavit, I am of the view that the Applicant had not met his burden of proving, to my satisfaction, that the Visa Officer"s conduct and statements raise a reasonable apprehension of bias.
[54] For these reasons, this application will be dismissed.
Marc Nadon
JUDGE
OTTAWA, Ontario
August 31, 1999
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1 Applicant"s Record, p. 11.
2 Applicant"s Record, p. 15.
3 Applicant"s Record, pp. 38-39.
4 Applicant"s Record, p. 39.
5 D.P. Jones & A.S. de Villars, Principles of Administrative Law, 2nd ed. (Scarborough: Carswell, 1994) at 365.
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