Date: 20100223
Docket: IMM-2335-09
Citation: 2010 FC 200
Ottawa, Ontario, February 23,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
LETAY
DOMOZ SEBAHTU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review of a decision denying Ms. Sebahtu a permanent resident’s
visa on the grounds that she was a security risk pursuant to s. 34(1)(f)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
II. BACKGROUND
[2]
The
Applicant is already a UN Convention Refugee living in Sudan having fled Ethiopia with her
family. Her husband was a member of the Ethiopian Democratic Union (EDU), a
group which had fought against the Derg regime in the 1970s.
[3]
The
Applicant had a UN form filled out – she being illiterate – which indicated
that she had fled Ethiopia in 1977 and her husband in 1978. The form also
indicated that she had been a member of the EDU, had participated in meetings
and made financial contributions. There are problems with dates in this file as
the Immigration Canada file lists her as a member of the EDU from 1980 to 1998
after she fled Ethiopia.
[4]
A
first interview was held in March 2004. The notes indicate a concern about the
literacy of the family and the lack of employment skills. The Officer noted the
possibility of having the UNHCR refer them to Australia but there
was no mention of security concerns. There were notations of EDU membership.
[5]
Before
the admission ruling, the Applicant’s stepson was accepted as a government
sponsored refugee.
[6]
The
fairness letter was sent May 22, 2005, refusing admission due to the
Applicant’s EDU membership. She was invited to make further submissions but did
not do so because she never received the letter.
[7]
Because
of these circumstances, the Applicant was given another fairness letter and
opportunity to respond. It was her contention that she was never a member of
the EDU but had merely supported her husband.
[8]
In
this second interview the Applicant denied that she was a member of the EDU or
attended meetings. The Applicant denied the accuracy of the translation in
2004. The explanation appears to be that in her language “you” in the singular
is different from “you” in the plural and the translator had used the plural.
The Applicant took the question to be related not just to herself but her
husband and herself.
[9]
The
Visa Officer held that the Applicant was not forthcoming about her EDU
membership and therefore denied her application on s. 34(1)(f) grounds.
III. ANALYSIS
[10]
At
its root this decision is a credibility finding. As such, it is subject to a
reasonableness standard (Rajaduri v. Canada (Minister of
Citizenship and Immigration), 2009 FC 119). The Applicant also claims
that there was a breach of procedural fairness – a matter which is subject to a
correctness standard of review.
[11]
The
Court is understanding of the difficulty in sorting out the specifics of these
types of cases. Translation may be the least of the problems compared to
literacy, cultural norms and vagueness of time related matters. However, this
decision suffers from two difficulties.
[12]
The
first difficulty is that there appears to be an adverse credibility finding
without any reasons or analysis. There is no contrary evidence to the
Applicant’s claim of confusion in the translation; there is no analysis of why
her explanation of circumstances is neither credible nor plausible. For
example, there is no consideration of how a woman in her circumstances would
either find the time to participate or the money to make contributions.
[13]
It
is within the purview of a Visa Officer to make a credibility finding but the
reasons for that decision must disclose, even in a summary way, the basis for
the adverse findings. This is an issue which goes to the fairness of the
process and the reasonableness of the result.
[14]
The
second difficulty is in the fairness of the process particularly as regards the
translation of her narrative. On the balance of probabilities, there was
confusion in the translation – not the fault of either party. That said, it
nevertheless results in an unfair process and an unfairness which has serious
consequences; in this case, both as regards the s. 34(1) finding and a refusal
to consider (s. 34(2)).
[15]
The
Court is also concerned that the Applicant did not have adequate disclosure of
the case she had to meet. It is not that she was entitled necessarily to every
document held by the Visa Officer but she was entitled to know the other
relevant facts which the Visa Officer had before her.
IV. CONCLUSION
[16]
As
a result, this judicial review will be granted, the decision will be quashed
and the matter remitted to a different Visa Officer.
[17]
This
is not a case for certification of a question.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is granted, the decision is quashed and the
matter is to be remitted to a different Visa Officer.
“Michael
L. Phelan”
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