Date: 20110204
Docket: IMM-3514-10
Citation: 2011 FC 126
Ottawa, Ontario, February 4, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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SELA TESFA WOLDEGHEBRIAL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I.
Overview
[1]
Ms. Sela Tesfa Woldeghebrial claimed refugee
protection in Canada based on
her fear of persecution in Ethiopia as a person of Eritrean ethnicity, and as a person who experiences
serious mental health challenges (namely, dementia). A panel of the Immigration
and Refugee Board dismissed her claim on two grounds: (1) the harsh treatment
of Eritrean persons in Ethiopia does not amount to persecution, and (2) notwithstanding
the abysmal care of, and negative attitudes toward, the mentally ill in Ethiopia, Ms. Woldeghebrial has family
members there who can care for her.
[2]
Ms. Woldeghebrial submits that the Board’s
findings were unreasonable. She asks me to order a new hearing before a
different panel of the Board. In my view, the Board’s conclusion that the
treatment Ms. Woldeghebrial could expect to receive in Ethiopia did not amount to persecution was unreasonable in light of the
evidence before it. Therefore, I will grant this application for judicial
review.
II.
The Board’s Decision
[3]
The Board accepted the evidence provided by Ms.
Woldeghebrial’s designated representative, her daughter, Ms. Amlest Kifle
Dessu. Ms. Dessu explained that her parents had avoided deportation from Ethiopia to Eritrea after the war between those countries broke out in 1998. They
bribed officials and obtained false identity documents. However, in 2008, when
one of those officials demanded more money and threatened to expose them, Ms.
Woldeghebrial decided to leave Ethiopia, while her husband went into hiding. By this time, Ms.
Woldeghebrial was quite ill.
[4]
The Board considered whether there was objective
evidence to support Ms. Woldeghebrial’s fear of persecution as a member of the
Eritrean population in Ethiopia
or as a person experiencing mental illness. The Board found that Eritreans are
treated harshly in Ethiopia and
are denied basic rights. Conditions are particularly bad during times when
there are skirmishes along the border between the two countries, as has been
the case for the past decade. Based on this evidence, the Board concluded that
Eritreans are discriminated against in Ethiopia but not persecuted. It found that Ms. Woldeghebrial did not have a
public profile that would bring her to the attention of Ethiopian authorities.
The Board acknowledged that there was a risk of persecution during times of
tension between the two countries but, in respect of Ms. Woldeghebrial, this
risk amounted to no more than a mere possibility.
[5]
Regarding treatment of the mentally ill in Ethiopia, the Board found that few services
were available and described the situation as “abysmal”. One mental hospital
serviced a population of 77 million. Further, Ethiopians tend to regard the
mentally ill as possessed by “supernatural evil”. However, the Board found that
Ms. Woldeghebrial’s husband and two daughters in Ethiopia would care for and protect her.
III.
Were the Board’s Findings Unreasonable?
[6]
The Board appears to have concluded that, in
general, Eritreans experience discrimination in Ethiopia. Circumstances get worse for them when there are hostilities
between the two countries (as at present), but there was little risk to Ms.
Woldeghebrial because she was not known to be Eritrean and did not live near
the border.
[7]
In my view, there are two problems with the
Board’s reasoning. First, the Board does not explain why the treatment of
Eritreans should be characterized as “discrimination” not “persecution”.
Second, the Board overlooked the fact that Ms. Woldeghebrial fled Ethiopia out of fear of being exposed as a
person of Eritrean ethnicity.
[8]
The Board also appeared to accept that the
treatment of the mentally ill in Ethiopia could amount to persecution, but it went on to find that the risk
to Ms. Woldeghebrial was slight since she could avail herself of the care of
her remaining family members. However, the Board does not explain how the
presence of family members would protect her. First, there was no evidence that
the family was in a position to care for her. Second, there was no evidence
that she could receive the treatment and medication she requires in Ethiopia; in fact, there was evidence to
the contrary.
[9]
Based on these findings, I conclude that the
Board’s decision was unreasonable as it falls outside the range of acceptable
outcomes based on the facts and the law.
IV. Conclusion and Disposition
[10]
I find the Board’s decision to be unreasonable
because it does not appear to take account of the evidence before it relating
to the treatment of Eritreans in general, and Ms. Woldeghebrial in particular,
in Ethiopia, or Ms. Woldeghebrial’s medical circumstances. Therefore, I must
grant this application for judicial review and order a re-hearing before
another panel of the Board. Neither party proposed a question of general
importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is granted. The matter is referred back to the
Board for a new hearing before a different panel;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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