Date: 20110505
Docket: IMM-6005-09
Citation: 2011 FC 520
Ottawa, Ontario, May 5, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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TSEGEROMAN ZENAWI KIDANE
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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. Introduction
[1]
The
Applicant, Tsegeroman Zenawi Kidane, is a citizen of Eritrea. In 2008, the
Applicant moved to Cairo, Egypt and applied for permanent residence in Canada as a refugee
outside Canada. In a letter
(also referred to as the rejection letter) dated October 12, 2009, a visa
officer (the Officer) with the Canadian Embassy in Cairo, Egypt
refused her application. The Applicant seeks to overturn this decision. For the
reasons which follow, I will allow this application for judicial review.
II. Issues
[2]
The
issues raised by this application are as follows:
1.
Did
the Officer err by failing to have regard to the Applicant’s status as a UNHCR
refugee or by failing to have regard to CIC Guideline OP 5 (discussed below)?
2.
Did
the Officer make erroneous findings related to credibility, by failing to have
regard to the evidence before her or by misunderstanding or misinterpreting the
evidence?
3.
Did
the Officer err by failing to assess all possible grounds of persecution –
specifically, the Applicant’s claim to have left Eritrea illegally?
4.
Did
the Officer err by failing to give adequate reasons?
5.
Does
the Officer’s decision give rise to a reasonable apprehension of bias?
III. The
Related Files
[3]
This
file is one of four judicial review applications heard together by this Court.
The other three files are Court File Nos. IMM-6000-09 (Henok Aynalem
GHIRMATSION), IMM-6009-09 (Tsegay Kiflay WELDESILASSIE) and IMM-6010-09 (Selam
Petros WOLDESELLASIE). These four files are representative of a group of almost
40 files, for which judicial review applications have been commenced. The
remaining files have been held in abeyance pending the outcome of these four
files. The common elements of the four files and, as I understand it, of the
entire group of files, are as follows:
·
each
of the claimants is an Eritrean citizen;
·
each
of the Applicants claims to be a member of the Pentecostal Church;
·
the
applications for permanent residence were refused for each; and
·
the
same Officer interviewed each of the claimants and made the decision to refuse
the application for permanent residence.
[4]
While
the individual merits of each of the applications for judicial review are raised
in the separate application records, the four cases were selected as
representative cases because, in the words of the Applicant, “they evince
several distinct errors and patterns of decision making that are common to many
or all of the other cases”.
[5]
I
wish to stress that this decision is addressed to this particular application
by this Applicant. I make no overall finding or order that binds the
disposition of any of the remaining files. Each file presents a unique set of
facts and requires separate review and determination.
[6]
Having
said this, there are issues that are common to the four files. With respect to
those common issues, I present my analysis and conclusions more fully in the
first of the four files – IMM-6000-09. The Reasons for Judgment and Judgment in
that file can be found at Ghirmatsion v. Canada (Minister of
Citizenship and Immigration), 2011 FC 519 [Ghirmatsion]. Where
appropriate, in these Reasons, I will refer the parties and the reader to the
applicable sections of Ghirmatsion.
IV. The
Affidavits
[7]
In
Ghirmatsion, above, I reviewed the affidavits that were filed in support
of the judicial review application.
[8]
The
affidavits presented in this case by the Applicant (besides that of the
Applicant herself) are identical. I have the same concerns as were previously
expressed. For the reasons set out at paragraphs 6 to 23 of Ghirmatsion:
·
the
affidavits of Ms. Janet Dench will be given little weight;
·
the
affidavit of Mr. Tewolde Yohanes will be given little weight;
·
Dr.
William Griffin is accepted as an expert in matters related to the Pentecostal
faith and, if required, the evidence and opinions set out in his affidavit will
be treated as expert evidence provided to assist the Court; and
·
the
documents attached to the affidavit of Ms. Natalia Shchepetova were not before the
Officer and will not be considered by this Court.
[9]
To
the extent that the affidavit of the Officer purports to add to or amend her
reasons, as set out in the computer assisted immigration processing system (CAIPS)
and the rejection letter, it will not be considered.
V. Background
of the Applicant
[10]
In
this section of these reasons, I will briefly set out the background of the
Applicant as she has described it. I observe that this is the Applicant’s
story, primarily as set out in the narrative that was part of her application;
I make no findings of its truth or of the merits of the claim.
[11]
The
Applicant was born on June 29, 1963 in Adibzage, Eritrea. The
Applicant converted to Pentecostalism as a young woman and has been a leader of
her church since 1984.
[12]
In
1993, the Applicant, following the death of her husband, took a job for 10
years as a clerk with the Ministry of Health in Eritrea.
[13]
In
May 2002, the government of Eritrea began a concerted
effort to target and shut down minority churches, including Pentecostal
churches.
[14]
In
2003, the Applicant left her job with the Ministry and began working full-time
with the church, serving as a secretary and translator of books.
[15]
By
2007, the Applicant was refused a passport to visit her sister in the United
States
because she was not a member of a recognized religion. The Applicant travelled
to Sudan where she
obtained a passport from the Eritrean embassy without being questioned about
her religious identity.
[16]
In
the summer of 2008, the Applicant moved to Cairo, Egypt where she
was recognized as a UNHCR refugee. The Applicant submitted an application for
permanent residence in Canada as a refugee outside Canada.
VI. The
Interview
[17]
On
September 30, 2009, the Applicant was interviewed by the Officer. The interview
was conducted in English and Tigrinya, with the aid of an interpreter. There is
no transcript of the interview. The Officer took notes on her computer during
the interview and copied these notes into CAIPS, apparently on the same day.
[18]
Further
descriptions of what went on at the interview are contained in the affidavits
of the Officer (sworn on September 5, 2010) and the Applicant (sworn on February
24, 2011). Given the time that has passed between the interview and the
affidavits, during which time memories can become dim or distorted, I am
reluctant to rely on these affidavit versions of the details of the interview
held in 2009.
[19]
In
this case, as was also the situation in Ghirmatsion, above, the
Applicant came to the attention of an organization known as Africa and Middle East Refugee
Assistance (AMERA). The role of AMERA is described in more detail in Ghirmatsion,
above, at paragraphs 33 and 34.
[20]
The
Applicant was interviewed by a representative of AMERA on November 1, 2009,
during which interview she provided further details of her interview with the
Officer. The notes are attached to the Applicant’s affidavit. The notes were
made within a short time following the interview with the Officer; they are
more contemporaneous than the comments in the affidavits of either the Officer
or the Applicant. As I concluded in Ghirmatsion, above, and for the same
reasons, I will accept the AMERA notes with considerable reservations that may
go to weight.
VII. The
Decision
[21]
In
her rejection letter dated October 12, 2009, the reasons for rejection were set
out as follows:
After carefully assessing all factors
relative to your application, I am not satisfied that you are a member of any
of the classes prescribed because you have not satisfied me that you were
credible at your interview. I find it unreasonable that if you converted to the
Pente faith since 1984 that you started to work with church in 2003 one year
after the religion was banned. I equally find it unreasonable that if you were
a Pente believer that you had no problems during your long service with the
government. Further, I am not satisfied that you are indeed a Pente follower as
you were not able to provide basic information about the faith. Besides, you
stated that one of your problems was that you were not able to get a passport
however you came to Egypt on a valid passport issued by your embassy in Sudan. I am not satisfied that you do not have
a durable solution in Eritrea. As I do not find you
credible, I am not satisfied that you meet the country of asylum definition;
that you have not been and do not continue to be seriously and personally
affected by massive violation of your civil rights nor that you meet the
convention refugee definition of having a well-founded fear of persecution.
[22]
It
appears that the Officer’s rejection was based on an overall conclusion that
the Applicant was not credible. The stated reasons for that conclusion consist
of the following:
1.
she
was unable to provide “basic information” about the Pentecostal faith;
2.
it
was not plausible that someone of the Pentecostal faith could have worked for
the Government for many years with no problems;
3.
it
was not plausible that she would begin working for the Pentecostal Church in
2003, one year after the Church was banned; and
4.
it
was not plausible that she could not obtain a passport in Eritrea but managed
to get one from the Eritrean Embassy in Sudan.
[23]
The
first three reasons relate to the Applicant’s claim to be of the Pentecostal
faith. The fourth can be characterized as an inference about the practices of
the Eritrean government.
[24]
It
is common ground that the Officer’s reasons are those set out in the decision
letter augmented by the contents of the CAIPS notes on the file. What
additional reasons for these two key findings can be obtained from the CAIPS
notes? The portions of the CAIPS notes reproduced in these reasons are
transcribed as closely to the original version as possible.
1. Pentecostal
Faith: According to the CAIPS notes, the Applicant referred to her religion
on a few occasions during her interview.
To the
question of why she converted to Pentecostalism, the Applicant responded that,
“I WANT TO ENTER HEAVEN”. The Officer’s CAIPS notes also have a very brief
notation: “WHAT IS THE SECOND COMING? VERY BASIC INFO” [Note: During her
interview with the AMERA representative, the Applicant provides much more
detailed explanations].
The Officer
states, in the CAIPS notes, that she asked: “WHAT ARE THE DIFFERENCES [between
the Evangelical faith of her parents and Pentecostalism]?” However, no answer
is recorded. In her affidavit, the Officer states that the Applicant was unable
to tell her the differences [Note: This is not consistent with the AMERA
interview notes, where the Applicant states that she described the notion of
being born again].
According to
both the Officer’s affidavit and the notes from the AMERA interview, the
Applicant was asked about the “seven gifts (or fruits) of the spirit”. The
Officer’s affidavit and the Applicant’s AMERA notes provide different
recollections of the exchange that took place. The reference that is most
reliable is that contained in the CAIPS notes:
I ALSO HAVE CONCERNS ABOUT YOU CONVERTING
TO ANOTHER RELIGION BECAUSE OF THE GIFTS OF THE HOLY SPIRIT AND NOT KNOWING
WHAT THEY ARE? THE GIFTS WOULD ONLY BE GIVEN TO A FEW PEOPLE, YOU WERE BORN
FROM WATER AND SPIRIT, YOU ARE BAPTIZED AND START SPEAKING IN TONGUES.
2. Working
for Government: As noted, the Applicant worked for the Ministry of Health
as a clerk from 1993 to 2003, when she left to begin working full-time for the Pentecostal
Church.
As noted in the CAIPS notes, the following discussion took place:
WHILE YOU WERE PENTE AND WORKING FOR THE
MINISTRY YOU DIDN’T ENCOUNTER ANY PROBLEMS? I DIDN’T HAVE ANY PROBLEMS.
IF THE RELIGION IS ILLEGAL AND YOU WERE
WORKING FOR THE GOVERNMENT, I WOULD SUSPECT YOU WOULD HAVE HAD PROBLEMS?
RELIGIOUS PERSON, JOHEAH [SIC] WITNESS WERE THE ONES BANNED.
3. Working
for Church: From 2003 to 2007, the Applicant worked for the Pentecostal Church in Eritrea. There is
nothing in the CAIPS notes to indicate that the Officer asked the Applicant why
she began working for the Church after it had been banned.
4. Passport:
The Applicant obtained a valid Eritrean passport from the Eritrean embassy in Khartoum, Sudan,
after allegedly being refused a passport from the authorities in Eritrea because she
was not a member of a recognized religion. The CAIPS notes show that the
Applicant described this to the Officer:
HOW DID YOU OBTAIN YOUR PASSPORT? I WENT
TO SUDAN, THEY WOULDN’T ASK YOUR
RELIGION IN SUDAN.YOU GOT YOUR PASSPORT IN SUDAN? YES. FROM WHERE? ERITREAN EMBASSY.
VIII. Statutory
Framework
[25]
A
brief outline of the statutory scheme affecting this application is described
in my reasons in Ghirmatsion, above, at paragraphs 41 to 45. The full
text of the relevant statutory provisions is set out in Appendix A to that
those reasons.
[26]
In
summary form, to be eligible for resettlement in Canada as a refugee abroad
under s. 139(1), s. 144 and s. 145 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [IRPA Regulations], a person:
·
must
meet the Convention refugee definition;
·
must
be outside Canada; and
·
must
meet the requirement that there is no reasonable possibility in a foreseeable
amount of time of any other durable solution such as,
o
voluntary
repatriation or resettlement in their country of nationality or habitual
residence; and
o
resettlement
or an offer of resettlement in another country.
IX. Standard of Review
[27]
Overall,
the decision of a visa officer is reviewable on the standard of reasonableness.
When reviewing a decision on the standard of reasonableness, the Court is
concerned with "the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law." That is, the decision
will stand unless it does not fall “within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (New
Brunswick v Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir] at para. 47).
[28]
However,
the issues of failure to consider a ground for protection, reasonable
apprehension of bias and the adequacy of reasons are reviewable on a standard
of correctness (Ghirmatsion, above, paras 46-53).
X. Failure to
have regard to certain factors or evidence
A. UNHCR
Status
[29]
The
Applicant has been recognized as a Convention refugee by the United Nations
High Commission for Refugees (UNHCR), as evidenced by a “blue card” issued in
August 2008. As I understand it, the blue identity card shows that the bearer
has been individually assessed and is officially acknowledged by this UN body
as a refugee. The Applicant submits that the Officer erred by failing to give
any consideration to the UNHCR status as a factor relevant to her
determination.
[30]
The
importance of the UNHCR designation is discussed in some detail in Ghirmatsion,
above, and is not repeated her. I restate that Citizenship and Immigration
Canada (CIC) Guideline OP 5, “Overseas Selection and Processing of
Convention Refugees Abroad Class and Members of the Humanitarian-protected
Persons Abroad Classes” (August 13, 2009)(OP 5) teaches the Officer the
importance of the UNHCR refugee recognition. In section 13.3 of OP 5, visa
officers are instructed that a decision by the UNHCR with regard to an
applicant’s refugee status is a factor to consider in determining eligibility
for refugee status.
[31]
There
is no reference in the CAIPS notes or the decision to the Applicant’s status
with the UNHCR. I recognize that UNHCR status as a refugee is not
determinative; the Officer’s mandate is to assess the Applicant’s credibility
and to determine the merits of her claim under applicable Canadian laws.
Nevertheless, OP 5 recognizes the importance and relevance of the UNHCR in the
processing of applications under the Refugee Abroad Class. In my view, the
Applicant’s status as a UNHCR refugee was a personal and relevant
consideration.
[32]
The
evidence of the UNHCR designation was so important to the Applicant's case that
it can be inferred from the Officer’s failure to mention it in her reasons that
the decision of the Officer was made without regard to it (Cepeda-Gutierrez
v Canada (The Minister of Citizenship and Immigration) (1998), 157
FTR 35, [1998] FCJ No 1425 (QL)(FCTD), at para 17). This is a central
element to the context of the decision. The Officer, faced with a UNHCR
refugee, should have explained why her assessment did not concur with that of
the UNHCR. She was not under any obligation to blindly follow the UNHCR
designation; however, she was obliged to have regard to it. Unless a visa
officer explains why a UNHCR designation is not being followed, we have no way
of knowing whether regard was had to that highly relevant evidence.
[33]
This
error by the Officer is a sufficient basis on which to overturn the decision. I
wish, however, to repeat that the UNHCR determination is not determinative; the
Officer must still carry out her own assessment of the evidence, including the
evidence of the UNHCR Refugee status.
B. Failure to
Assess Eligibility as set out in OP 5
[34]
The
Applicant argues that the Officer failed to carry out an assessment as to
whether she met the definition of a Convention refugee. In particular, the
Applicant faults the Officer for not explicitly following the steps outlined in
section 13.3 of OP 5.
[35]
This
argument was raised and rejected by me in Ghirmatsion, above. For the
same reasons, I am not persuaded that the Officer erred by failing to follow
the steps set out in OP 5, section 13.3.
[36]
As
in Ghirmatsion, above, the problem with the Applicant’s argument on this
point is that it ignores that the Officer’s decision was based on a negative
credibility finding. Moreover, the Applicant held a valid passport (however or
wherever obtained). Thus, much of the documentary evidence related to
persecution of Pentecostals in Eritrea, or to the treatment of those who left Eritrea illegally was not
relevant. Thus, if the credibility findings are sustainable, I would conclude
that there was no error by the Officer in failing to refer to each and every
step outlined in section 13.3 of OP 5.
XI. Reasonableness
of Credibility Findings
A. Passport
from Eritrean Embassy
[37]
The
Officer found that it was implausible that, if the Applicant had been refused a
passport in Eritrea, she could have obtained
one at the embassy in Sudan. In my view, this
implausibility finding is unsupported by any evidence. We have no idea from the
documentary evidence whether this part of the Applicant’s story is true or not.
An inference based on a total lack of documentary evidence is either (a) mere
speculation; or (b) based on what the Officer knows about Canadian immigration
procedures.
[38]
Common
sense, based on our trust in Canadian authorities, would lead us to assume that
a person who is refused a passport in Canada would also be refused a passport at any
Canadian embassy. But, can we measure the possible actions of foreign embassies
of all countries by that high standard – particularly when the country in
question has been criticized for corruption? Visa officers must be
careful not to judge actions which appear implausible when judged from Canadian
standards; such actions might be plausible when considered within the
“claimant’s milieu” (Ye v Canada (Minister of Employment and Immigration),
[1992] FCJ No 584 (QL), 34 ACWS (3d) 241(FCA)). In the case at bar, the Officer
may erroneously have judged the reasonableness of the Eritrean embassy
against how a Canadian embassy would have considered such a passport
application.
Or, quite simply, she speculated. In either event, the Officer erred on a
material issue.
B. Pentecostal
Faith
[39]
The
key elements of the Officer’s credibility finding related to the Applicant’s
claims of being of the Pentecostal faith. The Officer made three underlying
findings to support a conclusion that the Applicant was not credible about her
Pentecostal faith; those findings were as follows:
1.
she
was unable to provide “basic information” about the Pentecostal faith;
2.
it
was not plausible that someone of the Pentecostal faith could have worked for
the Government for many years with no problems; and
3.
it
was not plausible that she would begin working for the Pentecostal Church in 2003,
after the Church was banned.
[40]
With
respect to “basic information”, the rejection letter and CAIPS notes provide
little guidance as to what questions were asked by the Officer. From the
affidavit evidence and the AMERA interview notes, I can reasonably infer that
the Officer asked the Applicant to name the “seven gifts of the Holy
Spirit”. As recorded in the CAIPS notes, the Applicant provided a very short
response.
[41]
There
also may have been some confusion around whether the Officer asked about the
“fruits of the spirit”, a concept that would likely not have been commonly
understood by a Pentecostal, or the “gifts of the spirit”. The Applicant’s
affidavit and the AMERA interview notes refer to the “fruits”. Having reviewed
the record, I am satisfied that it is more likely than not that the Officer
asked about the “gifts of the spirit”. What is very clear is that the Officer
asked about “seven” such gifts.
[42]
In
both written and oral submissions, the Respondent argues that the Officer’s
references to “the gifts of the Holy Spirit” were not perverse as is taken
directly from the Bible, 1 Corinthians 12:4-11.
[43]
The
problem is that the Officer arbitrarily asked for “the seven gifts of
the Holy Spirit”, which is not a defined concept in the Pentecostal faith. As
noted by Dr. Griffin (see Applicants’ Application Records, Volume 2, Affidavit
of Dr. Griffin, para 13):
It would be a great error if someone were
to evaluate a person’s Pentecostal faith on the basis of lack of knowledge
about the “seven gifts of the Spirit.” Such an expression is
absolutely foreign to a Pentecostal. [Emphasis added.]
[44]
When
asked how the Officer learned about the Pentecostal faith, she answered (Cross-Examination
of AnnMarie McNeil, March 22-23, 2011, Q195-197 and Q239):
Q. So is it fair to say that you
learned about the Pentecostal faith while you were in Cairo?
A. Yes.
Q. And where and what did you read
to learn about Pentecostal faith?
A. I did Google searches with
websites and I can’t recall them right now.
…
Q. And would you say that your
knowledge of Pentecostalism relates specifically to Pentecostalism in Eritrea or Pentecostalism more generally?
A. Pentecostalism
more generally.
…
Q. Do you agree that there’s not
specific reference or no reference to a specific number of gifts in either 1
Corinthians 12 or the UK country document on Eritrea?
A. Yes, I would agree with that.
There’s no specific number mentioned.
[45]
When
asked how she chose to ask the Applicant about “the 7 gifts of the Holy Spirit”,
she stated (Cross-Examination
of AnnMarie McNeil, March 22-23, 2011, Q241):
Q. How did you determine whether
to ask – whether there were seven gifts or nine gifts?
A. I just chose a number. I could
have asked for three or four. I chose seven.
[46]
In
my opinion, the faith-based questions posed by the Officer were without factual
foundation. It is an important function for a visa officer to decipher the
sincerity of an applicant’s religious belief. In order to do this, the visa
officer must be informed regarding the relevant religious beliefs and
practices. This cannot be done by arbitrarily applying a test that would
confuse an applicant. This was the case with the line of questioning posed by
the Officer. The Officer did not assess the sincerity of the Applicant’s
Pentecostal religious beliefs. Instead, the Officer asked questions designed to
test the Applicant’s knowledge of “the seven gifts of the Holy Spirit”.
Moreover, the Officer’s admission that she knew little of the Pentecostal faith
in Eritrea taints all of the
questions that she asked and the inferences that she drew from the Applicant’s
responses. The matter of the Applicant’s faith was central to her claim. This
error in assessing that aspect of her claim is fatal to the decision.
[47]
The
second and third findings relate to the Applicant’s work in Eritrea. In my view, neither of
the findings is perverse or outside the range of reasonable, acceptable
outcomes. Even though the Pentecostal faith was not banned until 2002, the
documentary evidence indicates hardship for the adherents of the faith prior to
that time. The Officer reasonably concluded that it would have been difficult
for someone of the Pentecostal faith to continue in a job with a government
ministry for ten years with absolutely no problems. Secondly, it was also open
to the Officer to question why a Pentecostal, knowing the risks, would
voluntarily leave a job with the government to assume a full-time clerical
position with a banned religion. While the Officer’s reasons could have been
better written on these two points, I would not overturn the decision on the
basis of either of these two findings by the Officer.
C. Conclusion on credibility findings
[48]
Paying
respectful attention to the reasons offered or which could have been offered by
the Officer in this case, I conclude that the credibility findings related to
the Applicant’s faith and her obtaining a passport lack justification,
transparency and intelligibility; they are unreasonable. These two findings by
the Officer were central to the Applicant’s claim. Accordingly, the Officer’s conclusion
that the Applicant was not credible is not reasonable.
XII. Other Grounds of Persecution
[49]
In
this case, as set out in the rejection letter and the CAIPS notes, the Officer
considered only one ground of persecution. Specifically, she examined whether
the Applicant was at risk on grounds of religious persecution. The Applicant
submits that she also raised her illegal departure as a reason why she feared
persecution in Eritrea. She argues that the
Officer erred by not considering this additional ground of persecution.
Documentary evidence, in her view, strongly suggests that persons who return
after leaving the country illegally would be subject to harsh treatment by
Eritrean authorities.
[50]
The
problem with this assertion is that the Officer did not find the Applicant’s
story of obtaining a passport from the Eritrean Embassy in Sudan to be credible.
Although not explicitly stated in these words, the Officer believed that the
Applicant obtained her passport in Eritrea and, therefore, did not leave the country illegally.
Beyond the assertion in her personal narrative that she obtained her passport
in Sudan, there is nothing in
the record that could, in my view, amount to a claim that she left the country
illegally. The Officer did not err in failing to consider this alternate ground
of persecution.
XIII. Adequacy
of Reasons
[51]
The
Applicant asserts that the reasons of the Officer are inadequate. For the
reasons set out in Ghirmatsion, above, on the narrow question of whether the
reasons are adequate to meet the Officer’s duty to provide reasons, I would
conclude that the Officer’s reasons are adequate.
XIV. Reasonable
Apprehension of Bias
[52]
The
Applicant asserts that the decision of the Officer raises a reasonable
apprehension of bias. For the reasons set out in Ghirmatsion, above, I
do not agree with the Applicant.
XV. Conclusion
A. Summary of decision
[53]
Returning
to the issues raised near the beginning of these reasons, I would conclude that
the Officer made the following reviewable errors:
1.
the
Officer erred by failing to have regard to the Applicant’s status as a UNHCR
refugee; and
2.
the
central elements of the Officer’s finding of lack of credibility do not reflect justification,
transparency and intelligibility; this portion of the decision is unreasonable;
[54]
These
conclusions are sufficient to warrant the intervention of this Court. However,
to complete this summary, my other conclusions are as follows:
1.
the
Officer did not err by failing to refer to or follow explicitly the steps outlined in OP
5, section 13.3;
2.
the Officer
did not err by failing to assess all grounds of persecution;
3.
the
Officer’s reasons (the CAIPS notes and the rejection letter) satisfy the
Officer’s duty to give reasons; and
4.
the
Applicant has not met her burden of demonstrating that the Officer’s decision
gives rise to a reasonable apprehension of bias.
B. Remedies
[55]
The
Applicant seeks a number of remedies that extend beyond a re-determination of
the application by a different decision maker. As stated in the “Applicants’
Further Memorandum of Argument” (a submission common to all four of these
judicial reviews), the Applicant seeks the following:
The
Applicants request that this Court quash the decisions of the visa officer in
each of the four “lead cases”, and remit the matters to a senior decision maker
not based at the Cairo visa post for redetermination of eligibility within 60
days; in the event of a positive eligibility decision the applicants request
further that background checks be completed within a further 30 days and visas issued
within 7 days thereafter.
[56]
I am
prepared to quash the decisions and have the matter remitted to a different
visa officer for re-determination. I am also prepared to order that the
Applicant be able to submit such further material as she feels is necessary to
support her claim. However, I am not prepared to issue the detailed order that
the Applicant would like to see in this case. In respect of the balance of the
request, I refer to my reasons in Ghirmatsion, above, at paragraphs 118 to
122.
C. Costs
[57]
The
Applicant seeks costs in this and the related three files. The Applicant will
have until May 27, 2011 to make further submissions on costs. The submission is
to be a joint submission for all four related files and must not exceed ten
pages in length. Further, the submission should identify the total amount of
costs sought, either for each file or for the four files together. The
Respondent will have until June 9, 2011 to provide reply to the Applicant’s
submissions on costs.
D. Next Steps
[58]
As
noted at the beginning of these Reasons, the Applicant is one of almost forty
claimants in similar circumstances. In Reasons for Judgment and Judgment
released at the same time as this, I have concluded that the judicial review
applications for the other three files heard at the same time as this one will
also be allowed. As I did early in these Reasons, I wish to stress that this
decision is addressed to this particular application by Ms Tsegeroman Zenawi
Kidane. I make no finding or order that binds the disposition of any of the
remaining files. Each file presents a unique set of facts and requires separate
review and determination. However, I am hopeful that these Reasons will permit
counsel for the Applicant and the Respondent to reach an agreement on the proper
disposition of some or all of the remaining applications in the group.
[59]
At
the close of the hearing, the parties expressed interest in convening a
conference with me to discuss the next steps. If the parties continue to
believe that such a conference would be helpful, they are invited to make such
a request through the Court Registry.
E. Certified Question
[60]
Neither
party proposes a question of general importance for certification. I agree that
there is no question for certification.
JUDGMENT
NOW THIS
COURT ORDERS AND ADJUDGES that :
1.
The application for judicial review is allowed, the decision of
the Officer is quashed and the matter remitted to a different officer for
reconsideration.
2.
The Applicant will be permitted to provide any additional materials
to the newly designated visa officer that she believes are relevant to the
determination of her claim.
3.
The Applicant will have until May 27, 2011 to make further
submissions on costs. The submission is to be a joint submission for all four
related files and must not exceed ten pages in length. Further, the submission
should identify the total amount of costs sought. The Respondent will have
until June 9, 2011 to provide reply to the Applicant’s submissions on costs.
4.
No question of general importance is certified.
“Judith
A. Snider”
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