Date: 20110505
Docket: IMM-6010-09
Citation: 2011 FC 522
Ottawa, Ontario, May 5, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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SELAM PETROS WOLDESELLASIE
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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, Selam Petros Woldesellasie, is a citizen of Eritrea. In
September 2006, she left Eritrea, travelling to Egypt. In October
2008, the Applicant applied for permanent residence in Canada as a refugee
outside Canada. In a letter
(also referred to as the rejection letter) dated October 11, 2009, a visa
officer (the Officer) with the Canadian Embassy in Cairo, Egypt refused her
application. The Applicant seeks to overturn this decision.
[2]
For
the reasons which follow, I will allow this application for judicial review.
II. Issues
[3]
The
issues raised by this application are as follows:
1.
Did
the Officer err 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
and her gender-related risk?
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
[4]
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-6005-09 (Tsegeroman Zenawi KIDANE) and IMM-6009-09 (Tsegay Kiflay
WELDESILASSIE). 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.
[5]
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”.
[6]
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.
[7]
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
[8]
In
Ghirmatsion, above, I reviewed the affidavits that were filed in support
of the judicial review application.
[9]
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.
[10]
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
[11]
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, 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.
[12]
The
Applicant was born on January 29, 1974 and is a citizen of Eritrea. The
Applicant’s family is Christian and belongs to the Pentecostal Church. The
Applicant has considered herself a Pentecostal her whole life.
[13]
In
1997, the Applicant entered the mandatory National Service. The Applicant
attempted to keep her faith secret while she was in the military, as she
personally witnessed the persecution of other Pentecostals.
[14]
In
May 2002, the Eritrean government banned Pentecostals and some other religious
groups.
[15]
In
September 2002, the Applicant was discovered and taken to a detention centre at
the Sawa Military Camp. At the camp, the Applicant claims that she was detained
in a metal container and forced to do “difficult military punishments and hard
labour work”. The Applicant was released, after four months, when she agreed to
sign a paper recanting her religion.
[16]
In
2003, the Applicant was released from her military service. She returned home
to Asmara and began
working and attending Pentecostal meetings.
[17]
In
January 2006, the Applicant was arrested and detained after being caught
worshipping in a house church. In April 2006, the Applicant was sent back to the
Sawa Military Camp, where she claims that she was subjected to persecution,
including being tortured and sexually abused by prison guards and military
interrogators.
[18]
While
she was in detention, the Applicant’s family bribed officials to have a
passport issued for her. After two months at the Sawa Military Camp, the
Applicant was able to escape.
[19]
After
her escape, the Applicant went to stay with relatives for another two months
before leaving Eritrea on a valid exit visa.
[20]
In
November 2009, the Applicant was recognized as a Convention refugee by the United
Nations High Commission for Refugees (UNHCR). Apparently, this designation was
not in place at the time of the interview and decision by the Officer. The
UNHCR status is not relevant to this decision.
[21]
I
also observe that, in her affidavit, the Applicant added considerable more
detail to her claim. It is difficult to assess these allegations. They were
made 15 months after the decision in question. I also observe that these
specific claims were not mentioned during her interview with representative of
the Africa
and Middle East Refugee Assistance (AMERA). It is not unreasonable to expect
that the Applicant would be reluctant to give explicit details in her narrative
or even to the Officer during the interview (particularly since the interpreter
was male). However, there is little reason why additional details would not be
forthcoming at an AMERA interview. This failure to provide additional details
at the relevant times may impact the weight that this Court will give those
specific affidavit
allegations of abuse while in detention in 2006.
VI. The
Interview
[22]
On
October 7, 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 those notes into CAIPS, apparently on the same day.
[23]
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
21, 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.
[24]
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.
[25]
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 contained in 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. However, as I noted earlier in these reasons, the AMERA notes
do not contain any explicit reference to the abuse that she claims to have
suffered while in detention.
[26]
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
[27]
In
her rejection letter dated October 11, 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 I am not satisfied that you have been
forthcoming at your interview. I find that your story of escape is not
credible. I find it unreasonable that only two guards would be sent to guard 20
prisoners. I equally find it unreasonable that your passport was issued at the
time you were supposedly in detention. Further, I am not satisfied that you are
indeed a follower of the Pentecostal faith. You were not able to provide basic
information about the faith that you are allegedly following. As I do not find
you credible, I am not satisfied that you meet the country of asylum or the
convention refugee definition.
[28]
The
above paragraph contains the reasons for the rejection of the application. As I
understand the decision, the Officer made the following observations or
findings concerning the Applicant:
1.
she
was not forthcoming;
2.
the
Officer did not believe the Applicant’s story of escape because it is
“unreasonable” that two guards would be sent to guard 20 women prisoners;
3.
it
is “unreasonable” that the Applicant obtained a passport while she was in
detention; and
4.
she
was unable to provide “basic information” about the Pentecostal faith .
[29]
Although
not expressed clearly, I infer that the Officer did not believe that the Applicant
had been held in detention or that she was of the Pentecostal faith. Whether
these two key conclusions should stand depends on the reasonableness of the
underlying analysis.
[30]
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 four 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.
Not
forthcoming: There is nothing whatsoever contained in the CAIPS notes
to explain what the Officer meant by “not forthcoming”.
2.
Two
guards:
In the CAIPS notes, the Officer set out the Applicant’s claim that she was detained
in 2006 for participating in a “prayers program” and was kept in detention for
four months. The Applicant was asked about her escape from detention:
WHEN DID YOU ESCAPE FROM DETENTION? IN
JUL 2006
HOW DID YOU ESCAPE? WHAT HAPPENED TO ME
IN DETENTION, COULDN’T BEAR IT, TOOK US AT 3:00 AM TO FORT ASAWA IN ORDER TO
COLLECT WOOD, AS IT WAS DAWN, THERE WAS A CHANCE, I ESCAPED.
HOW MANY PEOPLE? AROUND 20
HOW MANY GUARDS? TWO GUARDS
TWO GUARDS FOR 20? THEY ONLY TAKE TWO
GUARDS
HOW CAN TWO GUARDS KEEP TRACK OF 20
PEOPLE? THEY DIDN’T EXPECT PEOPLE TO ESCAPE.
. . .
I DO NOT FIND YOUR STORY
CREDIBLE, I FIND IT VERY HARD THAT THEY WOULD SEND TWO GUARDS WITH 20 PEOPLE?
WHAT I TOLD YOU WAS THE TRUTH. I THINK GOD WANTED ME TO ESCAPE.
3.
Passport: the
Applicant was asked about when and how she obtained her passport:
THEN WHAT HAPPENED [AFTER THE ESCAPE]?
AFTER I ESCAPED, I WENT TO RELATIVE HOUSE AROUND TWO MONTHS. WHILE I WAS HIDING
IN MY RELATIVE’S HOUSE, SECURITY CAME AND ASKED WHERE I WAS, MY RELATIVES
OBTAINED PASSPORT FOR ME, THEN THEY DID THE NECESSARY PROCESS, THEY HELPED ME
FLEE THE COUNTRY.
WHEN WAS YOUR PASSPORT ISSUED? JUN 2006
BEFORE YOU WERE RELEASED FROM DETENTION?
BEFORE I WAS [REDETAINED].
. . .
YOUR VISA AND PASSPORT WAS ISSUED WHILE
YOU CLAIM TO HAVE BEEN DETAINED? MY FAMILY DID THAT.
. . .
I ALSO FIND IT HARD TO BELIEVE THAT YOUR
PASSPORT WAS ISSUED WHILE YOU WERE IN DETENTION? IT WAS OBTAINED BY PAYING
BRIBES.
4.
Pentecostal
Faith:
According to the CAIPS notes, the Applicant referred to her religion on a few
occasions during the interview. However, there is only one reference in the CAIPS
notes regarding “basic information” for the Pentecostal faith. Right at the end
of the interview, after expressing her concerns with the Applicant’s testimony,
the Officer asks a single question about the tenets of the Pentecostal faith:
WHAT ARE THE 7 GIFTS OF THE HOLY SPIRIT?
I DON’T UNDERSTAND 7 GIFTS HOLY SPIRIT? WORSHIP IN TONGUES.THE HOLY SPIRIT IS
VERY IMPORTANT IN THE PENTE RELIGION, HE GIVES SEVEN GIFTS? I DON’T HAVE AN
IDEA ABOUT THAT.
VIII. Statutory
Framework
[31]
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.
[32]
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
[33]
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).
[34]
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 OP 5
[35]
The
Applicant argues that the Officer failed to carry out a proper 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 the 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).
[36]
This
argument was raised and rejected 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.
[37]
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. Thus, much
of the documentary evidence related to the 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.
XI. Reasonableness
of the Credibility Findings
A. Pentecostal
Faith
[38]
The
Officer concluded that the Applicant was not Pentecostal. As noted above, the
CAIPS notes contain only one question related to the tenets of the Pentecostal
faith. Specifically, the Officer asked the Applicant to name the “seven gifts of
the Spirit”. The Applicant was unable to name “seven” gifts.
[39]
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 this term is
taken directly from the Bible, at 1 Corinthians 12:4-11.
[40]
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 Applicant’s Application Record, 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.]
[41]
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.
[42]
When
asked how she chose to ask the Applicants’ 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.
[43]
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 the Applicant’s claim is fatal to the
decision.
B. Passport from Eritrean Embassy
[44]
The
Officer found that it was “hard to believe” that the Applicant could obtain a
passport while she was in detention. The Applicant’s explanation that the
passport was obtained by her family through the payment of bribes was
apparently rejected by the Officer. 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.
[45]
Common
sense, based on our trust in Canadian authorities, would lead us to assume that
a person could not obtain a passport by having her family pay bribes. But, can
we measure the possible actions of the authorities in Eritrea 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 passport authorities against how Canadian authorities would have
considered such a passport application. Or, quite simply, she speculated. In either
event, the Officer erred on a material issue.
C. Escape from Detention
[46]
It appears
that the Officer rejected the credibility of the Applicant’s story of detention
in 2006. The key finding by the Officer was that it was not reasonable that two
guards would be guarding about 20 women who were foraging for wood early in the
morning.
[47]
There
was absolutely no documentary evidence before the Officer about the ratio of
prisoners to guards in similar situations. The Officer, when cross-examined on
her affidavit, was asked about the basis for her determination that a
prisoner-to-guard ration of 20:2 was not redible or plausible. The Officer
acknowledged that she did not rely on any documentary evidence to support her
conclusion. Her response was simply that, “I just thought there would be more
than two guards for 20 people” (Cross-Examination of AnnMarie McNeil, March
22-23, 2011,
Q 341).
[48]
In
my view, this implausibility finding is pure speculation or conjecture. Neither
the Officer nor this Court can have any idea of how many guards are needed to
guard 20 women gathering wood. Were the women shackled or otherwise restricted
in their movements? How far from the camp were they? How were the guards armed?
A conclusion that the Applicant was never detained is simply not supportable on
the basis of the Officer’s belief that there would have been “more” guards.
[49]
The
Applicant’s treatment during this 2006 detention is a key component of her
claim. It was open to the Officer to disbelieve the Applicant’s story. However,
the Officer erred by doing so on the basis of pure conjecture or speculation. The
Officer’s error provides sufficient grounds to overturn this decision.
D. Conclusion
on credibility
[50]
As a
whole the credibility finding of the Officer is unreasonable. This is based on
errors with respect to all of the Officer’s stated reasons. Specifically:
·
the
finding that the Applicant was not Pentecostal was based on misunderstanding of
the Pentecostal faith;
·
the
Officer’s determination that the prisoner-to-guard ratio was unreasonable was
not based on any factual underpinnings – it was based on pure speculation; and
·
the
Officer did not have any documentary record to support her finding that it was
not likely that the Applicant could obtain a passport while she was in
detention;
[51]
Finally,
I note that the Officer provided no justification for her statement that the
Applicant was not “forthcoming”.
XII. Other Grounds of Persecution
[52]
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 her application discloses she has been , and could be in the
future, subjected to risks based on her gender. The Applicant 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 Eritrea, and women in her
position, would be subject to gender-based persecution by Eritrean authorities.
B. Gender-based risks
[53]
The
Applicant submit that the Officer erred by failing to take into account the
gender persecution suffered by her. On this issue, I agree with the Respondent
– to a point. The Applicant, in her narrative describes one direct instance of
sexual mistreatment. That mistreatment allegedly occurred during the four
months that she was detained in 2006. As she stated, “[t]hat was where I faced
the worst persecution, torture and sexually harassed several times by the
prison guards and interrogators”. Since the Officer did not believe the
Applicant’s story of detention in 2006, it follows that the claim of abuse by
prison guards is not credible. If another visa officer were to find the claim
of detention in 2006 to be credible, I believe that the facts disclosed by the
Applicant would give rise to a duty on the visa officer to assess the claim of
gender persecution.
[54]
However,
there is another aspect of the Applicant’s narrative that was not explicitly
rejected by the Officer. The Applicant’s narrative also contains a reference to
mistreatment of women in detention at the Sawa Military Camp during her 2002
detention. During her military service, the Applicant was arrested in 2002,
allegedly because she was caught with a bible. With respect to her treatment,
the Applicant stated the following:
I
was taken to the notorious detention in sawa military camp along with other
prisoners of conscience. Females were separated from the males and I and other
twelve girls were detained in metal cargo containership. With out any questionnaires,
the kept us there for 4 months, every day, we were forced to do difficult
military punishments and hard labor work, until we agree to convert our faith
and sign a document under several conditions: such as to give names of
believers in Pentecostal faith
[55]
During
her interview, the Applicant explained that, “I suffered a lot in detention”.
It is possible that the Officer did not believe that the Applicant was ever
detained in 2002 since the basis of the arrest was the Pentecostal faith; the
Officer found that the Applicant was not Pentecostal. But, this is not clear
from the rejection letter or the CAIPS notes. The Officer did not put any
concerns to the Applicant about this first detention. There is no explicit
finding in the rejection letter that the Officer did not believe that the first
arrest took place. Neither the Applicant nor I could possibly discern the
reasoning or conclusion of the Officer on this point. There are two
possibilities: (a) the Officer did not believe the story of the first detention
based on her conclusion that the Applicant was not of the Pentecostal faith; or
(b) the Officer believed that the first detention took place.
[56]
Assuming
that the Officer believed that the Applicant was arrested in 2002, the Officer
erred by failing to analyze the treatment that the Applicant received to
determine whether it rose to the level of persecution as a result of the
Applicant’s gender. On the other hand, if I accept that the Officer rejected
the story of the first detention because of the lack of credibility of the
Applicant’s Pentecostal faith, the lack of a clear (or any) lines of reasoning
makes this part of the decision unreasonable. There is a reviewable error.
[57]
With
respect to the possibility of persecution based on gender – particularly during
periods of detention – the documentary evidence is replete with stories of
women being subjected to abuse during times that they were in detention.
[58]
I
conclude that, on these facts, the Officer was obliged to consider the
possibility of gender-based persecution. She erred by not doing so.
XIII. Adequacy of
Reasons
[59]
The
Applicant asserts that the reasons of the Officer are inadequate.
[60]
I
might agree with the Applicant that the reasons are insufficient on one narrow
point. That is, I do not believe that the Officer adequately explained if and
why she did not accept that the detention in 2002 took place.
[61]
However,
for the reasons set out in Ghirmatsion, above, I would conclude that the
reasons, as a whole, are adequate. They clearly set out that the Officer
did not find the Applicant to be credible, providing at least four reasons for
that conclusion. Briefly stated, 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. Whether the Officer’s decision
meets the test for reasonableness is a different question.
XIV. Reasonable Apprehension of Bias
[62]
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
[63]
Returning
to the issues raised near the beginning of these reasons, I would conclude that
the Officer made the following reviewable errors:
1.
the
central elements of the Officer’s finding of lack of credibility do not reflect justification,
transparency and intelligibility; this critical finding by the Officer is
unreasonable; and
2.
the
Officer erred by failing to consider the gender-related risks to the Applicant
[64]
These
conclusions are sufficient to warrant the intervention of the 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.
although
there are some problems with the reasons, I believe that the Officer’s reasons
(the CAIPS notes and the rejection letter) satisfy the Officer’s duty to give
adequate reasons; and
3.
the
Applicant has not met her burden of demonstrating that the Officer’s decision
gives rise to a reasonable apprehension of bias.
B. Remedies
[65]
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.
[66]
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]-
[122].
C. Costs
[67]
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 reply to the Applicant’s submissions
on costs.
D. Next Steps
[68]
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. Selam Petros
Woldesellasie. 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.
[69]
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
[70]
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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