Date: 20110505
Docket: IMM-6000-09
Citation: 2011 FC 519
Ottawa, Ontario, May 5, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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HENOK AYNALEM GHIRMATSION
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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, Mr. Henok Aynalem Ghirmatsion, is a citizen of Eritrea. In 2006, he
left Eritrea, travelling
first to Sudan and then, in 2007, to Egypt. In 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 September 13, 2009, a visa
officer (the Officer) with the Canadian Embassy in Cairo, Egypt refused his
application. The Applicant seeks to overturn this decision. For the reasons
which follow, I will allow this application for judicial review.
II. The
Related Files
[2]
This
file is one of four judicial review applications heard together by this Court.
The other three files are Court File Nos. IMM-6005-09 (Tsegeroman Zenawi
KIDANE), 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.
[3]
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”.
[4]
I
wish to stress that this decision is addressed to this particular application
by Mr. Henok Aynalem Ghirmatsion. 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 anticipate and
hope that the decisions in this and the other three cases will provide guidance
to the parties on the possible disposition of the remaining cases now held in
abeyance.
III. Issues
[5]
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?
4.
Did
the Officer fail to observe a principle of procedural fairness by refusing to
accept documentation from the Applicant?
5.
Did
the Officer err by failing to give adequate reasons?
6.
Does
the Officer’s decision give rise to a reasonable apprehension of bias?
IV. The
Affidavits
[6]
The
record before me includes a number of affidavits. As a preliminary matter, I
would like to address the issues raised with respect to some of the affidavits.
[7]
The
Respondent’s record includes an affidavit of the Officer. For the most part,
the affidavit is helpful in that it explains the process of the Officer’s
decision-making. However, the Officer also appears to explain or supplement her
reasons for the decision. In my view, this is inappropriate. In rejecting
similar affidavit evidence, the Federal Court of Appeal provided the following
remarks in Sellathurai v Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FCA 255, 297 DLR (4th) 651, at paragraphs
46-47:
The judges of the Federal Court have
previously stated that a tribunal or a decision-maker cannot improve upon the
reasons given to the applicant by means of the affidavit filed in the judicial
review proceedings. In Simmonds v. Canada (Minister of National Revenue), 2006 FC 130, 289 F.T.R. 15,
Justice Dawson wrote at paragraph 22 of her reasons:
I observe the transparency in
decision-making is not promoted by allowing decision-makers to supplement their
reasons after the fact in affidavits.
See to the same effect Kalra v. Canada (Minister of Citizenship and
Immigration),
2003 FC 941, 29 Imm. L.R. (3d) 208, at para. 15; Yue v. Canada (Minister of Citizenship and
Immigration),
2006 FC 717, [2006] F.C.J. No. 914, at para. 3; bin Abdullah v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1185, [2006] F.C.J. No. 1482, at para. 13. Any other approach to this
issue allows tribunals to remedy a defect in their decision by filing further
and better reasons in the form of an affidavit. In those circumstances, an
applicant for judicial review is being asked to hit a moving target.
[8]
The
reasons of the Officer are those contained in the decision letter. In addition,
the notes taken by the Officer in the computer assisted immigration processing
system (CAIPS) may be considered to be reasons (see Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 DLR (4th) 193, at
para 44). I will give no weight to any portions of the Officer’s affidavit that
purport to explain or augment the reasons set out in the letter or the CAIPS
notes.
[9]
A
number of additional affidavits were included in the Applicant’s Application
Record, filed with the Court on February 5, 2010, and in a Supplementary
Application Record, filed with the Court on August 31, 2010. The additional
affidavits submitted by the Applicant are as follows:
·
Janet
Dench (two affidavits);
·
William
Griffin;
·
Natalia
Shchepetova (two affidavits); and
·
Tewolde
Yohanes
[10]
These
additional affidavits have been filed in each of the four files now before this
Court. The Respondent objects to most of the additional affidavits.
[11]
It
is well established that judicial review is to be conducted on the basis of the
record that was before the decision-maker when the decision was made. It is
generally not permissible to introduce additional documentary evidence. As
stated by Justice de Montigny in Ochapowace First Nation (Indian Band No.
71) v Canada (Attorney General), 2007 FC 920, 73 Admin LR (4th) 182 at paragraphs
9-10:
It is trite law that in a judicial review
application, the only material that should be considered is the material that
was before the decision maker . . .
The rationale for that rule is well
known. To allow additional material to be introduced at judicial review that
was not before the decision maker would in effect transform the judicial review
hearing into a trial de novo. The purpose of a judicial review application is
not to determine whether the decision of a tribunal was correct in absolute
terms but rather to determine whether its decision was correct on the basis of
the record before it: Chopra, at para 5; Canadian Tire Corp. v.
Canadian Bicycle Manufacturers Assn., [2006] F.C.J. No. 204, 2006 FCA 56 at
para 13.
[12]
It
follows that the introduction of additional evidence through affidavits is
generally not permitted, unless the issues to be addressed include allegations
of breach of procedural fairness or, as in this case, an allegation that there
was a reasonable apprehension of bias (see, for example, Assn of Architects
(Ont.) v Assn. of Architectural Technologists (Ontario.), 2002 FCA 218, 19
CPR (4th) 417). In such cases, the affidavits must be confined to those issues.
A party cannot, for example, under the guise of addressing a fairness issue,
introduce opinions and arguments as to the reasonableness of the decision.
[13]
I
begin with the two affidavits of Ms. Dench. Ms. Dench is the Executive Director
of the Canadian Council for Refugees (CCR). She does not hold herself out as an
expert. In her first affidavit, she describes the mandate and role of the CCR
and provides a detailed description of how the CCR came to be interested in the
applications that have been rejected by the Officer. This descriptive part of
her affidavit is not improper. However, most of her affidavit is devoted to a
detailed criticism of the Officer’s decisions in this and other cases. In my
view, this aspect of Ms. Dench’s first affidavit is not helpful to the Court.
It consists almost exclusively of opinions and legal argument. These are not
proper subject matters for an affidavit. To paraphrase the words of Justice
Richard (as he then was) in First Green Park Pty. Ltd. V. Canada (Attorney
General) (1996), 70 CPR (3d) 217, [1997] 2 FC 845 (FCTD) at paragraph 7:
[A] witness such as [Ms. Dench], no
matter how experienced [she] may be, cannot in this context provide information
that contains speculation, make legal arguments or draw conclusions of law.
Legal argument is a matter for counsel and decision making is a matter for the
Court.
[14]
Moreover,
much of her affidavit is based on hearsay; she was not present at the interview
of any of the affected applicants. Nor was she present at the interview of the
Applicant by the AMERA representative. Ms. Dench’s analysis and opinions may be
helpful to Citizenship and Immigration Canada (CIC) in improving its training
of visa officers and the process for assessing refugee claimants abroad.
However, for purposes of this application for judicial review, it is neither
helpful nor admissible. I will have no regard to it.
[15]
Ms.
Dench’s second affidavit is contained within the Supplementary Application
Record filed with the Court on August 31, 2010. For the most part, Ms. Dench’s
second affidavit also consists of further argument, opinions and legal
conclusions. It appears that this further affidavit was put forward to provide additional
“facts” to demonstrate the arbitrariness of this Officer’s decision-making and,
perhaps, to support the allegation of a reasonable apprehension of bias. Ms.
Dench provides information on other negative decisions made by this Officer and
provides detailed criticisms of these decisions. These opinions are improper
and of no assistance to this Court when reviewing an individual decision on
judicial review.
[16]
In
addition, Ms. Dench cites two cases where the Officer reversed her initial
rejection of applications for refugee status. Neither of these files is before
me. In Ahmed v Canada (Minister of Citizenship and Immigration), [1997]
FCJ No 957 (QL), 134 FTR 117 (FCTD), Justice Joyal was faced with a similar
argument of arbitrariness based on apparently conflicting decisions of the
Convention Refugee Determination Division of the Immigration and Refugee Board.
Justice Joyal dismissed this argument with the following comments, at
paragraphs 24, 26:
[U]nfortunately, the other case referred
to is not before me, nor am I in a position to rule whether it is right or
wrong. It could very well be that in a proper test, the impugned decision is
right and the other one is wrong. For that matter, both decisions could
conceivably be wrong.
…
This Court must eschew any attempt to be
drawn into an assessment of both decisions. The decision at bar is the only one
of which I am seized, and in that respect, I must perform my review of it in
accordance with the normal criteria ...
[17]
I
agree with the remarks of Justice Joyal and decline to draw any inferences or
conclusions from the facts presented. The second affidavit of Ms. Dench will
not be considered.
[18]
The
second affidavit in the Supplementary Record is that of Mr. Yohanes. Mr.
Yohanes purports to respond to portions of the affidavit of the Officer. Mr.
Yohanes is not an expert; rather, he is a Canadian citizen who came to Canada
from Eritrea in 2003.
Based on his own personal experiences and hearsay, he provides opinions that
differ from the findings of the Officer in respect of: (a) sandstorms in Eritrea; (b) the
ratio of prisoners to guards; and, (c) the possibility of obtaining a passport
from an Eritrean Embassy in Khartoum. I give his affidavit
little weight.
[19]
Dr.
William Griffin is the Advisory Officer of the Pentecostal Assemblies of Canada
(PAOC); he has served PAOC for thirty years. His academic qualifications
include a ministerial diploma at Eastern Pentecostal Bible College, Bachelor of
Arts at University of Toronto, Master of Arts at
University of Saskatchewan, Master of
Divinity at Lutheran Theological Seminary, and Doctor of Ministry at Trinity
Evangelical Divinity School. The PAOC is
the umbrella organization for over 1000 Pentecostal churches in Canada. The
organization has a force of 350 missionaries serving in 50 countries. On a
global basis, PAOC is a member of the Pentecostal World Fellowship.
[20]
On
the basis of his experience within the PAOC and his academic qualifications,
there can be little doubt that Dr. Griffin is qualified to provide this Court
with expert opinion evidence on the Pentecostal faith and its practice around
the world.
[21]
Dr.
Griffin was not cross-examined on his affidavit.
[22]
I
believe that the affidavit of Dr. Griffin is of assistance to the Court and
should be admitted in this proceeding. The Pentecostal faith was a central
element in this and the other three judicial review applications. The
allegation of the Applicant is that the findings made by the Officer on the
subject of the Pentecostal faith were unreasonable and were based on
misunderstanding, or lack of knowledge, of the Pentecostal religion as practised
in Eritrea. I am not an
expert in the Pentecostal (or any other) religion. Dr. Griffin provides the
information needed to evaluate the reasonableness of the Officer’s assessment
of the Applicant’s faith. I am also satisfied that the Respondent has not been
prejudiced by the admission of the affidavit. The Respondent had an opportunity
to cross-examine Dr. Griffin on his affidavit and, if he felt it necessary,
could have sought leave of the Court to submit a responding affidavit.
[23]
Ms.
Natalia Shchepetova is a legal assistant in the office of counsel for the
Applicant. Her second affidavit is contained in the Applicant’s Record, Volume
2; this volume contains material common to all four applications. The sole
purpose of the second affidavit is to put before the Court additional
documentary evidence. These documents were not before the Officer. They are not
relevant to this judicial review and will not be considered by this Court.
V. Background
of the Applicant
[24]
In
this section of these reasons, I will briefly set out the background of the
Applicant as he describes it. I observe that this is the Applicant’s story,
primarily as set out in the narrative that was part of his application; I make
no findings of its truth or of the merits of his claim.
[25]
The
Applicant was born on November 11, 1979 in Asmara, Eritrea. He was
raised as an Orthodox Christian, but converted to Pentecostalism in 1997.
[26]
On
October 20, 1997, the Applicant began his mandatory national military service
in Sawa and was assigned to the construction unit. During this time, the
Applicant studied the bible with other Pentecostal Christians who were being
trained in the military. The group was caught by a superior on one occasion where
their bibles were confiscated and they received a warning. From that time on
the group was subjected to continuing and escalating harassment and punishment,
including detention, by their superiors.
[27]
In
May 2002, the government in Eritrea began a concerted
effort to target and shut down minority churches, including Pentecostal and
“Born Again”. The Applicant was instructed to sign a statement denouncing his
religion and promise not to resume practising his religion; he refused. The
Applicant was arrested and remained in detention for over two years, from
October 2003 until July 2006.
[28]
On
July 7, 2006, while in prison, the Applicant was outside on a farm work detail
when a sudden severe kasmin, or massive sandstorm, began. The Applicant
and his friend took this opportunity to escape. They travelled on foot for 8
days until they reached Kessala, Sudan. They then took a bus
to Khartoum. There, the
Applicant was able to obtain an Eritrean passport with the assistance of his
uncle who knew whom to bribe.
[29]
A
year and a half later, the Applicant travelled to Cairo, Egypt. The
Applicant continued to worship in the Pentecostal community.
[30]
In
2009, the Applicant was recognized as a Convention refugee by the United
Nations High Commissioner for Refugees (UNHCR).
VI. The
Interview
[31]
On
September 13, 2009, the Applicant was interviewed by the Officer who conducted
the interview 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 on the same day.
[32]
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
11, 2011). Given the time that has passed between the interview and when the
affidavits were sworn, during which time memories can become dim or distorted,
I am reluctant to rely on these affidavit versions for the details of the
interview held in 2009.
[33]
In
this case (and the others heard at the same time), there is an additional
source of information. After his refusal, the Applicant came to the attention
of an organization known as Africa and Middle East Refugee Assistance (AMERA).
AMERA describes itself as a UK-registered refugee rights organization assisting
refugees who seek asylum in Egypt. As such,
AMERA conducts interviews with persons
who have received negative results from embassies in order to determine whether
or not AMERA can provide assistance with regards to obtaining reviews of
negative decisions.
[34]
The
Applicant was interviewed by a representative of AMERA on October 13, 2009,
during which interview he provided further details of his interview with the
Officer. The notes are attached to the Applicant’s affidavit. The notes were
made within a short time following the Applicant’s interview with the Officer;
they are more contemporaneous than the comments in the affidavits of either the
Officer or the Applicant. I admit to having some difficulty assessing the
reliability of these interview notes. I believe that it is likely that the
notes accurately reflect the questions and answers of the AMERA interview.
However, I cannot make the same conclusion about the Applicant’s version of
what happened at his interview with the Officer. At the time of his AMERA
interview, the Applicant’s application had been rejected; the rejection could
have influenced his recollections. I do not know if the Applicant had been
briefed before his AMERA interview or if he met with other claimants who had
been rejected. In spite of my concerns, the situation faced by the Applicant
cannot be ignored; he is a refugee claimant abroad, without counsel and without
the various systems to protect his rights that would be found in Canada. How can
this Applicant tell his story if not through the assistance of AMERA? In the
circumstances, I will accept the AMERA notes with considerable reservations
that may go to weight.
VII. The Decision
[35]
In
her rejection letter dated September 13, 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 am not satisfied that you are indeed a true
convert to Pentecostal faith. Your knowledge of the faith [was] not up to the
level one would expect from a person who has been practicing and reading the
bible for 12 years. You were not able to provide sufficient information about
the religion to satisfy me that you are in fact a follower of the Pentecostal
faith. Further, you were unable to provide to my satisfaction details of your
imprisonment. In addition, the story of your escape is not plausible. I find it
unreasonable that you were able to escape from prison just because there was a
sandstorm. As I do not find you credible, I cannot be satisfied that you meet
the country of asylum or the convention refugee definition nor that you are not
inadmissible. Therefore, you do not meet the requirements of [s. 139(1)(e) of
the IRPA Regulations].
[36]
As
I understand the above paragraph, the Officer made the following observations
or findings concerning the Applicant:
1.
he
was not forthcoming;
2.
he
was unable to provide adequate knowledge of the Pentecostal religion;
3.
he
was unable to provide satisfactory details of his imprisonment; and
4.
the
Officer did not believe the Applicant’s story of escape; she found that it was “unreasonable”
that he could escape from prison because of a sandstorm.
[37]
Although
not expressed clearly, it is apparent that the Officer did not believe that the
Applicant had been held in detention or that he was of the Pentecostal faith. Whether
these two key conclusions should stand depends on the reasonableness of the
underlying analysis.
[38]
As
noted above, under my discussion of the affidavits, I am considering the
reasons as set out in the rejection letter and in the CAIPS notes. The portions
of the CAIPS notes reproduced in these reasons are transcribed as closely to
the original version as possible.
[39]
What
additional reasons for the key findings can be obtained from the CAIPS notes?
1.
Not
forthcoming: Nothing whatsoever is contained in the CAIPS notes to
explain what the Officer meant by “not forthcoming”.
2.
Details
of detention: The Applicant’s narrative (submitted with his application)
set out a lengthy description of his detention. The CAIPS notes reflect that
the Officer asked a few general questions about the Applicant’s detention. The
only concern expressed by the Officer was about how he escaped from detention.
3.
Sandstorm: The CAIPS
notes reflect that the Applicant provided details of his escape:
IN MAY, JUN. JUL, IN THAT TIME
THERE ARE BIG STORMS, IT IS VERY DARK, YOU CANT SEE THE PERSON STANDING NEXT TO
YOU, ME AND MY FRIEND THOUGHT OF ESCAPE, ON THAT DATE WE WERE WORKING ON THE
FARM LAND, WHEN STORM CAME WE RAN TOWARD IT . . .
The CAIPS
notes do not refer to any follow-up questions by the Officer on the subject of
the sandstorm.
4.
Pentecostal
Faith:
The Applicant, during his interview, referred to his religion. The exchange
between the Officer and the Applicant on the subject of his religion was
described in the CAIPS notes as follows:
WHY DID YOU LEAVE ERITREA? BECAUSE OF MY BELIEF AS A
PENTECOSTAL I WAS DETAINED IN 2003, UNTIL JL2006
. . . WHEN DID YOU BECOME PENTECOSTAL?
1994 I WAS ORTHODOX, WHEN I WENT TO NATIONAL SERVICE IN 1997 I BECAME
PENETECOSTAL, IN 1994 WAS THE FIRST TIME I LEARNED ABOUT THE BIBLE
HOW DID YOU CONVERT? IN 1997 I HAD
FRIENDS WHO WERE PENTECOSTAL, I BECAME CONVICED WITH WHAT THEY WERE TELLING
HIM.
WHAT WERE THEY TELLING YOU? THEY WERE
TELLING ME ABOUT JESUS CHRIST
ASKED SEVERAL QUESTIONS ABOUT PENTECOSTAL
RELIGION
Describe to me how do you pray? LEADER
TELLS US WHAT TO DO, AND WE DO IT.
What are the days that Pente followers
celebrate? EASTER, CHRISTMAS, AND PENTECOST
Why did you convert? NO MENTORS, AND
BELIEVE IN JESUS CHRIST.
[40]
In
short, the CAIPS notes do not provide us with very much in the way of
additional reasons for the refusal.
VIII. Statutory
Framework
[41]
A
brief outline of the statutory scheme affecting this application may be helpful
to the reader.
[42]
Pursuant
to s. 11(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA), a foreign national, before coming to Canada must apply
for a visa. The visa may be issued if an immigration officer is satisfied,
following an examination that the foreign national is not inadmissible and meets
the requirements of IRPA.
[43]
The
Applicant applied as a member of a class of persons referred to, in the Immigration
and Refugee Protection Regulations, SOR/2002-227 [IRPA Regulations],
as “A Convention Refugee Abroad Class”. His application was made under and
processed pursuant to the requirements of s. 139(1), s. 144, and s. 145 of the IRPA
Regulations. The full text of s. 11(1) of IRPA and the relevant
IRPA Regulations are set out in Appendix A to these reasons.
[44]
It
is also possible that persons in the situation of the Applicant may be granted
permanent resident status if they are determined to be members of the “Country
of Asylum Class”, as set out in s. 147 of the IRPA Regulations.
[45]
In
summary form, to be eligible for resettlement in Canada under ss. 139(1),
144 and 145 of the 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
[46]
The
six issues raised in this case relate to: (1) an alleged failure to have regard
to the evidence; (2) credibility; (3) an alleged failure to assess all possible
grounds of persecution; (4) adequacy of reasons; (5) an allegation of
reasonable apprehension of bias, and (6) an alleged breach of procedural fairness.
[47]
First,
the assessment of evidence and the weight to be given to each piece of evidence
are questions of fact that are within the expertise of the Board. They are
reviewed on the standard of reasonableness (New Brunswick v Dunsmuir, 2008 SCC 9,
[2008] 1 S.C.R. 190 [Dunsmuir]). 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” (Dunsmuir, above, at para 47).
[48]
Second,
questions of credibility generally concern determinations of fact or mixed fact
and law. A credibility finding is to be reviewed on the standard of
reasonableness (Cekim v Canada (Minister of
Citizenship and Immigration), 2011 FC 177, [2011] FCJ No 221 (QL), at
para 10).
[49]
Third,
failure of an officer to consider all grounds of persecution is a question of
law and, thus, assessed on the standard of correctness (Solodovnikov c
Canada (Ministre de la Citoyenneté & de l'Immigration), 2004 CF 1225,
41 Imm LR (3d), at para 10; Singh v Canada (Secretary of State)(1994),
80 FTR 132, [1994] FCJ No 931 (QL)(FCTD) at para 14; Dunsmuir, above,
at paras 55 and 90).
[50]
Fourth,
with respect to the Officer’s reasons, in the recent Ontario Court of Appeal
decision of Clifford v. Ontario Municipal Employees Retirement System, 2009
ONCA 670, [2009] WDFL 4624 [Clifford], at paragraph 22, Justice Goudge
made it clear that the adequacy of reasons is subject to the correctness standard:
Where an administrative tribunal has a
legal obligation to give reasons for its decision as part of its duty of
procedural fairness, the question on judicial review is whether that legal
obligation has been complied with. The court cannot give deference to the
choice of a tribunal whether to give reasons. The court must ensure that the
tribunal complies with its legal obligation. It must review what the tribunal
has done and decide if it has complied. In the parlance of judicial review, the
standard of review used by the court is correctness.
[51]
Fifth,
the issue that the Applicant has raised with respect to whether a reasonable
apprehension of bias is raised by the Officer’s decision is reviewable on the standard
of correctness (Dunsmuir, above, at paras 55 and 90; Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339, at para 42).
[52]
Finally,
the issue of whether the Officer breached the duty of procedural fairness by
failing to accept and review the documents submitted by the Applicant is
reviewable on the standard of correctness (Dunsmuir, above, at paras 55
and 90).
[53]
With
this overview of the applicable standard of review, I turn to an analysis of
the issues.
X. Failure
to have regard to certain factors or evidence
A. UNHCR
Status
[54]
The
Applicant has been recognized as a Convention refugee by UNHCR, as evidenced by
a “blue card” issued August 31, 2009. 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.
[55]
In
carrying out her responsibilities, the Officer is guided by 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 or the Guidelines). OP 5
makes extensive reference to the UNHCR and the relationship between the duties
of a visa officer and the UNHCR. The Guidelines set out the general context of
the CIC/UNHCR relationship in section 6.53:
|
The
office of the UNHCR is a humanitarian and non-political organization with a
mandate to protect refugees and promote solutions to their problems.
Solutions may include voluntary repatriation, local integration and, in a
minority of cases, resettlement in a third country.
Local
UNHCR offices identify persons in need of resettlement and refer them to visa
offices. The factors that the UNHCR takes into consideration when it refers a
case for resettlement are described in detail in the UNHCR Resettlement
Handbook, a copy of which can be found in all visa offices. The officer should
be familiar with these factors. The text of the handbook is also available
from the UNHCR Web site at http://www.unhcr.org/.
The
office of the UNHCR is an extremely important partner in Canada’s resettlement program.
Solid working relations between Canadian visa offices and local UNHCR offices
are vital to the success of the program. Officers should ensure that their
local UNHCR office understands the Canadian
resettlement
program and be proactive in requesting referrals of appropriate cases
|
Le HCR est un organisme humanitaire et
non politique dont le mandat est de protéger les réfugiés et de promouvoir
des solutions à leurs problèmes. Ces solutions peuvent comprendre le
rapatriement volontaire, l’intégration locale et, dans des cas exceptionnels,
le réétablissement dans un tiers pays.
Les bureaux locaux du HCR repèrent des
personnes qui ont besoin d’un réétablissement et les recommandent aux bureaux
des visas. Le Manuel de réinstallation du HCR dont tous les bureaux des visas
ont un exemplaire présente, en détail, les facteurs dont le HCR tient compte
lorsqu’il recommande le réétablissement de réfugiés. L’agent devrait
connaître ces facteurs. On peut consulter le Manuel sur le site Web du HCR :
http://www.unhcr.org.
Le HCR est
un partenaire très important dans l’exécution du programme de rééadaptation
du Canada. Des relations de travail solides entre les bureaux des visas du
Canada et les bureaux locaux du HCR sont essentielles à la réussite du
programme. Les agents doivent veiller à ce que leur bureau local du HCR
comprenne le programme de rééadaptation du
Canada et
ne pas hésiter à demander qu’on leur recommande des cas pertinents.
|
[56]
Further,
OP 5, current version published on August 13, 2009, refers visa officers to
the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status
and the UNHCR Resettlement Handbook, both published by the UNHCR,
which documents provide a detailed interpretation of the Convention refugee definition
(see Note to section 6.6, OP 5). 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 when determining eligibility for refugee status
in Canada.
[57]
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 his claim under the 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. In the case of Cepeda-Gutierrez v Canada (The
Minister of Citizenship and Immigration) (1998), 157 FTR 35,
[1998] FCJ No 1425 (QL)(FCTD), at paragraph 17, Justice Evans (as he was then)
was faced with the failure of a decision-maker to consider a highly personal
and relevant document. He provided the following oft-quoted guidance:
[T]he more important the evidence that is
not mentioned specifically and analyzed in the agency's reasons, the more
willing a court may be to infer from the silence that the agency made an
erroneous finding of fact "without regard to the evidence": Bains v.
Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312
(F.C.T.D.). In other words, the agency's burden of explanation increases with
the relevance of the evidence in question to the disputed facts. Thus, a blanket
statement that the agency has considered all the evidence will not suffice when
the evidence omitted from any discussion in the reasons appears squarely to
contradict the agency's finding of fact. Moreover, when the agency refers in
some detail to evidence supporting its finding, but is silent on evidence
pointing to the opposite conclusion, it may be easier to infer that the agency
overlooked the contradictory evidence when making its finding of fact.
[58]
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 was made without regard to it. This is a central element to the
context of the decision. The Officer, faced with a UNHCR refugee, should have
explained in her assessment why she did not concur with the decision of the
UNHCR. The Officer 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 this highly relevant evidence.
[59]
This
error made 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 before her, including the evidence of the UNHCR refugee status.
B. Failure to Assess Eligibility
as set out in OP 5
[60]
As
noted above, the Officer rejected the claim of the Applicant on the grounds
that she did not find the Applicant to be credible. Specifically, she did not
believe that (a) he was Pentecostal; and (b) he was detained. The Applicant
argues that the Officer failed to carry out an assessment as to whether he met
the definition of a Convention refugee. In particular, the Applicant faults the
Officer for not explicitly following the steps outlined in OP 5, section 13.3.
[61]
Section
13.3 of OP 5 states that visa officers should follow the five steps outlined in
the table set out in that provision. In brief, the five steps are:
1.
refer
to definition of Convention refugee abroad class in section 6.6;
2.
refer
to definition of persecution in section 6.37;
3.
determine
if an applicant may have been persecuted and have a “well-founded fear”;
4.
review
other sources; and
5.
assess
the ability to establish by processing to section 13.9 to section 13.14.
[62]
As
I understand the argument, the Applicant’s most serious complaint is that the
Officer failed to consider and evaluate “available resource material” (see OP
5, s. 13.3, step 3) in the context of the claim of the Applicant.
[63]
OP
5 is a guideline; it must not be treated as “the law”. There is no requirement
that the Officer explicitly address each of the outlined steps (see Kamara v
Canada (Minister of
Citizenship and Immigration), 2008 FC 785, 168 ACWS (3d) 372, at para
31). The intention of section 13.3 of OP 5 is to provide a flowchart to assist
the Officer with her decision making process. It is expected, however, that the
substance of the decision should demonstrate that the identified steps were
generally followed in the course of a visa officer’s determinations with
respect to both the Refugee Abroad Class and the Country of Asylum Class.
[64]
The
problem with the Applicant’s argument on this point is that it ignores the fact
that the Officer’s decision was based on the finding of a lack of credibility.
Stated differently, the Officer did not believe that the Applicant was
Pentecostal or that he had been in detention. Moreover, the evidence before the
Officer was that the Applicant left Eritrea on a valid exit visa.
Thus, documentary evidence related to persecution of Pentecostals in Eritrea, to the
treatment of detainees in prison 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 Credibility Findings
A. Applicant’s Detention
[65]
As
I have described above, the determinative finding by the Officer, in this case,
was that of credibility. One of the two conclusions by the Officer was that she
did not believe that the Applicant had ever been in detention. This finding
appears to have been based firstly on a general finding that the Applicant was
unable to provide, to the Officer’s satisfaction, details of his imprisonment.
There is absolutely no explanation of what the Officer found to be lacking in
his description of his detention or in his responses to questions on the
subject. The CAIPS notes do not reflect questions about his detention that the
Applicant was not able to answer. There is no justification for this general
finding.
[66]
The
second part of the question of the Applicant’s detention is the Officer’s
inference that the Applicant could not have escaped during a sandstorm.
[67]
The
Respondent argues that this finding bears the hallmark of reasonableness and
logic and that it was not unreasonable, given the totality of the
circumstances, to draw a negative inference or conclusion from the Applicant’s
testimony. Moreover, the Respondent asserts that the Officer did not have an
obligation to base her findings on “objective” evidence (Lorena Gonzalez v
Canada (Minister of Citizenship & Immigration)(1999), 88 ACWS (3d) 1062,
[1999] FCJ No 805 (QL)(FCTD)[Lorena Gonzalez v. Canada]). Justice
Sharlow (as she was then) in Lorena Gonzalez v. Canada, above, stated
at paragraph 26:
Counsel for the applicant argues that the
CRDD did not properly assess the applicant's conduct on the basis of the
circumstances in which she found herself, but engaged in speculation as to what
some other person might have done in her place, and then assumed that its
speculation was the only plausible course of action. He says that the CRDD thus
imposed a wholly unreasonable standard on the applicant, resulting in the same
error as that identified in Giron v. Minister of Employment and Immigration
(1992), 143 N.R. 238 (F.C.A.) and Cardenas v. Minister of Citizenship and
Immigration (20 February 1998), IMM-1960-67, (F.C.T.D.). He correctly points
out that there is no objective evidence in the record for the "ideal"
asserted by the CRDD. This may be contrasted with cases in which, for example,
the plausibility of a refugee claimant's story is measured against what is
known about conditions in the country where the claim arose. [Emphasis
added.]
[68]
In
the case before me, in contrast to the case before Justice Sharlow, the
claimant’s story could have been measured against what was known about
the conditions in the country where the claim arose. Information regarding the
frequency and attributes of sandstorms in Eritrea could be
found in documentary evidence. In addition, more explanation and information
could have been sought from the Applicant.
[69]
When
asked, during cross-examination, about how she came to the conclusion regarding
the sandstorm that occurred near Sawa, Eritrea, on July 7, 2006, the Officer
stated that she did not have any evidence to establish that fact (Cross-Examination
of AnnMarie McNeil, March 22-23, 2011, Q587). The error, as I see it, is that
the Officer neglected to look at the available documentary evidence to measure
the plausibility of the Applicant’s story against what was known about the
conditions in the country where the claim arose. In such a scenario, the
Officer had an obligation to go to the documentary evidence to measure the
credibility of the Applicant’s story.
[70]
It
is trite law that visa officers are entitled to make findings based on
inferences and plausibility. However, the Federal Court of Appeal in Canada (Minister of
Employment and Immigration) v Satiacum (1989), 99 NR 171,
[1989] FCJ No 505 (QL) stated at paragraph 33:
The common law has long recognized the
difference between reasonable inference and pure conjecture. Lord Macmillan put
the distinction this way in Jones v. Great Western Railway Co. (1930), 47
T.L.R. 39 at 45, 144 L.T. 194 at 202 (H.L.):
The dividing line between conjecture and
inference is often a very difficult one to draw. A conjecture may be plausible
but it is of no legal value, for its essence is that it is a mere guess. An
inference in the legal sense, on the other hand, is a deduction from the
evidence, and if it is a reasonable deduction it may have the validity of legal
proof. The attribution of an occurrence to a cause is, I take it, always a
matter of inference.
[71]
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 hand, it appears that the Officer assessed the sandstorms based on what
would be plausible in Canada, without regard to the evidence of the
claimant’s milieu.
[72]
Although
it is a difficult line to draw, I conclude that the Officer’s plausibility
finding in this case lies further to the conjecture end of the spectrum.
B. Pentecostal
Religion
[73]
As
noted above, the Officer did not believe that the Applicant was of the
Pentecostal faith. The Officer apparently based this finding on the very few
questions set out in the CAIPS notes. The CAIPS notes reflect only three simple
questions to which the Applicant gave equally simple responses. There were no
follow-up questions and no questions about his knowledge of the Bible or
doctrine of the Pentecostal faith as practised in Eritrea.
[74]
From
the Applicant’s answers to these questions, the Officer concluded that his
knowledge was not “up to the level one would expect from a person who has been
practicing and reading the bible for 12 years”.
[75]
In
general, it is reasonable to expect a claimant who has undertaken a
life-changing religious conversion to have considerable knowledge of his
newly-acquired faith. Based on a somewhat thorough line of questions and
follow-up questions to which a claimant provides only very basic answers, it
would not be unreasonable to question the sincerity of a claimant’s faith. The
problem with this decision is that I am unable to ascertain what questions were
asked by the Officer. The CAIPS notes contain a general remark that, “ASKED
SEVERAL QUESTIONS ABOUT PENTECOSTAL RELIGION”. However, only two questions are
identified. No follow-up questions were apparently posed. From these questions
and responses, I cannot understand what was lacking.
[76]
Quite
simply, the findings with respect to the Applicant’s faith do not hold up to a
somewhat probing examination (Canada (Director of Investigation &
Research) v Southam Inc., [1997] 1 S.C.R. 748, 209 NR 20). Stated in terms
consistent with Dunsmuir, above, this part of the decision lacks
justification, transparency and intelligibility.
C. Conclusion on Credibility
[77]
Although
credibility is reviewed on the standard of reasonableness, the Officer’s
findings in this case are not owed “blind reverence” by this Court. The Supreme
Court of Canada in Dunsmuir, above, stated at paragraph 48:
Deference is both an attitude of the court
and a requirement of the law of judicial review. It does not mean that courts
are subservient to the determinations of decision makers, or that courts must
show blind reverence to their interpretations ... Rather, deference imports
respect for the decision-making process of adjudicative bodies with regard to
both the facts and the law. The notion of deference "is rooted in part in
a respect for governmental decisions to create administrative bodies with
delegated powers" (Mossop, [infra], at p. 596, per
L'Heureux-Dubé J., dissenting). We agree with David Dyzenhaus where he
states that the concept of "deference as respect"
requires of the courts "not
submission but a respectful attention to the reasons offered or which could be
offered in support of a decision” [Emphasis added.]
[78]
Paying
respectful attention to the reasons offered or which could have been offered by
the Officer in this case, this Court cannot conclude that they are reasonable.
XII. Adequacy
of Reasons
[79]
The
Applicant asserts that the reasons of the Officer are inadequate. Since this
application will succeed on the basis that the decision is unreasonable, I will
merely provide brief comments on this aspect of the allegation by the
Applicant.
[80]
In
assessing the adequacy of reasons, the first question is whether there is a
legal duty to give reasons. The decision of the Supreme Court of Canada in Baker
v Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 DLR (4th) 193 [Baker]
established that, in certain circumstances the duty of procedural fairness will
include a requirement that an administrative tribunal provide reasons for its
decision. The parties apparently both acknowledge that, in the circumstances of
this decision, the Officer was under an obligation to provide reasons for her
decision to deny the applications for refugee status. I agree that application
of the criteria set out in Baker, above, would lead to a conclusion that
reasons are required.
[81]
The
second question is: what constitutes the Officer’s reasons?
[82]
The
Officer issued a two-page rejection letter which includes some reasons for the
rejection of the Applicant’s application. However, the reasons are not, in this
case, limited to that letter. The Respondent emphasizes that information about
why an administrative decision-maker ruled in the way that it did can sometimes
be found in the record of the case and the surrounding context. I agree.
Reasons form part of a broader context. Information that fulfils the above
purposes can come from various sources. For example, oral or written reasons of
the decision maker may be amplified or clarified by extraneous material, such
as notes in the decision maker's file and other materials in the record. Even
where no reasons have been given, extraneous material may suffice when it can
be taken to express the basis for the decision. Baker, above, provides
us with a good example of this, where the Supreme Court found that notes in the
administrative file adequately expressed the basis for the decision. See also Hill
v Hamilton-Wentworth Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 [Hill]
at paragraph 101 for the role of extraneous materials in the assessment of the adequacy
of reasons.
[83]
In
matters such as these, file notes are entered by a visa officer in CAIPS. In the
case before me, the Officer recorded her notes from the interview with the
Applicant almost immediately after the interview took place. These CAIPS notes
are contained in the Certified Tribunal Record (CTR). I conclude that the
combination of the rejection letter and the CAIPS notes of the Officer satisfy
the requirement for reasons under the duty of procedural fairness; they will be
taken to be the reasons for the decision. In addition, other contents of the
CTR may inform the context of the decision.
[84]
The
Respondent has put forward an affidavit of the Officer, in which affidavit the
Officer includes some statements that could be seen as explaining or adding to
her reasons. For the reasons outlined above, under the discussion of the
Officer’s affidavit, these explanations or additional reasons, made some 12
months after the decision, do not form part of the reasons under review.
[85]
The
outstanding question is whether the reasons (as contained in the CAIPS notes
and rejection letter) are adequate to meet the duty of procedural fairness. In
my view, they are.
[86]
As
stated by the Supreme Court in Hill, above, at paragraph 100:
The question is whether the reasons are
sufficient to allow for meaningful appellate review and whether the parties'
"functional need to know" why the trial judge's decision has been
made has been met. The test is a functional one: R. v. Sheppard, [2002] 1
S.C.R. 869, 2002 SCC 26, at para. 55.
[87]
Although
Hill, above, was decided in a criminal case, the same general principle
is applicable to the decision before me. The Federal Court of Appeal, in VIA
Rail Canada Inc. v National Transportation Agency (2000), 193 DLR (4th) 357,
[2001] 2 FC 25 [VIA Rail] at paragraph 19, provided guidance in the
context of an administrative decision maker:
[R]easons allow the parties to effectuate
any right of appeal or judicial review that they might have. They provide a
basis for an assessment of possible grounds for appeal or review. They allow
the appellate or reviewing body to determine whether the decision maker erred
and thereby render him or her accountable to that body. This is particularly
important when the decision is subject to a deferential standard of review.
[88]
It
is important to remember that the adequacy of reasons must be measured in the
light of the particular circumstances of the case (VIA Rail, above, at
para 21). In the case of a visa officer, it would not, in my view, be proper to
hold the Officer’s reasons to the same standard as would be required in a
criminal matter or before a quasi-judicial decision maker (such as the National
Transportation Agency). In Baker, above, at para 44, the Supreme Court
concluded that hand-written notes of an immigration officer were sufficient to
fulfill the duty to give reasons. In so concluding, Justice l’Heureux-Dubé,
observed that reviewing Courts should evaluate the duty of fairness “with
recognition of the day-to-day realities of administrative agencies and the many
ways in which the values underlying the principles of procedural fairness can
be assured” (Baker, above, at para 44). In the words of Justice Goudge
in Clifford, above, at paragraph 30, “the fundamental question is
whether the reasons show that the tribunal grappled with the substance of the
matter”.
[89]
On
this standard, the reasons provided by the Officer are adequate. She explains
what aspects of the Applicant’s testimony were not credible. At a basic level,
the reasons allow the Applicant to know what determinations provided the
foundation to her rejection of his application. In particular, the Officer did
not believe that the Applicant had been in detention or that he was
Pentecostal. Her reasons for the two findings were that she did not believe
that he had escaped in a sandstorm or that he could answer basic questions
about his religion. In the totality of the circumstances, I believe that the
reasons were adequate.
[90]
The
problem of course is that the decision is unreasonable. In other words, this is
not a question of the adequacy of reasons, where the Court must assess the
reasons from a functional perspective to see if the basis for the decision is
intelligible. Rather, as I see it, the proper question, on this judicial
review, is whether the decision and the reasons can, from a substantive
perspective, be upheld. As noted by Justice Goudge, in Clifford, above,
at paragraph 32, “[t]hat is a very different task from assessing the
sufficiency of the reasons in a functional sense”. For reasons given in other
sections of this decision, I conclude that the decision cannot be sustained on
the applicable standards of review. However, 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.
XIII. Applicant’s
Documents
[91]
In
the affidavit that was filed as part of this application, the Applicant refers
to his attempt to offer further documents to the Officer during his interview:
At my interview I asked [the Officer] to
accept and review a number of documents that I had brought with me to support
my case, including recommendation letters from my previous Pentecostal churches
. . . as well as from my current church in Cairo … In addition, I tried to
give her a magazine from my church in Cairo that had a poem of mine in it, my
UNHCR blue card, my Eritrean national service ID and certificate of national
service, and a number of photos. She refused to accept or even look at my
documents.
[92]
The
Applicant submits that, in refusing to accept and consider these documents, the
Officer breached the rules of procedural fairness. The documents described
appear to relate to central elements of his claim – that he was a Pentecostal
Christian and a UNHCR refugee and that he had served in the military.
[93]
If,
indeed, this happened, I would agree with the Applicant that the rules of procedural
fairness were not observed – a reviewable error.
[94]
The
Officer, in her affidavit sworn September 5, 2010 – almost one year after the
interview – makes no mention of further documents. In addition, the CAIPS notes
do not contain any reference to further documents.
[95]
However,
it is not clear as to exactly what documents were presented to the
Officer during the interview. In his application record, the Applicant includes
a letter dated September 28, 2009 (about two weeks after the refusal) wherein
he states that, during his interview, he “had the following documents to prove
that I am a true convert to Pentecostal faith”. He then lists the documents now
in question. The letter is not clear, however, whether the documents were
actually offered to the Officer during the interview or whether he simply had
the documents with him.
[96]
On
October 13, 2009, the Applicant was interviewed by an AMERA representative. The
notes for that interview contain statements that the Applicant “had a lot of
documents with me” and that he tried to give “[the] documents” to the Officer
but that “she refused to take them from me”. There are no further specifics in
the interview notes as to exactly what documents are being referred to.
[97]
The
Applicant was not cross-examined on his affidavit. However, the record as a
whole on this subject indicates that there is reason to doubt some aspects of
his sworn testimony.
[98]
While
the question is not free from doubt, I find, on a balance of probabilities,
that the Applicant tried to offer further documents to the Officer and that she
refused to take them. However, what is less clear is exactly what those
documents were. In sum, while the Officer may have erred in refusing to accept
some documents, the Applicant has failed to persuade me that the documents in
question were those contained in his letter of September 28, 2009. Accordingly,
I would conclude that any error was not material to the ultimate disposition of
his claim.
XIV. Other
Grounds of Persecution
[99]
In
this case, the Officer considered only one ground of persecution. Specifically,
she examined whether the Applicant was at risk on grounds of religious
persecution.
[100] The Applicant
submits that, as reflected in his narrative, he also fears persecution on the
basis of his escape from prison and his illegal exit from Eritrea. He argues
that the Officer erred by not considering these additional grounds of
persecution. Documentary evidence, in his view, strongly suggests that persons
who escape from detention and those who return after leaving the country
illegally would be subject to harsh treatment by Eritrean authorities.
[101] As disclosed
in the CAIPS notes, the Officer asked the Applicant a number of questions about
his escape from detention. However, it appears that no examination occurred
with respect to his claimed illegal departure from Eritrea. This was
confirmed by the Officer on cross-examination of her affidavit.
[102] In Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, 20 Imm LR (2d) 85 [Ward]
at paragraph 89, the Supreme Court stated:
[T]he additional ground was ultimately
accepted by the appellant during oral argument. I note that the UNHCR Handbook,
at p. 17, paragraph 66, states that it is not the duty of a claimant to
identify the reasons for the persecution. It is for the examiner to decide
whether the Convention definition is met; usually there will be more than one
ground (idem, paragraph 67). [Emphasis added.]
[103] The
Respondent argues that the Officer testified that she did not find the
Applicant to be credible; therefore, she was under no obligation to consider
all of the relevant bases for persecution. This would be a sound response if
(a) the credibility findings are reasonable; and (b) if the credibility
findings clearly foreclosed all other grounds of persecution.
[104] I acknowledge
that, in general, a negative credibility finding (if reasonable and made with
regard to the evidence) will mean that the decision maker does not have to look
further into the claim. For example, if a visa officer concludes that a
claimant was never imprisoned, it follows that a claim based on a fear of being
returned to detention is not sustainable. However, if the claimant puts forward
facts that raise an additional ground of persecution, that part of the claim
still needs to be assessed, unless the visa officer clearly finds that part of
the claim to also lack credibility.
[105] Leaving aside
my earlier finding that the credibility findings are not reasonable, I turn to
the reasons and findings made by the Officer. In this case, the Officer did not
believe that the Applicant had ever been detained. However, it appears that the
Officer never turned her mind to whether the Applicant had left Eritrea
illegally, notwithstanding the Applicant’s description of his departure or the
documentary evidence regarding the risk to those who departed Eritrea illegally.
This is supported by the cross-examination of the Officer (Cross-Examination of
AnnMarie McNeil, March 22-23, 2011, Q603-609):
Q. When you assessed
Henok’s case, Mr. Ghirmatsion’s case … did you have any more recent or more
credible evidence in front of you that contradicted UNHCR’s evidence or
guidance or suggested that they were wrong about the risk to returning asylum
seekers who left illegally?
…
A. No, I didn’t
Q. And you have agreed
that nowhere in CAIPS notes or the refusal letter is there any indication that
you addressed the applicant’s fear of persecution, on the basis of having left
the country illegally, correct?
A. That’s correct.
Q. Do you have an
explanation for why you didn’t assess that risk?
A. No, I don’t.
[106] It would have
been open to the Officer to consider this additional ground of persecution and
reject it; however, this is not what the Officer did. She had no explanation
for why she did not assess this risk. The Respondent asks this Court to accept
that the Officer was under no obligation to consider these additional risks
because she did not find the Applicant’s story to be credible. However, that
was not the reason why the Officer did not consider these additional grounds of
persecution. She had no explanation. This is a reviewable error that, on its
own, would warrant overturning the Officer’s decision.
[107] Further, the
Respondent argued that the Applicant cannot self-induce a positive claim to
refugee status (Valentin v Canada (Minister of Employment & Immigration),
[1991] 3 FC 390, 167 NR 1 (FCA)). However, I do not accept that it is the
same situation for a claimant who flees a country from one type persecution
and, as a consequence, is now subject to another ground of persecution, to be
in the same situation as a claimant who, under no risk, leaves a country only
to self-induce a positive claim to refugee status. Leaving the country
illegally is a documented risk in Eritrea (the UNHCR
Eligibility Guidelines for Assessing the International protection Needs of
Asylum-Seekers from Eritrea (April 2009)). The
Supreme Court of Canada has stated that refugees can have more than one ground
of persecution and it is not the duty of the claimant, but the Officer, to
identify the reasons for the persecution (Ward, above, at para 89).
[108] The Officer
erred by failing to consider this additional ground of persecution. This error
by the Officer is a sufficient basis on which to overturn the decision.
XV. Reasonable
Apprehension of Bias
[109] The Applicant
asserts that the decision of the Officer raises a reasonable apprehension of
bias. As I understand this argument of the Applicant, the allegation is based
on the cumulative record for this and the other claims that form part of this
group of applications. The AMERA interviews highlight a number of common
recollections and concerns that were experienced by the claimants, including
the Applicant.
[110] Some of the
claimants felt that the words and demeanour used by the Officer during the
interview conveyed hostility towards Pentecostals. Of particular relevance,
some of the claimants referred to remarks made by the Officer that she was
Catholic, thereby raising a suspicion that she could be seen as biased.
[111] Moreover, the
Applicant points to the large number of applications that were refused by this
particular Officer.
[112] The test for
apprehension of bias that has consistently been applied was articulated by
Justice de Grandpré in Committee for Justice and Liberty v Canada (National
Energy Board), [1978] 1 S.C.R. 369, 9 NR 115 at 394 [Committee for
Justice]. Analyzing the words of Justice de Grandpré (and the many who have
followed him), the elements involved in any assessment of whether a decision
maker holds a reasonable apprehension of bias are as follows:
·
The
apprehension of bias must be a reasonable one held by reasonable and
right-minded persons, applying themselves to the question and obtaining thereon
the required information.
·
The
test is what would an informed person, viewing the matter realistically and
practically -- and having thought the matter through -- conclude.
·
The
person considering the alleged bias must be reasonable and the apprehension of
bias itself must also be reasonable in the circumstances of the case.
·
The
reasonable person must be an informed person, with knowledge of all the
relevant circumstances.
·
A
real likelihood or probability of bias must be demonstrated; a mere suspicion
is not enough.
·
The
existence of a reasonable apprehension of bias depends entirely on the facts.
·
The
threshold for such a finding is high.
·
The
onus of demonstrating bias lies with the person who is alleging its existence.
·
In
the absence of evidence to the contrary, one must assume that a decision maker
will act impartially (Ayyalasomayajula v Canada (Minister of
Citizenship & Immigration), 2007 FC 248, 155 ACWS (3d) 941, at para
15).
[113] Evidence that
this Officer had rejected all or most of the applications from Eritrean refugee
claimants would have gone some way to support the Applicant’s argument. However,
that is not the evidence before me. The Officer, when questioned on her
affidavit, stated that she determined approximately 600 Eritrean claims each
year. Of those, her “rough estimate” was that she accepted the claims of about
400; of those 400, approximately 150 to 200 would have been of the Pentecostal faith.
While the Applicant may quibble with the arithmetic, the fact remains that a
substantial number of Eritrean Pentecostal claimants were accepted in the
Refugee Abroad Class by this Officer. This alone is sufficient to dismiss the
Applicant’s argument of a reasonable apprehension of bias.
[114] It appears
that the Applicant (and others in this group of claimants) felt that the
attitude of the Officer was hostile and that her manner of questioning was
harsh. I accept – based on the Applicant’s affidavit and the AMERA interview
notes – that the Officer’s interview skills may have been deficient. However, this
does not amount to a reasonable apprehension of bias.
XVI. Conclusion
A. Summary
of decision
[115]
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;
2.
the
Officer’s finding of lack of credibility lacks justification, transparency and
intelligibility; it is unreasonable; and
3.
the
Officer erred by failing to assess the risk of persecution to the Applicant
because he would be returning to Eritrea having left the country
illegally.
[116] 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
the Officer erred by refusing to accept documents offered at the interview, I
am not persuaded that, in the circumstances, this failure resulted in a
reviewable error;
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 his burden of demonstrating that the Officer’s decision
gives rise to a reasonable apprehension of bias.
[117] The decision
will be quashed.
B. Remedies
[118]
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.
[119]
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 he feels is necessary to
support his claim. However, I am not prepared to issue the detailed order that
the Applicant would like to see in this case.
[120] It should be
up to the Respondent or his delegate to determine who can best carry out the
re-determination. I believe that these reasons can offer some guidance to
whomever is tasked with the re-consideration. There is no need to stipulate
that the visa officer be “a senior decision maker”, primarily because I have no
idea of what that would mean.
[121] I understand
that the basis for the request that the new visa officer be located outside Cairo is a concern
that the Officer in this case may have undue influence on the decision-making
process. The new visa officer will be required by law to carry out a
new, independent analysis; she or he cannot rely on the Officer’s decision or
advice. I expect that the office in Cairo will ensure that
procedures are established, or are already in place, to ensure independent
decision making. I see no need to set that out in any order or judgment.
[122] The balance
of the requested remedies relate to the imposition of time limits. I am not
prepared to establish time limits for any of the next steps. However, given the
uncertainty of the Applicant’s ability to remain in Egypt for any length of
time and the seriousness of the risks he may face if returned to Eritrea, I
expect that the re-determination and follow-up steps (if necessary) will be
carried out expeditiously. In the event of lengthy delay, I would anticipate
that any of my colleagues would be sympathetic to granting an order of mandamus
in the appropriate circumstances.
C. Costs
[123] 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
[124]
As
noted at the beginning of these Reasons, this 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 Mr. Henok Aynalem Ghirmatsion. 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 Applicants and the Respondent to reach an agreement on the proper
disposition of some or all of the remaining applications in the group.
[125] 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
[126] Neither party
proposes a question of general importance for certification. I agree that there
is no question for certification.
F. Final
Remarks
[127]
In
conclusion, I would like to thank the parties for their professionalism
throughout the pre‑hearing and hearing stages. Your clients were very
well served by your advocacy. In addition, the proceedings benefited from the
respect you demonstrated for your roles as Officers of the Court.
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 he believes are relevant to the determination of his 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
reply to the Applicant’s submissions on costs; the reply may not exceed ten
pages in length.
4.
No
question of general importance is certified.
“Judith
A. Snider”
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