Date: 20080307
Docket: IMM-5739-06
Citation: 2008 FC 316
Ottawa, Ontario, March 7, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
YONNAS GEBREMESKEL HABTEMARIAM
(a.k.a. YONNAS GEBREMES HABTEMARIAM)
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated September 29,
2006 concluding that the applicant, an Ethiopian citizen, was not a Convention
refugee or a person in need of protection.
FACTS
[2]
The
applicant is a 37-year-old Ethiopian citizen of Oromo ethnicity. He arrived in Canada on January
19, 2005 claiming refugee protection on account of his and his father’s
involvement in the Oromo Liberation Front (OLF), an outlawed independence
movement. Prior to arriving in Canada, the applicant had previously made two unsuccessful
asylum claims; in Norway in 1999 and in the United States in 2001.
[3]
The
applicant states in his Personal Information Form (PIF) that he became an Oromo
activist through the teachings of the OLF and his father, who joined the OLF in
1990. The applicant states in his PIF that while he never attended meetings or
personally joined the OLF, his father had him registered and gave the applicant
specific OLF-related tasks to perform. These tasks mainly included the
distribution of pamphlets in schools, stadiums, coffee and tea houses,
churches, and mosques.
[4]
The
applicant states that his trouble with the Ethiopian government began on April
1, 1998, when police officers came to his home in the middle of the night. Both
the applicant and his father were awakened by the officers. When the
applicant’s father opened the door, the officers forced themselves into the
house. The applicant was taken into custody and was held until May 31, 1998.
The applicant states that during this time he was subjected to extensive
interrogation about his father’s involvement in the OLF and was “tortured
almost every day.” Upon being released, the applicant was told to report to the
police every week.
[5]
In
July 1998, the applicant went into hiding after his father was detained by
authorities. He remained in hiding until August 1998 when he fled Ethiopia for Norway with the
help of an agent and a friend of his father. His asylum claim was rejected by
Norwegian authorities in 1999. In July 2001, fearing deportation, the applicant
left Norway for the United States, where he was again denied asylum. The
applicant arrived in Canada on January 15, 2005 and filed a claim for
refugee protection, which was heard by the Board on May 5 and September 26,
2006.
Decision under review
[6]
On
September 29, 2006, the Board held that the applicant was not a Convention
refugee or a person in need of protection. While the Board accepted the
applicant’s identity as an Ethiopian citizen, it concluded that the applicant’s
evidence was not credible.
[7]
The
Board found inconsistencies between the applicant’s evidence in his PIF
narrative and oral testimony before the Board, and the evidence in the
applicant’s “Personal Statement,” which formed the basis of his U.S. asylum
claim. These inconsistencies included:
a. in his PIF
narrative and oral testimony, the applicant stated that he never personally became
a member of the OLF, but rather that his father was the one who registered him.
However, in the “Personal Statement” supporting his U.S. asylum
claim, the applicant stated that he joined the OLF with two friends in 1994;
b. in his PIF
narrative and oral testimony, the applicant stated that he never attended
meetings and only performed those tasks assigned by his father. However, in the
“Personal Statement” the applicant held that he was an “active member” and
attended meetings two or three times a week to talk about the OLF; and
c. in his PIF
narrative, the applicant testified that his father opened the door for the
police on the night he was detained. However, in his U.S. “Personal
Statement” the applicant stated that his father was not home and that he, himself,
opened the door.
[8]
The
Board posed these and other contradictions to the applicant at the hearing and considered
his explanations. However, the Board did not accept the explanations as satisfactory
and concluded that the inconsistencies raised serious credibility issues
including whether the applicant was actually a member of the OLF. Further, the
Board held at page 10 of its decision that the third contradiction about the
police was particularly concerning, “since so much of the claimant’s fear of returning
flows from his initial encounter with the police on April 1, 1998.”
[9]
The
Board found further inconsistencies between the applicant’s evidence before the
Board and that summarized by the Norwegian Immigration Directorate concerning
the applicant’s failed asylum claim in Norway. The Board
held that the length of his incarceration was different in the two accounts,
and drew a negative inference from this finding. The Board did not accept the
applicant’s explanation that the Norwegian authorities were incorrect and that
he had been denied a fair hearing in Norway.
[10]
Finally,
the Board concluded that the applicant’s credibility was further undermined by
the fact that he did not produce a single document verifying his membership in
the OLF despite having had the opportunity to request such evidence. Two of the
documents proffered by the applicant were expressly rejected by the Board as
not being “independent confirmation” that the applicant was ever a member of
the OLF. Accordingly, the Board rejected the applicant’s claim for refugee
protection.
ISSUE
[11]
The
sole issue to be considered in this application is whether the Board made
patently unreasonable credibility findings without regard to the evidence
before it, in particular an affidavit supporting the applicant’s version of the
events and the reliability of his version of the events as reported in the
Norwegian and U.S. decisions on the applicant’s asylum claims in those two
countries.
STANDARD OF REVIEW
[12]
No
pragmatic and functional analysis is required with respect to the issue of the appropriate
standard of review of the Board’s credibility findings because the standard of
review is well settled in the jurisprudence as “patent unreasonableness.” In
Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT
1194, [2002] F.C.J. No. 1611 (QL), I held at paragraphs 4-5:
¶ 4 … Before a credibility finding
of the Board is set aside … one of the following criteria must be established …
:
1. the Board did not
provide valid reasons for finding that an applicant lacked credibility;
2. the inferences
drawn by the Board are based on implausibility findings that in the view of the
Court are simply not plausible;
3. the decision was
based on inferences that were not supported by the evidence; or,
4. the credibility
finding was based on a finding of fact that was perverse, capricious, or
without regard to the evidence.
See Bains v. Canada (Minister of Citizenship and
Immigration),
[1998] F.C.J. No. 1144 at para. 11 per Madam Justice Reed.
¶ 5 Credibility findings of the
Board are entitled to the highest degree of curial deference, and the Court
will only set aside credibility decisions … in accordance with the criteria
outlined above. The Court should not substitute its opinion for that of the
Board with respect to credibility or plausibility except in the clearest of
cases. For this reason, applicants seeking to set aside credibility findings
have a very heavy onus to discharge.…
ANALYSIS
Issue: Did the
Board make patently unreasonable credibility findings without regard to the
evidence before it?
The failure to consider
affidavit evidence
[13]
The
applicant submits that in reaching its conclusion, the Board erred in failing
to consider relevant evidence that supported the applicant’s membership in the
OLF. This evidence was an Affidavit of Sentayehu Kassa dated October 25, 2001,
which corroborates the applicant’s membership in the OLF and the police
harassment and arrest.
[14]
The
Affidavit of Sentayehu Kassa is not from an independent source that could
substantiate the applicant’s story. The deponent was not in Ethiopia when the
applicant was allegedly arrested in 1998; the deponent left Ethiopia in 1986. The
deponent relies on information told to him by the applicant and by the
deponent’s brother. This is not a credible, independent source of evidence that
the Board needed to expressly address in its decision. Moreover, the deponent
is a friend of the applicant from Ethiopia and Texas.
Evidence
emanating from the U.S. asylum claim
[15]
The
applicant argues the Board erred in basing its credibility findings on the
negative outcome of his failed 2001 U.S. asylum claim. The
applicant submits that the Board failed to undertake an assessment of his claim
independent of the assessment made by the U.S. immigration
judge in 2001.
[16]
If
the Board’s conclusion was premised on the decision in the U.S. claim, then
the Board erred by abdicating its responsibility to make an independent
assessment of the facts based on the evidence before it. As Madam Justice
Mactavish stated in Dokaj v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1416, [2005] F.C.J. No. 1740 (QL)
at paragraph 5:
¶ 5 I agree with counsel for Mr. Dokaj
that a tribunal cannot simply look at findings of fact and credibility made by
an earlier adjudicative body, and adopt those findings as its own. This would
amount to an abdication of the Board’s responsibility to make an independent
assessment of the facts, based upon the evidence before it. In other words, it
would not have been open to the Board to say that because the US immigration judge
did not believe Mr. Dokaj’s story, the Board did not believe him either. …
[17]
However,
the Board’s decision in the case at bar was not premised on the findings of the
U.S. immigration judge, but rather on the applicant’s own evidence proffered in
support of his claim. Having reviewed the applicant’s “Personal Statement” made
in support of his U.S. asylum claim, the Court finds there to be inconsistencies
between this account of events and that which the applicant provided in his PIF
narrative and oral testimony before the Board. Specifically, the Court agrees with
the Board’s finding that there are significant differences between the two
accounts with respect to: 1) how the applicant became a member of the OLF; 2)
the extent of his involvement within the group; and 3) the events leading up to
his arrest on April 1, 1998.
[18]
In
Dokaj, above, Madam Justice Mactavish was faced with a similar fact
scenario, where the Board concluded the applicant lacked credibility on the
basis he provided inconsistent statements between his Canadian refugee claim
and his claim for asylum in the United States. In concluding that the
Board did not err in its use of the applicant’s testimony before a U.S. immigration
judge, Madam Justice Mactavish stated at paragraph 7:
¶ 7 In my view, there was nothing improper about this.
Mr. Dokaj’s testimony before the US immigration judge amounted to a prior inconsistent
statement. It was no different for the Board to have relied upon
inconsistencies between Mr. Dokaj’s earlier evidence and his testimony before
the Board than it would have been for the Board to have relied upon
inconsistencies between a claimant’s testimony before the Board and statements
given by the claimant at the Port of Entry or in the claimant’s Personal
Information Form.
[19]
The
Court reaches the same conclusion in the case at bar. In concluding the
applicant lacked credibility, the Board’s decision was not erroneously based on
the negative decision of the U.S. immigration judge. Rather, it was based on
evidence proffered by the applicant in support of his U.S. asylum claim
that the Board found to be materially inconsistent with the evidence provided
by the applicant in his claim for refugee protection in Canada. These
inconsistencies were noted by the Board and put to the applicant at the
hearing. The Board’s finding that the applicant lacked credibility on the basis
of these inconsistencies was open to it on the evidence and will not be
interfered with by this Court.
Evidence
emanating from the Norwegian asylum claim
[20]
The
applicant makes a similar argument with respect to the Board’s treatment of his
failed asylum claim in Norway in 1999. The applicant states that the Board
erred in relying on the decision of the Norwegian Immigration Directorate to
find inconsistencies between the applicant’s Canadian and Norwegian claims for
protection.
[21]
The
applicant submits that he was under great pressure from the Norwegian policemen
questioning him, and that this impacted on his ability to recall events. The
Court rejects this explanation for three reasons:
1.
the
applicant had counsel in Norway;
2.
the
applicant could have appealed the decision of the Immigration Directorate; and
3.
such
interviews often are difficult and make witnesses nervous. This is not a reason
to ignore or discount the answers given.
CONCLUSION
[22]
The
Board conducted this hearing over two days and provided a detailed set of
reasons. The Court cannot interfere with the Board’s credibility findings
unless they are patently unreasonable, which,
in this case, they are not.
[23]
Both
parties and the Court agree that this case does not raise a question that
should be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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