Date: 20080908
Docket: IMM-4716-07
Citation: 2008 FC 1000
Ottawa, Ontario, September 8, 2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
ALEMAYEHU WORKIE GELAW,
ELFINESH ADEM MEHAMED, and
YEROME
ALEMAYEHU WORKIE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants are a
family of Ethiopian citizens who received a negative Pre-removal Risk
Assessment. They now seek judicial review of that decision, asserting that the
PRRA Officer erred in unreasonably disregarding the bulk of their documentary
evidence regarding current conditions within Ethiopia.
[2]
For the reasons that
follow, I am not persuaded that the officer erred as alleged. As a
consequence, the application for judicial review will be dismissed.
Background
[3]
Alemayehu Workie
Gelaw is a career diplomat, who began working for the Ethiopian government in
1987. In 1991, the Tigrean party took control of Ethiopia. Mr. Gelaw did not support the Tigrean party, and took part
in a protest against the party in 1991. Notwithstanding the change in regime,
however, Mr. Gelaw continued to serve as a diplomat, and in 1993, he was posted
to Rome, where he represented the Ethiopian
government until he left for Canada in1997.
[4]
Mr. Gelaw asserts
that the posting to Rome was intended as a form of punishment for
his failure to support the Tigrean regime, and because of his Amhara ethnicity.
[5]
In 1994, Mr. Gelaw’s
wife, Elfinesh, was attacked by an associate of the Tigrean party during an
attempted kidnapping in Italy. The applicants also claim that their
vehicle was vandalized by associates of the Tigrean party in 1995, and that
they began receiving threatening telephone calls. According to the applicants,
by 1997, the Ethiopian government had effectively placed Mr. Gelaw under house
arrest while the family was living in Italy.
[6]
The family then fled
to Canada, where they sought refugee protection,
based exclusively on risks related to Mr. Gelaw. These claims were refused by
the Convention Refugee Determination Division of the Immigration and Refugee
Board in 1999. The Board found Mr. Gelaw not to be credible in relation to the
central elements of his claim.
[7]
In particular, the
Board noted that Mr. Gelaw continued to be promoted after the change in
government in 1991. Moreover, the Board found it to be implausible that the
Ethiopian government would have sent Mr. Gelaw to what the Board viewed as a
“plum posting” in Rome if he were perceived to have political views contrary to
those of the government of the day, or if his loyalty to the government was
believed to be in doubt because of his ethnicity.
[8]
The applicants sought
judicial review of the Board’s decision, but leave was denied by this Court.
[9]
The applicants have
also received negative PDRCC and H&C decisions, and their applications for
leave in relation to each of these decisions have been dismissed. A decision in
relation to a second H&C application is evidently still outstanding.
The
Applicants’ PRRA Application
[10]
In relation to their
PRRA application, the applicants submitted that Mr. Gelaw would be at risk in Ethiopia, because of his political opinion, and because he would be
perceived as wealthy after living for more than a decade overseas.
[11]
Elfinesh Adem Mehamed
asserted that in addition to the risk that she faces as Mr. Gelaw’s wife, she
would also be at risk because of the psychological trauma that she suffered as
a consequence of the attempted kidnapping. She also claimed that she faces an
additional risk from her abusive step-father.
[12]
The couple’s
daughter, Yerome, asserted that she faced a number of risks in Ethiopia, primarily related to the poor living conditions in that
country. She also says that she risked being exposed to female genital
mutilation if she were returned to Ethiopia.
Standard of
Review
[13]
It is common ground
that the decision of the PRRA officer is to be reviewed against the
reasonableness standard. In
reviewing a decision against the reasonableness standard, the Court must
consider the justification, transparency and intelligibility of the
decision-making process, and whether the decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the
law: see Dunsmuir v. New Brunswick,
2008 SCC 9, at paragraph 47.
Analysis
[14]
Given that the risks
asserted by each of the applicants were different, I will address the arguments
advanced by each applicant in turn.
[15]
Before turning to do
so, however, it should be observed that the applicants’ refugee claims were
decided prior to the enactment of the Immigration and Refugee Act, which
introduced a restriction on the type of evidence that may be adduced in
relation to a Pre-removal Risk Assessment to new evidence, or evidence that
could not have been adduced before the Immigration and Refugee Board with the
exercise of reasonable diligence (see IRPA, at subsection 113(a)). As a
result, the applicants were not limited to presenting only new evidence in
support of their PRRA application, and they did in fact submit numerous
documents concerning country conditions in Ethiopia.
Mr.
Gelaw’s Risk
[16]
As was noted earlier,
Mr. Gelaw asserted that he would be at risk in Ethiopia,
because of his political opinion and because of his perceived wealth.
[17]
Insofar as Mr. Gelaw
was concerned, the PRRA officer noted the CRDD’s concerns about his credibility
due to the implausibility of various elements of his story.
[18]
The officer then went
on to examine country condition reports regarding conditions within Ethiopia, such as those emanating from the United States Department
of State and the United Kingdom Home Office. The officer also considered the
various documents submitted by the applicants in this regard, reviewing the
content of each, and explaining why each was given little weight.
[19]
After carrying out
this analysis, the officer concluded that there was insufficient evidence that Mr.
Gelaw was involved in any political activities after 1991, or that he had
expressed any political views that would have brought him to the attention of
the Ethiopian authorities.
[20]
The officer was
further of the view that Mr. Gelaw had not demonstrated that he was of any
interest to the authorities, with the result that it was entirely speculative
to think that he would be persecuted on his return to Ethiopia, and that his fears were not objectively well-founded.
[21]
The applicants assert
that the officer erred in discounting the country condition information that
they provided in support of Mr. Gelaw’s application on the basis that it did
not specifically refer to him. I do not accept this argument. It is clear
from a fair reading of the decision that the officer did not give the
documentary evidence much weight because of the officer’s finding that Mr.
Gelaw did not fit the profile of those identified in the reports as being the
targets of the current Ethiopian
government.
[22]
Mr. Gelaw takes
particular issue with the decision not to give significant weight to a June 17,
2006, article relating to the persecution of diplomats by the Ethiopian government.
The officer reviewed the contents of this article in some detail, declining to
attribute significant weight to it on the grounds that Mr. Gelaw had not worked
as a diplomat since 1997. This was a decision that was reasonably open to the
officer, and it is not the task of this Court sitting in judicial review of a
PRRA officer’s decision to re-weigh the evidence that was before the officer.
[23]
I agree with Mr.
Gelaw that the officer did err in stating that the “Crime and Nourishment”
article did not identify the sources upon which it relied, as these sources are
clearly identified in the endnotes to the article. This was, however, only one
of several reasons cited by the officer for giving the article little weight,
and does not provide a sufficient basis, by itself, for setting aside the
decision.
Elfinesh
Adem Mehamed’s Risk
[24]
In addition to the
risk that she claims to face as Mr. Gelaw’s wife, Ms. Adem Mehamed also claims
to be at risk in Ethiopia because of her psychological
vulnerability resulting from the attempted kidnapping. She also claims to be
at risk from her abusive step-father.
[25]
The PRRA officer
noted that while a psychological assessment had been provided in support of Ms.
Adem Mehamed’s PRDCC application, no such report had been filed in connection
with the PRRA application. As a result, the officer concluded that Ms. Adem
Mehamed had not established that she suffered from PTSD.
[26]
Insofar as Ms. Adem
Mehamed’s alleged fear of her stepfather was concerned, the officer found that
there was insufficient evidence that she would be at risk in this regard, given
that she had not been in contact with her step-father for 13 years.
[27]
Ms. Adem Mehamed has
not challenged the officer’s decision as it relates to the risk posed by her
stepfather, but does assert that the officer erred in finding that she did not
suffer from PTSD. The officer was clearly aware of a July, 1999,
psychological assessment documenting that Ms. Adem Mehamed had been diagnosed
with Post-traumatic Stress Disorder, as extracts of the report that were cited
in the PDRCC decision are referred to in the PRRA officer’s decision. Ms. Adem
Mehamed argues that the officer erred by ignoring the findings of the report,
submitting that there was no evidence before the officer to say that she did
not still suffer from PTSD.
[28]
I do not agree that
the officer erred in this regard. The onus was on the applicants to establish
that they would be at risk if returned to Ethiopia, and thus it was up to the applicants to
provide the officer with whatever evidence they believed would support their
PRRA application. The onus was therefore on the applicants to show that Ms. Adem
Mehamed was still psychologically vulnerable. They chose not to provide the
officer with any evidence as to Ms. Adem Mehamed’s current psychological state.
[29]
Although the
applicants did not even provide the PRRA officer with the eight year old
psychological report regarding Ms. Adem Mehamed, the contents of the 1999
report were clearly considered by the officer. The officer concluded that the
evidence before him did not establish that Ms. Adem Mehamed still suffered from
PTSD at the time of the PRRA assessment. In the absence of any evidence
regarding Ms. Adem Mehamed’s current psychological state, this was a conclusion
that was reasonably open to the officer.
Yerome
Alemayehu Workie’s Risk
[30]
Yerome Alemayehu
Workie claims to face a number of risks in Ethiopia,
primarily arising from the poor living conditions in that country. Before this
Court, her submissions focused on her alleged risk of being exposed to female
genital mutilation if she were returned to Ethiopia.
[31]
In relation to the
female genital mutilation issue, the PRRA officer found that there was no
evidence to suggest that Yerome’s parents would subject her to female genital
mutilation, nor was there any evidence to suggest that the child would face
such a risk in the absence of parental approval.
[32]
The applicants have
directed the Court to documentary evidence as to the prevalence of female
genital mutilation within Ethiopia. With respect, the fact that female
genital mutilation may be prevalent within Ethiopian society does not detract
from the officer’s finding that the risk to Yerome had not been established,
given that there was no suggestion in the evidence that her own parents would
subject her to this procedure.
The Bias
Argument
[33]
Although not pursued
in oral argument, the applicants assert in their memorandum of fact and law
that the PRRA officer’s “systematic dismissal” of all of their documentary evidence
gives rise to a reasonable apprehension of bias on the part of the officer.
[34]
I have concluded that
apart from the officer’s error in finding that one of the articles provided by
the applicants did not list the source materials relied upon, the officer did
not err in his treatment of the documentary evidence. As a consequence, the
applicants have not demonstrated that an informed person, viewing the matter
realistically and practically, and having thought the matter through, would
have a reasonable apprehension of bias on the part of the officer.
Conclusion
[35]
For these reasons, I
am satisfied that the PRRA officer’s decision was reasonable, in that it falls within a range of possible
acceptable outcomes which are defensible in light of the facts and the law. As
a consequence, the
application for judicial review is dismissed.
Certification
[36]
Neither party has suggested a question
for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This application
for judicial review is dismissed; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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