Docket: IMM-3276-13
Citation:
2014 FC 675
Ottawa, Ontario, July 9, 2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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SAMRAWIT HAILE TEWELDEBRHAN
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision of Coralie Buttigieg, a member of the Refugee Protection Division
of the Immigration and Refugee Protection Board [the Board], pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act]. The Board dismissed the Applicant’s claim for refugee
protection, concluding that she had not proven her identity.
I.
Issue
[2]
The issue is whether the Board’s decision was
unreasonable in finding that the Applicant has not establish her Eritrean
identity under section 106 of the Act and Rule 11 of the Refugee Protection
Division Rules, SOR/2012-256 [the Rules].
II.
Background
[3]
The Applicant alleges to be a married citizen of
Eritrea. According to her Basis of Claim [BOC] form, she was born on November
8, 1980, in Asmara, Eritrea, and has suffered religious persecution as a result
of her membership in the Tewahedo Orthodox Church.
[4]
The Applicant describes various incidents of
generalized religious persecution in Eritrea. The state banned her religion in
1993 and banned worshipping in 2004. Services she attended until that time were
regularly interrupted by people throwing stones.
[5]
The Applicant also describes several specific
incidences of religious persecution. In February, 2005, the Eritrean government
arrested more than 100 bible students and property belonging to her church was
seized. Her church was shut down, but she continued to practice her faith in
small, private groups.
[6]
On October 9, 2005, the Applicant married her
husband in a secret prayer service. He had been forcibly conscripted into the
Eritrean army prior to their marriage. In August, 2010, he was arrested and
detained for three months. The government subsequently transferred his military
posting to Asab, in a different region of Eritrea.
[7]
In July, 2012, Eritrean security officials
visited the Applicant, looking for her husband. They verbally abused her.
[8]
On September 2, 2012, security officials
illegally searched the Applicant’s house, and detained her. She was
interrogated about her husband’s whereabouts and asked to reveal information
about her church. She was verbally abused, beaten and raped.
[9]
On September 23, 2012, the Applicant was
released. She was depressed and could not sleep following her release. She
obtained the services of a smuggler to help her leave Eritrea.
[10]
On October 29, 2012, she left for Sudan on a bus. Two days later she reached the border and crossed illegally on foot. She
stayed in the Sudanese city of Khartum until December 19, 2012, when her
smuggler provided her with a fraudulent passport and an airplane ticket. She
arrived in Mexico on December 22, 2012, and entered the United States on December 23, 2012. She was detained in the United States until January 18,
2013. On February 8, 2013, she arrived in Canada and applied for refugee
protection.
[11]
In her testimony, the Applicant stated that the
police searched her home on July 15, 2012, and returned a week later. She also
claimed that following her detention in September, 2012, the police instructed
her to bring her identity card to the police station. On September 24, 2012,
the Applicant returned to the police station with her identity card. It was
retained by the police but the Applicant was not told why.
[12]
In support of her claim, the Applicant submitted
a photocopy of her identity card and a document purporting to be her birth
certificate.
[13]
After considering section 106 of the Act and Rule
11 of the Rules, the Board found that the Applicant had not established her
identity. This conclusion was based on a number of negative credibility
findings.
[14]
The Board found that the Applicant’s evidence as
to the dates she was detained and her home was searched in 2012 was not
credible, as she would have been in jail when her home was allegedly searched.
Likewise, the Board found that the Applicant stated in her testimony that the
authorities went to her home only in July, not September, a declaration
contrary to what is stated in her BOC.
[15]
The Board also noted that the Applicant did not
mention in her BOC that the Eritrean authorities took her identity card after
her detention. When asked by the Board why she did not mention this in her BOC,
she stated that she had informed an Immigration Officer when she made her
refugee claim. However, according to the notes of the Immigration Officer who
interviewed her, the Applicant stated “the Eritrean
government kept it (her identity card) while I was in jail.” This is
inconsistent with her evidence that the Eritrean government took it after her
September, 2012, detention. When asked to explain this inconsistency, the
Applicant denied making the noted statement to the Immigration Officer.
[16]
In addition, the Board noted statements that
were either mentioned in her BOC but not her testimony, or vice versa. First,
after repeated questions during testimony, the Applicant did not mention that
her home was searched when she was detained on September 2, 2012, despite this
being stated in her BOC. Second, the Applicant stated in her testimony that she
was threatened with imprisonment when she was visited in her home by the police
in July, 2012. This was not mentioned in her BOC. She did not offer an
explanation for these inconsistencies.
[17]
The Board concluded that the Applicant’s
explanations as to how she passed through checkpoints on her way to Sudan was
not believable, as the Board found it implausible that checkpoints would not be
manned in the evening. Despite this, the Applicant later contradicts herself by
stating that she passed the checkpoints by avoiding them.
[18]
The Board noted that the Applicant told the
Immigration Officer that she needed fake pass papers to get through
checkpoints. However, in her testimony, she stated that she needed them for her
stay in the city of Teseney.
[19]
The Board also found it implausible that the
copy of the Applicant’s identity card that was provided would not have her
occupation listed, and that the Applicant’s statement of how she obtained her
identity card conflicts with the documentary evidence as to how such a card may
be obtained from the Eritrean authorities. The Applicant testified that she
obtained her identity card by providing three witnesses and a court-issued
document stating that she is Eritrean. According to a Response to Information
Request, there are three ways one can obtain an Eritrean identity card. None
require the provision of a court-issued document.
[20]
With regard to the Applicant’s birth
certificate, the Board noted that the Applicant states she was married on
October 9, 2005, prior to the issuance of her birth certificate in November,
2005. However, the Applicant initially stated in her testimony that she was
required to present her birth certificate to be married. When confronted with
this inconsistency, the Applicant stated that one applies for a birth certificate
after he or she is married.
[21]
In addition to the credibility issues, the Board
found that there was a lack of documentary corroboration of the Applicant’s
claims and that the Applicant made little effort to obtain such documentation. For
example, the Applicant did not provide any evidence that she was married, or
any evidence that she made an effort to obtain her marriage certificate.
[22]
The Board also placed no weight on what the
Applicant alleged was her brother’s Eritrean birth certificate, on the basis
that it does not identify the Applicant as his sister. Likewise, the Board
found that a letter from the Applicant’s church did not serve to establish her
identity, nor did the fact that the Applicant can speak Tigrinya, which is a
language spoken in Eritrea.
III.
Standard of Review
[23]
The standard of review is reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 51).
IV.
Analysis
[24]
The Applicant argues that the Board misstated
and misunderstood the evidence before it. The Applicant states that she never
testified that she was arrested in July or that the authorities only came to
her home in July. However, the Board relied on this fact to conclude that she
had never been detained and impugn her credibility.
[25]
The Applicant also claims that the Board’s
findings regarding the checkpoints were unreasonable. The Applicant never
stated that no one was working at the checkpoints at night – she stated that no
one checked her and her fellow travellers because they passed during the night
and avoided the checkpoints.
[26]
In addition, with respect to the documents
needed to obtain an identity card, the Applicant disputes the Board’s finding
that the Applicant stated she had to present a form produced by the court in
order to receive an identity card. The Applicant cites the affidavit of Andrea
Siemens, a legal assistant with the Applicant’s counsel. Ms. Siemens states
that according to an audio recording of the Applicant’s hearing before the
Board, the Applicant said that she had to go to court to sign a form that the
court provides, with three witnesses. The Applicant contends that this
declaration is consistent with the documentary evidence cited by the Board.
[27]
The Applicant argues that these errors of fact
are crucial to the determination of the Applicant’s identity and the decision
should be set aside (Owjee v Canada (Minister of Employment and Immigration),
[1993] FCJ No 423 (FCA)).
[28]
The Applicant also argues that it was
unreasonable for the Board to draw a negative credibility inference based on
the fact that she did not inform the Immigration Officer that her identity card
was taken by the Eritrean government after her detention.
[29]
The Applicant further claims it was unreasonable
that the Board drew a negative credibility inference based on the fact that
there was no occupation listed on the Applicant’s identity card. The Board has
no evidence as to the practice of the Eritrean authorities regarding what
information is included on that card.
[30]
The Applicant also disputes the reasonableness
of the Board’s finding regarding the Applicant’s brother’s birth certificate,
and argues that the letter from the Applicant’s church ought not to be
discounted because it is an Eritrean Orthodox church, which is a credible
indicator that she is Eritrean.
[31]
Finally, the Applicant notes that she is
unsophisticated and that the Board seized on perceived imperfections in her
evidence to unreasonably determine that she was not credible (Jamil v Canada
(Minister of Citizenship and Immigration), 2006 FC 792).
[32]
While some of the Board’s credibility findings
are questionable, I find that on the whole the Board’s decision was reasonable.
[33]
With regard to the police visits to her home,
the Applicant states in her BOC that the police visited in July and September.
With regard to the July visit, she states that the police questioned her. With
regard to the events of September 2, 2012, she states that the police came to
her home and detained her for 22 days. In her testimony, the Applicant states
that the police first searched her home in July and interrogated her, before
returning a week later to again search her home and question her. In response
to this testimony, the Board asked the Applicant how many times the police
visited her home. The Applicant’s response, at page 20 of the transcript, is:
There are two times in my home and a third time
they came to my working place. If I remember it was Saturday, but I do not
remember the exact date. So they search it three times; two times in my home
and one in my working place.
[34]
After the Board confronts the Applicant with the
fact that she stated in her BOC that the police also visited her home in
September, the Applicant acknowledged that when they detained her in September,
they took her from her home. While it is possible that the Applicant was
confused by the Board’s questioning, I find it reasonable that the Board found
the Applicant’s evidence inconsistent.
[35]
The Board was also reasonable in finding that
there was an inconsistency between what was stated in her interview with an
Immigration Officer (that her identity card was held by the government while
she was detained in September, 2012), and what she stated in her testimony
before the Board (that the card was at home during her detention and she
brought it to the authorities on September 24, 2012, following her detention).
[36]
Moreover, the Board’s findings regarding the
manner in which the Applicant passed through police checkpoints while leaving Eritrea was reasonable. The Applicant first states in her testimony that she was not
questioned at checkpoints because she went through them during the evening and
they were unmanned, but later states that she evaded the checkpoints
altogether.
[37]
With regard to how the Applicant obtained her
identity card, the transcript of the hearing indicates that the Applicant
stated that she had to have three witnesses to obtain her identity card and
also had to “…give document which is signed by the court
that tells that I am a citizen of Eritrea.” This is disputed by the
affidavit of Ms. Siemens, which suggests that an audio recording of the hearing
indicates that the Applicant instead stated that three witnesses had to sign a
form that is provided by the Eritrean court. While the transcript is not very
clear, and the Applicant’s interpretation could be supported, the Board was
present during the hearing and the transcript supports the Board’s
interpretation. This is within a range of possible, acceptable outcomes. Even
if it were not, such a finding would not be determinative of this application.
[38]
The Applicant has failed to support its assertions
that it was unreasonable for the Board to draw a negative credibility inference
from the fact that the Applicant did not mention to the Immigration Officer
that her identity card was taken from her by the Eritrean authorities.
[39]
While I agree that the Applicant is not
sophisticated, she was represented by counsel and many of the Board’s cumulative
credibility findings, which are central to the decision, are reasonable. As a
result, given the totality of the evidence, the Board’s decision was reasonable.
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