Docket: IMM-2400-16
Citation:
2016 FC 1311
Ottawa, Ontario, November 25, 2016
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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TIRUEDEL
DESALEGN
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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]
The Applicant, Ms. Tiruedel Desalegn, is a
citizen of Ethiopia. She is also a musician who has composed songs used both
for entertainment and to send political messages, in particular the song “One
Day”, associated with protesting the current regime in Ethiopia. In June 2013, Ms.
Desalegn sought refugee protection in Canada claiming to fear political persecution
because of her past membership and public support of the opposition parties in
Ethiopia. The Refugee Protection Division [RPD] rejected her claim in a
decision dated July 15, 2014, finding that she lacked credibility and had not
produced sufficient objective corroborative evidence to substantiate her claim.
[2]
Ms. Desalegn subsequently appealed the RPD’s
negative decision to the Refugee Appeal Division [RAD] and in support of her
appeal, sought to introduce additional evidence pursuant to subsection 110(4)
of the Immigration and Refugee Protection Act, SC 2001, c 27. Two (2)
grounds were raised in the appeal: first, that the RPD erred in its assessment
of her credibility by adopting a microscopic and overzealous approach of the
evidence; and second, that the RPD failed to consider relevant and credible
evidence capable of corroborating Ms. Desalegn’s risk profile.
[3]
In a decision dated January 28, 2015, the RAD admitted
the new evidence, substituted its own determination (to the RPD’s) that Ms.
Desalegn is at risk in Ethiopia due to her political opinion and subsequently granted
her appeal. The Respondent, the Minister of Citizenship and Immigration [Minister]
filed an application for leave and judicial review of the RAD’s decision. On January
7, 2016, this Court granted the Minister’s application for judicial review,
finding that the RAD had erred in admitting Ms. Desalegn’s proposed new
evidence and that the RAD had unreasonably substituted its own determination of
Ms. Desalegn’s credibility without affording any deference to the RPD’s
credibility findings. The matter was remitted back to the RAD for
redetermination by a differently constituted panel. Ms. Desalegn provided
further submissions and evidence for the redetermination before the RAD. In a
decision dated May 18, 2016, the RAD refused to admit all of the new evidence
with the exception of updated country conditions documents, and rejected Ms. Desalegn’s
appeal, thereby confirming the decision of the RPD. She now seeks judicial
review of this second RAD decision.
[4]
Ms. Desalegn raises the following four (4)
issues upon judicial review:
a)
The RAD’s assessment of her new evidence is not
reasonable;
b)
The RAD failed to consider her sur place
ground of risk;
c)
The RAD’s assessment of the RPD’s credibility
findings is unreasonable; and
d)
The RAD ignored, misconstrued, and unreasonably
discounted credible, relevant and material documentary evidence that was before
the RPD.
[5]
In my view, the dispositive issue in this
application for judicial review is the RAD’s failure to consider and address Ms.
Desalegn’s sur place ground of risk.
[6]
In further submissions filed before the RAD on
redetermination, Ms. Desalegn raised the argument that she faces a sur place
risk as a result of her ongoing recent support of the opposition movement since
her arrival in Canada. In support of her argument that she faces risk upon a
return to Ethiopia, she relied on a July 2014 report from Amnesty International
(see Certified Tribunal Record, p 247 [CTR]), confirming that alleged contact
with the Ginbot 7 party or the opposition Ethiopian media service, the Ethiopian
Satellite Television [ESAT], is used by the authorities as a reason to imprison
on false allegations of terrorism. She argued that the new evidence she wished
to adduce before the RAD and which post-dated the RPD’s decision, was
sufficient to ground a sur place claim (see CTR, pp 663-664, paras 15
and 17).
[7]
The evidentiary basis upon which her sur
place allegations were grounded included, among other things, photographs
of her meeting privately in Toronto with the Chairman of the Ginbot 7 party
(CTR, p 239), a letter from another senior member of the Ginbot 7 leadership
committee confirming that she has been an active participant in protest
demonstrations and public meetings organized in Toronto against the current regime
in Ethiopia (CTR, pp 685-686), letters from the ESAT confirming that she had
performed her protest song at a Toronto fundraiser (CTR, p 236) and expressing
gratitude for her ongoing support of the organization (CTR, p 681).
[8]
The RAD does not address or consider Ms.
Desalegn’s submissions regarding the sur place claim. Its decision is
entirely silent on the issue.
[9]
The Minister submits that the RAD did not fail
to assess the sur place claim, arguing rather that the rejection of Ms.
Desalegn’s new evidence was dispositive of the sur place issue. Since
the RAD did not admit the proposed new evidence, there was an insufficient
evidentiary basis to consider the issue and accordingly, the RAD was under no
obligation to consider her sur place risk. The Minister further argues
that the RAD’s findings at paragraphs 59 and 60 of its decision supported the conclusion
that the RAD had considered the sur place claim. The RAD found that the
evidence disclosed at the hearings before the RPD failed to convince that Ms. Desalegn
had the political profile to make her a person of interest to the Ethiopian
government authorities should she return there. It also found that there was a
lack of objective evidence to corroborate her claim of arrest and future risk.
[10]
I disagree with the Minister’s interpretation of
the RAD’s decision. Given that the issue of the sur place claim was
explicitly raised in Ms. Desalegn’s further submissions for the redetermination
by the RAD and that the new evidence she wished to adduce supported her continuing
political involvement and opposition to the Ethiopian regime since her arrival
in Canada, the RAD should have expressly considered the claim. Given its
failure to do so, it is impossible to infer from the record and the decision
whether the sur place claim was considered. As such, regardless of the
standard of review, the decision cannot stand.
[11]
While this error is sufficient to dispose of the
application, I also have additional concerns with the decision, one of which is
the RAD’s failure to analyse and consider an affidavit from Ms. Desalegn’s
uncle which was adduced as new evidence. Ms. Desalegn’s uncle is a highly
regarded musician and prominent Ethiopian opposition activist in the USA. His
affidavit confirms that Ms. Desalegn is currently politically active. In
discussing the admissibility of the new evidence, the RAD does not mention or
address the affidavit.
[12]
Although a tribunal is presumed to have
considered all of the evidence before it, it is noteworthy that the RAD
explicitly lists and addresses ten (10) of the items submitted, but the eleventh
(11th) new document is absent from the enumeration and analysis.
This is significant given that one of the errors identified by Ms. Desalegn the
first time before the RAD was the RPD’s failure to address an earlier affidavit
from the same uncle.
[13]
Similarly, in Teklewariat v Canada
(Citizenship and Immigration), 2016 FC 1026 [Teklewariat], the Pre-Removal
Risk Assessment Officer thoroughly reviewed eleven (11) sets of documents but
ignored one key document substantiating the applicant’s allegation of risk and
contradicting the RPD’s credibility finding. Madam Justice Tremblay-Lamer found
the absence of any mention of that one document suspicious and granted the
application for judicial review. She indicated that the document would perhaps
not have been sufficient to overcome the negative findings on credibility,
however “[t]he record is not sufficient to allow the
Court to extrapolate what the Officer’s reasoning would have been […] and the
fact that only this document was excluded from his analysis points to an error
on his part, rather than to a conscious choice on which piece of evidence to
analyze in his reasons” (Teklewariat at para 19).
[14]
For these reasons, the application for judicial
review shall be allowed and the matter remitted to a differently constituted
panel of the RAD for redetermination.
[15]
The parties did not propose any certified
question in the present proceedings.
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