PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The central issue in this judicial review is whether the conclusion of the Immigration and Refugee Board (Board) that the parents of the Applicant contributed funds to the Oromo Liberation Front (OLF) of Ethiopia is patently unreasonable. It is the Applicant's position that the Board misinterpreted the evidence and reached a conclusion for which there was no evidence.
II. Facts
[2] The Applicant, a 23-year-old male citizen of Ethiopia, was in Canada under a study permit. His permit expired in August 2001 and he waited a full year before seeking an extension on the permit. When the extension was denied in August 2002, he again waited until October 22, 2002 to claim for refugee protection. His claim was based on fear of persecution because he was a member of the Oromo ethnic group and a member of the OLF, an organization supporting secession from Ethiopia.
[3] His evidence was to the effect that he engaged in the printing and distribution of flyers, attended secret meetings and contributed financially to the OLF. He claimed that he had been arrested, questioned, beaten and threatened by police because of his political activities. He also claimed that while he was here, he learned that his father had been detained by a pro-government rival political group and his mother had been imprisoned twice for inquiring into her husband's whereabouts.
[4] The Board found against the Applicant on the basis of lack of credibility. There were three principal reasons for that finding: the contents of an e-mail from an official in the Canadian Embassy in Nairobicontradicting the Applicant's story on major issues; the Applicant's lack of knowledge of the time frame of his father's detention; and his delay in seeking refugee protection.
[5] The e-mail, the manner in which it was dealt with and its contents, are the major issues in this judicial review. The e-mail was produced at the hearing. While the Applicant expressed concern about this late evidence, there was no request for an adjournment. The Applicant elected to deal with its contents by filing a post-hearing affidavit.
[6] The e-mail was from an employee of the Visa Office at the Embassy relaying information from the Applicant's mother, an employee in the Embassy. In the e-mail, the mother is alleged to have said:
· "She and her husband are both Oromo and their families both contributed to the cause (not sure what it means exactly)"; and
· "She has never been arrested or detained, nor her husband, and did not indicate her son had been arrested and detained."
[7] Subsequent to hearing, the Applicant filed an affidavit of his mother in which she seeks to explain her statements to the Embassy official repeated in the e-mail. She alleged that she had been afraid to tell the truth; that police had inquired of the Applicant's whereabouts; that she had been detained and interrogated twice; and that her husband had been "imprisoned and harassed several times for making contributions to various Oromo groups and for being a member of the OLF organization".
[8] The Board did not accept the explanation that the Applicant's mother did not disclose detentions because she was afraid if the Embassy knew of her or her family's connection to the OLF, she could lose her job. The Board held that her admission that she and her husband had contributed to the OLF was more prejudicial to the mother's employment position than mere detentions because detentions did not equate to OLF membership. Presumably, making contributions was more serious evidence of membership.
[9] The Board repeated, as a principal reason for discounting the affidavit, the fact that the affidavit did not address the admission that the father and mother contributed to the OLF.
[10] The Applicant states that this finding, which goes to the core of the decision, is patently incorrect. As such, the decision is so seriously flawed that it should be quashed.
III. Issues
[11] The issues in this judicial review are:
· Did the Board commit a reviewable error in respect of the evidence?
· Did the Board violate the principles of natural justice or fairness?
IV. Analysis
[12] The standard of review for findings of credibility has long been held to be patent unreasonableness (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315). The standard in respect of fairness and natural justice is correctness.
[13] On the issue of contributions to the OLF, the Applicant attests that his mother never admitted in the e-mail that either she or her husband made such contributions. The only admission is that their families contributed to the cause. The Applicant disputes that even the term "cause" does not mean the OLF.
[14] As to the term "cause", it is evident from the context of the case that the only relevant cause in play is that of the OLF. It was not unreasonable to draw the inference that the term "cause" related to the pro-secessionist group, the OLF.
[15] In any event, what is relevant is that there were contributions to some aspect of the secessionist movement.
[16] The portion of the e-mail on this point of contribution can be read in two ways: (1) that the mother and father, part of an Oromo family, each made contributions or (2) that the mother and father are Oromo and their families (as distinct from them) made the contributions. Either reading reveals nothing unreasonable about the Board's interpretation of the statement in the e-mail.
[17] As matters turned out, the Board's interpretation of the e-mail was buttressed by the mother's affidavit where she states that the father was imprisoned and harassed several times "for making contributions" to Oromo groups and for being a member of the OLF movement.
[18] It is simply impossible to conclude that on this major point, the Board's interpretation was unreasonable, much less that it was patently unreasonable.
[19] The Applicant argues that the late disclosure of the e-mail was unfair and that by allowing the Applicant to respond to the e-mail by a post-hearing affidavit but by not alerting the Applicant to credibility problems, the Board had acted unfairly.
[20] If the late disclosure was unfair, the Applicant never asked for an adjournment. He was prepared, and indeed suggested, that the matter could be dealt with by filing a post-hearing affidavit and making submissions. Arguably that procedure gave the Applicant the advantage of filing an affidavit on which cross-examination was practically impossible and allowed the Applicant time to file more detailed written submissions.
[21] I can see nothing unfair in following the procedure suggested by the Applicant. There is no duty on the Board to alert the Applicant to credibility concerns it had with the affidavit any more than it would have had such a duty if the matter had been fully dealt with at the oral hearing.
[22] For the sake of completeness, let me deal with three other matters raised but not fully argued orally:
1. the Board's failure to accept the Applicant's explanation for confusing dates - the need to translate from the Ethiopian to the Gregorian calendar - was an error; however, it did not go to a central issue in the case and does not undermine the core rationale in the decision;
2. the finding of insufficient credible evidence of past persecutions is sufficient basis, in this case, to address the objective fear required under s. 97; and
3. the delay issue was never dispositive of the claim but merely a factor weighed in the context of other evidence which undermines the Applicant's credibility.
[23] For all these reasons, this judicial review must be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT the application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5653-05
STYLE OF CAUSE: ESTIFANOS MEKONNEN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
| Mr. Micheal Crane
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| Mr. Bernard Assan
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SOLICITORS OF RECORD:
| MR. MICHEAL CRANE Barrister & Solicitor Toronto, Ontario
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| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|