Date: 20050120
Docket: IMM-5669-03
Citation: 2005 FC 67
Ottawa, Ontario, this 20th day of January, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ZEWDE BEYENE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated June 19, 2003, wherein it was determined that the applicant is not a Convention refugee nor a person in need of protection.
[2] The applicant requests an order quashing the Board's decision and referring her claim back for re-determination.
Background
[3] The applicant, Zewde Beyene, is a citizen of Ethiopia who claims a well-founded fear of persecution based on her Amhara race, her imputed political opinion and her particular social group, namely women.
[4] The applicant was born in the village of Woochale in the province of Wollo, Ethiopia. After not attending school for a number of years due to security problems and civil unrest, the applicant stated that in the fall of 2000 she enrolled in grade eleven at the Minilik High School, which is located in the Ethiopian capital of Addis Ababa.
[5] In April 2001, students staged demonstrations against the Tigrian government. In the narrative portion of her Personal Information Form ("PIF"), the applicant stated that she did not participate in the demonstration. School staff called the police and kept the applicant, along with a number of other students, inside the Minilik High School to prevent further support of the demonstrations. The applicant stated that when the police arrived, they dispersed the demonstrations outside the school and detained many of the attendees.
[6] The applicant further alleged that the police came inside her school, targeted the Amhara students by accusing them of anti-government activities, randomly beat them, and dragged them outside. The applicant stated that she was beaten, taken away in a truck to a temporary holding building outside the city, and later transported along with almost 3,000 other detainees to the Shewa Robit detention center.
[7] While at Shewa Robit, the applicant alleged that she was interrogated and beaten. On one occasion, the applicant stated that she was accused of being a member of the All Amhara People's Organization, and beaten for a week in an attempt to extract a false confession from her. During her two months at Shewa Robit, the applicant stated that she was raped multiple times, as were a number of other detainees.
[8] The applicant alleged that she was released from Shewa Robit after her father bribed police officials. After being released, the applicant stated that her father arranged for her to go into hiding with family friends in the countryside near Woochale until he could arrange her departure from Ethiopia.
[9] In August 2002, the applicant alleged, her father arranged for her to travel to Addis Ababa, then to fly to New York and finally to cross the Canadian border. The applicant left Ethiopia on August 23, 2002, arrived in Canada on August 25, 2002 and made her refugee claim in Ottawa on September 6, 2002.
[10] On May 23, 2003, the Board held a hearing into the applicant's claim.
Reasons of the Immigration and Refugee Board (Refugee Protection Division)
[11] In a decision dated June 19, 2003, the Board determined that the applicant was neither a Convention refugee nor a person in need of protection within the meaning of IRPA.
[12] The basis of the Board's negative decision was its view that the applicant had not provided credible and trustworthy evidence in key areas of her claim, and that her testimony conflicted with documentary evidence on the events she had described. The Board disbelieved that the applicant had ever been mistreated, arrested or raped and stated that her allegations were fabricated for the purpose of making a refugee claim.
[13] With regard to the applicant's account of the student protest in April 2001 and her alleged arrest and detention, the Board did not believe that this incident had ever occurred or that the applicant was even a student in the Addis Ababa area at that point in time. These findings were based on the following:
1. The applicant's allegation that Amhara students were targeted by the
police was not corroborated by any of the U.S. State Department report, Human Rights Watch Reports, Amnesty International reports, news clippings or BBC reports. The Board reasoned that if Amhara students had actually been specifically targeted, it would have been reported by these comprehensive reports from disinterested expert sources.
2. It was implausible that the applicant would not know why the students
were demonstrating if, as she claimed, she lived and attended school in the Addis Ababa region and was in contact with students who were involved in the demonstrations.
3. The applicant's claim to have been detained for two months even though she had
not been involved in the demonstrations was implausible because the documentary evidence stated that most students were released after far shorter periods of detention and only detained longer if they could not post bail. The Board stated that the applicant was unable to explain why she felt it necessary to flee Ethiopia a year after her detention, when even the students who were actually involved in the demonstrations were charged with minor offences and released from detention.
4. It was implausible that the applicant would be able to count the number of trucks
and detainees taken to Shewa Robit after allegedly being arrested and beaten.
5. The applicant gave contradictory evidence about why she did not return to school
after being released from detention. She testified that she was barred from school, could not explain how she had learned of being barred and then later stated that she did not return out of fear of being arrested.
6. The Board disbelieved that the applicant was in hiding after the alleged detention,
based on a discrepancy in dates. The applicant testified that she was in jail for two months starting in April 2001, then was in hiding with her father's friend for one month or six weeks, and then remained in Addis Ababa for three or four days before leaving for Canada. By this calculation, the applicant would have left for Canada in August 2001, when her PIF states that she left for Canada a year later in August 2002. After extensive questioning, the applicant then stated that she was in hiding with her father's friend for one year, not one month. The Board concluded that the applicant was embellishing her story and had not been in hiding before leaving Ethiopia in August 2002. The Board also did not believe that the discrepancy in dates could be accounted for by differences between the Ethiopian and Western calendars.
[14] Since the Board disbelieved that the applicant was a student in Addis Ababa at the time of the student protest or that she was arrested, it also disbelieved that she had been raped while in detention. The Board's conclusion that the applicant was not raped was further supported by a number of contradictions in the applicant's evidence. The inconsistencies noted by the Board are as follows:
1. The Port of Entry notes stated that the applicant was arrested, beaten, raped and then sent to Shewa Robit prison camp, while the applicant's testimony was that the beatings and rapes occurring while at the Shewa Robit prison camp.
2. In her original PIF narrative, the applicant described beatings and lack of food at Shewa Robit but does not mention being raped except in a brief sentence in the fourth paragraph. The applicant's amended PIF narrative, however, contains details about the rape allegation.
3. The applicant's amended PIF narrative stated "there was one person who kept coming for me and raped me", but she testified that "two people each time" or "maybe three people raped me" and when asked who raped her, the applicant stated soldiers, guardians and police were the ones who had. When asked about these contradictions, the applicant stated that she was confused and that she was perhaps mistaken. The Board did not find these explanations satisfactory.
4. The Board did not believe the applicant's allegation that all detainees in her group were raped, since the extensive documentary evidence about the treatment of prisoners made no mention of it, and the U.S. Department of State report for 2001 stated that there were no reports of prison guards raping female prisoners. There was a report of one guard being sentenced to a lengthy prison sentence for raping a female prisoner, and the reports of military members committing rape had no bearing on this situation.
[15] Based on the documentary evidence that Amharas play a dominant role in Ethiopia, are not arbitrarily arrested, and are represented in the government by the Amhara National Democratic Movement (which won 134 seats in the May 2000 elections and is associated with the ruling party), the Board did not believe the applicant's claim that she was targeted by the police simply because she is Amhara.
[16] The Board commented that it examined the chairperson's gender guidelines, but still concluded that the applicant had not provided credible or trustworthy evidence and her evidence was contradicted by the documentary evidence.
[17] For all of these reasons, the Board concluded that the applicant was neither a Convention refugee nor a person in need of protection.
[18] This is the judicial review of the Board's decision
Applicant's Submissions
[19] The applicant submitted that the Board ignored or misconstrued evidence before it, which led it to make erroneous findings of fact. Contrary to the Board's finding that there was no evidence that Amhara students were targeted during the April 2001 demonstrations, the applicant pointed to documentary evidence which indicated that the All Amhara People's Organization was accused of organizing the demonstration and therefore the police clamped down on Amharas. The applicant alleged that this evidence was ignored by the Board.
[20] The applicant denied that it is implausible for her not to have known the reasons for the April 2001 student demonstration. She stated that her testimony on this issue was direct and truthful and she offered the reasonable explanation that the riots started with university students and only later spread to high schools, so she did not have a chance to inquire.
[21] The applicant submitted that the documentary reports that some students were still being held at the end of 2001 confirm the plausibility of her being held for two months, and that the Board's contrary conclusion is without basis in the evidence.
[22] The applicant submitted that it was an error for the Board to conclude that student detainees were not raped simply because it was not reported in the documentary evidence. In the applicant's view, Ethiopians view rape as shameful and would not discuss it openly out of fear of its social stigma. Furthermore, the applicant stated that it goes without saying that security forces in Ethiopia rape young women who are in their detention for considerable periods of time. The applicant also alleged that the Board ignored references in the documentary materials to how rampant rape is in Ethiopia, and failed to apply the chairperson's gender guidelines.
[23] The applicant submitted that new evidence contained in her affidavit sworn June 11, 2004 regarding the extent of her injuries suffered in detention, including a head wound that has not yet fully healed, is admissible as fresh evidence and supported the events described in her PIF narrative.
[24] The applicant submitted that the translator present at the Board's hearing was incompetent or confused regarding the conversion of the Ethiopian calendar to the Western calendar, and this contributed to the confusion about the timing of the applicant's period of being in hiding before leaving Ethiopia. The applicant further submitted that the Board erred in failing to inquire about the competence of the translator, given his obvious confusion regarding date conversion. Given the difficulty in translating dates and the overall degree of confusion regarding the applicant's evidence on this point, it is argued that the Board erred in drawing negative credibility inferences based on inconsistencies in timing.
[25] The applicant submitted that her confusion regarding dates stems from her lack of education and that English is not her first language.
[26] Lastly, the applicant submitted that her right to natural justice was breached and she did not receive a fair hearing into her refugee claim. The applicant asked this Court to intervene and send her case back to the Board for re-determination.
Respondent's Submissions
[27] The respondent submitted that the standard of review of the Board's negative credibility determination is patent unreasonableness.
[28] The respondent submitted that Board's implausibility findings which are challenged by the applicant were reasonable, relate to issues which are central to the claim and are consistent with the documentary evidence describing the student riots of April 2001.
[29] First, the respondent stated that it was open to the Board to find it implausible that Amhara students were targeted for arrest, given the lack of reference to any targeting in the documentary evidence. Contrary to the applicant's argument, the respondent submitted that the Board did consider the evidence that the All Amharic People's Organization was suspected of organizing the riots but did not consider this evidence of targeting.
[30] Second, the respondent argued that it was reasonable for the Board to find it implausible that the applicant would not know the reasons for the riots if she actually lived in the Addis Ababa area. The respondent pointed out that the Board is entitled to make findings based on common sense and rationality, and on that basis conclude that it is implausible that a high school student would not know more of a significant event in her city.
[31] Third, the respondent stated that it was reasonable for the Board to find it implausible that the applicant had been detained for two months when those actually involved in the demonstrations were released sooner. Furthermore, the respondent submitted that the applicant had never explained a key aspect of her claim, namely, why a year after her release she still feared the police and fled the country.
[32] Fourth, the respondent submitted that it was open to the Board to conclude that the applicant had not been raped while in detention. It is submitted that the applicant's explanation that students would not have admitted being raped due to social stigma and shame is not supported by the substance of the documentary evidence, which does refer to rape and domestic abuse being a widespread problem in Ethiopia. Furthermore, the respondent argued that the Board did consider the documentary evidence of rape by the authorities, but concluded that there was no connection between those events and the student riots. This inference, in the respondent's view, was a reasonable one for the Board to draw.
[33] The respondent submitted that the Board properly relied upon contradictions in the applicant's evidence to conclude that she was not arrested nor was she raped. Any confusion about the conversion of Ethiopian calendar dates to Western calendar dates is insufficient, in the respondent's view, to account for the applicant's inconsistent evidence about the time she allegedly spent in hiding after being released from prison. Furthermore, the applicant's evidence was contradictory regarding when she was raped, by how many men, and the identity of the alleged rapists. The respondent submitted that these findings are not patently unreasonable.
[34] The respondent noted the applicant's allegation of incompetent translation during the Board hearing, but argued such an allegation, by itself, is insufficient to quash the Board's decision.
[35] The respondent requested that this application for judicial review be dismissed.
Issues
[36] The issues as stated by the applicant are:
1. Did the tribunal base its decision on erroneous findings of fact without regard to the material before it, misconstrue the evidence and make patently unreasonable findings?
2. Did the tribunal err in law and deny the applicant natural justice by not reviewing and considering the entire evidence before it?
Relevant Statutory Provisions
[37] Section 96 and subsection 97(1) of the IRPA define "Convention refugee" and "person in need of protection" as follows:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
. . .
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
. . .
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
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(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
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a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
Analysis and Decision
[38] Preliminary Issue: Standard of Review
The applicable standard of review to be applied in this case is patent unreasonableness which means that the Board's credibility findings must be supported by the evidence and not made capriciously or based on erroneous findings of fact.
[39] Issue 1
Did the tribunal base its decision on erroneous findings of fact without regard to the material before it, misconstrue the evidence and make patently unreasonable findings?
The applicant argued that the Board erred by finding the following aspects of her evidence implausible:
1. That Amhara students were targeted for arrest after the student demonstrations;
2. That she would not know the reasons for the riots being organized;
3. That the applicant had been detained for two months even though she had not been involved in the protests; and
4. That she had been raped.
[40] Amhara students targeted
The Board in its decision stated that if the Amhara students had been targeted specifically, then some reference to this should appear in the documentary evidence. There was no such specific reference in the reports. It was stated in Adu v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 114 (C.A.) (QL) that the presumption that a claimant's sworn testimony is true can be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention. I am of the view that the Board's decision on this point was one that was reasonably open to it.
[41] The applicant did not know the reason for the riots
The Board found that it was implausible that the applicant would not have talked to other students about the demonstrations and hence, know the reason for the demonstrations. Again, I would consider this to be a conclusion that was reasonably open to the Board.
[42] Two months detention
The Board did not accept that the applicant had been arrested during a police raid at a school during the April 2001 student demonstration. The Board based this on inconsistencies in her evidence relating to when she was arrested and when she went to Canada. There was confusion as to whether it was April 2001 or April 2002 when she was allegedly arrested. The time frames did not fit and the Board did not accept that the difference was due to confusion about the Ethiopian calendar. The Board addressed the reasons for coming to its conclusion and I find that the conclusion was one that was open to the Board to make.
[43] The alleged rapes
The Board found that the applicant was not arrested or raped. The Board noted that the applicant stated in her port of entry notes that she was beaten and raped and then sent to a prison camp. This suggests that she was raped prior to going to the camp. The Board noted that the applicant's descriptions of rapes were different in the first PIF, the amended PIF and in her oral testimony. For example, there were differences in the number of people who raped her each time. My review of the Board's decision on this point leads me to the conclusion that the decision of the Board was reasonably open to it to make. This is supported by the fact that despite the applicant stating in her amended PIF that all the detainees in her group were raped, no mention is made of this in the documentary evidence.
[44] Issue 2
Did the tribunal err in law and deny the applicant natural justice by not reviewing and considering the entire evidence before it?
The applicant submitted that her hearing was not conducted fairly in that the interpreter was not able to translate properly concerning the Ethiopian calendar differences. I have reviewed the transcript of the hearing and I cannot conclude that the interpretation resulted in a denial of natural justice for the applicant. The applicant was unable to give her answers to the questions posed to her. The Board found that the confusion about the Ethiopian calendar could not clarify the dates of her alleged arrest and detention. I am of the view that the Board's decision was reasonable in this respect.
[45] The applicant also stated that the gender guidelines were not applied, but a review of the Board's decision showed that it did consider the gender guidelines but stated that the applicant did not provide reliable or trustworthy evidence, and her allegations were also at variance with the documentary evidence. The board's decision in this respect is one that was reasonably open to it to make.
[46] I am of the view that the Board did review and consider the evidence before it.
[47] The application for judicial review is therefore dismissed.
[48] Neither party wished to submit a serious question of general importance for my consideration for certification.
ORDER
[49] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
January 20, 2005
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5669-03
STYLE OF CAUSE: ZEWDE BEYENE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 9, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Mr. Isaac Owusu-Sechere
FOR APPLICANT
Ms. Marie Crowley
FOR RESPONDENT
SOLICITORS OF RECORD:
Isaac Owusu-Sechere
Ottawa, Ontario
FOR APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT