Ottawa, Ontario, April 27, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
TEWODROS NICODEMUS JOSEPH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant, Tewodros Joseph, was unsuccessful in his claim to refugee status and he now seeks to set aside the decision of the Immigration and Refugee Board (Board) whereby that claim was denied.
Background
[2] The Applicant came to Canada from Ethiopia and sought protection as a member of an opposition political party, the All Ethiopia Unity Party (AEUP, formerly known as the AAPO). He also alleged that he was at risk as a member of an ethnic minority, specifically as an Amharic national.
[3] The Applicant claimed that he and other members of his family were politically active. He testified that he joined the AAPO in 2002 and became involved in many aspects of its political work. That activity led to two arrests and periods of detention which the Applicant quite graphically described in his testimony. On one occasion in late 2003, he asserted that he was arrested at home, beaten and then held in detention for seven days. He claimed that while in detention on this first occasion he was interrogated about his political involvement but, after the first day, he was essentially left alone. Upon release, he said he was taken before the officer in charge and warned not to be further involved in politics.
[4] The Applicant also testified that he had been struck in the face during the initial arrest and suffered a loose tooth. In the result, he went to a local dental clinic and was told that the tooth would not come out. He said that the tooth required no treatment.
[5] The Applicant's second arrest was in May of 2004 and resulted from his involvement in a political demonstration in Addis Ababa. He estimated that more than 500 people had been involved and that he and several other demonstrators were arrested. Once again, he was arrested at home, handcuffed and taken by military officers to the Seventh Police Station where he was held for three days. From there, he was transferred to the Central Police Station and held for another four weeks. During that time, he said he was beaten on five occasions to the point where he thought his hand was broken. He recorded in his Personal Information Form (PIF) that he had difficulty lifting his arms and he described his body as "black and bruised" and his arms were swollen. He said he had been beaten, slapped and kicked during the interrogations. He also said that he felt hopeless and worried that he would be made "to disappear". Ultimately, he was released, taken before a judge and ordered not to participate in political activities.
[6] Upon release, the Applicant did not seek medical treatment but decided to flee the country. He sought assistance from friends and family including a Somalian who had been a business customer. He made his way to Canada through Kenya. Since coming to Canada, he has continued with his political work through membership in the All Ethiopia Unity Cultural and Relief Organization (AEUCRO) in Toronto. That organization provided a letter to the Board confirming the Applicant's membership in the AEUP while he lived in Ethiopia.
Board Decision
[7] The Board did not believe much of the Applicant's testimony and found that he lacked credibility in pivotal areas of his evidence. It found the Applicant's failure to seek medical treatment and the absence of ongoing symptoms to be implausible and out of keeping with the severity of the injuries he described. The Board, therefore, found that he had not been beaten and tortured as he had alleged.
[8] The Board found no objective evidence to substantiate the Applicant's claim of membership in the AEUP and dismissed the membership letter from the AEUCRO as essentially self-generated. The Board held that the Applicant had failed to prove that he was politically active in Ethiopia.
[9] The Board also found the Applicant's evidence about his Ethiopian family and the destruction of his home to be inconsistent and untrustworthy. Specifically, it determined that his "evidence" of not contacting his family in Ethiopia was implausible.
[10] Finally, the Board found inconsistencies in the Applicant's testimony about escaping from Ethiopia and, in particular, with respect to the identity of those who had assisted in that process.
Analysis
[11] The standard of review in a case which turns on credibility findings is patent unreasonableness and the obligation to treat such findings with great deference is well established in caselaw: see Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, (1993)160 N.R. 315 (F.C.A) at page 316. Even when the Board makes obvious non-material errors in its treatment of evidence, its decision may stand up to judicial review; however, where the Board ignores or misconstrues important evidence, its decision can be successfully challenged.
[12] One of the critical findings of the Board was that the Applicant was not a member of the AEUP. It did not believe his evidence about his political involvement and it dismissed the letter from the AEUCRO confirming his membership.
[13] The Board's negative treatment of the AEUCRO letter was based upon its conclusion that the sole source of the membership information was the Applicant himself and that no independent verification of membership had been carried out. The Board described the Applicant's evidence on this point as follows:
The only evidence provided with respect to his membership in the AEUP was a letter from the All Ethiopia Unity Cultural and Relief Organization in Toronto. The writer therein indicates that Mr. Joseph was a member of the AEUP in Ethiopia. When asked how the writer would have obtained that information, the claimant replied that he told the writer that he was a member of the party.
[14] The Applicant's actual evidence, however, alluded to other research carried out by AEUCRO to verify what he had told them. It was, therefore, not accurate for the Board to conclude that the Applicant had confirmed that he was the sole source of the membership information conveyed in the AEUCRO letter. This was a key error because the Board used it to undermine the value of the AEUCRO letter as independent corroboration of the Applicant's political involvement in Ethiopia.
[15] The Applicant made a second argument concerning the AEUCRO letter. After the Board's decision was rendered, it came to light that the standard disclosure package concerning Ethiopia relied upon in this case was somewhat stale. It did not include a Response to Information Request commissioned by the Refugee Division several months before the hearing which confirmed the practices of AEUCRO to verify AEUP membership. That report stated:
In a 26 May 2004 telephone interview, the president of the AEUCRO explained that the Toronto office is the only supporting organization in Canada that verifies claims of membership in the new AEUP and issues membership letters. In order to verify membership, the Toronto office contacts the Addis Ababa office of the AEUP (AEUCRO 26 May, 2004). The representative of the AEUP in Ethiopia agreed that supporting organizations such as the AEUCRO often contact the headquarters to confirm membership (31 May 2004).
[16] The Applicant argued that the Board had a fairness obligation to search out this information and that had it done so it could not have rejected the AEUCRO letter as unreliable. The Applicant relies upon the decision of Justice Max Teitelbaum in Omar v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 463 and upon the decision by Justice Andrew MacKay in Chen v. Canada(Minister of Citizenship and Immigration), [2001] F.C. J. No. 1787, 2001 FCT 1312 to substantiate this point. The Respondent distinguishes Omar and Chen and relies instead upon the decision of Justice McKeown in Tambwe-Lubemba v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 511 which was later confirmed by the Federal Court of Appeal in Tambwe-Lubemba v. Canada(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1874. In the latter decision, the following passage at para. 5 dealt with the issue of after-discovered evidence:
The second issue is whether the Board member was under a continuing obligation, after the conclusion of the hearing and before she signed her written reasons, to consider documents that were not filed at the hearing but which had come into the possession of the Refugee Division in the meantime. There is no evidence in the case at hand that the Board member ever saw the document at issue prior to signing her written reasons. Again we endorse the reasons for judgment of Mr. Justice McKeown and find that there was no such continuing obligation on the Board member.
[17] On this point, I believe the Respondent is correct. The Omar and Chen decisions are exceptions to the general rule as set out in Tambwe-Lubemba, above. Omar involved documents that were in the possession of the Refugee Division but that were otherwise not publicly accessible. Chen was a situation where the Board relied upon a stale report that had been replaced by contradictory information created in response to a request for information from Board members. Here, however, the subject report was available to the Applicant but was simply not found or tendered in evidence. I do not believe the Board had any legal duty to search it out, although a better practice in cases like this one is to ensure that the most current information available be placed into the record to avoid problems of this sort.
[18] One of the Board's key implausibility findings involved its treatment of the evidence of the Applicant's injuries and his failure to seek medical treatment after his alleged second release from detention. The Board found the failure to obtain treatment to be implausible in light of the Applicant's descriptions of his injuries and it did not believe that he would have made a complete and symptom-free recovery.
[19] The Applicant argues that the Board went too far on these points by venturing into an area of expertise where it had no right to draw an inference and he relies upon Iantbelidze v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 1243, 2002 FCT 932 and Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444, (1989) 99 N.R.168 (F.C.A.). The Respondent contends that these findings are not medical in nature but merely the application of common sense by the Board.
[20] While the Board's finding of implausibility concerning the Applicant's failure to seek medical treatment comes close to the line of drawing a medical opinion without any evidence to support it, I do not believe that it is patently unreasonable. On the other hand, the Board's conclusion that the Applicant should not be believed because he said he had no lingering medical symptoms is well beyond anything the Board could reasonably decide without medical evidence to support it. At most, the Applicant described soft tissue injuries which would not support any inference that symptoms would likely have persisted.
[21] There are a few other questionable evidentiary findings made by the Board which, by themselves, might not be material but when added to the more significant errors noted above represent an added basis for review. For example, the Board attributed to the Applicant - with considerable scepticism - that he had failed to contact his family in Ethiopia since leaving there. His actual evidence was that he had spoken by telephone with his parents about his situation and knew that this information would have been conveyed to his wife. He also testified that he was reluctant to directly contact his wife because of a fear of possible repercussions. The Board made no mention of this explanation.
[22] The Board interpreted the Applicant's evidence that he had suffered "severe tooth damage" during one of the beatings but wondered why he required no dental treatment. The Applicant's actual evidence was that one tooth had been loosened and that the dentist later told him that he would not lose the tooth. This evidence was plausible and ought to have given the Board no cause for concern.
[23] The Board expressed concern about the Applicant's evidence that his house in Ethiopia had been demolished and it questioned how he would have known this. Again, the Board seems to have misinterpreted the Applicant's evidence which was that the entire area where his house had been situated had been taken down for redevelopment and that this information was made known to him through contacts in Toronto with AEUCRO. This evidence was described as untrustworthy, but that characterization appears unwarranted in the face of the Applicant's actual evidence.
Conclusion
[24] This is a case where the Board repeatedly misinterpreted the Applicant's evidence or ignored evidence which contradicted its findings. I do not mean to suggest that there were no problems with some aspects of the Applicant's testimony because clearly there were some. But the Board's errors were sufficiently serious and cumulative that its decision cannot stand because I cannot "be sure that, if the Board had correctly appreciated the facts, it would necessarily have reached the same conclusions": see Moagi v. Canada(Minister of Employment and Immigration), [1986] F.C.J. No. 326, (1986) 69 N.R. 229 (F.C.A.). In the result, I will remit this matter for a re-determination by a differently constituted Board.
[25] Neither party proposed a certified question and no question will be certified.
JUDGMENT
THIS COURT ORDERS that this matter be remitted for re-determination on the merits by a differently constituted Board.
" R. L. Barnes "
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3791-05
STYLE OF CAUSE: TEWODROS NICODEMUS JOSEPH
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 18, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: Justice Barnes
DATED: April 26, 2006
APPEARANCES:
Mr. Micheal Crane for the Applicant
Mr. Jeremiah Eastman for the Respondent
SOLICITORS OF RECORD:
Micheal Crane for the Applicant
Barristers & Solicitors
Toronto, Ontario
DEPUTY ATTORNEY GENERAL OF CANADA for the Respondent
Department of Justice
Toronto, Ontario