Date: 20020614
Docket: IMM-2043-01
Neutral citation: 2002 FCT 679
Ottawa, Ontario, this 14th day of June, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
BETIEL GEBREAB
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated March 20, 2001, wherein the Board determined that the applicant is not a Convention refugee.
Background
[2] The applicant, Betiel Gebreab is a citizen of Eritrea.
[3] The applicant's Convention refugee claim is that she fears persecution in Eritrea based on her membership in the Jehovah's Witness religion. The applicant claims to have attended a Jehovah's Witness church since approximately 1980.
[4] The applicant alleges that on July 3, 1993, security forces entered her home and beat the applicant and her mother. The applicant alleges that on July 12, 1994, the applicant and her mother were arrested and held until July 26, 1994. The applicant alleges that in January 1995, she and six other Jehovah's Witnesses were arrested during a Bible study session and held for seven days.
[5] The applicant left Eritrea in 1995. The applicant remained in Kenya with no legal status from September, 1995 to October, 1998. The applicant came to Canada in 1998 and claimed Convention refugee status.
[6] At the Convention refugee hearing, witnesses testified that they knew the applicant and her family in Eritrea, and referred to her worshipping at the Jehovah's Witness meeting place in the Mai Jah Jah neighbourhood in Asmara, Eritrea. The applicant also entered evidence that she was attending a Jehovah's Witness church in Canada.
[7] In the decision, the Board explained the main issue as follows:
Central to this claim is the claimant's alleged affiliation with the Jehovah's Witness Church for which she alleges a well-founded fear of persecution from the Eritrean government. There is ample documentation before the panel of the Eritrean government's persecution of members of Jehovah's Witness Church [footnote omitted]. Thus the question for the panel is to determine whether the claimant's membership in that Church is credible or not.
[8] The Board found the applicant's testimony on key aspects of her claim to not be credible. This is the judicial review of the Board's decision.
Applicant's Submissions
[9] The applicant submits that there is ample evidence of persecution of Jehovah's Witnesses by the government of Eritrea, and that the only issue before the Board was the credibility of the applicant.
[10] The applicant submits that the Board held that the applicant's attendance in the Jehovah's Witness church in Canada was corroborated and was accepted as credible.
[11] The applicant submits that the Board misconstrued the applicant's evidence about the place of worship she attended in Eritrea. The applicant submits she said she worshipped in Asmara, and when asked "where in Asmara" she said "Mai Jah Jah". The applicant submits she was not asked any other questions about the name of the congregation or if this place of worship had a different name.
[12] The applicant submits that the applicant was never asked whether her Asmara congregation had any other name or "official" name so it was without regard to the evidence before it that the Board found that the claimant had "completely forgotten its official name."
[13] The applicant submits that the Board failed to comment on the second witness who testified and by failing to consider this evidence, the Board erred in law.
[14] The applicant submits that the inferences drawn by the Board with respect to the testimony of a witness was unreasonable. The applicant submits that the evidence of the witness can only lead to a conclusion that the applicant was a member of the Jehovah's Witness congregation in Eritrea.
[15] The applicant submits that she is not a theologian, and that there is no evidence that the persecution in Eritrea is limited to theologians or the most devout adherents to the Jehovah's Witness religion.
[16] The applicant submits that the Board erred in finding that the applicant gave vague and evasive answers and showed weak knowledge of her religion. The applicant submits that the Board was wrong to state that her answers to questions about her faith "were limited to vague statements such as having to serve and love God and help others."
[17] The applicant submits that the applicant provided specific accurate information about her faith and practices, which shows a knowledge of both doctrine and a very practical and homely difference in the clothing that one can wear. The applicant submits that this evidence is entirely consistent with what one would expect from a young, unsophisticated person such as the applicant.
[18] The applicant submits that the Board took into account erroneous considerations and the decision should be set aside.
Respondent's Submissions
[19] The respondent submits that the applicant was found not to be a Convention refugee because of a number of inconsistencies, contradictions and implausibilities found in her evidence.
[20] The respondent submits that the Board's concern with the applicant's evidence regarding the name of the church she allegedly attended in Eritrea was reasonable on the evidence before it.
[21] The respondent submits that the applicant was surprised that she had not given the proper name of the church and said she had probably forgotten the name and had to be reminded of it. The respondent submits that it was reasonably open to the Board to find this explanation unsatisfactory in light of her allegation that she was an active member of the church for 17 years.
[22] The respondent submits that the Board is not obliged to refer to all of the evidence that was presented at the hearing.
[23] The respondent submits that the fact the written reasons do not summarize or make reference to all of the evidence that was introduced does not constitute a reviewable error of law.
[24] The respondent submits that the Board was concerned that a witness joined the church in Eritrea seven years after the applicant but had not recalled seeing her at the time. The respondent submits that this contradicted the applicant's evidence that she had been an active participant in the church since 1980, seven years before the witness first attended church. The respondent submits that the contradictions between the witness' and the applicant's evidence reinforced the Board's view that the applicant was not a member of the church in Eritrea. The respondent submits that this conclusion was reasonably open to the Board on the evidence before it.
[25] The respondent submits that the Board is entitled to decide adversely with respect to a claimant's credibility on the basis of contradictions and inconsistencies in the claimant's story and between the claimant's story and other evidence before the Board.
[26] The respondent submits that the Board can make negative decision on a person's credibility as long as the tribunal gives reasons for so doing in "clear and unmistakable terms" (see Hilo v.Canada (Minister of Employment and Immigration) (1991), 15 Imm.L.R. (2d) 199 (F.C.A.)).
[27] The respondent submits that the Board provided "clear and unmistakable" reasons for finding the applicant's evidence not credible.
[28] The respondent submits that this Court should not interfere with the Board's assessment of credibility where an oral hearing has been held unless the Court is satisfied that the Board based its conclusions on irrelevant consideration or that it ignored evidence. The respondent submits that the conclusions of the Board were reasonably open to it on the record.
[29] Issue
Did the Board commit reviewable errors in finding that evidence given by the applicant was not credible?
Relevant Statutory Provisions and Regulations
[30] The Immigration Act, R.S.C. 1985, c. I-2, as amended, defines a Convention refugee as follows:
|
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
« réfugié au sens de la Convention » Toute personne_:
a) 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_:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
Analysis and Decision
[31] Issue
Did the Board commit reviewable errors in finding that evidence given by the applicant was not credible?
I only propose to deal with one aspect of the findings of the Board. The Board found that the applicant was not a Jehovah's Witness in Eritrea. It did so by finding that the applicant was not a credible witness in this respect. The decision of the Board reads in part as follows:
When the claimant was questioned about the witness, Nezrawi Ghebrelelassi, she testified that she had met him through their Church. Although the witness corroborated the claimant's testimony, he stated that he started attending the Church at age five in 1987 and did not remember seeing her then. This is in contradiction with the claimant's own testimony in which she stated that she joined the Church at age seven which would have been in 1980. Even if we were to make allowances for the faulty memory of the witness as a five-year-old, he did, however, state that he, unlike the claimant, was strongly rooted in the religion before she ever was. The panel finds that these contradictions between the claimant and her witness underscore the fact that she was not a Jehovah's Witness in Eritrea.
[32] The transcript of the hearing shows the following statements by the witness, Nezrawi Ghebrelelassi, at page 198 of the Tribunal Record:
COUNSEL And you had a - you met - sorry, let me just backtrack. What was - you met her in where you used to gather, Maijahjah?
WITNESS Right.
COUNSEL And that congregation of Jehovah's Witnesses, what were they known as? What were you known as?
WITNESS (Speaking to the Interpreter).
COUNSEL The group, what were you known as?
CLAIMANT The Jehovah Witnesses?
COUNSEL Okay. How did you first meet the claimant, Betiel? How did you first know her?
WITNESS In Canada?
COUNSEL In Eritrea.
WITNESS In Eritrea?
COUNSEL Yeah.
WITNESS Once again in the meeting place.
COUNSEL The meeting place. Okay, you already told me that. So, did you know her family?
And at pages 205 to 206 of the Tribunal Record:
RCO And Betiel wasn't there?
WITNESS No, none that I remember in ‘87. I know myself was going there personally. But I met her in the church, she used to go there.
[33] In Lahpai v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 232 (QL); 2001 FCT 88 at paragraph 21, Dubé J. wrote:
The Board is assumed to have considered all the documents placed before it and does not always have to refer specifically to them in its decision, but, when the evidence is omitted, not only from the decision, but from consideration at the hearing, and such evidence squarely contradicts the findings of the Board on a central issue, the latter must clearly refer to that material and state why it did not rely on it. Understandably, the Board may be sceptical about the evidential value of a psychologist's letter suggesting a second assessment, but in a decision released so long after the hearing, it would have been preferable to make at least a passing reference to it. More importantly, the failure to deal with the other three documents which flagrantly contradict the conclusions of the Board on the central issue of the applicant's involvement in the student unrest constitutes an error of law.
There is no doubt that a Board need not refer to every piece of evidence in its decision, but it must make reference to evidence that is contrary to its finding and explain why it did not accept this evidence.
[34] The Board did not do so in this case and in fact, the Board in the part of its decision quoted above, states that the testimony of the witness, Ghebrelelassi "corroborated" the applicant's testimony. Black's Law Dictionary (Bryan A. Garner, Black's Law Dictionary, 7th ed. (St. Paul, Minn.: West Group, 1999)), defines "corroborate" as follows:
corroborate (ke-rob-e-rayt), vb. To strengthen or confirm; to make more certain < the witness corroborated the plaintiff's testimony > .
[35] It seems to me that in light of the Board's statements, it is impossible to know how the Board dealt with the evidence of the witness, Ghebrelelassi. I am of the view that the Board made a reviewable error in this respect.
[36] As this error alone will cause the Board's decision to be set aside, I need not deal with the remaining aspects that were argued.
[37] The application for judicial review is allowed.
[38] Neither party wished to submit a serious question of general importance for certification.
ORDER
[39] IT IS ORDERED that the application for judicial review is allowed and the matter shall be referred to a different panel of the Board for reconsideration.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
June 14, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2043-01
STYLE OF CAUSE: BETIEL GEBREAB
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, June 5, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Paul VanderVennen
FOR APPLICANT
Greg George
FOR RESPONDENT
SOLICITORS OF RECORD:
VanderVennen Lehrer
45 St. Nicholas Street
Toronto, Ontario
M4Y 1W6
FOR APPLICANT
Department of Justice
Suite 3400, The Exchange Tower, Box 36
130 King Street West
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020614
Docket: IMM-2043-01
BETWEEN:
BETIEL GEBREAB
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER