Date: 20040715
Docket: IMM-3640-03
Citation: 2004 FC 997
BETWEEN:
TAMERAT ALEMU,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] Mr. Alemu, an Ethiopian of Oromo ethnicity, has been living in South Africa with temporary asylum status since 1997. A group of five Canadian citizens are sponsoring his application for a permanent resident visa as a member of the Convention refugee abroad class or as a member of the humanitarian-protected persons abroad designated class.
[2] Mr. Alemu applied for his visa in 1999, but was refused. On December 12, 2000, Mr. Justice Blanchard allowed an application for judicial review of that decision, on consent, and Mr. Alemu was interviewed again in April, 2001. His application was again refused and he seeks judicial review of the visa officer's negative decision dated February 25, 2003, wherein the officer determined that: (a) Mr. Alemu does not meet the definition of a Convention refugee or of a member of the humanitarian designated class, and (b) there are reasonable grounds to believe that he is a member of the inadmissible class of persons described in subsection 34(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[3] The Minister, prior to the hearing of the judicial review application, applied under section 87 of IRPA for the non-disclosure of certain information considered and relied upon by the officer in making his determination. The section 87 application was heard on June 21, 2004, and the application for judicial review was heard on June 24, 2004. These reasons address both the Minister's application under section 87 of IRPA and Mr. Alemu's application for judicial review of the visa officer's determinations with respect to both inclusion and exclusion.
BACKGROUND
[4] In his original application, Mr. Alemu claimed that he was a member of the Oromo Liberation Front (OLF) when the movement was legal and a supporter of it after it became illegal. He stated that he participated in meetings, distributed literature and collected fees for the OLF in his area but that he did not participate in the military wing or in any violence. He was allegedly arrested and tortured for four months and, upon release, went into hiding in Addis Ababa from 1992-1994. He then took a technical course and obtained employment but he was forced to quit his job when an Oromo friend at work was arrested. A warrant was issued for his arrest and he fled to Kenya. He claimed that he could not return to Ethiopia and that Oromos in South Africa are harassed by the Ethiopian embassy.
[5] In his affidavit in support of the application for leave to apply for judicial review with respect to the first refusal, Mr. Alemu, in large part, repeated the allegations in his application. However, while he acknowledged that he was sympathetic to the movement, he denied that he was an active supporter of the OLF from 1992 onward. Additionally, he stated that he had no political affiliation in South Africa. He asserted that there had been interpretation difficulties at his first interview and that the interpreter had embellished and distorted his statements in a misguided effort to bolster his claim.
[6] At the second interview in April, 2001, Mr. Alemu claimed that he had never been a member of the OLF. Rather, he attended meetings and organized donations to assist OLF soldiers only when the OLF was part of the government. He stated that the money he collected for them constituted, not fees, but donations to help the sick OLF soldiers and that the pamphlets he distributed were not opposition pamphlets, but were related to the fundraising and the coalition government. He claimed not to support the OLF's political aims. He denied that he was in hiding in Addis, that he attended OLF meetings there, and that the police in Ethiopia had a warrant for his arrest. He claimed that he left Ethiopia because of the harassment and because he feared arbitrary arrest and death. He also denied that he feared Ethiopian agents in South Africa. He additionally claimed to have an Amharic (not Oromo) father and three deceased brothers. These details were not contained in his original application.
[7] Not surprisingly, the visa officer found numerous inconsistencies in Mr. Alemu's statements at the first and second interviews, his supporting affidavit for his judicial review leave application and his 1999 application. The officer concluded that he could not rely on Mr. Alemu's evidence and that he was not convinced that Mr. Alemu was honest with him in describing why he felt compelled to leave Ethiopia. As a result, the visa officer was not satisfied that Mr. Alemu met the definition of a Convention refugee or of a member of the humanitarian designated class. He also concluded that there were reasonable grounds to believe that Mr. Alemu was inadmissible to Canada as a member of the OLF.
RELEVANT STATUTORY PROVISIONS
[8] The statutory provisions relevant to the section 87 application are attached to these reasons as Schedule "A". Those relevant to the judicial review application are attached as Schedule "B". Specific sections will be reproduced within these reasons as required for ease of reference and clarity.
SECTION 87 APPLICATION
[9] Section 11 of IRPA requires a foreign national to apply for a visa before entering Canada. The visa officer shall issue the visa if, following examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of IRPA. Subsection 87(1) of IRPA, among other things, provides that the Minister may, in a judicial review, apply to a judge for the non-disclosure of information that was considered by the visa officer in assessing the section 11 application. The procedure to be followed is, by virtue of subsection 87(2), the procedure provided for in section 78 of IRPA, subject to the exceptions noted therein along with "any modifications that the circumstances require". Section 87 provides:
| Immigration and Refugee Protection Act, S.C. 2001, c. 27
87. (1) The Minister may, in the course of a judicial review, make an application to the judge for the non-disclosure of any information with respect to information protected under subsection 86(1) or information considered under section 11, 112 or 115.
(2) Section 78, except for the provisions relating to the obligation to provide a summary and the time limit referred to in paragraph 78(d), applies to the determination of the application, with any modifications that the circumstances require.
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Loi sur l'immigration et la protection des réfugiés, S.C. 2001, ch. 27
87. (1) Le ministre peut, dans le cadre d'un contrôle judiciaire, demander au juge d'interdire la divulgation de tout renseignement protégé au titre du paragraphe 86(1) ou pris en compte dans le cadre des articles 11, 112 ou 115.
(2) L'article 78 s'applique à l'examen de la demande, avec les adaptations nécessaires, sauf quant à l'obligation de fournir un résumé et au délai.
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[10] Madam Justice Dawson in Gariev v. Canada (Minister of Citizenship and Immigration) 2004 FC 531 (Gariev) described the interplay between sections 11, 78 and 87 of IRPA. I concur with her comments, specifically those at paragraphs 6, 7 and 8:
The legislation provides that on an application made pursuant to section 87, the judge designated to hear the matter must insure the confidentiality of the information in question, so long as the judge is of the opinion that its disclosure would be "injurious to national security or to the safety of any person". For brevity, I shall use the phrase "injurious to national security or safety" in these reasons when referring to this provision.
The judge must deal with the application as informally and expeditiously as the circumstances and considerations of natural justice permit. The judge is obliged on the request of the Minister to hear all of the information which the Minister asserts cannot be disclosed in the absence of the affected foreign national and his or her counsel. If the judge is of the opinion that disclosure of the information would be injurious to national security or safety, an order will issue allowing the Minister's application. The information then forms part of the record before the Court on the application for judicial review, and is not disclosed to the applicant or his or her counsel.
If, however, the judge concludes that all or a portion of the information could be disclosed because such disclosure would not be injurious to national security or safety, the information is to be returned to the Minister. If this is done, such information does not form part of the record before the Court on the application for judicial review. Alternatively, the Minister may decide that he or she does not require the return of the information, in which case the information would be disclosed, and would form part of the public record before the Court.
[11] In this proceeding, pages 29-32, 43 and 44 had been removed from the tribunal record. Additionally, page 68 contained information that had been redacted from the computer assisted immigration processing system (CAIPS) notes. The Minister filed, on the public record, the motion for non-disclosure of that information along with a supporting affidavit confirming the visa officer's reliance upon the information in arriving at his decision and asserting the necessity of protecting the information from disclosure to the applicant, his counsel or the public. This affidavit referred to the existence of and reliance upon a "secret affidavit" wherein further justification regarding non-disclosure was to be provided. The Minister's motion record, excluding only the secret affidavit, was served and filed in accordance with the provisions of Rule 362 of the Federal Court Rules, 1998.
[12] The procedure followed in relation to the Minister's application accorded with that adopted by my colleagues in similar applications: Gariev, supra; Sogi v. Canada (Minister of Citizenship and Immigration)(2003), 34 Imm. L.R. (3d) 106 (F.C.) (Sogi) aff'd 2004 FCA 212 (F.C.A.); Andeel v. Canada (Minister of Citizenship and Immigration) (2003), 240 F.T.R. 1; 33 Imm. L.R. (3d) 36 (F.C.) (Andeel). On June 21st, counsel for both the Minister and the applicant appeared and made submissions in open court in relation to the section 87 application. Those submissions form part of the public record. Immediately following those submissions, the court rescheduled the hearing of the application for judicial review to June 24th, recessed, and proceeded immediately to the in camera hearing regarding the section 87 application in the presence of only counsel for the Minister and the Solicitor General, the affiant of the secret affidavit and the court registrar.
[13] In accordance with the practice of Justice Dawson described in Gariev, supra, court was opened by the registry officer in the normal manner. Formal submissions were made by counsel and were based solely on the evidentiary record before the court.
[14] In determining whether the disclosure of the confidential information would be injurious to national security or to the safety of any person, I relied upon the principles delineated in Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229; (1988), 53 D.L.R. (4th) 568 (F.C.T.D.) aff'd (1992) 140 N.R. 315; 88 D.L.R. (4th) 575 (F.C.A.) wherein Mr. Justice Addy stated at pages 578 and 579:
[...] in security matters, there is a requirement to not only protect the identity of human sources of information but to recognize that the following types of information might require to be protected with due regard of course to the administration of justice and more particularly to the openness of its proceedings: information pertaining to the identity of targets of the surveillance whether they be individuals or groups, the technical means and sources of surveillance, the methods of operation of the service, the identity of certain members of the service itself, the telecommunications and cypher systems and, at times, the very fact that a surveillance is being or is not being carried out. This means for instance that evidence, which of itself might not be of any particular use in actually identifying the threat, might nevertheless require to be protected if the mere divulging of the fact that C.S.I.S. is in possession of it would alert the targeted organization to the fact that it is in fact subject to electronic surveillance or to a wiretap or to a leak from some human source within the organization.
It is of some importance to realize that an "informed reader", that is, a
person who is both knowledgeable regarding security matters and is a
member of or associated with a group which constitutes a threat or a
potential threat to the security of Canada, will be quite familiar with the
minute details of its organization and of the ramifications of its operations
regarding which our security service might well be relatively uninformed.
As a result, such an informed reader may at times, by fitting a piece of
apparently innocuous information into the general picture which he has before
him, be in a position to arrive at some damaging deductions regarding the
investigation of a particular threat or of many other threats to national
security. He might, for instance, be in a position to determine one or more
of the following: (1) the duration, scope, intensity and degree of success
or of lack of success of an investigation; (2) the investigative techniques
of the Service; (3) the typographic and teleprinter systems employed by
C.S.I.S.; (4) internal security procedures; (5) the nature and content of other
classified documents; (6) the identities of service personnel or of other
persons involved in an investigation.
[15] After hearing counsel and reviewing the documents, I was satisfied that, with the exception of some of the redacted information contained in the CAIPS notes at page 68, the remaining information at pages 29-32, 43 and 44 of the tribunal record would, if disclosed, be injurious to national security or to the safety of any person. In relation to the redacted information at page 68 sought to be withheld, I determined that, since part of the information already appeared as part of the public record, the portion that had been previously disclosed should not be subject to a non-disclosure order.
[16] Consequently, I determined that the confidential information shall not be disclosed to the applicant, to the applicant's counsel, or to any member of the public, except to the extent of the disclosure of information found at page 15 of the applicant's record dated August 7, 2003. Counsel acknowledged that he could not seek non-disclosure of information that was already contained in and formed part of the public record. I also determined that the non-disclosed information may be relied on by the Minister and the court in the determination of the judicial review application.
[17] When the hearing of the application for judicial review resumed on June 24th, the applicant's counsel was informed of my conclusions and an order issued accordingly. The documents were added to the court file, but separately sealed, to be opened only by a judge designated by the Chief Justice in accordance with section 76 of IRPA. I additionally advised counsel for the applicant that the non-disclosed information did not contain any material relative to Mr. Alemu's membership in the OLF. Thus, the application for judicial review proceeded on the basis that the non-disclosed information formed part of the record on the application notwithstanding its non-disclosure to the applicant.
APPLICATION FOR JUDICIAL REVIEW
[18] Mr. Alemu identifies two issues:
(1) Did the visa officer improperly apply the definition of Convention refugee?
(2) Did the visa officer err in the application of paragraph 34(1)(f) of the IRPA?
[19] For the reasons that follow, I have concluded that the application for judicial review must be allowed on the basis that the analysis in relation to both the inclusion and the exclusion findings is deficient. While counsel for the respondent coherently articulated various potential options or explanations to support the visa officer's conclusions, those explanations, in my view, must somehow be found to exist, either expressly or impliedly, within the reasoning of the officer. Neither an applicant nor the court should be left in the dark, or left to speculate, as to why an application was refused. That said, I agree with the respondent - notwithstanding the applicant's argument to the contrary - that in order for the application for judicial review to be allowed, Mr. Alemu must succeed on both grounds.
[20] The visa officer determined that Mr. Alemu was not credible. As a general rule, the court is loath to interfere with credibility findings. In this case, there exists no basis upon which to even launch an attack on the officer's finding. He had more than ample justification for his credibility conclusion and his reasoning in this respect is unassailable. The officer noted not less than ten examples of contradictions or inconsistencies (in some instances there were further inconsistencies within the examples provided) in Mr. Alemu's statements that led to the determination. It is not necessary, for purposes of this analysis, to recite the various examples relied upon by the officer except to say that the officer displayed diligence in noting them, and as a result, concluded as follows:
[...] I am not satisfied with your explanations for the numerous discrepancies and inconsistencies and I do not believe that the information you have provided can be relied on with any certainty. Since I cannot rely on information that you gave to me about those important matters, I am not convinced that you were honest with me in describing why you felt compelled to flee Ethiopia. I am therefore not satisfied that you meet the definition of a Convention refugee or of a member of the Humanitarian Designated Class ...
[21] The difficulty with this conclusion is the lack of further analysis. There is a solid finding that Mr. Alemu is not credible but to ascertain what the officer factually concluded one must look to his finding regarding exclusion. In deciding that Mr. Alemu was inadmissible, the officer stated as follows:
Your application is also refused in that there are reasonable grounds to believe that you are a member of the inadmissible class of persons described in subsection 34(1) of the Immigration and Refugee Protection Act which states that a permanent resident or foreign national is inadmissible on security grounds for:
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
(b) engaging in or instigating the subversion by force of any government;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
In your case, there are reasonable grounds to believe that the Oromo Liberation Front (OLF) is a ground described in paragraph (f) above and that your membership in this group renders you inadmissible to Canada. you have previously admitted to being a member of the Oromo Liberation Front (OLF). The information you have provided indicates that you participated willingly and actively in this movement. Your second interview was an opportunity for you to further explain your connection to the OLF and to provide information regarding OLF activities. You stated then that you were not nor had you ever been a member nor a supporter of the OLF. I do not find you credible in this regard given your other statements and the discrepancies and inconsistencies noted above. This lack of credibility leads me to believe that you are attempting to minimize your connection to the Oromo Liberation Front (OLF) and that you were and may still be a member of the Oromo Liberation Front (OLF).
[22] There is no evidence, other than that provided by Mr. Alemu, regarding his membership in the OLF. That evidence was not believed and he was found not to meet the definition of a Convention refugee. Some of his evidence, however, was believed and accepted for the purpose of excluding him.
The Exclusion Determination
[23] In an effort to provide coherence, I will address the exclusion finding first. The standard of review is articulated in Harb v. Canada (Minister of Citizenship and Immigration) (2003), 302 N.R. 178 (F.C.A.). Insofar as these are findings of fact, they can be reviewed only if they are erroneous and made in a perverse or capricious manner or without regard for the material before the tribunal, i.e., if they are patently unreasonable. Insofar as they apply the law to the facts of the case, they can be reviewed only if they are unreasonable, and insofar as they interpret the meaning of the exclusion clause, the findings can be reviewed if they are erroneous.
[24] The visa officer concluded that "there are reasonable grounds to believe that the Oromo Liberation Front (OLF) is a group described in paragraph [34(1)] (f) above and that your membership in this group renders you inadmissible to Canada".
[25] Section 33 of IRPA is subtitled "Rules of Interpretation" and stipulates that the facts constituting inadmissibility include facts arising from omissions and include facts for which there are reasonable grounds to believe that they have occurred, are occurring, or may occur.
[26] The standard of proof required to establish "reasonable grounds" is more than a flimsy suspicion, but less than the civil balance of probabilities and, of course, a much lower threshold than the criminal standard of "beyond a reasonable doubt". It is a bona fide belief in a serious possibility based on credible evidence: Andeel, supra, citing Sabour v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 61 (T.D.); Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642 (F.C.T.D.) aff'd [2001] 2 F.C. 297 (C.A.). See also: Gariev, supra.
[27] The visa officer's reasons provide an adequate basis for his determination regarding Mr. Alemu's membership in the OLF. However, they do not provide any basis for his finding that there are reasonable grounds to believe that the OLF is a group described in paragraph 34(1)(f). In my view, it was incumbent upon the officer to provide some insight regarding his finding that the OLF was such a group.
[28] There are two issues to be addressed in this respect. The first requires an examination of paragraph 34(1)(f). That provision requires the existence of reasonable grounds to believe that the organization engages, has engaged, or will engage in acts referred to in paragraphs (a), (b), or (c) of subsection 34(1). Thus, regard must be had to those paragraphs. They provide:
| 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; (b) engaging in or instigating the subversion by force of any government; (c) engaging in terrorism;
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34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants_: a) être l'auteur d'actes d'espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s'entend au Canada; b) être l'instigateur ou l'auteur d'actes visant au renversement d'un gouvernement par la force; c) se livrer au terrorisme; |
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[29] In Qu v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 3 (C.A.) (Qu), the Court of Appeal set out the test for the comparable provision under the former and now repealed Immigration Act, R.S.C. 1985, c. I-2. There is no material difference between the wording of the old and the new provisions. Thus, the determinations of the Court of Appeal in the Qu case in relation to subparagraph 19(1)(f)(i) of the former Act are equally applicable to paragraph 34(1)(a) of IRPA. Chief Justice Richard, for the court, stated at paragraph 34:
In applying subparagraph 19(1)(f)(i) of the Immigration Act, the visa officer must examine firstly, the status of the organization, i.e., is it a democratic institution - institution démocratique with the meaning of the subparagraph, and secondly the conduct of the non-citizen, i.e., whether the non-citizen has engaged in acts of espionage or subversion against that democratic institution. The conduct of the non-citizen for the purpose of the subparagraph is only relevant if a determination has been made that the organization has the required status.
[30] It appears, from a review of the reasons in Qu, that paragraph 34(1)(a) requires a comparative test - between the democratic government, institution or process spied against or subverted - with democratic government as understood in Canada. The act of espionage or subversion should be specified to make the reasons intelligible. It seems to me that, if there is a test to be applied, it should be applied whenever a determination must be made.
[31] Paragraph 34(1)(b) is less demanding since engaging in or instituting the subversion by force of any government does not require an evaluation of the quality of the government subverted. However, it is arguable that since it delineates two possibilities - engaging in subversion by force or instigating subversion by force - some specificity is required.
[32] For paragraph 34(1)(c) to apply, the decision-maker would have to have regard to the definition of terrorism provided in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraph 98 in relation to the actions of the group. Mr. Justice Lemieux, in Fuentes v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 249 (T.D.) determined that departure from the Suresh definition of terrorism by an adjudicator constituted reviewable error. Mr. Justice Mosley reached a similar result in Zarrin v. Canada (Minister of Citizenship and Immigration) 2004 FC 332. Further guidance in examining the meaning of "engaging in terrorism" is now available by reference to the statutory definition of "terrorism" provided in the Anti-Terrorism Act, S.C. 2001, c. 41.
[33] Paragraph 34(1)(f) makes clear reference to paragraphs (a), (b) and (c) of the subsection. Because the word "or" is used, any one of (a), (b) or (c) will suffice to satisfy the requirement. However, the decision-maker must specify what acts the organization engaged in, i.e., those referred to in (a), (b) or (c), or any combination thereof. A sweeping statement that merely references paragraph 34(1)(f), without more, will not suffice. It is no answer to say that in Gariev, supra, the court concluded that the applicant was inadmissible under paragraph 34(1)(f). In that case, the submission was that it had to be shown that the applicant was a direct member of the organization in question. Moreover, the parties accepted that the organization was one that engaged or has engaged in acts of espionage against democratic governments (paragraph 37).
[34] In Andeel, supra, Mr. Justice Noel was confronted with a similar situation in the context of war crimes or crimes against humanity. Justice Noel determined that the visa officer's failure to provide an explanation, as to which section or sections of the War Crimes Act applied, constituted legal error. He stated as follows:
If not for substantive reasons, for mere sake of clarity, an explanation and a specific reference to the applicable section is essential. General reference to sections which are mutually exclusive does not give the reader such clarity nor does it allow for proper understanding of the decision.
See also: Bitaraf v. Canada (Minister of Citizenship and Immigration) 2004 FC 898 at para. 22.
[35] Finally, in relation to this first issue, it is noteworthy that the visa officer consulted other personnel regarding his draft refusal letter. A response message at page 163 of the tribunal record contains the following comment:
The key element is to provide a foundation for concluding that this group is one which is or was engaged in terrorism. There is nothing in the letter which shows that you asked the applicant about the activities of the group or otherwise indicates how you have reasonable grounds to believe this to be the case. If you propose to refuse an applicant under this subsection, both elements must be in place. I understand that there are classified aspects to this case, but some foundation is preferable.
[36] I take no issue with those comments. Had the visa officer followed the advice, his error might have been avoided. I conclude that a generalized reference to paragraph 34(1)(f) of IRPA, without some further specificity linking and identifying the acts of the organization to one or more of paragraphs (a), (b) or (c) of subsection 34(1) is patently unreasonable and constitutes grounds for review.
[37] The second issue is whether an affidavit of the visa officer - affirmed in response to the application for judicial review and to which are attached "several documents addressing the OLF and its activities" that were reviewed by the visa officer prior to his determination - can remedy the deficiency in the reasons. Exhibit "C" to the visa officer's affidavit includes: the 1999 Country Reports on Human Rights Practices; an undated reference from the office of International Criminal Justice entitled "Extremist Groups"; and the 1993 Research Directorate documents of the Immigration and Refugee Board entitled "Ethiopia: Current Situation". These documents were not referred to in the CAIPS or in the visa officer's reasons. None of the documents appear in the tribunal record. While the propriety of such an approach is questionable, I need not make any determination in that regard in this particular situation. At its highest, the affidavit with Exhibit "C" attached thereto constitutes an effort to provide further explanation and clarification regarding the visa officer's decision. The effort does not yield the desired result.
[38] The affidavit does no more than reveal that the visa officer reviewed the exhibited documents prior to rendering his decision. The conclusion expressed in his affidavit is the same as that expressed in his reasons - the OLF is a group described in paragraph 34(1)(f) of IRPA. No further basis is provided for his finding.
[39] Assuming that the intention is that I examine the documents in order to conclude that a basis exists therein for a determination as to the nature of the OLF, I have reviewed the documents and find them of no real assistance. There are sparse, fleeting references to the detention and treatment of various persons alleged or suspected to be engaged in OLF "terrorist" activities. Only the IRB Research Directorate document provides any description of the OLF as an organization and it is in the historical sense. There is no reference to the OLF's participation in any of the acts referred to in paragraphs 34(1) (a), (b) or (c) of IRPA. There is a brief reference to human rights violations committed by the OLF, but humans rights violations do not come within paragraphs 34(1)(a), (b), or (c).
[40] Notwithstanding the standard of proof - bona fide belief in a serious possibility based on credible evidence - required to establish "reasonable grounds", there are not, in my view, reasonable grounds upon which to conclude, on the evidence that the visa officer had before him (including the evidence not disclosed to the applicant, his counsel or to the public), that the OLF is an organization described in paragraphs (a), (b) or (c) of subsection 34(1) of IRPA. The evidence considered by the visa officer is simply not capable of supporting that conclusion. Consequently, there is no basis upon which it could be determined that the applicant is a member of a group as described in paragraph 34(1)(f).
[41] An exclusion finding is extremely significant to an applicant. Caution must be exercised to ensure such findings are properly made. The court will not substitute its opinion for that of the decision-maker when the analysis and basis for the decision are reasonable. That is not the situation here. A finding of exclusion must provide some basis for the determination regarding the nature of the group and the determination regarding an applicant's membership in the group. Failure to address both and to provide a basis for both, in my view, yields a result that falls far short of being reasonable.
The Inclusion Determination
[42] Had my conclusion in relation to the exclusion finding been different, there would be no need to examine the inclusion finding. If the exclusion applies, a claimant simply cannot be a Convention refugee: Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.). However, because the exclusion finding cannot be sustained, the determination that Mr. Alemu does not meet the definition of Convention refugee must be isolated and examined on its own.
[43] I turn now to the inclusion finding. As previously noted, after enumerating various contradictions and inconsistencies in Mr. Alemu's statements, the visa officer determined that he could not rely on the information provided and was therefore not satisfied that Mr. Alemu met the definition of a Convention refugee or of a member of the humanitarian designated class.
[44] Refugee determination is a forward-looking exercise: Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.); Canada (Minister of Employment and Immigration) v. Mark (1993), 151 N.R. 213 (F.C.A.). The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; Alfred v. Canada (Minister of Employment and Immigration) (1994), 76 F.T.R. 231 (T.D.).
[45] Whether or not an applicant was a credible witness does not prevent him from being a refugee if his political opinions and activities are likely to lead to his arrest and punishment: Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.). There must be a reasonable possibility that an applicant will be persecuted if returned to the country of origin: Salibian v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.).
[46] Notwithstanding an applicant's lack of credibility, if objective evidence establishes that a particular group is at risk, the tribunal must determine whether the applicant fits that profile. Failure to conduct the analysis will result in reviewable error: Ramirez v. Canada (Solicitor General) (1994), 88 F.T.R. 208 (T.D.); Burgos-Rojas v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 157 (T.D.); Kamalanathan v. Canada (Minister of Citizenship and Immigration)(2001), 15 Imm. L.R. (3d) 55 (F.C.T.D.).
[47] In the present circumstances, the documentary evidence attached as Exhibit "C" to the visa officer's affidavit contains several references to the treatment of perceived OLF members in Ethiopia. The references are such that, in my view, the visa officer ought to have been alerted and prompted to turn his mind to the question whether, if returned to Ethiopia, Mr. Alemu would be at risk. The officer did not conduct any such analysis and the jurisprudence indicates that such failure constitutes a fatal flaw. That is not to say that such an analysis would necessarily lead to a favourable determination. Indeed, the most recent of the documents in Exhibit "C" is now nearly five years old. In accordance with the forward-looking determination rationale, regard to more current documentary evidence should be had. Additionally, I note the total absence of any information regarding the situation in South Africa. This factor was not argued, was not referred to in any of the materials, and I therefore decline to comment on it.
[48] In the result, for the reasons stated, Mr. Alemu has succeeded on both grounds and the application for judicial review will be allowed. The matter will be remitted for redetermination before a different visa officer. An order will so provide.
[49] Counsel did not suggest a question for certification and none is certified.
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Judge
Ottawa, Ontario
July 15, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3640-03
STYLE OF CAUSE: TAMERAT ALEMU v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 24, 2004
REASONS FOR ORDER BY: Madam Justice Layden-Stevenson
APPEARANCES:
Mr. Mike Bell FOR APPLICANT
Mr. Derek Rasmussen FOR RESPONDENT
Mr. Toby Hoffmann FOR SOLICITOR GENERAL
(section 87 application)
SOLICITORS OF RECORD:
BELL, UNGER, RILEY, MORRIS FOR APPLICANT
Ottawa, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
SCHEDULE "A"
to the
Reasons for order dated July 15, 2004
in
TAMERAT ALEMU
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
IMM-3640-03
RELEVANT STATUTORY PROVISIONS
| Immigration and Refugee Protection Act, S.C. 2001, c. 27
11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
(2) The officer may not issue a visa or other document to a foreign national whose sponsor does not meet the sponsorship requirements of this Act.
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Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi.
(2) Ils ne peuvent être délivrés à l'étranger dont le répondant ne se conforme pas aux exigences applicables au parrainage. |
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| 78. The following provisions govern the determination: (a) the judge shall hear the matter; (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit; (d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination; (e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; (f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary; (g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person; (h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed;
(i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and (j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence. |
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78. Les règles suivantes s'appliquent à l'affaire_: a) le juge entend l'affaire; b) le juge est tenu de garantir la confidentialité des renseignements justifiant le certificat et des autres éléments de preuve qui pourraient lui être communiqués et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui; c) il procède, dans la mesure où les circonstances et les considérations d'équité et de justice naturelle le permettent, sans formalisme et selon la procédure expéditive;
d) il examine, dans les sept jours suivant le dépôt du certificat et à huis clos, les renseignements et autres éléments de preuve; e) à chaque demande d'un ministre, il examine, en l'absence du résident permanent ou de l'étranger et de son conseil, tout ou partie des renseignements ou autres éléments de preuve dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui; f) ces renseignements ou éléments de preuve doivent être remis aux ministres et ne peuvent servir de fondement à l'affaire soit si le juge décide qu'ils ne sont pas pertinents ou, l'étant, devraient faire partie du résumé, soit en cas de retrait de la demande; g) si le juge décide qu'ils sont pertinents, mais que leur divulgation porterait atteinte à la sécurité nationale ou à celle d'autrui, ils ne peuvent faire partie du résumé, mais peuvent servir de fondement à l'affaire; h) le juge fournit au résident permanent ou à l'étranger, afin de lui permettre d'être suffisamment informé des circonstances ayant donné lieu au certificat, un résumé de la preuve ne comportant aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui; i) il donne au résident permanent ou à l'étranger la possibilité d'être entendu sur l'interdiction de territoire le visant; j) il peut recevoir et admettre en preuve tout élément qu'il estime utile - même inadmissible en justice - et peut fonder sa décision sur celui-ci.
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| 87. (1) The Minister may, in the course of a judicial review, make an application to the judge for the non-disclosure of any information with respect to information protected under subsection 86(1) or information considered under section 11, 112 or 115.
(2) Section 78, except for the provisions relating to the obligation to provide a summary and the time limit referred to in paragraph 78(d), applies to the determination of the application, with any modifications that the circumstances require. |
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87. (1) Le ministre peut, dans le cadre d'un contrôle judiciaire, demander au juge d'interdire la divulgation de tout renseignement protégé au titre du paragraphe 86(1) ou pris en compte dans le cadre des articles 11, 112 ou 115.
(2) L'article 78 s'applique à l'examen de la demande, avec les adaptations nécessaires, sauf quant à l'obligation de fournir un résumé et au délai.
SCHEDULE "B" to the Reasons for order dated July 15, 2004 in TAMERAT ALEMU - and - THE MINISTER OF CITIZENSHIP AND IMMIGRATION IMM-3640-03
RELEVANT STATUTORY PROVISIONS
Immigration and Refugee Protection Act, S.C. 2001, c. 27
11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
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| Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi. |
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12.(3) A foreign national, inside or outside Canada, may be selected as a person who under this Act is a Convention refugee or as a person in similar circumstances, taking into account Canada's humanitarian tradition with respect to the displaced and the persecuted.
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| 12.(3) La sélection de l'étranger, qu'il soit au Canada ou non, s'effectue, conformément à la tradition humanitaire du Canada à l'égard des personnes déplacées ou persécutées, selon qu'il a la qualité, au titre de la présente loi, de réfugié ou de personne en situation semblable. |
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33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. |
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| 33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir. |
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34. (1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; (b) engaging in or instigating the subversion by force of any government; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. |
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| 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants_: a) être l'auteur d'actes d'espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s'entend au Canada;b) être l'instigateur ou l'auteur d'actes visant au renversement d'un gouvernement par la force; c) se livrer au terrorisme; d) constituer un danger pour la sécurité du Canada; e) être l'auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d'autrui au Canada; f) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux alinéas a), b) ou c).
(2) Ces faits n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national. |
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95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons;
(2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4). |
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| 95. (1) L'asile est la protection conférée à toute personne dès lors que, selon le cas_: a) sur constat qu'elle est, à la suite d'une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d'un permis de séjour délivré en vue de sa protection;
(2) Est appelée personne protégée la personne à qui l'asile est conféré et dont la demande n'est pas ensuite réputée rejetée au titre des paragraphes 108(3), 109(3) ou 114(4). |
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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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| 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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| 99. (1) A claim for refugee protection may be made in or outside Canada.99. (1) La demande d'asile peut être faite à l'étranger ou au Canada. |
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(2) A claim for refugee protection made by a person outside Canada must be made by making an application for a visa as a Convention refugee or a person in similar circumstances, and is governed by Part 1. |
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| (2) Celle de la personne se trouvant hors du Canada se fait par une demande de visa comme réfugié ou de personne en situation semblable et est régie par la partie 1. |
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Immigration and Refugee Protection Regulations
139. (1) A permanent resident visa shall be issued to a foreign national in need of refugee protection, and their accompanying family members, if following an examination it is established that (a) the foreign national is outside Canada; (b) the foreign national has submitted an application in accordance with section 150; (c) the foreign national is seeking to come to Canada to establish permanent residence; (d) the foreign national is a person in respect of whom there is no reasonable prospect, within a reasonable period, of a durable solution in a country other than Canada, namely (i) voluntary repatriation or resettlement in their country of nationality or habitual residence, or (ii) resettlement or an offer of resettlement in another country; (e) the foreign national is a member of one of the classes prescribed by this Division; [...] |
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| Règlement sur l'immigration et la protection des réfugiés
139. (1) Un visa de résident permanent est délivré à l'étranger qui a besoin de protection et aux membres de sa famille qui l'accompagnent si, à l'issue d'un contrôle, les éléments suivants sont établis : a) l'étranger se trouve hors du Canada;b) il a présenté une demande conformément à l'article 150; c) il cherche à entrer au Canada pour s'y établir en permanence; d) aucune possibilité raisonnable de solution durable n'est, à son égard, réalisable dans un délai raisonnable dans un pays autre que le Canada, à savoir : (i) soit le rapatriement volontaire ou la réinstallation dans le pays dont il a la nationalité ou dans lequel il avait sa résidence habituelle, (ii) soit la réinstallation ou une offre de réinstallation dans un autre pays; e) il fait partie d'une catégorie établie dans la présente section; [...] |
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(i) subject to subsection (3), the foreign national and their family members included in the application for protection are not inadmissible.
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| i) sous réserve du paragraphe (3), ni lui ni les membres de sa famille visés par la demande de protection ne sont interdits de territoire. |
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145. A foreign national is a Convention refugee abroad and a member of the Convention refugees abroad class if the foreign national has been determined, outside Canada, by an officer to be a Convention refugee. |
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| 145. Est un réfugié au sens de la Convention outre-frontières et appartient à la catégorie des réfugiés au sens de cette convention l'étranger à qui un agent a reconnu la qualité de réfugié alors qu'il se trouvait hors du Canada. |
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146. (1) For the purposes of subsection 12(3) of the Act, a person in similar circumstances to those of a Convention refugee is a member of one of the following humanitarian-protected persons abroad classes: (a) the country of asylum class; or (b) the source country class.
(2) The country of asylum class and the source country class are prescribed as classes of persons who may be issued permanent resident visas on the basis of the requirements of this Division. |
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| 146. (1) Pour l'application du paragraphe 12(3) de la Loi, la personne dans une situation semblable à celle d'un réfugié au sens de la Convention appartient à l'une des catégories de personnes protégées à titre humanitaire outre-frontières suivantes : a) la catégorie de personnes de pays d'accueil; b) la catégorie de personnes de pays source.
(2) Les catégories de personnes de pays d'accueil et de personnes de pays source sont des catégories réglementaires de personnes qui peuvent obtenir un visa de résident permanent sur le fondement des exigences prévues à la présente section. |
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147. A foreign national is a member of the country of asylum class if they have been determined by an officer to be in need of resettlement because (a) they are outside all of their countries of nationality and habitual residence; and (b) they have been, and continue to be, seriously and personally affected by civil war, armed conflict or massive violation of human rights in each of those countries. |
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| 147. Appartient à la catégorie de personnes de pays d'accueil l'étranger considéré par un agent comme ayant besoin de se réinstaller en raison des circonstances suivantes : a) il se trouve hors de tout pays dont il a la nationalité ou dans lequel il avait sa résidence habituelle; b) une guerre civile, un conflit armé ou une violation massive des droits de la personne dans chacun des pays en cause ont eu et continuent d'avoir des conséquences graves et personnelles pour lui. |
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