Date: 20000719
Docket: IMM-4273-99
BETWEEN:
JEMAL MOHAMMED TALKE
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated May 21, 1999 wherein the Refugee Division determined the applicant, Jemal Mohammed Talke, not to be a Convention refugee.
[2] The applicant is a citizen of Eritrea. In 1990, he joined the Eritrean People"s Liberation Front (the "EPLF") a fighting force for the independence of Eritrea from Ethiopia.
[3] The EPLF formed the transitional government for Eritrea from May 1991 until the 1993 referendum for independence, which it won.
[4] The applicant did his compulsory military service from June 24, 1991 to June 24, 1993, under the government of the EPLF during which he took a clerical position and began a B.A. program at the University of Asmara.
[5] The applicant was one of only 3,081 university students in that country.
[6] He received his Bachelor of Arts in June 1996 and then received a passport from the Ministry of Internal Affairs n May 1996 on a scholarship from the United States Agency for International Development (U.S. Aid) and attended university in North Carolina.
[7] The applicant did not complete the program and left after apparently completing one year of studies. He entered Canada on July 14, 1997 and made a refugee claim soon thereafter.
[8] The applicant"s claim is based on his membership in a particular social group, being a person of homosexual orientation.
[9] The question I must determine is whether the Refugee Division erred in determining that the applicant had not objective basis for his fear of persecution and whether he lacked credibility on some issues.
[10] The applicant submits that while the Refugee Division is entitled to look at any documentary evidence that has been submitted, it must have some direct relevance to the issue. He alleges that in the present case, the Refugee Division was capricious and unreasonable in drawing an analogy with the Eritrean government"s policies toward women to determine what the Eritrean government"s policies may be on homosexuality. According to the applicant, there are no legal sanctions against women in the Penal Code as there are against homosexual acts. Moreover, the applicant contends that the Refugee Division erred in not giving him reasonable notice that it intended to examine documentary evidence of the Eritrean government"s policies on homosexuality.
[11] The applicant argues that the Refugee Division erred in finding that a sentence of 10 days in jail for committing a homosexual act was not persecution. In the alternative, he maintains that the Refugee Division erred by relying on the possibility that the sentence could be as light as 10 days to determine that there was no objective basis for persecution. According to the applicant, this analysis does not consider whether there is more than a mere possibility of persecution if the applicant were to return to Eritrea.
[12] The applicant holds that the Refugee Division erred by taking the view that homosexuality is a matter of choice and this is inconsistent with previous decisions. According to the applicant, there are universal standards of human rights that should be referred to in determining what constitutes persecution under the Refugee Convention.
[13] The applicant alleges that the Refugee Division misinterpreted the documentary evidence when it determined that the Ethiopian Code might be considered by the Eritrean government to be outdated legislation and no longer enforced. In fact, he contends that the documentary evidence clearly states that the Ethiopian Code is being used by the government of Eritrea until the government drafts and ratifies its own legislation.
[14] The applicant argues that the Refugee Division erred in finding that because he was not formally charged after he had been caught engaging in a homosexual act this should not consist as enabling them to conclude that the Penal Code provisions were not enforced. He maintains that he was in fact beaten, detained and removed from active military duty because of his homosexuality. Finally, the applicant states that contrary to the Refugee Division"s determination, he would likely be persecuted for being a homosexual if he was to return to Eritrea in light of the documentary evidence in this case. As well, he feared the disclosure of his military record would reveal his homosexual activity.
[15] The respondent submits that the Refugee Division did not draw conclusions about the Eritrean government"s policies on homosexuality from examining its policies toward women. It is alleged that in drawing the analogy, the Refugee Division was simply attempting to show that the Eritrean government had made efforts to distance itself from any religious base or bias.
[16] The respondent holds that the Refugee Division did not in fact make a finding on the issue of sentencing. He also argues that the reasons of the Refugee Division clearly demonstrate a grasp of the pertinent issues and the evidence although the applicant may encounter a less tolerant social climate in Eritrea than in Canada, his fears do not constitute persecution within the meaning of the Convention.
[17] The respondent maintains that it was open to the Refugee Division to state that the documentary evidence does not show that the old Ethiopian provisions on homosexuality are still being enforced in practice. Furthermore, the respondent submits that the Refugee Division did not err in determining that there is no objective basis for the applicant"s fear of persecution. According to him, the Refugee Division considered whether there was a reasonable chance, or serious possibility, that the applicant would be persecuted if he returned to Eritrea.
[18] There is no doubt that this decision is not clearly drafted and there may appear to be some inconsistencies in the decision written by the presiding member of the I.R.B. But if one views the evidence objectively, it does sustain a finding that this applicant has not satisfied the Board that he would be subject to persecution if returned to his homeland.
[19] The homosexual act complained of occurred some time in 1990. He then served his two years of compulsory service in the military. Because of this incident, he was committed to office work; he was responsible for tending to the archives of former military personnel. During his period of service in the armed forces, he was allowed to pursue his studies and obtained a B.A. degree. Upon concluding this stage of his formal education, he was then granted a passport by this government in cooperation with outside agencies which allowed him to pursue studies in the United States in order to obtain a Master"s Degree. This he abandoned after approximately one year and then came to Canada.
[20] How can it be alleged by this applicant that he was not anxious to return since his military record would be disclosed and his homosexual activity would put him at risk or in great danger with authorities if he were to return to Eritrea? This government was obviously aware of his conduct during his service years but still permitted him to pursue his course of studies and granted him a passport to leave the country in order to improve his education. If the authorities were that stringent and indeed lacking in intent to reform the government and not determined to improve the old Penal Code systems, how can it be reasonably inferred that they were not aware of his homosexual past in light of the largess shown by this government by allowing him to pursue his education abroad?
[21] The Refugee Division had some doubt as to his credibility in light of all of what they considered to be pertinent facts and I am of the view that their conclusion is correct; the applicant has not met the burden of satisfying the tribunal that he had a well-founded fear of persecution.
[22] The application is dismissed.
JUDGE
OTTAWA, Ontario
July 19, 2000