B E T W E E N:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board"), dated June 4, 1996 wherein the Board determined that the applicant was not a Convention refugee.
The applicant is a nineteen year old citizen of Ethiopia and a member of the Amhara tribe. Her father owns a car repair garage. After the Mengistu regime was overthrown, the applicant's father became involved in the AAPO (All Amhara People's Organization) which defends the rights of the Amhara people. At least three meetings took place in his home.
In April 1995, the applicant's father said that he had to go away for a while but he did not inform family members of the reasons for his departure, nor did he divulge his final destination. Three days later, soldiers came by the house looking for him. When they realized that her father was absent, they took the applicant into custody. They detained her in jail for three days where, twice a day, they interrogated her about her father. They told her that her father was involved in an anti-government movement and that their house was being used by the movement.
After three days, the applicant's father turned himself in and the applicant was released. Her uncle drove her to his house where her siblings had been residing since the authorities sealed off the family home. The applicant visited her father's garage twice after her release, only to witness soldiers extorting money from the cashiers.
Approximately a week after she was released, the applicant was alone in her uncle's house when a soldier demanded to be let in. He repeated vulgar statements about her father and then raped her. She informed her uncle of the assault. For two weeks, she remained inside her uncle's house with someone at her side night and day; she states that she was traumatized. Her uncle made arrangements for an agent to accompany her to New York. The applicant made a refugee claim on June 13, 1995, two weeks after she was raped.
The applicant gave the following evidence regarding the prospects of her return to Ethiopia:
|I believe that I am in great danger if I return to Ethiopia. My father remains in jail because of accusations that he is active in the anti-government AAPO. The authorities have accused us of using our house for subversive activities and it is still sealed. The authorities have jailed me, followed me around, persecuted and raped me. I am afraid that this treatment will continue or get worse because of my relationship to my father, my own suspected anti-government opinions and my tribe.1|
Decision of the Board:
The Board found that the applicant was not a Convention refugee for the following reasons:
a. her identity as an Ethiopian national was not established;
b. her evidence was found not to be credible nor trustworthy;
|c. alternatively, assuming she is Ethiopian and her evidence was credible, she was not found to have a well-founded fear of persecution and|
d. there is adequate state protection available.
The Board decided that the applicant had not proven her identity as an Ethiopian. As well, it found it difficult to accept that the authorities would maintain an interest in her after her father's arrest. Furthermore, the Board stated that the applicant contradicted herself by first arguing that no one was present when she was raped and then by saying that a servant opened the door. The Board found it difficult to accept that a servant would not intervene or call for help if someone was being raped in the house. The Board further stated that the applicant contradicted herself a second time when she initially said she did not seek medical help after the rape, and later said that she did. The Board concluded that even if the applicant had been raped, she could have sought the help of the authorities.
Points at issue:
|a. Did the Board refuse to consider, ignore or make erroneous findings of fact with respect to any evidence?|
|b. Did the Board commit reviewable errors of law in concluding that even if the applicant's evidence was credible, she still did not meet the definition of a Convention refugee?|
The arguments of the applicant:
The applicant submits that the Board misunderstood the nature of the identity evidence in addition to misunderstanding the onus which she had to meet. The Board has not provided reasons for doubting the applicant's credibility with respect to a number of facts integral to her story. It is therefore alleged that the Board has placed a burden of proof on the applicant that no applicant can meet.
The applicant contends that the Board committed a reviewable error of law when it drew unreasonable inferences based on speculation and when it misrepresented and misstated the evidence and when it based its decision on this misapprehension of the evidence.
The Board did not accept that the Ethiopian authorities would have an interest in the applicant and yet have no interest in her twelve and sixteen year old siblings. The applicant contends that she was the one closest to her father; additionally, she states that her siblings were too young to get involved.
The applicant further submits that the Board misunderstood her persecution. Persecution is not related to the utility of the individual to the government: her persecution resulted from being hated as an Amhar, hated as a person whose father was connected to the AAPO and hated for being categorized as an enemy of the regime, therefore an enemy of the country. Her persecution resulted from being attacked and raped by a soldier in her own house.
The Board assumed that if a servant had been in the house at the time of the rape, he or she would have called for help. This inference, the applicant states, is patently unreasonable. The applicant submits that she did not lie when she stated in her Personal Information Form that nobody was home when she was raped. For even if a servant was home at the time, what the applicant meant by the statement was that her uncle and the other children were not home.
In regards to the medical assistance following the rape, the applicant alleges that she never stated that she had not sought immediate medical assistance: when questioned by the refugee claims officer, she testified that she had received medical attention at her uncle's home. The Board, explains the applicant, misunderstood this information.
The applicant contends that the Board's finding that "the claimant can resort to the police and the court system to press for [sic] charges against her assailant" in regards to her attack and rape by the soldier, is both perverse and unreasonable. Moreover, the applicant submits that such a finding by the Board is not relevant to the issue of whether her expressed, on-going fear of persecution is well-founded. The applicant states that redress is not available to her.
The arguments of the respondent:
The respondent submits that there is good reason to doubt the applicant's credibility and consequently her identity as an Ethiopian national. The respondent contends that the applicant should have been able to obtain copies of her identity documents in order to establish that she was an Ethiopian national. The respondent is of the opinion that little weight should be given to the applicant's oral testimony because it is inconsistent.
The respondent submits that the applicant is not a true AAPO supporter or suspect, because if this were truly the case, she would not have been released when her father surrendered to the authorities. Moreover, the respondent suggests that even if the applicant was raped by a soldier, she still had a recourse: she could have sought state or police protection.
The respondent states that the assessment of the applicant's credibility represents an essential part of the tribunal's decision-making function. In the present case, there is no indication that the Board committed a reviewable error, one which would require the intervention of this Court. The respondent states that in analyzing the decision of the Board as a whole, the Board properly held that the applicant was not a Convention refugee.
Relief sought by the applicant:
The applicant requests that the decision of the Board be set aside pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, and that the claim be referred back to the Board for redetermination with such directions as the Court considers appropriate.
Analysis and conclusion:
Identity Documents to Prove Nationality
I am satisfied the Board erred when it decided that the applicant was not a national of Ethiopia. The Board made this decision because she presented no identity documents from Ethiopia and the Board placed little weight on the letter from the Ethiopian Association and the witness called for the purpose of establishing her identity.
It is clearly evident that the applicant was from Ethiopia and that she speaks the Amharic language (page 7 of the applicant's record and that she referred to dates in the Ethiopian calendar. She also spoke of Ethiopia in general. In addition, the applicant spoke of the Ethiopian Orthodox Church and that she attends this church (see pages 566 to 567, 571 to 572, 584, 585 and 600 of the Tribunal's Record.
It was for the Board to give what weight it wished to the letter emanating from the Ethiopian Association. I am in full agreement with the Board when it states at page 8 of its decisions:
|With respect to the claimant's identity, the only documentary evidence the claimant presented to substantiate her identity was Exhibit C-2, a letter from the Ethiopian Association of Toronto. This letter states that the claimant is an Ethiopian born in Addis Ababa. However, according to the claimant's own testimony, the only immigration documents this association used to confirm her identity were those issued to the claimant by the Canadian authorities at the port of entry. She also testified that the association interviewed her and asked about various facilities and landmarks and, on that basis, determined that she was knowledgeable about Addis Ababa. The letter also indicates that members of the Ethiopian community in Toronto vouched for the claimant's identity as an Ethiopian. Yet, again, the claimant testified that the only person she knew in Toronto before she arrived was the witness, Mohammed Bulto Adushe. She stated that she was introduced to a number of his friends in Toronto after she arrived. The claimant also testified she went to the Ethiopian Association of Toronto three times. However, the witness said he took her to the association once and picked up the letter several days later. Given the manner in which this letter was obtained, the panel gives it little probative value.|
With regard to the evidence of Mohammed Bulto Adushe, the witness who testified as to the applicant's identity, the Board states at page 15 of its decision:
|There is documentary evidence before the panel which confirms the witness' identity as an Ethiopian national. The witness testified that he knew the claimant when he was residing in Addis Ababa as a friend of his sister. He also stated that he knew the claimant's father owned a garage in Addis Ababa. The panel found some of the witness' testimony inconsistent with that of the claimant. For instance, the number of times the witness took the claimant to the association offices to allegedly verify her identity and where the claimant's family lived in Addis Ababa. The panel does not accept it is plausible to accept the witness would not have been aware of the claimant's arrival if he was able to contact his sister in Ethiopia as he claims. The panel, therefore, gives little weight to the witness' testimony.|
It is apparent the Board erred in rejecting the witness' evidence. In the transcript at pages 575 and 576, this witness gave evidence that he knew the applicant in Ethiopia and that she used to visit him at home when the applicant would come to visit his sister.
With regard to the issue of the number of times the witness took the applicant to the Ethiopian Association Office, the Board once again erred. There was no inconsistency in the answers of the applicant and the witness. The witness stated that he took the applicant to the Association Office on one occasion. The applicant said she went to the Association's Office on three occasions. There is nothing in the evidence that indicates that the witness was with the applicant on the three visits.
The Board only speaks of the claimant making two telephone calls to her uncle to get identity documents and states at page 9 that "the panel does not find the claimant's explanation for why she cannot contact he relatives in Ethiopia reasonable."
It is surprising that the "Board" makes no mention of the fact that in addition to the making of the telephone calls, the claimant wrote a letter to her uncle in an attempt to get identity documents.
I do not believe it necessary to review the entire decision of the Board as I am satisfied that the errors of the Board, above described, are sufficient to indicate that the Board would not have believed anything stated by the applicant.
As a further example, the Board in its decision states at pages 10-11, regarding the father's business:
|The claimant testified that she started to control the finances of her father's business after she was released from detention. However, when she was asked to give specific details regarding the financing of the family business, she was unable to and stated that a young lady who worked there was the bookkeeper. The panel does not accept her response as reasonable. Clearly, if the claimant was actually controlling the finances of her family's business, as she claims she did, she would have some familiarity with the financial operations of the business. The panel cannot accept this part of the claimant's story as plausible. The panel finds that the claimant concocted this part of her story in order to be able to claim that she was present when the Ethiopian soldiers were taking money from her father's business.|
In reading the testimony of the applicant on pages 594, 595 and 596 of the transcript, it appears to me that the applicant never stated that she controlled the finances of her father's business. Rather, she indicated that as the eldest, she had to concern herself with money to live on.
The Board, on page 11 of its reasons also states:
|In light of the inconsistencies and implausibilities noted above, the panel cannot accept the claimant presented either credible or trustworthy evidence in support of her refugee claim. Accordingly, the only conclusion the panel can reach then is that there is insufficient credible and trustworthy evidence upon which to base a positive determination.|
|Although the panel need not consider any further issues in this claim, it will do so for the sake of thoroughness in further analyzing the merits of this claim.|
Once it makes such a finding of non-credibility, I find it difficult for the Board to make a decision on the substance of the claim of persecution.
It is in the interests of justice that a differently constituted panel decide the issue of whether or not the applicant is a convention refugee basing its decision on the fact that the applicant is a national of Ethiopia.
I consider that this application raises no serious question of general importance that would warrant certification.
March 25, 1997 J.F.C.C.__________________
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-2174-96
STYLE OF CAUSE: Hanna Abebe v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday, March 12, 1997
REASONS FOR ORDER BY: The Honourable Mr. Justice Teitelbaum
DATED: March 25, 1997
Mr. Paul Vandervennen for the Applicant
Ms. Sadian Campbell for the Respondent
SOLICITORS OF RECORD:
Mr. Paul Vandervennen for the Applicant Toronto, Ontario
Mr. George Thomson for the Respondent Deputy Attorney General of Canada