Ottawa, Ontario, July 21, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Menbere Hailu is a citizen of Ethiopia whose claim for protection was rejected by the Refugee Protection Division of the Immigration and Refugee Board (Board) because it did not believe key aspects of her testimony. The application for judicial review of that decision is allowed on the basis that a number of the Board's findings on credibility were patently unreasonable.
[2] The Board reached the following conclusions with respect to Ms. Hailu's credibility:
1. She was not an active member of the Ethiopian Peoples Revolutionary Party (EPRP) as she claimed because she denied that the party espouses violence. The Board looked to documentary evidence with respect to the party's association with violence (it has not renounced violence) and on the basis of that evidence found "the claimant is either not knowledgeable about the EPRP activities or chooses not to acknowledge why EPRP is not allowed to be an official party".
2. A letter from the EPRP office in Washington, D.C. confirming her membership in the EPRP was given no weight because the letter made no reference to Ms. Hailu's specific treatment in Ethiopia, and Ms. Hailu was said to have admitted that it was a standard letter that is provided to anyone who requested a letter from the party.
3. Ms. Hailu's testimony that she had been raped in Ethiopia was rejected because she did not tell officials of the EPRP in Ethiopia that she had been raped, nor did she disclose that fact during her asylum claim in the United States or to the immigration officer who interviewed her at the port of entry in Canada.
4. Ms. Hailu gave conflicting evidence with respect to her arrest and detention. In her evidence she said she was detained for six months, however in her Personal Information Form she wrote that she was detained from February 12 to July 10 (that is almost 5 months).
5. It was implausible that after her release from detention Ms. Hailu was allowed to write her school exams later than other students, and implausible that she would obtain the excellent grades that she did. The Board found she was not, therefore, detained as she testified.
6. A psychologist's report was given no weight because the Board did not believe that "the claimant's symptoms are due to the alleged reasons".
7. Ms. Hailu's sur place claim was rejected because photographs taken of her at demonstrations in Canada and United States "were specifically taken by the claimant to embellish her claim on the grounds of well-known fact".
[3] In my respectful view, for the following reasons, it was patently unreasonable of the Board for the reasons it gave to: give no weight to the letter from the EPRP; reject Ms. Hailu's testimony concerning her rape; and reject Ms. Hailu's sur place claim.
[4] With respect to the letter from the EPRP, the Board did not question the authenticity of the letter provided that certified Ms. Hailu's active membership in the party and expressed the view that she would face imminent danger if she were to return to Ethiopia. The Board was required to assess the credibility of the information provided by the EPRP and it failed to do so when it rejected the information provided solely on the basis that more information could have been provided. Further, a review of the transcript shows that Ms. Hailu did not say that the letter from the EPRP was a standard letter available to anyone as the Board said she did. Rather, she testified that she was given the letter because she was a member. In the result, the Board committed a reviewable error by giving no weight to the letter from the EPRP for the reasons it gave.
[5] Turning to the Board's rejection of Ms. Hailu's testimony that she had been raped, Ms. Hailu testified that rape is a taboo subject in Ethiopia and that when a woman is raped there she is considered to be an outcast of society. The Board appears to have accepted this evidence. As well, the Board accepted that Ms. Hailu suffered from the conditions set forth in the psychologists report (although the Board did not accept the cause of those symptoms). The psychologist diagnosed Ms. Hailu to be suffering from post-traumatic stress disorder and a major depressive disorder. In view of the evidence of the cultural norms prevailing in Ethiopia and the evidence of Ms. Hailu's medical condition, it was patently unreasonable for the Board to find that Ms. Hailu had not been raped on the ground that if she had been raped, she would have told representatives of the EPRP and would have disclosed the rape to the Canadian immigration officer at the port of entry. The Board's conclusion fails to adequately consider (as noted in Guideline 4 issued by the Chairperson of the Immigration Refugee Board relating to women refugee claimants fearing gender-related persecution) that women from societies where the preservation of "marital dignity" is the cultural norm may be reluctant to disclose the experience of sexual violence, and fails to adequately consider Ms. Hailu's medical condition.
[6] As to the rejection of the sur place claim, the Board accepted the opinion of an expert to the effect that Ethiopian officials keep track of demonstrations in the United States and Canada which oppose the present regime, that such officials attend all demonstrations and public meetings, and that the demonstrations are filmed. The Board also accepted that Ms. Hailu attended such demonstrations. On that evidence it was patently unreasonable for the Board to reject the sur place claim just because the photographs documenting her attendance at the demonstrations were taken for the purpose of embellishing her claim. Having accepted the expert evidence before it, some better reason was required in order to explain why, as a result of attending the demonstrations, Ms. Hailu would not be at risk of persecution if she returned to Ethiopia.
[7] These reviewable errors go to the heart of the Board's conclusion that Ms. Hailu was not credible, and in my view it would be unsafe to rely upon the remaining findings to support the decision because it is impossible to ascertain whether the Board would have reached the same conclusions had it not made the significant reviewable errors set out above.
[8] My view that it is unsafe to allow the decision to stand is reinforced by the number of errors found in the Board's decision which, in their best light, show a singular lack of attention to detail. Those errors include: erroneously quoting the EPRP letter to the effect that Ms. Hailu had been a member since 1988 when the letter was silent on this point; referring to a non-existent medical report (there was only one psychological report in evidence, the reasons refer to both a medical report and a psychological report); erroneous references to the evidence found in the footnotes to the reasons; and Ms. Hailu was variously referred to in the plural and in the masculine gender.
[9] For these reasons, the application for judicial review is allowed. As a result, it is not necessary for me to consider the argument advanced on Ms. Hailu's behalf (only in her further memorandum of argument) based upon Guideline 7.
[10] Counsel agreed that if the application was disposed of on this basis no question of general importance is raised. I concur with that assessment. No question will be certified.
JUDGMENT
[11] THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division of the Immigration and Refugee Board dated September 23, 2005 is hereby set aside.
2. The matter is remitted to a differently constituted panel of the Refugee Protection Division for redetermination.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6122-05
STYLE OF CAUSE: MENBERE HAILU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 13, 2006
APPEARANCES:
PAUL VANDERVENNEN FOR THE APPLICANT
LEANNE BRISCOE FOR THE RESPONDENT
SOLICITORS OF RECORD:
PAUL VANDERVENNEN FOR THE APPLICANT
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA