Ottawa, Ontario, July 21, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Ghenna is a citizen of Ethiopia who claimed status as a Convention refugee or a person in need of protection. He says that in Ethiopia he was a journalist perceived by the authorities to be anti-government. His claim was rejected by the Refugee Protection Division of the Immigration and Refugee Board (Board) because it found Mr. Ghenna was not a credible or trustworthy witness. This application for judicial review is brought in respect of that decision.
[2] A conclusion that a witness is not credible is a finding of fact. It is well-settled law that such a finding by the Board may only be interfered with on judicial review if the Court is satisfied that the finding was patently unreasonable. This is the most deferential standard of review and it reflects the fact that the Board has the benefit of hearing the evidence first-hand. To be reviewable on the standard of patent unreasonableness, a finding must be so flawed that no amount of curial deference can justify allowing it to stand. (See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 52).
[3] Notwithstanding this most deferential standard of review, for the reasons that follow I find the Board's finding of credibility to be patently unreasonable. It follows that the application for judicial review is allowed.
[4] In addition to his oral testimony to the effect that he was employed by the weekly newspaper the "Capital" in Addis Ababa, Mr. Ghenna provided the following:
a. The original complete copy of an edition of the Capital. The masthead of the paper showed him to be the Deputy Editor-in-Chief.
b. A membership card in the Ethiopian News Association.
c. A letter from the General Manager of the Capital dated March 23, 2004.
d. A letter from the Editor-in-Chief of the Capital dated December 10, 2004.
e. Faxed copies of pages of the Capital which contained articles written by Mr. Ghenna.
f. A photo identification card showing Mr. Ghenna to be an employee of the Capital.
[5] In rejecting Mr. Ghenna's evidence the Board doubted that Mr. Ghenna worked for the Capital. Its reasons for this conclusion were:
1. Mr. Ghenna gave conflicting evidence with respect to his position. In his Personal Information Form (PIF) he stated he worked as a Deputy Editor. However, in his oral evidence he testified he was the Editor-in-Chief. The letter from the General Manager of the Capital said he worked as the Deputy Editor-in-Chief.
2. While Mr. Ghenna testified orally and in his PIF that he started working for the Capital in February of 2000, the letter from the General Manager stated he had started work on April 15, 2000.
[6] For these reasons, the Board gave no weight to the letters from the General Manager and Editor-in-Chief of the Capital. The Board went on to find:
3. The faxed copies of the news articles Mr. Ghenna provided were rejected because of "the ease in current technology by which these documents can be altered". The Board rejected Mr. Ghenna's explanation that it was too dangerous for the newspaper to mail original copies of back issues because the authorities intercepted the mail. The Board found it not to be credible that the newspaper would archive back editions and yet consider it to be too dangerous to mail such copies. The failure to provide originals was viewed to be "an excuse in fabrication of his refugee claim".
4. The Ethiopian News Association membership card, seized by Citizenship and Immigration Canada when Mr. Ghenna made his refugee claim, was rejected because Mr. Ghenna said he was a member of the Ethiopian Free Journalist Association. He was said to have initially blamed the discrepancy upon a mistake made by the Ethiopian Free Journalist Association, and then to have later said that the organizations were one and the same because the Ethiopian News Association changed its name to the Ethiopian Free Journalist Association. This later explanation was rejected by the Board because, if true, "the claimant would have obtained an ID card with its current updated official name".
5. The employee identification card was rejected because Mr. Ghenna could not explain why it was signed by the General Manager (and not by the owner or the Editor-in-Chief of the paper) and because the column "holder's signature" was blank. Mr. Ghenna failed, in the Board's of view, to provide a reasonable explanation as to why he had not signed the document.
[7] The Board also found that:
6. Mr. Ghenna gave conflicting evidence as to when he was targeted by the authorities. In his PIF, he stated he was targeted on September 23, 2003 and again on September 29, 2003. In oral evidence, he stated that these incidents took place in 2002.
7. It was not believable that Mr. Ghenna would not ask his family to send to him in Canada a medical report prepared after he was beaten in detention.
8. While not central to his claim, the Board found his credibility was impaired because he failed to provide information as to his son, including the son's name and date and place of birth.
[8] My concerns with respect to the Board's findings include the following.
[9] First, missing from the Board's reasons was any reference to the original, complete copy of the Capital provided by Mr. Ghenna. This document was of great significance in that it confirmed Mr. Ghenna's position as Deputy Editor-in-Chief, and the masthead was identical to that contained in the faxed pages of the paper which were rejected by the Board. Because the original newspaper contradicted the Board's conclusion that Mr. Ghenna did not work for the Capital, the Board was obliged to deal with this evidence. The failure to do so leads me to infer that the Board's decision was made without regard to this significant evidence.
[10] Second, as explained below, it was patently unreasonable for the Board to give no weight to the letters provided by the General Manager and Editor-in-Chief of the Capital because of alleged discrepancies in Mr. Ghenna's position at the paper and because of an inconsistency as to when he started at the paper.
[11] As to the discrepancies the Board found with respect to Mr. Ghenna's position at the Capital, in his PIF Mr. Ghenna stated he worked as a Deputy Editor and orally Mr. Ghenna described himself as Deputy Editor and Deputy Editor-in-Chief. Upon a review of the transcript in its entirety I could find no case when, as stated by the Board, Mr. Ghenna described himself to be Editor-in-Chief (nor did counsel for the Minister point to any use of that title by Mr. Ghenna). Both the masthead found in the original paper tendered by Mr. Ghenna and the letter from the General Manager describe Mr. Ghenna to be the "Deputy Editor-in-Chief". There is, in my view, no material contradiction between the terms "Deputy Editor" and "Deputy Editor-in-Chief", and in any event the Board materially misstated Mr. Ghenna's evidence when it stated that he had described himself as the Editor-in-Chief of the paper.
[12] As to the Board's conclusion that Mr. Ghenna said that he started to work for the paper in February of 2000, in both his PIF and his IMM 5474 form Mr. Ghenna stated that he started to work for the paper in April of 2000. He also initially testified that he started working for the paper in April, 2000. His later reference to a February start date came only after both his counsel and the Board referred to that erroneous date. That fact should have been considered by the Board. It could not suggest an incorrect date, seize upon Mr. Ghenna's reference to that date and then act as though the error had originated with Mr. Ghenna. In any event, Mr. Ghenna promptly corrected this testimony.
[13] It was also perverse that the Board gave no weight to the letters provided by the General Manager and Editor-in-Chief and yet it relied upon those letters to contradict Mr. Ghenna with respect to his title at the newspaper and to establish the name of the individual who signed the employee identification card.
[14] Moving to my third concern, contrary to the Board's conclusion, there is no space for a signature on the employee identification card, and it was patently unreasonable for the Board to draw an adverse inference from Mr. Ghenna's failure to explain why he did not sign the document.
[15] Fourth, the Board misstated Mr. Ghenna's testimony with respect to the Ethiopian News Association membership card. He did not attempt to blame the discrepancy in names upon the Association as the Board stated. As for the explanation that Mr. Ghenna did give, that the organization he belonged to changed its name, it was patently unreasonable for the Board to reject this explanation on the ground that Mr. Ghenna had not obtained a new membership card reflecting that the organization's name had been changed to the "Ethiopian Free Journalist Association". The Board does not explain why a name change would vitiate the validity of an otherwise valid membership card so as to require a claimant to obtain an updated version.
[16] These errors go to the heart of the Board's rejection of Mr. Ghenna's evidence that he was a journalist employed by the Capital and, in my view, establish that the Board was impermissibly overzealous in seeking to find Mr. Ghenna not to be credible.
[17] No amount of curial deference warrants allowing the Board's finding of credibility to stand. It follows that the application for judicial review will be allowed. I make the following additional observations.
[18] I express concern at the basis upon which the Board rejected the faxed copies of the Capital. While perhaps not patently unreasonable, the Board does not expand upon why it believes the documents to be altered. It is also not accurate to say, as the Board did, that facsimile copies of articles were provided. What was provided was a copy, reduced in size, of an entire page of the newspaper. Each page so provided included the newspaper's banner, and many included the paper's masthead, all in the form found in the original newspaper tendered in evidence. As well, given that the newspapers were once in the public domain and that the Board does not doubt that mail is intercepted in Ethiopia, I fail to understand why the Board found it to be improbable that it was too dangerous to mail original documents and yet the newspaper maintained back issues in its archive.
[19] During oral argument counsel for Mr. Ghenna withdrew the argument, raised only in his further memorandum of argument, based upon Guideline 7.
[20] Counsel posed no question for certification and no question arises on this record.
JUDGMENT
[21] THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the decision of the Board dated September 26, 2005 is hereby set aside.
2. The matter is remitted for redetermination by a differently constituted panel of the Board.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6155-05
STYLE OF CAUSE: ABIYE GHENNA
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
ROBERT BAFARO 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