Date: 19990421
Docket: IMM-2643-98
BETWEEN:
BELAY GETACHEW YOHANNES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that phrase in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 23rd of April, 1998.
[2] The applicant is a citizen of Ethiopia. He bases his claim to Convention refugee status on an alleged well-founded fear of persecution if he is required to return to Ethiopia by reason of his political opinion reflected by his membership in the All Amahara People's Organization (the "AAPO"). He confirmed his membership in the AAPO and his work on its behalf by a letter, allegedly from the AAPO, which, in translation, reads in part as follows:
| We have confirmed from our sources as well as from information we obtained from the Ethiopian Human Rights that this member of our Organization was detained at different times and suffered in the hands of the security forces of the Ethiopian Government due to his active involvement in the Organization.2 |
[3] The CRDD undertook to confirm the information from the AAPO with the knowledge and approval of the applicant and his counsel. It provided to its contact at AAPO a copy of the earlier mentioned letter. In response, the CRDD received from AAPO, strangely under date of the 24th of July, 1990, a letter indicating that the applicant is not a member of AAPO3. A copy of the response was provided to counsel for the applicant. Counsel advised the CRDD:
| In the light of this evidence, it is my professional opinion that written submissions are not appropriate since no evidence exists that I am aware of which impugns the procedures followed by the AAPO office in arriving at its conclusion4. |
I reiterate for emphasis that the only conclusion arrived at by AAPO was to the effect that, at the time it corresponded with the CRDD, which was clearly after the applicant left Ethiopia and after the hearing before the CRDD, the applicant was not then a member of AAPO. The advice to the CRDD from AAPO provided no comment on the earlier letter confirming the applicant's membership, his work for the organization and the resultant difficulties that he suffered.
[4] In a very brief decision, the CRDD wrote:
| The claimant bases his claim to persecution at the hands of the Government of Ethiopia on his activities with the AAPO. The claimant submitted a letter of support allegedly from that organization. He described where he met with members of the organization and the extent of his participation. He stated that he had spent time in detention and submitted a doctor's report testifying to physical and emotional scars as a result. The claimant did not object to having his letter sent for verification to Addis Ababa. A transcript regarding the methodology of verification of AAPO membership was disclosed to the claimant. The reply from the AAPO states that the claimant was not a member of that organization. The claimant was given ample time for rebuttal. The claimant accepted the statement from the AAPO. As the claimant was not a member of AAPO, his claim to persecution could not have happened as he testified and is an attempt to create a refugee claim. As well, the report by Dr. Wendell Block in support of this claim cannot be given any probative value. [emphasis added] |
[5] With great respect, I conclude that the CRDD completely misinterpreted what it received from AAPO. AAPO did not advise the CRDD that the applicant had never been a member. Rather, it simply advised that at the date of its response to the CRDD, whenever that was, the applicant was not then a member. On the basis of this misinterpretation, the CRDD effectively concludes that, since the applicant was never a member of AAPO, a completely groundless inference, he never suffered persecution, his claim was entirely fabricated and the medical evidence in support of his claim was of no probative value.
[6] The inference and conclusion drawn by the CRDD from the correspondence from AAPO was, if it was a finding of fact, perverse and capricious and made without due regard to the material before the CRDD. If it was not a finding of fact, and I would prefer to characterize it as a mixed determination of fact and law, it constituted a reviewable error whatever the appropriate standard of review might be.
[7] For the foregoing reasons, this application for judicial review will be allowed, the decision of the CRDD will be set aside and the applicant's application for Convention refugee status will be referred back for rehearing and redetermination by a differently constituted panel.
"Frederick E. Gibson"
Judge
TORONTO, ONTARIO
April 21, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2643-98
| STYLE OF CAUSE: BELAY GETACHEW YOHANNES |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: TUESDAY, APRIL 20, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: WEDNESDAY, APRIL 21, 1999
APPEARANCES: Mr. Micheal Crane
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Micheal T. Crane
Barrister & Solicitor
200-166 Pearl St.,
Toronto, Ontario
M5H 1L3
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990421
Docket: IMM-2643-98
Between:
| BELAY GETACHEW YOHANNES |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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