Date: 20040623
Docket: IMM-5929-03
Neutral citation: 2004 FC 901
OTTAWA, Ontario, this 23rd day of June, 2004
PRESENT: THE HONOURABLE MR. JUSTICE PHELAN
BETWEEN:
MENGISTU KEBEDE SIDA
EMEBET TADESSE GEBRIE
ABENEZER MENGISTU
SELEHOM MENGISTU
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
NATURE OF PROCEEDINGS
[1] The Applicants, a family, challenge the decision of a single member (Member) of the Immigration and Refugee Board (the Board) that they were not Convention refugees nor persons in need of protection.
[2] The Applicants raise three issues:
(a) that the Member failed to properly consider or in fact to consider at all, section 97 of the Immigration and Refugee Protection Act (the Act);
(b) that the Member applied the wrong standard of proof by holding that the Applicants have failed to establish a reasonable chance of persecution;
(c) that the Member failed to consider the Applicants' risk as returning defectors.
BACKGROUND
[3] The Applicants are a family of four from Ethiopia. The male Applicant (Sida) provided the grounds upon which the refugee application was based.
[4] Sida was a senior official (Commercial Counsellor) of the Ethiopian Embassy in Rome where he served for eight years. At staff meetings Sida made adverse comments about Ethiopia's human rights record and the adverse impact that this record had outside Ethiopia. He also expressed opposition to the war against Eritrea. On that basis he believed that he attracted the attention of the political cadres, presumably the political operatives of the incumbent party.
[5] Sida concluded that he had been demoted from his First Secretary position and had been ordered recalled to Ethiopia because of these political comments. The Member rejected Sida's conclusions holding that Sida had not, in fact been demoted, and that his recall was merely the normal return of a diplomat to his home country at the conclusion of the term for a foreign posting.
[6] However, one event of significance stands out. Sida suspected that his office had been searched by the political cadres because they referred to information (presumably at meetings and on similar occasions) which could only have come from documents in his office. His suspicions were confirmed to him by a janitor in May 2001; the Applicants left home for Canada in June 2002.
[7] The Member held in respect of this matter that the Applicants did not leave Italy for Canada as soon as Sida knew his office had been searched. The Member made no finding that the incident or the timing thereof did not occur as contended by Sida.
[8] Sida had returned to Ethiopia on at least four (4) occasions since 1997, the year of the commencement of his difficulties with the government. These facts combined with the 5 months notice of his recall to Ethiopia and his delay in leaving after the office search resulted in the Member's conclusion that his actions were not consistent with a subjective fear and that the objective evidence did not support his contentions.
[9] The Member drew adverse inferences on Sida's subjective fear by his failure to leave Italy sooner, returning to Ethiopia four times, not leaving when he received the recall latter and his failure to claim refugee protection while in Italy or any other European Union country.
[10] The country conditions concerning Ethiopia are not favourable. However the Member held that the country conditions were less relevant than they might have been had the Applicants' claim that there was possible serious harm been accepted.
[11] In the end the Member's decision was to deny refugee status and deny the claim for protection.
ANALYSIS
[12] The Member's decision is largely fact based. It was, as a general rule, careful, thoughtful and well reasoned. The standard of review applicable to the findings of fact are patent unreasonableness. It is therefore with some caution that I find that in limited but material areas, there are findings which are patently unreasonable.
[13] To complete the issue of standard of review, where the issue is the application of the facts to the law, the standard is reasonableness; where it is one of law, the standard is correctness.
[14] With regard to the first issue regarding section 97, the Applicants say that subjective fear is not relevant to that section and therefore the Member did not conduct a proper and separate section 97 inquiry.
[15] This Court in Bouaouni v. Canada (MCI) [2003] F.C.J. No. 1540 held that failure to analyse section 97 grounds separately from section 96 is an error. However one must look at the whole of the decision to determine whether the analysis was done at the same time as the section 96, which is permissible.
[16] Subjective fear is not irrelevant to a section 97 inquiry. While it may not be determinative of risk, it does relate to the personalized risk and the basis for holding that objectively such risk exists. On the other hand an absence of credible subjective risk does not mean that the country conditions are such that an applicant is not in need of protection.
[17] It is in this regard that the Member erred in rejecting any consideration of country conditions. His rejection of the subjective evidence lead the Member to effectively ignore country conditions.
[18] The Member concluded that the Applicants had not left soon enough after the office break in to found a conclusion of risk, presumably both objective and subjective.
[19] However, the evidence is that while the break in occurred prior to May 2001, Sida only had suspicions that it occurred. It was only in May that the suspicions were confirmed by the janitor. Within approximately one month of this confirmation, the Applicants left Italy and made their claim.
[20] With due respect to the Member, I find that it is patently unreasonable to conclude that the delay, either from time of suspicion or time of confirmation, was too long. Consideration must be given to the fact that Sida could not act until he knew the true circumstances, that he had a family to organize to leave and that his risk arose when he had to return to Ethiopia in June not while he was in Rome.
[21] Assuming that the break in occurred (the Member made no finding to the contrary) the evidence suggests that country conditions are very relevant to objective risk. The country conditions upon his return inform the nature of the risk Sida faces. Therefore the Member's conclusion with respect to the relevance of country conditions is in error.
[22] With respect to the issue of standard of proof, the Member's statement that the Sida had not persuaded the panel that the events "were necessarily pointing to a reasonable chance of persecution in his immediate future" is not the application of an erroneous standard of proof.
[23] While the statement does not parrot the words of the Act, a review of the inquiry conducted confirms that the Member applied the proper standard of proof.
[24] With respect to failure to consider Sida as a returning defector, the Applicants never made that issue a part of their claim. The Applicants cannot complain if the Member does not consider issues which the parties have not raised.
[25] As this matter is being referred back to the Board and is substantially driven by its facts, there is no question to be certified.
ORDER
IT IS HEREBY ORDERED THAT:
a) this Application for Judicial Review is granted, the decision of the Board is quashed and the matter is remitted back to the Board to be determined by such panel as the Board determines to be appropriate;
b) no question will be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: IMM-5929-03
STYLE OF CAUSE: Mengistu Kebede Sida, Emebet Tadesse Gebrie, Abenezer Mengistu, Selehom Mengistu v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 23, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Phelan
DATED: June 23, 2004
APPEARANCES:
Mr. Michael Crane FOR THE APPLICANTS
Ms. Neeta Logsetty FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Michael Crane
Toronto, Ontario FOR THE APPLICANTS
Mr. Morris Rosenberg
Deputy Solicitor General of Canada
Ottawa, Ontario FOR THE RESPONDENT