OTTAWA, Ontario, this 28th day of December, 2005
PRESENT: THE HONOURABLE PAUL U.C. ROULEAU
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated April 14, 2005 in which the Board found that the applicant was not a Convention refugee or a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, 2001 S.C. c. 27 (the IRPA). The Board's finding was based on a lack of credibility of the applicant's alleged story.
[2] The applicant, Abduletif Abas Tosha, is a citizen of Ethiopia who claims to fear persecution due to his real or imputed political opinion. He fears persecution at the hands of the Ethiopian government who, he claims, suspects him of being a member of the Oromo Liberation Front ("OLF")
[3] The applicant claims that his home was searched twice, in August and December of 1992. He further alleges that, in February 1993, he was apprehended, blindfolded, beaten, and abandoned on a hillside in Addis Abada.
[4] The applicant states that he was transferred in his job to Ciro in Eastern Ethiopia in 1993, where he was detained and questioned by three security agents about the OLF. He denied being an OLF member and declares that he was tortured by the security agents; that his relatives managed to secure his release, eight days later, with a bribe.
[5] The applicant was elected as a member of parliament ("MP") in Addis Abada in 1995. He claims that he opposed a Bill in February 1996 (regarding the construction of airports) which was put forward by the Speaker of the House. He alleges that his life was threatened because of his opposition. The applicant's cousin, who was the Minister of Health at the time, was apparently able to transfer the applicant to his Ministry of Health as a Department Head.
[6] The applicant further claims that he was detained in July 1998 for speaking Oromo in a restaurant, when he was once again accused of being an OLF member and was held for three days.
[7] In 1998, the applicant's cousin managed to arrange for his participation in a three-month training program in Boston, Massachusetts, USA. He travelled to Boston and applied for asylum in the USA in September 1998. His claim in the USA was unsuccessful, as was his appeal. He was ordered removed from the USA on November 27, 2002. He travelled to Canada and applied for refugee status on March 8, 2003. On April 27, 2005, the Board determined that he was not a Convention refugee or a person in need of protection.
[8] The Board considered the applicant's claim and found that he was not a credible witness. The Board's decision, dated April 27, 2005, concluded that the applicant had not given credible evidence as to incidents which would place him at risk. The Board found that there was insufficient credible evidence to link the applicant to the OLF and its sympathizers and concluded that the applicant invented his story about being a suspected OLF member to bolster his refugee claim. The Board concluded that there is no more than a mere possibility that the applicant would face persecution in Ethiopia as a suspected OLF member, based on his perceived political opinion or any other Convention ground.
[9] The Board found, inter alia, that the government of Ethiopia would never let a suspected OLF supporter be elected as an MP, or be promoted to the level of Department Head in an Ethopian government Ministry, particularly after alleged persecution had occurred.
[10] The Board also found that the applicant's testimony that the Minister of Health, his cousin, was detained in 1998 or 1999 for helping him leave the country is not credible. The applicant was confronted with documentary evidence showing that the Minister of Health was still in place in 2000, but not in 2001, suggesting that he may have lost the 2000 elections. The applicant did not respond.
[11] The Board goes on to note discrepancies between the applicant's Port of Entry ("POE") notes from March 7, 2003, and his oral testimony, noting that the inconsistencies further impugn his credibility.
[12] The Board comments on the lack of credibility of the witness provided by the applicant and points out inconsistencies in the witness' testimony.
[13] The Board concludes that the applicant is not a Convention refugee or a person in need of protection.
[14] The only issue in the present application is whether the Board's decision with respect to the applicant's credibility was made in a reasonable manner. The Board's decision is only reviewable if it was made in a perverse and capricious manner, without due regard to the evidence before it.
[15] The applicant submits that the Board erroneously concluded that he could not be a suspected sympathizer or member of the OLF and be allowed to be elected to Parliament and maintain employment with the Ethiopian government until his departure.
[16] It is submitted that the documentary evidence relied upon by the Board is not sufficient to sustain its underlying determination (lack of credibility, that he invented his membership in OLF) which is the key conclusion and the basis for most of the findings and determinations made by the Board. The applicant particularly attacks the Board's conclusion with respect to membership in OLF; no doubt they were critical of government efforts but it is submitted that the repercussions were not as punitive as found by the Board. My review of the documentary evidence, particularly the Human Rights Watch of 2002, indicates that the government had banned the OLF for a decade and there were arrests and detentions of alleged OLF members or sympathizers and this threat was continuing in 2002.
[17] The applicant is relying on one brief comment in the Human Rights Watch report of 2003 which states "that the government suspends teachers and public servants from their jobs if they are suspected of being members or sympathizers of the OLF" and suggests that this is the extent of the difficulties or the persecution that one would face. By way of rebuttal to this allegation, the Board indicates that their finding of the serious fate which eventually befalls OLF sympathizers is more credible and reliable.
[18] I agree that there may be some minor factual misinterpretations by the Board but they are not fatal to its overall conclusion.
[19] As the Board pointed out, they do not accept that the applicant could have maintained his government positions since 1988, transferred within the country, be elected Member of Parliament, be promoted to department head and be chosen to attend a three-month course in Boston, Massachusetts, if he were at all suspected of being a member of the OLF.
[20] The overall assessment is that of credibility and this is an area where the court owes due deference to the Board. The Federal Court set out the review process for a credibility finding in R.K.L. v. Canada(Minister of Citizenship and Immigration) [2003] F.C.J. No. 162, at paras 7-8:
¶ 7 The determination of an applicant's credibility is the heartland of the Board's jurisdiction. This Court has found that the Board has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant: see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (QL) (T.D.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 14.
¶ 8 Moreover, it has been recognized and confirmed that, with respect to credibility and assessment of evidence, this Court may not substitute its decision for that of the Board when the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it: see Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14 (QL) (T.D.) ("Akinlolu"); Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124 at para. 9 (QL) (T.D.) ("Kanyai"); and the grounds for review set out in paragraph 18.1(4)(d) of the Federal Court Act.
[21] Further, the Federal Court noted in Gabissova v. Canada(Minister of Citizenship and Immigration) [2004] F.C.J. No. 426 at para 3:
It has been clearly established that the determination of an refugee claimant's credibility is the heartland of the Board's jurisdiction (R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 (F.C.T.D.) (QL) at paragraph 7 and (2003), 228 F.T.R. 43. In other words, it is recognized that the Board has a well-established expertise to rule on questions of fact, and most particularly, to assess the credibility and subjective fear of persecution of a claimant. In this case, the applicant has not persuaded me that the general finding of lack of credibility is arbitrary or capricious, although some of the findings of fact made by the panel might seem questionable or inaccurate. On the other hand, even if I do not necessarily share the interpretation given by the panel with respect to certain aspects of the documentary evidence, the panel's decision is supported by the evidence and does not appear to be patently unreasonable. Nor is this a case where it is obvious that the sheer number of errors, whether material or not, leaves one with little confidence in the soundness of the other conclusions (Haji v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1266 (F.C.T.D.) (QL) at paragraph 14).
[22] The amount of deference owed to the Board in a credibility decision is very high. The assessment of credibility is, as the Court noted in RKL, supra, the "heartland" of the Board's jurisdiction.
[23] In the present matter, I am of the opinion that the Board's analysis was properly rooted in the relevant evidence and cannot be disturbed by this court.
[24] Each of the findings made by the Board was made with respect to implausibility and inconsistencies in the testimony of the applicant and of his witness. None of the material findings was made in a perverse and capricious manner, without due regard for the evidence. The Board is entitled to make findings based on implausibility, which it did in respect of the applicant's election as an MP and his high placement in a government ministry. The Board's finding, that such a placement for a suspected OLF supporter is implausible, is a reasonable finding.
[25] It is trite law that the Board can rely on implausibility and inconsistencies in the evidence given by the applicant, which the Board did in the present case.
[26] I am of the opinion that the Board's findings with respect to implausibility and inconsistencies in the applicant's story, and his witness' story, are reasonable and the Board's decision cannot be disturbed. The applicant's inability to address the contradiction between his assertion that the former Minister of Health had been removed from his position and detained, as a result of helping the applicant leave Ethiopia, and the documentary evidence suggesting that the Minister was still in office in 2000 could be determined to be somewhat misleading but it was nevertheless not critical to the overall finding and I must conclude that the Board's decision is reasonable.
JUDGMENT
The application for judicial review is dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3012-05
STYLE OF CAUSE: Abduletif Abas Tosha v. Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa Ontario
DATE OF HEARING: December 14, 2005
APPEARANCES:
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Mr. B. Pfeiffer |
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Ms. Catherine Lawrence Ms. R. Rothchild |
SOLICITORS OF RECORD:
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Pfeiffer & Associates
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John H. Sims,, Q.C. Deputy Attorney General of Canada |