Date: 20070330
Docket: IMM-3323-06
Ottawa, Ontario, March 30, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Gebremaskel is a citizen of Eritrea whose claims for protection under section 96 and 97 of the Immigration Refugee and Protection Act, S.C. 2001, c.27 (IRPA) on grounds of political and religious persecution was denied.
[2] The aspects of her claim advanced orally in this judicial review were fear of military service and her status as a Jehovah Witness. She left Eritrea in 1998 for the United Kingdom where her refugee claim was denied. She then came to Canada.
[3] A central aspect of her claim is that she was and is a Jehovah Witness. The Immigration and Refugee Board (IRB) directed the Applicant to obtain evidence from the United Kingdom and the Toronto congregation confirming her membership. This she failed to do. The IRB found that not only had she not produced the evidence, she had failed to show that she had made serious efforts to do so. As a result, the IRB concluded that she had not established that she was a continuing Jehovah Witness. The IRB made no finding as to her fear of compulsory military service.
Military Service
[4] The Applicant had contended that she feared military service because Eritrea has compulsory military service for both genders and does not recognize exemptions from such service, such as on religious grounds. Her fear was multi-faceted – it was certainly focussed on her Jehovah Witness religious belief that it was wrong to serve in the military. However, it was also based on her general fear of being forced to serve and the likelihood of being killed.
[5] There was evidence before the IRB from Amnesty International that in Eritrea, those who refused to serve in the military were subject to arbitrary detention and torture. The risk of detention and torture was more acute if one were a Jehovah Witness.
[6] While the IRB did not do a separate section 97 analysis, this is not always fatal to a decision if the finding that a person was not in need of protection was one which was open to the IRB on the evidence before it. (Bouaouni v. Canada (Minister of Citizenship and Immigration)), [2003] F.C.J. No. 1540, 2003 FC 1211). In order for such a finding to be sustained without a clear section 97 analysis, the IRB must show that it considered the relevant evidence and had the issue of protection in mind. (Kilic v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 84, 2004 FC 84.)
[7] In this case, the IRB never turned its mind to the evidence of arbitrary detention and torture which is inflicted on military deserters and evaders generally. The IRB never considered the objective evidence of risk in this context but appears to have focussed all of its attention on the issue of the Applicant’s religious practice.
[8] The failure to address or even exhibit awareness of this aspect of a section 97 analysis is an error of law. The comments at the end of the decision as to section 97 are not an analysis of the risks of refusal to serve in the military.
Continuing Jehovah Witness
[9] The IRB appears to have accepted that the Applicant was a Jehovah Witness until she left Eritrea but considered her to be no longer a member of that religion. The Applicant does not challenge the finding as to her continuing religious status but argues that the IRB failed to consider whether the Applicant would be perceived to be a Jehovah Witness if she were returned to Eritrea.
[10] The IRB cannot generally be faulted for not considering a ground of a claim not advanced by an applicant (Guajardo-Espinoza v. Minister of Employment and Immigration, [1993] F.C.J. No. 797 (F.C.A.)). The issue was not advanced as an alternative argument at the IRB hearing and cannot form the basis of an attack on this decision.
[11] Therefore, the IRB made no erroneous finding concerning whether the Applicant was a continuing member of Jehovah Witness.
Conclusion
[12] For these reasons, this application for judicial review will be granted. There is no question for certification.
ORDER
THIS COURT ORDERS that the application for judicial review is granted, the decision of the Immigration and Refugee Board is quashed and the matter is remitted for a new determination by a differently constituted panel of the Immigration and Refugee Board.
"Michael L. Phelan"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: ASNAKECH GEBREMASKEL
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 22, 2007
APPEARANCES:
MICHAEL CRANE FOR THE APPLICANT
MARIA BURGOS FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHAEL CRANE FOR THE APPLICANT
Barrister & Solicitor
Toronto, Ontario
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario