Docket: IMM-9252-04
Toronto, Ontario, August 24th, 2005
Present: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
LUILA NEGA
THOMAS TEKLE by his litigation guardian Luila Nega
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The Principal Applicant, Luila Nega, is a 32 year old Ethiopian citizen. Her son is Thomas Tekle who is also a claimant. She claims refugee status due to her nationality as an Ethiopian with Eritrean heritage and due to perceived political opinion as the daughter and wife of people who spoke out against Eritrea's independence. Her father was Eritrean and her mother was Ethiopian. Even though her father was Eritrean, he did not support the liberation fronts of Eritrea. When his brothers were killed, he spoke out against the Eritrean People's Liberation Front ("EPLF").
[2] The Principal Applicant married a man who was also part Eritrean. In the late 1990s, the border between Eritrea and Ethiopia erupted and ethnic cleansing and deportations took place. In June of 1998, soldiers entered the restaurant the Principal Applicant and her husband ran, beat her husband and took him away. Her mother had learnt that the Principal Applicant's husband had been accused of being an Eritrean spy. She went to Kenya and while there found out that her father had been taken as well.
[3] The Principal Applicant contacted a family friend and left for the US. She applied for refugee status there but was told her chances were very slim. While in the US she met an Eritrean and became pregnant. She did not await the official results of her claim. She returned to Kenya in July of 2001 where her son was born.
[4] She and her son left Kenya and arrived in Canada on September 25, 2003, and sought refugee status in Canada.
[5] The Board in a decision dated October 4, 2004 found her testimony not credible, believed her claim was contrived and found she was Ethiopian with no Eritrean descent.
Inter alia it found:
- the Principal Applicant had not established her Eritrean ethnicity, she could not produce any documentation other than a birth certificate. The Board did not find the Principal Applicant's explanations for her lack of documentation plausible
- she had stayed in Kenya for a total of four years over two visits and thus demonstrated a lack of subjective fear
- she did not register with the United Nations High Commissioner for Refugees ("UNHCR") in Kenya
- she went to the US but did not prosecute her refugee application deligently in the US, she did not appear for a hearing regarding her removal and left the US eight months pregnant when in one month her child would have been born a US citizen
- she did not contact the UNHCR or the International Committee of the Red Cross ("ICRC") to seek help finding her husband and father
[6] The Applicant raises three issues:
1. The Board erred in assessing the Applicant's credibility?
2. The Board erred in failing to assess the Applicant's claim under s. 97.
3. The Board erred in failing to separately assess the claim of the Minor Applicant?
[7] It is undisputed that the standard of review for issues of credibility is patent unreasonableness (Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J.
No. 17.
[8] 1. Were the Board's credibility findings patently unreasonable?
[9] The Applicant submits that the Board did not address the Applicant's explanation that she left her ID card in her restaurant when her husband was taken away and she never returned to the restaurant. The Board also did not address the Applicant's explanation for why she could not obtain her marriage certificate. She said it was at her house and that the house had been re-claimed by the original owners and had been closed by the government. The Board also did not refer to the fact that the Applicant's mother died in 2001 leaving her noone to contact to try to obtain documents on her behalf.
[10] The Applicant further asserts that the Board should have considered her explanation for not turning to the UNHCR for refugee assistance. Her mother's cousin Luel, who lived in Kenya, told her no to and that others in Kenya had said she would not likely succeed. The Applicant submits that the Board did not consider the Applicant's state of mind, being that she was pregnant and confused.
[11] The Applicant advances that it is unreasonable for her to know the mandates of various non-governmental organizations and that she did take steps to find her husband and father, including contacting her mother, asking Luel and attempting to locate her husband's cousins in Ethiopia.
[12] It is well established law that the Board does not have to refer to every piece of evidence in its reasons. As stated by the Court of Appeal in Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 at para 1
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown.
[13] The applicant provided no personal documents other than her birth certificate. She had no marriage certificate, no school documents, no kebele, which is the usual form of Ethiopian identification document and which would show recent domicile. She never obtained an Ethiopian passport
[14] The RPD panel took account of her various explanations for why she did not have the foregoing documents (ie: she left her kebele behind in her restaurant, her home was closed after she left, etc.) and concluded that those explanations were not persuasive.
[15] When considered in the context of the female applicant having spent at least five years outside of her country and having travelled back and forth to Kenya and the United States, sojourning in each country without any identification at all, the panel'a conclusion is reasonable.
[16] 2. Did the Board err in assessing the Applicant's claim under s. 97 while failing to address her s. 96 claim?
[17] The Applicant asserts that a Board must assess whether removal would subject an applicant to a danger or torture, or risk to life or to a risk of unusual treatment or punishment under certain conditions and not whether or not there is a subjective fear on the part of the claimant. She states that a claimant can be found to be not credible with respect to their fear of persecution but that the country conditions dictate that due to her particular circumstances, she is a person in need of protection. The Board's reasons were inadequate with regard to the s. 97 claim and her risk should have been properly assessed
[18] Contrary to the applicant's argument that the panel erred in not assessing separately the claim for protection under s. 97 of the Immigration and Refugee Protection Act, there was no requirement in this instance to do so. The finding that the applicants had not made out a central element of their claim, their Eritrean ethnicity, meant that there was not basis upon which a claim for protection under any other heading could be assessed. Accordingly the Board did not err when finding the Applicants were not persons in need of protection.
3. Did the Board err in not assessing the claim of the Minor Applicant?
[19] The Applicant submits that the Board erred in not assessing the claim of the Minor Applicant. As the son of an Eritrean father and a half Eritrean mother his claim should be separately assessed as he faces different risks than his mother.
[20] The Minor Applicant's claim depended on the Applicant's evidence which was not accepted by the Board. There was no evidence that he was of Eritrean ethnicity. His Personal Information Form ("PIF") indicates that he is Eritrean while the documents she filed indicate that his citizenship is Ethiopian.
[21] The Board was entirely reasonable in rejecting the four year old Minor Applicant's claim as it did not find the Principal Applicant credible. It is not patently unreasonable to reject a derivative claim if the main claim found to be fabricated.
ORDER
THIS COURT ORDERS that this claim be dismissed.
"K. von Finckenstein"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9252-04
STYLE OF CAUSE: LUILA NEGA, THOMAS TEKLE
By his litigation guardian Luila Nega
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, AUGUST 23, 2005
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: AUGUST 24, 2005
Mr. Patrick Roche FOR THE APPLICANTS
Ms. Kristina Dragaitis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Refugee Law Office
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT