Date: 20030416
Docket: IMM-1206-02
Ottawa, Ontario, Wednesday the 16th day of April 2003
Present: The Honourable Madam Justice Dawson
BETWEEN:
SOLOMON ZELEKE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Solomon Zeleke is a citizen of Ethiopia who claimed a well-founded fear of persecution based upon his Amhara ethnicity and his active membership in the All Amhara People's Organization ("AAPO"). He brings this application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") that he is not a Convention refugee.
BACKGROUND FACTS
[2] According to Mr. Zeleke's Personal Information Form ("PIF"), the current government of Ethiopia has killed, detained and tortured prominent people of Amhara nationality. A great number of Amhara people were forced to flee different parts of Ethiopia. Their homes were burned and their property confiscated.
[3] Mr. Zeleke also says in his PIF that the AAPO is a political party that uses all legal means to protect the rights the Amhara people, to expose their sufferings and to inform the rest of the world about the treatment, killings and detention of the Amhara people. Mr. Zeleke says he became a full member of the AAPO in March, 2000 and worked as chairman of the propaganda committee of the Nazret Regional Branch. His work included exposing the policy of the government, recruiting new members, mobilizing people for demonstrations, writing documents distributed by the AAPO and distributing those documents to international agencies.
[4] Between January 1995 and March 2001, when he left Ethiopia, Mr. Zeleke was detained and arrested 14 times. He states in his PIF that he was interrogated and tortured during some of his detentions. According to his testimony before the CRDD, many of the arrests took place because of his ethnicity. In a second narrative submitted to the CRDD, Mr. Zeleke stated that he was blamed and arrested for sabotage of the water supply and sewage system. Mr. Zeleke has a diploma in water resources engineering from the University at Addis Ababa in Ethiopia. Since August 1986 he worked for the government in the Water Works Construction Authority and, from May 1998 onward, in the Water Supply & Sewage Authority. At the time he left Ethiopia, Mr. Zeleke was head of the Water Supply Agency for the Oromia zone in Nazret.
[5] According to his PIF, Mr. Zeleke reported his problems to the federal government and requested a transfer. His request was denied and he was ordered to return to Nazret within 72 hours. He returned to Nazret to find that his home had been ransacked, all of his belongings were taken and no one was willing to talk to him. Mr. Zeleke left Ethiopia on March 26, 2001 arriving in Canada on April 10, 2001.
THE DECISION OF THE CRDD
[6] Central to the negative decision of the CRDD were its findings that:
1. Mr. Zeleke was detained for work-related reasons rather than his Amhara ethnicity or membership in the AAPO;
2. Mr. Zeleke's testimony was implausible in that, because he obtained his diploma from a local university, it was reasonable to infer that his employer would have found someone to replace Mr. Zeleke if it thought he was deliberately sabotaging the water supply;
3. Other members of the executive of the AAPO were similarly situated to Mr. Zeleke and yet they were not mistreated or persecuted;
4. Mr. Zeleke's testimony on his ability to change jobs was directly contradicted by the United States Department of State ("DOS") report for the year 2000;
5. Mr. Zeleke's statements that in prison he was beaten with a stick, that his legs were tied and then he was hit on his heels or legs, and that others were killed in prison were an embellishment.
ANALYSIS
i) The finding that Mr. Zeleke was detained for work related reasons.
[7] The CRDD did not apparently take issue with Mr. Zeleke's evidence of detention, but concluded that he was persecuted because of his work performance and not on account of a Convention ground. To so conclude, the CRDD recited at length excerpts from Mr. Zeleke's second statement dealing with his detentions which arose in the stated context of his failure to implement orders with respect to water construction. However, it was Mr. Zeleke's evidence that while the excuse used to justify his detention was work related, the motive for the detention related to his ethnicity or involvement in the AAPO. The reasons of the CRDD do not indicate that it properly appreciated the relationship Mr. Zeleke asserted between the ground of complaint and the motive for the complaint.
ii) The finding that Mr. Zeleke was replaceable.
[8] As noted above, the CRDD inferred that Mr. Zeleke's employer would have found someone to replace him if it thought that he was deliberately sabotaging the water supply and creating problems in the Water Supply Agency. This inference was based on the fact that Mr. Zeleke had obtained his diploma from a local university so that there was nothing unique with respect to his qualifications. Mr. Zeleke addressed this issue in answer to a question put to him by the presiding member as follows:
Q. And why would they have so many - - why would they find you irreplaceable when you only studied in Addis Ababa University and presumably there were other students like you?
A. When we finished - - when I finished at that time, there was very little manpower in the country on this profession. Secondly, they were dispersed all over the country. But secondly, I had also a lot of experience since that time on the job. They just can't take a newly finishing graduate - - a new graduate to replace me without experience and without practice. He cannot work all the technical work. It would be difficult for him.
Mr. Zeleke also testified that he was the only engineer working for the Water Supply Agency.
[9] There were no inconsistencies within Mr. Zeleke's evidence on this point and no evidence as to the number of experienced water resource engineers in Ethiopia. In my view, the CRDD erred in concluding in the absence of evidence (and contrary to the sworn testimony of Mr. Zeleke) that Mr. Zeleke was easily replaceable. This inference or finding of implausibility was, therefore, unsupported by the evidence.
iii) The finding that other members of the executive of the AAP0 were similarly situated but not mistreated or persecuted.
[10] The CRDD noted that Mr. Zeleke was not the only executive member of the AAPO in his area. It relied upon the fact that the other members of the executive were similarly situated to Mr. Zeleke, but were not treated in the same way, to conclude that Mr. Zeleke's testimony that he was persecuted because of his ethnicity and his work in the AAPO was not reliable or trustworthy.
[11] However, in so concluding the CRDD failed to deal with Mr. Zeleke's testimony that he was not similarly situated because:
1. As chairman of the local AAPO propaganda committee he was the only member to pass documents to foreign non-government organizations explaining the injustices being done to the Amhara people;
2. His position as head of the Water Supply Agency put him into daily contact with local government leaders, while others were not put into such contract.
3. The government wanted to show the world that there were opposition political parties in Ethiopia, so that leading members of the opposition executive and party were not touched, while other, less visible, members were arrested.
[12] While the CRDD was not obliged to accept this testimony, it was obliged to explain why it rejected Mr. Zeleke's testimony to conclude that he was similarly situated to other non-molested figures. Mr. Zeleke's testimony was sufficiently significant on this point that the failure with the CRDD to deal with it leads to the inference that the CRDD's conclusion was made without regard to this evidence. See: Cepeda-Guittirez v. Canada (Minister of Citizenship and Immigration), (1998) 157 F.T.R. 35.
iv) The finding that Mr. Zeleke's statements about torture were an embellishment.
[16] The CRDD wrote that:
If this is the sort of thing that was done in the prisons, it is reasonable to infer that the disinterested, expert, impartial informed sources in the documentary evidence like DOS, Human Rights Watch, Political Handbook of the World, etc. would mention these, but they haven't done so. Also, the DOS report mentions that diplomats and human rights groups, Red Cross, etc have access to prisons. So if this thing was happening, it is reasonable to infer that it would be reported, but this was not done. I find this to be an embellishment.
[17] In fact, the documentary evidence contained the following information:
U.S. 2000 DOS report:
The Constitution prohibits the use of torture and mistreatment; however, there were credible reports that security officials sometimes beat or mistreated detainees. Government media published occasional reports of officials who were jailed or dismissed for abuse of authority and violations of human rights. In the fall, police reportedly beat a man who was detained allegedly in retaliation for election activities; he was beaten so severely that he sustained permanent damage. In December police reportedly beat another man to death who was detained for similar reasons.
The UK Home Office report:
The 1994 Constitution gives prominence to, and guarantees respect for, human rights. In practice the Government's human rights record continued to be poor. During 1998, 1999 and 2000 security forces at times beat and mistreated detainees and committed extra-judicial killings.
The Ethiopian Human Rights Council reported:
The security officers then began taking turns beating the soles of their bare feet, their backs, and other parts of their bodies.
[18] Again, the inference of embellishment was not supported by the documentary evidence which in fact confirmed Mr. Zeleke's testimony about prison treatment.
CONCLUSION
[19] While, as a matter of law, great deference must be accorded to the CRDD in its assessment of evidence and its conclusions of credibility, I am satisfied that in the present case the errors described above warrant intervention by this Court. Accordingly, the decision of the CRDD will be set aside and the matter remitted to a different panel of the Refugee Protection Division for redetermination.
[20] Counsel posed no question for certification, and no certified question arises on this record.
Page: 8
ORDER
[21] IT IS HEREBY ORDERED THAT:
The decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated February 26, 2002 is hereby set aside. The matter is remitted for redetermination before a different panel of the Refugee Protection Division of the Immigration and Refugee Board.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1206-02
STYLE OF CAUSE: Solomon Zeleke v. M.C.I.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: December 9, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: April 16, 2003
APPEARANCES:
Mr. Byron E. Pfeiffer FOR THE APPLICANT
Ms. Lynn Marchildon FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Pfeiffer and Associates FOR THE APPLICANT
Barristers and Solicitors
Ottawa, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada