Ottawa, Ontario, September 6, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ABDULWAHID HAJI HASSEN ABAWAJI
(a.k.a Abdulwahid Haji Abawaji)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant seeks judicial review of a decision of the Immigration and Refugee Board that he is neither a convention refugee nor a person in need of protection. Notwithstanding the deference due the Board’s findings, I am satisfied that the decision in this case was patently unreasonable and will grant the application.
[2] The applicant is a citizen of Ethiopia who came to Canada claiming a fear of persecution at the hands of the state due to his perceived affiliation with the Oromo Liberation Front (OLF). He alleges that as a perceived supporter of the OLF he was arrested, interrogated and tortured on five occasions from September 1991 through April 2001. The periods of incarceration varied from a period of two weeks to eighteen months. These facts were not contested at the hearing.
[3] The applicant’s wife came to Canada in 1996 and was accepted as a refugee in June 1997 largely on the strength of her husband’s experiences. In 1998 the applicant’s wife applied to get permanent resident status for herself plus her husband and children who were still in Ethiopia. This required medical examinations which took years to complete. In October 2001 the applicant flew to the United States with his youngest son with the object of meeting with his wife. She was to travel to meet the applicant and his son who were staying in the State of Georgia. However, the wife was advised not to leave Canada because she had no permanent residence status and would not be readmitted to Canada. The applicant then returned to Ethiopia.
[4] Upon his return to Ethiopia in December 2001 the applicant was unemployed and spent his time moving from village to village in order to avoid being arrested again. The applicant’s children were left in the care of their maternal grandmother. During this time the applicant asserts that he attended at the Canadian Consulate in Addis Ababa to inquire about the status of his permanent residency application. In July 2002 the applicant returned to the United States.
[5] The applicant remained in the United States until 2004. During this time he and his wife were required to undergo DNA testing in connection with the permanent residence application. The applicant underwent DNA testing in Atlanta in February 2004. At that time he was confronted by what he says were FBI officers who informed him that he should travel to the Canadian border and make a refugee claim. He travelled to Canada in March 2004 and made a claim for refugee protection. In December 2004 permanent residence visas were issued to the applicant’s children, who are now in Canada. Had the applicant remained outside Canada, in all likelihood, he too would have been granted permanent residency status.
[6] The Board found that in light of the applicant’s stated fear of persecution in Ethiopia, the fact that he returned to Ethiopia and remained there for seven months undermined his subjective fear of persecution. The Board did not accept as reasonable the applicant’s explanations regarding his return to Ethiopia and found it implausible that he was able to get a passport, two renewals and two exit visas from the Ethiopian government.
[7] The applicant’s failure to make a claim for asylum in the United States during the nearly two years he spent there was found to be unreasonable by the Board. The Board also found unreasonable the applicant’s explanation that neither he nor his wife knew that he could have made a claim for protection at the Canadian border, in light of the fact that his wife had been granted refugee status in Canada in 1997.
[8] The Board also drew a negative inference from the applicant’s failure to mention the sexual assault of his daughter by military personnel in either his point of entry interview or personal information form.
ISSUES
[9] Did the Board err in finding the applicant lacked subjective fear of persecution?
ANALYSIS
Standard of Review
[10] 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. The standard of review for such decisions therefore is patent unreasonableness: Gabissova v. Canada (Minister of Citizenship and Immigration), 2004 FC 362.
Subjective Fear of Persecution
[11] The fear of persecution in the definition of Convention refugee has a two-fold aspect. On the one hand, the applicant must experience a subjective fear. Fear must be present in the mind of the applicant for the definition of Convention refugee to be met. The second aspect is the objective element. The subjective fear of the applicant must have an objective basis. Adjei v. Canada (Minister of Employment & Immigration, [1989] 2 F.C. 680, 57 D.L.R. (4th) 153 (C.A.); Yusuf v. Canada (Minister of Employment & Immigration), [1992] 1 F.C. 629, 133 N.R. 391 (C.A.)
[12] The Board noted that the applicant’s evidence was that after the incident in April 2001 he “realised that it would be suicidal for him to remain in Ethiopia”. Nonetheless, he followed his wife’s instructions and returned there in 2002 to have medical tests redone for the sponsorship application. Before the Board the applicant testified that he might have had the tests done in the US but at the time it did not occur to him that this was a possibility.
[13] While the Board is entitled to take into account the applicant’s actions in assessing subjective fear, in my view it was unreasonable for the Board to conclude on the evidence that the fact that the applicant returned to the country where he feared persecution makes the existence of such a fear unlikely.
[14] This finding goes against the preponderance of evidence before the Board. In this case, the applicant’s wife was already in Canada and had claimed refugee status based on the experiences of her husband. During the time in which the applicant left, then returned to Ethiopia, he was awaiting the processing of the permanent resident applications for himself and his children which had been started by his wife here in Canada. The applicant’s explanation that he believed he needed to have the medical tests performed in Ethiopia, and therefore returned for that purpose, is not implausible given that he was unfamiliar with Canadian immigration procedures. Moreover, during that period he did not work and moved from village to village to avoid arrest.
[15] As noted by Justice John O’Keefe in Camargo v. Minister of Citizenship and Immigration, 2003 FC 1434 at paragraph 35, the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1988) indicates that "re-establishment" and "re-availment" both require an element of intent on the part of a claimant before physical presence in a country will negate refugee status. A temporary visit by a refugee to the country where persecution was feared without an intention to permanently reside there should not result in the loss of refugee status.
[16] Delay in making a claim for refugee protection should not be fatal to the claim where it is supported by a reasonable explanation: Tung v. Minister of Employment and Immigration (1991), 124 N.R. 388 (F.C.A.); El-Naem v. Canada (Minister of Citizenship and Immigration) (1997), 126 F.T.R. 15, 37 Imm. L.R. (2d) 304. The delay in terms of the time spent in the US was reasonably explained by the applicant. Once the claimant was informed by the FBI that he could travel to the Canadian border and make a claim, he did so promptly.
[17] The Board found that it was implausible that the applicant and his wife did not know that the medical examinations could have been conducted in the United States. In this respect, the Board attributed its specialized knowledge of Canadian immigration procedures to comparatively unsophisticated people. They could not be expected to have known that the medical examinations for the husband and children could be completed in a third country.
[18] With regard to the applicant’s failure to mention his daughter’s sexual assault at the port of entry or in his PIF, while not directly relevant to his claim he did make a point of mentioning it during his testimony and it was therefore legitimately considered by the Board to be an omission going to lack of credibility: Sanchez v. MCI, [2000] F.C.J. No. 536 (T.D.) (QL). However, the applicant explained that he had focused on his personal persecution and fears in his earlier statements and did not think it necessary for him to include information about a rumoured sexual assault. In the circumstances, the omissions should have been given little weight.
[19] I am satisfied that while each of the Board’s findings may have been open to it, when viewed as a whole this decision was patently unreasonable and should be remitted for reconsideration by a differently constituted panel.
[20] No serious questions of general importance were proposed and none will be certified.
Judgment
THIS COURT ORDERS that the application is granted and the matter is remitted for reconsideration by a differently constituted panel. No questions are certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6276-05
STYLE OF CAUSE: ABDULWAHID HAJI HASSEN ABAWAJI
(a.k.a. Abdulwahid Haji Abawaji) and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 28, 2006
REASONS FOR JUDGMENT: MOSLEY J.
APPEARANCES:
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Randal Montgomery
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John Loncar
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SOLICITORS OF RECORD:
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RANDAL MONTGOMERY Barrister & Solicitor Toronto, Ontario
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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