Ghirmatsion v. Canada (Citizenship and Immigration)

Ghirmatsion v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2011-05-05
Neutral citation
2011 FC 519
File numbers
IMM-6000-09
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20110505
Docket: IMM-6000-09
Citation: 2011 FC 519
Ottawa, Ontario, May 5, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
HENOK AYNALEM GHIRMATSION
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] The Applicant, Mr. Henok Aynalem Ghirmatsion, is a citizen of Eritrea. In 2006, he left Eritrea, travelling first to Sudan and then, in 2007, to Egypt. In 2008, the Applicant applied for permanent residence in Canada as a refugee outside Canada. In a letter (also referred to as the rejection letter) dated September 13, 2009, a visa officer (the Officer) with the Canadian Embassy in Cairo, Egypt refused his application. The Applicant seeks to overturn this decision. For the reasons which follow, I will allow this application for judicial review.
II. The Related Files
[2] This file is one of four judicial review applications heard together by this Court. The other three files are Court File Nos. IMM-6005-09 (Tsegeroman Zenawi KIDANE), IMM-6009-09 (Tsegay Kiflay WELDESILASSIE) and IMM-6010-09 (Selam Petros WOLDESELLASIE). These four files are representative of a group of almost 40 files, for which judicial review applications have been commenced. The remaining files have been held in abeyance pending the outcome of these four files. The common elements of the four files and, as I understand it, of the entire group of files, are as follows:
· each of the claimants is an Eritrean citizen;
· each of the Applicants claims to be a member of the Pentecostal Church;
· the applications for permanent residence were refused for each; and
· the same Officer interviewed each of the claimants and made the decision to refuse the application for permanent residence.
[3] While the individual merits of each of the applications for judicial review are raised in the separate application records, the four cases were selected as representative cases because, in the words of the Applicant, “they evince several distinct errors and patterns of decision making that are common to many or all of the other cases”.
[4] I wish to stress that this decision is addressed to this particular application by Mr. Henok Aynalem Ghirmatsion. I make no finding or order that binds the disposition of any of the remaining files. Each file presents a unique set of facts and requires separate review and determination. However, I anticipate and hope that the decisions in this and the other three cases will provide guidance to the parties on the possible disposition of the remaining cases now held in abeyance.
III. Issues
[5] The issues raised by this application are as follows:
1. Did the Officer err by failing to have regard to the Applicant’s status as a UNHCR refugee or by failing to have regard to CIC Guideline OP 5 (discussed below)?
2. Did the Officer make erroneous findings related to credibility, by failing to have regard to the evidence before her or by misunderstanding or misinterpreting the evidence?
3. Did the Officer err by failing to assess all possible grounds of persecution?
4. Did the Officer fail to observe a principle of procedural fairness by refusing to accept documentation from the Applicant?
5. Did the Officer err by failing to give adequate reasons?
6. Does the Officer’s decision give rise to a reasonable apprehension of bias?
IV. The Affidavits
[6] The record before me includes a number of affidavits. As a preliminary matter, I would like to address the issues raised with respect to some of the affidavits.
[7] The Respondent’s record includes an affidavit of the Officer. For the most part, the affidavit is helpful in that it explains the process of the Officer’s decision-making. However, the Officer also appears to explain or supplement her reasons for the decision. In my view, this is inappropriate. In rejecting similar affidavit evidence, the Federal Court of Appeal provided the following remarks in Sellathurai v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 255, 297 DLR (4th) 651, at paragraphs 46-47:
The judges of the Federal Court have previously stated that a tribunal or a decision-maker cannot improve upon the reasons given to the applicant by means of the affidavit filed in the judicial review proceedings. In Simmonds v. Canada (Minister of National Revenue), 2006 FC 130, 289 F.T.R. 15, Justice Dawson wrote at paragraph 22 of her reasons:
I observe the transparency in decision-making is not promoted by allowing decision-makers to supplement their reasons after the fact in affidavits.
See to the same effect Kalra v. Canada (Minister of Citizenship and Immigration), 2003 FC 941, 29 Imm. L.R. (3d) 208, at para. 15; Yue v. Canada (Minister of Citizenship and Immigration), 2006 FC 717, [2006] F.C.J. No. 914, at para. 3; bin Abdullah v. Canada (Minister of Citizenship and Immigration), 2006 FC 1185, [2006] F.C.J. No. 1482, at para. 13. Any other approach to this issue allows tribunals to remedy a defect in their decision by filing further and better reasons in the form of an affidavit. In those circumstances, an applicant for judicial review is being asked to hit a moving target.
[8] The reasons of the Officer are those contained in the decision letter. In addition, the notes taken by the Officer in the computer assisted immigration processing system (CAIPS) may be considered to be reasons (see Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 174 DLR (4th) 193, at para 44). I will give no weight to any portions of the Officer’s affidavit that purport to explain or augment the reasons set out in the letter or the CAIPS notes.
[9] A number of additional affidavits were included in the Applicant’s Application Record, filed with the Court on February 5, 2010, and in a Supplementary Application Record, filed with the Court on August 31, 2010. The additional affidavits submitted by the Applicant are as follows:
· Janet Dench (two affidavits);
· William Griffin;
· Natalia Shchepetova (two affidavits); and
· Tewolde Yohanes
[10] These additional affidavits have been filed in each of the four files now before this Court. The Respondent objects to most of the additional affidavits.
[11] It is well established that judicial review is to be conducted on the basis of the record that was before the decision-maker when the decision was made. It is generally not permissible to introduce additional documentary evidence. As stated by Justice de Montigny in Ochapowace First Nation (Indian Band No. 71) v Canada (Attorney General), 2007 FC 920, 73 Admin LR (4th) 182 at paragraphs 9-10:
It is trite law that in a judicial review application, the only material that should be considered is the material that was before the decision maker . . .
The rationale for that rule is well known. To allow additional material to be introduced at judicial review that was not before the decision maker would in effect transform the judicial review hearing into a trial de novo. The purpose of a judicial review application is not to determine whether the decision of a tribunal was correct in absolute terms but rather to determine whether its decision was correct on the basis of the record before it: Chopra, at para 5; Canadian Tire Corp. v. Canadian Bicycle Manufacturers Assn., [2006] F.C.J. No. 204, 2006 FCA 56 at para 13.
[12] It follows that the introduction of additional evidence through affidavits is generally not permitted, unless the issues to be addressed include allegations of breach of procedural fairness or, as in this case, an allegation that there was a reasonable apprehension of bias (see, for example, Assn of Architects (Ont.) v Assn. of Architectural Technologists (Ontario.), 2002 FCA 218, 19 CPR (4th) 417). In such cases, the affidavits must be confined to those issues. A party cannot, for example, under the guise of addressing a fairness issue, introduce opinions and arguments as to the reasonableness of the decision.
[13] I begin with the two affidavits of Ms. Dench. Ms. Dench is the Executive Director of the Canadian Council for Refugees (CCR). She does not hold herself out as an expert. In her first affidavit, she describes the mandate and role of the CCR and provides a detailed description of how the CCR came to be interested in the applications that have been rejected by the Officer. This descriptive part of her affidavit is not improper. However, most of her affidavit is devoted to a detailed criticism of the Officer’s decisions in this and other cases. In my view, this aspect of Ms. Dench’s first affidavit is not helpful to the Court. It consists almost exclusively of opinions and legal argument. These are not proper subject matters for an affidavit. To paraphrase the words of Justice Richard (as he then was) in First Green Park Pty. Ltd. V. Canada (Attorney General) (1996), 70 CPR (3d) 217, [1997] 2 FC 845 (FCTD) at paragraph 7:
[A] witness such as [Ms. Dench], no matter how experienced [she] may be, cannot in this context provide information that contains speculation, make legal arguments or draw conclusions of law. Legal argument is a matter for counsel and decision making is a matter for the Court.
[14] Moreover, much of her affidavit is based on hearsay; she was not present at the interview of any of the affected applicants. Nor was she present at the interview of the Applicant by the AMERA representative. Ms. Dench’s analysis and opinions may be helpful to Citizenship and Immigration Canada (CIC) in improving its training of visa officers and the process for assessing refugee claimants abroad. However, for purposes of this application for judicial review, it is neither helpful nor admissible. I will have no regard to it.
[15] Ms. Dench’s second affidavit is contained within the Supplementary Application Record filed with the Court on August 31, 2010. For the most part, Ms. Dench’s second affidavit also consists of further argument, opinions and legal conclusions. It appears that this further affidavit was put forward to provide additional “facts” to demonstrate the arbitrariness of this Officer’s decision-making and, perhaps, to support the allegation of a reasonable apprehension of bias. Ms. Dench provides information on other negative decisions made by this Officer and provides detailed criticisms of these decisions. These opinions are improper and of no assistance to this Court when reviewing an individual decision on judicial review.
[16] In addition, Ms. Dench cites two cases where the Officer reversed her initial rejection of applications for refugee status. Neither of these files is before me. In Ahmed v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 957 (QL), 134 FTR 117 (FCTD), Justice Joyal was faced with a similar argument of arbitrariness based on apparently conflicting decisions of the Convention Refugee Determination Division of the Immigration and Refugee Board. Justice Joyal dismissed this argument with the following comments, at paragraphs 24, 26:
[U]nfortunately, the other case referred to is not before me, nor am I in a position to rule whether it is right or wrong. It could very well be that in a proper test, the impugned decision is right and the other one is wrong. For that matter, both decisions could conceivably be wrong.
…
This Court must eschew any attempt to be drawn into an assessment of both decisions. The decision at bar is the only one of which I am seized, and in that respect, I must perform my review of it in accordance with the normal criteria ...
[17] I agree with the remarks of Justice Joyal and decline to draw any inferences or conclusions from the facts presented. The second affidavit of Ms. Dench will not be considered.
[18] The second affidavit in the Supplementary Record is that of Mr. Yohanes. Mr. Yohanes purports to respond to portions of the affidavit of the Officer. Mr. Yohanes is not an expert; rather, he is a Canadian citizen who came to Canada from Eritrea in 2003. Based on his own personal experiences and hearsay, he provides opinions that differ from the findings of the Officer in respect of: (a) sandstorms in Eritrea; (b) the ratio of prisoners to guards; and, (c) the possibility of obtaining a passport from an Eritrean Embassy in Khartoum. I give his affidavit little weight.
[19] Dr. William Griffin is the Advisory Officer of the Pentecostal Assemblies of Canada (PAOC); he has served PAOC for thirty years. His academic qualifications include a ministerial diploma at Eastern Pentecostal Bible College, Bachelor of Arts at University of Toronto, Master of Arts at University of Saskatchewan, Master of Divinity at Lutheran Theological Seminary, and Doctor of Ministry at Trinity Evangelical Divinity School. The PAOC is the umbrella organization for over 1000 Pentecostal churches in Canada. The organization has a force of 350 missionaries serving in 50 countries. On a global basis, PAOC is a member of the Pentecostal World Fellowship.
[20] On the basis of his experience within the PAOC and his academic qualifications, there can be little doubt that Dr. Griffin is qualified to provide this Court with expert opinion evidence on the Pentecostal faith and its practice around the world.
[21] Dr. Griffin was not cross-examined on his affidavit.
[22] I believe that the affidavit of Dr. Griffin is of assistance to the Court and should be admitted in this proceeding. The Pentecostal faith was a central element in this and the other three judicial review applications. The allegation of the Applicant is that the findings made by the Officer on the subject of the Pentecostal faith were unreasonable and were based on misunderstanding, or lack of knowledge, of the Pentecostal religion as practised in Eritrea. I am not an expert in the Pentecostal (or any other) religion. Dr. Griffin provides the information needed to evaluate the reasonableness of the Officer’s assessment of the Applicant’s faith. I am also satisfied that the Respondent has not been prejudiced by the admission of the affidavit. The Respondent had an opportunity to cross-examine Dr. Griffin on his affidavit and, if he felt it necessary, could have sought leave of the Court to submit a responding affidavit.
[23] Ms. Natalia Shchepetova is a legal assistant in the office of counsel for the Applicant. Her second affidavit is contained in the Applicant’s Record, Volume 2; this volume contains material common to all four applications. The sole purpose of the second affidavit is to put before the Court additional documentary evidence. These documents were not before the Officer. They are not relevant to this judicial review and will not be considered by this Court.
V. Background of the Applicant
[24] In this section of these reasons, I will briefly set out the background of the Applicant as he describes it. I observe that this is the Applicant’s story, primarily as set out in the narrative that was part of his application; I make no findings of its truth or of the merits of his claim.
[25] The Applicant was born on November 11, 1979 in Asmara, Eritrea. He was raised as an Orthodox Christian, but converted to Pentecostalism in 1997.
[26] On October 20, 1997, the Applicant began his mandatory national military service in Sawa and was assigned to the construction unit. During this time, the Applicant studied the bible with other Pentecostal Christians who were being trained in the military. The group was caught by a superior on one occasion where their bibles were confiscated and they received a warning. From that time on the group was subjected to continuing and escalating harassment and punishment, including detention, by their superiors.
[27] In May 2002, the government in Eritrea began a concerted effort to target and shut down minority churches, including Pentecostal and “Born Again”. The Applicant was instructed to sign a statement denouncing his religion and promise not to resume practising his religion; he refused. The Applicant was arrested and remained in detention for over two years, from October 2003 until July 2006.
[28] On July 7, 2006, while in prison, the Applicant was outside on a farm work detail when a sudden severe kasmin, or massive sandstorm, began. The Applicant and his friend took this opportunity to escape. They travelled on foot for 8 days until they reached Kessala, Sudan. They then took a bus to Khartoum. There, the Applicant was able to obtain an Eritrean passport with the assistance of his uncle who knew whom to bribe.
[29] A year and a half later, the Applicant travelled to Cairo, Egypt. The Applicant continued to worship in the Pentecostal community.
[30] In 2009, the Applicant was recognized as a Convention refugee by the United Nations High Commissioner for Refugees (UNHCR).
VI. The Interview
[31] On September 13, 2009, the Applicant was interviewed by the Officer who conducted the interview in English and Tigrinya, with the aid of an interpreter. There is no transcript of the interview. The Officer took notes on her computer during the interview and copied those notes into CAIPS on the same day.
[32] Further descriptions of what went on at the interview are contained in the affidavits of the Officer (sworn on September 5, 2010) and the Applicant (sworn on February 11, 2011). Given the time that has passed between the interview and when the affidavits were sworn, during which time memories can become dim or distorted, I am reluctant to rely on these affidavit versions for the details of the interview held in 2009.
[33] In this case (and the others heard at the same time), there is an additional source of information. After his refusal, the Applicant came to the attention of an organization known as Africa and Middle East Refugee Assistance (AMERA). AMERA describes itself as a UK-registered refugee rights organization assisting refugees who seek asylum in Egypt. As such,
AMERA conducts interviews with persons who have received negative results from embassies in order to determine whether or not AMERA can provide assistance with regards to obtaining reviews of negative decisions.
[34] The Applicant was interviewed by a representative of AMERA on October 13, 2009, during which interview he provided further details of his interview with the Officer. The notes are attached to the Applicant’s affidavit. The notes were made within a short time following the Applicant’s interview with the Officer; they are more contemporaneous than the comments in the affidavits of either the Officer or the Applicant. I admit to having some difficulty assessing the reliability of these interview notes. I believe that it is likely that the notes accurately reflect the questions and answers of the AMERA interview. However, I cannot make the same conclusion about the Applicant’s version of what happened at his interview with the Officer. At the time of his AMERA interview, the Applicant’s application had been rejected; the rejection could have influenced his recollections. I do not know if the Applicant had been briefed before his AMERA interview or if he met with other claimants who had been rejected. In spite of my concerns, the situation faced by the Applicant cannot be ignored; he is a refugee claimant abroad, without counsel and without the various systems to protect his rights that would be found in Canada. How can this Applicant tell his story if not through the assistance of AMERA? In the circumstances, I will accept the AMERA notes with considerable reservations that may go to weight.
VII. The Decision
[35] In her rejection letter dated September 13, 2009, the reasons for rejection were set out as follows:
After carefully assessing all factors relative to your application, I am not satisfied that you are a member of any of the classes prescribed because I am not satisfied that you have been forthcoming at your interview. I am not satisfied that you are indeed a true convert to Pentecostal faith. Your knowledge of the faith [was] not up to the level one would expect from a person who has been practicing and reading the bible for 12 years. You were not able to provide sufficient information about the religion to satisfy me that you are in fact a follower of the Pentecostal faith. Further, you were unable to provide to my satisfaction details of your imprisonment. In addition, the story of your escape is not plausible. I find it unreasonable that you were able to escape from prison just because there was a sandstorm. As I do not find you credible, I cannot be satisfied that you meet the country of asylum or the convention refugee definition nor that you are not inadmissible. Therefore, you do not meet the requirements of [s. 139(1)(e) of the IRPA Regulations].
[36] As I understand the above paragraph, the Officer made the following observations or findings concerning the Applicant:
1. he was not forthcoming;
2. he was unable to provide adequate knowledge of the Pentecostal religion;
3. he was unable to provide satisfactory details of his imprisonment; and
4. the Officer did not believe the Applicant’s story of escape; she found that it was “unreasonable” that he could escape from prison because of a sandstorm.
[37] Although not expressed clearly, it is apparent that the Officer did not believe that the Applicant had been held in detention or that he was of the Pentecostal faith. Whether these two key conclusions should stand depends on the reasonableness of the underlying analysis.
[38] As noted above, under my discussion of the affidavits, I am considering the reasons as set out in the rejection letter and in the CAIPS notes. The portions of the CAIPS notes reproduced in these reasons are transcribed as closely to the original version as possible.
[39] What additional reasons for the key findings can be obtained from the CAIPS notes?
1. Not forthcoming: Nothing whatsoever is contained in the CAIPS notes to explain what the Officer meant by “not forthcoming”.
2. Details of detention: The Applicant’s narrative (submitted with his application) set out a lengthy description of his detention. The CAIPS notes reflect that the Officer asked a few general questions about the Applicant’s detention. The only concern expressed by the Officer was about how he escaped from detention.
3. Sandstorm: The CAIPS notes reflect that the Applicant provided details of his escape:
IN MAY, JUN. JUL, IN THAT TIME THERE ARE BIG STORMS, IT IS VERY DARK, YOU CANT SEE THE PERSON STANDING NEXT TO YOU, ME AND MY FRIEND THOUGHT OF ESCAPE, ON THAT DATE WE WERE WORKING ON THE FARM LAND, WHEN STORM CAME WE RAN TOWARD IT . . .
The CAIPS notes do not refer to any follow-up questions by the Officer on the subject of the sandstorm.
4. Pentecostal Faith: The Applicant, during his interview, referred to his religion. The exchange between the Officer and the Applicant on the subject of his religion was described in the CAIPS notes as follows:
WHY DID YOU LEAVE ERITREA? BECAUSE OF MY BELIEF AS A PENTECOSTAL I WAS DETAINED IN 2003, UNTIL JL2006
. . . WHEN DID YOU BECOME PENTECOSTAL? 1994 I WAS ORTHODOX, WHEN I WENT TO NATIONAL SERVICE IN 1997 I BECAME PENETECOSTAL, IN 1994 WAS THE FIRST TIME I LEARNED ABOUT THE BIBLE
HOW DID YOU CONVERT? IN 1997 I HAD FRIENDS WHO WERE PENTECOSTAL, I BECAME CONVICED WITH WHAT THEY WERE TELLING HIM.
WHAT WERE THEY TELLING YOU? THEY WERE TELLING ME ABOUT JESUS CHRIST
ASKED SEVERAL QUESTIONS ABOUT PENTECOSTAL RELIGION
Describe to me how do you pray? LEADER TELLS US WHAT TO DO, AND WE DO IT.
What are the days that Pente followers celebrate? EASTER, CHRISTMAS, AND PENTECOST
Why did you convert? NO MENTORS, AND BELIEVE IN JESUS CHRIST.
[40] In short, the CAIPS notes do not provide us with very much in the way of additional reasons for the refusal.
VIII. Statutory Framework
[41] A brief outline of the statutory scheme affecting this application may be helpful to the reader.
[42] Pursuant to s. 11(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), a foreign national, before coming to Canada must apply for a visa. The visa may be issued if an immigration officer is satisfied, following an examination that the foreign national is not inadmissible and meets the requirements of IRPA.
[43] The Applicant applied as a member of a class of persons referred to, in the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPA Regulations], as “A Convention Refugee Abroad Class”. His application was made under and processed pursuant to the requirements of s. 139(1), s. 144, and s. 145 of the IRPA Regulations. The full text of s. 11(1) of IRPA and the relevant IRPA Regulations are set out in Appendix A to these reasons.
[44] It is also possible that persons in the situation of the Applicant may be granted permanent resident status if they are determined to be members of the “Country of Asylum Class”, as set out in s. 147 of the IRPA Regulations.
[45] In summary form, to be eligible for resettlement in Canada under ss. 139(1), 144 and 145 of the IRPA Regulations, a person:
· must meet the Convention refugee definition;
· must be outside Canada; and
· must meet the requirement that there is no reasonable possibility in a foreseeable amount of time of any other durable solution such as,
o voluntary repatriation or resettlement in their country of nationality or habitual residence; and
o resettlement or an offer of resettlement in another country.
IX. Standard of Review
[46] The six issues raised in this case relate to: (1) an alleged failure to have regard to the evidence; (2) credibility; (3) an alleged failure to assess all possible grounds of persecution; (4) adequacy of reasons; (5) an allegation of reasonable apprehension of bias, and (6) an alleged breach of procedural fairness.
[47] First, the assessment of evidence and the weight to be given to each piece of evidence are questions of fact that are within the expertise of the Board. They are reviewed on the standard of reasonableness (New Brunswick v Dunsmuir, 2008 SCC 9, [2008] 1 SCR. 190 [Dunsmuir]). When reviewing a decision on the standard of reasonableness, the Court is concerned with "the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". That is, the decision will stand unless it does not fall “within the range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, above, at para 47).
[48] Second, questions of credibility generally concern determinations of fact or mixed fact and law. A credibility finding is to be reviewed on the standard of reasonableness (Cekim v Canada (Minister of Citizenship and Immigration), 2011 FC 177, [2011] FCJ No 221 (QL), at para 10).
[49] Third, failure of an officer to consider all grounds of persecution is a question of law and, thus, assessed on the standard of correctness (Solodovnikov c Canada (Ministre de la Citoyenneté & de l'Immigration), 2004 CF 1225, 41 Imm LR (3d), at para 10; Singh v Canada (Secretary of State)(1994), 80 FTR 132, [1994] FCJ No 931 (QL)(FCTD) at para 14; Dunsmuir, above, at paras 55 and 90).
[50] Fourth, with respect to the Officer’s reasons, in the recent Ontario Court of Appeal decision of Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, [2009] WDFL 4624 [Clifford], at paragraph 22, Justice Goudge made it clear that the adequacy of reasons is subject to the correctness standard:
Where an administrative tribunal has a legal obligation to give reasons for its decision as part of its duty of procedural fairness, the question on judicial review is whether that legal obligation has been complied with. The court cannot give deference to the choice of a tribunal whether to give reasons. The court must ensure that the tribunal complies with its legal obligation. It must review what the tribunal has done and decide if it has complied. In the parlance of judicial review, the standard of review used by the court is correctness.
[51] Fifth, the issue that the Applicant has raised with respect to whether a reasonable apprehension of bias is raised by the Officer’s decision is reviewable on the standard of correctness (Dunsmuir, above, at paras 55 and 90; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339, at para 42).
[52] Finally, the issue of whether the Officer breached the duty of procedural fairness by failing to accept and review the documents submitted by the Applicant is reviewable on the standard of correctness (Dunsmuir, above, at paras 55 and 90).
[53] With this overview of the applicable standard of review, I turn to an analysis of the issues.
X. Failure to have regard to certain factors or evidence
A. UNHCR Status
[54] The Applicant has been recognized as a Convention refugee by UNHCR, as evidenced by a “blue card” issued August 31, 2009. As I understand it, the blue identity card shows that the bearer has been individually assessed and is officially acknowledged by this UN body as a refugee. The Applicant submits that the Officer erred by failing to give any consideration to the UNHCR status as a factor relevant to her determination.
[55] In carrying out her responsibilities, the Officer is guided by Citizenship and Immigration Canada (CIC) Guideline OP 5, “Overseas Selection and Processing of Convention Refugees Abroad Class and Members of the Humanitarian-protected Persons Abroad Classes” (August 13, 2009)(OP 5 or the Guidelines). OP 5 makes extensive reference to the UNHCR and the relationship between the duties of a visa officer and the UNHCR. The Guidelines set out the general context of the CIC/UNHCR relationship in section 6.53:
The office of the UNHCR is a humanitarian and non-political organization with a mandate to protect refugees and promote solutions to their problems. Solutions may include voluntary repatriation, local integration and, in a minority of cases, resettlement in a third country.
Local UNHCR offices identify persons in need of resettlement and refer them to visa offices. The factors that the UNHCR takes into consideration when it refers a case for resettlement are described in detail in the UNHCR Resettlement Handbook, a copy of which can be found in all visa offices. The officer should be familiar with these factors. The text of the handbook is also available from the UNHCR Web site at http://www.unhcr.org/.
The office of the UNHCR is an extremely important partner in Canada’s resettlement program. Solid working relations between Canadian visa offices and local UNHCR offices are vital to the success of the program. Officers should ensure that their local UNHCR office understands the Canadian
resettlement program and be proactive in requesting referrals of appropriate cases
Le HCR est un organisme humanitaire et non politique dont le mandat est de protéger les réfugiés et de promouvoir des solutions à leurs problèmes. Ces solutions peuvent comprendre le rapatriement volontaire, l’intégration locale et, dans des cas exceptionnels, le réétablissement dans un tiers pays.
Les bureaux locaux du HCR repèrent des personnes qui ont besoin d’un réétablissement et les recommandent aux bureaux des visas. Le Manuel de réinstallation du HCR dont tous les bureaux des visas ont un exemplaire présente, en détail, les facteurs dont le HCR tient compte lorsqu’il recommande le réétablissement de réfugiés. L’agent devrait connaître ces facteurs. On peut consulter le Manuel sur le site Web du HCR : http://www.unhcr.org.
Le HCR est un partenaire très important dans l’exécution du programme de rééadaptation du Canada. Des relations de travail solides entre les bureaux des visas du Canada et les bureaux locaux du HCR sont essentielles à la réussite du programme. Les agents doivent veiller à ce que leur bureau local du HCR comprenne le programme de rééadaptation du
Canada et ne pas hésiter à demander qu’on leur recommande des cas pertinents.
[56] Further, OP 5, current version published on August 13, 2009, refers visa officers to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and the UNHCR Resettlement Handbook, both published by the UNHCR, which documents provide a detailed interpretation of the Convention refugee definition (see Note to section 6.6, OP 5). In section 13.3 of OP 5, visa officers are instructed that a decision by the UNHCR with regard to an applicant’s refugee status is a factor to consider when determining eligibility for refugee status in Canada.
[57] There is no reference in the CAIPS notes or the decision to the Applicant’s status with the UNHCR. I recognize that UNHCR status as a refugee is not determinative; the Officer’s mandate is to assess the Applicant’s credibility and to determine the merits of his claim under the applicable Canadian laws. Nevertheless, OP 5 recognizes the importance and relevance of the UNHCR in the processing of applications under the Refugee Abroad Class. In my view, the Applicant’s status as a UNHCR refugee was a personal and relevant consideration. In the case of Cepeda-Gutierrez v Canada (The Minister of Citizenship and Immigration) (1998), 157 FTR 35, [1998] FCJ No 1425 (QL)(FCTD), at paragraph 17, Justice Evans (as he was then) was faced with the failure of a decision-maker to consider a highly personal and relevant document. He provided the following oft-quoted guidance:
[T]he more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[58] The evidence of the UNHCR designation was so important to the Applicant's case that it can be inferred from the Officer’s failure to mention it in her reasons that the decision was made without regard to it. This is a central element to the context of the decision. The Officer, faced with a UNHCR refugee, should have explained in her assessment why she did not concur with the decision of the UNHCR. The Officer was not under any obligation to blindly follow the UNHCR designation; however, she was obliged to have regard to it. Unless a visa officer explains why a UNHCR designation is not being followed, we have no way of knowing whether regard was had to this highly relevant evidence.
[59] This error made by the Officer is a sufficient basis on which to overturn the decision. I wish, however, to repeat that the UNHCR determination is not determinative; the Officer must still carry out her own assessment of the evidence before her, including the evidence of the UNHCR refugee status.
B. Failure to Assess Eligibility as set out in OP 5
[60] As noted above, the Officer rejected the claim of the Applicant on the grounds that she did not find the Applicant to be credible. Specifically, she did not believe that (a) he was Pentecostal; and (b) he was detained. The Applicant argues that the Officer failed to carry out an assessment as to whether he met the definition of a Convention refugee. In particular, the Applicant faults the Officer for not explicitly following the steps outlined in OP 5, section 13.3.
[61] Section 13.3 of OP 5 states that visa officers should follow the five steps outlined in the table set out in that provision. In brief, the five steps are:
1. refer to definition of Convention refugee abroad class in section 6.6;
2. refer to definition of persecution in section 6.37;
3. determine if an applicant may have been persecuted and have a “well-founded fear”;
4. review other sources; and
5. assess the ability to establish by processing to section 13.9 to section 13.14.
[62] As I understand the argument, the Applicant’s most serious complaint is that the Officer failed to consider and evaluate “available resource material” (see OP 5, s. 13.3, step 3) in the context of the claim of the Applicant.
[63] OP 5 is a guideline; it must not be treated as “the law”. There is no requirement that the Officer explicitly address each of the outlined steps (see Kamara v Canada (Minister of Citizenship and Immigration), 2008 FC 785, 168 ACWS (3d) 372, at para 31). The intention of section 13.3 of OP 5 is to provide a flowchart to assist the Officer with her decision making process. It is expected, however, that the substance of the decision should demonstrate that the identified steps were generally followed in the course of a visa officer’s determinations with respect to both the Refugee Abroad Class and the Country of Asylum Class.
[64] The problem with the Applicant’s argument on this point is that it ignores the fact that the Officer’s decision was based on the finding of a lack of credibility. Stated differently, the Officer did not believe that the Applicant was Pentecostal or that he had been in detention. Moreover, the evidence before the Officer was that the Applicant left Eritrea on a valid exit visa. Thus, documentary evidence related to persecution of Pentecostals in Eritrea, to the treatment of detainees in prison or to the treatment of those who left Eritrea illegally was not relevant. Thus, if the credibility findings are sustainable, I would conclude that there was no error by the Officer in failing to refer to each and every step outlined in section 13.3.
XI. Reasonableness of Credibility Findings
A. Applicant’s Detention
[65] As I have described above, the determinative finding by the Officer, in this case, was that of credibility. One of the two conclusions by the Officer was that she did not believe that the Applicant had ever been in detention. This finding appears to have been based firstly on a general finding that the Applicant was unable to provide, to the Officer’s satisfaction, details of his imprisonment. There is absolutely no explanation of what the Officer found to be lacking in his description of his detention or in his responses to questions on the subject. The CAIPS notes do not reflect questions about his detention that the Applicant was not able to answer. There is no justification for this general finding.
[66] The second part of the question of the Applicant’s detention is the Officer’s inference that the Applicant could not have escaped during a sandstorm.
[67] The Respondent argues that this finding bears the hallmark of reasonableness and logic and that it was not unreasonable, given the totality of the circumstances, to draw a negative inference or conclusion from the Applicant’s testimony. Moreover, the Respondent asserts that the Officer did not have an obligation to base her findings on “objective” evidence (Lorena Gonzalez v Canada (Minister of Citizenship & Immigration)(1999), 88 ACWS (3d) 1062, [1999] FCJ No 805 (QL)(FCTD)[Lorena Gonzalez v. Canada]). Justice Sharlow (as she was then) in Lorena Gonzalez v. Canada, above, stated at paragraph 26:
Counsel for the applicant argues that the CRDD did not properly assess the applicant's conduct on the basis of the circumstances in which she found herself, but engaged in speculation as to what some oth