Digests

Alemu v. Canada (Minister of Citizenship and Immigration)

IMM-3640-03

2004 FC 997, Layden-Stevenson J.

15/7/04

28 pp.

Judicial review of visa officer's decision applicant not meeting definition of Convention refugee or of member of humanitarian designated class and reasonable grounds to believe applicant member of inadmissible class of persons described in Immigration and Refugee Protection Act (Act), s. 34(1)--Applicant, Ethiopian of Oromo ethnicity, living in South Africa with temporary asylum status since 1997--1999 application for visa refused--Judicial review of that decision allowed--Applicant applied for second time for visa but was refused--In original application, applicant claimed he was member of Oromo Liberation Front (OLF) when movement legal and supporter of it after it became illegal--Stated that participated in meetings, distributed literature and collected fees for OLF in his area but did not participate in military wing or in any violence--At second interview in April 2001, applicant claimed never member of OLF--Rather, attended meetings, organized donations to assist OLF soldiers only when OLF part of government--Visa officer found numerous inconsistencies in applicant's statements at first and second interviews--Application allowed--Analysis in relation to both inclusion and exclusion findings deficient--Neither applicant nor court should be left in dark, or left to speculate, as to why application refused--Visa officer concluded applicant not credible--Difficulty with conclusion lack of further analysis-- Ample justification for credibility conclusion but to ascertain factual conclusion must look to finding regarding exclusion-- Visa officer concluded reasonable grounds to believe OLF a group described in Act, s. 34(1)(f) and applicant's membership in group rendering him inadmissible to Canada--Act, s. 33 stipulating facts constituting inadmissibility include facts arising from omissions and facts for which reasonable grounds to believe have occurred, are occurring, or may occur--Visa officer's reasons providing adequate basis for determination regarding applicant's membership in OLF, but not providing any basis for finding reasonable grounds to believe OLF group described in s. 34(1)(f)--S. 34(1)(f) requiring existence of reasonable grounds to believe organization engages, has engaged, or will engage in acts referred to in s. 34(1)(a), (b) or (c)--In Qu v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 3, Court of Appeal set out test for comparable provision under former Immigration Act--No material difference between old and new provision, thus decision in Qu applicable--S. 34(1)(a) requiring comparative test, between democratic government, institution or process spied against or subverted, with democratic government as understood in Canada--Act of espionage or subversion should be specified to make reasons intelligible--S. 34(1)(b) less demanding since engaging in or instituting subversion by force of any government not requiring evaluation of quality of government subverted--Some specificity required--For application of s. 34(1)(c), decision maker must have regard to definition of terrorism in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 in relation to actions of group--Further guidance provided in definition of "terrorism" provided in Anti-terrorism Act--S. 34(1)(f) makes clear reference to s. 34(1)(a), (b) and (c)--Because word "or" used, any one of (a), (b) or (c) will suffice to satisfy requirement--However, decision maker must specify what acts organization engaged in--Sweeping statement merely referencing s. 34(1)(f), without more, will not suffice--As to whether affidavit of visa officer can remedy deficiency in reasons, affidavit does no more than reveal visa officer reviewed exhibited documents prior to rendering decision-- Conclusion expressed in affidavit same as that expressed in reasons--Affidavit of no real assistance--Evidence considered by visa officer simply not capable of supporting conclusion--Consequently, no basis upon which could determine applicant member of group as described in s. 34(1)(f)--Finding of exclusion must provide some basis for determination regarding nature of group and determination regarding applicant's membership in group--Failure to address both and to provide basis for both falling far short of being reasonable--Because exclusion finding not sustained, determination applicant not meeting definition of Convention refugee isolated, examined on its own--Refugee determination forward-looking exercise--Examination of circumstances should be approached from persecutor's perspective, since that is determinative perspective in inciting persecution--Whether applicant credible not preventing him from being refugee if political opinions, activities likely to lead to arrest and punishment--Must be reasonable possibility applicant will be persecuted if returned to country of origin--Notwithstanding applicant's lack of credibility, if objective evidence establishes particular group at risk, tribunal must determine whether applicant fits profile--Failure to conduct analysis will result in reviewable error--Here, documentary evidence containing several references to treatment of perceived OLF members in Ethiopia--References such that visa officer ought to have been alerted and prompted to turn his mind to whether, if returned to Ethiopia, applicant would be at risk--Failure to conduct such analysis fatal flaw--Most recent document now nearly five years old--In accordance with forward-looking determination rationale, more current documentary evidence should be considered-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 33, 34(1)--Anti-terrorism Act, S.C. 2001, c. 41.