Alemu v. Canada (Minister of Citizenship and Immigration), (2004) 257 F.T.R. 52 (FC)

• Judge: Layden-Stevenson, J.
• Court: Federal Court (Canada)
• Case Date: July 15, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 257 F.T.R. 52 (FC);2004 FC 997

Alemu v. Can. (M.C.I.) (2004), 257 F.T.R. 52 (FC)

MLB headnote and full text

Temp. Cite: [2004] F.T.R. TBEd. JL.044

Tamerat Alemu (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3640-03; 2004 FC 997)

Indexed As: Alemu v. Canada (Minister of Citizenship and Immigration)

Federal Court

Layden-Stevenson, J.

July 15, 2004.

Summary:

Alemu, an Ethiopian of Oromo ethnicity, applied for a permanent resident visa as a member of the Convention refugee abroad class or as a member of the humanitarian protected persons abroad designated class. A visa officer rejected the application, concluding that Alemu did not meet the definition of a Convention refugee or a member of the humanitarian designated class and that there were reasonable grounds to believe that he was a member of the inadmissible class of persons described in s. 34(1) of the Immigration and Refugee Protection Act. Alemu applied for judicial review of the visa officer's determinations respecting both inclusion and exclusion. The Minister of Citizenship and Immigration applied under s. 87 for the non-disclosure of certain information considered and relied upon by the officer in making his determination.

The Federal Court allowed both applications. The court remitted Alemu's application for redetermination before a different visa officer.

Aliens - Topic 1322

Admission - Refugee protection - Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - Alemu, an Ethiopian of Oromo ethnicity, applied for a permanent resident visa - After determining that Alemu was not credible, the visa officer determined that he could not rely on the information provided and was therefore not satisfied that Alemu met the definition of Convention refugee or of a member of the humanitarian designated class - The Federal Court allowed Alemu's judicial review application - Whether or not an applicant was credible did not prevent him from being a refugee if his political opinions and activities were likely to lead to his arrest and punishment - The officer determined that Alemu was a member of the Oromo Liberation Front (OLF) - The documentary evidence contained several references to the treatment of perceived OLF members in Ethiopia - The references were such that the officer should have been alerted and prompted to turn his mind to the question of whether, if returned to Ethiopia, Alemu would be at risk - See paragraphs 42 to 47.

Aliens - Topic 1323.4

Admission - Refugee protection - Convention refugees and persons in need of protection - Credible basis for claim - [See Aliens - Topic 1322 ].

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive, espionage or terrorist organization - A visa officer rejected Alemu's application for a permanent resident visa, concluding, inter alia, that he was a member of the Oromo Liberation Front (OLF) and that there were reasonable grounds to believe that the OLF was a group described in s. 34(1)(f) of the Immigration and Refugee Protection Act - The Federal Court held that the officer's reasons provided an adequate basis for the OLF membership determination, but not for the s. 34(1)(f) finding - The officer should have specified what acts the OLF engaged in, i.e., those referred to in s. 34(1)(a), s. 34(1)(b) or s. 34(1)(c) (subversion, espionage or terrorism) - A sweeping statement that merely referenced s. 34(1)(f), without more, was insufficient - A finding of exclusion had to provide some basis for the determinations regarding the nature of the group and the applicant's membership in the group - Failure to address both and provide a basis for both, would yield a result that fell far short of being reasonable - See paragraphs 23 to 41.

Cases Noticed:

Gariev et al. v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 297; 2004 FC 531, refd to. [para. 10].

Sogi v. Canada (Minister of Citizenship and Immigration) (2003), 242 F.T.R. 266; 34 Imm. L.R.(3d) 106 (F.C.), affd. (2004), 322 N.R. 2; 2004 FCA 212, refd to. [para. 12].

Andeel v. Canada (Minister of Citizenship and Immigration) (2003), 240 F.T.R. 1; 33 Imm. L.R.(3d) 36 (F.C.), refd to. [para. 12].

Henrie v. Security Intelligence Review Committee et al., [1989] 2 F.C. 229; 24 F.T.R. 24; 53 D.L.R.(4th) 568 (T.D.), affd. (1992), 140 N.R. 315; 88 D.L.R.(4th) 575 (F.C.A.), refd to. [para. 14].

Harb v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2003), 302 N.R. 178 (F.C.A.), refd to. [para. 23].

Sabour v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 69; 9 Imm. L.R.(3d) 61 (T.D.), refd to. [para. 26].

Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642; 141 F.T.R. 81 (T.D.), affd. [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), refd to. [para. 26].

Qu v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 3; 284 N.R. 201 (F.C.A.), refd to. [para. 29].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 32].

Fuentes v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 249; 231 F.T.R. 172 (T.D.), refd to. [para. 32].

Zarrin v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 137; 2004 FC 332 (F.C.), refd to. [para. 32].

Bitaraf v. Canada (Minister of Citizenship and Immigration) (2004), 254 F.T.R. 277; 2004 FC 898, refd to. [para. 34].

Gonzalez v. Minister of Employment and Immigration, [1994] 3 F.C. 646; 170 N.R. 302 (F.C.A.), refd to. [para. 42].

Mileva v. Ministre de l'Emploi et de l'Immigration, [1991] 3 F.C. 398; 129 N.R. 262 (F.C.A.), refd to. [para. 44].

Minister of Employment and Immigration v. Mark (1993), 151 N.R. 213 (F.C.A.), refd to. [para. 44].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 44].

Alfred v. Minister of Employment and Immigration (1994), 76 F.T.R. 231 (T.D.), refd to. [para. 44].

Attakora v. Minister of Employment and Immigration (1989), 99 N.R. 168 (F.C.A.), refd to. [para. 45].

Salibian v. Ministre de l'Emploi et de l'Immigration, [1990] 3 F.C. 250; 113 N.R. 123 (F.C.A.), refd to. [para. 45].

Ramirez v. Canada (Solicitor General) (1994), 88 F.T.R. 208 (T.D.), refd to. [para. 46].

Burgos-Rojas v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 157 (T.D.), refd to. [para. 46].

Kamalanathan v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 327; 15 Imm. L.R.(3d) 55 (T.D.), refd to. [para. 46].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 34(1)(f) [para. 33].

Counsel:

Mike Bell, for the applicant;

Derek Rasmussen, for the respondent;

Toby Hoffmann, for the Solicitor General (s. 87 application).

Solicitors of Record:

Bell, Unger, Riley, Morris, Ottawa, Ontario, for the applicant;

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

Layden-Stevenson, J., of the Federal Court, heard these applications at Ottawa, Ontario, on June 21 and 24, 2004, and delivered the following reasons for order on July 15, 2004.