TB7-13776

TB7-13776 TB7-13801 IMMIGRATION AND REFUGEE BOARD - REFUGEE PROTECTION DIVISION - Reasons for the decision in a Hearing under the Immigration and Refugee Protection Act, concerning XXXX XXXX XXXX XXXXXXXX XXXX XXXX HELD AT: Toronto, Ontario DATE: September 15, 2017 BEFORE: Yonatan Rozenszajn - Member APPEARANCES: XXXX XXXX XXXX XXXX et al - Claimant Max Berger - Counsel N/A - Minister's Counsel Tesfaye Yimer - Interpreter DECISION MEMBER: So I've considered the testimony and the other evidence in the case, and I'm ready to render my decision orally. A written form of the reasons will be provided to the claimant and counsel shortly. The written form may be edited for spelling, syntax, and grammar, and references to the applicable case law and documentary evidence may also be included. The claimant XXXX XXXX XXXX and the first name is spelled, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX middle name is spelled, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and last name is spelled, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, claims to be a citizen of Ethiopia, along with her daughter the minor claimant, XXXX XXXX XXXX, and first name is spelled, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, middle name is, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, last name is, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Of course, the principal claimant or female claimant we'll refer to as such, and the minor claimant will be referred as such as well. They claim to be citizens of Ethiopia, and are claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act. The ... the female claimant was appointed as the designated representative to the minor claimant, and also in deciding the claim I've considered the guidelines on women refugee claimants fearing gender related persecution. So by way of determination I find that the claimant has not established there's a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, that the claimants would be personally subjected to a danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment upon return to Ethiopia, and my reasons are as follows. The allegations are set out in Exhibit 2 which is the female claimant's Basis of Claim Form which is basically the same as Exhibit 3, Basis of Claim Form for the minor claimant. The minor claimant relies, of course, on the narrative of the principal claimant. And the ... the allegation is that the ... the claimants are Oroming(ph) ... Oromo, and the application therefore, of course, it claims that they are Ethiopian, and that the ... the claimant's ... the female claimant's family has been targeted in the past, and suffered persecution for many years by the regime due to being either ... actually being supporters of the OLF, such as the claimant's parents directly or being perceived as supporters of the OLF which is the Oromo Liberation Front, which ... which was banned in 1992, according to allegations of the claimant. The allegation is that the claimant's father disappeared and is presumed dead as a result of ... of the regime persecution. There's also allegations that the claimant's mother was persecuted as well. It's alleged that in 2003, the claimant's mother ... the female claimant's mother left Ethiopia for the US where she made a claim. However, that claim was allegedly unsuccessful, and she filed an appeal to the Court of Appeal in the US. And those were unsuccessful, and then she came to Canada allegedly in 2008, made a claim and that claim was actually accepted. So those are the allegations in the ... in the Basis of Claim Form. The claimant also alleged that she married her husband in 2011, and that they had one daughter which is the ... the minor claimant here. The claimant alleges also that her sister was also harassed, and persecuted, and sexually abused in 2015, due to her unjust association with the OLF. There's allegations that the claimant in 2005, was arrested because she was in the wrong place in the wrong time, and she was not interrogated but detained for 13 days, although, unharmed in that particular incident. The claimant alleges in 2015, her ... the head of her department asked her to be a member of the ruling party and she refused. She alleges that she otherwise went to the US on a visitor's visa in XXXX 2016. However, returned to her country, to Ethiopia in October. She alleges that on October 15, 2016, she was arrested by arms officials late at night in her house, and that she was interrogated, accused of being an OLF member or ... or having conversed with OLF members, and she alleges she was basically tortured over 10 days. She alleges that she was released on October 25th, 2016, with strict bail conditions which required her to report every month. The claimant alleges that she, through her husband, found a smuggler who made arrangements to bribe exit officials, and she then managed to leave Ethiopia, coming to Canada through the US on a pre-existing US visa, and claiming at the port of entry protection under the exception to third safe country agreement because her mother was over here as an anchor relative. So in terms of identity, I find that the claimants have established their identities as nationals of Ethiopia by reason of their passports which have been seized at the port of entry by the CBSA. They found in copy form in Exhibit 1. Also, the claimant, at least the female claimant, has a copy of ... has the original identity card which includes her ethnic origin as Oromo. The translation was provided at the hearing. It was provided originally. And pictures in both passports and identity card matches the appearance of the claimants in the hearing room. So I find that they have established who they say they are, and I ... I find they've established that they are Ethiopian and Oromo ethnic origin. Now, the main issue was credibility, specifically where the claimants have provided sufficient credible and trustworthy evidence to establish the basis of their claim. And for the following reasons I find that they have not. So the first issue is the principal claimant's re-availments(ph) and there were a few of them. I note here in 2011, she went to Germany. In 2013, she went to Spain. In 2016, in XXXX she went to USA. These are three Convention countries, western countries that are ... that are members of the Convention for the protection of refugees 1951 Convention. The claimant never claimed protection in any of those countries on those ... on those ... on those years. Her explanation was that she never claimed protection. She ... she went to these places for work or for visits. She had no fear at the time. She had a life. She had a boyfriend or a husband, and later on, of course, a daughter, and she was hoping that things were going to get better in Ethiopia for Oromos. She, in fact, had a job and things were just going well. I find the claimant's explanations for these three re-availments, because she did come back to Ethiopia after each time, is not reasonable because the situation against Oromos has been deteriorating steadily, as ... as can be seen in many of the documents in the National Documentation Package. The persecution and ... and discrimination against Oromos is not a new phenomenon, and the allegations are effectively that ... in the Basis of Claim Form of the female claimant that the regime, the Ethiopian regime has been hunting down multiple members of her family due to either real or perceived OLF support, often with fatal consequences such as the claimant's father who is presumed dead after disappearing. The claimant was already arrested in 2005, by the regime and detained for 13 days without any due process. I don't find it reasonable that the claimant would return to Ethiopia each of these three times without making any efforts to claim asylum in any of these countries. I also note that the claimant's profile is that of a ... a fairly highly educated woman, a professional working in ... in a sophisticated urban design an architectural organizations. I would have expected the claimant to make efforts to claim protection in these circumstances at the first available opportunity, in any of these opportunities, these three times. I draw an adverse inference as to the claimant's ... the ... the female claimant's general credibility from her failure to seek asylum in any of those three countries, and from her re-availment to Ethiopia in any of those three incidents, and also find that her re-avialments and failing to seek protection in those incidences also evidence as a lack of subjective fear of persecution. Now, looking at the claim allegations from a fairly high altitude, one can ... I find that there is delay in leaving Ethiopia, and this delay can be looked at from different angles. One of the angles that can be looked at is from 2003 to 2008, when the claimant ... the claimant's mother already went to the US to make a claim there. I asked the claimant why ... the claimant first confirmed she never sought or ... or thought about joining her mother in the US, and to join that claim. So that's one set of delay. There's also another set of delay from 2009 to 2016, when the claimant's mother already had achieved protection in the US, sorry, in Canada, and the claimant also said that she never sought or intended to join her mother permanently in Canada after she got her refugee protection. She only made one attempt for a TRV visit in 2012, which was denied. Again, the explanation for this delay for not wanting to leave Ethiopia was that she had a life, that things were looking up. She had a boyfriend, a job, later a husband, and she had no fear at the time. I find again the claimant's explanations are not reasonable given the ... the alleged profile of the family, and the claimant's own experiences. I draw an adverse inference as to the credibility of the ... of the ... of the female claimant from this delay, and I also find that it evidences a lack of subjective fear of persecution on the basis of Oromo ethnicity. Now, the claimant did eventually come to Canada and through the US after ... after her latest arrest in October of ... of ... of 2016. I asked the claimant when she was in the US before presenting herself in the Buffalo border, why she didn't claim asylum in the US most recently, and the claimant explained that there's was two reasons. One, her mom was in Canada so she wanted to join her mother, and second the US now, the political situation is such that they're ... they're anti-immigration. So I find the first explanation for the mother being here as a reason for not claiming in the US is not reasonable because the claimant could have claimed asylum in the US first, and if not successful, like her mother was not successful the first time, she would have had a ... a second chance in getting status under the Convention by simply going to Canada like her mom did before her. I find it not reasonable that the claimant would now allege her mom's ... the need for her mom's support as an anchor relative when for 14 years beforehand she had no intention to join her mother in Canada permanently or in the US. Now, with respect ... so I find that's not a reasonable explanation. With respect to the explanation about the US being anti-immigration, I find that's unreasonable because there's been no evidence filed that the US in an asylum determination system has been altered for the worse by the recent changes in the administration, namely the election of Donald Trump. The claimants are not one of the ... are not members of one of the banned countries that Trump banned like Somalia. In the absence of any actual evidence showing that there is now a change in circumstances, that it's ... this asylum determination system has become unfair, I find that's not a reasonable explanation, and I therefore draw an adverse inference from the claimant's failure to ... to claim asylum in the US before coming to Canada. Now, I find also that the credibility of the ... the profile of the family, and, of course, it's exemplified the best by the claimant's mother, is also not credible, and is ... is in question due to the mother's re-availment in Ethiopia for one month around May of 2014. A fact that came to light in the claimant's interview at the POE in Buffalo, at the port of entry. The explanation by the claimant offered was that the mother came to visit her in Ethiopia for the purpose of taking care of the newborn minor claimant who was born in May, and the explanation was that the mother came about a week before the ... the new ... the minor was born. Now, I find that's not a reasonable explanation given the serious allegations of persecution against the mother and the entire family. If anything, the allegations concerning the mother are even more serious, that ... that she is not only as a perceived or a left supporter, but an actual supporter of OLF. I find it not credible that the mother would return to Ethiopia under these circumstances, even if the claimant begged her to come back and to assist her with the newborn daughter, as is the custom in Ethiopia. Now, the mother did not file a statement in this case. She did ... she was not presented for testimony. In these circumstances, I find that the mother's re-availment is a serious issue, and it raises potential cessation or vacation concerns under Section 108 or 109 of IRPA, the Immigration and Refugee Protection Act. I draw an adverse inference as to the credibility of the alleged family profile as perceived or actual supporters of OLF for the mother's re-availment in Ethiopia in 2014. Now, the claimant did not provide any evidence of her mother's USA claims, the appeal case in the US or provide the ... her mother's PIF, Personal Information Form. The only piece of evidence we have with respect to the mother's claim is the Notice of Decision TA8-15959, which provides not particulars. The claimant is required by rule ... Rule 11 of the RPD rules to provide documentation establishing elements of her claim, and that rule states that the claimant must provide acceptable documents establishing identity, and other elements of the claim. The rule states that a claimant who does not provide acceptable documents must explain why they were not provided, and what steps were taken to obtain them. And I find that the situation of the mother, the circumstances of the mother in her facts are important today. Important elements of the ... the claimant's claim in front of me because they are foundational to the profile of the entire family in Ethiopia. Now, the explanation for the lack of these documents and ... is that the claimant did not actually do any steps to search or ... or obtain these documents and provide them to the Board. She explained that she did not think she needed to search for these documents, either the US claim documents or for the ... the ... the Canadian claim documents. Instead, she just interviewed her mother. I find that's not reasonable. I find that the claimant was in a position to make efforts, reasonable efforts because she lives with her mother now. The ... the female claimant lives with her mother, and also given the profile of the ... the family, the alleged profile, and the persecution against the family and the mother, I would have expected more efforts from the claimant to provide ... from the claimants to provide these documents. Now, I note that the mother's refugee file was decided in December 2009 in Canada. This is within the Board's 10-year destruction policy. The female claimant could have her mother sign a consent form to release the file to her care or to counsel. The claimant was represented by experienced counsel at all times. Given the concerns with the mother's re-availment in 2014 to Ethiopia, and the importance of the mother's facts and the profile facts which are found in the BOC, and the importance of this case, I would have expected reasonable efforts as opposed to no efforts in this case. I therefore find that the claimant's explanation a lack of ... of ... of actual steps to be not reasonable. I draw an adverse inference to the female claimant's general credibility from her failure to take any steps to obtain the claim documents from her mother, either for the US or for Canada. Given the credibility finding set out above, I find that the claimant is without general credibility in regards to the basis of their claim. I do not believe that the allegations in the female claimant's Basis of Claim Form. I find that the general credibility finding also extends to the minor claimant because she relied on the same allegations in the ... in her mother's Basis of Claim Form. She relied on the ... the testimony and the evidence in the mother's Basis of Claim Form. There's no allegation that the ... the minor child is at risk in Ethiopia for any other reason. Accordingly, I find that the claimant's credibility for both of them has been impugned. Even without disbelieving every part of the ... the female claimant's testimony, the female claimant may be found to be so lacking in credibility that the panel concludes that there is no credible evidence relevant to her claim. This comes from Sheikh v. Canada. It's a case cited to 1990 3 FC 238 Court of Appeal. I find that the female claimant was generally lacking in credibility, and this lack of credibility extends to all of her allegations and relevant parts of her testimony. The female claimant testified consistently about some aspects of her alleged experience in Ethiopia, and I do believe that she is an Oromo. However, I find that her general lack of credibility is so tarnished that I'm not able to assign any part of her testimony that may have been consistent, and delivered without deficiency, any evidentiary weight. Now, furthermore I find that the claimant's lack of credibility and the repeated re-availment leads me to believe that I cannot assign a residual profile to the claimants just for being Oromo. I find that they've failed to draw a link between their circumstances and their national documentation evidence ... evidence concerning the situation of Oromos with credible and trustworthy evidence. Accordingly, I'm not able to provide the claimant with a positive decision just because she has an Oromo ethnicity. I therefore, must dismiss the claim for lack of credibility. I find that the claimants ... having considered all the evidence, I find that the claimants, and I determine that the claimants ... that there's no ... not a serious possibility that the claimants would be persecuted in Ethiopia or that, on a balance of probabilities, the claimants would be personally subjected to a danger or torture or face a risk to life or a risk of cruel and unusual treatment or punishment in Ethiopia. My credibility findings apply equally under Section 96 and Section 97. I conclude that the claimants are not Convention refugees or persons in need of protection, and therefore reject these claims. ---------- REASONS CONCLUDED ---------- I HEREBY DECLARE THAT THIS IS A TRUE TRANSCRIPT OF THE RECORDING AND THAT I HAVE SWORN THE OATH OF SECRECY _______________________________________ Shamenav Khan, Transcriptionist For DigitScribe Inc. Security# XXXX September 23, 2017 - 8 -