TB4-07857

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB4-07857 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 10, 2014 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal Paul Vandervennen Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre Reasons and Decision [1] XXXX XXXX (the Appellant), allegedly a citizen of Ethiopia, has appealed a negative determination of the Refugee Protection Division (RPD) dated July 28, 2014. He has submitted new evidence in support of his appeal. The Appellant is not asking that an oral hearing be held with respect to this appeal. In addition, the Appellant asks that the decision of the RPD be set aside and that the Refugee Appeal Division (RAD) make a determination that the Appellant is a Convention refugee, pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA). It is submitted that, if the decision is set aside, the RAD has sufficient credible evidence to determine that the Appellant has demonstrated a well-founded fear of persecution by reason of political opinion. In the alternative, the Appellant requests that the decision be set aside and that a new hearing be ordered pursuant to paragraph 111(1)(c) of IRPA. DETERMINATION [2] Pursuant to Section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant alleges he is of Oromo ethnicity who was XXXX XXXX in Ethiopia since 2010. The Appellant alleged that the Ethiopian government mistreats and persecutes Oromos and, since the new regime, the persecution has intensified. He was also involved in the past with political organizations, Kinijit and later the Unity for Democracy and Justice (UDJ). He fears for his life due to his ethnicity as an Oromo and the perceived opinion by the ruling party that urban Oromos are secret members of the Oromo Liberation Front (OLF) and also due to his spouse's political stance. The Appellant was imprisoned by Ethiopian security agents for one month on XXXX XXXX, 2005 to XXXX XXXX, 2005, XXXX XXXX, 2010 to XXXX XXXX, 2011 and again in XXXX XXXX, 2011 to XXXX XXXX XXXX, 2011-the final time following his last trip to Israel. With monitoring, he was able to travel to XXXX XXXX in Israel in 2012 and 2014. Upon his return in 2014, he was arrested and imprisoned for two days, beaten and interrogated about his volunteer work and suspicions that he met with OLF while in Israel. He was released when bail was paid. Although his wife in Canada had begun the process of sponsoring him, he believed it was not safe to remain in Ethiopia. He was able to obtain a visa and travel to Canada for a XXXX XXXX, filing for refugee protection, as he believes if he returns to Ethiopia, he will be killed or imprisoned for life. [4] The Appellant's hearing was held on July 28, 2014. A negative decision was delivered orally on the same day with a written decision issued on August 15, 2014. The Minister did not participate in the hearing or the appeal. Admissibility of Evidence Submitted on Appeal [5] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [6] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.1 The merits of accepting this evidence are addressed by the Appellant in the Memorandum. [7] The Appellant is relying on and asks the RAD to admit the following evidence, pursuant to subsection 110(4) of IRPA: Internet printout of XXXX XXXX XXXX the Appellant in Israel in 2012 and 2014. The new evidence demonstrates that he is XXXX XXXX XXXX XXXX XXXX and that he XXXX XXXX XXXX XXXX XXXX in 2012 and 2014 which contradicts the RPD's findings of fact and shows that his testimony in this regard is credible. [8] The Appellant submits that the criteria is met, as the information is credible, and it contradicts a material finding by the RPD on a matter that was unanticipated by him at the time of the hearing. [9] Does this document meet the requirements of Section 110(4)? It clearly did not arise after the rejection of the Appellant's claim-internet printouts of XXXX XXXX that the Appellant XXXX in 2012 and 2014 in Israel. The Appellant does not argue that it was not reasonably available to present to the RPD. As such, the RAD must determine whether the Appellant could reasonably have been expected, in his circumstances, to present the document to the RPD when or before his claim was rejected. [10] It is clear from the audio recording of the RPD proceeding that the Appellant's XXXX XXXX XXXX XXXX was an issue in the hearing. He was specifically asked about his travels XXXX XXXX XXXX and volunteer activities with XXXX XXXX in Ethiopia that drew him to the attention of the authorities. In this context, it is not surprising that his counsel before the RPD, in his submissions, made reference to the Appellant's profile as XXXX XXXX and his Canadian visitor's visa allowing him to travel to Canada to participate in XXXX XXXX XXXX XXXX [11] In the RAD's view, it was for the Appellant to establish his claim and to present evidence in support of his application for protection. The RAD notes from a review of the audio recording that the Appellant made reference to documentation that could be found on the internet of XXXX XXXX XXXX. The RPD did not respond to the availability of the documentation on the internet. The Appellant's hearing was on July 28, 2014, and his claim was rejected on the same day. As such, the Appellant did not have an opportunity to provide the internet documentation before the rejection of his claim. [12] As mentioned above, the Appellant submits that the issue of his profile as XXXX XXXX was unanticipated by him at the time of the hearing. The Appellant's evidence was that his Canadian visa showed that he was XXXX XXXX travelling to Canada, and he was going to stay XXXX XXXX XXXX XXXX XXXX Counsel before the RPD referred to the Appellant's visa evidence in his submissions. In these circumstances, the Appellant reasonably could not have been expected to present this document before the rejection of his claim. [13] RAD Rule 3(3)(g)(iii) directs applicants to include an explanation of how the documentary evidence meets the requirements of Subsection 110(4) of IRPA. [14] The RAD notes this document is evidence of the Appellant's attendance and participation XXXX XXXX XXXX in 2012 and 2014, and it was available on the internet prior to the rejection of his claim. The RAD notes from the record and through a review of the audio recording that the Appellant was issued a Canadian visa to participate as an XXXX XXXX XXXX XXXX XXXX. The RAD finds it reasonable that the Appellant would expect that the visa would be corroborating evidence of him being XXXX XXXX who has XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Counsel for the Appellant provided submissions on the visa to travel to Canada as XXXX XXXX XXXXAs such, the RAD finds that the Appellant's proposed new evidence meets the test set out in Section 110(4) and is admissible as new evidence by the RAD. ROLE OF THE RAD [15] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision and submits that "the standard of review for the RAD to apply to decisions of the RPD is not simply an assessment of the reasonableness of the RPD decision. Its jurisdiction to overturn an RPD decision is not restricted to a 'palpable and overriding error'." [16] The RAD finds that the recent Federal Court decision, in Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.3 [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error".4 [17] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,5 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [18] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [19] The RAD focused on the following issues: Did the RPD err in making adverse findings of credibility? Did the RPD err in ignoring evidence of the persecution of members of opposition political parties and their relatives in Ethiopia? Identity as an Athlete [20] The Appellant submits that the RPD made an erroneous finding of fact in finding that the Appellant could not corroborate that he is an XXXX XXXX XXXX XXXX who was XXXX to Canada to XXXX XXXX XXXX XXXX, when such corroboration was in evidence in the GCMS notes of his Canadian visa application. [21] The Appellant submits that the RPD erred in drawing a negative inference from the Appellant's failure to document that he XXXX XXXX XXXX XXXX XXXX XXXX or that he came to Canada because he was XXXX XXXX XXXX XXXX XXXX XXXX. The RPD ignored the GCMS notes6 which were in evidence. The notes list the purpose of visit for the TRV application as "other", and the next line says "Other description: XXXX XXXX At the end of the notes, it lists the person/institution he will visit, and it gives a name and address of an individual and states that his relationship is "XXXX XXXX XXXX The evidence before the RPD, which the panel ignored, confirmed that he is XXXX XXXX who is visiting Canada, and the person he will visit is XXXX XXXX XXXX, which corroborates his evidence that he was XXXX XXXX XXXX XXXX XXXX XXXX. The RAD finds the RPD was wrong to say there was no documentation to corroborate that he obtained his Canadian visa because he was XXXX XXXX XXXX XXXX XXXX XXXX. A review of the audio recording shows the Appellant also provided consistent testimony with regard XXXX XXXX XXXX XXXX XXXX and his volunteer work on behalf of XXXX XXXX XXXX. The RAD accepted new evidence proffered by the Appellant to corroborate his XXXX XXXX XXXX in Israel. Based on the evidence, the RAD finds the Appellant's evidence that he is an XXXX XXXX XXXX XXXX who volunteered with XXXX XXXX in Ethiopia is credible. Spouse's Political Activity [22] The Appellant submits that the RPD erred in law by failing to assess the credibility of the Appellant's detentions that were a result of his spouse's political problems and her departure from Ethiopia. [23] The Appellant argues that the RPD erred in ignoring evidence of the persecution of members of opposition political parties and their relatives in Ethiopia. [24] A review of the audio recording shows the Appellant provided testimony of his fear of returning to Ethiopia because of his spouse's political activities. Counsel, addressed the issue in his oral submissions following the hearing and pointed to documentary evidence7 that shows there have been arrests of individuals "detained solely for their family ties to men who have expressed political opposition to the government." According to Amnesty International,8 "some of the detainees may have been arrested because of their family ties with members of opposition..." [25] The RAD relies on the decision of the Federal Court where it is noted that, not every piece of evidence will be referred to, but only those the panel finds relevant to its decision.9 Even if a piece of evidence is not referred to, the panel carefully considered it as part of the evidence.10 [26] In this instance, there is no persuasive evidence before the RAD to show the Appellant's spouse's political activities and profile was considered by the RPD in its analysis for the determination of the Appellant's claim. [27] It is not incumbent on an RPD member to assess every sentence of the documentary evidence before him or her. However, Counsel highlighted and made submissions on the Appellant's spouse's political activities and documentary evidence which is relevant to a key component of the Appellant's claim. [28] The Appellant's Basis of Claim (BoC) includes the information that the Appellant's spouse had been politically active in Ethiopia in opposition to the government since 2005. The Appellant's evidence is that he gave up his political activites in 2011 and is presently not a member of any political party, but he fears for his life due to his ethnicity and the perceived opinion by the ruling party that urban Oromos are secret members of the Oromo Liberation Front (OLF) and because of his spouse's political stance, refusal to return to Ethiopia and political asylum in Canada. The Appellant put forth that his spouse was found to be a Convention Refugee and is now a permanent resident of Canada. There is no evidence in the reasons that the panel member called into question the Appellant's spouse's involvement in the OLF or determined that she was not a politically active opposition member or perceived to be one. It does not appear that the Appellant had an opportunity to speak to the difficulties he may face upon return to Ethiopia because of his spouse's political opposition and the government of Ethiopia's perception of his political activity. [29] The RAD finds the RPD's adverse credibility finding does not take into consideration the totality of evidence regarding the particulars of the Appellant. [30] The Appellant submitted that the RPD erred by failing to assess the credibility of the Appellant's detentions that were a result of his spouse's political problems and her departure from Ethiopia. The only basis for disbelieving his most recent detention in 2014 was because it found that he exaggerated his beatings in his written evidence. [31] The RPD stated in its reasons for decision that "the panel does not accept that a claimant who has suffered a savage beating, described by the claimant as "severe and continuous," and lasting three days, would come out of it with only a bloody nose. The Appellant's BoC narrative shows "investigators began to beat me savagely." "For three days they continued their beatings and also mentioned about my wife's activities in Canada with the OLF." A review of the audio recording shows the Appellant's testimony was that he was detained for three days, interrogated and was continually slapped in the face resulting in a bloody nose. The RPD found the Appellant's story not believable, "for it defies credulity that he could endure a beating for three days without suffering more injuries than he claims to have sustained." The RAD finds that the RPD's finding in this matter is mere speculation. [32] The Appellant is entitled to a presumption of truthfulness,11 and the RAD sees nothing in the record to rebut that presumption. The Appellant's statements as to his fear of arrest should he return to Ethiopia are accepted as credible on the basis of the above presumption. In addition, the Appellant has submitted new evidence in support of his appeal which the RAD has found to be credible. [33] The RPD's error is central to its decision. As a result of its flawed analysis, it failed to consider the Appellant's perceived political opinion in Ethiopia because of his spouse's political activities. This was an error and the RPD's determination must therefore be set aside. DISPOSITION [34] Is there a reasonable chance that the Appellant would be persecuted upon return to Ethiopia because of his wife's political activities? Objective evidence before the RPD12 states that family members of opposition party members and supporters have been detained because of their family relationship. The Deputy Director of Amnesty International's Africa program stated: "...[s]everal may have been detained solely for their family ties to men who have expressed political opposition to the government." [35] The RAD finds, on a balance of probabilities, based on the Appellant's perceived political profile and the documentary evidence cited above, that the Appellant was detained and beaten because of his wife's political activities in Ethiopia in opposition to the ruling party. In addition, the RAD finds there is a reasonable chance that the Appellant would be persecuted because of his perceived political opinion upon return to Ethiopia. As the agent of persecution is an authoritarian state, he cannot expect state protection or avail himself of a viable internal flight alternative. [36] The Appellant is a Convention refugee. (signed) "C. Forbes" C. Forbes December 10, 2014 Date 1 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Ibid., Huruglica, para 54. 4 Ibid., Huruglica, para 55. 5 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 6 RPD's record, GCMS notes, Exhibit 1, pp. 1 and 16 of 16. 7 Exhibit RPD-1, National Documentation Package (NDP) for Ethiopia (14 March 2014), Item 4.3, Response to Information Request (RIR) ETH103318.FE, January 14, 2010, Treatment of members of opposition parties and their relatives. 8 NDP for Ethiopia (14 March 2014), Item 2.2, Ethiopia, Amnesty International Report, 2013. 9 Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998. 10 Hassan, Jamila Mahdi v. M.E.I., (F.C.A., no. A-831-90), Isaac, Heald, Mahoney, October 22, 1992; (1992), 147 N.R. 317 (F.C.A.). 11 Maldonado, Pedro Enrique Juarez v. M.E.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979; [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 12 Exhibit RPD-1, NDP for Ethiopia (14 March 2014), item 4.3, RIR ETH103318.FE, January 14, 2010. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-07857