TB6-08037

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 : TB6-08037 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 12, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Paul Vandervennen Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of the Federal Democratic Republic of Ethiopia (Ethiopia) is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submits no new evidence in support of his appeal nor does he request an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection. The RAD dismisses the appeal. Background [3] The Appellant alleges that he became of member of the Blue Party in XXXX 2013. Using his skills as a XXXX XXXX he XXXX XXXX and XXXX for the party. The Appellant was arrested by the Ethiopian Police on XXXX XXXX, 2015 and was detained until XXXX XXXX, 2015. The Appellant was beaten during interrogations. He was released on bail and strict conditions which included not leaving Addis Ababa without the knowledge and consent of the police. [4] The Appellant applied for and received a Canadian visa. The Appellant arrived in Canada on XXXX XXXX XXXX 2015 and made a claim for refugee protection on December 18, 2015. [5] The Appellant had a refugee determination hearing on May 17, 2016. In a written decision issued on May 27, 2016 the RPD rejected the claim. The RPD found that the Appellant was not credible. [6] Appeal pleadings were received on July 8, 2016. In his appeal, the Appellant argues that the RPD erred in its credibility findings. ROLE OF THE RAD [7] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. ANALYSIS OF THE EVIDENCE [8] The RAD will focus on whether the RPD erred in its credibility findings. Medical Reports2 [9] The Appellant provided a report from XXXX XXXX, Nurse Practitioner, dated XXXX XXXX, 2016. Ms. XXXX states that the Appellant is showing symptoms of psychosis including paranoid thinking and delusions. Ms. XXXX states that she has concerns about the Appellant's ability to provide accurate evidence. [10] The Appellant provided a psychiatric report from psychiatrist Dr. XXXX XXXX, Mount Sinai Hospital, Toronto, dated XXXX XXXX XXXX 2016. Dr. XXXX states that she and two other health professionals met with the Appellant on two separate occasions. Dr. XXXX states that the Appellant's vocational struggles and some interpersonal problems at the shelter where he lives fall under the diagnosis of an adjustment disorder. Dr. XXXX indicated that there have been concerns that the Appellant may be experiencing psychosis but that they were not able to fully confirm this in the two visits. [11] The RPD stated in its decision that it considered the Appellant's mental health in assessing his claim. [12] The Appellant submits that the RPD erred by failing to have due regard to the psychiatric assessment and erred by failing to link the inconsistencies in his testimony to his psychiatric condition and mental health problems. [13] For the following reasons the RAD is not persuaded by the Appellant's submissions with regard to his mental health. [14] According to information contained in the RPD's decision, a hearing scheduled for April 5, 2016 was postponed as a result of information contained in the medical report from XXXX XXXX, referred to above. In a pre-hearing conference between the RPD and the Appellant's counsel it was decided on April 5, 2016 that a psychiatric assessment was necessary as well as a designated representative (DR) in order to assist the Appellant and to proceed with his claim. [15] According to the recording of the hearing held on May 17, 2016, the DR stated that he had met with the Appellant and that the Appellant was able to testify. When asked, the Appellant testified that he understood the nature of the proceedings and was prepared to testify on his own. The Appellant had the assistance of an interpreter of the Amharic language but shortly after the beginning of the hearing chose to testify in English. The RAD finds that the Appellant was articulate and that his answers corresponded to the questions asked. [16] The psychiatrists report indicate that the Appellant's "speech is organized, he seemed open and forthright in his answers to questions, and was not guarded or paranoid during the sessions" and that he has "a sense of grandiosity and unrealistic expectations around his career potential in XXXX and his preoccupation with his XXXX XXXX XXXX".3 There is no mention in the report that the Appellant has memory problems or that he might experience difficulties testifying. [17] The majority of the RPD's credibility findings were based upon the documentary evidence provided by the Appellant or the absence of documentary evidence reasonably expected. In other instances, discussed below, the Appellant was not able to explain the contradiction between his testimony and information he provided either in his Basis of Claim (BOC) form or information he provided to the psychiatrist. The situation of the Appellant's mother [18] The RPD found that the Appellant did not provide a reasonable explanation for the contradictions and inconsistencies in his evidence regarding the situation for his mother. The RPD concluded by finding the Appellant lacking in credibility with respect to his detention and being wanted by the police. In its reasons the RPD noted that the Appellant testified that his mother went to Dubai in XXXX 2016 due to the harassment and concerns she had from the police who were allegedly looking for him.4 The RPD noted that the Appellant had not provided this information in an amended BOC form, dated May 16, 2016.5 The RPD found the Appellant's explanation that he did not focus on his mother's address when he amended his BOC, to be unsatisfactory. The RPD also noted that according to information contained in the psychiatric report, dated XXXX XXXX XXXX 2016, the Appellant informed Dr. XXXX that he was not "concerned for his mother and brother's safety in Ethiopia." 6 The RPD did not find the Appellant's explanation, that he was focusing on family history when he spoke with the psychiatrist, satisfactory. [19] The Appellant provided no submissions in his appeal regarding these particular findings. [20] For the following reasons, the RAD concurs with the RPD. [21] To indicate to the psychiatrist that he had no concerns for his mother's safety in Ethiopia is not relevant to family history and makes no sense if, as the Appellant testified, his mother had left the country due to concerns over police visits. The RAD finds that the allegations of the harassment by the police, which allegedly caused his mother to leave the country, to be significant to the Appellant's claim. The RAD finds this particularly so given that the Appellant alleges that the police caused his mother problems when they attended his home a number of times looking for him. Evidence from the Blue Party [22] The Appellant provided two letters, dated XXXX XXXX, 2015 and XXXX XXXX, 2016, from the Blue Party as evidence of his activities in support of the Party in Ethiopia.7 The RPD found the two documents lacking in credibility and drew a negative credibility inference with respect to the Appellant's involvement with the Blue Party. The RPD provided the following reasons for these findings. [23] The letter dated XXXX XXXX, 2015 contains misspellings, including an incorrect e-mail address and website address. When the logos for the Blue Party on each letter are compared there are significant differences. The Appellant could not explain these anomalies when asked to do so. The RPD found that the Appellant did not know the author of the letter, dated XXXX XXXX XXXX 2015. In particular, the RPD noted that the Appellant testified that he made a request through his girlfriend to have his friend XXXX XXXX write a letter on his behalf regarding his involvement with the Blue Party whereas the author of the letter is XXXX XXXX. [24] The RPD found that the Appellant had no documentary evidence in the form of XXXX that he XXXX for the Blue Party. The RPD found that the Appellant could not reasonably explain why he had deactivated the e-mail account which he used to communicate with the Blue Party about the XXXX work he did for them. [25] The Appellant submits that the errors on the documents he submitted as evidence are what can be expected from a poor, third world country such as Ethiopia and not indications that the documents are not genuine or credible. The Appellant made no submissions on the absence of documentary evidence of his XXXX work for the Blue Party. [26] The RAD is not persuaded by the Appellant's arguments. The RAD reasons are as follows. [27] While one spelling error could be excused on a formal letter, the RAD does not find it reasonable that the contact information of a political party, especially an opposition party trying to establish itself over the past four years,8 would be incorrect. Similarly, the RAD does not find it reasonable that the logo on the Blue Party's correspondence differs from one letter to another. The provenance of the letters is unknown by the Appellant. [28] The RAD agrees with the RPD that the Appellant did not provide a reasonable explanation for having no evidence of his XXXX work for the Blue Party. According to the recording of the hearing the Appellant testified that he deactivated his e-mail account when authorities advised him that he was to no longer associate with the Party. Upon being asked, the Appellant could not provide an explanation as to why he did not simply stop e-mail communication with the Blue Party. Warrants9 [29] The RPD afforded no weight to the warrant dated XXXX XXXX, 201510 because of the significant misspelling of the word 'police' on the letter head as well as the written direction on the warrant for the Appellant to appear "tomorrow XXXX XXXX, 2015" when the warrant is dated XXXX XXXX 2015. The RPD noted that the Appellant could provide no explanation for the errors on the warrant. [30] The RPD stated in its decision that the warrant issued XXXX XXXX XXXX 201611 had no letter head and had different stamps than the earlier dated warrant. The RPD noted that the Appellant could provide no explanation for the difference in the later dated warrant with the earlier dated one. The RPD did not assign weight to this document. [31] The Appellant submits that the errors on the documents he submitted as evidence are what can be expected from a poor third world country such as Ethiopia and not indications that the documents are not genuine or credible. [32] For the following reasons the RAD is not persuaded by the Appellant's submissions. [33] In what should read "Addis Ababa Police Commission" as it does on the stamp located at the foot of the warrant dated XXXX XXXX, 2015 the warrant reads "Addis Ababa Policy Commission". The RAD does not believe that the police commission in the capital of the country would, on its letter head, have a spelling mistake of its title. While possible, the RAD does not find it probable that instructions to the Appellant would be such as to have a mistake in the date on which he was to present himself to the police. The RAD, thus, concurs with the RPD's assignment of no weight. [34] For the following reasons the RAD assigns no weight to the warrant dated XXXX XXXX XXXX 2016. As the RPD noted in its decision, this warrant lacks a letter head and the stamp differs from the stamp found on the warrant dated XXXX XXXX, 2015. The RAD notes that the independent documentary evidence provides information regarding the appearance of summonses. Apparently, the format of police summonses is the same throughout the country, and the same regardless if at the municipal or federal level.12 The RAD finds it reasonable to believe that warrants would also have the same format throughout the country. [35] As a result of the findings regarding the documents from the Blue Party and those from the police, the RAD has serious doubts about the authenticity of these documents. This leads the RAD to conclude that the Appellant is an untrustworthy person. The RAD, thus, concurs with the RPD's negative inference with respect to the Appellant's involvement with the Blue Party. The RAD also draws a negative inference with respect to the Appellant's detention and the subsequent warrants for his arrest. In Summary [36] When considering in totality the cumulative adverse credibility findings noted above, the RAD finds, on a balance of probabilities, that the Appellant's evidence with regard to central allegations in Ethiopia are neither credible nor trustworthy. [37] The RAD notes that the Federal Court held in Sheikh that: ... even without disbelieving every word [a claimant] has uttered, a ... panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim... In other words, a general finding of a lack of credibility on the part of the [claimant] may conceivably extend to all relevant evidence emanating from his testimony.13 [38] The RAD agrees with the RPD and finds that, in light of the cumulative adverse credibility findings, the Appellant is not credible and that overall his allegations lack veracity. CONCLUSION [39] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "Lesley Mason" Lesley Mason September 12, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93 2 Exhibit RPD, RPD Record, pp.133, 135-140 3 Exhibit RPD, RPD Record, p. 139 4 Exhibit P-2, Appellant's Record, p. 7 para.17. 5 Exhibit RPD-1, RPD Record, p. 22 6 Exhibit RPD-1, RPD Record, pp. 135-140 7 Exhibit RPD-1, RPD Record, pp. 122-123, 147 8 Exhibit RPD-1, RPD Record, pp. 70-83, National Documentation Package (NDP) Ethiopia, April 29, 2016, Item 4.10 9 Exhibit RPD-1, RPD Record, pp. 123-124, 142-143 10 Ibid., pp. 123-124 11 Ibid., pp. 142-143 12 Exhibit RPD-1, RPD Record, pp. 70-83, NDP Ethiopia, April 29, 2016, Item 10.2, Response to Information Request (RIR) ETH105314.E 13 Sheikh, Abdulhakim Ali v. M.E.I. (F.C.A., no. A-521-89), MacGuigan, Iacobucci, Desjardins, July 4, 1990. Reported: Sheikh v. M.E.I., [1990] 3 F.C. 238 (C.A.); 11 Imm. L.R. (2d) 81 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-08037