TB4-10374

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 : TB4-10374 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 February 5, 2015 Date de la décision Panel Luis F. Agostinho 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 Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX(the Appellant), a citizen of Ethiopia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant asks that the matter be referred back to the RPD to a differently-constituted panel. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD, that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she fears returning to Ethiopia as a result of the government perceiving her to be a member of the Coalition for Unity and Democracy (CUD). She further alleges that she was assaulted at her home on XXXX XXXX, 2011 by a member of the ruling party-Ethiopian People's Revolutionary Democratic Front (EPRDF) and was accused of being a member of the CUD. The Appellant was then taken to XXXX police station in Addis Abba where she was detained for approximately two months. The Appellant alleges that, during her detention, she was beaten, slapped, kicked and questioned repeatedly about her involvement with the CUD. [4] The Appellant was later released on bail sometime in February 2012, after bail had been posted in the amount of 5,000 birr, and the condition that she was to report to the police once a week or as required. After a month of reporting as per her bail conditions, the Appellant was told that she was no longer required to report, but was to make herself available if required by the police and not to leave town. [5] The Appellant traveled to Toronto in XXXX 2012 and filed a refugee claim in December 2013. She fears returning to Ethiopia because the government and its security forces perceive her to be a supporter of the UDJ. She fears she faces a high risk of persecution upon her return. [6] The Appellant's application for refugee protection was heard over two sittings on November 12, 2013 and July 22, 2014. In a decision of October 06, 2014, the RPD rejected the claim, finding that the Appellant is neither a Convention refugee nor a person in need of protection. The RPD found the Appellant was not a credible witness. [7] The Appellant raises the following issue: Did the RPD commit errors of law or fact, or mixed law and fact in concluding that the appellant's evidence was not credible?1 ROLE OF THE RAD [8] The Appellant argues that the RPD made numerous errors in rejecting her refugee claim in not finding her to be credible. As such, this appeal raises questions of fact in respect to those errors. [9] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. 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 a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. 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. [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." [10] 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. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. Application for an Oral Hearing [11] The Appellant does not request an oral hearing pursuant to Section 110(6) of IRPA. ANALYSIS OF THE MERITS OF THE APPEAL Was the assessment of the Appellant's personal evidence unreasonable, and incorrect? [12] The Appellant submits that the RPD erred when it gave diminished weight to the Appellant's documents, which was not based on their content but rather their form. The Appellant is referring to a "Summons" purported to be from the Ethiopia Police Commission,3 a psychiatric report,4 and inconsistencies in evidence. The Appellant argues that the RPD erred in its assessment of the evidence. [13] The RAD is not persuaded by the Appellant's argument in this regard. While it is true that the RPD's assessment of the Appellant's documents was not as fulsome as it could have been, the RAD, after reviewing the documents, finds that there was sufficient cause to give the documents diminished weight. The RPD has found that the Appellant's general credibility has been undermined and the allegations, giving rise to her claim for refugee protection, have been undermined. The RAD finds that, given the significant credibility findings, it was open to the RPD to place little weight on these documents and find that they do not overcome the totality of the adverse credibility findings in the absence of further proof of their authenticity. The RAD also notes that none of these documents provides independent evidence of the abuse she alleges she suffered due to her perceived political identity by the authorities. Rather, the police "summons" from the Ethiopia Police Commission has some credibility issues with it, and the psychiatric report appears to be based on information that was self-reported by the Appellant and merely repeated by the author of the document. [14] The RAD is not persuaded by the Appellant's argument in this regard. Credibility, including credibility of supporting documents, is always an issue. The Appellant was represented by competent counsel who ought to have known that the Appellant's documents would be assessed by the panel member and, given the appropriate weight according to their relevance, materiality and credibility. The RPD would not be in a position to give prior notice of its assessment of the documents. It was necessary for the RPD to examine the documents and assess them for weight only after considering all of the evidence. The RAD finds that the Appellant's argument fails in this regard. [15] It is clear to the RAD that the RPD did not believe that the Appellant was or was not perceived to be a member or supporter of the CUD in Ethiopia. The RPD made a number of adverse findings of the Appellant's overall credibility which extends to all aspects of her claim including her allegations of her alleged perceived political identity. [16] The RAD finds that the RPD's reference to the Political Handbook of the World 2012,5 and the African Elections Database6 items were directly in relation to the viva voce testimony of the Appellant would be perceived to be a supporter of the CUD party. The RAD finds that the RPD did not implicitly or otherwise find that the Appellant was a member of the CUD, but quite the opposite. It is clear to the RAD that the RPD did not believe the Appellant's allegations in this regard. Rather, the RAD finds that the "implicit findings" alleged by the Appellant were nothing more than the RPD's assessment of the extent of the Appellant's alleged political identity, only if her allegations were to be believed. [17] Given that the RPD did not believe that the Appellant was or was not perceived to be a member or supporter of the CUD party, the RAD finds that there was no requirement for the RPD to conduct a section 97 analysis. RPD's credibility findings [18] The Appellant argues that she testified at length over two sittings of her hearing in a manner that was consistent with her narrative and the other form which she submitted to the RPD. The Appellant argues that the panel questioned her as if she was an educated westerner, and that the panel demonstrated no understanding of her cultural differences.7 The Appellant further alleges that the RPD committed an error in assessing credibility that it equated any inconsistency with a lie. The Appellant alleges that credibility findings of the RPD were marginal and without regard for her lack of education, cultural assumptions, her psychological state.8 [19] The Appellant argues that the RPD misconstrued her testimony concerning her dates of employment and the date of birth of her husband to mention a few. The Appellant argues that the RPD's findings were based on a misunderstanding between her and the RPD on whether the inconsistencies and contradictions had any substance to her claim. The Appellant further argues that she clarified her testimony and that the alleged inconsistency was merely a minor confusion on the RPD's part and lack of understanding. [20] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the record reflects that the Appellant's testimony was different from the allegations she included in her narrative and the forms she submitted to the RPD.9 For example, in her narrative, the Appellant states that she was a businesswoman since 1983. However, her testimony contradicted that allegation. The Appellant's testimony was that she was ten years old (that would be in 2003). When confronted with this contradiction, the Appellant's testimony evolved, in that she simply agreed with the RPD, and did not provide an explanation for the contraction.10 The RAD finds that the Appellant's testimony did evolve in an effort to address the concerns raised by the RPD. The RAD has reviewed the audio of the hearing and finds that there was ample reason for the RPD to find her testimony was not credible. [21] The Appellant submits that the RPD drew an adverse credibility finding solely based on the Appellant's failure to know her husband's date of birth. The RAD has reviewed the evidence in this area and agrees with the Appellant, in that the RPD did err in making its finding on a western calendar and not an Ethiopian calendar. However, this is one error and it alone doesn't discount the numerous other findings towards the Appellant's claim. [22] The Appellant submits that the RPD erred by misunderstanding her evidence and drawing a negative inference from her evidence, that she was accused of being a member of "kinijit." The RAD has reviewed the audio and the evidence before it, and notes that the RPD clearly addressed this issue in length. The RPD found that, on the basis of the evidence before it, and its findings with respect to her Appellant's credibility, the Appellant had failed, on a balance of probabilities; that she was detained, interrogated and mistreated by the Ethiopian authorities on the basis that they perceived her to be a supporter of CUD.11 The RAD finds that, given the evidence in the record, the RAD concurs with the findings of the RPD in this regard. [23] The Appellant submits that the RPD erred in its assessment of the psychiatric report. The Appellant submits that the RPD assessed whether her psychological condition would have an impact on her demeanour, but found that its credibility concerns are not substantially founded on its observations of her demeanour or her posture. That further, the RPD erred by failing to consider whether her diagnosis of major depressive disorder and PTSD affected her thought process in the way she understood and responded to questions. [24] The RAD is not persuaded by the Appellant's argument in this regard. The RPD reasons for decision clearly cite the RPD's finding in regard to the psychiatric report.12 The RPD did a very fulsome analysis of the report and how it was applied. It is clear from the Reasons that the RPD did consider the doctor's report at length and how it applied it to its reasoning and findings. The RPD went so far as to also clearly cite its analysis of the Chairperson's Guidelines13 and how it was applied in this case.14 The RAD concurs with the RPD findings and further finds that the RPD's findings are well supported. [25] The Appellant submits that the RPD erred in its assessment of the credibility of her evidence. The Appellant further submits, upon review of her testimony and the supporting documents, that it demonstrates that she provided credible evidence of a history of serious persecution by reason of political opinion, and that there is more than a mere possibility that she would face persecution in the future. [26] The RAD is not persuaded by the Appellant's argument in this regard. The RPD found that the Appellant's general credibility was undermined and that there was no persuasive evidence that she was perceived to be involved with any political activities or a member or past member of any political opposition party. The RAD also found that the RPD gave little weight to her supporting documents. Accordingly, there was no persuasive evidence that the Appellant holds a particular political opinion or that she has participated in activities which are likely to lead to her arrest and punishment. Given the foregoing, the RAD finds that it was not necessary to conduct a forward-looking assessment of the Appellant's risk based on her alleged political identity. [27] After careful review of the RPD reasons and the record, the RAD accords deference to the credibility findings of the RPD. SUMMARY AND DETERMINATION [28] The RAD, after conducting an assessment of the evidence before it in its entirety, finds that the RPD's credibility findings were sound and supported by the evidence and, as a result of said findings, the RAD affords deference to those findings. The RAD also finds that there is sufficient evidence on the record to support the RPD's overall determination. The RAD finds, on the basis of the totality of the evidence in this appeal, that the Appellant has not satisfied her burden of establishing a serious possibility that she would be persecuted or that she would be personally subjected to a risk to her life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Ethiopia. DISPOSITION [29] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [30] Therefore, this appeal is dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho February 5, 2015 Date 1 Appellant's record, page 25, paragraph 4 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 RPD record, pages 150-151 4 RPD record, pages 110-112 5 RPD-1, National Documentation Package, for Ethiopia, item 4.1 6 RPD-1, National Documentation Package, for Ethiopia, item 4.11 7 Appellant's record page, memorandum paragraph 7 8 Appellant's record, page 7, Reasons for Decision, paragraphs 10-17 9 RPD record, page 36, Exhibit 1 10 Appellant's record pages 7-8, Reasons for Decision, paragraph 16 11 Appellant's record, pages 19-18, Reasons for Decision, paragraphs 30-31 12 Appellant's record, pages 18-20, Reasons for Decision paragraphs 32-38 13 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 14 Appellant's record, page 20-21, Reasons for Decision paragraph 39 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-10374