TB3-03613

RAD File No. / N° de dossier de la SAR : TB3-03613 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 18, 2013 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Stephen E. Foster 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 (de la) ministre REASONS AND DECISION [1] XXXX XXXX XXXX, a male from Ethiopia, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. He has submitted new evidence in support of his appeal that was not presented at the RPD hearing and makes an application to accept late disclosure of this evidence. DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division ("RAD") sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely, that, XXXX XXXX XXXX is a Convention refugee pursuant to s. 96 of IRPA. BACKGROUND [3] The appellant alleged before the RPD that he is a citizen of Ethiopia. He is an ethnic Amhara and a XXXX. He is married and has two children, a daughter and a son. His family resides in Ethiopia. He is a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [4] He became a member of the political opposition party then known as Coalition for Unity and Democracy (CUD) in 2005. He was an active participant who raised funds and openly supported Kinjitt. After the 2005 elections, he joined the June 8 demonstration against the ruling party. He was subsequently arrested for five days and forced to sign a document promising to desist from opposition politics. After his release from detention, he refrained from opposition politics for a time. [5] In 2008, he secretly joined the Unity for Democracy and Justice Party (UDJ) that was formerly known as the CUD. He became re-involved even to the point of fundraising and socializing with exiled opposition activists while travelling for lengthy periods of time as a XXXX in Europe and the USA. In particular, while in the USA, leading up to XXXX 2012, the appellant met with two exiled opposition activists, XXXX XXXX XXXX who was sentenced to death in absentia, and XXXX XXXX, both members of UDJ. [6] The appellant returned to Ethiopia on or about XXXX XXXX XXXX 2012 and was immediately detained by Ethiopian authorities for three days and then again for 16 days in XXXX prison commencing on XXXX XXXX XXXX 2012. During this detention, the Ethiopian authorities interrogated the appellant extensively, regarding his USA contacts and activities with XXXX XXXX XXXX XXXX and XXXX XXXX XXXX. They also placed him in solitary confinement and tortured him. [7] The appellant was able to escape from detention after several of his wealthy benefactors were able to combine funds and pay bribes to have him released. The release was still conditional upon subsequent reporting once a week and his written undertaking to refrain from politics. The claimant was also barred from leaving XXXX XXXX and from travelling abroad. He was eventually able to arrange a temporary visa to travel to Canada as a XXXX and used the visa to leave Ethiopia for Canada on XXXX XXXX, 2013 where he made his inland refugee claim a few weeks later. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [8] The following evidence was submitted by the appellant: 1. An affidavit from XXXX XXXX XXXX XXXX, sworn June 25, 2013, in regard to interpretation at the RPD hearing. 2. An affidavit from XXXX XXXX XXXX XXXX, sworn June 25, 2013, in regard to arranging an appointment with the Canadian Centre for Victims of Torture and reviewing two videos on the internet. 3. An affidavit from the appellant dated June 25, 2013. 4. A medical report from Dr. XXXX XXXX dated July 11, 2013. [9] Subsection 110(4) of IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [10] Section 110(4) of IRPA is worded in a similar manner to section 113 of IRPA that deals with pre-removal risk assessment (PRRA). Section 113 provides that an applicant whose claim for refugee protection has been rejected may present only evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. The PRRA is not an appeal of the RPD's decision as is the situation for the RAD. However, guidance can be obtained from the jurisprudence interpreting section 113. [11] The leading case on "new" evidence for PRRA was decided by the Federal Court of Appeal.1 The case outlined factors to be considered in determining what constitutes new evidence. These factors were: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been available to the RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [12] The affidavit from XXXX XXXX XXXX XXXX sworn on June 25, 2013, in regard to interpretation at the hearing, states that the mother's primary language is Amharic but that the affiant is not fluent in Amharic but has good comprehension. The affidavit then contains excerpts from the recording of the hearing that are alleged to have been interpreted incorrectly. I find that the interpretation provided cannot be considered credible since the affiant acknowledges not being fluent in Amharic. Interpreters used by the RPD are certified as being qualified to interpret the particular language used in a hearing. I find that the affidavit is not admissible as new evidence. [13] The affidavit of XXXX XXXX XXXX XXXX, also sworn on June 25, 2013, states that the affiant helped to arrange an appointment for the appellant with the Canadian Centre for Victims of Torture (CCVT) and personal observations after viewing two videos on the internet. I find that the contents of the affidavit are not relevant in proving or disproving a fact that is relevant to the appeal. [14] The affidavit from the appellant, dated June 25, 2013, does not provide any new evidence for the appeal. It merely sets out what steps the appellant may take to provide other evidence. It is not relevant to the appeal since it is not capable of proving or disproving a fact that is relevant to the appeal. [15] The medical report of Dr. XXXX XXXX is dated July 11, 2013. The report was sent to the RAD by fax on July 12, 2013 along with a letter from counsel stating that, if a formal application was required, he would oblige. He was advised that an application was required, and on July 15, 2013, the RAD received an application for extension of time to allow for the filing of the report. The Appeal Record containing the other documents outlined above had been received by the RAD on July 15, 2013. Rule 29 of the RAD Rules provides: (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of section 110(4) of the Act and how the evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. (4) In deciding whether to allow an application, the Division must consider any relevant factors including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record or reply record. [16] There was no explanation in the application of how the document meets the requirements of section 110(4) of the Act. The report does have relevance and probative value since it describes the condition of the appellant's XXXX which was an important consideration in the decision of the RPD, and it is prepared by a physician. The document brings this new evidence to the appeal and the report itself states that counsel requested the referral on June 23, 2013, Dr. XXXX saw the appellant on July 10, 2013 and prepared the report on July 11, 2013. [17] In considering the factors under section 110(4) of IRPA, the document is credible as it is written by a physician who outlines his credentials in the letter. The document is relevant as outlined above, and it is new in the sense that it is capable of contradicting a finding by the RPD that there was no corroboration of the appellant's stated injuries incurred when he was detained. The evidence is material as the RPD claim would probably have succeeded if it had been available. A negative factor is that the appellant could have gone to a doctor in Canada before his RPD hearing. He stated at the RPD hearing that he did not go to a doctor in Canada because it clashed with a traditional practitioner. He testified that he went to a traditional practitioner in Ethiopia to look at the injuries on his XXXX. [18] I have considered all of these factors, and I find that the relevance and probative value of the document outweighs the negative factors, and I allow the extension of time to submit the document, and I find that it is admissible under Section 110(4) of IRPA. [19] I find that there is no reason to hold an oral hearing in this matter, as the medical report is from a medical practitioner with his findings. SUBMISSIONS [20] The appellant submits that the RPD erred by making erroneous or unreasonable findings regarding credibility. [21] The appellant submits that the RAD set aside the RPD's decision and substitute a determination that the appellant is a Convention refugee and/or a person in need of protection. In the alternative, the appellant submits that the matter be referred back to the RPD for re-determination. [22] The Minister did not intervene in this matter. ANALYSIS OF THE MERITS OF THE APPEAL [23] The determinative issue in this appeal is: 1. Did the RPD err in finding that the appellant was not credible? Appellant's Arguments [24] The appellant submits that the RPD erred: (a) by failing to ensure that there was accurate interpretation for the hearing of the appellant's claim; (b) in finding implausibility because the appellant did not claim refugee protection when he was in the USA in 2012; (c) by imposing a legal requirement that the appellant must provide a medical report because he had been tortured; (d) in not providing the appellant with an opportunity to provide such a medical report especially in view of the appellant's statement that he was tortured and in view of the Chairperson's Guidelines on Vulnerable Persons; (e) in drawing an inference that the appellant was not credible because he had not provided letters from the persons who have helped him get out of jail in Ethiopia; (f) in using circular reasoning to refuse giving any weight to the letter from XXXX XXXX XXXX XXXX because the RPD had rejected the evidence of the appellant; (g) in failing to consider the evidence of the YouTube video referred to by the appellant in his documents; (h) in imposing a strict evidentiary rule respecting leading questions by counsel concerning the appellant's departure from the airport in Ethiopia; (i) in failing to conduct a proper section 97 inquiry into whether the appellant was at risk if he returned to Ethiopia; (j) in not assessing whether the appellant had become a" refugee sur place"; (k) in creating a reasonable apprehension of bias by suggesting from questions and demeanour that the RPD had already made a determination that the appellant was not credible from the outset of the hearing and by referring only to "problems" with the appellant's evidence and ignoring evidence that suggests that the appellant was credible. ANALYSIS [25] The issue of credibility is a question of fact. In considering this matter, it is necessary to determine the standard of review that will be used. [26] The appellant did not make any submissions on the standard of review. [27] Section 110(1) of the IRPA sets out the grounds for an appeal to the RAD. The appeal may be on a question of law, of fact, or of mixed fact and law. There are a number of decisions or determinations of the RPD that cannot be appealed to the RAD as set out in Section 110(1.1)(2) of the IRPA. [28] Section 111(1) sets out the decisions that the RAD can make after considering the appeal. The RAD can confirm the determination of the RPD; set aside the determination and substitute a determination that, in its opinion, should have been made; or refer the matter to the RPD for re-determination, giving directions to the RPD that it considers appropriate. [29] The standard of review is not specified in the legislation. [30] There are a few cases that have dealt with the standard of review to be applied by administrative appellate tribunals. The Alberta Court of Appeal dealt with the issue in the case of Newton v. Criminal Lawyers' Trial Association, 2010 ABCA 399. The case concerned the basic structure and interrelationship of the tribunals in Alberta that review the conduct of police officers when that conduct is called into question in disciplinary proceedings under the Alberta Police Act. The case also dealt with the issue as to whether the administrative appellate tribunal was required to hold a de novo hearing in every case. [31] The matter was first heard by a senior police officer ("presiding officer") from the RCMP. There were two counts of misconduct against an officer. The presiding officer found that one count was proven and one count was not proven. The determination of the Presiding Officer was appealed to the Law Enforcement Review Board ("Board"). The Board conducted a hearing de novo. The Board allowed the appeal on the one count not proven, thus, overruling the decision of the presiding officer. The Court found that the Board did not conduct any analysis of the reasoning of the presiding officer, did not reflect on whether it should afford his decision any deference, and did not explain why it disagreed with the inferences he had drawn from the evidence. [32] The Alberta Court of Appeal reviewed the law on standard of review that has developed in Canada. [30] The standard of review analysis respecting appellate superior courts and trial courts was definitively stated in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33. Shortly put, an appellate superior court reviews the decisions of trial courts on questions of law for correctness. Errors of fact, mixed errors of fact and law and inferences to be drawn from the facts are generally reviewed for palpable and overriding error. [32] The standard of review analysis respecting the relationship between superior courts and administrative tribunals is found in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, building on the platform laid down in Puspanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. Dunsmuir summarized the standards used at para. 51: ...questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness. Some legal issues, however, attract the more deferential standard of reasonableness. Truly jurisdictional questions are usually reviewed for correctness. Errors of law within the expertise or mandate of the tribunal are often reviewed for reasonableness. Questions of law of more general interest to the legal system are often reviewed for correctness. [33] The standard of law applied by the superior courts to decisions of administrative tribunals recognizes the purely supervisory role of the superior courts. ... Because the role of the superior courts is supervisory, it is not their place to substitute their judgment for that of the tribunal. The legislature has given the authority to make the decisions under review to the tribunal, not the courts. Therefore, deference to the decision of the tribunal is an important factor in setting the standard of review. The standard of review is set by considering four factors: '(1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by the interpretation of the enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal': Dunsmuir at para 64. [33] The Court went on to state: [42] The determination of the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance requires a consideration of the same factors that are discussed in Housen and Dunsmuir/Pushpanathan, adapted to the particular context: College of Physicians and Surgeons of Ontario v. Payne (2002), 219 D.L.R. (4th) 350, 163 O.A.C. 25 (Div. Ct.) at Para 20. [43] The following factors should generally be examined: (a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of the first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context. [34] The case of MacNeil v. Canada Employment Commission 2009 FCA 306, also dealt with the issue of standard of review between a tribunal of first instance and an appellate tribunal. In that case, an individual acting as an umpire allowed the appeal of the Employment Insurance Commission from a decision of the Board of Referees. The issue in the case was whether the pension payments received by the appellant were earnings that had to be deducted from the benefits payable to the appellant under the Employment Insurance Act. [35] The Court stated that the Umpire did not set out the standard of review he applied in arriving at his decision. Counsel for the appellant argued that the reasonableness standard should have applied since the question that the Umpire was reviewing was a question of mixed fact and law. The Court did not agree. The Court stated that the application of a legal standard to a set of factual findings is typically regarded as a question of mixed fact and law which is reviewed on a standard of reasonableness, unless there is a readily extricable question of law. In this case, the legal standard is the definition of pension in regulations to the Act. The collective agreement is also to be considered. The Court found that these questions were questions of law and the standard of review was correctness. [36] The case of Halifax (Regional Municipality) v. Anglican Diocesan, 2010 NSCA 306, also dealt with the issue of standard of review by an appellate tribunal of a decision of a tribunal of first instance. In this case, the Diocese wanted to erect a building with a residential component on land that it owned. Halifax's land-use bylaw zoned the property as Park and Institutional. The Diocese applied for a development permit, but it was denied by the municipal development officer on the basis that the residential component was not permissible according to the bylaw. [37] The Diocese appealed to the Utility and Review Board ("Board") which allowed the appeal. The Municipality then appealed to the Court of Appeal. The Court reviewed the legislation establishing the Board. The relevant parts of the legislation stated that the Board could overturn a development officer's refusal of a development permit only on the grounds that the development officer's decision does not comply with the land-use bylaw or conflicts with the provisions of the land-use bylaw plus other matters that were not relevant. The Board stated that it "may only allow this appeal if it determines that the Development Officer's decision "conflicts with" or "does not comply with the land-use bylaw." The Court stated that the Board should do just what the statute tells it to do. [38] The Court found that the legislation expects the Board to interpret the land-use bylaw. It went on to find that the Board reasonably interpreted the phrase "other institution of a similar type." [39] In my view, the reasoning of the Federal Court of Appeal in McNeil and the Nova Scotia Court of Appeal in Anglican Diocesan is consistent with the Alberta Court of Appeal decision in Newton and might well have been reached using the factors set out in that decision. In the McNeil case, the court appears to have considered the nature of the question in issue, the interpretation of the statute as a whole as well as the other factors. In the Halifax case, the court considered the nature of the question in issue, the interpretation of the statute as a whole, the expertise and advantageous position of the tribunal of the first instance, compared to that of the appellate tribunal as well as the other issues. For that reason, in my opinion, the standard of review to be applied by the RAD should be determined using the factors set out in Newton. [40] In considering the standard of review to be applied by the RAD to the RPD decision, I reviewed the factors set out by the Alberta Court of Appeal. (a) The RPD's principal function is to hold oral hearings to determine if a claimant referred to the Immigration and Refugee Board ("Board") by Citizenship and Immigration Canada (CIC) or Canada Border Services Agency (CBSA) is a Convention refugee in accordance with Section 96 of the IRPA or is a person in need of protection according to Section 97 of the Act. The RPD also considers whether a claimant is subject to exclusion under Section 98 of the IRPA. Section 98 incorporates sections "E" and "F" of Article 1 of the Refugee Convention. The RPD may inquire into any matter relevant to the claim. It must hold a hearing, but it may accept a claim without a hearing through an expedited process. It may question the witnesses, including the person who is the subject of the proceeding. The RPD must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations. An appeal to the RAD may be made by the person who is the subject of the RPD proceedings or by the Minister against a decision of the RPD to allow or reject the person's claim for refugee protection. The person or the Minister may appeal to the RAD on a question of law, question of fact or a question of mixed law and fact. There is no appeal to the RAD in certain circumstances as set out in the IRPA. The RAD is able to determine questions of law and fact, including questions of jurisdiction. After considering the appeal, the RAD shall make one of the following decisions: confirm the determination of the RPD; set aside the determination and substitute a determination that, in its opinion, should have been made; or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate. The Act provides that the RAD must proceed without a hearing on the basis of the record of the RPD proceedings except that the RAD may, in accordance with certain provisions, accept documentary evidence and written submissions and conduct an oral hearing. (b) The basic question before both the RPD and the RAD is whether a claimant is a person in need of protection. Both the RPD and the RAD are given authority to use "specialized knowledge" in reaching their decisions. The RAD is to determine if the question is one of law, fact, or mixed fact and law. (c) In reviewing the interpretation of IRPA as a whole, sections 3(2) and 3(3) set out the objectives of the Act with respect to refugees and the general application of the Act. Among other matters, these sections state that the objectives include: recognition that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; granting, as a fundamental expression of Canada's humanitarian ideals, fair consideration to those who come to Canada claiming persecution; establishing fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada's respect for the human rights and fundamental freedoms of all human beings; promoting international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals; fulfilling Canada's international legal obligations with respect to refugees and affirm Canada's commitment to international efforts to provide assistance to those in need of resettlement. The Act is to be applied in a manner that ensures that the decisions taken are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; and complies with international human rights instruments to which Canada is signatory The Act also provides in Section 162 that each Division of the Board has, in respect of proceedings brought before it sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction and each division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. (d) The RPD is able to hear and observe the evidence in the original hearing. Both the RPD and the RAD are considered to have the expertise to use "specialized knowledge". The RAD has more than a supervisory role over the RPD, since it can set aside the determination and substitute a determination that, in its opinion, should have been made. (e) As noted above, the Act provides that the RAD must proceed informally and quickly as the circumstances and the considerations of natural justice permit. The RAD must proceed without a hearing on the basis of the record of the RPD proceedings except that the RAD may, in accordance with certain provisions, accept documentary evidence and written submissions and conduct an oral hearing. Together with the items mentioned in paragraph (f), these factors indicate that the Act contemplates the need to limit the number, length and cost of appeals. (f) The Act provides that there is no appeal to the RAD in respect of an RPD decision regarding designated foreign nationals; withdrawn or abandoned claim; no credible basis or manifestly unfounded claim; exception to the Safe Third Country Agreement; designated country of origin (DCO); Minister's application that refugee protection has ceased (whether allowed or rejected); Minister's application to vacate refugee protection (whether allowed or rejected); deemed rejection of claim because of Extradition Act; application for protection, i.e., Pre-Removal Risk Assessment (PRRA). Along with the factors listed in paragraph (e) the Act preserves the economy and integrity of the RPD. (g) No other relevant factors. [41] These factors indicate that the Act does not contemplate that the proceedings before the RPD are to be given no deference. The RPD is an important step in the process of refugee determination. It has the obligation to decide many matters that cannot be appealed to the RAD, and it has the significant advantage of hearing first-hand evidence from witnesses in an oral hearing. The RAD, in contrast, is primarily an appeal on the record. Deference ought to be given to the tribunal which has the advantage of a full oral hearing in which to make its findings of fact and fact and law. Although the RAD and the RPD have similar expertise in interpreting the enabling legislation, that would support a standard of correctness only for questions of law. The RAD is given the ability to set aside a determination of the RPD and substitute a determination that, in its opinion, should have been made. This is a remedy that a court does not have in exercising judicial review of an administrative tribunal. I have taken this into consideration; however, in assessing these remedial powers against the above factors and the roles set out for the RPD and the RAD, I conclude that the RAD is still to give deference to the RPD. [42] In accordance with this deference, findings of fact and findings of mixed law and fact are to be assessed on the basis of reasonableness. Both the RPD and the RAD are considered to have specialized knowledge. Therefore, errors of law within the expertise or mandate of the tribunals as well as questions of law of more general interest to the legal system are to be reviewed for correctness. [43] The determinative issues raised by the appellant in this case challenge the RPD's findings of fact. Findings of fact are to be examined on the standard of reasonableness. [44] The RPD made a finding that it was implausible that the appellant could leave Ethiopia in XXXX 2013 using his own passport, since he stated in his Basis of Claim (BOC) narrative that he would be killed if he tried to leave the country. The RPD stated in its decision, "The claimant testified that he fled Ethiopia in XXXX 2013 using his own passport to pass through an international airport in XXXX XXXX. He further testified that he did not pay a bribe to anyone when he fled at that time and that he did not use a false passport in anyone else's name. When the member asked him several times how was able (sic) to do that when according to his story the Ethiopian authorities had banned his travel, the claimant did not have any answer to explain away this implausibility." [45] In reviewing the transcript of the hearing, there is the following exchange: The RPD asked the appellant, "So why would they let you leave then?" The appellant replied, "The reason why they let me leave, the main thing, when I called from Ethiopia to the United States to XXXX XXXX, I said please help me. I explained that after this they are going to kill me. Then after that XXXX XXXX arranged everything with some people to leave." The RPD stated that the appellant responded to leading questions from his counsel that he had assistance from UDJ members who happened to work at the airport, but these answers were discounted because they came in response to leading questions. The RPD does not appear to have taken into account that in response to its own questions, the appellant stated that Tamagne Beyene had arranged everything. I find it unreasonable for the RPD to conclude that there had been no credible explanation for this implausibility finding. [46] The RPD found that the appellant did not provide any documents to corroborate the XXXX injuries he suffered in XXXX prison in XXXX 2012. The medical report from Dr. XXXX XXXX stated that the examination of XXXX XXXX of the appellant revealed at least five round hyperpigmented scars over the XXXX XXXX area and at least three hyperpigmented scars over the XXXX XXXX area. All these scars are evidences of assault to the skin at these regions resulting in post-inflammatory hypopigmentation. I find that, on a balance of probabilities, this medical evidence corroborates the appellant's claims that he was beaten on the XXXX XXXX XXXX during his detention in XXXX and XXXX 2012. [47] The RPD also found that the appellant did not provide letters or declarations from the wealthy benefactors who bribed him out of detention in XXXX 2012, to corroborate his evidence. When he was asked why they would not provide the letters the appellant stated that they were private citizens who would not provide such a document. The RPD did not accept this explanation and implied it was implausible that, if such persons were willing to take the risk to bribe Ethiopian officials, then they would perceive little further risk in providing a document to a private and confidential process in Canada. There is jurisprudence on plausibility findings, stating that plausibility findings should be made only in the clearest of cases, such as where the facts are so far outside the realm of what could reasonably be expected that it could not happen as described, or where there is documentary evidence or other evidence which demonstrates that events could not have happened as described.2 The fact that these persons would not write letters setting out their illegal act is not so far out of the realm of what could reasonably be expected, and there is no reference to evidence or documentary evidence that demonstrates this could not have happened as described. I find that this implausibility finding of the RPD was unreasonable. [48] The appellant was detained for five days in XXXX 2005 but then he re-involved in politics and met with the opposition activists in the USA before his return to Ethiopia in XXXX 2012. The RPD asked him questions as to why he did not make an asylum claim in the USA or Europe before he returned to Ethiopia in 2012 since he had been detained in 2005 and he had been associated with the opposition for a long time. He testified that the detention and treatment he received in 2012 was when "the big issue' happened to him. He stated that "At both situations it was not scary what happened to me, but the last one was scary, that is why I decided to leave the country." The RPD found it implausible, given his alleged profile, that the claimant would not have made a refugee protection claim earlier or that he would have returned to Ethiopia in XXXX 2012 if the allegations he made were true. The RPD went on to state that, "Given the length of time he had been involved with the opposition according to the allegations and who he had been speaking to in the U.S. and the fact that those individuals did not believe it was safe for themselves to return to Ethiopia, I find it very unlikely and therefore, implausible that the claimant would not have realized that it was not safe for him to return to Ethiopia either." [49] Again, this is not the clearest of cases to make an implausibility finding. The facts are not so far out of the realm of what could reasonably be expected. The appellant's evidence was that he was detained for 16 days and physically assaulted in 2012. There was no evidence of physical assault when he was previously detained. He referred to the detention and assault in 2012 as the "big issue", and this detention was "scary" compared to the previous detention. I find that this implausibility finding is unreasonable. [50] The RPD placed no positive weight on the affidavit of XXXX XXXX because it was offered as evidence by the appellant and since the appellant was found not to be a credible and trustworthy witness then no positive weight is to be given to the affidavit. The only analysis of the affidavit itself is that the statements as to what happened to the appellant in Ethiopia in 2012 are dependent upon the information given to XXXX XXXX by the appellant. However, in reading the affidavit, XXXX XXXX is very careful in affirming the statements that he personally knows. [51] He was one of the XXXX of the CUD political party, and he was imprisoned for over XXXX months following the 2005 election. He says that his initial acquaintance with the appellant was during the 2005 elections, but he knew of him as an Ethiopian XXXX prior to 2005. He met the appellant in Washington D.C. when he travelled there between XXXX 2011 and XXXX 2012. The Ethiopian government has sentenced him to death in absentia due to his political profile. He states that any person who is close to him or in frequent contact with him is seen by the Ethiopian government as an opposition activist and a threat to their rule. He then states that he was not surprised to learn of the treatment the appellant received when he returned to Ethiopia in 2012. He does not affirm that he has direct knowledge of this information. He then goes on to state that he feels the appellant's freedom and life can be threatened by the appellant's relationship with him, the appellant's identity as a high profile XXXX and his political affiliation with the opposition political movement. It was unreasonable for the RPD not to do an independent analysis of the trustworthiness of the entire affidavit. It was unreasonable to give it no positive weight solely because it was offered as evidence by the appellant and without an examination of its contents, and comment on only one part of the document. I find that the affidavit should be given substantial weight in assessing the appeal. [52] Considering the new evidence and the evidence that was before the RPD, I find that, on a balance of probabilities, it is credible that the appellant was detained and beaten when he returned to Ethiopia in XXXX 2012. The affidavit of XXXX XXXX states that he has a relationship with the appellant and this would put him in danger if he returned to Ethiopia. I find that there is a serious possibility that the appellant would be persecuted because of his political beliefs if he returned to Ethiopia. The appellant has a well-founded fear of persecution on account of his political activity if he returns to Ethiopia. REMEDIES [53] For all of these reasons, due to the new evidence and the evidence before the RPD, the appeal is allowed. The RAD sets aside the determination of the RPD that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. [54] The RAD substitutes its decision and finds that XXXX XXXX XXXX is a Convention refugee. (signed) "Ken Atkinson" Ken Atkinson September 18, 2013 Date 1 Raza, Syed Masood v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 2 Xu, Jinhuan v. M.C.I. (IMM-2318-06, March 9, 2007) Phelan, 2007 FC 274. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-03613