MB9-24956

RAD File / Dossier de la SAR: MB9-24956 MB9-24957 / MB9-24958 / MB9-24959 MB9-24960 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 11, 2020 Date de la décision Panel J. Pollock Tribunal Counsel for the persons who are the subject of the appeal Liyusew S Kidane Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Principal Appellant), his wife, XXXX XXXX XXXX (the Associate Appellant), and their minor children, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the Minor Appellants) are citizens of Ethiopia. They allege a fear of persecution upon return to Ethiopia based on their XXXX XXXX and the Principal Appellant's political opinion. Since their arrival to Canada, the Principal Appellant and Associate Appellant have attended a number of public protests and events where they have expressed their political opposition to the Ethiopian government. [2] The Refugee Protection Division (RPD) rejected the Appellants' claims, finding that: (1) the Appellants' delay in leaving Ethiopia and return to Ethiopia from a trip to Thailand undermine their subjective fear and credibility; (2) the Principal Appellant was vague and lacked credibility regarding his allegations of past persecution by the government in Ethiopia; (3) the Principal Appellant omitted his detention in Ethiopia from his Port of Entry (POE) immigration forms; (4) the Appellants have a viable Internal Flight Alternative (IFA) in XXXX XXXX; and (5) the Principal Appellant's anti-government activities in Canada are insufficient to establish a sur place claim. The Appellants argue that the RPD erred on all five grounds. They submit new evidence on appeal, which I have admitted, and they argue that this new evidence establishes their sur place claim. [3] Having independently assessed the complete RPD Record, as well as the new evidence on appeal, I find that the Appellants have established a sur place claim. This is the determinative issue on appeal. I have addressed why the RPD's sur place finding is no longer correct in light of the new evidence before providing my reasons for allowing the appeal and accepting the Appellants' claims. DECISION [4] The appeal is allowed. I substitute my own decision that the Appellants are Convention refugees. NEW EVIDENCE ON APPEAL [5] The Appellants' claim was rejected on October 3, 2019. Their proposed new evidence is as follows: a. A letter of support from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Toronto, dated XXXX XXXX XXXX 2019; b. Photographs of the Principal Appellant and Associate Appellant attending a public event in opposition to the Ethiopian government, accompanied by the event flyer and translation, from XXXX XXXX XXXX 2019; c. Photographs of the Principal Appellant and Associate Appellant attending a public event in opposition to the Ethiopian government on XXXX XXXX XXXX 2019, accompanied by screenshots from the Principal Appellant's public anti-government speech aired on XXXX XXXX, also available on XXXX, accompanied by a transcript of the speech, the event flyer, and translations; d. Photographs of the Principal Appellant and Associate Appellant attending a public event in opposition to the Ethiopian government on XXXX XXXX XXXX 2019, accompanied by the event flyer and translation; e. Photographs of the Principal Appellant attending a public event in opposition to the Ethiopian government on XXXX XXXX XXXX 2019, accompanied by the event flyer and translation; and f. Ten news reports regarding the treatment of political opponents and XXXX XXXXEthiopia, dated from XXXX XXXX XXXX 2019 to XXXX XXXX XXXX 2019.1 [6] According to subsection 110(4) of the IRPA,2 I can only accept new evidence that: i. Arose after the RPD decision; or ii. Was not reasonably available at the time of the decision; or iii. Could not reasonably have been expected in the circumstances to have been presented to the RPD before the decision. [7] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.3 According to the law,4 I may only hold an oral hearing where the accepted new evidence: i. Raises a serious issue with respect to the credibility of the person who is the subject of the appeal; and ii. Is central to the decision of the claim; and iii. If accepted, justifies allowing or rejecting the claim. [8] I find that the evidence described in items (a), (b), (c), (d), (e), and (f) is admissible. However, I am not holding an oral hearing. The evidence in items (a), (b), (c), (d), and (e) is admitted but I am not holding a hearing [9] The evidence in items (a), (b), (c) and (d) arose after the RPD rejection and meets the requirements of 110(4). The evidence in item (e) arose from an event that took place before the RPD rejection. Counsel argues that item (e) was not reasonably available before the RPD decision. I agree. The event in item (e) took place just four business days before the RPD rejection. I find that the Appellants could not reasonably have been expected to have presented this evidence at the time of rejection.5 This evidence is admissible under 110(4). [10] The evidence in items (a), (b), (c), (d), and (e) is prima facie credible, relevant to the claim, and new. The photographs appear on their face to show the Principal Appellant and Associate Appellant at public events opposing the Ethiopian government. In addition, the video of the Principal Appellant's anti-government speech is readily available online and is published by an Ethiopian media institution known to publish anti-government protests and statements. Items (a), (b), (c), (d), and (e) are admitted into evidence. These items also meet the criteria for holding a hearing. However, I do not find that a hearing is necessary in this case. I am able to assess the credibility of the new evidence on appeal without questioning the Appellants. As my ultimate finding is in the Appellants' favour, I have decided not to hold a hearing. The evidence in item (f) is admitted but does not require a hearing [11] The news reports in item (f) are dated after the RPD rejection and meet the requirements of 110(4). I further find that these documents are credible, relevant to the claim, and new. They are issued by reliable news agencies and speak to the treatment of actual and imputed political opponents in Ethiopia following the RPD's negative decision. Item (f) is admitted into evidence. However, I do not find that these news reports require a hearing as they are not determinative the claim and do not raise a serious issue as to the Appellants' credibility. ANALYSIS [12] My role is to look at all of the evidence and decide if the RPD made the correct decision.6 [13] I have listened to the entire RPD hearing audio-recording and I note that considerable technical difficulties and interpretation issues arose during the hearing.7 The RPD Member heard the claim in Ottawa by video-conference while Counsel and the Appellants were in Toronto and the XXXX interpreter was in Montréal. The RPD Member correctly asked Counsel if he is making an application in light of the issues that arose and Counsel did not request a change in interpreter, an adjournment of the proceedings, or an audit of the hearing.8 Instead, the hearing proceeded, the videoconference equipment was reconnected as required, and the interpreter was cautioned many times to only interpret the testimony provided. In my assessment, the parties made considerable effort in difficult circumstances to hear the claim to its conclusion. [14] While I have concerns about the impact of the interpretation problems at the RPD hearing, this is not determinative. I find that the new evidence on appeal establishes the Appellants' sur place claim. It is not necessary to address all of Counsel's arguments on appeal. I have addressed why the RPD's sur place finding is no longer correct in light of the new evidence before providing my reasons for allowing the appeal and accepting the Appellants' claims. The new evidence establishes the Appellants' sur place claim [15] At the time of the RPD hearing, the Principal Appellant and Associate Appellant's political activities in Canada included: membership in the XXXX XXXX XXXX XXXX XXXX XXXX XXXX, which speaks out against human rights violations in Ethiopia; attendance at a public fundraising event on XXXX XXXX XXXX 2019; and attendance at a public meeting on XXXX XXXX XXXX 2019. The RPD did not make any adverse credibility findings with regard to the credibility of the Appellants' anti-government political opinion their attendance at events in Canada. However, even had the credibility of the Appellants' motivations been in doubt, credible evidence of Canadian activities must be considered even if the motivation behind the activities is non-genuine.9 [16] The RPD examined the Appellants' activities in light of the objective evidence and found that their attendance at two public meetings for XXXX XXXX XXXX is not likely to come to the attention of Ethiopian authorities.10 I agree with Counsel that this finding is no longer correct in light of the new evidence. I find that the Appellants have established a sur place claim. [17] The question to be asked for a sur place claim is whether a Claimant's activities are "likely to come to the attention" of the authorities in the Claimant's home country and whether this gives rise to a serious possibility of persecution.11 The determination of whether a Claimant's activities in Canada would come to the attention of authorities in their home country is a factual determination made on a balance of probabilities.12 The RPD correctly set out this test. For the reasons that follow, I find that the Principal Appellant and Associate Appellant's activities in Canada are likely to come to the attention of Ethiopian authorities and that, as a result, the Appellants face a serious possibility of persecution upon return to Ethiopia. Canadian activities publicly opposing the Ethiopian government [18] The new evidence on appeal includes photographs which show the Principal Appellant and Associate Appellant at public events among large groups of people holding anti-government signs.13 The flyers for each of these events have also been provided and include clear political statements in opposition to the current Ethiopian government.14 In addition, the transcript of the Principal Appellant's speech - which was aired by the opposition XXXX XXXX and is readily available online on YouTube - is clear in its anti-government message. The Appellants provided the URL web address for the video as well as timestamps for the Principal Appellant's appearance.15 The Principal Appellant appears on the video, his face is clearly visible, and he states his name. The video was posted on XXXX XXXX XXXX 2019 and has received over one thousand views. In his speech, the Principal Appellant states that Ethiopia is a "failed state" and speaks about people's fear to speak out against the government as well as the increasing number of deaths in Ethiopia.16 The political content of his message is clear. [19] The letter from XXXX Toronto also supports the Appellants' sur place claim and risk upon return.17 The XXXX refers to the Principal Appellant and Associate Appellant's active involvement in the XXXX through their attendance at a vigil and public protests. The XXXX general secretary expresses his opinion that the Appellants will be at risk in Ethiopia based on their activities, referencing the experience of similarly situated persons who have been targeted in Ethiopia based on activities in exile, including activities with the XXXX XXXX18 There is a likelihood that the Canadian activities will come to the attention of authorities [20] The National Documentation Package (NDP) indicates that "people who openly criticise the Ethiopian government while they are outside Ethiopia face a high risk that the Ethiopian authorities will be aware of these activities and take action against these people upon their return."19 While there are varying opinions on how 'high profile' an individual must be in order to be monitored, the objective evidence indicates that the government actively monitors and censors those who are low profile and would seem to be of little interest.20 [21] Ethiopian authorities have been found to monitor telephone calls, text messages and emails of the XXXX XXXX in addition to having informants attend public events, such as protests and infiltrate XXXX communities in order to monitor dissidents.21 The Ethiopian government has "significant intelligence-gathering capabilities," is "likely to be aware" of protest activity undertaken in other countries and "appears to be doing everything it can to spy on members of the XXXX XXXX"22 This includes the monitoring and surveillance of XXXX protests in Canada.23 [22] The most recent NDP for Ethiopia indicates that "the Government monitors the XXXX 'every single day', and is very active in this regard."24 The November 2019 Australian Centre for Country of Origin and Asylum Research and Documentation report states: The Government conducts internet surveillance, monitors the activities of XXXX members who are active on YouTube canals or otherwise engaged in internet based communication. This surveillance also includes those XXXXmembers who are of a low profile and who are less vocal in their anti-government agitation. ... The level of surveillance inside Ethiopia is high and, according to the interlocutor [international NGO], there is 'no doubt' that this surveillance extends to people who belong to the XXXX. The activities and utterances of those members of the XXXX who are active on social media such as YouTube are most possibly being followed closely by the secret service.25 [23] Based on the evidence, I find that the Principal Appellant and Associate Appellant's anti-government activities in Canada are likely to come to the attention of Ethiopian authorities. The Appellants face a serious possibility of persecution upon return to Ethiopia [24] The NDP indicates that Ethiopian police and security agents are widely known to engage in serious human rights abuses against actual and perceived government opponents, including through arbitrary arrest and detention, excessive use of force, and torture.26 Even family members of persons who openly oppose the government have been monitored, threatened, and physically assaulted.27 State agents continue to enjoy impunity.28 [25] Recent country condition evidence indicates that the newly appointed Prime Minister of Ethiopia, Dr. Abiy Ahmed, has freed political prisoners, welcomed back political dissidents overseas, and invited exiled opposition leaders to return to Ethiopia.29 These positive changes have improved the human rights climate for actual and perceived political opponents. [26] However, the recent objective evidence also indicates that the state continues to direct violence at actual as well as imputed opponents, including through continued detention at government 're-education camps' where detainees endure brainwashing.30 Moreover, while change has taken place at the highest level, at a local level "'the same abusive people' are still in place, making it possible that 'intimidations and harassment still occur ...'"31 Indeed, the Ethiopian government has "not lived up to its promise of liberating all political prisoners and opposition leaders"; while ten thousand of the estimated thirty thousand political prisoners have been released in Ethiopia, others continue to be arrested by authorities on political grounds.32 [27] Dr. Abiy's appointment is an important achievement in Ethiopia; however, he was not democratically elected and he continues to govern the country as part of the same abusive coalition of parties - the ruling Ethiopian Peoples' Revolutionary Democratic Front (EPRDF).33 Given that the EPRDF controls all of the seats in parliament "the institutional and legal impediments for sustained political space remain a challenge."34 It is "unclear whether any genuine political reforms are taking place. So far it is a matter of public declarations."35 Counsel's new country report evidence on appeal indicates that as recently as November 2019, the crackdown on dissent has intensified in Ethiopia.36 The most recent NDP for Ethiopia indicates that arbitrary detention of political opponents in Ethiopia "remains common."37 [28] I find that the Appellants have established an objective basis for their sur place claim, that their fears are well founded, and that they face a serious possibility of persecution in Ethiopia. XXXX XXXX is not a viable IFA for the Appellants [29] The RPD found that the Appellants can safely and reasonably reside in an XXXX area of XXXX XXXX in order to escape ethnic persecution. I find that this assessment is unsustainable when considered in light of the new evidence on appeal. The IFA fails on the first prong. I have already found that the Appellants have established a sur place claim based on their public activities opposing the Ethiopian government in Canada. The Appellants face a serious possibility of persecution upon return to Ethiopia. This extends to XXXX XXXX. The agent of persecution - the Ethiopian government - exercises its power throughout the whole of its territory.38 I find that the Appellants do not have a viable IFA anywhere in Ethiopia. State protection is not available to the Appellants [30] I find that it would be objectively unreasonable for the Appellants to seek the protection of the state in their particular circumstances because it is the state that they fear. CONCLUSION [31] The appeal is allowed. I substitute my own decision that the Appellants are Convention refugees.39 (signed) "J. Pollock" J. Pollock February 11, 2020 Date 1 Exhibit P-2, Appellants' Record, at pp. 1(a)-62 2 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 110(4). 3 Canada (MCI) v. Singh, 2016 FCA 96; Nteta-Tshamala v. Canada (MCI), 2019 FC 1191, at para. 25. 4 IRPA, at ss. 110(6). 5 Ogundipe v. Canada (MCI), 2016 FC 771, at paras. 26-27. 6 Canada (MCI) v. Huruglica, 2016 FCA 93, at para. 103. 7 RPD hearing audio-recording, August 28, 2019, at timestamp 00:01:00-00:34:00, 00:37:20, 00:41:31, 00:46:20, 01:35:54, 02:40:00. 8 RPD hearing audio-recording, August 28, 2019, at timestamp 01:25:15-01:32:50. 9 Ghasemian v. Canada (MCI), 2003 FC 1266, at para. 22; Ejtehadian v. Canada (MCI), 2007 FC 158, at para. 11. 10 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 19, at paras. 51-53. 11 Win v. Canada (MCI), 2008 FC 398, at paras. 2, 30; Girmaeyesus v. Canada (MCI), 2010 FC 53, at para. 28. 12 Gebremedhin v. Canada (IRCC), 2017 FC 497, at para. 23, 29 13 Exhibit P-2, Appellants' Record, at pp. 6-7, 9, 17-18, 22. 14 Exhibit P-2, Appellants' Record, at pp. 4-5, 8, 15-16, 19-21. 15 Exhibit P-2, Appellants' Record, at p. 12. 16 Exhibit P-2, Appellants' Record, at p. 11. 17 Exhibit P-2, Appellants' Record, at pp. 1(a)-2(a). 18 Exhibit P-2, Appellants' Record, at pp. 1(a)-2(a). 19 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Ethiopia (29 March 2019), Item 1.5, at p. 29, at para. 5.21. 20 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 1.5, at p. 17, at para. 3.34; Item 4.16, at p. 2. 21 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 2.1; Item 4.16, at p. 1-3. 22 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 1.5, at p. 29, at para. 5.21; Item 4.16, at p. 3. 23 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 4.17, at p. 5. 24 Exhibit RAD-1, NDP for Ethiopia (31 January 2020), Item 1.8, at p. 60, at para. 4.42. 25 Exhibit RAD-1, NDP for Ethiopia (31 January 2020), Item 1.8, at p. 61, at para. 4.42. 26 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 1.4; Item 1.5; Item 2.1. 27 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (31 January 2019), Item 1.11, at p. 10; Item 1.12, at p. 36; Item 1.5, at p. 17, at para. 3.34; Item 2.1. 28 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 2.1. 29 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 2.1; Item 2.3; Item 2.6; Item 4.4, at p. 4; Item 4.7. 30 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 2.3; Item 2.6; Item 4.7. 31 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 4.7. 32 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 4.4, at para. 4.1. 33 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 2.1. 34 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 2.3. 35 Exhibit RPD-1, NDP for Ethiopia (29 March 2019), Item 3.14, at para. 27; Item 4.4, at para. 46. 36 Exhibit P-2, Appellants' Record, at pp. 36-39, 51-62. 37 Exhibit RAD-1, NDP for Ethiopia (31 January 2020), Item 1.8, at p. 85, at para. 6.2. 38 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Ethiopia (29 March 2019), Item 1.5; Item 1.13. 39 IRPA, ss. 111(1)(b). --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR: MB9-24956 MB9-24957 / MB9-24958 / MB9-24959 MB9-24960 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français