TB7-19732

RAD File / Dossier de la SAR : TB7-19732 Private Proceeding / Huis clos Redetermination of Appeal ? Nouvel examen de l'appel Reasons and decision ? Motifs et decision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 6, 2019 Date de la décision Panel Nadra Qadeer Tribunal Counsel for the person(s) who is(are) the subject of the appeal Teklemichael Ab Sahlemariam Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX, a citizen of Ethiopia, appeals the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. [2] The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a determination that she is a Convention refugee or person in need of protection, or refer the matter back to the RPD for redetermination. [3] The Appellant is submitting new evidence and requests an oral hearing. Background [4] The Appellant fears returning to Ethiopia on account of her perceived or impugned political opinion and opposition to the Ethiopian government. [5] The Appellant alleges that she rented out rooms in her house to various individuals. She was arrested XXXX in the past by Ethiopian police, accused of renting out rooms to opposition party members such as the Oromo Federalist Congress (OFC). [6] The Appellant travelled to Canada on a previously obtained visa on XXXX XXXX XXXX 2017 and initiated a refugee claim shortly after her arrival. [7] Her claim was heard by the RPD on August 30, 2017 and denied in an oral decision delivered the same day. [8] She appealed the decision to the RAD, who dismissed the appeal on August 18, 2018. [9] The Appellant applied for judicial review to the Federal Court of Canada and judicial review was allowed. This decision constitutes a second RAD review of the appeal. Determination [10] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Role of the RAD [11] As held by the Federal Court of Appeal in Huruglica,1 the RAD must review RPD decisions on a correctness standard with respect to questions of law and findings of fact (and mixed fact and law) which raise no issue of the credibility of oral evidence. Deference may be required when the RPD is in an advantageous position with respect to the assessment of oral evidence.2 In this appeal, I was able to review and understand the hearing as well as the record. I do not find that the RPD was in an advantageous position in assessing this evidence, and do not apply a deferential standard. Admissibility of new evidence [12] In support of the appeal the Appellant proposes 18 (items A-R) pieces of new evidence which are enumerated in the Appellant Record3. [13] Subsection 110(4) of the IRPA provides that Appellants may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected4 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in the memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to the Appellant.5 [14] In addition, if the new evidence meets one of the explicit legislative factors in subsection 110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.6 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for subsection 110(6) and the request for an oral hearing.7 Item A, Psychodiagnostic report of Dr. XXXX XXXX dated XXXX XXXX, 20178 [15] The Appellant explains in her Memorandum that the Psychodiagnostic report was obtained after the RPD decision, and is highly relevant. The Appellant explains that she was nervous and frightened at her refugee hearing, having never attended any such environment before. She experienced panic and was traumatized by past events and was not aware she was suffering from mental health problems that affected her RPD hearing. The new evidence comes from a reliable and trustworthy source and provides new insight into the Appellant's behaviour and mental health status. [16] The RAD finds that the Appellant's evidence meets both the statutory and jurisprudential tests. The report was not reasonably available nor expected at the time of the RPD rejection, and, the report comes from a credible source. The report, in my view, is highly relevant, new and is therefore admissible. Items B and C9 [17] Both articles pre-date the RPD decision. While the Appellant submits that these articles were not reasonably expected in the circumstances, I do not agree. The issues the articles deal with are not only reasonably available, and existed prior to the rejection of the RPD decision, but also contain content that is addressed in the National Documentation Package (NDP). This evidence is rejected. Items D through R10 [18] All of these articles post-date the RPD hearing and they refer to events that have taken place within the country. The Appellant submits that they refer to objective country conditions and the changes that have taken place since the RPD decision and are from sources that are credible. [19] I accept that the evidence refers to events and country conditions that have changed since the RPD decision and find them admissible. No oral hearing [20] The Appellant requests a hearing pursuant subsection 110(6). The RAD finds that there is sufficient evidence available to render a decision without the need for an oral hearing and therefore will not hold one in this case. Appellant's Arguments * The Appellant argues that the RPD erred in its assessment of her credibility. The Appellant specifically argues that; * The RPD failed to consider her state of mind during the proceedings * The RPD failed to consider the Chairperson's Gender Guidelines11 in relation to her testimony, considering the social and cultural context in which she lived * The RPD was microscopic in its assessment of her credibility * The RPD failed to consider relevant and corroborative evidence such the medical report, rental agreement, and letter from her son12 RAD Analysis of Appeal Gender and cultural context are central in the Appellant's claim [21] The Appellant submits that the RPD failed to consider the Gender Guidelines in assessing her claim. While the claim is not based upon gender based persecution, the Guidelines offer guidance and consideration related to gender that do provide context for understanding particular circumstances. [22] In Diallo v. Canada it is stated, "the Gender Guidelines exist, in part, to ensure that social, cultural, traditional and religious norms do not interfere with the proper assessment of an applicant's credibility"13. Also, Section D, of the Gender Guidelines refers to special problems at determination hearings and, in my view, offers applicable insight; Women from certain cultures where men do not share the details of their political, military or even social activities with their spouses, daughters or mothers may find themselves in a difficult situation when questioned about the experiences of their male relatives [23] To be clear this case does not involve gender based persecution, nor does it involve the imputed opinion related to political activities of a male relative. However, read more generally, it does involve an older, widowed, woman with limited experiences of higher education, and no political affiliation. Her specific circumstances and context warrant that she be questioned with consideration for what she would reasonably know and understand within that context. I find that the RPD erred when it failed to consider the personal circumstances of the Appellant when making findings related to her testimony on who she fears. [24] While it is true the Appellant confused the OFC with the Federal police it is clear from my review of her testimony, that she fears the police and was detained by the police. When asked who she is afraid of in Ethiopia she indicated it was the "Oromo Congress". When asked to clarify she said "Federal congress". When asked questions by the RPD panel on the OFC versus the EPRDF (Ethiopian People's Revolutionary Democratic Front), and the federal police, it is clear the Appellant confused the terminology. [25] When the RPD challenges the Appellant on the inconsistency in her testimony regarding her persecutors she asks a telling question back to the RPD, "Is there a difference between the Federal Congress and the Federal police?"14 Here it becomes very clear that her intention is to identify the police and that she is unfamiliar with the terminology. Taking her testimony as a whole I do not find that she is indicating she fears the Oromo Federal Congress, but consistently attempted to identify the Ethiopian police. [26] When asked by her counsel if she knows who the Oromo Federal Congress is, the Appellant correctly identified the OFC as a party that "rules" the Oromo. [27] Considering that she was not political, nor supported any political party, what she reasonably understood from the question from the RPD was who she was afraid of. The name of the party becomes less important in my view when considering her testimony as a whole. When asked directly who harmed her? Who detained her? Who is she afraid of? Her testimony was clear and consistent; the police, the Ethiopian government. [28] I have considered the Appellant's personal circumstances. The Appellant states in the Memorandum15, "her lack of sophistication and awareness of modern political and governance notions" underlies the confusion she exhibited." I have also considered the new evidence16 from her Psychodiagnotic Assessment that identifies that she is suffering from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. This too assists in understanding the Appellant's circumstances and the impact her experiences have had on her psychologically and how it affects her testimony. [29] While the Appellant submits that the RPD erred in not considering her state of mind, this is one area I do not agree with the Appellant. The RPD had no knowledge of the mental health issues experienced by the Appellant and therefore was not able to consider this. [30] I have listened to the entire hearing and find that the Appellant explained, as best she could, who her persecutors are and why she fears them. I accept her testimony as credible. The RPD was microscopic in its assessment of the Appellant's credibility [31] The Appellant submits that the RPD was microscopic in its assessment and focused on the one area of inconsistency and contradiction without considering other aspects of her testimony. I agree with the submission made by the Appellant in this regard as there were many areas in which her testimony was consistent. [32] For example, she was asked repeatedly about her periods of detention and she consistently testified to the same dates. She also explained that she was arrested by the Ethiopian police, accusing her of collaboration with the Oromo by supplying them a space to meet, and questioning her on why she allows them to use her home. [33] All of this testimony was spontaneous, and consistent with the written evidence she provided. [34] The Appellant argues that the RPD failed to consider or reference the corroborative evidence17 that the Appellant did provide in her claim. I agree that the RPD erred by failing to demonstrate that it considered and weighed the corroborative evidence. The rental agreement [35] The Appellant testified that she lived in a home in which she rented out rooms to various individuals. During the RPD hearing she stated she lived in a predominantly Oromo region though she was not Oromo herself. She described that the house she lived in had six bedrooms and she rented out rooms to men of Oromo ethnicity. She explained that she rented out the rooms to support herself. [36] To support her testimony she provided a copy of a rental agreement18. The RPD did not demonstrate that it considered this in relation to the Appellant's claim. While a rental agreement may appear to be of low probative value generally, in this case the Appellant's claim is based upon her role as a landlord and her perceived or impugned politic opinion, renting to those perceived to be in opposition to the government. Failing to consider this document is in error. I accept the Appellant's testimony and associated evidence that she rented rooms to individuals of Oromo ethnicity. The medical document [37] The Appellant testified to the RPD that she was taken to the police station for questioning. She consistently testified that it was XXXX XXXX, 2017 and XXXX XXXX XXXX. This is consistent between her Basis of Claim (BOC), and her oral testimony. She also testified that she was detained again, in XXXX, and held for a number of days and was beaten with a plastic hose. To corroborate this incident she submitted a medical document indicating a prescription for bruises on her back.19 It was an error for the RPD not to consider the corroborative evidence which supports her testimony. This practice is also referred to in the documentary evidence which refers to "reports that authorities beat and tortured prisoners in detention centers, military facilities, and police stations."20 I accept that the Appellant was hit when she was detained in XXXX 2017. Letter form the Appellant's son [38] The Appellant submits that the RPD erred when it did not consider the letter from her son21 which corroborates her testimony and the events that caused her to flee. The letter also refers to the police following up at her home looking for her. I agree with the Appellant's submission that it was an error for the RPD not to consider this evidence in relation the other evidence. I have considered this evidence and finds that it generally corroborates the Appellant's allegations, periods of detention, and reasons for leaving Ethiopia. Summary of the credibility assessment [39] I have conducted an independent assessment of the RPD record and find the Appellant is credible, on a balance of probabilities. The Appellant's claim that while she was not political she was, nonetheless, targeted by the Ethiopian police is credible. She provided a number of documents to corroborate her claim and I find these also to be credible. The objective evidence supports the Appellant's claim [40] The Appellant lived in Bishoftu, a predominantly Oromo region, though she is not ethnically Oromo herself. During the period the time that she lived there, there were significant and violent actions taken by the Ethiopian government against the Oromo. In particular, in October 2016 at an annual Ireecha cultural festival for the Oromo, hundreds died following a stampede triggered by "security forces use of teargas and discharge of firearms."22 The evidence refers to security forces shooting at festival goers. The violence during this period has been widely reported and documented. The Appellant also refers to witnessing the violence in her pschyodiagnostic report23. [41] The objective country conditions indicate that arbitrary arrest and detention are known human rights abuses committed by Ethiopian security agents24. In this case the Appellant alleges that due to her perceived sympathy with Oromo tenants she was subjected to both arrest and detention. The objective evidence indicates that low level opponents are subjected to arrest and detention and "the Ethiopian authorities have an extensive security network and monitors opposition members, even low level ones at the village level."25 [42] In this case I find that the Appellant was subjected to arrest, detention and torture by Ethiopian government agents. As the state is the agent of persecution in this case I find that the Appellant has rebutted the presumption of state protection and cannot return to Ethiopia and live safely without risk of persecution based upon her impugned political opinion. Furthermore she does not have an internal flight alternative (IFA) as there is evidence of the ongoing monitoring of opposition members of the Ethiopian government. Conclusion [43] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "Nadra Qadeer" Nadra Qadeer August 6, 2019 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 Huruglica, ibid., at para 70; X(Re), 2017 CanLII 33034 (CA IRB). 3 Exhibit P-2, Appellant Record 4 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 51. 5 Section 3(3)(g)(iii), Refugee Appeal Division Rules, SOR/2012-257. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Singh, 2016 FCA 96, at para 64. 7 Singh, 2016 FCA 96, at para 64. 8 Exhibit P-2, Appellant Record, at pp. 8-14 9 Exhibit P-2, Appellant Record, at pp. 15-24 10 Exhibit P-2, Appellant Record, at pp. 25-79 11 Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution: 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, pursuant to section 159(1)(h) of the Immigration and Refugee Protection Act. 12 Exhibit RPD-1, RPD Record, Exhibit 5 13 2004 FC 1450 14 RPD Hearing Recording, July 30, 2019, at 32:00 15 Exhibit P-2, Appellant Record, at pp.92 16 Exhibit P-2, Appellant Record, at pp.8-14 17 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 110-111. 18 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 110-111. 19 Ibid, at p.105 20 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Ethiopia (March 31 2017), item 2.1 21 Ibid, at pp. 107-108 22 Exhibit P-2, Appellant Record, at p.35 23 Exhibit P-2, Appellant Record, at pp.8-14 24 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Ethiopia (March 31 2017), item 2.1 25 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Ethiopia (March 31 2017), item 14.3 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-19732 RAD.25.02 (April 04, 2019) Disponible en français 10 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 (April 04, 2019) Disponible en français