TB7-11528

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 : TB7-11528 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 24, 2018 Date de la décision Panel Nadra Qadeer Tribunal Counsel for the person(s) who is(are)the subject of the appeal Johnson Babalola 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "Appellant"), a citizen of Ethiopia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has submitted new evidence in support of his claim and has requested an oral hearing. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act,1 the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. Background [3] The Appellant's claim was heard by the RPD on February 8, 2017 and April 5, 2017. It was rejected by the RPD in a written decision dated May 23, 2017. [4] According to the Appellant's statements in his Basis of Claim (BOC) form, his claim is based upon a fear of the Ethiopian government. He is ethnically Oromo and has been involved and affiliated with the Oromo Federalist Congress (OFC) since September 2013. The precipitating incident causing him to flee Ethiopia occurred on XXXX XXXX, 2015 when he was returning to Ethiopia from a school break in Nairobi, Kenya. He alleges that he was approached by airport security officers at Bole International Airport and he was interrogated and detained by them for three hours. During the interrogation he was accused of associating with the Oromo Liberation Front (OLF). Upon his release he was threatened that he would be killed if he got involved in any anti-government activities. [5] Following this incident the Appellant alleges that he refrained from further political involvement and arrangements were made for him to pursue his education outside of Ethiopia. He applied for and received a Temporary Resident Visa to attend an educational institution in Canada. [6] He arrived in Canada on XXXX XXXX, 2015 and made an inland claim for refugee protection on November 1, 2016. [7] The Appellant also submitted evidence that he has taken part in anti (Ethiopian) government activities here in Canada and that his political involvement while in Canada places him at risk if he were to return to Ethiopia. The RPD's findings [8] The RPD found that the determinative issue on the claim related to credibility. The RPD examined a number of areas it deemed to be determinative and found that the Appellant was inconsistent in his evidence and vague in some of his testimony. Specifically, the RPD found; a. The Appellant was lacking in credibility related to his education in Kenya and, in turn, when he began his political involvement with the OFC. b. The Appellant's testimony regarding his activities with the OFC as well as his knowledge were not commensurate with an active member. c. That the precipitating incident at Bole airport was inconsistent with his entry and exit stamp in his passport and therefore lacking in credibility. d. That the Appellant's activities in Canada have not come to the attention of the Ethiopian authorities, on a balance of probabilities. Appellant's Arguments [9] The Appellant argues the following: a. That the RPD's examination of inconsistencies is microscopic in nature and therefore erroneous. b. That the RPD misconstrued the evidence with respect to questions related to his knowledge and involvement in the OFC. c. That the RPD's assessment of lack of credibility regarding the precipitating incident at Bole airport was erroneous. d. The RPD failed to properly assess the forward looking risk to him, should he return to Ethiopia. New evidence [10] The Appellant submits a number of documents as new evidence in his appeal. Specifically; a. Affidavit of XXXX XXXX XXXX and his identification, supporting photographs and travel itinerary.2 b. Affidavit of XXXX XXXX XXXX, and his identification and supporting photographs.3 c. Affidavit of XXXX XXXX, and profile of XXXX XXXX.4 d. Certified translations of identity cards and flight itineraries.5 e. Travel itineraries for travel 2013-2015.6 [11] The Appellant, in his affidavit,7 also provides new explanations for inconsistencies found by the RPD at the hearing. In one case he attempts to rectify his own amendment made in the RPD hearing by changing his evidence once again. For example in paragraph 7 of the affidavit he provides a new explanation for inconsistencies in his testimony regarding Schedule A, indicating he made a mistake in his BOC amendment and in the hearing. I find this evidence is not new but is merely attempting to rectify problems at the hearing before the RPD. This was reasonably available to the Appellant before the RPD and therefore not considered new under ss. 110(4), I will not be considering these explanations. Admissibility of the new evidence [12] Subsection 110(4) of the IRPA provides that an Appellant "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." 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.8 [13] The second step of the analysis, should the evidence be accepted under ss. 110(4), is for the RAD to apply the adapted Raza factors endorsed in Singh.9 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 will apply the Raza factors, minus the "materiality" factor, as this is to be assessed in light of subsection 110(6) only. [14] For these reasons, the RAD will apply the following factors in considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in subsection 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of subsection 110(4), the RAD will apply the Raza factors to that evidence. Affidavit of XXXX XXXX XXXX dated June 30, 2017, and his identification, supporting photographs and travel itinerary10 [15] The Appellant argues that this evidence is new as it is a friend of the Appellant who travelled to Ethiopia in April 2017 and visited the Appellant's family. The affiant describes that sometime in April 2017 (between April 13 and April 29, 2017) security agents visited the Appellant's family home looking for him, as they were aware of his political activities in Canada. [16] The Appellant, in the memo, explains that this evidence was not available at the time of the hearing as the affiant was in Ethiopia at the time. However the parameters of ss. 110(4) indicates that the Appellant may only present evidence that arose after the rejection of their claim. In this case the hearing concluded on April 5, 2017. Submissions were sent by the Appellant's counsel on April 23, 201711 and a decision was rendered on May 23, 2017.12 The Appellant provides no explanation in his Memo as to why this evidence could not have been submitted prior to the rejection of the claim. I do not find this evidence meets the requirements of ss. 110(4). Affidavit of XXXX XXXX XXXX, dated June 29, 2017 and his identification and supporting photographs13 [17] The Appellant makes no submissions regarding why this evidence was not available prior to the rejection of his claim. His submissions refer to the affidavit and photos as further corroboration of his activities with his friend. The affidavit and the accompanying photographs generally corroborate the Appellant's political activities in Canada that he participated in October 2017. The events are not new and in fact this evidence was already before the RPD. One photo submitted by the Appellant,14 part of a series of photos from what appears to be the same event, is the same the photo submitted before the RPD.15 This evidence is not new. As some of the evidence was already before the RPD and the other pieces could reasonably have been before the RPD this evidence will not be considered. Affidavit of XXXX XXXX, dated June 12, 2017, and profile of XXXX XXXX16 [18] The Appellant provides no explanation as to why this evidence could not have reasonably been before the RPD. The affidavit is from a friend who attended university with the Appellant in Kenya. He describes their political involvement and contribution to a journal article published in 2015. This evidence is rejected as it is not new and could reasonably have been presented to the RPD. Certified translations of identity cards and flight itineraries17 and Travel itineraries for travel 2013-201518 [19] The Appellant concedes that these items are not new19 and some were already before the RPD. I will not consider these items as they were previously before the RPD and form part of the RPD Record and, in the case of the travel itinerary, this was reasonably available prior to the rejection of the claim. Was the Appellant threatened by Ethiopian security agents? [20] The Appellant alleged before the RPD, in his BOC narrative, that he was detained and interrogated on April 1, 2015.20 He also provided corroboration from his father in a letter that this event occurred on April 1, 201521 and it is this event that prompted the family to decide to "send him to a country where can [sic] safely live and pursue his education free of persecution and harassment."22 His stated reasons for coming to Canada were precisely due to this precipitating event. [21] During the hearing the RPD questioned the Appellant about this incident at length and he testified that this was the date he was interrogated, when he was returning to Ethiopia during a school break. When he was asked why he has no exit stamp in his passport for April 1, 2015 yet there is one for April 19, 201523 the Appellant initially testified that he relied on the stamps in his passport to write his narrative, then he testified that the April 1 date was a mistake. [22] The Appellant argues that the RPD erred in its reasoning that he was not credible with respect to the incident in which he was threatened by Ethiopian security agents at Bole airport. The Appellant reasons that the RPD's failure to mention in its reasons the lack of an exit stamp in his passport indicating April 1, 2015 is an error. The Appellant further argues that the stamp indicating April 19, 2015 is credible evidence that supports his testimony that he made a mistake on his BOC. [23] I have listened to the Appellant's oral testimony and reviewed the documentation the Appellant provided. I cannot support the Appellant's argument that the RPD erred nor can I accept the Appellant's testimony that the April 1, 2015 date was a mistake and he was interrogated on April 19, 2015. [24] First I will address the Appellant's argument that the RPD erred in its reasoning by not mentioning that the lack of an April 1, 2015 stamp supports his testimony. The burden is on the Appellant to explain inconsistencies in his evidence. The Appellant had numerous opportunities to review his evidence and ensure it was complete, true, and correct. He signed his BOC when first submitting it and signed it again when he made two further amendments. The Appellant did not at any time raise that there was a mistake in his evidence until he was confronted with the inconsistency by the RPD, at the second sitting of his claim. The Appellant's submission that the RPD erred in impugning his credibility is simply incorrect. [25] The Appellant entered Canada on XXXX XXXX, 2015 and waited over a year to make a claim for refugee protection. During this time his passport was, presumably, with him. He had counsel when he first made his refugee claim and throughout the refugee claim process. He amended his narrative on February 8, 201724 and also at the second sitting for the hearing on April 5, 2017.25 Furthermore, he provided corroborating evidence from his father indicating that he was "ferociously interrogated and detained" on April 1, 2015. [26] His testimony during the hearing was that he relied on the stamps in his passport to create his narrative. This testimony cannot explain why he would then put April 1, 2015 in his narrative if he relied on the dates in his passport. His testimony that the April 1 date is a mistake does not credibly explain why he would not amend this date when he had multiple opportunities to do so. This explanation also does not credibly explain why his father would indicate in his letter the date of April 1, 2015 as the date of interrogation. It is the Appellant's evidence that his family assisted him in leaving the country following this incident. For this reason I afford no weight the corroborating letter from the Appellant's father that the event occurred, nor do I find it credible that the event occurred on April 19, 2015 as submitted by the Appellant. Was the Appellant a member of the OFC? [27] According the Appellant's amended Basis of Claim form he joined the OFC "in September 2013 just before I resumed college in Kenya."26 His testimony was that he started college in Kenya in 2012. His initial BOC indicated that he joined the OFC just before "I started College in Kenya."27 According to his Schedule A form he completed high school in September 2013 and began college in Kenya in September 2013.28 When this was put to him by the RPD the Appellant testified that there was a mistake on his Schedule A form regarding his start date of college. The Appellant also indicated on his Schedule A that he attended until October 2015 however when questioned on this he testified this was also a mistake and it should read April 2015. [28] The RPD drew a negative inference from the alleged mistakes on the Appellant's immigration forms, finding that the numerous mistakes contradicted his testimony and were unreasonable given the numerous opportunities the Appellant has had to amend his BOC. [29] The Appellant argues that the RPD erred in drawing a negative inference from the Appellant's testimony. The Appellant also argues in the Memo that he made a mistake when he amended his BOC in the hearing to indicate that he resumed his schooling in Kenya in 2013 and the original BOC read correctly that he only started college in 2013. [30] The Appellant also argues that irrespective of when he started college this should not impact upon his testimony about his involvement with the OFC. [31] Having reviewed the testimony and the amendments as well as the proposed amendment the Appellant is making in his Memorandum of Argument, I cannot agree with Appellant. The Appellant had ample opportunity to correct his evidence. Here, on appeal, he is once again attempting to do so. The Appellant indicates that his involvement with OFC is related to when he began college or resumed college. Given that it is unclear when he went to college, due to the numerous inconsistencies and contradictions in his evidence, I agree with the RPD that the Appellant's testimony as to when he joined the OFC can be given little weight. I do not agree with the Appellant's arguments that this examination by the RPD is microscopic, as it was the Appellant who tied his completion or resumption of college with his OFC activities. [32] The Appellant was also asked basic information such as when the OFC was formed and he was unable to say when. The objective evidence indicates that it was formed in 2012,29 only one year after he joined. I find that the Appellant's lack of knowledge of such basic information indicative of his lack of credibility. [33] The Appellant argues that the RPD undertook a microscopic analysis regarding his knowledge and involvement of the OFC. The Appellant was 18 at the time he joined and alleged that he was involved in the youth wing of the organization. There was testimony elicited from the Appellant related to a variety of factual information about the OFC. While the Appellant argues that the RPD's findings were microscopic the in this area, I find that I come to the same overall conclusion as the RPD on the weight to be given to the testimony as I have weighed this in relation to the other determinative issues. While there were some aspects that were microscopic in nature, for example when the RPD asked the Appellant why he joined the OFC and found that he provided different reasons during oral testimony than in his BOC, I find that these findings ultimately do not deal with the heart of the Appellant's profile. [34] The Appellant was a young man and had limited involvement with the OFC. He was not aware of some of the basic information of the OFC, such as when it was formed. He also could not consistently testify as to when he started school, related to when he joined the OFC. Despite producing an OFC card,30 that is reportedly inconsistently administered, according to the objective evidence, I find the Appellant's testimony that he was a member of the OFC is not credible on a balance of probabilities. When weighing the OFC card in relation to his testimony I find the OFC card is afforded little weight in relation to his testimony that lacked credibility. Does the Appellant's profile and activities put him at risk should he return to Ethiopia? [35] The Appellant argues the RPD failed to properly assess the forward looking risk to him based upon his ethnicity as an Oromo as well as his activities in Canada. [36] While the RAD accepts that the Appellant is Oromo, the country's largest ethnic group, the evidence does not indicate that merely being part of this ethnic group places him at risk. [37] It is the Appellant's evidence that while he has been in Canada he participated in events aimed against the Ethiopian government, and as result, this places him at risk should he return to Ethiopia. The Appellant submitted evidence in the form of his BOC narrative, and amended narrative, that he attended Oromo Media Network meetings in Canada and a protest of Oromo students at XXXX XXXX.31 He amended his BOC to include a protest he attended on October 31, 2015 in Ottawa outside the Canadian parliament buildings.32 [38] The Appellant had submitted before the RPD numerous articles regarding protests by Oromo activists and the response by the Ethiopian government.33 There is also extensive evidence in the NDP of the targeting of ethnic Oromo by Ethiopian security agents.34 The objective evidence indicates that the Oromo make up the country's largest ethnic group and have been victims of ruthless violence, repression, and threats from the Ethiopian government.35 The RPD did consider the objective evidence and refers to such in paragraph 31 of its reasons.36 [39] However the evidence does suggest that the combination of real or perceived political motivations has fuelled the government response to Oromo dissent. Merely being Oromo37 is not in and of itself a risk that would indicate more than a mere possibility of persecution.38 [40] In order to ascertain the Appellant's claim that he is wanted by the Ethiopian government and his activities in Canada would place him at risk, he was asked specific questions about his contact with family back in Ethiopia. At the hearing he testified that he was in contact with his family and there was no evidence that the authorities were aware of his activities in Canada. His parents and siblings that continue to reside in the family home had not had any contact with the authorities to his knowledge at the time of the hearing on April 5, 2017. The Appellant has failed to establish that he was targeted before by Ethiopian security, and that he was a member of the OFC. He has not adduced any credible evidence to indicate that while in Canada his family have had any encounters with Ethiopian government agents. [41] While there is evidence that the Ethiopian government has conducted surveillance and monitoring of diaspora citizens39, I find that it is unlikely the Appellant has come to the attention of the Ethiopian authorities on a balance of probabilities. The Appellant's evidence before the RPD was that he attended meetings and two protests. In one photograph he included he is one of many protesters in front of the Canadian parliament buildings, and in the other he is photographed alone. He has not provided any credible evidence to indicate that he was identified in any way at this protest or that these photos are anything other than his personally. He was not a high profile opponent and his participation and knowledge of any opposition activities are limited. The Appellant has not adduced sufficient evidence to suggest that his political profile is such that he would be of interest to the Ethiopian government should he return, on a balance of probabilities. [42] For these reasons I find that the appeal is dismissed. Conclusion [43] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor person in need of protection. (signed) "Nadra Qadeer" Nadra Qadeer January 24, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Exhibit P-2, Appellant Record, Exhibit B, at pp. 42-52. 3 Ibid., at pp. 53-60. 4 Ibid..,at pp. 61-63. 5 Ibid., at pp. 77-88. 6 Ibid., at pp. 64-76. 7 Exhibit P-2, Appellant Record, Affidavit, at pp. 21-25. 8 Subparagraph 3(3)(g)(iii), Refugee Appeal Division Rules, SOR/2012-257. 9 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 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96., at para 64. 10 Exhibit P-2, Appellant Record, Exhibit B, at pp. 42-52. 11 Exhibit RPD-1, RPD Record, Submissions, at pp. 416-420. 12 Exhibit RPD-1, RPD Record, Reasons for Decision, at pp. 3-20. 13 Exhibit RPD-1, RPD Record, Exhibit at pp. 53-60. 14 Exhibit P-2, Appellant Record, at p. 59. 15 Exhibit RPD-1, RPD Record, Exhibit 12, at pp. 396-397. 16 Ibid., at pp. 61-63. 17 Ibid., at pp.77-88. 18 Ibid., at pp. 64-76. 19 Exhibit P-2, Appellant Record, Memorandum of Arguments, at p. 109. 20 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim narrative, at p. 28, para 5. 21 Exhibit RPD-1, RPD Record, Exhibit 13, at p. 415. 22 Ibid. 23 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 67. 24 Exhibit RPD-1, RPD Record, Exhibit 11, at p. 36. 25 Ibid., at p. 37. 26 Exhibit RPD-1, RPD Record, Exhibit 2, BOC, at p. 27 Exhibit RPD-1, RPD Record, Exhibit 14, BOC, at p. 37. 28 Exhibit RPD-1, RPD Record, Exhibit 1, Schedule A, question 7, at p. 52. 29 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Ethiopia (31 January 2017), item 4.15, Responses to Information Requests (RIR), ETH105564.E. 30 Exhibit RPD-1, RPD Record, Exhibit 12, at pp. 390-391. 31 Exhibit RPD-1, RPD Record, Exhibit 2, BOC narrative, at p. 30, para 12. 32 Exhibit RPD-1, RPD Record, Exhibit 14, at p. 38, 33 Exhibit RPD-1, RPD Record, Exhibits 5, and 7-10. 34 For example in Exhibit RPD-1, RPD Record, Exhibit 3, NDP (31 January 2017), item 13.4 35 Ibid. 36 Exhibit RPD-1, RPD Record, Reasons for Decision. 37 Exhibit RPD-1, RPD Record, Exhibit 3, NDP (31 January 2017), item 1.3 refers to the Oromo as 34.4% of the population. 38 Exhibit RPD-1, RPD Record, Exhibit 3, NDP (31 January 2017), item 13.4. 39Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Ethiopia (31 January 2017), item, 4.4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-11528