TB5-09248

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 : TB5-09248 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 November 3, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Paul VanderVennen 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Ethiopia, appeals a decision by the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his claim, and he has not requested an oral hearing. The Appellant requests that the Refugee Appeal Division (RAD) set aside the decision of the RPD and remit the matter to the RPD for reconsideration by a differently constituted panel. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Background [3] The Appellant alleged that he is Oromo, and he was detained and tortured for two weeks after he participated as a student in demonstrations protesting the 2005 election. He further alleged his political opinions are against the ruling Ethiopian People's Revolutionary Democratic Front (EPRDF) party. The Appellant alleged as well that he has been harassed and threatened by EPRDF agents and state authorities throughout his professional career as an academic and researcher. He came to Canada to attend a conference in Vancouver. He arrived on XXXX XXXX XXXX 2014, and he made a claim for refugee protection on September 9, 2014. The Issues [4] The panel indicated the determinative issue in this case is credibility. [5] The Appellant submits the issues in this appeal concerns whether the RPD erred in finding the Appellant does not have a well-founded fear of persecution in Ethiopia by reason of political opinion. The Role of the RAD [6] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [7] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [8] In this regard, the Court, in Huruglica,1 considered the appropriate relationship between the RAD and the RPD. In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [9] The Court determined that, in conducting its assessment, the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error". [10] The RAD will review all of the evidence in the RPD's record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. [11] The Appellant submits an argument that the RAD should be guided by Huruglica in its consideration of this appeal. As noted above, the RAD agrees. Delay in Making a Claim [12] The Appellant testified that, when he arrived in Canada, his intention was to make a refugee claim and never to return to Ethiopia. When he entered the country, he told the Immigration officer that he came to Canada to attend a conference in Vancouver, and he would return to Ethiopia in a few weeks. The panel asked him why he did not state his true intention on entry, and he responded that he felt threatened by the officer when he was asked when he intended to leave Canada, and felt he did not have to tell the officer the true reason for his trip. He further testified he thought that, if he told the truth, he would be sent back to Ethiopia, and he did not know the environment in Canada. The Appellant was asked when he planned to make a claim, and he responded that he did not think he had to tell the officer that he wished to claim, and he did not know where to make a claim. The Appellant further testified that he found out he could make a claim after attending the conference in Vancouver. [13] The Appellant testified that he did not know Vancouver is not near Toronto when he booked his flight as far as Toronto. He met a stranger in Toronto, and she paid for his flight from Halifax. The Appellant further testified that he met another stranger who paid for his flight after the conference. [14] The panel noted that the Appellant arrived with only $500 US and no access to more money. The Appellant was asked whether he thought he needed the money to advance his claim before spending most of it to fly to Halifax to spend time with friends. He said no, and he stated the money was not enough. [15] The panel asked the Appellant whether he looked at a map to see whether it made sense to book a flight from Ethiopia to Toronto when he intended to go to Vancouver. He responded, google maps cannot be used in Ethiopia. He was asked if he looked at a map, and he responded he received his visa on XXXX XXXX, and the conference was on August 17, so he did not have time to look into the issue. [16] Counsel argued in oral submissions that the Appellant's account of his first two months in Canada is "somewhat farcical, but is nonetheless true". The panel agreed with the first half of the assessment and noted the Appellant is an educated man and at the high end of the educational and socio-economic spectrum in his country. He holds a master's degree. and he is employed as a professional. The panel found it beyond belief that he could not have investigated the distance between Toronto and Vancouver when making his travel plans. The panel found the Appellant's account of stranger generosity in financing his in-Canada travels defies belief as well. The panel found this testimony lacked credibility. The panel acknowledged these matters do not go to the heart of the claim, but when plainly unbelievable evidence is advanced by a witness, their general level of credibility sinks. [17] The panel found that delay in making a claim does go to the heart of the claim. The panel stated that, where an Appellant comes to Canada with the intention of making a claim, the failure to make the claim with an officer on entry can be excused if he credibly has a plan to claim inland. The Appellant could not identify how he planned to eventually make a claim. The panel found if the Appellant was truly afraid of being sent back if he claimed on arrival, he would have thought about how long he would be allowed to wait before making his claim and would have quickly looked into the matter. Instead, the Appellant spent most of his money flying to Halifax to visit friends and then going to the conference in Vancouver. The panel found these actions are inconsistent with the fear alleged by the Appellant. The panel found the Appellant's decision to spend most of his money in social travel, without considering whether he would need money to advance his claim, defies belief. The panel drew a negative inference in this regard. [18] The Appellant submits there is no reason to make up a story like this, and he was naive and ignorant about Canada, and his actions in no way assisted his claim. The Appellant further submits that he wanted to present his paper first and then make a claim, and he was not worried because he knew he was in a safe place. The Appellant argues that there is nothing in his evidence that is inconsistent with a person having a well-founded fear of persecution, and the panel erred in drawing a negative inference. [19] The RAD has reviewed and assessed all of the evidence regarding the Appellant's actions on arrival in Canada and the delay in making his claim. The RAD agrees with both counsel in the hearing and the panel that the Appellant's story of Canadian strangers funding his in-Canada travel is "farcical" and finds it strains credulity. The RAD notes that the Appellant is well educated, and it is difficult to accept the argument that he was naive and ignorant about Canada. The RAD acknowledges that this behaviour does not go to the central issue in this claim but finds it does raise a doubt about the Appellant's intention to make a claim when he arrived in Canada. [20] The RAD acknowledges that delay in making a refugee claim is generally not considered determinative, but in the context of the Appellant's advanced education, his deliberately misleading an immigration officer, his behaviour in exhausting his funds with long distance travel to visit friends and his alleged ignorance of Canadian geography, which resulted in his flight to Toronto rather than Vancouver, the RAD concurs with the panel's decision to draw a negative inference. Email from the Appellant's Wife [21] The Appellant disclosed an email message from his wife informing him about visits of security agents to his home.2 The panel asked the Appellant if he has been in email communication with his wife since his arrival in Canada. He responded that there had been a disconnection and problems communicating with his wife, and they now talk by telephone. The Appellant was asked if his wife had sent other emails, and he was unresponsive and evasive. Eventually, he confirmed the email he disclosed is the only one sent to Canada. The panel stated the fact that the only email sent is "a convenient recitation of allegations of persecution", and the fact that he was reluctant to acknowledge this, leads to a finding that the email is "contrived self-serving evidence". [22] The RAD notes that the Appellant makes no submission in response to the panel's findings regarding this email message. Harassment by EPRDF Agents [23] The Appellant confirmed the allegations in his Basis of Claim (BOC) narrative that he was subject to humiliating treatment as a student and had been harassed by security forces throughout his career. He was threatened that, if he continued to teach insurgency to farmers when he was on field assignments, they would arrest and torture him. He told them this was not true but thought they did not believe him. They also tried to recruit him to the governing party and threatened him if he did not join. [24] The Appellant testified he changed his name in his last year in undergraduate studies to relieve the pressure from the EPRDF and provided a court document in corroboration. He further testified that his history of refusing to join the party would not be associated with the new name. He testified as well that the security forces would not associate him with his protests and detention in 2005. [25] The Appellant testified that records are not kept electronically in Ethiopia, and there are only paper records. The panel found this evidence not believable given the extensive reach of state security apparatus as confirmed in the National Documentary Package (NDP) on Ethiopia. The panel noted that the Ethiopian state engages in widespread electronic surveillance and found it not credible that a person's history would be erased simply by a name change, especially as this is done by a court. The panel found it unbelievable that the Appellant would think he could avoid authorities in this way. The panel noted in addition that, while the Appellant declared his former name in his refugee screening forms, in his application for a Canadian visa, he wrote that he had never been known by any other name. The panel found that the Appellant invented his name change to bolster his allegations of persecution. The panel noted in this regard that the court document is a form letter completed by hand, with only a stamp as security feature. The panel found the document, on a balance of probabilities, to be fraudulent. The panel also drew a negative inference regarding the Appellant's credibility. [26] The Appellant submits the panel erred in drawing a negative inference about his name change and finding the court document fraudulent. The Appellant further submits that, in 2006, it is highly unlikely that the state had computerized record keeping, and his testimony was truthful. The Appellant submits as well that the court document contains a seal, and there is no evidence that the panel has any idea as to the appearance of court documents in Ethiopia. The Appellant submits there is no rational basis to find his document is fraudulent and that he invented the name change to bolster his story. [27] The RAD has reviewed and assessed all of the evidence in the record concerning the name change. The RAD notes that the Appellant did not mention the name change in his BOC and finds this is a matter that goes to the central issue in this claim, as the Appellant allegedly changed his name to hide his participation in a protest in 2005 and his subsequent arrest. [28] The RAD further notes that the Appellant provides no corroborating evidence that Ethiopian authorities did not have computerized record keeping in 2006. The RAD notes as well that the Appellant testified that there is political influence in universities and institutes, and he allegedly changed his name when he was still a student. The RAD finds it strains credulity that the Appellant would believe that, if the governing party or its agents were interested in him as a student who participated in a demonstration and was subsequently arrested and detained, his alleged name change would eliminate that history. The RAD further finds, however, that the panel's finding that the court document is fraudulent is supported by an insufficient evidentiary basis. The Appellant's Workplace [29] The panel noted that both research agencies where the Appellant worked were run by the Ethiopian government. The panel further noted the Appellant testified that he has been promoted four times. He testified as well that he received a good salary commensurate with his education and responsibilities. His trip to Canada was funded by one of the government-run institutions, though he testified it was a religious institution and not affiliated with or controlled by the government. [30] The panel indicated that this evidence raised the question of why an authoritarian government would allow a man they believe has anti-government views-a man who they detained and tortured as a student demonstrator and who they subsequently threatened with further torture-to succeed in government-run research institutes. The panel questioned the Appellant in this regard, and he testified that in Ethiopia, universities and institutes are free of political influence except at the highest levels where one must be an EPRDF member. The panel further asked, if that is the case, how was he treated so poorly because of his political opinion? The Appellant responded that these institutions are not free of political influence. [31] The panel found that the Appellant's success and promotion in government-run institutions is inconsistent with his allegations of detention, torture, harassment and threats by Ethiopian security forces and EPRDF agents. The panel noted that the Appellant's testimony in regard to government influence in universities and institutes changed when confronted with his inconsistent evidence. The panel noted that country documentary evidence3 indicates that the Government of Ethiopia does not reward dissents or perceived dissents in academia or employment. This documentation indicates that preference is given to students loyal to the party in admission to postgraduate programs, and employment in all fields was given to members of the party.4 [32] The panel noted that the Appellant provided an email message from a colleague which repeats the alleged visits by security agents to his wife. In the context of findings above concerning a fraudulent court document and email from the Appellant's wife, which the panel found self-serving, it gave this email no weight. [33] The panel concluded the Appellant is not credible with respect to any of his allegations of persecution and that he is an entirely untrustworthy witness. [34] The Appellant submits the panel erred in finding his evidence not credible and finding him to be an untrustworthy witness. The Appellant further submits his evidence is consistent with the documentary evidence. The Appellant submits as well that nothing has happened to him since 2005, apart from threats and that an untrustworthy witness would have made up stories to bolster a claim. [35] The RAD has reviewed all of the evidence concerning the Appellant's allegations including the CD recording of the hearing, and it notes the Appellant provides no evidence of persecution but only of harassment by agents of the governing party. The RAD further notes the evidence of the Appellant's successful career as an academic and research to which he testified. Although the Appellant indicated in his BOC that he was always at risk of demotion and dismissal, the evidence indicates he was repeatedly promoted, and he was paid according to his rank. [36] The Appellant submits that he was under suspicion because he carried out his fieldwork among poor Oromo farmers. The RAD finds it difficult to understand why, as an employee of a government institution, he would be allowed to do this work if he were suspected of being in opposition to the government. [37] The RAD notes the Appellant's argument that he did not inflate his problems with false information concerning government actions against him, and therefore his evidence is truthful. The RAD finds that the evidence indicates that he has had no significant problems from the governing party other than alleged threats because he has not joined the governing party. [38] The RAD notes as well that the Appellant makes no submissions regarding the panel's finding concerning his colleague's email. [39] The RAD finds there is insufficient credible evidence that the Appellant, in the circumstances reflected in his testimony, is at risk of persecution if he were to return to Ethiopia. Oromo Identity [40] The panel accepted that the Appellant is Oromo. The panel further accepted that documentary evidence indicate that Oromos may be subject to persecution in Ethiopia. Counsel, in the hearing, argues that the Appellant's profile as an educated Oromo man exposes him to the serious possibility of persecution. It was noted that this was generally based on suspicion that the person supports the Oromo Liberation Front (OLF) which is banned. [41] The panel noted that the Appellant has experienced the opposite of persecution despite his status as an educated Oromo. The panel further noted that it is clear that he is not suspected of OLF membership. The panel noted the Appellant indicated that security forces pressured him to join the Oromo People's Democratic Organization (OPDO) which is for Oromo loyal to the government. The panel noted as well that the OPDO is a founding branch of the ruling EPRDF. The panel found that it is clear that being Oromo does not carry the risk of persecution. The panel further found persecution depends on perceived political opinion, and it is clear that this is not a problem for the Appellant who has enjoyed advantages reserved for those loyal to the government. The panel further found the Appellant's personal circumstances are unconnected to the persecution against some Oromo, and he does not face a serious possibility of persecution based on his being an educated Oromo. [42] The Appellant submits he never claimed that all Oromos are persecuted but that Oromos opposed to the government face persecution. The Appellant further submits that he is in danger of persecution because he refused to join the ruling party, and he is believed to be a political opponent of the government. The Appellant also submits that this is corroborated by documentary evidence, and the panel erred in finding the Appellant, with his profile, does not face a serious possibility of persecution. [43] The Appellant cites country documentary evidence5 that states that the Ethiopian government engages in extensive surveillance and that opposition party members, journalists and young educated Oromos are the key targets. The Appellant cites other country documentary evidence which corroborates his allegations that he faces a serious possibility of persecution in Ethiopia.6 This document indicates that large numbers of Oromo have been arrested for actual or suspected opposition to the government. [44] The Appellant submits that, as an educated Oromo conducting research among poor Oromo farmers, he is in a position that the government believes could have influence on the community, and this is the basis for the threats he has received. The Appellant further cites the Amnesty International article noted above which indicates the government shows signs of fearing Oromo people who have influence and are not members of the ruling party. The article further indicates that refusal to join the ruling party engenders suspicion, which may culminate in arrest. [45] The Appellant submits that the panel erred in law by ignoring evidence that corroborates his evidence and in particular his BOC statement that his co-worker was arrested and detained. The Appellant corroborated this incident with a newspaper article in this regard. The Appellant further submits the panel erred by ignoring this evidence which contradicts its conclusion that he is an entirely untrustworthy person and that an Oromo, who is favoured by working at a government research centre, would not face political persecution. [46] The RAD has reviewed all of the evidence concerning the jeopardy of the Oromo in Ethiopia and in particular educated Oromo professionals and those who oppose the government. The RAD acknowledges that the documentary evidence cited above corroborates the Appellant's testimony in this regard. The RAD further notes, however, that the evidence indicates that all Oromo are not in jeopardy and that there is an Oromo party associated with the ruling party. The RAD notes as well that no evidence has been provided that indicates the Appellant did anything to reflect opposition to the government since his alleged participation in a student demonstration in 2005. Rather, the Appellant was able to obtain a good professional job after graduation in which he received promotions and appropriate pay. He was also able to enrol in a graduate program in regard to which he testified he experienced some prejudicial treatment by university authorities but no pressure from governing party agents. [47] The RAD notes that no evidence was provided that the situation of the Appellant's co-worker who was arrested is the same as the Appellant's. The RAD finds this incident cannot be generalized to apply to the Appellant's situation. [48] The RAD has reviewed other documentary evidence: the letter from the Appellant's employer, the court document concerning the name change and the email from the Appellant's wife. The RAD notes that it has dealt with the court document above, and the Appellant made no submission regarding the panel's finding regarding his wife's letter. The RAD further notes that the employer's letter makes no comment concerning the central issue in this claim. DISPOSITION [49] Pursuant to section 111(1)(a) of the IRPA, the RAD concurs with the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Milton Israel" Milton Israel November 3, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Exhibit RPD-1, RPD's Record, p. 281, RPD's Exhibit 7, p. 1. 3 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Ethiopia (30 January 2015), item 2.1. 4 Exhibit RPD-1, RPD's Record, NDP for Ethiopia (30 January 2015), item 2.1, p. 14. 5 Exhibit RPD-1, RPD's Record, p. 200, RPD's Exhibit 6, Human Rights Watch, p. 4. 6 Exhibit RPD-1, RPD's Record, NDP for Ethiopia (30 January 2015), item 13.4, Amnesty International, "Because I am Oromo, Sweeping Repression in the Oromo Region of Ethiopia". --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-09248