TB6-18954

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 : TB6-18954 TB6-18955 TB6-18956 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 2, 2017 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Daniel Tilahun Kebede Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), and her minor children, XXXX XXXX XXXX and XXXX XXXX XXXX, all citizens of Ethiopia, are appealing the decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have not submitted any new evidence in support of their appeals, nor are they requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. The Appellants are, however, asking the RAD to substitute a positive determination, or in the alternative, to remit the matter to a newly constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD. This appeal is dismissed. Background [3] The Appellant worked as an XXXX XXXX for the XXXX XXXX in XXXX XXXX. In XXXX 2012, she was asked by Ethiopian security officials to retrieve information from the Embassy regarding individuals who may have obtained visas and alleged links to the XXXX XXXX party. The Appellant denied having any knowledge or ability to obtain information on the individuals and she was allegedly subsequently detained in a metal container for one night. [4] Upon her release, the Appellant fled to the United States (US) with her children in XXXX 2012, where they made asylum claims. However, in XXXX 2013, the Appellant and her children returned to Ethiopia after the Appellant's husband paid a bribe to Ethiopian security officials who provided her husband with an assurance of the Appellants' safety. [5] From XXXX 2013 and onwards, the Appellant alleges that she was harassed by security officials for information they believe she had as a result of her former employment with the XXXX XXXX. In XXXX 2016, the Appellant was asked to identify individuals by photographs provided by the police. When she was unable to identify the individuals, she was threatened and the officials accused her of having associations with the XXXX Party and that she was a collaborator with the XXXX XXXX. The Appellant was called to the police station again in XXXX 2016 to go on a XXXX XXXX XXXX XXXX to identify the suspected individuals. She agreed to do so because she had already obtained Canadian visas and knew that she would be fleeing shortly. [6] The Appellants arrived in Canada on XXXX XXXX, 2016, and the Appellant subsequently learned that the police had issued a summons for her on XXXX XXXX, 2016. Her husband allegedly also received a letter from the Foreign Ministry asking her to appear at the Embassy to sign witness papers. [7] The Appellants fear returning to Ethiopia due to their imputed political opinion, the Appellant's lack of cooperation with the authorities, and the Appellant's support for the XXXX Party, which is in opposition to the ruling government. ROLE OF RAD [8] The Appellant concurs that the recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. The justices stated at paragraph 103: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. SUBMISSIONS BY THE APPELLANT * Was the RPD's rejection of documents that support the Appellant's claim reasonable? * Did the RPD err in its assessment of the Appellant's credibility? Asylum claim in the US [9] The Appellant testified that she fled to the US in XXXX 2012, but did not file an asylum claim for six months, which the Appellant alleged was the normal practice in the US. Nevertheless, the Appellant further testified that she withdrew her asylum claim shortly before it was set to be heard because her husband had paid a bribe to the security agents to ensure her safety. The RPD asked how her husband knew whom to pay to ensure her safety, to which she responded that it was the person who had detained her in 2012, and he was able to ascertain his name and whereabouts by contacting different connections and friends. [10] When questioning the Appellant, the RPD discovered that the Appellant had a sister, who was residing in the US, however, her Basis of Claim (BOC) (question 5) is absent of this information. The Appellant's explanation that the interpreter told her not to include this information in the BOC led the RPD to draw a negative inference. Moreover, given the fact that the Appellant had been living in the US for almost one year and proffered no objective evidence to indicate that in the US, that one cannot make an asylum claim for 6 months after arrival, this led to a further negative inference by the RPD. [11] The RPD acknowledged that the foregoing did not speak to the core issues of the Appellant's claim. However, it did put questions in the RPD's mind as to why the Appellant would choose not to indicate that she has family in the US, and how she had deciphered what information would be relevant to her claim and what would not be relevant. Furthermore, the RPD found that the Appellant was extremely vague when answering questions about how her husband was able to secure her safety upon her return to Ethiopia in 2013. For example, the RPD expected that the Appellant would have asked her husband certain questions, i.e. whom he paid, how he was able to get in contact with them, in other words, what steps were taken in order to ensure her safety and the safety of her children upon her re-availment to Ethiopia. The foregoing led the RPD to find that the Appellant has not established that she had a well-founded fear of persecution when she fled to the US, by virtue of her delay in claiming asylum immediately upon entering the US, her failure to mention in her BOC that her sister lived in the US, and her failure to establish that her husband was able to pay a bribe to ensure her safety in Ethiopia, thereby undermining her allegations that she was being targeted by the authorities in 2012. [12] The Appellant acknowledges that she omitted to list her sister in her BOC; she presumed that since she did not list her sister in her TRP application, she did not need to list her in the BOC. The Appellant argues that there was no advantage to have omitted this, and she spontaneously acknowledging doing so. Moreover, it is submitted that this omission is peripheral and ought not to have any bearing on the assessment of her credibility [13] The Appellant argues that she returned to Ethiopia, abandoning her refugee claim in the US because her husband managed to bribe security officials in Ethiopia. Although the Appellant acknowledges that she took a risk, she did so for the welfare of her two minor daughters. The Appellant's claim, it is argued, is based on the persecution she faced in 2016. It is submitted that the delay in claiming protection in 2012 in the US has very little to do with her claim in Canada, therefore, the reason for her departure in 2016. Likewise, it is argued that abandoning her claim at that time had nothing to do with what occurred in 2016. Moreover, with respect to the bribe, it is submitted that the Appellant was not in Ethiopia at the time it was paid, and therefore she does not clearly have first-hand knowledge. [14] The RAD notes that the RPD, in fact, acknowledged that this finding did not address the core allegations, but found that the evidence lacked credibility. The RAD concurs that the Appellant's testimony, that the normal practice is not to claim refugee protection for 6 months, is without evidentiary foundation. In fact, it begs the question as to why the Appellant went to the US in the first place, which was the beginning of her alleged problems with the authorities in Ethiopia and therefore, not entirely peripheral to the current allegations. Whether or not the Appellant ascertained answers to questions surrounding her impending safety upon her return, also goes to the reason that the Appellant allegedly left Ethiopia at that time, and then re-availed. The RAD finds that this in and of itself, ought not to affect the Appellant's credibility. However, as can be seen from the RPD's analysis, all of these credibility findings while not going to the incident in 2016, stem from the Appellant's work and the alleged demands as a consequence in 2012. Upon review of the audio recording, while the RAD can sympathize that the Appellant wanted her children to be reunited with their father, it is still a toss of the coin, with respect to their safety as well as her own, that it is likely that she would want answers to questions before she took that risk to return to Ethiopia. Nevertheless, the RAD gives the benefit of the doubt to the Appellant on this point. Ethiopia in 2013 [15] The Appellant testified that from the summer of 2013 onwards, she was harassed by security agents. She explained that the authorities continued to interrogate her and tried to obtain more information from her that they felt she had access to by virtue of her previous employment with the XXXX XXXX. The RPD noted that the Appellant indicated that she had travelled to Bangkok and Dubai over the past year or two and she was therefore asked why she continued to return to Ethiopia if she was so afraid. She explained that she went to Bangkok as her husband required medical intervention, and she went to Dubai to help with her business. She further explained that she had invested a lot of capital and money into her business and never believed that the threats or harassment would come to a climax. Moreover, she acknowledged that she never had any issues with security upon her entrance or exit at the Ethiopian airport. The RPD rejected the foregoing explanations by the Appellant. While it acknowledged that she would potentially lose a lot of money by leaving her business in Ethiopia, it also found that her actions of returning for fear of economic loss is not consistent with a person who has a genuine fear for her safety and security. [16] When considering the foregoing, it is submitted that the RPD did not accept the Appellant's testimony that she did not believe that the threats would rise to a climax, when she had been placed in a container by a security agent and interrogated and harmed in 2012. The RPD also examined the documentary evidence and considered the documentary evidence2 with respect to the government maintaining a network of paid informants which was contrary to the Appellant's testimony that she was able to exit and enter the country on several occasions without any issue, even though she was allegedly being harassed and threatened by security. [17] The Appellant submits that she stated in her BOC and her testimony that when she returned from both Dubai and Bangkok, the harassments were insufficiently serious to warrant her exile. It is argued that the point in time at which the Appellant decides to seek refugee protection is important, and that can be only decided by the Appellant's own belief. Moreover, it is argued that the RPD failed to consider the reasons the Appellant went to Bangkok which was for the medical treatment of her husband. The Appellant further submits that the RPD ignored the fact that the United Arab Emirates is not a signatory of the Refugee Convention, therefore, the Appellant could not have claimed protection in Dubai. [18] The RAD finds that, while the Appellant may think that the RPD was inferring that she ought to have made claims in either Dubai or Bangkok, it did not make this finding. It did, however, note the exits and entries in and out of Ethiopia, given the fact that the Appellant was allegedly being threatened by the security. The RAD finds that this was justifiable, when one considers the Appellant's testimony, together with the documentary evidence as cited by the RPD with respect to a network of paid informants. It is interesting to note that the Appellant makes no submissions in this regard, however, the RAD finds that the RPD's conclusion on this point is justifiable. XXXX XXXX, 2016 [19] The Appellant testified that on XXXX XXXX, 2016 she was taken into police custody and asked to identify individuals who had alleged ties to the XXXX XXXX. She was released with a warning that she must be prepared to read a statement on XXXX XXXX accusing the individuals of their ties to the XXXX XXXX and being agents of Eritrea, Egypt, and South Africa. The RPD asked about the letter3 from the Federal police issued on that date and what the purpose of the letter was. The Appellant's explanation was that she was asked to provide a witness statement so the letter was for her to appear. However, in the absence of her name, and the letterhead being cut off at the top, the RPD drew a negative inference. [20] The RPD had concerns about the face of the letter, in the absence of an explanation. Moreover, the Appellant's response that her place of employment was listed, when it was not, led the RPD to assign no weight in corroborating the Appellant's allegations that she was taken into police custody for questioning in May 2016. [21] The Appellant submits that the RPD did not have sufficient evidence before it to properly decide to give no weight to this police letter, as the only evidence before the Tribunal was the letter itself and the RPD has no specialized knowledge on the features of police letters emanating from Ethiopia. Moreover, it is argued that the problems identified with this letter are hardly significant enough to impugn the authenticity of the letter, [22] With due respect, the RAD disagrees with the Appellant. At the very least, the RAD concurs that the police letter did not provide corroborative evidence to which one could ascribe probative value in establishing the allegations. Moreover, the RAD finds that this one finding is simply just that, and does not impugn the credibility of the Appellant to the extent that counsel submits. It does, however, in the RAD's support the RPD's finding that, on a balance of probabilities, the Appellant has not established that she was taken into custody for questioning in XXXX 2016. XXXX XXXX, 2016 [23] The Appellant alleges that she was called to the police station on the above date and she agreed to read the statements accusing the individuals of their ties to the XXXX XXXX. She was allegedly told that she would be asked to return at a later date to read the statements; however, she fled to Canada with her children on XXXX XXXX, 2016. The Appellant was asked if security ever pursued her after she fled and she responded that they came to her home and spoke to her husband on July 14, 2016 and her husband had told them that she was on vacation in Canada. The Appellant further testified that the security officials had returned on XXXX XXXX, 2016 and told her husband that she must report immediately upon her return or that she must contact an embassy immediately. [24] She did not testify that any documentation was left with her husband. However, the RPD noted that there was a summons4 on file, but that the letterhead was cut off. In the absence of an explanation by the Appellant, the RPD drew a negative inference that she was threatened and persecuted by Ethiopian authorities in XXXX 2016 and that this incident caused her and her children to flee to Canada. Firstly, the Appellant did not initially mention the summons, even though we was asked more than once, and the RPD did not accept her explanation that the authorities always come with a notice. The RPD acknowledged that the Appellant was not the author of the summons and therefore she can only speculate as to why the heading is cut off. Nevertheless the RPD assigned no weight to this document in terms of corroborating her allegations that she is being actively pursued by Ethiopian authorities. [25] The Appellant submits that to dismiss this letter just because she didn't mention it initially was an approach to evidence which is arbitrary as she may not remember it at first, particularly when this is an incident which occurred after she left for Canada. Moreover, the RPD saw the courier post, checked the postmarks and confirmed that it was sent from Ethiopia by the Appellant's husband. Accordingly, the Appellant submits that this was an unreasonably drawn inference. [26] The RAD does agree that the RPD was overzealous in its finding that the Appellant did not mention the summons, when it was submitted in evidence. Having said, the RAD finds that this document cannot be assigned much probative value on its face, given that the letterhead was cut off. Accordingly, the RAD concurs that it does not corroborate the Appellant's allegations that she is being actively pursued by Ethiopian authorities. [27] With respect to the other evidence proffered in support of the Appellant being pursued by Ethiopian authorities, namely a letter from the ministry of Foreign Affairs5 and a support letter from her husband,6 the RPD stated the following. In the absence of the Appellant's name, her address or where the letter from the Ministry of Foreign Affairs was sent, coupled with the aforementioned credibility concerns, the RPD found, on a balance of probabilities, that this letter did not provide any additional credible corroborating evidence. With respect to the letter from the Appellant's husband, the RPD found that it did not add any evidence to which the Appellant had already stated, either in testimony or in her BOC. Moreover, the RPD noted the Appellant had stated that her husband had moved from place to place out of fear, however, his letter did not contain this information. The RPD concluded that the Appellant had not established that she is being actively pursued by Ethiopian authorities. [28] With respect to the letter from the Ministry of Foreign Affairs, it is submitted that the RPD failed to point out its concerns about the letter itself or contradictions or inconsistencies in the testimony of the Appellant, that justified rejecting the letter from the Ministry of Foreign Affairs. Moreover, it is submitted that rejection of one document based on concerns expressed about another document, is unreasonable, and constitutes a reviewable error. [29] With respect to the letter from the Appellant's husband, it is argued that according to The Ethiopian Civil Code, Art. 148, a person is not allowed to approach a lawyer and swear an affidavit in absence of a court order, or in the alternative to approach a government agency appointed for this purpose. The Appellant submits that it is obvious that under the circumstances, her husband could not have approached a government agency to swear an affidavit, critical of the government. [30] With due respect, the RAD finds that the Appellant has lost sight of what is missing in the letter from the Appellant's husband. The RAD finds that with this in mind, this letter ought to be given minimal, if any, weight in terms of establishing fears on behalf of the family, including future fears to the children. The RAD finds that the lack of probative value, was not due to the fact that it was not sworn. While it can be said that this letter is also self-serving, the RAD concurs with the RPD that it was its probative value which was challenged, and in this regard, the RAD agrees that it adds nothing to what is already in the testimony and the BOC. [31] With respect to the letter from the Ministry of Foreign Affairs, the RAD finds that, with due respect, the Appellant's argument cannot succeed. In fact, the RAD finds that the RPD did specify the lack of identifying factors. Accordingly, the RAD concurs with the RPD that it can be assigned little weight. Is the Appellant an active supporter of the XXXX Party? [32] The Appellant testified that she began to support the XXXX Party in XXXX 2014. As a supporter, she stated that one believes in the ideology and you contribute money. Since the Appellant had submitted a letter from the XXXX Party in which it indicates that she contributed financially and "by all other means",7 she was asked to explain. Her response was that she helped them with information during elections. Having stated to the RPD on more than one occasion that she only gave money, she explained that this was her main function. In this regard, initially the Appellant testified that she contributed money three or four times, but that it is dangerous to keep receipts in case your home is searched. However, she had submitted two receipts,8 which she explained as being by coincidence. [33] The RPD asked the Appellant questions with respect to the XXXX Party's goals, objectives and leadership structures. In the absence of specific objectives of the party, its strategy, when it was founded and whether or not it was elected to any seats in Parliament and when the most recent elections took place, the RPD drew a negative inference. In addition to the foregoing, the RPD found that given the Appellant's allegations that she was constantly harassed and threatened by security forces, her actions in keeping XXXX Party receipts was not consistent with those of someone who is genuinely fearful of security personnel, and someone who was accused of being a supporter of the XXXX Party. In terms of when the most recent election was held, the Appellant stated approximately three years ago, however, the documentary evidence9 indicates that it took place on May 24, 2015, leading the RPD to find a big discrepancy for someone who is alleging that she participated in elections. The RPD concluded that the Appellant had not established that she is an active supporter of the XXXX Party or that she is being pursued by authorities as a result of her support to the XXXX Party. [34] The Appellant submits that she provided a letter from the XXXX Party to corroborate her support of this party. She argues that there is a minor difference between her testimony and the support letter of the party, and that ought not to justify rejecting her support for the party. [35] The RAD finds that the Appellant has lost sight of the questions posed by the RPD with respect to the XXXX Party. Upon review of the audio recording, the RAD concurs with the RPD that the answers provided by the Appellant in this regard are contradicted by the documentary evidence, and therefore, question the veracity of any involvement whatsoever with the XXXX Party. [36] The Appellant submits that the RPD ignored evidence, such as documentary evidence supporting her employment and letter of recommendation of the Ambassador10 . The Appellant's allegation that the government of Ethiopia alleges that the governments of South Africa, Eritrea and Egypt have tried to undermine it, by assisting members of the XXXX XXXX opposition party is corroborated with documentary evidence.11 It is, therefore, argued that the foregoing evidence contradicts the RPD's general finding of lack of credibility. [37] The RAD concurs that the RPD did not mention the foregoing. However, the RAD does not find that this omission is fatal to the decision by the RPD. This letter confirms the Appellant's employment, which was not called into question. The minor children [38] The Appellant fears that the authorities would use her children to get back at her. She explained that although her husband has not suffered any consequences, he moves a lot out of fear. The RPD noted that it had already discounted this information as it was not contained in her husband's support letter dated September 15, 2016. Moreover, it noted that the minor Appellants' claims are based on their mother's claim, to which the RPD had already found that she had not established that she is being persecuted in Ethiopia. In the absence of any further evidence that the Appellant's husband is being persecuted as a result of her actions, and no additional evidence with respect to the children, the RPD found that there is not a serious possibility that the minor Appellants will be persecuted nor will they be personally subjected to a risk to their lives or of cruel and unusual treatment or punishment or to a danger of torture if returned to Ethiopia. [39] The Appellant has made no submissions in this regard. However, the RAD concurs with the RPD that there is insufficient credible evidence upon which to determine that the lives of the Appellants' children would be at risk if they returned to Ethiopia. RAD'S OVERALL FINDINGS [40] On a cumulative basis, and the RAD emphasizes the word cumulative, the RAD finds that the conclusion reached by the RPD is sustainable and justifiable. The RAD acknowledges that some of the findings of the RPD go to subjective fear at the time but they also go to the Appellant's overall credibility. Moreover, all of the incidents allegedly stem from the Appellant's employment and the authorities' interest in her as a result. The RPD simply, in the RAD's opinion, found that the Appellant was unable to establish her allegations either by way of her testimony or her corroborative evidence. After conducting an independent assessment of the entire record of the proceedings, the RAD agrees with the RPD that the Appellant and her children have not established the material allegations in their claims. [41] For the foregoing reasons, pursuant to subsection 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD. This appeal is dismissed. (signed) "Roslyn Ahara" Roslyn Ahara May 2, 2017 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 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Ethiopia (April 29, 2016), items 2.1 and 2.4. 3 Exhibit RPD-1, RPD's Record, pp. 321-322. 4 Exhibit RPD-1, RPD's Record, pp. 318-319. 5 Exhibit RPD-1, RPD's Record, pp. 324-325. 6 Ibid., p. 326. 7 Exhibit RPD-1, RPD's Record, pp. 311-312. 8 Ibid., pp. 314-316. 9 Exhibit RPD-1, RPD's Record, NDP for Ethiopia (April 29, 2016), item 4.2. 10 Exhibit RPD-1, RPD's Record, pp. 331 -334. 11 Ibid., pp. 335-339. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-18954 TB6-18955 TB6-18956