TB6-11626

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 : TB6-11626 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 4, 2017 Date de la décision Panel Anthony da Silva 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) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX ("Appellant"), a citizen of Ethiopia, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute a decision with its own determination that the Appellant is a Convention refugee. In the alternative, the Appellant asks the RAD to hold a hearing under Section 110(6) or refer the matter back to the RPD for redetermination. The Appellant has provided new evidence under Section 110(4). DETERMINATION [2] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the decision of the RPD and substitutes the decision that, in its opinion, should have been made, namely that the Appellant is a Convention refugee pursuant to Section 96 of the IRPA. BACKGROUND [3] The Appellant alleges that she has been targeted by the Ethiopian government because of her Oromo ethnicity and her political opinion which has been critical of the government. She has demonstrated her opposition to the government by having joined the Ethiopian opposition party, the Oromo Federalist Congress (OFC) and through XXXX XXXX and political activities in Canada. [4] Her claim for protection was heard on April 8, 2016, and May 17, 2016. In a decision of August 11, 2016, the RPD rejected the claim, finding that the Appellant was not credible. [5] The Appellant submits the following issues as a basis for her appeal: i. What is the standard of review? ii. Did the RPD err in its assessment of the Appellant's credibility? iii. Did the RPD err in its assessment of the Appellant's sur place claim? iv. What is the appropriate remedy? ROLE OF THE RAD [6] 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. With respect to findings of fact and mixed fact and law, which raise no issue of credibility of oral evidence, the RAD is to review the RPD's decision applying the correctness standard. In accordance with the decision of the Federal Court of Appeal, the RAD will conduct its own analysis of the evidence to determine if the RPD erred and, if possible, come to its own determination whether the Appellant is a Convention refugee or a person in need of protection. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [7] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant. [9] The Appellant has submitted the following as new evidence:2 * Photos of the Appellant at protest rally (18, 05, 2016) * Photos of the Appellant at political events (9&10, 07, 2016) * Photos of the Appellant at protest (19, 08, 2016) * Opinion letter by XXXX XXXX (12, 09, 2016) * Article, Open Democracy (09, 09, 2016) * Article, Globe & Mail (15, 09, 2016) * Article, Addis Standard (05, 09, 2016) * Commentary by XXXX XXXX XXXX (16, 08, 2016) * Article, Voice of America (29, 08, 2016) * Article, Huffington Post (18, 08, 2016) * Articles, BBC News Report (22, 08, 2016) * BBC Africa Live (08, 08, 2016) * BBC News (08, 08, 2016) * Guardian News (11, 08, 2016) * Washington Post Article (09, 08, 2016) * Changes to PRRA (27, 07, 2016) * Washington Post Article (09, 08, 2016) * News Report Oakland Institute (06, 09, 2016) [10] The RAD has considered the Appellant's submissions3 on her new evidence and finds the new evidence to be admissible under Section 110(4) with the exception of the Request for Information Request ETH104127.E (July 23, 2012)4 which predated and was reasonably available before the hearing. APPLICATION FOR ADMISSION OF NEW EVIDENCE [11] The Appellant has also made an application for the admission of new evidence that was provided after the Appellant's Record was perfected pursuant to RAD Rules 29 and 37. The RAD has considered the application under Rule 29(3), 29(4) which states: (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. (4) In deciding whether to allow an application, the RAD must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [12] The Appellant has provided additional evidence that she submits meets the factors as outlined in Raza,5 namely: credibility, relevance, newness, and materiality. The following items6 constitute the new evidence submitted under RAD Rule 29(3), 29(4): * Exhibit C-1, p.3 * Exhibit C-2, p.23 * Exhibit C-3, p.31 * Exhibit C-4, p.33 * Exhibit C-5, p.35 * Exhibit C-6, p.48 * Exhibit C-7, p.56 * Exhibit C-8, p.57 * Exhibit C-9, p.61 * Exhibit C-10, p.65 * Exhibit C-11, p.69 * Exhibit C-12, p.70 [13] The RAD has considered the Appellant's submissions7 in the Application for Admission of New Evidence and finds the new evidence to be admissible pursuant to RAD Rules 29 and 37. ANALYSIS OF THE MERITS OF THE APPEAL Credibility The Appellant's XXXX [14] The RPD did not find the Appellant's testimony with respect to XXXX XXXX to be credible. The Appellant testified that XXXX XXXX was political in nature, suggesting that the Ethiopian government is racist and is dividing the country by race and religion. According to the Appellant, specifically, XXXX XXXX: "XXXX XXXX XXXX XXXX XXXX" suggest insurrection. The RPD did not find that XXXX XXXX XXXX XXXX XXXX indicated that the government was racist or was trying to divide the people to be reflected in XXXX XXXX XXXX XXXX XXXX. The RPD also found that the Appellant's inability to explain how the XXXX XXXX expressed what she claimed, to be unreasonable and therefore found her assertion that XXXX XXXX was critical of the government, not to be credible. Further, the RPD gave the XXXX XXXX letter little weight since it did not help explain the political content of XXXX XXXX, who found it and how it was found to contain political content, and who had threatened the Appellant as well as himself because of XXXX XXXX content. [15] The Appellant submits that the RPD has applied a "Western standard of reasoning"8 in its interpretation of the meaning of the XXXX XXXX, rather than trying to understand the meaning that certain words XXXX XXXX XXXX would have in her country. As such, the RPD's understanding is speculative and therefore erroneous. She submits that the RPD has ignored evidence that freedom of expression is very restricted in Ethiopia9 and given little weight to the letter from XXXX XXXX, who XXXX XXXX XXXX XXXX XXXX XXXX and was forced to quit working because of the intimidation by authorities as a result of XXXX XXXX. She submits that the restrictive nature of the authorities and their negative response to XXXX XXXX is sufficient evidence to establish the well-foundedness of her fear. [16] The Appellant further submits that the opinion letter of XXXX XXXX illustrates that words XXXX XXXX XXXX such as "unity" and "race" will be viewed by both the authorities and the general public as critical of the current regime and its policies. [17] The RAD has reviewed the Appellant's testimony regarding XXXX XXXX, XXXX XXXX XXXX XXXX XXXX, and the evidence provided by the Appellant. It concurs that there is sufficient evidence to indicate that, on a balance of probabilities, the authorities would find XXXX XXXX to be critical of the government and of its policies. Given the ongoing tensions with the Oromo population, the authorities would be sensitive to any perceived opposition to its policies and there is a very real potential that they may view the Appellant's XXXX as criticism from XXXX XXXX Oromo XXXX. [18] The interpretation of art and its meaning has always been fraught with pitfalls. The subjective nature of interpretation - especially when viewed through a cultural lens - makes the process especially challenging. The RAD concurs with the Appellant that the RPD has failed to adjust its cultural lens and ignored relevant evidence in its determination that the Appellant's XXXX was not political in nature. The Appellant's inability to explain how XXXX XXXX was political is not surprising, in light of the fact that she is trying to explain through an interpreter her use of figurative language. As such, the RAD finds that the RPD erred in drawing a negative inference from her inability to clearly explain the political meaning of XXXX XXXX. [19] The RAD has also considered the opinion letter10 by XXXX XXXX which provides some insight into the language and themes in the Appellant's XXXX, and supports her contention that XXXX XXXX are political in nature. The Appellant's Political Profile [20] The RPD found that the Appellant did not establish, on a balance of probabilities, that her political involvement would lead to future persecution. While it accepted that she was a member of the OFC, the RPD found her not to be credible with respect to any other political involvement. [21] The Appellant submits that the RPD erred by failing to properly analyze the cumulative nature of the persecution she experienced. She further submits that the totality of evidence establishes that she has a political profile both in Ethiopia and in Canada that would expose her to a risk of detention and torture were she to be returned to Ethiopia. [22] The RAD has reviewed the Appellant's testimony with respect to her political involvement and finds that she has embellished the motivation for and the scope of her political involvement. She was asked as to when she became a member of the OFC and stated that it was in XXXX XXXX. When asked why she had waited until XXXX to join the party, she replied: "I was isolated because of my ethnicity." She later testified that she had not joined the party earlier because she "had never been a member of any organization." According to the Appellant's testimony, she has "strongly opposed the current government" for quite some time, yet her political involvement has been recent. The RAD finds that she has provided an inadequate explanation for joining the OFC only in XXXX and never actually explained why she finally decided to join in XXXX. It is unclear what motivated the Appellant to join an opposition political party in XXXX before leaving for Canada. When asked when she first decided to apply for a Canadian visa, she replied that she didn't remember the date. When asked as to when she had decided to leave the country, she replied that it had been in the past three years. She further indicated that she's been afraid since 2014, but didn't have the opportunity to leave until she found a promoter who provided her with the opportunity. She also testified that she "always had in mind [sic] to leave" but that it was only when the opportunity arose that she left [and came to Canada]. [23] The RAD notes that the Appellant attended only three meetings with the OFC and had a very limited understanding of the party, its leadership, and its policies. The RAD also finds that she has attempted to embellish her political involvement and the problems she faced after having joined an opposition party. When asked if she was involved in the recent elections in Ethiopia, she replied: "I voted." When asked if she had any role in the elections, she replied: "I was motivating people." She was also asked if she had participated in the 2015 Oromo protests, and testified that she had distributed flyers. When asked why she did not include this information in her Basis of Claim (BoC) narrative, she replied that she had forgotten. She testified that she had participated in these XXXX 2015 demonstrations but that the police had raided the demonstration and that she had managed to run away and escape. She further indicated that they had intended to carry placards, but that the demonstration was dispersed before they had a chance to demonstrate. The RAD finds that the Appellant's political knowledge and involvement had been minimal, recent, and inconsistent with her contention that she has "strongly opposed the government." [24] In reviewing the Appellant's testimony, it would appear that her "problems" with the government began when she turned down a government invitation XXXX XXXX at a government event (XXXX XXXX XXXX XXXX) XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. She testified that the government had informed her that if she refused to attend, she "would be punished" and that when she did not attend, they then "took away my opportunities and made it difficult to work." She stated that her "XXXX work was curtailed and XXXX XXXX" and that her "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In eight years, she apparently was able XXXX XXXX XXXX XXXX XXXX. It would also be reasonable to assume that the problems she had with XXXX XXXX XXXX, which was deemed "political" by the authorities and which XXXX were not allowed XXXX XXXX, was a result of her initial refusal to appear at the government event and take part in what she characterized as pro-government propaganda. Nonetheless, as the RPD pointed out, she was allowed to work and was able to support herself financially. She was also allowed to leave the country to participate in a XXXX XXXX XXXX XXXX XXXX of Dubai. While she appears to have experienced some difficulties in XXXX XXXX XXXX, it does not appear that she was targeted by the government for her political activities. [25] The Appellant also testified about the difficulties she faced as a woman XXXX in a male-dominated society. One particular painful experience occurred during the period she XXXX XXXX XXXX XXXX XXXX. She was apparently sexually harassed by a patron at XXXX XXXX who also discharged a gun duringXXXX XXXX XXXX. The problems she experienced as a woman XXXX, however, do not appear to be as a result of her political involvement, but rather as a result of Ethiopian attitudes towards women. Sur Place Claim [26] The Appellant was asked why she would still be in danger in Ethiopia. She replied that she would be jailed and possibly killed if she returned because she has participated in Oromo-related demonstrations in Canada. [27] The RPD found that the Appellant did not have a sur place claim because she did not establish that Ethiopian authorities would be aware of her activities in Canada and because she was not credible with respect to her political identity. [28] The Appellant submits that the RPD had ignored or given insufficient weight to her evidence supporting her sur place claim and that it had erred in imposing a higher standard than required in law, which does not require a sur place claimant to prove that one's activities have come (emphasis added) to the attention of the authorities rather than simply demonstrating that her activities are likely to come (emphasis added) to the attention of authorities in her country. [29] In determining the validity of the Appellant's sur place claim, the RAD has considered her testimony, evidence (including new evidence submitted to the RAD), and current country conditions in Ethiopia. The Appellant submits that, in addition to her political profile in Ethiopia, she has been politically active in Canada. This activism, she contends, has likely come to the attention of authorities in Ethiopia. She believes that she will be imprisoned or possibly even killed, were she to be returned to Ethiopia. [30] The RAD notes that the much of the new evidence regarding the change in country conditions as well as the Appellant's participation in various demonstrations in Canada was not before the RPD. Since the RPD hearing, the Appellant had continued to participate in various demonstrations critical of the Ethiopian government. Importantly as well, the Ethiopian government imposed, in October 2016, a six-month state of emergency under Marshall law, giving security forces wide latitude in enforcing the numerous additional restrictions in a country where protests and demonstrations were already significantly restricted. While the RAD does not find that the Appellant was able to establish that she had a significant political profile in Ethiopia, her involvement in demonstrations by the Ethiopian diaspora in Canada, may well have brought her to the attention of authorities in Ethiopia who have been known to employ agents abroad who monitor and report on individuals involved in anti-government demonstrations. While the Appellant may not have a significant political profile, she is XXXX XXXX XXXX XXXX XXXX XXXX in her country. Her return to Ethiopia during this period of heightened tension and increased security may very well result in her being detained and questioned by authorities who have been criticized for their use of torture during interrogation of detainees. In light of the current situation in the country, the RAD finds that there is a reasonable chance that the Appellant will attract negative interest from authorities were she to be returned to Ethiopia. Although one may question the Appellant's motivation for becoming involved in political protests while in Canada, the RAD finds that there is sufficient evidence to determine that the Appellant is a refugee sur place. CONCLUSION [31] Pursuant to Section 111(1)(b) of the IRPA, the RAD sets aside the decision of the RPD and substitutes the decision that, in its opinion, should have been made, namely that the Appellant XXXX XXXX XXXX is a Convention refugee pursuant to Section 96 of the IRPA. (signed) "Anthony da Silva" Anthony da Silva January 4, 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 P-2, Appellant's Record, pp. 14-94. 3 Exhibit P-2, pp. 109, 110. 4 Exhibit P-2, Appellant's Record, at p. 14B. 5 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 6 Exhibit P-3, Application for Admission of New Evidence. 7 Exhibit P-3, at p.78. 8 Exhibit P-2, Appellant's Record, at p. 107, para. 25. 9 Exhibit RPD-1, National Documentation Package (NDP), Ethiopia, 29 January 2016, items 11.1-11.6; Exhibit P-2, Appellant's Record, pp.31-92. 10 Exhibit P-2, Appellant's Record, at pp. 29-30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-11626