TB6-10852

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 : TB6-10852 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 November 23, 2016 Date de la décision Panel David Lowe 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 (the "Appellant"), a citizen of Ethiopia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal. The Appellant is requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. Background [2] The Appellant alleged before the RPD that she was denied maternity leave in 2007 because she supported the opposition party in Ethiopia. She alleges that she was arrested and detained for half a day only because she protested against the discriminatory practices of the people who denied her maternity leave. The Appellant also alleges that she faces persecution as an Amhara. The Appellant also alleges to have a sur place claim based on her attendance at various political demonstrations in Canada. Greater details may be found in the Appellant's Basis of Claim (BOC) form1 and in the audio recording of the hearing. [3] The Appellant's application for refugee protection was heard on April 13, 2016 and June 2, 2016. A negative decision was rendered in writing on July 21, 2016. The RPD found that the Appellant was unable to establish her claim on the basis of credible and trustworthy evidence. [4] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. Appellant's Issues [5] The Appellant submits that the RPD erred: a) In the RPD's finding on credibility; and b) In the RPD's assessment of the sur place claim [6] The Appellant further submits that at issue are the "standard of review" by the RAD and the "remedy." Admissibility of New Evidence [7] The new evidence submitted on behalf of the Appellant includes some twenty seven items.2 [8] The RAD must first determine whether the new evidence meets the requirements of section 110(4) of the IRPA. Could this evidence have been presented prior to the rendering of the RPD's decision and if not, why not? The fact that evidence presented does not go as anticipated is not a reason that other available evidence could not have been presented as well. [9] Some of the new evidence is being submitted in answer to issues brought forward at the RPD hearing wherein the panel had made findings based on the evidence adduced at the hearing. Those findings were not favourable to the Appellant. The Appellant is, basically providing the documents now which should have been before the RPD. [10] The Federal Court stated in a recent case: "I am satisfied that the RAD did not err in refusing to admit the applicant's proposed new evidence. The RAD's decision indicates that it was well aware of its role, that is that it assessed each piece of the proposed new evidence, including the applicant's submissions on the new evidence, in light of subsection 110(4) and, "within the context of the totality of the Appellant's evidence adduced at the RPD." The applicant's explanation for failing to place the proposed new evidence before the RPD was that he could not have foreseen that the RPD would make negative findings on: (1) his identity; and (2) the question of objective risk. This is simply not consistent with the record. I concur with the RAD's conclusion that the applicant had the onus to put forward his case to the RPD as to why he should be accepted as a Convention refugee or a person in need of protection. It was not open to him to wait to forward requisite and relevant evidence until the RPD rendered a negative determination."3 [11] I will consider each of the newly submitted documents as follows: [12] Exhibits A to C consist of the affidavit of XXXX XXXX with two exhibits including a video and website printout, sworn August 29th, 2016, the affidavit of Mr. XXXX XXXX, sworn August 24, 2016 and the affidavit of XXXX XXXX, sworn August 25, 2016. [13] Although a document may pass the requirements of section 110(4), it may not be automatically admitted as evidence. Once a document is deemed to have passed the test of section 110(4), it must be assessed for relevance and credibility. It makes no sense to admit evidence if that evidence is not relevant or credible. [14] These affidavits all speak to the events testified to at the hearings while two of the affidavits also mention an event post decision (XXXX XXXX XXXX 2016) at which the Appellant attended. Although the XXXX 2016 event was a protest rally and has been posted on "XXXX", neither of the affiants has suggested that the Appellant is shown on the "XXXX" video which has been posted online. I find this to be somewhat disconcerting as I believe that if the Appellant had been visible on the video, it would have been important for that to be mentioned in the affidavits but it is not. The affidavits' information on what occurred or did not occur prior to the decision is not new evidence but is only adduced to support the lack of evidence presented by the Appellant at her hearings. As stated in Cabdi,4 the Appellant has the onus to put her best case forward at the RPD hearings. The RAD is not an opportunity to fix the mistakes made by the Appellant in her RPD hearings but is a forum for appeal against errors made by the RPD and based on the evidence adduced at that hearing. As these affidavits do not present any new evidence other than the existence of a subsequent protest rally, that evidence would not affect the outcome of a decision as it is not evidence which supports the claim of the Appellant of being known by Ethiopian authorities and consequently being at risk. Therefore, the "new" information is not relevant to the element of risk. I find that these affidavits will not be admitted into evidence. [15] Exhibits D and E consist of two letters, one from "XXXX XXXX XXXX XXXX XXXX XXXX" and the other from "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX". These letters are produced to confirm the Appellant's attendance at an XXXX event in XXXX, Ontario in XXXX 2016, well before the Appellant's hearings before the RPD. [16] The Appellant has argued that the XXXX letter was unavailable to her before her hearing; however, the Appellant was aware of the location of XXXX office and had contact with an XXXX employee named "XXXX". I find that the Appellant has not provided any reasonable explanation as to why this letter was not reasonably available to her prior to the RPD decision. Therefore, Exhibit D will not be allowed into evidence. [17] The Appellant argues that the XXXX letter should be allowed as it contains information which arose post decision. The information spoken of here is confirmation that the Appellant attended a rally on XXXX XXXX, 2016. As mentioned above by me, that rally is not relevant to a risk factor for this Appellant as no evidence has been adduced to support the claim that this Appellant was identified by members of the Ethiopian state as a participant in that event. No evidence has been adduced to suggest that this Appellant has appeared in any videotaping of that event. Therefore, I find that this Exhibit E consists of old information and information not relevant to the risk factor and therefore, will not be allowed into evidence. [18] Exhibit F is a group of photographs taken at the rallies of XXXX XXXX and XXXX, 2016. These photographs were taken post decision and technically would be considered "new" in accordance to section 110(4) of the IRPA. Participating in a mass rally does not automatically put one at risk. Again, the relevance of photographs of the Appellant at a rally does not mean that they are relevant to a risk factor. There is no evidence adduced to show that these photographs are anything other than personal photos. There is no evidence that these photos have been publically displayed and there is no evidence that these photos have fallen into the hands of Ethiopian authorities. I therefore find them to not be relevant to the risk to this Appellant. Exhibit F will not be allowed into evidence. [19] Exhibit G is a letter from XXXX XXXX, the Appellant's brother. The letter is dated August 21, 2016 and speaks about a video seen by the Appellant's colleagues from her place of work. The letter says that the Ethiopian police attended the brother's home, threatening and intimidating the family over the actions of the Appellant. I find it to be odd that the brother's letter suggests that the Appellant was clearly in the video being displayed in Ethiopia but none of the Appellant's sworn affidavits mention that the Appellant was actually seen in the video. When I look at the totality of the evidence presented for consideration, I find that this document stands out as being the only one which mentions that the Appellant was actually in the video. As the document is from an interested party and is not sworn to be true, I do not find it credible. Although it passes the test of section 110(4) as being new, it does not pass the credibility test and therefore, will not be allowed into evidence. [20] Exhibit H is an IRB document which was available at the time of the hearing and decision. It is not new. It is dated 1 April 2016 so will not be admitted. [21] Exhibit I is an IRB document dated 23 July 2012 so will not be admitted as new evidence as it fails the test of section 110(4) of the IRPA. [22] Exhibit J is an affidavit from XXXX XXXX XXXX, a Barrister and Solicitor located in Toronto, Ontario. The affidavit is sworn on September 1, 2016. The affiant swears that she has an XXXX from XXXX State University in XXXX, worked as a judge and practiced law in Ethiopia for years before coming to Canada. The affiant swears that an individual in Ethiopia cannot approach a lawyer to notarize his own witness statement, which he plans to send to a foreign jurisdiction to be used as evidence in a legal proceeding. This is a very credible document and is, on the surface, new. However, it speaks to an issue raised at the RPD hearing in regards to the lack of credibility assessed on documents which were not notarized. The Appellant could have reasonably obtained this same affidavit from this same Barrister in time to present to the RPD in support of those letters which were not notarized. The Appellant was represented by competent counsel and as previously mentioned by me, has the onus to put her best case forward to the RPD. Therefore, although technically new, there has been no reasonable explanation provided for failing to produce this supportive document prior to the decision. I take note that there were 49 days lapsed between the last date of the hearing (June 2, 2016) and the date of the decision (July 21, 2016), during which time the Appellant could easily have obtained this affidavit. Credibility of the Appellant and her documents were clearly an issue at the hearing. This exhibit will not be allowed into evidence. [23] Exhibits K and L are two internet articles from sources other than reliable mainstream media. Exhibit K is a "letter" printed in something called "ethiomedia.com", while Exhibit L is an opinion piece on a site called "ecadforum.com". Both of these documents speak to what appears to be a mounting civil war between the Ethiopian government forces and the Amhara and the Oromo ethnic groups. Both documents postdate the decision of the RPD, so technically are new; however, these both appear to be opinion pieces written on "forum" type websites and are definitely not mainstream news media. In fact, in Exhibit L, the author even writes that "...mainstream media are reluctant to report on this uprising...", which confirms to me that these sites are not mainstream. As the articles appear to be opinion pieces from sources which cannot be confirmed as credible, I will not allow these exhibits into evidence. [24] Exhibit M is another document from the website "ethiomedia.com" and, as in the above exhibit K, this item will not be allowed into evidence for the same reasons. [25] Exhibit N is a document which is very difficult to understand. It appears to be a story by a person called XXXX XXXX writing about some sort of legal issue which is incomprehensible to me. I do not understand how, if at all, it relates to the matters at hand. I notice that the date of the incident mentioned in the document is XXXX of 2015, while the date of the document itself appears to be XXXX XXXX, 2016, post decision. However, even if the document itself is new, the content is not; but moreover, as it speaks to criminal charges against some people who happen to be of the Amhara ethnic group, I do not find it relevant to the case at hand and therefore, will not allow it into evidence. [26] Exhibits O, P, Q, R, S, T, U, V, W, X, Y and Z are all news articles mostly from mainstream, reliable media including the BBC, the Washington Post, the Guardian and others. Each of these articles is dated post decision, so on the surface each is new. Each article speaks to the ongoing civil strife between government forces and supporters and the minority ethnic groups, including the Amhara of which group the Appellant is a member. These documents are credible and are new. I will admit into evidence each of these exhibits. [27] Exhibit A1 is a document from the Government of Canada issued on July 27, 2016, speaking to the availability of pre-removal risk assessments (PRRA) before being removed to Ethiopia due to the ever worsening state of affairs in Ethiopia. The document is obviously new and is extremely relevant and will be admitted as evidence. Analysis The Role of the RAD [28] The RAD is an Appellate body governed by specific legislation5 and guided by the jurisprudence6 of the Federal Courts. The RAD's role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.7 Such an appeal "(i) is directed at the decision of the RPD; (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision; and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD." [29] The Federal Court of Appeal in its decision clearly states, that the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred in its decision. The RAD is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.8 [30] When the RAD is dealing with the findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness,9 with no deference accorded to the RPD.10 [31] The RAD will show deference to the RPD's findings on credibility where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony from those individuals. [32] Where the RAD is to show deference to findings of the RPD, those findings must still be the result of an intelligible reasoning process. The RAD must be able to read the RPD's decision and comprehend how the RPD's conclusions were reached. [33] Additionally, the outcome of that process must be a product that is based on and supported by the evidence that was before the RPD. It is for this reason, that it is principally important that the RAD employ its own review of the evidence in the RPD's record, in order to conclude whether the RPD's outcome is supported by that evidence. [34] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [35] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from an intelligible reasoning process whose premises are embedded in such advantages. If either the process or the conclusion does not meet these requirements, the RAD may determine the findings to be in error. [36] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. [37] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The Arguments [38] The Appellant argues that the RPD made credibility findings without proper evidentiary foundation, ignored crucial evidence, gave the term "inconsistency" a meaning not prescribed in refugee jurisprudence, ignored country conditions and rendered a decision lacking in transparency and couched in general terms like "embellishment", "vagueness" and "lack of straightforwardness" without substantiating these findings with appropriate examples from the evidence. [39] The first alleged inconsistency is in regards to the Appellant's maternity leave. The Appellant argues that the RPD erred by being self-contradictory in its discussion on this issue. In the BOC narrative, the Appellant wrote that cultural dancers such as herself were not entitled to any maternity leave. The Appellant testified that in spite of non-entitlement, she was given twenty days maternity leave. The fact that someone else was given longer maternity leave than the Appellant allegedly because the other was a member of the ruling Party may be discriminatory, but it is not persecution. Neither was entitled to maternity leave, both received it, albeit for different lengths of leave. I concur with the Appellant; however, when the Appellant argues that this "difference" between her BOC in which she wrote that she was not entitled to any maternity leave, and her testimony which was that she received twenty days maternity leave is not a contradiction. [40] One may not be entitled to leave and one may be granted leave even when not entitled, without there being a contradiction. I find that the RPD erred in assessing this issue as a contradiction. [41] The Appellant argues that the second alleged inconsistency deals with the Appellant's testimony regarding her attack by the police. The RPD wrote that this testimony was not indicated in the Appellant's narrative and was therefore an embellishment. However, as the Appellant points out, the RPD erred in fact as the Appellant clearly mentioned her attack by police in her narrative.11 I concur with the Appellant that the RPD did err in fact on this issue. [42] The Appellant argues that the next inconsistency deals with the issue of the frequency of her attendance at political meetings. In the BOC narrative, the Appellant mentioned attending "meetings" while in testimony, she testified to attending one meeting. The Appellant argues that this inconsistency is not at all central to the claim. Regardless of the number of meetings she attended or how many times she handed out brochures, the fact that she did attend a meeting and did hand out brochures demonstrates the Appellant's support of the opposition Semayawi Party, which is central to the claim. I find that the issue of how many meetings the Appellant attended is peripheral to the claim and as is noted in Feradov,12 the BOC (formerly the PIF) is not meant to be an encyclopaedic recitation of the evidence, but a very general summary of the central aspects of the claim. I find that the number of times the Appellant attended a meeting is not a detail with which I or the Board should be concerned. I concur with the Appellant on this issue. [43] The Appellant argues that in each of the cases in which the RPD alleged the Appellant was either embellishing, was vague or lacked straight-forwardness, the RPD was being microscopic in its examination of the testimony and other evidence. In these assessments, I must defer to the RPD as the panel was in the position I am not in as the RPD had the privilege of hearing the claimant/Appellant and seeing the claimant/Appellant testify. I cannot determine from an audio recording what the Appellant's demeanour was or whether in the particular hearing room setting, the Appellant was actually vague or just nervous. [44] The Appellant argues that the RPD did misconstrue one piece of evidence when the RPD, in its Reasons and Decision, mentioned that the Appellant was a "member" of the opposition party, when in fact the Appellant testified that she "supported" the opposition party but did not testify to being a member. The RPD referred to the Appellant five times as a member in just one paragraph13 alone. I must concur with the Appellant and find that the RPD did err by misconstruing this evidence. [45] The Appellant argues that the RPD applied North American standards to the Ethiopian conduct regarding the notarizing of documents. The Appellant had no opportunity to explain the system regarding notarization in Ethiopia as the RPD failed to give the Appellant an opportunity to address the issue. I concur with the Appellant and find that the RPD erred by failing to give the Appellant an opportunity to address the panel's concerns on this issue. [46] The Appellant argues that the panel failed to consider the Chairperson's Gender Guidelines (Gender Guidelines) in dealing with the Appellant's claim of sexual assault. In reality, the Appellant was not the one who brought up the sexual assault issue but the Appellant's sister, who in her letter mentioned that the Appellant had been sexually assaulted by the police. As far as I can determine by listening to the audio recording of the hearings, no accommodation of any kind was requested by the Appellant or her able counsel in regards to the Guidelines, nor does it appear that the RPD expressed its concern over this discrepancy to the Appellant in order to allow the Appellant an opportunity to address those concerns. [47] The Gender Guidelines should always be considered when dealing with female refugee claimants; however, that consideration may be very little if there is no claim put forward that the persecution feared is gender-related. In the case at bar, neither the Appellant nor her counsel suggested that her claim was gender-based. However, as the claim did involve an issue over maternity leave for one thing and a protest rally espousing the rights of women, the panel should have taken a serious look at the Gender Guidelines. Given the letter which mentioned the sexual assault of the Appellant, it would have been the right choice to be more considerate of the Gender Guidelines and to perhaps put the question of the sexual assault to the Appellant in order for her to clarify the inconsistency. It may actually have sufficed in this case for the RPD to have made even a simple acknowledgement of the Gender Guidelines to indicate that the Guidelines had been considered. I concur with the Appellant that the RPD erred by failing to consider the Gender Guidelines when assessing the veracity of the Appellant's testimony. [48] The Appellant argues that it was an error for the RPD not to consider the various acts of discrimination as sufficient to amount to persecution. The Appellant argues that the denial of longer maternity leave was discriminatory and amounted to persecution. The RPD found that the denial of longer maternity leave was not persecution as it did not impact the Appellant's right to life, freedom or security. The Appellant argues that this statement by the RPD "shocks the Canadian conscience". I cannot agree with the Appellant in this case. As the Appellant had no right to any maternity leave, the fact that she received twenty days of leave belies the accusation of persecution in that instance. It certainly would have been better for the Appellant to have been granted a longer leave and it may well be discriminatory if she was granted less time for leave than others because of her political beliefs, but it does not arise to a level of persecution. The Appellant had the option of not returning to work at all, or asking for unpaid leave. Neither option is great but both options would be viable. [49] The arguments could go on for many more pages; however, as refugee law is forward looking, the situation for this Appellant in Ethiopia today and in the immediate future is what really matters. What, if anything, will happen to this Appellant should she return to Ethiopia? [50] There is no dispute that this Appellant is of the Amhara tribe of Ethiopia. The Appellant has adduced a plethora of documentation, mostly from reliable and credible sources such as the BBC and the Washington Post. These documents tell of the horrendous situation in Ethiopia for members of the Amhara tribe. The documents speak to the killings of Amhara protesters by the police, the denial of human rights or the abuse of those rights by government forces and so on. [51] The Appellant's most damning piece of evidence is exhibit A1. This is a document issued by the Government of Canada on July 27, 2016. This document speaks to the PRRA used by Canadian Border Services Agency (CBSA) in order to assess the risk factors prior to removing someone from Canada. This document speaks to the issue of PRRA in regards to Ethiopians being deported from Canada. This document was issued "due to worsening conditions" in Ethiopia which will impact some Ethiopians. Those being impacted are Amhara people such as this Appellant. [52] In conducting my independent analysis of this claim/appeal, I have considered the Gender Guidelines. I find that the issue of maternity leave, which was not a matter of persecution on its own, along with the sexual assault on the Appellant, and the Appellant's involvement in a protest in support of women's rights cause me to consider that some of the possible issues identified by the RPD as credibility concerns may be explained away due to possible trauma suffered by the Appellant, which could adversely affect her ability to properly testify. [53] I find that the Appellant has suffered discrimination as well as illegal physical and possibly sexual abuse at the hands of government agents and further find that due largely to the nature of the discrimination and abuse, I find that the discrimination in this case is sufficient to rise to the level of persecution. [54] More importantly, I find that the situation in Ethiopia for Amhara people in general is deteriorating, but for this Appellant, due to her previous run-ins with the state, the situational risk, on a balance of probabilities, would be greater still. [55] Under these circumstances, I find that this Appellant is a Convention refugee. Disposition [56] The RAD has found that the RPD decision cannot stand. CONCLUSION [57] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. (signed) "David Lowe" David Lowe November 23, 2016 Date 1 Exhibit RPD-1, RPD Record at pages 15 - 27. 2 Exhibit P-2, Appellant's Record, pages 14 - 103. 3 Cabdi,Mahad Cali v. M.C.I., (F.C., no. IMM-1365-1), January 8, 2016, Gleeson, 2016 FC 26. 4 Ibid. 5 Immigration and Refugee Protection Act (IRPA). 6 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14, M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 7 Dhillon, paras. 14 - 18. 8 Huruglica, para. 103. 9 Ibid. 10 Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, para. 50. 11 Exhibit RPD-1, RPD Record, BOC narrative at para. 5. 12 Feradov, Ferad v. M.C.I. (F.C., no. IMM-1663-06), Barnes, January 30, 2007, 2007 FC 101 at paras. 18 and 19. 13 Exhibit RPD-1, Reasons and Decision at para. 7. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-10852