TB5-02602

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 : TB5-02602 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 June 15, 2015 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Eve Sehatzadeh 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 and Decision [1] XXXX XXXX XXXX (the Appellant), a citizen of Ethiopia, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant has submitted new evidence in support of his appeal. The Appellant also requests that a hearing under section 110(6) of the Immigration and Refugee Protection Act1 (IRPA) be held. DETERMINATION [2] This appeal is allowed. Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. Background [3] The Appellant alleges that he was born in Ethiopia, is of Somali ethnicity, and resided in the Ogaden region of Ethiopia. The Appellant fears persecution at the hands of the Ethiopian government and the Ethiopian Special Police because he XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX the Ogaden Liberation National Front (OLNF). [4] The Appellant made his claim for refugee protection on September 21, 2014. [5] The Appellant had a refugee determination hearing on November 20, 2014. Written reasons were issued on February 11, 2015. The RPD found that the Appellant had not established his identity. [6] Appeal pleadings were received on March 26, 2015. In the appeal, counsel argued that the RPD member erred in her assessment of the Appellant's identity. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL Express statutory conditions [7] Section 110(4) of IRPA2 provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. A letter and photographs [8] The Appellant provided a letter from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, dated XXXX XXXX, 2014.3 The Appellant also provided photographs of his wife and two children.4 The Appellant explains in an affidavit contained in his appeal, that on the same day as his hearing before the RPD, he provided the XXXX letter and the photographs to the counsel who represented him at his hearing. The Appellant explains further that it was his understanding that his then counsel had submitted these documents. The Appellant's previous counsel provided an affidavit confirming that the letter from the XXXX was given to him before the hearing and that he neglected to submit the document. The Appellant pleads that it was not until he was perfecting his appeal that it came to light that this letter had not been submitted at his hearing before the RPD. [9] The RAD appreciates that such an error by counsel could easily be made given the various concerns addressed at the beginning of an RPD hearing. The RAD also appreciates that the Appellant depended upon his then counsel to submit documents he had provided to him. The RAD thus accepts the documents and will assign weight in its analysis of the appeal. Marriage Certificate [10] The Appellant provided his marriage certificate dated XXXX XXXX XXXX XXXX 2012 as evidence of his identity.5 In his appeal, the Appellant explains that during his hearing, the RPD member had questioned him about other identity documents he might have obtained from Ethiopia and that he had testified that a marriage certificate had been issued when he married. He pleads that after his hearing he attempted to obtain his marriage certificate and when he received a copy of the certificate in XXXX XXXX XXXX, he provided the copy to his then counsel. The appeal contains a letter written by the Appellant's previous counsel, dated December 16, 2014, addressed to the Board advising the RPD member that in addition to his post-hearing written submissions, he wished to submit the Appellant's marriage certificate and photographs of the Appellant's wife and children.6 Contained in the file for this case is a letter dated May 8, 2015 from the Board, addressed to the Appellant and his former counsel.7 This letter informs the former counsel and the Appellant that the marriage certificate and photographs received on December 16, 2014 had been misfiled and thus, were not made available to the RPD member to consider or entered into evidence. [11] The RAD understands that through no fault of the Appellant, the RPD member did not have the opportunity to consider the marriage certificate before she finalized her decision on February 11, 2015. The RAD thus, accepts the document and will assign the appropriate weight in the analysis of its decision. Affidavits [12] The Appellant provided an affidavit from Mr. XXXX XXXX XXXX, dated XXXX XXXX, 2015.8 According to Mr. XXXX affidavit, he is the person who provided information to the XXXX regarding the Appellant's lineage. The Appellant notes in his appeal that Mr. XXXX is referenced in the letter9 from the XXXX, discussed above. In his affidavit, Mr. XXXX provides considerable detail regarding his knowledge of the Appellant's family. The Appellant in his appeal does not explain why this affidavit was not reasonably available for his hearing before the RPD. The RAD, however, appreciates that the Appellant could not have known that the letter from the XXXX was not made available to the RPD at his hearing. Without wishing to speculate, the RAD assumes that having received a negative decision from the RPD, the affidavit from Mr. XXXX is provided to bolster the letter from the XXXX. The RAD accepts the affidavit and will assess the weight of the document within its analysis of the appeal. [13] The Appellant provided an affidavit from Mr. XXXX XXXX XXXX dated XXXX XXXX, 2015.10 Mr. XXXX provides evidence regarding the Appellant's identity. In his appeal, the Appellant argues that he knew Mr. XXXX from a young age in Ethiopia because of Mr. XXXX friendship with the Appellant's brother. The Appellant pleads further that in February 2015, he learned through an Ethiopian man visiting his flatmate that Mr. XXXX resides in Edmonton, Alberta, as does the visitor of his flatmate. The Appellant states that he then contacted Mr. XXXX and made arrangements for the affidavit. Given that the Appellant has provided documents issued in Ethiopia which the RAD finds establish his identity, the RAD does not accept the affidavit because the RAD finds the affidavit unnecessary. ADMISSIBILITY OF DOCUMENTS NOT PREVIOUSLY PROVIDED [14] Rule 29(3)11 provides that the person who is the subject of the appeal (Appellant) 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. [15] Rule 29(4)12 states that in deciding whether to allow an application, the division 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 ...with the Appellant's record. Educational Document [16] In a letter dated April 16, 2015 the Appellant made an application, pursuant to Rule 2913, to submit the original document from the XXXX XXXX XXXX XXXX XXXX XXXX) and the original marriage certificate. As stated above, the RAD has accepted the marriage certificate.14 The RAD notes that a copy of the document from the XXXX was provided at the Appellant's hearing before the RPD.15 The Appellant provides no reason in his application as to why this original document was not available for his hearing. Nevertheless, given that one of the concerns stated in the RPD's decision was the document was a colour copy and not an original, the RAD accepts the document for its relevance and probative value. Written Declarations Under Oath [17] In a letter, dated May 6, 2015, the Appellant made an application, pursuant to Rule 2916, to submit Written Declarations Under Oath from his mother, XXXX XXXX, and his wife's brother, XXXX XXXX XXXX.17 According to the Appellant's application, his mother is not literate and required the assistance of his brother-in-law to provide an oath. The Appellant argues that since he did not learn until the RPD member rendered her decision that his mother's identity card, which was provided at his refugee hearing, was given minimal probative value, he could not reasonably have been expected to have provided his mother's letter earlier because he relied on other identity documents at his hearing. The Appellant argues further that he could not have provided the letter from his mother at the time he filed his appeal because there were delays in finding someone to assist his mother in writing her letter and further delays in having the documents translated into English. The RAD finds the Appellant's arguments reasonable. In addition, the RAD finds that the letter from the Appellant's mother is relevant and probative since the substance of the letter is central to the issue of the Appellant's identity. The RAD accepts the written declarations and will assign weight to the documents in its analysis. Birth Certificates of the Appellant's two sons, updated BOC, photographs [18] In a letter dated May 13, 2015, the Appellant made an application, pursuant to Rule 2918, to submit copies of the birth certificates of his two children, an updated BOC to reflect the birth of his youngest child on XXXX XXXX, 2014, and photographs of the Appellant with his eldest son taken in Kenya.19 The Appellant argues that he relied on other forms of evidence in order to establish his identity before the RPD and therefore, could not reasonably have been expected to submit his older son's birth certificate and the photographs as evidence in order to establish his identity. The Appellant also argues that he could not have been expected to provide his younger child's birth certificate at an earlier date since it was not issued until XXXX XXXX, 2015. The Appellant pleads that his second child was born after he had filed his BOC and he subsequently provided this information to his previous counsel before his RPD hearing. While the Appellant did not explain why he could not have provided all but the recently issued birth certificate at the time he made his appeal, the RPD accepts these documents since they are probative with respect to the Appellant's identity as the father of a child born in Ethiopia in 2013 and a younger child born in Kenya in 2014. The RAD notes that according to a recording of the hearing, the Appellant provided testimony regarding his two children and their places of birth. The RAD thus, accepts the amended BOC. The RAD, in its analysis, will assign weight to the birth certificates and photographs. ROLE OF THE RAD [19] As summited by counsel for the Appellant, the Federal Court decision in Huruglica20 has provided the RAD with guidance with respect to the role of the RAD. In this decision, Justice Phelan states: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.21 [55] In conducting its assessment, it 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 but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error."22 [20] Accordingly, the RAD has applied the reasoning as set out in Huruglica23 in its decision. ANALYSIS OF THE EVIDENCE Did the RPD member err in her identity and credibility determinations? Educational documents [21] At his hearing before the RPD, the Appellant provided a copy of a Certificate of Grade XXXX, school year 2000,24 and a copy of an Ethiopian General Secondary Education Certificate, XXXX subjects taken in 2010 (2002 EC(Ethiopian Calendar)),25 as evidence of his identity. During the hearing the Appellant testified that while he was in Kenya in 2014, his family in Ethiopia obtained the educational documents. [22] In her written decision, the RPD member had the following concerns regarding the Certificate of Grade XXXX. While the school year is indicated as 2000, there is no evidence that the document was issued in 2014. The Appellant's age is stated as 25 on the document and when the Appellant was asked to explain, he testified that a teacher completed the document and this is his age today; the member found that it was unlikely that the Appellant's current age would be reflected on such a document. The RPD member found the document unreliable. [23] The RPD member also had concerns regarding the Ethiopian General Secondary Education Certificate. The document indicates that the Appellant took XXXX subject in grade XXXX in the year 2002 (EC) and there is a two year gap from his grade XXXX studies. [24] The RPD member found the photographs on the two documents "remarkably similar".26 She had concerns that the Appellant testified that he did not know how the documents were issued. The member gave the documents minimal weight as a result of her analysis and added that the documents were not originals. The RPD member found that the documents were insufficient to establish his identity. The RPD found that the documents were fabricated to mislead the panel. The member drew a negative inference because the Appellant did not establish his identity with reliable and trustworthy evidence. [25] The Appellant pleads that the RPD member failed to apply the Maldonado principle which holds that the sworn testimony of the claimant is presumed to be truthful unless there is valid reason to doubt its truthfulness.27 The Appellant submits that the RPD's finding that his education documents are fabricated documents is not substantiated. He argues that the RPD drew unreasonable plausibility findings about what Ethiopian education documents should look like without regard to any evidence that would indicate the features of these two documents are fraudulent. The Appellant pleads that the RPD member misconstrued the information contained in the certificate from the Ministry of Education. He also pleads that there is no evidence that would indicate that school documents are not issued a few years after the completion of a grade of that the person's present age would not be placed on the requested document. [26] Based on its independent assessment of the evidence in this case, the RAD finds that the RPD's finding is one it cannot recognize and respect. The RAD notes that it has the advantage of examining the original of the Ethiopian General Secondary Education Certificate. [27] The RAD is mindful of the Federal Court decision in Rasheed,28 which asserts that the basic rule in Canadian law is that foreign documents (whether they establish the identity or not of a claimant) purporting to be issued by a competent foreign public official, should be accepted as evidence of their contents unless the Board has some valid reason to doubt their authenticity. [28] The RAD has therefore first considered information found in the National Documentation Package (NDP) available at the hearing before the RPD regarding the conditions that may affect the issuance of documents in Ethiopia.29 According to one 2013 report, Ethiopia remains one of the world's least developed countries, ranked 174 out of 187 in the 2011 UNDP Human Development Index.30 The Appellant testified that he is from the Ogaden region of Ethiopia. A report from the United Nations indicates that the Ogaden territory has been poorly developed for decades due to neglect from the central government.31 As submitted by the Appellant, a 2008 article states that, at a consultation workshop in Addis-Ababa in the same year and concerning the creation of a national registration system for vital events, the representative of the United Nations Children's Fund (UNICEF) in Ethiopia stated that "Ethiopia was the only African country with no law that demands for the registration of vital events" such as births.32 The RAD thus, infers that the standard that should be used when evaluating documents issued by the Ethiopian government or one of its state governments is not one of the developed world. [29] The recording of the hearing indicates that the Appellant testified that he was a student in Ethiopia until 2012. He explained that he did not attend school on a regular basis because the XXXX XXXX XXXX required him to be absent from school during each year. The Appellant testified that it was sometimes necessary to repeat courses which he had not successfully completed. He also testified that one's teacher provided a paper at the completion of a grade and he explained that such a paper could be used to obtain a government issued document. The Appellant testified that government certificates were normally issued on the completion of grade 10 and grade 12. The Appellant testified that while he was in Kenya, he sent photographs of himself to his family members and asked if they could obtain a national identification card for him. He explained that the government would not issue the card without the presence of the Appellant. The Appellant testified that his family members were however, able to obtain the educational documents. [30] The RAD thus, finds that the Appellant provided a reasonable explanation for the photographs on the educational documents being similar. The RAD also finds that the Appellant provided a reasonable explanation as to how the documents were obtained in 2014. The RAD notes that the Ministry of Education document indicates that the Appellant completed nine subjects; there is no indication that the grade completed was grade nine. Given that the Appellant testified that his school attendance was intermittent, necessitating the repeating of certain subjects, and the country conditions as referred to above, the RAD does not find it unreasonable that one document indicates the grade XXXX examination was completed in the year 2000 and another document indicates that the Appellant completed XXXX subjects in 2002 (EC). The RAD has examined the original document issued by the Ministry of Education and, as a result of the foregoing analysis, finds no reason to doubt its authenticity. The RAD draws no negative inferences with regards to the issuance of the document. The RAD therefore, assigns significant weight to the document issued by the Ministry of Education. Marriage Certificate and family photographs [31] The Appellant argues that the RPD member failed to assess his marriage certificate and family photographs. [32] The RAD has explained above that these documents were inadvertently misfiled at the Board after the Appellant's original counsel submitted the documents post-hearing. Thus, the RPD member cannot be faulted for failing to consider these documents. [33] The RAD has considered the marriage certificate and photographs. The marriage certificate was issued by the XXXX Supreme Court, in Somali Regional State of Ethiopia on XXXX XXXX, 2012.33 The certificate indicates that the Appellant's place of birth was "XXXX XXXX XXXX" and date of birth XXXX XXXX, 1989. This information coincides with information contained in the Appellant's Basis of Claim (BOC) form.34 The Appellant provided similar testimony at his hearing. The RAD notes that it reasonably assumes that "XXXX XXXX XXXX" on the marriage certificate is the shortened version of XXXX found in the BOC. The marriage certificate states that the Appellant married XXXX XXXX XXXX on XXXX XXXX, 2012.35 According to the port-of-entry (POE) notes the Appellant married XXXX XXXX XXXX on XXXX XXXX, 201236 and resided in XXXX, Ethiopia at that time.37 He provided similar testimony regarding his marital status at his hearing before the RPD. The marriage certificate has two photographs attached.38 The photograph of the groom bears a good likeness to the photograph39 of Appellant taken at the POE. The photograph of the bride bears a good likeness to a photograph40 the Appellant provided of his wife. The RAD has no reason to doubt the authenticity of the marriage certificate. The RAD, thus, assigns significant weight to this document. [34] The RAD has considered the photographs provided by the Appellant for his appeal. As stated in the previous paragraph, one photograph of the Appellant's wife bears a good likeness to the photograph of the bride on the marriage certificate. Other photographs are of an infant and a very young child whom the Appellant identifies as his two sons.41 There are also two photographs of a man, with a good likeness of the photograph of the Appellant at the POE, with the young child whom the Appellant identifies as himself with his first born son.42 Although photographs cannot establish personal and national identity, the RAD finds that the photographs aid in establishing the Appellant's identity as a married man with two young children. Ethiopian Kebele/Citizenship Card and Certification of City Land Ownership [35] The Appellant provided his mother's Ethiopian Kebele/Citizenship Card, issued XXXX XXXX, 2012,43 and a Certification of XXXX XXXX XXXX44 issued to the Appellant's mother by the XXXX XXXX XXXX XXXX XXXX XXXX on XXXX XXXX, 1998. [36] In her decision, the RPD member acknowledged that the citizenship card of "someone purported to be his (the Appellant's) mother"45 but the member found that this document did not establish the relationship between the card holder and the Appellant. The member also found that the card was insufficient to establish the Appellant's identity. The member also found the Appellant's inability to provide some kind of documentation to establish that he had lived in Ethiopia to be troubling. [37] The Appellant argues that once the RPD member found his educational documents as unreliable, she found his mother's Ethiopian identity card and land ownership document to not be probative. The Appellant pleads that he testified before the RPD that he had no need of an identity card while he lived in Ethiopia because he was a student and did not plan to leave the country. [38] The RAD finds the Appellant's arguments have merit. According to the recording of the hearing, the RPD member asked the Appellant a number of times why he did not have an identity card especially since his mother had been issued one. As the Appellant argued in his appeal, he testified that because he was a student he had no need of an identity card. According to information in the NDP identity cards are issued by 'kebeles' (neighbourhoods) to those eighteen and older, and by schools to students. However, there is no uniform identification document and only in the city of Addis Ababa must all those over the age of eighteen carry an identity card.46 Addis Ababa, the capital of Ethiopia, is over XXXX kilometres from the Appellant's home area of XXXX in the Ogaden region.47 The RAD is also mindful of information in the NDP, stated above, that the Ogaden region has been poorly developed for decades due to neglect from the central government.48 The RAD therefore, finds the Appellant's explanation for not ever having been issued an identity card, reasonable. [39] The RAD has considered the identity card of the Appellant's mother.49 The name on the card is the same as the name the Appellant provided in his BOC50. The card states that his mother's address is XXXX XXXX, which is again consistent with information in the Appellant's BOC. The RAD notes that the Appellant testified that he was born and lived in XXXX XXXX XXXX until 2012. The RAD has no reason to doubt the validity of the card. The mother's identity card states she is a citizen of Ethiopia. Proclamation No. XXXX XXXX 2003 on Ethiopian Nationality, Part Two, Acquisition of Ethiopian Nationality, found in the NDP, states that "Any person shall be an Ethiopian national by descent where both or either of his parent [sic] is Ethiopian".51 The RAD thus, gives significant weight to the card. [40] The Certification of XXXX XXXX XXXX, issued on XXXX XXXX, 1998, states that the Appellant's mother owns XXXX square metres of property in the city of XXXX .52 The RAD has no reason to doubt the validity of the document. The RAD gives some weight to this document as further evidence of the Appellant's mother residing in Ethiopia. Further New Evidence The letter from the XXXX and the Affidavit of XXXX XXXX XXXX While the letter does not identify the Appellant as a national of Ethiopia it does confirm, through XXXX XXXX, the XXXX XXXX XXXX XXXX XXXX board, the identities of the Appellant's family, including his father and mother, as nationals of Ethiopia, "from the Ogaden clan who inhabit the city of XXXX"53. In his affidavit Mr. XXXX provides a detailed explanation of how, when he met the Appellant in Canada, the Appellant provided him with his place of birth, tribal lineage and parents' names.54 Mr. XXXX states that before moving to Canada he lived in the same area as the Appellant's family and knew a man with the same name as that of the Appellant's father. Mr. XXXX states further that through a telephone call to a paternal uncle in Ethiopia he was able to confirm that the Appellant is the son of the man he knew in Ethiopia. The RAD finds that it has no reason to doubt the validity of the letter and the affidavit which provide evidence of the Appellant's personal and national identity. The RAD therefore, assigns substantial weight to the letter from XXXX and the affidavit from XXXX XXXX XXXX XXXX XXXX Written Declarations Under Oath [41] The RAD has considered the written declarations under oath from the Appellant's mother, XXXX XXXX, and his wife's brother, XXXX XXXX XXXX.55 Mr. XXXX provides information regarding his own ethnicity as an Ethiopian Somali and the familial relationship between his grandfather and the Appellant's grandmother, that of brother and sister. Mr. XXXX explains that he is writing the oath for the Appellant's mother because she is illiterate. The Appellant's mother gives evidence of her tribal lineage and that of her deceased husband, the Appellant's father; both are Ethiopian Somali. Ms. XXXX provides detailed information regarding the Appellant's birth place in Ethiopia and also his date of birth. She also includes the Appellant's tribal lineage and his religion. Ms. XXXX also provides evidence regarding the Appellant's problems with the Ethiopian authorities, including his three month detention, necessitating his hiding in XXXX and the subsequent detention of the Appellant's sister and death of his brother. The information provided by the Appellant's mother is consistent with information he provided at the POE, in his BOC and during his oral hearing before the RPD. The RAD notes that the Appellant included the envelope in which the declarations were mailed by XXXX XXXX XXXX from Ethiopia to establish the provenance of the documents. The RAD has no reason to doubt the validity of the two declarations. The RAD gives the declarations significant probative value. Birth Certificates of the Appellant's two sons, updated BOC, photographs [42] The Birth Certificate of the elder child, XXXX, indicates he was born in the XXXX XXXX hospital in Ethiopia on XXXX XXXX, 2013 to the Appellant and his wife, XXXX XXXX XXXX; the son's nationality is stated as Ethiopian.56 This information is consistent with information found in the Appellant's BOC57 and his oral testimony at his hearing before the RPD. The Certificate of Birth of the Appellant's younger son was issued by the Republic of XXXX XXXX XXXX XXXX, on XXXX XXXX, 2015. The Appellant and his wife are listed as the father and mother respectively.58 This information is consistent with the Appellant's viva voce testimony before the RPD as well as information contained in his amended BOC59. Two photographs each consist of a man, with a definite likeness to the photograph of the Appellant taken at the POE, with a toddler. Given the Appellant's evidence regarding his older child, the RAD has no reason to doubt that these photographs are of the Appellant with his son XXXX. The RAD gives significant weight to these documents. [43] As a result of the above analysis, the RAD finds that the Appellant has established his identity on a balance of probabilities. Credibility [44] Having accepted the Appellant's identity, the RAD will now consider the Appellant's credibility with respect to the well-foundedness of this claim. [45] Having listened to the recording of the Appellant's hearing before the RPD, the RAD finds that there were no serious contradictions in his oral testimony when compared to information found in the POE notes60 and his BOC.61 There were no obvious attempts to embellish his claim. [46] The RAD, thus, finds the Appellant to be a credible witness. Objective Evidence [47] The RAD will now consider the independent documentary evidence with regards to those of Somali ethnicity living in the Ogaden and those who have run afoul of the authorities in Ethiopia for XXXX XXXX XXXX XXXX XXXX XXXX. [48] The November 2013 United Kingdom Operational Guidance Note62 provides the following information regarding the actions of authorities in the Somali region of Ethiopia. Security forces were effective, but impunity remained a serious problem. The mechanisms used to investigate abuses by the federal police were not known. Numerous complaints of human rights abuses were lodged against the Somali Region Special Police. Several of its members reportedly were arrested for acts of indiscipline. The government rarely publicly disclosed the results of investigations into abuses by local security forces, such as arbitrary detention and beatings of civilians. Authorities regularly detained persons without warrants and denied access to counsel and in some cases to family members, particularly in outlying regions. Some detainees reported being held for several years without being charged and without trial. ... If the applicant's fear is of ill treatment / persecution by the state authorities, or by agents acting on behalf of the state, then it is improbable that they can apply to those authorities for protection. Where a category of applicant's fear is of ill-treatment/persecution by the state authorities, then internal relocation to escape that persecution will not generally be an option. [49] According to the annual report of 2013 from the Annual International Committee of the Red Cross (ICRC), in the Somali Regional State (SRS), non-international armed conflict was ongoing between special regional police forces, operating with the Ethiopian National Defence Force (ENDF), and the ONLF.63 [50] According to the 2013 Department of State (DOS) report,64 in 2010 the UN Committee Against Torture reported it was "deeply concerned" about "numerous, ongoing, and consistent allegations" concerning "the routine use of torture" by police, prison officers, and other members of the security forces - including the military - against political dissidents and opposition party members, students, alleged terrorists, and alleged supporters of violent separatist groups like the ONLF. While the Appellant did not allege that he was accused of supporting or being a member of ONLF, the RAD finds it reasonable that because he XXXX XXXX XXXX XXXX XXXX XXXX XXXX and subsequently detained, he could be at risk of further persecution. [51] Although the Somali regional government granted several organizations access to Nogob (formerly Fik) to start humanitarian operations, access to areas in the Somali Region remained challenging due to continuing clashes between government forces and the ONLF.65 [52] A 2012 report from the United Nations (UN)66 indicates that a UN humanitarian assessment mission to the Ogaden region found a "pervasive fear for individual safety and security" among the population caught between the government and the ONLF. They expressed concerns about deteriorating food security, protection and healthcare in the region. [53] In 2010, parliament named the ONLF as "terrorists" alongside international groups like Al-Qaeda and Al-Shabab. Ethiopian authorities launched a campaign to prosecute people with perceived ties to these three organizations. In its 2011 country report, Amnesty International said that by November 2011, 107 opposition politicians, activists and journalists were prosecuted under the law; some later received severe sentences.67 Given the authorities attitude towards the ONLF, the RAD finds it reasonable to believe that the Appellant, a person of Somali ethnicity from the Ogaden region who XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, would be a risk of further persecution. [54] A 2008 Human Rights Watch report said the government's counter-insurgency operation in the Ogaden had involved "violations of human rights, violations of the laws of war that amount to war crimes, and crimes against humanity against the civilian population. These have included widespread forced relocations of civilians, destruction of their villages, willful killings, and summary executions, and torture, rape, and other forms of sexual violence."68 [55] The RAD finds that the objective evidence supports the Appellant's subjective fears. The RAD therefore, finds that there is more than a mere possibility that the Appellant would be persecuted if he were to return to Ethiopia. DETERMINATION [56] The Appellant is entitled to the presumption of truthfulness. On a balance of probabilities, he has established his identity. The RAD finds the evidence in the Appellant's POE notes, his BOC and his oral testimony at RPD hearing is largely consistent. [57] The RAD finds that the Appellant has established, with credible evidence, a well-founded fear of persecution in Ethiopia. As the state is the agent of persecution, he cannot expect adequate state protection in his particular circumstances, no can he avail himself of a viable internal flight alternative. CONCLUSION [58] Pursuant to Section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee, as he has a well-founded fear of persecution on the basis of his ethnicity and his perceived political opinion. This appeal is allowed. (signed) "Lesley Mason" Lesley Mason June 15, 2015 Date 1 As enacted by S.C. 2001, c. 27 [IRPA]. 2 IRPA, supra, footnote 1 3 RAD's Record, Appellant's Record, Statements, Letter from OSCAO, p. 15. 4 Ibid., pp. 20-23. 5 RAD's Record, Appellant's Record, Statements, Marriage Certificate, p. 19 [Marriage Certificate]. 6 Ibid., p. 17. 7 RPD's Record, Exhibit RPD-2, Letter to Appellant and his former counsel. 8 RPD's Record, Exhibit 1, Port of Entry notes, pp. 28-30. 9 Ibid., p. 15. 10 Ibid., pp. 32A-32C. 11 Rule 29(3), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257 [RAD Rules]. 12 Ibid., at Rule 29(4). 13 RAD Rules, supra, footnote 11. 14 RAD's Record, Exhibit P-3, Letter from Appellant's counsel. 15 RAD's Record, Appellant's Record, Memorandum, p. 63. 16 RAD Rules, supra, footnote 11. 17 RAD's Record, Exhibit P-5, Letter from Appellant's counsel. 18 RAD Rules, supra, footnote 11. 19 RAD'S Record, Exhibit P-6, letter from Appellant's counsel. 20 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799 [Huruglica]. 21 Huruglica, supra, footnote 20, at para. 54 22 Ibid., at para 55 23 Huruglica, supra, footnote 20 24 RPD's Record, Exhibit 4, Certificate of Grade XXXX, p. 64. 25 Ibid., p. 66. 26 RPD's Record, RPD's Reasons, p. 5, para 10. 27 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 28 Rasheed, Sohail v. M.C.I (F.C., no IMM-1956-03), Martineau, April 21, 2004; 2004 FC 587. 29 RPD's Record, Exhibit 3, National Documentation Package (NDP for Ethiopia (March 14, 2014) [NDP]. 30 Ibid., at item 2.5. 31 Ibid., at item 4.5. 32 Ibid., at item 3.2. 33 Marriage Certificate, supra, footnote 5. 34 RPD's Record, Exhibit 2, Basis of Claim, p. 10, questions 1c) and 2(a). 35 Marriage Certificate, supra, footnote 5. 36 RPD's Record, Exhibit 1, Point of Entry documents, pp. 34 and 35, questions 1 and 16 [POE documents]. 37 Ibid., at p. 45, question 8. 38 Marriage Certificate, supra, footnote 5. 39 POE documents, supra, footnote 56, at p.20. 40 RAD's Record, Appellant's Record, Photographs, p. 20. 41 Ibid., pp. 20-23. 42 RAD'S Record, Exhibit P-6, letter from Appellant's counsel. 43 RPD's Record, Exhibit 5, pp. 68-69. 44 Ibid., pp.70-71. 45 RPD's Record, RPD's Reasons, p. 7, para 19. 46 NDP, supra, footnote 29, at item 3.5. 47 Ibid., at item 1.1. 48 Ibid., at item 4.5. 49 RPD's Record, Exhibit 4, pp. 68-69. 50 RPD's Record, Exhibit 2, Basis of Claim, p. 15, question 5(b). 51 NDP, supra, footnote 29, at item 3.4. 52 RPD's Record, Exhibit 4, XXXX XXXX XXXX XXXX, pp. 70-71. 53 RAD's Record, Appellant's Record, Statements, Letter from OSCAO, p. 15. 54 RAD's Record, Appellant's Record, Statements, Affidavit of the Appellant, pp. 29-32. 55 RAD's Record, Exhibit P-5, Letter from Appellant's counsel, Written Declaration Under Oath. 56 RAD'S Record, Exhibit P-6, Letter from Appellant's counsel, Birth Certificate. 57 RPD's Record, Exhibit 2, Basis of Claim, p. 15, question 5(d). 58 RAD'S Record, Exhibit P-6, Letter from Appellant's counsel, Birth Certificate. 59 Ibid. 60 RPD's Record, Exhibit 1, Port of Entry notes, pp. 20-50. 61 Ibid., pp. 9-19 . 62 NDP, supra, footnote 29, at item 1.4. 63 Ibid., at item 1.5. 64 Ibid., at item 2.1. 65 Ibid. 66 Ibid., at item 4.5. 67 Ibid. 68 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-02602