TB6-10426

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 : TB6-10426 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 15, 2016 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Paul Vandervennen 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 or a person in need of protection. In the alternative, the Appellant asks the RAD to refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugeefood Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. BACKGROUND [3] The Appellant alleges that after speaking critically of the government's policy at the local marketplace she was arrested by the Ethiopian police who accused her of being a member of the Oromo Liberation Front (OLF). After being interrogated and tortured while in detention, she was released and informed that she could be ordered to return for additional questioning. She subsequently obtained a visa to visit her daughter in Canada, but ended up making a refugee claim after her family in Ethiopia informed her that the police had come to her home wanting to question her. [4] Her claim for protection was heard on July 12, 2016, and in a decision of July 19, 2016, the RPD rejected the claim, finding that the Appellant was not credible. [5] The Appellant submits the following issues as a basis for his appeal: "Did the RPD err in finding that the Appellant's evidence was not credible?" 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 decisions 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. ANALYSIS OF THE MERITS OF THE APPEAL Credibility Testimony [7] The RPD found the Appellant's testimony to be vague, hesitant and inconsistent, and drew a negative inference with respect to her credibility. [8] The Appellant submits that the RPD's negative credibility finding regarding her testimony was unfair, that her evidence was clear and straightforward, and that there is no valid basis for a negative inference. [9] The RAD has reviewed the recording of the hearing and finds that while at certain points the Appellant's testimony is confusing, the confusion typically concerned dates of events. The RAD finds that the recollection of specific dates at a refugee determination hearing is fraught with difficulties. Aside from the challenges of interpreting a claimant's testimony from their native language to English in a high stakes setting, the difficulties of remembering specific dates and timelines have been well documented. The RAD finds that there is insufficient evidence with respect to the manner in which the Appellant testified to draw a negative inference with respect to her credibility. The Appellant's Profile [10] The RPD expressed concerns with the Appellant's alleged profile as a "political enemy" 2 of the government. The RPD noted that the Appellant indicated that she had never been involved in politics or political activities, and had never been a member or supporter of any political party. The RPD found no evidence that she was a well-known or influential member within the Oromo community and noted that her husband and daughter continue to work for the government despite her own alleged difficulties with the same government. [11] The RPD noted that the Appellant's allegation of political persecution revolves around her work of XXXX XXXX XXXX XXXX XXXX XXXX. It found, however, that her responses related to questions about her business and work were hesitant, evasive, and inconsistent.3 [12] The RPD noted that the Appellant had initially stated at the hearing that she had never worked, but that in her visa application where it asked for her employment history during the period 2001-2015, she wrote "N/A,"4 and in the Family Information Section, under "Present Occupation" she indicated "housewife."5 In the Appellant's Basis of Claim (BoC) form, however, she has written that she had a place in the market where XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.6 The RPD also had concerns with the inconsistent responses at the hearing to questions about how long she had operated her business. [13] Both the RPD and the Minister, who intervened in the claim,7 determined that the omissions and inconsistencies in the Appellant's evidence concerning her employment are significant. Given that the alleged persecution arose as a result of her interaction XXXX XXXX XXXX in her work, the RPD found that the omissions and inconsistencies in the Appellant's evidence concerning her employment undermined her credibility. [14] The Appellant submits that the RPD erred in drawing a negative inference regarding her responses in various places regarding her employment. When she wrote "N/A" in the question on her Canadian visa application which asked for details of her employment and when she testified that she had never worked, she meant that she had never worked for anyone. She was self-employed, working at the marketplace XXXX XXXX XXXX. [15] The RAD finds that while it is plausible that she misunderstood the question, thinking that she was being asked if she had ever worked for anyone. It also notes that she indicated "self-employed" as the occupation of one of her daughters, who owns a shop in Ethiopia, but indicated "housewife" as her occupation on the same form.8 Even though she too operated a shop as indicated by the business licence she has provided.9 The RAD further notes that the Appellant's Residence Identification card lists as her Occupation: "Trade"10 and not "housewife," as she indicated in the Canadian documents. [16] The RAD has considered the Appellant's evidence and her testimony when confronted with the inconsistencies regarding her employment. When asked to explain why she had stated that she had "never worked," she replied that she meant that she was not employed by the government or anyone else. When it was pointed out that her visa application also indicated that she had never worked, she replied: "I started this little thing." Later in her testimony, she explained that she would XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX to the Market on XXXX XXXX XXXX XXXX XXXX. [17] The RAD concludes that the Appellant had a small retail operation that she ran on the side, for which only in 2010 she was required to obtain a business licence. The licence indicates that the capital worth of the business was XXXX XXXX XXXX BIRR which converts to approximately XXXX CAD and reinforces the RAD's view that indeed this XXXX XXXX XXXX XXXX XXXX. Her indication of her occupation in the visa application as "housewife" is perhaps an indication that she saw herself primarily in that role, given that she XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [18] At one point in the hearing, in an effort to explain possible discrepancies, she indicated that it was her son-in-law in Canada who had completed the visa application form. The RAD finds the Appellant's explanations for apparent discrepancies regarding her employment to be plausible. More significantly, however, the RAD finds that her testimony and evidence regarding her business and work, undermine the profile she has attempted to establish as a "political enemy of the government." They also cast significant doubt on her allegations that she was persecuted and is wanted by agents of the state in Ethiopia. [19] According to the Appellant's BoC,11 she spoke to farmers and friends, both at the market and in her neighbourhood, about her opposition to the government's Master Plan which involved the expropriation of land belonging to the Oromo people and to the government's brutal repression of protests against the Plan. She alleged that she was subsequently arrested, detained, tortured by the Ethiopian police during a XXXX week period, and accused of being a member of the OLF, which the government considers to be a terrorist organization. She further alleged that the police have returned to her house on XXXX separate occasions, looking for her since she has been in Canada. She testified that she fears she will be arrested and possibly even killed if she returns to Ethiopia. [20] At the hearing she was asked why the police wanted her in jail. She replied: "The government took Oromo land and I opposed that and I was accused of being a member of OLF." When asked about "how" she had opposed the Master Plan, she replied that the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX told her about how the government had taken their land, that the farmers had opposed the government and that some had disappeared, some were killed, and others had their homes bulldozed. She indicated that it wasn't just her, but that all Oromos were opposed to the government's actions. She was asked why the government would be interested in her. She replied: "I talked to Oromos and asked: What is the government doing? Why is the government not compensating them when they take their land? Spies overheard me and they started to follow me." The extent of the Appellant's opposition to the government appears to be a conversation or conversations with a few farmers XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Her small business operation and minor interaction with a few farmers reflect the scope of her alleged opposition, which even if believed, is extremely minor. [21] The RAD has reviewed documentary evidence12 regarding Oromo opposition to the government's Master Plan. It acknowledges that the government's response to opposition has been quick and brutal. It notes, however, that government action was focused on individuals involved in protests and not on those who may have made comments of disagreement with the policy at markets or around their neighbourhoods. The Appellant's alleged opposition to the Master Plan consisted of comments made to local farmers: "What is the government doing?" and "Why is the government not compensating them when they take their land?" She was not involved in any protests, demonstrations, or in any other overt political opposition. The RAD finds the alleged response from police to her relatively tame comments, improbable. Even if it were to accept her allegation regarding her XXXX week detention and torture, which it does not, it finds it equally improbable that the police would return to her home on XXXX separate occasions after having released her. The RAD further finds her allegation of renewed police interest in her, an attempt to establish a sur place claim. Supporting documents [22] The Appellant has provided a number of documents supporting her allegation of persecution by the Ethiopian police, namely a Medical Certificate from Ethiopia,13 Police summons,14 Medical Assessment in Canada.15 [23] The RPD had a number of concerns with the documents from Ethiopia. It noted that in the medical certificate the spelling of the hospital name in the letterhead, "XXXX XXXX" does not match the spelling of the hospital name on the hospital stamp, "XXXX XXXX. With respect to the police letter, the RPD noted that the wording on the letterhead, "XXXX XXXX XXXX XXXX XXXX XXXX," does not match the wording on the police stamp, "XXXX XXXX XXXX XXXX XXXX XXXX." It had also had concerns that the summons did not conform in content or form to the description in the country documentation, and questioned why a police summons would be signed by a "Human Resource Development Director." As a result of irregularities in the Ethiopian documents, the RPD gave them little weight. [24] The Appellant submits that the RPD erred in expecting perfection from documents issued in a poor third world country. She further submits that with regard to the police summons, it was not issued by the court nor does it involve a criminal offence which is the basis of the country documentation referenced by the RPD. Rather, the document is a notice from the police requesting that she appear for questioning. [25] While the RAD finds that the summons from police was not issued by the Court and therefore should not be expected to follow a standard form or content, it finds there to be sufficient irregularities to question the authenticity of the document. In addition, to the specific irregularities identified by the RPD, the RAD finds the wording of the summons curious, in particular, the statement: "Consequently, effective XXXX XXXX, 2016 we have passed an order for her arrest and the police commission will not be responsible on any action taken against her for not complying to our orders."16 The summons (although she's not really being summoned) sounds more like a notice that an arrest warrant will be forthcoming. The police commission, however, "...will not be responsible on any action taken against her for not complying to our orders." "The orders," one would presume, would be her arrest. No subsequent arrest warrant was issued and no further action has apparently been initiated by the police since this "summons" was issued in XXXX 2016 - some XXXX months ago. The RAD therefore assigns no weight to the police document. [26] The RAD has also reviewed the medical certificate from Ethiopia and also agrees that there is a reasonable expectation that at least the name of the hospital should be consistently spelled on its letterhead and on its stamp - even for a so-called "poor third world country." The RAD finds that even if one accepts the certificate as authentic, there is insufficient evidence to corroborate the Appellant's allegation that she was stabbed with a bayonet. [27] The RAD also reviewed the assessment from the Canadian doctor.17 The doctor is a family physician with "extensive training in psychotherapy." Despite having "a wide-ranging discussion, which involved the topic of healing from trauma," with the Appellant and repeating much of the detail of the Appellant's alleged torture, the doctor makes a finding only on the Appellant's physical condition. As she stated in the assessment: "I will limit my report on her physical exam to the relevant findings." The assessment makes only one finding: "Her physical examination findings are consistent with her story of her detainment." Clearly, despite her "extensive training in psychotherapy," the doctor is unable or unwilling to offer any assessment of her psychological condition. [28] In Danilov, the Court has found, with respect to the assessment of a physician's evidence and the question of the assessment of credibility, that: "opinion evidence is only as valid as the truth of the facts on which that opinion is based."18 The RAD finds that, although the Appellant may be experiencing XXXX XXXX XXXX, the symptoms are not necessarily related to the causes described by the Appellant in her evidence. Accordingly, the RAD gives the doctor's assessment no weight in corroborating the allegations of persecution made by the Appellant or in assessing her credibility. Delay in Claiming [29] Both the RPD and the Minister found the Appellant's delay in claiming and allowing her visitor status to lapse, are indicative of a lack of subjective fear which undermines her credibility. [30] The Appellant submits that she had indicated in her BoC that she believed that she had visitor status in Canada for two years because she was in possession of a super-visa, as explained to her by her daughter.19 There is nothing in her passport or on the visa itself that indicates the length of stay for which she was authorized to stay in Canada, so she assumed she was in status. She further submits that when the situation in Ethiopia did not improve and when she was informed by her children that the police had delivered a summons for her, she initiated a refugee claim. [31] The RAD finds the Appellant's explanation for her delay in claiming to be reasonable and does not find that the delay sufficient to indicate a lack of subjective fear. Well-foundedness of fear [32] The RAD finds that the Appellant does not have a well-founded fear of persecution. It does not find her credible, her allegation that she was detained and tortured by the Ethiopian police. That they have subsequently come to her home on XXXX separate occasions to question her after she was released. Instead, the RAD finds that the Appellant has come to Canada to serve as a care-giver for her daughter's children. [33] The RPD pointed out to the Appellant at the hearing that the letter accompanying her visa application,20 indicated that she was coming to Canada to help her daughter with her third child. She replied: "I had to say that to get the visa." When asked if therefore what she stated in the letter was not true, she replied: "No, it's true. I came to help her (the daughter). She said I'm having a baby and you can come and rest here." When asked about her previous visit to Canada, she replied: "Last time, yes I came to help her." [34] The Appellant submitted that she had stated at the hearing that she did not want to remain in Canada, but has been forced to because of the danger she faces if she returns to Ethopia. She further indicated at the hearing that there is nothing that keeps her here and that she has left her home, all of her property, and everything she has in Ethiopia. [35] The RAD recognizes that the Appellant has left her home and possessions, as well as her family, but also recognizes that were she granted refugee status and permanent residence in Canada, she would be free to travel to Ethiopia and then return, noting that she had no problem exiting Ethiopia when she left in 2015. [36] The RPD noted that her husband and children, have not experienced any difficulties, despite her alleged profile as a political opponent of the government. Indeed, both her daughter and husband continue to work for the government. [37] The Appellant submits that she is the only one who is ethnically Oromo, and that is why the other members of the family have not had any problems. [38] The RAD finds that even though her husband and children are not Oromo, had the Appellant had the political profile she has alleged and had she been wanted by the police, as indicated by the police document she has provided, it is unlikely that her family would not have suffered some repercussions. As well, the difficulties that she alleges have arisen, not because she is Oromo, but because she spoke out against the government's policies on Oromos. CONCLUSION [39] The RAD finds that the Appellant has not provided sufficient trustworthy, credible evidence to demonstrate that her stated fear of persecution is well-founded. [40] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. (signed) "Anthony da Silva" Anthony da Silva November 15, 2016 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, Reasons and Decision, at p. 5, para. 11. 3 Exhibit P-2, Appellant's Record, Reasons and Decision, at p. 6, para. 13. 4 Exhibit RPD-1, RPD's Record, at p. 146. 5 Exhibit RPD-1, RPD's Record, at p. 152. 6 Exhibit RPD-1, RPD's Record, at p. 14, q. 2(a). 7 Exhibit RPD-1, RPD's Record, at pp. 113-116. 8 Supra, footnote 4. 9 Exhibit RPD-1, RPD's Record, at pp. 164-165. 10 Exhibit RPD-1, RPD's Record, at pp. 160-161. 11 Exhibit RPD-1, RPD's Record, at pp. 14-19. 12 Exhibit RPD-1, RPD's Record, at pp. 168-174; National Documentation Package (NDP) for Ethiopia (29 April 2016), item 13.4. 13 Exhibit P-2, Appellant's Record, p. 157. 14 Exhibit P-2, Appellant's Record, at pp. 166-167. 15 Exhibit P-2, Appellant's Record, at pp. 177-180. 16 Supra, footnote 13. 17 Supra, footnote 14. 18 Danailov (Danailoff), Vasco (Vassil) Valdimirov v. M.E.I. (F.C.T.D., no. t-273-93), Reed, October 6, 1993. 19 Exhibit RPD-1, RPD's Record, at p. 19, q. 2(h). 20 Exhibit RPD-1, RPD's Record, at p. 154. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-10426