MB5-06121

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 : MB5-06121 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Québec Appel instruit à Date of decision February 29, 2016 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the person who is the subject of the appeal Khurshed Chowdhury Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] Mr. XXXX XXXX XXXX, who is a XXXX year-old citizen of Ethiopia, is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant has presented new evidence and has requested an oral hearing. DETERMINATION OF THE APPEAL [2] In this claim, for a number of reasons, the RPD did not believe that the Appellant was at risk of persecution or at risk for an Immigration and Refugee Protection Act (IRPA) section 97 reason because it concluded that the Appellant did not meet his burden of establishing that his allegations were sufficient to support a conclusion that he was in need of Canada's protection. I am in agreement with this assessment. Pursuant to ss. 111(1)(a) of IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that Mr. XXXX XXXX XXXX is neither a "Convention Refugee" pursuant to s. 96 of IRPA nor a "person in need of protection" pursuant to s. 97 of IRPA. BACKGROUND [3] The Appellant sets out that he is XXXX years old and states he was born in Wonago and his family lives in Dilla, Gedeo Zone of Ethiopia. The Appellant alleges that he is at risk of persecution or a risk as understood in s. 97 because in XXXX 2010 he was allegedly caught "discussing about politics" on a taxi in Addis Ababa by a 'government security officer'. The Appellant alleges that he kept a low profile after his name was recorded by this security official. [4] The Appellant alleges that after he became a XXXX XXXX he phoned home in April 2015 and discovered that security officials had come looking for him in Dilla where his father lives. The Appellant alleges they wanted to arrest all the young men who opposed the government. [5] After the Appellant arrived in Canada on April 30, 2015 on this merchant ship the Appellant left the vessel to lodge a protection claim. The RPD heard his claim and in a decision dated September 16, 2015, RPD denied the claim. This decision was appealed by submitting a Notice of Appeal, which was received by the RAD on October 27, 2015. SUBMISSIONS [6] The Appellant argues that the RPD erred in its analysis of the Appellant's claim because it first of all did not explicitly conclude on the Appellant's credibility. Even if the RPD can be viewed as having made a credibility finding, this finding, such as it is, is not consistent with the Appellant's testimony and the objective documentary evidence. [7] The Appellant also argues that the RPD erred by not recognizing or addressing the Appellant's allegations with respect to the fact that if he returns to Ethiopia he faces a risk of persecution because he is a member of the Gedeo tribe. The Appellant alleges that this group is one of many groups which is at risk of persecution because of the efforts of the Tigray people, who are alleged to monopolize power in modern Ethiopia, to advance the interests of their members. [8] The Appellant argues that the absence of an interpreter during the hearing was a factor such that it may have 'affected' the outcome and specifically may have led to an adverse credibility assessment. The Appellant argues that any competent counsel would have advised using an interpreter but in this case the Appellant was unrepresented at his IRB hearing. The Appellant argues that the absence of an interpreter is an issue of procedural fairness in this case. [9] In terms of an outcome from this appeal, the Appellant seeks to have the RPD decision 'set aside' and the Appellant seeks to be recognized as requiring Canada's protection. ROLE AND FUNCTION OF THE RAD [10] With respect to the role and function of the RAD, in reviewing the RPD decision, Justice Phelan in Huruglica1 states that the RAD "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". Justice Phelan also suggests that while the RAD might show some deference on a credibility assessment and/or where the RPD enjoys a particular advantage in reaching such a conclusion, in other areas, such as an assessment of country conditions evidence, the RAD need not be deferential. [11] In Njeukam,2 Justice Locke references Huruglica and suggests that "Except in cases where the credibility of a witness is critical or determinative or when the RPD has a particular benefit from the RAD to draw a specific conclusion, the RAD must not give any deference to the analysis of the evidence made by the RPD". [12] Following Huruglica and Njeukam, I conclude that in this appeal, where it turns on questions of fact, I must show a degree of deference to the RPD with respect to its credibility assessment. I recognize, however, that I must also provide my own assessment of the evidence to reach my own conclusion on this appeal. With respect to issues which turn on questions of mixed law and fact, specifically the RPD's assessment of country conditions in Ethiopia, or on questions of law, such as questions of procedural fairness, I must reach my own conclusion based on my own assessment of the evidence and I do not need to show deference to the RPD's conclusions. NEW EVIDENCE AND REQUEST FOR AN ORAL HEARING [13] New evidence has been introduced in this appeal based on s. 110(4). This evidence includes new Exhibits identified from Exhibit A to Exhibit I. The Appellant states that this material 'did not exist' or was "not available to me" prior to the date of the RPD decision (Appellant's Record, p. 17). [14] With respect to Exhibit A (Appellant's Record, p. 19), this is a letter from the Regina Ethiopian Association Dated October 29, 2015 which is a 'recommendation' from the group to accept the Appellant as a refugee. I note that this letter contains references to the alleged plight of the Gedeo tribe and is dated from after the RPD decision. It is therefore new and accepted as evidence. [15] Exhibit B is allegedly a letter from the Gedeo People's Democratic Organization (GPDO) which notes that the Appellant, [...] participated in various GPDO's political meeting and rallies in the districts of Wonago and Dilla (Southern Region). He has also persistently given donations GPDO direly needed. Aware of Habtamu's support to GPDO, and also of his father's role as one of the GPDO's political activists in Wonago district, the ruling party cadres have warned Habtamu to withdraw his support to GPDO, and to join the ruling party instead (Appellant's Record, p. 20). [16] Exhibit C is allegedly a letter from the Appellant's father setting out in detail the father's knowledge of the risk faced by his son, his own alleged history as a member of the GPDO and additional information on events in the area since he last spoke to his son (Appellant's Record, pp. 21-23). Exhibit D is also included which is allegedly the membership card of the Appellant's father in the GPDO (Appellant's Record, pp. 24-25). [17] Exhibit E begins with a document (Appellant's Record, p. 26) which attests to the translation proficiency of the translator, identified as XXXX XXXX. As part of Exhibit E there are two additional documents. The first document is written in Amharic and is allegedly from GPDO. It is dated in the header as 10/03/92 in Arabic numerals and is identified by the translator as 'exhibit a' (Appellant's Record, p. 27). Also part of Exhibit E is the translation of 'exhibit a' which is identified as 'exhibit b' (Appellant's Record, pp. 28-29) although for some reason the date in the header on the translation is given as 20/11/1999. The thrust of the letter, which is addressed to the Appellant's father, is a request for money by the GPDO along with a request for support given the alleged privations against the GPDO by the government and the need to mobilize given the "2000 G.C. national election" (Appellant's Record, p. 29). I note that both Exhibit B and exhibit b of Exhibit E were allegedly signed by XXXX XXXX as 'Chairman' of GPDO. [18] I note that the Appellant argues that "as a self-represented litigant at RAD he could not put his mind to possible documents that he could gather in support of his claim. He recently obtained these documents and requests that these documents be considered for a fair determination of his claim" (Appellant's Memorandum, paragraph 8j). I note that this material relates to events and situations which predate the hearing and there is no argument as to why this material was not made available earlier aside from a general assertion that time was short. [19] But even if I were to set aside the problem that with the exception of Exhibit A this material is not new and the reason for its late appearance is open to question, to my mind an additional and fatal consideration with respect to Exhibits B to E is that this material is not credibility. In listening to the full hearing I conclude that if the Appellant was active in the GPDO to the extent set out in Exhibit B, he would have stated this during the hearing which he did not. In fact, quite the opposite. The Appellant was specifically asked whether he was involved in politics prior to the alleged attack on his person in 2010. The Appellant responded clearly and directly that while he was knowledgeable about politics, he was 'not active' and that he had "not participated in any kind of politics" (Oral hearing at minute 30) prior to the attack. After the attack he explicitly states that he "tried to be isolated from any kind of government' (Oral hearing at minute 32) and establishes that he avoided all political activity after the assault in 2010. Near the end of the hearing the Appellant was asked specifically about his political activity related to the GPDO and the Appellant responded that he was not active and states explicitly that he only gave a small donation (Oral hearing at minute 1:08). This is also consistent with what the Appellant told CIC officials during a Refugee Claimant Interview on June 24, 2015 (RPD Record, p. 64). I find Exhibit B not credible and it is not accepted. [20] With respect to Exhibit C, D and E, these include a basic claim that the Appellant's father was active in GPDO from an early date and that this has exposed him (the father) to past persecution and the possible a risk of future persecution. I find these documents also lack credibility. With respect to the some reference to the participation of his father in GPDO, there was no mention of this in the BOC or during the hearing. I conclude that if these documents were true the Appellant would most likely have mentioned at some point in the hearing this clearly important and relevant fact. [21] Of course there is an explanation for this lack of knowledge on the part of the Appellant in the letter from the father. This is that the Appellant was not told about the father's past activities in the GPDO. The letter from the father states that: I had a lot of stories in the past while XXXX was a child, which I still didn't tell him so as to protect him from emotional moves against the regime that might put his life further in danger while he was in Ethiopia. But now, it is my responsibility to disclose the past stories I had, just to protect my him from being sent home and getting killed or probably jailed by the Ethiopian Government. (Appellant's Record, p. 22). [22] I cannot accept this explanation. It is simply hard to believe that if the facts in the letter were true that the Appellant would not know anything about his father's past as a member of GPDO. It must be kept in mind that the Appellant is 29, not alienated from his family, clearly educated and has traveled extensively in Ethiopia including living in the Tigray District from 2004-2009 (RPD Record, p. 29). The Appellant has also traveled outside Ethiopia. To this must be added that the basic thrust of the hearing is that the Appellant made little if any reference to a risk that arises because of his association to GPDO or even because he was a member of the Geodo tribe. The Appellant is even clear that the government would not know that he had donated money to GPDO (Oral hearing at minute 1:06). The risk identified by the Appellant during the hearing was that he was at risk because he was caught criticizing the government and now there was an election so the government was arresting anyone that might oppose or had opposed the government. There was no mention of a risk to his father or a risk to people in the area because of some government 'minorities' policy. [23] I note that the RPD gave the Appellant every opportunity to expand on the risk faced by the Appellant and at no point did the Appellant go much beyond the logic or allegations found in the BOC. The Appellant's testimony on the November 2010 incident (Oral hearing at minutes 17-22) is the same description found in the BOC. When given an opportunity to expand upon any element of the allegations the Appellant returned to BOC allegations. For example, at the end of the hearing the Appellant was asked if there was anything more that might be added and the Appellant stated that perhaps the security forces were after him because he might be suspected of communicating with opponents of the government outside Ethiopia (Oral hearing at minute 1:19). This is consistent with the answer given to question 3(b) of the BOC (RPD Record, p. 9). I conclude that Exhibits C, D, and E are not credible because if this evidence had a base in reality some mention of the alleged facts set out in these documents would have been made in the BOC or testimony and they were not. Therefore, this evidence is not accepted into the record. [24] In addition to the above the Appellant provides additional documentation which includes Exhibit G, which is an IRB RIR dated February 7, 2000 on the situation faced by the Borena Tribe in Ethiopia. This document is not new and I can see no argument advanced as to why it was not provided prior to the RPD decision. It is therefore not accepted into the record. [25] An additional document provided is Exhibit H which is an Amnesty International report on the government's treatment of protestors dated December 10, 2014 (Appellant's Record, p. 34-36). There is also an Exhibit I which is another IRB RIR dated July 23, 2012 related to the Unity for Democracy and Justice Party of Ethiopia. I must reject this documentary material because with respect to Exhibit H and I, this material is not new. Furthermore, I note that the Appellant has provided other documentation which addresses the issue of a government crackdown on opposition (RPD Record, pp. 127-132) and there is no argument as to what in particular I should look at in these articles which would support some aspect of the Appellant allegations. [26] Finally there is a website reference in the Appellant's Affidavit to a documentary video on the 'overall situation of Ethiopians' (Appellant's Record, p. 17). The Appellant provides no information on the providence of this video or some indication of the relevance of this video to his claim. This new evidence is also not accepted. [27] Overall I have accepted only Exhibit A and although I am accepting this material, I do not find that there is anything in this material which would justify allowing or rejecting the Appellant's refugee claim, therefore I am denying the request for an oral hearing under s. 110(6). ANALYSIS OF THE MERITS OF THE APPEAL Issue 1: Did the Board err by not making a credibility assessment and if it did, did it err in its credibility conclusion? [28] The Appellant argues that the RPD failed to make a credibility assessment or if it did that this assessment was faulty. [29] I find the RPD's credibility conclusion was clear. The RPD accepted the Appellant's allegations as credible but did not find the Appellant's conclusion as to the risk that he faced, credible. The RPD notes that the Appellant identified a single incident in 2010 when he was beaten up by a 'security official' and had is name and ID recorded by having it hand written in a notebook. The RPD accepts that Appellant may have had problems while working at his XXXX job but could find nothing to attribute this to some form of state security targeting. After the Appellant left the employment of the XXXX in 2011, the next incident is in Dilla when three security officials asked about him at the door of his family home in the lead up to a national election. [30] I note that the Appellant's testimony is completely consistent with the BOC allegations and it is fair to say that little if anything was added during testimony. Given the totality of the allegations, contrary to the Appellant's own assessment, the RPD concludes that the Appellant would not face a serious possibility of persecution if he were to return to Ethiopia. For example the RPD could not conclude based on the Appellant's testimony whether the appearance at the door of the Appellant's home of three security officials was simply a random event. The RPD notes that the allegations have the Appellant being noticed by a security official on one occasion years previously in a different city and the Appellant does not have a profile which would be consistent with government targeting or even them taking an interest (RPD Record, p. 5). Based on a reading of the BOC and listening to the testimony I am in agreement with the RPD's assessment that the claimant's allegations of facing a serious possibility of persecution or a risk as understood in s. 97 if he were to return to Ethiopia, have not been met. [31] I recognize that in this appeal the Appellant has introduced entirely new or revised allegations (i.e., father is a member of GPDO) and risks but I must conclude that this new evidence with revised allegations are not consistent with the evidence before the RPD and cannot be accepted. [32] I note that the Appellant is also alleging that the RPD was somehow biased or had a closed mind. The Appellant draws attention to a statement of the RPD to the effect that 'credibility is an issue in all refugee claims' (Appellant's Memorandum, paragraph 7g). [33] I cannot accept the logic of the Appellant. The RPD in the hearing is simply stating what is a fact in the RPD hearing process and what the Appellant himself alludes to earlier in his Memorandum. The RPD must assess the credibility of the allegations, which is to say that in any RPD hearing, credibility is an issue. In this case the RPD accepts as credible the Appellant's allegations but not his understanding of his risk faced. Issue 2: Did the Board err by not assessing the Appellant's claim of persecution based on membership in a social group? [34] The Appellant argues that the RPD did not recognize or did not effectively "explore" (Appellant's Memorandum, paragraph 8e) that the Appellant was claiming based on an allegation that the government of Ethiopia was persecuting the Gedeo population. [35] I cannot accept this argument because in my opinion the RPD reviewed this risk factor and found that the Appellant simply did not make this case. In listening to the hearing testimony, I note that the RPD gave the Appellant every opportunity to identify this as a risk factor. Regardless I must agree with the RPD that 'tribal affiliation' was not raised as an issue or problem area (RPD Record, p. 3). It was also not mentioned in the Refugee Claimant Interview, only that "security people were looking for me" (RPD Record, p. 62). Put simply, I must agree with the RPD that as set out in the evidence this is solely a claim based on political opinion. [36] I would add that even the few mentions of the 'Tigre' (the proper term is Tigray) does not imply or note the persecution of minority tribes but instead implies privilege, corruption, and nepotism. This is in a context where the Appellant is living outside Gedeo, travels, secures entry to higher education institutes and succeeds in finding employment (RPD Record, p. 29 and p. 35). [37] I recognize that the Appellant was not represented by counsel, however, at some point if this risk had even a slight implication for the Appellant, the RPD would expect it to be mentioned. Instead, the risk identified is stated repeatedly as related to a crackdown on those who were viewed as opposing the government. For example, at one point the Appellant was asked why he did not claim asylum in the US when he was in that country. The Appellant states he was doing everything to support his family and being with his family and while he knew that the government was arresting and doing things against those "actively involved in politics" he thought the incident in 2010 had been forgotten (Oral hearing at minutes 39-41). When he called home, however, and heard about the three security officials looking for him prior to the election, he realized he was at risk (Oral hearing at minute 44). [38] I note the Appellant is setting out that he comes from - and his family is established in - Dilla, which is the capital of the Gedeo Zone (administrative unit) of the Southern Nations, Nationalities, and Peoples' Region (SNNPR). But prior to the hearing nothing is identified or mentioned that would indicate that the Appellant faced specific problems in this area. It is true that there was major conflict and potentially human rights abuses in this area in the late nineties, and this is even noted by the Regina Ethiopian Association in their letter, yet the testimony and evidence of the Appellant prior to and during the hearing does not include an allegation that he is at risk because he has lived in Dilla or is a member of the Gedeo tribe. In addition, the RPD notes that he could not find what I assume would be a contemporary issue of persecution against the Gedeo in the National Documentation Package (RPD Record, p. 2). I also note that the Appellant has also not identified any contemporary evidence of such targeting. I conclude that if this were a real element of the Appellant's claim, the Appellant would be expected to have expressed concern about the status of his family, which he did not. I conclude that the RPD did not err by not providing a more developed analysis of the risk faced by the Appellant as a member of a minority people, specifically the Gedeo tribe, in Ethiopia. Issue 3: Was there a problem of procedural fairness in this hearing because the Appellant did not have an interpreter? [39] The Appellant argues that he had "substantial difficulty following the proceeding" and argues that "Repeated interruptions could have been avoided if he had had an interpreter" (Appellant's Memorandum, paragraph 9e). [40] In listening to the whole hearing it is true that there were many instances where the Appellant asked for a question to be repeated or a word or sentence was missed. I must conclude that this was more a function of the fact that the hearing was by videoconference than because of an absence of translation. In listening to the proceedings it is clearly the case that the Appellant's understanding of English was more than sufficient to allow for a hearing in English alone. [41] In this case the RPD decision turned on an assessment of whether the Appellant had identified events and situations which would lead the RPD to conclude that the Appellant faced a serious possibility of persecution or a risk as understood in s. 97. The conclusion of the RPD was that the risk to the Appellant of the events identified by the Appellant, which the RPD accepted as credible, fell below this threshold. I am in agreement with this finding. CONCLUSION [42] For all these reasons, I confirm the determination of the RPD, namely, that Mr. XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection". [43] Therefore, the appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher February 9, 2016 Date /kp 1 Huruglica v. M.C.I. (2014) FC 799. 2 Njeukam v. M.C.I. (2014) FC 859, paragraph 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR: MB5-06121 2