TB7-06703

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 : TB7-06703 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 October 24, 2017 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Raoul Boulakia 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 his claim for refugee protection. He has submitted new evidence in support of this appeal. The Appellant is not 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 is a citizen of Ethiopia, a member of the Oromo minority, who alleges that he is a refugee, sur place and is at evident objective risk should he return to Ethiopia. Details may be found in the Appellant's Basis of Claim form (BOC)1 and in the audio recording of his hearing. RPD's Reasons [3] In its reasons, the RPD found that the claim was not credible. The panel found many inconsistencies which were not reasonably explained. The panel found that overall, the Appellant was not a credible and reliable witness. [4] Pursuant to paragraph 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 raises one issue at the RAD: a. Did the RPD err by reaching unreasonable conclusions with respect to objective risk based on the testimony he accepted as true, and reached his decision without regard to the documentary evidence before him? ANALYSIS Determinative Issue [6] The determinative issue in this appeal is the Appellant's prospective risk as a sur place refugee claimant/Appellant, should he be returned to Ethiopia. Standard of Review [7] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.2 Admissibility of New Evidence [8] The Appellant submitted new evidence with his Appeal Record. The new evidence submitted with the Record is the 31 March 2017 Immigration and Refugee Board (IRB) National Documentation Package (NDP) for Ethiopia. [9] Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented at the time of the rejection of their refugee claim. [10] If the proposed new evidence does meet the requirements of subsection 110(4), I must then apply the analysis set out in the Federal Court of Appeal's decision in Raza as subsequently modified by the same court's decision in Singh; effectively I will assess the credibility and relevance of the evidence in order to determine whether it is admissible. [11] The Appellant submits that the 31 March 2017 NDP package post-dates the RPD rejection of the claim. The Appellant also argues that the NDP documents an increasingly repressive atmosphere in Ethiopia and further detentions and even killings of individuals affiliated with the ongoing protests. I agree that the March 2017 NDP provides new information on the on-going state of emergency in Ethiopia and on the evolving risk situation facing those with anti-government history and of Oromo ethnicity. The new documents in the NDP are authored by reliable sources and are relevant as they speak directly to the determinative issue in this appeal. I accept the March 31, 2017 NDP into evidence. Arguments [12] Counsel for the Appellant (counsel) is not challenging the RPD Member's findings with respect to the credibility of the Appellant's past persecution in Ethiopia, nor is counsel endorsing those findings. Counsel argues that those findings are not determinative of whether the Appellant is currently at objective risk. Counsel argues that a finding of no past political activism on the part of the Appellant does not alter the accepted facts. [13] The Member accepted that the Appellant is a citizen of Ethiopia and a member of the Oromo minority.3 [14] The Member accepted that the Appellant was an XXXX XXXX XXXX, was issued a visa to travel to Canada and that initially the visa application was made based on an invitation to take part in the XXXX XXXX, 2016, XXXX XXXX XXXX. The visa was issued in Nairobi.4 [15] The Member accepted that the Appellant participated in three political events in Toronto since his arrival in Canada. [16] Counsel argues that the Member's findings regarding the sur place claim are without regard to any of the documentary evidence, including the Board's own research. Counsel argues that observations made by the Member and deemed as common sense are actually illogical and become completely untenable when compared to the documentary evidence. Even if the Ethiopian government engaged in no surveillance of protests abroad and were too technologically challenged to figure out how to do an online search, the Appellant would not be able to admit to his participation in protests in Canada should he return to Ethiopia and be questioned on the topic, without fear of serious harm. The Appellant, for his own safety, would have to lie to authorities or face persecution should he be questioned on such participation. Counsel cites Donboli,5 in which the Court held that it cannot be presumed that a person should have to lie in order not to be persecuted if he returns to his own country. Counsel argues that the Member had no basis in evidence to dispute that, should the Appellant admit to Ethiopian authorities that he participated in protests against that government, especially in light of the unprecedented repression happening now, he would be persecuted. [17] As the Appellant would be returning to Ethiopia after overstaying a Canadian visa, and the Appellant is of Oromo ethnicity, which of itself can trigger suspicion of opposition to the Ethiopian government, counsel argues that it is evident that the regime (government) could suspect the Appellant of overstaying his visa to Canada because he was unsupportive of the regime, claimed refugee status, or took part in dissent as part of the diaspora. [18] Counsel argues that whether the Ethiopian authorities knew the Appellant was in Canada is irrelevant because they would know where the Appellant had been as soon as he returned to Ethiopia. [19] The issue of whether the Ethiopian government would know or would soon find out that the Appellant was in Canada and had overstayed his visa is obvious. I concur with counsel that the relevance of the government knowing that the Appellant is in Canada is not an issue. The relevance of the government finding out upon the Appellant's return to Ethiopia is an issue if the Appellant was politically active in opposition to the current Ethiopian regime and that regime is aware of the protests in which the Appellant was involved and the Appellant has been or would be identified as a participant in those demonstrations against the government. [20] Counsel argues that the Member's finding that the Appellant has not established that an ESAT video, which shows the Appellant at a protest, has even been aired in Ethiopia. The Appellant provided the Member with the YouTube video of the protest and provided the RAD with the web address6 to the video. I have watched the video three times. The video is not translated into English; however, it is obvious that this is a protest against the Ethiopian government. The Appellant is visible for a few seconds, as a protester along with many others. Importantly, the date of publication of this video is XXXX XXXX, 2016, which pre-dates the first sitting of the hearing by four months. [21] It is documented that the Ethiopian government has a firm grasp on the internet, its usage and its management. Documents7 at the Board show the sophistication level of the Ethiopian authorities in regards to the internet. "Since the emergence of the internet in Ethiopia, the Ethiopian Telecommunications Agency (ETA) has been the primary regulatory body overseeing the telecommunications sector. In practice, government executives have complete control over ICT policy and sector regulation. The Information Network Security Agency (INSA), a government agency established in 2011 and controlled by individuals with strong ties to the ruling regime, also has significant power in regulating the internet under the mandate of protecting the communications infrastructure and preventing cybercrime." "News websites known for their reporting on the Oromo protests joined Ethiopia's growing list of blocked content, while social media and communications platforms were blocked for periods of time throughout the coverage period for their role in disseminating information about the demonstrations and police brutality. The government manipulates online content, disseminating propaganda to convince Ethiopians that social media is a dangerous tool co-opted by opposition groups to spread hate and violence."8 [22] The RAD, being mindful of the Ethiopian government's abilities to monitor and to block the internet within its borders, recognizes that a YouTube video published in XXXX of 2016 which contains material very much of interest to the Ethiopian regime would, on a balance of probabilities, have been seen by, at the very least, the security forces of INSA in Ethiopia by the time that this Appellant had his first sitting of his hearing, December 21, 2016. [23] According to the RPD's Interpretation of the Convention Refugee Definition in the Case Law, Chapter 7: 7.3.1. Claimant's Activities Abroad According to paragraph 96 of the UNHCR Handbook, the key issues in cases based on the claimant's activities since leaving his or her home country are "whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities." Even though a claimant's actions subsequent to departure may have come to the attention of the authorities there, it may nevertheless be that, in the circumstances, those actions do not give rise to a well-founded fear of persecution. In Wang,9 the Trial Division held that a sur place could not be maintained in the absence of evidence that the making of the refugee claim had specifically come to the attention of the authorities of the claimant's country of origin. In Ghribi,10 the Court found the claimant's testimony concerning the Canadian Minister's public statements about Tunisian refugee claimants and the consequent response of the Tunisian authorities in Canada and in Tunisia to be highly speculative, and thus there was insufficient evidence to establish that they would have the alleged impact so as to support a claim of refugee sur place. On the other hand, in Zhu,11 the Trial Division held that once the evidence established that the claimant's information was given to counsel for the accused, and filed in evidence at a public trial in Canada and in publicly accessible court records, it was patently unreasonable for the CRDD to suggest that further evidence was required to establish that the information actually came to the attention of a potential agent of persecution in the claimant's country of origin. In the Court's view, that is too high a requirement to establish more than a mere possibility of persecution. More recently, in Win,12 the Court held that the standard to be used in assessing evidence relating to a sur place claim is likelihood, or balance of probabilities, that is, whether the claimant's activities were likely to come to the attention of the authorities of his or her country. In another case, however, the Court appears to state the test as "might come to the attention" of state authorities. Where claims are based on the claimant's activities abroad, some decisions of the Trial Division have focused on the issue of the bona fides or motivation of the claimant and have found that the claimant did not have a subjective fear of persecution. On the other hand, in Ngongo,13 the Trial Division cited with approval the following passage from Professor Hathaway's The Law of Refugee Status: It does not follow, however, that all persons whose activities abroad are not genuinely demonstrative of oppositional political opinion are outside the refugee definition. Even when it is evident that the voluntary statement or action was fraudulent in that it was prompted primarily by an intention to secure asylum, the consequential imputation to the claimant of a negative political opinion by authorities in her home state may nonetheless bring her within the scope of the Convention definition. Since refugee law is fundamentally concerned with the provision of protection against unconscionable state action, an assessment should be made of any potential harm to be faced upon return because of the fact of the non-genuine political activity engaged in while abroad.14 In Asfaw,15 the Trial Division held that while it is relevant to examine the motives underlying a claimant's participation in demonstration against his government in Canada in order to determine whether the claimant has a subjective fear, it would be an error for the CRDD to stop the analysis there as it is also necessary to examine whether or not the fear has an objective basis. In Ghasemian,16 the Federal Court held that, once the Board accepted that the claimant had converted to Christianity while in Canada and now risked severe punishment in Iran as an apostate, it had to consider whether the claimant would be viewed as an apostate regardless of the motive for her conversion. While it was open to the Board to reject her sur place claim on the basis of a lack of subjective fear, the Board misconstrued her evidence regarding her alleged lack of fear of reprisals and applied the wrong test by rejecting her claim on the basis that it was not made in good faith, i.e., she did not convert for a purely religious motive. The Court followed the reasoning of the English Court of Appeal in Danian,17 that opportunistic claimants are still protected under the Convention if they can establish a genuine and well-founded fear of persecution for a Convention ground. The Court adopted a similar approach in two subsequent decisions involving Iranian claimants who had converted from the Muslim faith, holding that it is necessary to consider the credible evidence of the claimant's activities while in Canada, independently from their motive. Even if the motives are not genuine, the consequential imputation of religious or political beliefs to the claimant by the authorities of their country, may nonetheless be sufficient to bring the claimant within the scope of the Convention refugee definition.18 However, the Board may still be able to find, in appropriate cases, that the claimant's activities were not likely to come to the attention of anyone in their country,19 or that the claimant would not likely engage in such activities on return to their country. In Kammoun,20 the claimant had voluntarily approached representatives from his country in Canada. The Court held that the proper inquiry was whether the claimant's denouncement, albeit voluntary, of the Tunisian authorities in Canada could cause a negative reaction on the part of the authorities and, as a result, cause a risk should the claimant return. With respect to exit laws, however, in Zandi,21 the Court followed Valentin22 in holding that a defector cannot gain legal status in Canada under IRPA by creating a "need for protection" under section 97 by freely, of their own accord and with no reason, making themselves liable to punishment by violating a law of general application in their home country about complying with exit laws. Evidence of political activities in Canada should be considered by the panel whether or not the claimant specifically raises a sur place claim.23 However, where the decision is under reserve, the onus is on the claimant to request a reconvening of the hearing (before a final decision on the claim has been rendered) in order to consider the impact that any newly alleged sur place basis to the claim might have.24" [24] As indicated above, the courts have been divided on how the Board should assess sur place claims. I, however, prefer the decision in Win,25 in which "balance of probabilities" is the standard on which the decision relies. [25] After a fulsome investigation of the facts in this case, it is clear to me that the Appellant has very little credibility in regards to his actual claim of previous persecution and subsequent issues with the authorities in Ethiopia. In the matter of overall credibility of this Appellant, and in light of counsel's desire not to address or challenge the Member's credibility findings, I concur with the Member and find that this Appellant is not a credible witness. [26] However, the facts that the Member did not dispute show that this Appellant has developed to some degree, a political presence amongst the Ethiopian diaspora in Canada by attending demonstrations and vigils protesting the Ethiopian regime. Although the Appellant's profile is not large in any way, he has appeared in a crowd of protestors where he is seen for twelve seconds on the screen. He has spoken out at one of those protests, albeit not video-taped. [27] It is a fact that the Ethiopian regime does have people whose job it is to attend demonstrations such as those in which the Appellant participated and for those persons to report back to the regime about who attends those protests and more. [28] It is a fact that the video tape which clearly shows the Appellant for twelve seconds, was uploaded to the internet on YouTube in XXXX 2016. It is also a fact that the Ethiopian authorities monitor all internet traffic, blocking websites from public viewing when deemed beneficial to the regime. [29] It is common sense that the information gathered by spies at the demonstrations in places like Toronto is sent back to the regime and that the regime will be aware of many, if not all, the participants in those demonstrations. [30] On a balance of probabilities, the INSA has seen the video in question and has noted the participants who had been successfully identified. Persons of specific interest to the state would include persons such as the Appellant who got up to the microphone and spoke his mind against the regime. Obtaining the identity of the Appellant would not be difficult considering the relatively small size of the Ethiopian community in Toronto and the Appellant's history as an XXXX XXXX XXXX XXXX I must remember that I am looking at and assessing this appeal from a neutral standpoint. I must also remember that the Appellant's lack of credibility regarding the core of his claim has really nothing to do with the sur place claim. [31] The RPD found that the "claimant failed to establish on a balance of probabilities, due to his credibility problems and the insufficiency of trustworthy and reliable supporting evidence, his timeline in Ethiopia, his reasons for leaving the country or a likelihood of harm if he were to return to Ethiopia." [32] I have considered all of the facts in this matter and find that the RPD did err when it misconstrued the evidence and found that the Appellant, on a balance of probabilities, would face no harm should he return to Ethiopia. The error is specific to the sur place aspect of the claim/appeal. As refugee protection is forward looking, I find that this Appellant, on a balance of probabilities, due to his actions in Canada which I believe would be known by the regime in Ethiopia for the reasons discussed above, would face harm if forced to return to Ethiopia. Summary [33] The Appellant has adduced sufficient evidence to convince me that he has a reasonable objective fear in returning to Ethiopia. Disposition [34] The RAD has found that the RPD decision will not stand. CONCLUSION [35] Pursuant to paragraph 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 October 24, 2017 Date 1 Exhibit RPD-1, RPD Record, pgs. 16-29. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit P-2, Appellant's Record, RPD Reasons and Decision, pg. 4, paras. 4-5. 4 Exhibit RPD-1, RPD Record, Exhibit 4, pgs. 101-127. 5 Donboli v. Canada (MCI), 2003 FC 883. 6 https://www.youtube.com/watch?v=5R7ukJKWTxk. 7 National Documentation Package (NDP) for Ethiopia, version 31 March 2017, item 11.2. 8 Ibid.. 9 Wang, Kong Ping v. M.C.I. (F.C.T.D., no. IMM-6298-99), Pelletier, November 14, 2001; 2001 FCT 1237. 10 Ghribi, Abdelkarim Ben v. M.C.I. (F.C., no. IMM-2580-02), Blanchard, October 14, 2003; 2003 FC 1191. 11 Zhu, Yong Qin v. M.C.I. (F.C.T.D., no. IMM-5678-00), Dawson, September 18, 2001; 2001 FCT 1026. Reported: Zhu v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 379 (T.D.). 12 Win, Ko Ko v. M.C.I. (F.C., no. IMM-1248-08), Shore, March 28, 2008; 2008 FC 398. 13 Ngongo, Ndjadi Denis v. M.C.I. (F.C.T.D., no. IMM-6717-98), Tremblay-Lamer, October 25, 1999. 14 James C. Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991), page 39. 15 Asfaw, Napoleon v. M.C.I. (F.C.T.D., no. IMM-5552-99), Hugessen, July 18, 2000. See also Zewedu, Haimanot v. M.C.I. (F.C.T.D., no. IMM-5564-99), Hugessen, July 26, 2000. 16 Ghasemian, Marjan v. M.C.I. (F.C., no. IMM-5462-02), Gauthier, October 30, 2003; 2003 FC 1266. 17 Danian v. Secretary of State for the Home Department, [1999] E.W.J. No. 5459 online: QL. 18 Ejtehadian, Mostafa v. M.C.I. (F.C., no. IMM-2930-06), Blanchard, February 12, 2007; 2007 FC 158; Mohajery, Javad v. M.C.I. (F.C., no. IMM-2528-06), Blanchard, February 19, 2007; 2007 FC 185. For a similar case involving a Chinese convert, see Chen, Hanqi v. M.C.I. (F.C., no. IMM-5203-08), de Montigny, June 29, 2009; 2009 FC 677. 19 Mutangadura, Chipo Pauline v. M.C.I. (F.C., no. IMM-2553-06), Phelan, March 20, 2007; 2007 FC 298. 20 Kammoun, M. Hammadi Ben Hassen v. M.C.I. (F.C., no. IMM-4096-05), Tremblay-Lamer, February 3, 2006; 2006 FC 128. 21 Zandi, Reza v. M.C.I. (F.C., no. IMM-4168-03), Kelen, March 17, 2004; 2004 FC 411. See also Mohajery, supra, footnote 18. 22 Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390 (C.A.). For a discussion of this topic see Chapter 9, section 9.3.5. on Exit Laws. 23 Moradi, Ahmad v. M.C.I. (F.C.T.D., no. IMM-2317-97), MacKay, September 23, 1998. However, in Inigo Contreras, Victor v. M.C.I. (F.C., no. IMM-3954-05), von Finckenstein, May 16, 2006; 2006 FC 603, it was argued that the Board had failed to consider whether the claimant could be considered a refugee sur place based on the right to live openly and promote human rights which are fundamental to his dignity. The Court noted that: "This issue was not raised in the Applicant's PIF. There was also no evidence before the Board that the Applicant is an activist in Canada in a way that would attract public attention nor that his status as an activist would place him at risk in Mexico. His volunteer efforts have been that of a peer counsellor. No evidence has been provided to believe that role in Canada has created a sur place refugee claim. Although it appears the Applicant takes great pride and feels his activities are personally rewarding, that should not be the basis for granting refugee protection." 24 Maina, Ali Adji v. M.C.I. (F.C.T.D., no. IMM-1221-99), Gibson, March 14, 2000; Yang, Hua v. M.C.I. (F.C.T.D., no. IMM-380-00), Gibson, November 24, 2000. But see Igbinosun, Nelson v. M.C.I. (F.C.T.D., no. IMM-7410-93), McGillis, November 17, 1994, M.C.I. v. Mbouko, Augustin (F.C. No. IMM-1988-04), Lemieux, January 31, 2005; 2005 FC 126, and M.C.I. v. Habimana, Djuma, (IMM-5616-08), Pinard, January 6, 2010, 2010 FC 16, where the Court held that the Board did not properly assess the impact of the contact with the foreign authorities, i.e., were they already aware of the claimant's situation or was it disclosed that the claimant had claimed refugee protection in Canada. An analysis of those factors is a determining factor in deciding whether the claimant was endangered by the actions of the Canadian authorities. 25 Win, supra, footnote 12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-06703