TB7-13958

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 : TB7-13958 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 January 9, 2018 Date de la décision Panel Anthony da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Daniel Tilahun Kebede 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 INTRODUCTION [1] XXXX XXXX XXXX (the Appellant), a citizen of Ethiopia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and find that she is a Convention refugee. Alternatively, the Appellant asks that the matter be sent back to the RPD for redetermination by a differently-constituted panel. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee 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 she faces persecution in Ethiopia because of her husband's anti-government activities in the United States and her own political activities here in Canada. [4] The Appellant's application for refugee protection was heard on June 21, 2017. In a decision of June 26, 2017, the RPD rejected the claim, finding the Appellant does not have a well-founded fear of persecution. ISSUES [5] The Appellant submits the following issues in her Appeal: i. What is the standard of review? ii. Did the RPD err in assessing the Appellant's sur place claim? iii. Does the Appellant lack the targeted profile in Ethiopia? ROLE OF THE RAD [6] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica1 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law. Justice Gauthier found that in Huruglica, where the credibility of the oral evidence before the RPD was not a determinative issue, a standard of correctness should be applied by the RAD when assessing RPD findings of fact or of mixed fact and law. [7] In light of the Court's ruling, when conducting an appeal of a determination by the RPD, the RAD will carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Where the credibility of the oral evidence before the RPD was not a determinative issue, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of the oral evidence before the RPD was a determinative issue, the RAD will defer to certain findings of the RPD where the RPD enjoyed a meaningful advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with an analysis of the record as a whole. ANALYSIS Minister's Credibility Concerns [8] The RPD noted the Minister's intervention based on credibility concerns dealing with the discrepancies between the Appellant's refugee claim information and the information in her Canadian work permit application. The Appellant's work permit information made no mention of a husband or son, while her refugee claim forms included information about both. After putting the discrepancies to the Appellant, the RPD accepted her explanation that she is separated from her husband and that her son is living with her mother in Ethiopia. [9] The RAD notes that while the Appellant may have provided an acceptable explanation to the RPD for the discrepancies in her family information between her application for a visa to Canada and her refugee application, it concurs with the Minister in that she has misrepresented information to government officials. Although it is not entirely clear why she provided inconsistent information as to her family situation, the RAD must nonetheless question the reliability of some of her evidence. The Appellant's Psychological Condition [10] The RAD notes that the Appellant's counsel had a pre-hearing conference with the RPD to discuss her mental health status as assessed in her psychological report. The RPD found that the Appellant was fully able to appreciate the nature of the proceedings and was able to answer the RPD's questions directly and responsively throughout the hearing. The RAD notes that the Appellant did not request any special accommodations and raised no concerns in her Appeal as to her ability to effectively respond to the RPD's questions at the hearing. The RAD finds that there has been no breach of natural justice in this regard. Discrimination and harassment in Ethiopia [11] The RPD noted that the Appellant alleged that she had received lower wages and fewer benefits at work because of her political opinion, as compared to colleagues who, unlike her, supported the ruling party. She also indicated that she was regularly harassed by local police while travelling to and from work. Further, on XXXX XXXX XXXX 2014, she was detained and interrogated by authorities, who also threatened the life of her son. She was released five hours later with conditions. [12] The RPD found that the discrimination and harassment she experienced did not rise to the level of persecution. The RPD referenced the UNHCR Handbook on Procedures and Criteria for determining Refugee Status (UNHCR handbook) to help inform its decision. [13] The UNHCR Handbook states that: ...an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on "cumulative grounds".2 [14] The UNHCR Handbook also states that: It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.3 [15] The RPD noted that there was no evidence that the Appellant was forced to leave or give up her job as dancer because of her refusal to join the ruling party. It also noted that her assertion that she received lower wages as compared to colleagues who supported the ruling party was based only on work gossip. It further noted that her other assertion that she was forced to stop breast feeding and go on tour for twenty days when her son was only 15 days old, while others received three months of maternity leave, was based on her personal observations. The RPD acknowledged that having had to leave her infant son for three weeks was traumatic for the Appellant. It found, however, that this event alone, or even together with wage and benefit differences, in the absence of evidence explaining the reasons for those differences, was insufficient to sustain a finding that her experiences were persecutory. [16] In arriving at its finding, the RPD considered that the Appellant was able to continue living and working in XXXX XXXX, where her family is located, and despite her stated difficulties, was able to support herself and her son. Based on the elements in paragraph 54 of the UNHCR Handbook, the RPD found that the Appellant had not faced such prejudicial consequences as would constitute persecution. [17] The RPD noted that the Appellant provided no evidence that any wage or benefit deficiencies were as a result of her Amharic ethnicity. Rather, it found that the discrimination she experienced at work because of her unwillingness to join the ruling party may have been traumatic, those experiences did not cumulatively amount to persecution. [18] In its finding that the Appellant's experiences of discrimination did not rise to the level of persecution, the RPD was also guided by the decision in Warner where the Federal Court found that "...the violence against him [the claimant] and his partner was serious and systematic."4 The RPD considered whether the Appellant's treatment was serious and systematic and whether she took any steps to avoid it. The RPD noted that the harassment by police consisted of ethnic insults such as "dirty Amharic," and that she was detained XXXX 2014 because of her husband's anti-government activities in the US. [19] The RPD noted that the claimant and his partner in Warner suffered " ...no less than twelve incidents of very serious physical violence over a period of fifteen years - in addition to pervasive societal discrimination..."5 In contrast, the RPD noted that the Appellant suffered only one detention for a period of five hours and that while the constant insults by police caused her emotional distress, it found that the number and nature of harassing or discriminatory incidents experienced by the Appellant were not "serious" or "systematic." [20] The RPD noted that the Appellant's detention and interrogation were as a result of her husband's activities abroad. It also noted that the police did not harm her, and that she was released after a short time with not overly-restrictive conditions. It further noted that the Appellant did not move, even within XXXX XXXX, in an effort to avoid the harassment. As well, the RPD noted that the Appellant continued to go to work and made no apparent changes to her regular movement, which brought her into regular contact with the authorities. It also noted that despite threats by the authorities that they might harm her son, he was not harmed. The RPD found therefore that, on a balance of probabilities, Ethiopian authorities ceased to seek or persecute the Appellant after the XXXX 2014 detention, and that there was insufficient evidence to find that they would seek to persecute her if she returned. [21] The Appellant submits that the RPD accepted she was known and identified by the authorities as a family member of a person who held dissenting views, and that it agreed that she was interrogated because of her husband's participation in opposition events in the diaspora. She also submits that the RPD accepted that she was harassed by police because of her political views and that she was discriminated against at work because she was not a member of the ruling party. Despite acknowledging these various incidents, it held that the incidents alone did not establish persecution on a cumulative ground nor did they establish a risk of future persecution. She submits that the profile accepted by the RPD alone is sufficient to support a positive finding in her refugee claim. She submits that the RPD erred in finding that the Appellant is not a Convention refugee, once it accepted her profile and given the county conditions in Ethiopia and the changes that took place in her home after she left the country. [22] She submits that since a state of emergency was declared in Ethiopia on October 8, 2016, her circumstance has changed significantly. The conditions in Ethiopia now indicate: a more restrictive environment, wider powers of the police security agents and military, and the government's stated position that recent opposition to the regime was instigated by the diaspora and the exiled opposition from North America. These conditions, she submits, have increased her vulnerability and she should not have to have been detected or persecuted before she can claim refugee status. She submits that similarly situated persons have been increasingly targeted and that she will be persecuted if she returns home at this time. [23] The RAD has considered the Appellant's evidence, including her testimony at the RPD hearing. Aside from her five-hour detention and harassment from local police, there is insufficient evidence that she has experienced targeted discrimination. Her claim that she received less salary and benefits from her employer in Ethiopia is based on overhearing conversations of other employees at work. The RAD does not find this information reliable. Individuals who may have spoken about higher salaries and more comprehensive benefits may have had a different status such as a permanent employee position versus a contract employee position, as was the case of the Appellant, based on her employment letters.6 Discrepancies in pay and benefits may also have been the result of different employment categories, such as experience and seniority. Given the absence of reliable information that supported her allegations that she received less pay and fewer benefits because of her unwillingness to join the ruling party, the RAD finds that there is insufficient probative evidence to support her allegations of discrimination based her political views and ethnic background. [24] With respect to the Appellant's five-hour detention and harassment by local police, the RAD notes that she was targeted because of her husband's activities in the US. According to the Appellant's testimony, a condition of her release was that she distance herself or separate from her husband. The RAD notes that the Appellant and her husband are now separated and there was no evidence that the Appellant's husband continues to be involved in anti-government activities after he was granted asylum in the US. The RAD finds that whatever harassment and discrimination she may have experienced while in Ethiopia did not rise to the level of persecution. Refugee sur place [25] The Appellant submits that the RPD's finding that she does not have a sur place claim is rooted in several errors. First of all, the RPD made a factual error by finding that she could not have participated in an opposition rally in XXXX 2016 because she did not arrive Canada until XXXX 2016. In fact, she arrived in Canada in XXXX 2015. Her participation in the XXXX 2016 demonstration is also supported by the affidavits7 of two witnesses. [26] She further submits that while the RPD accepted that her husband's political activity triggered her persecution, it found that her activities in Canada, though similar to her husband's, are insufficient to attract persecution. She submits that her husband is a person similarly situated to her, in that he was a cultural dancer before he left Ethiopia and had no political profile while in Ethiopia. His successful asylum claim was based on his sur place activities that were broadcast on YouTube. [27] The Appellant also submits that the RPD erred by speculating that the Ethiopian authorities would be interested only in persons who are seen expressing views critical of the government and not those who simply attended or danced at an opposition event. She submits that there is no evidentiary foundation for the RPD's finding which is based purely on speculation. [28] The RAD concurs with the Appellant and finds that some of the RPD's findings were based on factual errors and speculation. With respect to the Appellant's submission that she is a person similarly situated to her husband, the RAD can only go along with that line of thinking to a point. The husband's actions of "stepping on Ethiopia's flag that has EPRDF's [ruling party] logo on it..."8 in Washington DC would be likely be viewed much more negatively by Ethiopian authorities than standing at a demonstration in Toronto or dancing at an event in Kitchener. There is also no mention of the other political activities in which the Appellant's husband was involved, which may have had a greater profile than the events in which the Appellant participated, and thus more likely to have come to the attention of Ethiopian authorities. As the Appellant indicated in her testimony, those who informed her mother that the Appellant had been seen on YouTube were neighbours. According to the Appellant, the police never visited her mother or any of her relatives, despite her "political" activities in Canada. [29] In considering whether there are grounds for a sur place claim, the RAD has reviewed the United Nations Handbook on Procedures and Criteria for Determining Refugee Status9 which outlines the criteria to be considered in the determination of a sur place claim. Specifically, Article 96 is particularly relevant in this Appeal. It states: A person may become a refugee "sur place" as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of original and how they are likely to be viewed by those authorities. [30] In determining whether the Appellant has sufficient basis for a sur place claim, the RAD has considered her profile before arriving in Canada as well as her actions after her arrival. As indicated earlier, the Appellant had really no political profile in Ethiopia. Although she was detained for a period of five hours in 2014, she was not harmed and was only questioned about her husband's activities. Given their response, the authorities did not consider her to have been politically active or likely to be politically active in the future. She was released after being questioned for a period of five hours and during the nearly two year period in Ethiopia, following her short period of detention, she was not detained or questioned again. She has alleged that she continued to be harassed, but it is noted that she was able to continue to work and later allowed to travel with her dance group outside the country. Her appearance on YouTube, although having registered thousands of views, appeared to have little impact on her family back home, which would not have been the case had authorities seen and believed that she was a serious opponent of the government. It must also be noted that YouTube videos are accessible globally, not only by those in Ethiopia, but by the Ethiopian diaspora throughout the world, as well as others interested in Ethiopian events and politics. There was no breakdown as to where the YouTube videos were actually viewed. As indicated by Busha Taa in the analysis of treatment of opposition members, surveillance of opposition party members is very expensive.10 It would be reasonable to conclude therefore, that surveillance of non-members and of all anti-government demonstrations abroad and on social media would be selective, and focused on events where high-profile members of the opposition are present - which does not appear to be the case with the Appellant. The RAD therefore finds that there is insufficient evidence to support the Appellant's assertion that she is a refugee sur place. Letters and Affidavits of Support [31] The Appellant provided a number of letters and affidavits of support from family members and friends. In reviewing this evidence, the RAD has considered Justice Annis' caution in El Bouni regarding the reliability of documentary evidence emanating from family members and friends: ... I find that confirmatory evidence of family members and friends, which is not subject to cross-examination, is not highly probative or credible evidence. Highly probative evidence is intrinsically well-presented evidence from independent sources confirming a material fact in the matter.11 [32] The RAD notes that the mother's letter12 states that after the Appellant appeared on television and social media: "...I, my daughter and the whole family have been mistreated and threatened by members of the ruling party's police." As well, the Appellant's information, given during her interview with the psychologist, states: "...since the airing of her performance her mother in Ethiopia has been threatened by government officials warning that if Ms. XXXX continues her anti-political activities in Canada her mother will be detained."13 The statements in both the mother's letter and the psychological assessment are in contrast to the Appellant's testimony where she indicated that the police never spoke to her mother. Her testimony, also does not indicate that her mother had been threatened with detention by government officials.14 The RAD finds that these inconsistencies serve to illustrate Justice Annis' comments that "confirmatory evidence of family members and friends, which is not subject to cross-examination, is not highly probative or credible evidence." The RAD further draws a negative inference with respect to the reliability of the Appellant's supporting evidence. [33] The RAD appreciates that cumulative acts of discrimination can "...give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence..."15 It finds, however, that the Appellant's overall experiences do not rise to the level of persecution. While she may have been targeted in the past because of her husband's political activities in the US, the RAD finds that there is insufficient reliable evidence to support her allegations of recent and future serious possibilities of persecution in Ethiopia. CONCLUSION [34] On the basis of the findings noted above and after its own assessment of all the evidence in the record, the RAD finds that the RPD's findings are generally correct and sustainable. [35] Pursuant to paragraph 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 January 9, 2018 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 UNHCR Handbook on Procedures and Criteria for determining Refugee Status, Reedited, Geneva, January 1992 at para. 53, p. 13. 3 Ibid., at para. 54, p. 14. 4 Warner, Leslie Kervin v. M.C.I. (F.C., no. IMM-4283-10), Zinn, March 23, 2011, 2011 FC 363. 5 Ibid., at para. 8. 6 Exhibit RPD-1, RPD's Record, at pp. 123-126. 7 Exhibit RPD-1, RPD's Record, at pp. 286-290. 8 Exhibit RPD-1, RPD's Record, BoC at q. 2(a), p. 20. 9 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, re-edited January 1992. 10 Exhibit RPD-1, RPD's Record, at p. 135. 11 El Bouni, Haidar v. M.C.I. (F.C., no. IMM-7627-14), Annis, June 2, 2015, 2015 FC 700. 12 Exhibit RPD-1, RPD's Record, at pp. 112-113. 13 Exhibit RPD-1, RPD's Record, at p. 199. 14 Recording of RPD hearing, starting at 1:54. 15 Supra, footnote 2 at para. 55, p. 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-13958