TB7-23482

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 / Dossier de la SAR : TB7-23482 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, ON Appel instruit / entendu à Date of decision October 25, 2018 Date de la décision Panel G. Erauw Tribunal Counsel for the person(s) who is(are) the subject of the appeal Raoul Boulakia Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the "Appellant") is a citizen of Ethiopia and is appealing a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant argues that the RPD failed to consider her objective risk and her sur place claim for refugee protection. After careful review of the evidence in the record, the Refugee Appeal Division (RAD) finds that the Appellant does not possess an objective risk, nor has she established a sur place claim. Therefore, she has not established that she faces a serious possibility of persecution, or on a balance of probabilities, a risk to life or a risk of cruel and unusual treatment or a danger of torture upon return to Ethiopia. [2] For the reasons provided below, this appeal is dismissed. BACKGROUND [3] The Appellant alleges that if she returns to Ethiopia she will be detained, tortured, or killed due to her Oromo ethnicity and her imputed political opinion. She alleges that she was a XXXX for the municipality of XXXX, in the Oromia region of Ethiopia. She claims that she participated in a protest in Ethiopia in December 2015, and that while she was in Canada participating in a training, many of her colleagues were arrested and that the Ethiopian authorities are now looking for her. In addition, she alleges that she has participated in a number of protests against the Ethiopian regime since coming to Canada, which has further put her at risk. Therefore, if she returns to Ethiopia she alleges she will be identified as an anti-government activist and be arrested and detained upon re-entering the country. Further details are provided in her Basis of Claim (BOC) Form, and her testimony at the RPD hearing.1 The RPD's Decision [4] The Appellant had a refugee determination hearing on July 24, 2017. In a written decision issued on October 18, 2017, the RPD rejected the claim. The RPD panel found the Appellant lacking in credibility about her central allegations and that she lacked overall credibility. Therefore, the RPD concluded that the Appellant does not have a well-founded fear of persecution on a Convention ground, or that she would not personally be subjected to a risk to life or a risk of cruel and unusual treatment or a danger of torture upon return to Ethiopia. ROLE OF THE RAD [5] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness in accordance with the Federal Court of Appeal's decision in Huruglica.2 In assessing findings involving the credibility of oral testimony, the RAD may apply the modified standard of reasonableness in situations where the RPD enjoys a meaningful advantage.3 Unless otherwise stated in the reasons, the RAD uses the correctness standard on all findings and will consider the overall refugee determination on a standard of correctness, even where the RAD has deferred on some or all findings. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [6] In support of her appeal, the Appellant proposes four documents as new evidence: 1) Photographs from a Protest on 1 December 2017;4 2) Photograph of Police Notice, dated 13 October 2016;5 3) Letter from Oromo Canadian Community Association (OCCA), dated 18 December 2017.6 4) Links to YouTube videos of Protests, published August 2016 and August 2017;7 [7] Evidence from the person who is the subject of the appeal is only admissible on appeal if it meets one of the statutory conditions set out in subsection 110(4) of the IRPA, namely that it arose after, or was not reasonably available, or the person could not reasonably have been expected in the circumstances to have presented the evidence at the time the claim was rejected. If one of these conditions is met, the RAD will then consider if the evidence is credible, relevant, and new as endorsed by the Federal Court of Appeal in Singh.8 The Police Notice The Appellant's Argument [8] The Appellant states in her affidavit that her brother was afraid to take a photograph of the police notice posted at the police station and afraid to send it from Ethiopia. She argues that her reasons for not having a photograph of the police notice at the time of her hearing is plausible, given the objective information about suspicion towards Oromos and extensive monitoring of electronic communications. She submits that the photograph appears to be an authentic document posted on a wall and that the timing of the wanted notice is consistent with the brother's second letter where he emphasizes that he fears she will be detained and killed. It is also plausible that if he was afraid to take and send her a photo of it, this could have prompted him to tell her more emphatically that she must not return, as well as plausible that the authorities could announce that she is wanted in the context of her failure to return, having protested in Canada. She submits it is also consistent with the authorities being aware she is not present. The Appellant argues that she cannot be blamed for not producing, or not having been informed of, supporting evidence that was not in her control. The RAD's Assessment [9] I reject the Appellant's submission and find the police notice is inadmissible as new evidence for reasons of credibility. [10] On a balance of probabilities, I find the copy of the police notice is a fraudulent document. First, on the face of the document provided, it appears to be a request for the Appellant to report to the police station, such as a summons, not a warrant or an indication that she is wanted for a particular crime. I come to this conclusion on the basis that it is addressed to her and asks her to report to the police station at a specific date and time,9 and because if it was a warrant, it would likely identify the criminal offence for which she is wanted, as well as the place, the date, the law, the act, and the moral element, among others for which the accused is charged.10 However, even though it appears to be a request to report, it is also not consistent with the description in the National Documentation Package (NDP) for the appearance of a summons, nor is it consistent with the sample summons attached to item 10.2. Specifically, the NDP indicates that it would likely include the Appellant's address, but the Appellant's address is not mentioned. In addition, the NDP states that such a document if not delivered to her would be posted on the Appellant's door, or if she was not home, a copy given to a family member.11 The document's inconsistencies with the information in the documentary evidence undermines its credibility. [11] Second, I also do not believe that the Appellant's brother was unable to obtain a copy of the document considering the objective documentary evidence states that such a document could be posted on one's door or given to a family member. I note that the Appellant's affidavit is vague about when or how the Appellant's brother came to learn of its existence, especially considering no statement is provided by her brother to explain how and when he learned about the document at the police station. This is particularly noteworthy in light of the fact that the Appellant's brother does not reside in XXXX where the police station is located, but in XXXX 15 kilometres away. Considering the Appellant testified that the police visited her brother's home at one point to allegedly look for her, it is not likely that her brother could not get a copy of it. It is also unlikely that if the police wanted the Appellant to report to the police station at a particular date and time that this would only be posted on the wall of the police station, where she would be unlikely to see it, instead of providing it to her home or family members who could inform the Appellant of a request to report. It also makes no sense for the summons to continue to be posted at the police station more than a year after the requested report date of October 16, 2016. Especially in light of the fact that the notice indicates no criminal consequences for the Appellant if she failed to report at the requested time. [12] Third, the Appellant states that this document was sent to her through WhatsApp, by a person of the name XXXX, who she claims is her brother's nickname. However, I note that the NDP states that throughout the Oromo protests WhatsApp has been blocked, filtered and monitored by Ethiopian authorities, which has meant WhatsApp has been inaccessible since 2016 in Ethiopia.12 In addition, if her brother was so concerned about being caught taking a photo of the police notice, I doubt he would have sent it to her through his mobile device, which the NDP states that the government regularly monitors and records telephone calls of family members and friends of suspected opposition members and intercepts digital communications with highly intrusive spyware.13 Further problematic with WhatsApp messages, is that they are unreliable, as there is no way to confirm that the person sending the document was in Ethiopia, or that the number is her brother's number, especially in light of the lack of a screenshot of the WhatsApp message to corroborate how and when she received the document. For the above reasons, I find on a balance of probabilities that the document was not sent by the Appellant's brother in Ethiopia through WhatsApp. [13] Based on the above credibility concerns mentioned above on the face of the document, the circumstances in which it came to her and her brother's attention, and how the Appellant received the document from her brother, I find on a balance of probabilities that the police notice is not a genuine document. Therefore, since the source and circumstances in which the document came about is lacking in credibility, I find it inadmissible as new evidence. [14] I further find that, in tendering a fraudulent document in support of her claim, the Appellant has again undermined her general credibility and the credibility of the other documents she has tendered in this claim. I find the Appellant has demonstrated that she is not a witness to be trusted. The submission of fraudulent documents as new evidence in this appeal is particularly egregious, as they were clearly submitted as an effort to offset negative credibility findings in the RPD's decision with respect to her political involvement prior to leaving Ethiopia that would make her wanted by the authorities, as well as heighten her alleged political profile.14 Online Videos / YouTube Links and the OCCA Letter The Appellant's Argument [15] The Appellant submits that she was only informed of the online videos by chance when she was referred to a lawyer who has previously represented a speaker at one of the protests, and who knew the protests were online. In addition, it was her appeal counsel who suggested the OCCA could confirm her participation. She submits that she cannot be blamed for not having known this "in the circumstances" at the time of her hearing. She submits that it was evident that her counsel at the RPD hearing treated the simple fact that she was photographed at protests as sufficient. Objectively, she argues that since these show her holding up signs that would be offensive to the Ethiopian regime, she and her counsel could have presumed they were adequate. The Appellant argues that it is important for the RAD to admit this evidence going to the central issue to ensure justice is done in the appeal, and that the RAD could grant the appeal without reference to this new evidence, based on the fact that the Ethiopian regime monitors protests; however, it would be just, appropriate and in keeping with the statutory provision of new evidence for the RAD to admit and consider it. The RAD's Assessment [16] I reject the Appellant's submission and find the online videos are inadmissible as new evidence. I note that at the time of writing, only the video posted on August 15, 2016 was available on YouTube. The video of the alleged protest on August 19, 2017 was not available at the link provided.15 Regardless, I find it is unlikely that the Appellant was unaware that there was a video of the protest, as it is clear in the video posted on August 15, 2016 that large TV cameras are present, as well as journalists. In one portion of the video, a journalist is seen interviewing a protestor. In addition, I note that the Appellant's counsel who represented her before the RPD, represents many Ethiopian refugee claimants before the Board. As such, I doubt that having obtained photos of her participation in the protest, which were provided to the RPD for the purpose of establishing her political activism in Canada and a sur place claim, she would not have inquired about whether there is video of the protest, especially considering the documentary evidence in the NDP mentions that Ethiopian authorities monitor media from the diaspora communities and block such content from appearing in Ethiopia,16 as well that persons in the diaspora appearing on media, such as ESAT, report being "intimidated" by Ethiopian security officials outside of Ethiopia or have had family members inside Ethiopia targeted after appearing on the ESAT network.17 There is also evidence that Ethiopian authorities monitor those who are politically active in the diaspora.18 [17] I also reject the argument that former counsel and the Appellant could have presumed that the photographs of her attendance at the protest would have been sufficient to establish objective risk. I do not accept this submission, as there is no indication that the photographs were publically available, or that Ethiopian authorities could personally identify her based on such a photo. In essence, the Appellant's explanation for why she could not provide these online videos to the RPD implies that her former counsel provided inadequate representation by not alerting her to the prospect that there may be video of her attending protests in August 2016. Considering her former counsel's extensive experience representing Ethiopian claimants before the Board, as well as the information in the NDP about the Ethiopian regime monitoring political activists, I find it unlikely that her counsel would not inquire about the availability of video of the protests she attended. Moreover, blaming former counsel is easy to do, but notice must be given to former counsel in order to give him an opportunity to respond to such an accusation. Notice to former counsel is a prerequisite for any allegation of inadequate representation. In light of the above considerations, as well as the fact that the Appellant has provided a fraudulent document as new evidence, and considering she is not a credible witness, I do not find it credible that the Appellant did not become aware that there are public videos of protests she attended until December 2017. Considering the content of the videos and the Appellant blaming former counsel without providing notice, I find the Appellant has not established that she could not have presented evidence of the videos to the RPD prior to the rejection of her claim. The videos were available more than a year before the RPD's decision. Therefore, subsection 110(4) is not satisfied and the videos are inadmissible as new evidence. I have no discretion to admit evidence that does not comply with 110(4).19 [18] With respect to the letter from OCCA, I find this too is inadmissible. The letter from the OCCA states that she attended protests on August 15 and 19, 2016. However, the Appellant provided a letter from OCCA in support of her claim to the RPD that was dated August 20, 2016, yet she provides no explanation for why her participation and her willingness to participate in such protests could not have been included in the letter dated August 20, 2016. Therefore, I find that the content of the OCCA letter referring to her involvement in the August 15 and 19, 2016 protests, as well as her willingness to participate was reasonably available at the time of rejection. Therefore, the criteria under subsection 110(4) is not met and the content of the letter referring to these matters is inadmissible. Protest Photographs December 2017 The Appellant's Argument [19] The Appellant argues that the photographs of her participating in a protest in December 2017 could not have been adduced, as they are recent. The letter from OCCA corroborates her participation at this event on December 12, 2017. She argues it is probative and puts her at objective risk. The RAD's Assessment [20] Since this evidence relates to activities that post-date the rejection of the Appellant's claim, I find the Appellant could not reasonably have been expected in the circumstances to have presented this evidence at the time of the rejection. On their face they show the Appellant at a protest and they are relevant because the Appellant alleges they show her political activity in Canada with respect to her sur place claim. Her participation at the protest is credible as it is corroborated by the OCCA letter dated December 18, 2017. Therefore, the photographs meet the requirements of 110(4) and Singh and are admissible as new evidence. Documents Not Previously Provided (Rule 29 Application) [21] The Appellant submitted three documents after the submission of her appeal record on July 3, 2018. However, she does not provide an application under Rule 29 of the Refugee Appeal Division Rules for the admission of submissions or documents not previously provided. The Appellant's documents include a letter from the Appellant, a letter from her brother, and a letter from the XXXX XXXX XXXX XXXX of Canada.20 [22] Rule 29 allows the Appellant to make an application to provide a document not previously provided. Such an application must include an explanation of how the document meets the requirements of subsection 110(4) of the IRPA and how that evidence relates to the Appellant.21 In determining the application, the RAD must consider any relevant factors, including: the relevance and probative value of the document, any new evidence the document brings to the appeal, and whether the Appellant could have, with reasonable effort, provided the document with the Appellant's Record. [23] In this case, no submissions are provided in compliance with the rules that would assist me in assessing whether I can accept the documents not previously provided. In the absence of clear submissions, I have no obligation to do the Appellant's work and to imagine reasons why her documents should be accepted under a Rule 29 application or how her documents are admissible under 110(4). Regardless, having reviewed these documents, I find the Appellant's letter and the letter from her brother are not relevant to the issues in this appeal. They mention the difficulties and hardship of the Appellant's children in Ethiopia after her nanny resigned. They mention nothing about any threats or harm to them or to the Appellant as a result of her alleged political activism. Rather, they simply request that her appeal be expeditiously decided. The letter from the church on the other hand, is a support letter about the contributions that the Appellant can make to Canada if she was a permanent resident, that she is a member of the church and about country conditions in Ethiopia. Such information is not new, or relevant to this appeal, and the Appellant has not established why such a letter from the church could not have been provided at the time the appeal record was submitted. [24] For the above reasons I reject the documents submitted on July 3, 2018. Request for an Oral Hearing [25] The Appellant requests an oral hearing based on this new evidence because she submits it is probative, but makes no further submissions under rule 3(3)(g)(v) on why the RAD should hold a hearing under subsection 110(6). [26] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.22 [27] The photographs that were accepted do raise concerns about the Appellant's credibility and sur place claim, but they are simply not central to the decision rejecting her claim and cannot justify allowing or rejecting her claim. This is because there is no evidence that her attendance has come to the attention of the Ethiopian authorities and, for the reasons provided below, they do not establish a political opinion against the government of Ethiopia. Therefore, the new evidence admitted does not meet the requirements of subsection 110(6), and I decline the Appellant's request for an oral hearing. ISSUES IN APPEAL [28] The Appellant argues the following issues in her appeal: a. The RPD erred by not considering her objective risk and her sur place claim.23 ANALYSIS Credibility [29] Although the Appellant states in her affidavit and submissions that she had difficulty remembering dates in the Gregorian calendar and that she should have testified using the Ethiopian calendar, she does not contest the RPD's credibility findings in this appeal. In fact, the Appellant acknowledges that she was contradictory, but that it would have been open to the RPD to forgive the contradictions and confusions based on her difficulty remembering dates in the Gregorian calendar and in the context of the pressures and stress in a refugee hearing. [30] In regard to the Appellant's claim that her contradictions were due to her difficulty remembering Gregorian dates, I do not accept this explanation for the RPD's credibility findings, as she did not raise this as an explanation for her inconsistencies at the RPD. While her former counsel made submissions that this was the case before the RPD, there is no evidence in the record before the RPD to support this submission. The Appellant's counsel speculated. Also, if this was the Appellant's explanation for her contradictory and confusing testimony at the RPD, she should have mentioned it at the RPD. She provides no reasonable explanation for why she is now providing this explanation for her testimony at the RAD. The RAD is not the Appellant's opportunity to repair a deficient record before the RPD. Furthermore, having reviewed the whole record, including the audio recording, I do not believe that her use of the Gregorian calendar explains the inconsistencies. For example, the RPD confirmed her testimony about when specific events occurred on several occasions using the Gregorian calendar. She would have had ample opportunity throughout the hearing to mention that she was confusing the dates, and I note that no issues were raised with the interpreter. I reject this explanation for the RPD's credibility finding. [31] Therefore, considering the Appellant does not contest the RPD's credibility findings, I nevertheless reviewed the entire record and completed my independent assessment and I see no reason to interfere with the RPD findings that are not contested by the Appellant. They are correct and based on the evidence in the record. I agree with these findings for the same reasons provided by the RPD. There are sufficient reasons to support the RPD's credibility findings about her central allegations. It was correct for the RPD to find that the Appellant did not participate in a protest prior to leaving Ethiopia, Ethiopian authorities did not attend her home and office looking for her, and that she has not come to the attention of Ethiopian authorities due to her political views. Moreover, since she alleged that she would be wanted due to her political activities, the RPD found that she is not wanted by the Ethiopian government or security apparatus as she alleges, nor would she be targeted by them should she return to Ethiopia. Therefore, I find the Appellant lacking in credibility on these material aspects of her claim and it was correct for the RPD to conclude the Appellant was lacking in overall credibility. Objective Risk The Appellant's Argument [32] The Appellant argues that key elements of her testimony were not disputed, such as her Oromo identity, that she was a lawyer at a contentious Oromo municipality, that she overstayed her Canadian visa, and that she protested in Canada. It is upon these facts that she argues there is an objective basis for her risk if she returns to Ethiopia. She submits that the RPD completely failed to consider any objective evidence that supports her risk on these accepted facts. Admission of Participating in Protests in Absence of Surveillance [33] The Appellant argues that even if the Ethiopian regime engaged in no surveillance of protests abroad the Appellant could not admit to what she has already done in Canada without being persecuted, as it cannot be presumed that a person should have to lie to not be persecuted if she returns to her country. She submits that the RPD member does not have any basis to dispute that if she admitted to having taken part in the Oromo diaspora's protests against the regime in the context of the unprecedented repression happening now, she would be persecuted. Overstaying her Visa [34] The Appellant argues that she would be returning after overstaying a Canadian visa, in a context in which it is notorious that Ethiopians who are unable to express themselves within Ethiopia have gone abroad to express their opinions freely. Since she is of the Oromo ethnicity, which is enough to trigger suspicion of opposition to the regime, and she is a lawyer from a focal point of the protest, her profile would make it inherently suspect that she would sympathize with the Oromo protest movement. Therefore, the regime could suspect her of having overstayed in Canada because she was supportive of what the regime is doing in her region, and that she claimed refugee status, or took part in dissent as part of the diaspora. [35] She submits it would be more suspect for a former municipal XXXX from XXXX to overstay abroad in this context, let alone overstaying in a place known to host Oromos protesting against the regime. She states that her profile before she left Ethiopia was inherently political, as a lawyer in a contentious municipality and there are documents confirming protests and detention in Sululta just prior to her departure in December 2015 and arrests and repression in 2016. The RAD's Assessment [36] I reject the Appellant's submissions. I observe that the Appellant's submissions frequently rely on the RAD's decision in TB7-06703. However, I am not bound by this decision, as each case must be assessed on its own merits. Furthermore, in that case, there appeared to be evidence in the record that the Appellant was videotaped as a speaker at a protest in Canada, speaking out against the regime. The Appellant in that case was clearly identifiable. Similar facts are not present in this case, and therefore, it is distinguishable. [37] I carefully reviewed the documentary evidence related to the treatment of Oromos in Ethiopia. The country itself is presently in turmoil as a number of protests against the regime are being held throughout Ethiopia causing arrests, torture and even death of protestors.24 The documentary evidence also suggests that political opponents to the government are facing risks of detention, torture and even disappearance. As for the Oromos, the NDP contains a report about the repression of people from that origin in Oromia land.25 This document reports numerous cases of arbitrary arrests and detentions. For instance, at least 5,000 Oromos have been arrested between 2011 and 2014 as a result of their actual or suspected peaceful opposition to the government, based on their manifestation of dissenting opinions, exercise of freedom of expression or their imputed political opinions.26 The report states that members of these groups - opposition political parties, student groups, peaceful protestors, people promoting Oromo culture and people in positions the government believes could have influence on their communities - are treated with hostility not only due to their own actual or perceived dissenting behaviour, but also due to their perceived potential to act as a conduit or catalyst for further dissent. Expression of Oromo culture and heritage have also been interpreted as manifestations of dissent, and the government had also shown signs of fearing cultural expression as a potential catalyst for opposition to government. Because of this, Oromo artists, writers and poets have been arrested for allegedly criticizing the government.27 [38] While being Oromo may represent a risk of being identified as a political dissident in Ethiopia, which would lead to the possibility of persecution, I do not find she faces a serious possibility of persecution for the following reasons. According to documentary evidence, the Oromo constituted 34.4% of Ethiopia's population, which is estimated to be almost 100 million.28 I do not reach the conclusion that all these people are automatically facing a serious possibility of persecution because they are Oromo. The documentary evidence also indicates that Oromo victims of arbitrary arrest or detention were suspected of being a political opponent for different reasons, such as participating in protests or in some cases celebrating their culture. The documentary evidence consequently suggests that the state authorities are targeting individuals from the Oromo background because they have reasons to identify them as political opponents. Political Profile [39] Although the Appellant is an Oromo, as well as previously a XXXX and a civil servant for the XXXX municipality, I find that this does not heighten her profile to establish a serious possibility of persecution. I note that since the EPDRF came to power, Oromos have participated directly in the governing coalition through the Oromo People's Democratic Organization (OPDO). OPDO members are ministers in the federal government and hold a range of public positions of power and influence at the federal level. In particular, the President, the Deputy Prime Minister and the House Speaker are Oromo.29 Furthermore, I note that the Appellant was found not credible about having participated in protests in Ethiopia against the government and the Master Plan, and there is no persuasive evidence in the record that police are looking for her. In fact, the RPD concluded she was not being sought by authorities in Ethiopia, a finding the Appellant does not contest. In addition, she was able to live and work in XXXX for six years as an Oromo and municipal XXXX without any difficulties, despite there being various crises and protests in Oromia throughout this period against the government by Oromos, and her allegedly using her "position to protect innocent people of XXXX when they brought forward complaints related to land and property."30 Had the Appellant been of interest to authorities due to her political profile, there is documentary evidence to support that her family members would have also experienced difficulties of their own due to her activities.31 However, none of her family members have experienced any difficulties from the Ethiopian regime, despite them also being Oromo and living in Oromia.32 Therefore, I find the Appellant does not face a serious possibility of persecution if she returned to Ethiopia because she was a municipal XXXX in XXXX in the Oromia region. Attending Political Protests in Canada [40] The Appellant submits that her sur place claim is credible based on the evidence of photographs showing her participating in protests in Canada in August 2016 and December 2017. The Appellant's summary of the documentary evidence in the NDP evidence states that the Ethiopian intelligence agencies monitor dissent and protests in the diaspora, and in particular targets media activities like the Ethiopian Satellite Television media group (ESAT) by targeting their employees and using surveillance spyware. She also submits that the regime sends people with cameras to ESAT events to record who participates, and that anyone involved in an ESAT event in Canada could be expected to be noted by the regime's agents.33 Additional NDP documents show that the regime has a sophisticated computer espionage system and has established the INSA, which is responsible for monitoring dissent on the Internet and using computer connectivity to infiltrate the computers of dissidents.34 Several sources indicate that Ethiopian authorities are said to have agents abroad and to monitor membership and involvement in opposition politics of the Ethiopian diaspora. According to item 4.4 of the NDP, a representative of Andinet Toronto states that there is "strong evidence to suggest that anyone who is actively involved in Ethiopia[n] politics while in [the] Diaspora is subject to scrutiny and probably harassment when he or she travels to Ethiopia."35 [41] The Appellant alleged that she attended three protests in Canada. The first two events she attended in August 2016 and she provides photographs of her holding up a sign stating that the government is the enemy of the people.36 However, I find that the Appellant would not face a serious possibility of persecution if she returned to Ethiopia for participating in the August 2016 protests in Canada. First, there is no evidence in the record that these photographs are available publicly and who possesses the photographs submitted into evidence. Second, assuming without deciding that video of the protest exists, I have no persuasive evidence that the Ethiopian authorities would be able to personally identify the Appellant simply because she appeared on a video. In this regard, I have reviewed the documentary evidence and although it mentions that Ethiopian regime spies on diaspora media and political activists, I have found nothing in the documents to conclude that they possess sophisticated facial recognition software that would also enable them to personally identify the Appellant through a photograph or video. She provides no evidence that she has provided her name to individuals or organizations that would disclose this evidence to the Ethiopian government. Third, there is no evidence that the protests she attended in August 2016 were ESAT events. In my view, there is insufficient credible and trustworthy evidence to find that the Appellant's attendance at protests in Canada in August 2016 has come to the attention of Ethiopian officials. In fact, the evidence is that her family back in Ethiopia have experienced no problems in Ethiopia due to the Appellant's alleged dissent behaviour.37 This is no indication that she has not been personally identified by Ethiopian authorities as a political dissident. This is further supported by other information in the NDP about Oromos who protest the Ethiopian regime, which states that "simply taking part in the protests is unlikely to bring a person to ongoing adverse attention of the authorities such that it would create a real risk of persecution or serious harm on return."38 Therefore, I find the Appellant has not established it to be more likely than not that she is known or could be identified, personally, by Ethiopian authorities for her participation in protests in Canada. [42] With respect to the photographs of the Appellant at the protest in December 2017,39 the Appellant states that it was not a protest against the Ethiopian regime, but she believes it would be seen as an indirect criticism of the Ethiopian government because the refugees in Libya are there because they had fled from oppression by the Ethiopian regime. I reject this submission and give the photographs from the protest in December 2017 no weight. There is no objective evidence to support the contention that the Ethiopian government would see such a protest about the treatment of refugees in Libya as against the regime. The photographs provided simply refer to anti-slavery and refer to refugees in general in Libya. While the Appellant states that these are critical of the Ethiopian government, I can see nothing of the sort based on the photographs provided. There is no mention at all about Ethiopia, and there are many refugees, from many nationalities, in Libya. There is no objective evidence before me linking a critique of the slave trade of refugees in Libya as a critique of the Ethiopian government. In my opinion, this is too remote. Furthermore, as stated above, there is no evidence about who possesses these photographs, whether they are public, and whether her family have experienced any difficulties due to her activities in Canada in December 2017. In my view, her participation in a protest against slavery in Libya would be of little interest to the Ethiopian government. Therefore, I do not believe that an anti-government opinion would be imputed to the Appellant based on her participation at this protest, or that the Ethiopian regime would have monitored such a protest and identified her personally. [43] For the above reasons, I find that the Appellant has not established that there is a serious possibility she will face persecution should she return to Ethiopia for having participated in protests in Canada where her picture was taken. Expired Visa [44] The documentary evidence in the NDP concerning members and those involved in the UDJ states that there are cases of expatriates being detained upon arrival at the airport, interrogated, and "intimidated" by security, and that some people suspected of having political objectives or of being anti-government can be detained at the airport and sent to jail or threatened with charges of terrorism. In other cases, "when the political costs of detention are higher for the government, individuals are deprived of business or investment opportunities as retaliation for their involvement in opposition politics." One source explained that Ethiopians who live abroad try to conceal their political affiliations or memberships to any international Andinet chapter when going to Ethiopia, in order to draw less attention to themselves.40 [45] However, in this case I have found above that there is no persuasive evidence showing that the Appellant's involvement in a protest in Canada has come to the attention of Ethiopian officials. I note that in regard to the documentary evidence just cited, the Appellant has not identified any political memberships or affiliations other than her Oromo profile and having attended a few protests in Toronto. I have also scoured the NDP and found there is no evidence that persons returning from abroad with expired visas are automatically viewed as dissidents against the Ethiopian government, or failed asylum-seekers. In this case, the Appellant visited Canada on a B-1 visa and the refugee determination system in Canada is confidential, there is no reason to believe that the Appellant's refugee claim would become known to Ethiopian officials. It is just as likely that she overstayed a business visa and worked illegally in Canada. In my review of the NDP, I have not found evidence that persons having possessed an expired visa from Western countries are being routinely questioned, detained and arrested upon return to Ethiopia. On the contrary, Ethiopian citizens have a right to travel abroad, emigrate, and repatriate.41 In the absence of evidence of similarly-situated persons returning from Western countries, as well as the facts in this case about the Appellant's circumstances, I find it is speculation to conclude that the Appellant faces a risk upon return to Ethiopia for having overstayed a Canadian visa and that Ethiopian authorities would impute an anti-government political opinion on her. It is also speculative to presume that at the time of her return to Ethiopia, which at this time is undetermined, she would be travelling on a valid passport with an expired Canadian visa. In this respect, the RAD is guided by the Federal Court Trial Division decision in Wang,42 which held that a sur place claim 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. Based on the all the evidence before me, I find the Ethiopian authorities have no interest in the Appellant and she has not established with sufficient credible and trustworthy evidence that she will be identified as a dissident upon return to Ethiopia for overstaying a Canadian visa and for making a refugee claim. CONCLUSION [46] After conducting its own analysis of the entire record, the RAD finds that the RPD did not err in its credibility findings. In addition, the RAD finds that the Appellant has not established an objective risk or a sur place basis to warrant protection. Therefore, the Appellant is not a Convention refugee or a person in need of protection, and the appeal must be dismissed. DETERMINATION OF THE APPEAL [47] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).43 (signed) "G. Erauw" G. Erauw October 25, 2018 Date 1 Exhibit RPD-1, RPD's Record, Appellant's Basis of Claim (BOC) form, at pp. 10-23; and Exhibit RPD-1, RPD's Record, Audio Recording. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 X (Re), 2017 CanLII 33034 (CA IRB). 4 Exhibit P-2, Appellant's Record, Photographs of December 2017 Protest, at pp. 15-18. 5 Exhibit P-2, Appellant's Record, Photograph of Police Notice, at pp. 13-14. 6 Exhibit P-2, Appellant's Record, Letter from Oromo Canadian Community Association, 18 December 2017, at p. 19. 7 Exhibit P-2, Appellant's Record, Appellant's Affidavit, at pp. 11-12, at paras. 7-8. 8 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 9 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Ethiopia, 31 March 2017, at item 10.2. 10 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 3.8. 11 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 10.2. 12 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at items 2.1, 2.5, 4.11, 11.2, 11.7, and 13.2. 13 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 4.11, at p. 40. 14 See Wu v. Minister of Citizenship and Immigration, 2018 FC 779, at paras. 10-11. In certain circumstances, the RAD is able to rely on the Appellant's submission of fraudulent documents in its credibility of the Appellant even though the new evidence was excluded due to credibility concerns and without being required to hold a hearing to address that document. 15 The Appellant's affidavit refers to having attended a protest on the August 19 in 2016 and 2017. Since there is no video available of an August 19 video the exact date cannot be confirmed. Nonetheless, both these dates are before the RPD's decision. 16 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 11.6 and 11.7. 17 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 11.6. 18 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 4.4. 19 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 35. 20 Exhibit P-3, Appellant's Record, Post-Perfection Documents, unpaginated. 21 Rule 29(3), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 22 Subsection 110(6), Immigration and Refugee Protection Act, S.C. 2001, c. 27. 23 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 37-41, and 42-47, at paras. 17-28, and 32-45. 24 See country condition documents, Exhibit RPD-1, RPD's Record, Exhibits 7 and 8, at pp. 109-424. 25 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 13.4. 26 Ibid, at p. 8. 27 Ibid. 28 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, item 1.9, at p. 9. 29 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 1.9, at p. 15. 30 Exhibit RPD-1, RPD's Record, Appellant's BOC, at p. 21. 31 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 4.11, at p. 40; at item 13.4 at p. 53. 32 Exhibit RPD-1, RPD's Record, Appellant's BOC, at p. 16. 33 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 11.6. 34 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 11.7. 35 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 4.4, at p. 14. 36 Exhibit RPD-1, RPD's Record, Photographs of August Protest, at pp. 130-132. 37 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 4.11, at p. 40. 38 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 1.9, at p. 6. 39 Exhibit P-2, Appellant's Record, Photographs of December 2017 Protest, at pp. 15-18. 40 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 4.4, at p. 14. 41 Exhibit RPD-1, RPD's Record, NDP for Ethiopia, 31 March 2017, at item 14.3. 42 Wang, Kong Ping v. M.C.I., (F.C.T.D., no. IMM-6298-99), Pelletier, November 14, 2001, 2001 FCT 1237. 43 Paragraph 111(1)(a), Immigration and Refugee Protection Act, S.C. 2001, c. 27. [IRPA]. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-23482 RAD.25.02 (September 18, 2018) Disponible en français 20 RAD.25.02 (September 18, 2018) Disponible en français