TC0-05156

RAD File / Dossier de la SAR : TC0-05156 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 16, 2020 Date de la décision Panel I. Singh Tribunal Counsel for the person who is the subject of the appeal Daniel T. Kebede Conseil de la personne 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 (Appellant), citizen of Ethiopia, appeals a decision of the Refugee Protection Division (RPD), dated January 24, 2020, rejecting his claim for refugee protection. DECISION [2] The appeal is allowed. I send this matter back to the RPD to be redetermined. BACKGROUND [3] The Appellant alleged before the RPD that, upon return to Ethiopia, he fears he will be harmed by the Ethiopian government and its agents due to his Oromo ethnicity and anti-government political activities. [4] The Appellant's application for refugee protection was heard on September 11, 2019. By a decision of January 24, 2020, the RPD rejected the claim. The RPD found the determinative issue was credibility. [5] The Appellant submits that the RPD erred by ignoring relevant evidence, in its assessment of the Appellant's credibility and sur place claim, and in failing to assess the Appellant's residual profile. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [6] My role is to look at all the evidence and decide if the RPD made the correct decision.1 ANALYSIS Merits of the Claim [7] The RPD found the Appellant's credibility was diminished because: he was unable to provide any general insight, beyond his family's situation, with regard to the annexation process being faced by the Oromo; the Appellant omitted suffering any injuries during a protest from his Basis of Claim (BOC) form and the disclosure of this detail at the hearing was likely an embellishment; the Appellant was unable to provide details regarding his XXXX 2015 detention; it is implausible that the police fit 200 protestors in a truck and 80 detainees in a single room; the Appellant testified inconsistently with his BOC with regard to whether he was interrogated in detention; and as there was no evidence that the Appellant's political activities in Canada against the Ethiopian regime have come to the attention of the Ethiopian authorities, no sur place claim was found to exist. [8] The Appellant argues the RPD erred: a. By failing to assess the Appellant's corroborative evidence, including evidence that establishes his Oromo ethnicity and the allegations in his claim; b. By failing to consider the Appellant's psychodiagnostics report by Dr. XXXX in assessing the Appellant's credibility; c. In its credibility assessment by ignoring relevant evidence, misapprehending the evidence such as with regard to how far the camp was and how long it took to get there, failing to confront the Appellant on issues such as his omission of his injury from his BOC and the inconsistency about his interrogation, relying on secondary issues, making unreasonable implausibility inferences regarding how many people were put in the truck, searching through the evidence to find contradictions where none existed, failing to make a clear finding about the Appellant's allegation that his and his neighbour's houses were demolished and they were beaten and detained, failing to make clear findings about the central allegations in the claim, and by making adverse credibility findings without regard to the totality of evidence; d. In rejecting his sur place claim by applying the wrong test, which put the burden of proof too high on the Appellant and which was not required by law; and e. In failing to consider whether the Appellant's ethnicity coupled with his political opinion exposes him to risk. [9] I find that the RPD erred in the manner argued by the Appellant, these errors are fatal to the RPD's credibility analysis, and therefore they render the RPD's conclusions unsustainable. [10] I find the RPD erred by failing to assess the Appellant's corroborative evidence in any meaningful detail, which the Court has stipulated against.2 The RPD was also required to examine the Appellant's documents even if they were not sufficient to overcome its credibility concerns.3 [11] I also find the RPD erred in failing to consider the Appellant's psychodiagnostics report in assessing his credibility. The report speaks to the Appellant's difficulties with recalling past traumatic events, memory, focus, and concentration. The RPD erred by failing to consider how these factors may have impacted upon the Appellant's testimony, especially since the report was relevant to its credibility findings.4 [12] With regard to the RPD's credibility findings, I find the RPD erred here as well. In conducting my independent assessment of the record, including the audio recording of the hearing, I agree with the Appellant that the RPD misapprehended the evidence with regard to how far the camp was and how long it took to get there, as the RPD did not allow the Appellant an opportunity to estimate after he asked to do so. Further, I find the RPD erred in failing to consider how the findings of the psychodiagnostics report may have impacted the Appellant's testimony in this regard. [13] The Appellant argued the RPD erred by not confronting him about the omission of his injury from his BOC and the inconsistency about his interrogation. Having review the audio recording of the hearing, I find that the RPD did not put its concerns to the Appellant, and therefore erred as this contravened its duty according to the caselaw.5 [14] While I am not persuaded that the RPD simply searched through the evidence to find contradictions where none existed and that the RPD's findings were solely on secondary issues, I am persuaded that the RPD did not have regard to the totality of the evidence and failed to make clear findings about the central allegations in the claim, including about the Appellant's allegation that his and his neighbour's houses were demolished, and they were beaten and detained. [15] I also find that the RPD erred by making implausibility findings about how many individuals were in the truck and the detention room. There were no questions asked to determine the size of the truck and room. I do not find that these implausibilities warranted negative credibility inferences against the Appellant. [16] With regard to the Appellant's sur place claim, I find the RPD erred by applying the incorrect legal test. [17] Lastly, I agree with the Appellant that the RPD failed to consider his Oromo ethnicity as a residual profile upon which to grant protection. [18] As credibility was the lynchpin of the RPD's decision, I accordingly find the negative credibility findings made by the RPD are not sustainable in light of my findings above. [19] Upon my own review of the record, I also have concerns with the Appellant's credibility and that of his allegations of persecution, including his political knowledge, motivations, and activities in Ethiopia and Canada, and his detention in Ethiopia. However, given the insufficiency of evidence in the record and without the benefit of hearing oral evidence on these issues, informed by the psychodiagnostics report, I am of the opinion that I cannot provide a final determination of the claim. Therefore, the matter is referred back to the RPD for redetermination. CONCLUSION [20] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act, the RAD refers the matter back to the RPD for redetermination by a differently constituted panel. (signed) Inderpreet K. Singh I. Singh December 16, 2020 very good use of heading Date Date 1 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 2 Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC). 3 Haramicheal v. Canada (Citizenship and Immigration), 2016 FC 1197 (CanLII). 4 Min v. Canada (Minister of Citizenship and Immigration), 2004 FC 1676 (CanLII), at paras. 5-9. 5 Mohamed v. Canada (Citizenship and Immigration), 2015 FC 1379 (CanLII). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-05156 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français