VB7-07285

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 : VB7-07285 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 Vancouver, BC Appel instruit / entendu à Date of decision September 19, 2018 Date de la décision Panel Paula Faber Tribunal Counsel for the person(s) who is(are) the subject of the appeal David Matas 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 INTRODUCTION [1] XXXX XXXX XXXX (appellant) is a citizen of Eritrea, she has appealed a decision of the Refugee Protection Division (RPD), dated November 15, 2017, rejecting her claim for refugee protection. DETERMINATION [2] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA),1 the Refugee Appeal Division (RAD) sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely, that Ftaw Sium Tesfatsion is a Convention2 refugee pursuant to section 96 of the IRPA. BACKGROUND AND OVERVIEW OF APPEAL [3] The appellant is a 70 year old mother of draft age children in Eritrea who evaded mandatory military service by leaving Eritrea without permission. She alleges that she has been arbitrarily detained in the past because of these evasions and fears that she will be arbitrarily detained if she is to return to Eritrea since her four draft evading children remain abroad. Her youngest son remains in Eritrea, and he, like his older siblings, may also evade conscription by leaving Eritrea. [4] The appellant left Eritrea on XXXX XXXX, 2016, and travelled to the United States with a visa. She arrived in Canada on XXXX XXXX, 2017, and made a claim for refugee protection. [5] The claim was heard by the RPD on October 11 and October 20, 2017. In a written decision dated November 27, 2017, the appellant's claim was rejected by the RPD. APPELLANT'S ARGUMENTS [6] The appellant argues that the RPD made the following errors: 1. An adverse credibility finding was made that was neither correct nor reasonable; 2. The RPD failed to consider the Chairperson's Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the [Immigration and Refugee Board] IRB (Vulnerable Persons Guideline);3 3. The RPD failed to address the evidence of a witness; and, 4. The RPD misread the country condition information. [7] The appellant does not seek to present "new" evidence to the RAD pursuant to subsection 110(4) of the IRPA.4 RPD DECISION [8] The RPD's negative determination is based in part on the following findings: 1. The appellant's allegations were undermined because of inconsistencies and contradictions in her testimony and statements with respect to her allegations; 2. The appellant failed to establish that she faces more than a serious possiblity of persecution because she received a passport and an exit permit from the Eritrean authorties; and, 3. The appellant had not established that her asylum claim has or would come to the attention of the Eritrean authorities if she is to return to Eritrea. [9] Based on negative credibility findings the RPD concluded that the appellant was neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the IRPA respectively.5 ROLE OF THE RAD [10] With respect to questions of fact, mixed fact and law, I have applied the standard of correctness as per Huruglica.6 The RAD may defer to the RPD's credibility assessment of the oral testimony if it finds that the RPD had a meaningful advantage in the circumstances. [11] In this case, I find that the RPD did not have any real advantage in assessing the appellant's credibility that would lead to deference to its finding regarding it. The RPD has not identified any difficulties with the appellant's testimony where the RPD would have been in a better position than the RAD to judge it. RAD ANALYSIS [12] I have conducted an independent assessment of the evidence and arguments,7 and I find that the appellant has established a well-founded fear of persecution related to a Convention ground in Eritrea. [13] While I agree with some of the credibility findings of the RPD, I find that these concerns are not material and are therefore not determinative of this appeal. [14] Given that the RPD decision must be set aside, it is not necessary for me to make findings on all of the RPD's conclusions in its reasons for decision. Chairperson's Guideline 8: Vulnerable Persons Guideline [15] The appellant has argued that the RPD committed an error by failing to take into account the Vulnerable Persons Guideline. [16] I have reviewed the oral hearing, and I do not find that the RPD has committed an error in this regard. [17] While the appellant may have been 69 years old when she appeared before the RPD and had only three years of education, there was no indication made before or during the hearing that her ability to present her case before the IRB was severely impaired. [18] It is not uncommon for individuals appearing before all divisions of the IRB to find the process difficult for various reasons, including language and cultural barriers and because they may have suffered traumatic experiences that resulted in some degree of vulnerability. [19] RPD proceedings have been designed to recognize the very nature of the IRB's mandate, which inherently involves persons who may have some vulnerabilities. In this case, the RPD took steps to ensure the fairness of the proceedings by ensuring that the interpreter and appellant understood each other, taking breaks, and acknowledging when the appellant appeared to be having difficulties understanding questions or appeared to be physically uncomfortable. The RPD also did not rush the hearing, ending early on the day of the first sitting and scheduling a second sitting to allow appropriate time for the examination of the appellant and the witness. [20] The appellant has argued that the RPD violated the duty of fairness by not allowing an adjournment of the hearing on October 20, 2017, so that the Basis of Claim form (BOC) could be translated to her. The RPD denied the request, which arose following a noted contradiction between oral evidence and information provided in the BOC. The appellant argues that the denial of the request was not proper due to her unspecified vulnerability. I find that the RPD did not commit an error by not adjourning the hearing on October 20, 2017, to allow for the BOC to be interpreted back to the appellant. [21] The appellant swore to the understanding of the contents of her BOC at the beginning of the first sitting on October 11, 2017, and there is a signed interpreter declaration on the last page of the BOC indicating that the entire content of the form had been accurately interpreted from English to Tigrinya, was understood. The appellant signed her BOC form on September 22, 2016, and I find that she had ample opportunity prior to the first (October 11, 2017) and second sittings (October 20, 2017) before the RPD to review the contents of the BOC. [22] Generally speaking, counsel for the person who wishes to be identified as a vulnerable person must make an application under the rules of the Division, and the application must specify the nature of the vulnerability and the procedural accommodations sought. No application was made in this case. While the IRB may also act on its own initiative, my review of the evidence does not result in a finding of the appellant's ability to present her case being severely impaired, and I find that the RPD has committed no error with respect to the application of the Vulnerable Persons Guideline. Credibility [23] In assessing the credibility of the evidence presented by the appellant in support of the claim for Convention refugee status, and for the claim to be a person in need of protection, the RPD and RAD are guided by the principles established in the Federal Court of Appeal's decision of Maldonado,8 wherein the Federal Court states, in part, "When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness." [24] In its reasons for decision the RPD noted that the appellant provided inconsistent and contradictory statements, and when the concerns were pointed out to her, she did not provide the RPD with satisfactory responses. For example, the appellant testified that it was her younger son XXXX, who told her about her husband's arrest after she left the country. When the RPD pointed out to her that her BOC narrative indicates that XXXX had been taken from school and forced into military service, her simple explanation was that this was a mistake. She then provided confusing and contradictory statements about whether or not the BOC had been interpreted to her. I do not find that the RPD has made an error in finding the appellant's explanations to this and to other examples to be confusing and contradictory, however, I do not agree with the RPD that these are material matters. [25] I have considered the uncontroverted facts and evidence before me, which includes the appellant's profile as a mother of 10 military service age children, several of whom have fled Eritrea. The appellant discussed the whereabouts of her children during the first sitting of her RPD hearing. She testified that her son XXXX, fled to Sudan in 2010, and arrived in Canada as a privately sponsored refugee in 2016. XXXX appeared as a witness at the appellant's hearing. [26] She testified that her daughters XXXX, XXXX and XXXX are now in Ethiopia, and two married daughters along with XXXX remain in Eritrea. According to her BOC, the appellant also has two sons in Israel and one son in England. She testified that her children have all escaped to avoid being forced to perform indefinite military service. Objective evidence [27] The objective documentation in the National Documentation Package (NDP) dated June 30, 2017, includes the Operational Guidance Note: Eritrea9 which quotes an Amnesty International Report stating: . . . national service and reserve military service, was declared mandatory for men and women between the ages of 18 and 50. Active national service is compulsory for all citizens between the ages of 18 to 40, followed by addition reserve duties. The initial national service period is 18 months long, generally consisting of six months' military service followed by 12 months' deployment in military or government service. However, this period is frequently extended indefinitely. Much of the adult population of Eritrea is currently engaged in mandatory national service; many of them have been conscripted for over ten years. There is no exemption from military service for conscientious objectors. . . . [28] The same report10 along with other reports in the NDP also states that: The Government views as political opponents those who evade military service or desert from the military, and the treatment of such individuals is likely to amount to persecution under the terms of the Refugee Convention. Family members of draft evaders and deserters are also at risk of arbitrary arrest, fines, forced conscription and withdrawal of trade licenses and closure of businesses. Legal exit [29] In its decision, the RPD drew a negative inference with respect to credibility because the appellant had been issued a passport and exit visa. [30] In submissions before the RPD,11 counsel for the appellant argued that the fact that she was allowed to leave the country, in itself, does not contradict her testimony since she is in no position to speak for the authorities. I agree with counsel on this point. There are numerous references on this subject within the NDP, and the objective reports including the Department of State Report on Human Rights Practices,12 which describes how the government severely restricted foreign travel and continually modified its requirements to obtain passports and exit visas. However, there is also the European Asylum Support Office report which is quoted in the Country Policy and Information Note, Eritrea: National service and illegal exit13 which states, "In practice, the conditions for the issuance of exit visas are unclear, subject to unannounced changes and to the arbitrariness of the authorities." [31] The appellant testified that she paid money in order to leave the country, and this is consistent with objective evidence including the United States Department of State Report14 which states that: ". . . corruption also existed in the issuance of identification and travel documents, including in the passport office. Individuals requesting exit visas or passport sometimes had to pay bribes." [32] While it is true that the appellant did not leave Eritrea unlawfully, she had received a passport and exit permit, she has testified that she fears returning to Eritrea because of the past treatment she experienced when she was arbitrarily detained and mistreated on four occasions after her children left the country. While the RPD found that it did not appear that the appellant would face further negative effects from this given that she received the necessary documents from the authorities to leave the country. I find that this is contrasted with the objective documentation already mentioned which describes corruption and the arbitrary and inconsistent issuance of travel documents by Eritrean authorities. [33] The appellant testified before the RPD that if she is to return to Eritrea, she fears that she will again be in jail. This is supported by the objective documentation. [34] It is not in dispute that at least two of her sons have been accepted as refugees in Canada and the United Kingdom, for escaping indefinite military service. [35] Her youngest child, 17-year-old XXXX, remains in Eritrea, however, if he is to illegally exit the country to avoid military service as his older siblings have done, the appellant fears that she will again be arrested, detained and mistreated, as she was on the other occasions following her children's illegal departures from the country. [36] A Response to Information Request (RIR) dated June 14, 2017, is in the NDP and it addresses the situation of people returning to the country after they either spent time, claimed refugee status, or were seeking asylum abroad.15 [37] In this RIR, the Eritrean Canadian Community Centre stated the following concerning the treatment of returnees by the authorities upon arrival in Eritrea: Depending on age, activities before and post exiting Eritrea, affiliation or association..., returnees could be facing challenges, such as interrogations, arrest and harsh punishments upon return to their home country if they left Eritrea illegally (if that is the case), political activities outside of Eritrea, and even for making refugee claims against the state. [38] There are other references within this RIR on the topic of returnees who claimed refugee status or were seeking asylum, including a 2017 report by Freedom House which states that, "Eritrean refugees and asylum seekers repatriated from other countries are detained." [39] The 2015 report by the United Nations Human Rights Council states that "with a few exceptions, those who have been forced to return . . . have been arrested, detained and subjected to ill-treatment and torture." [40] On a balance of probabilities, the objective evidence supports the appellant's fear of arbitrary arrest if she is to return to Eritrea. I find that the appellant is at risk of arrest because she has children who have fled military service and remain outside of the country, she has a child who may also leave the country in a similar way to his siblings, and because she made a refugee claim in Canada. While the RPD found that the appellant had not established with reliable evidence that her asylum claim had or would come to the attention of Eritrean authorities, this was based in part because she had left Eritrea legally and had not been outside of the country for very long, I find that this cannot be supported given the country documents which describe a brutal authoritarian regime involved in the arbitrary arrests of its citizens and committing human rights abuses. State protection and internal flight [41] As the state is the agent of persecution, I do not find state protection or a viable internal flight alternative are available for the appellant in Eritrea. CONCLUSION [42] For all these reasons, the appeal is allowed. Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the appellant is a Convention refugee pursuant to section 96 of the IRPA. [43] The appeal is allowed. (signed) "Paula Faber" Paula Faber September 19, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Immigration and Refugee Board of Canada, Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB, Effective date: December 15, 2006 Amended: December 15, 2012. 4 Exhibit 2, Appellant's Record (AR), New Evidence. 5 Exhibit 3, Refugee Protection Division (RPD) Record, Member's Decision. 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 7 Tekle v. Canada (Minister of Citizenship and Immigration) 2017 FC 1040 8 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 9 Exhibit 3, RPD Record, National Documentation Package (NDP), June 30, 2017, Item 1.3, Operational Guidance Note: Eritrea, United Kingdom. Home Office. December 2014. 10 Exhibit 3, RPD Record, NDP, June 30, 2017, Item 1.3, Operational Guidance Note: Eritrea, United Kingdom. Home Office. December 2014. 11 Exhibit 3, RPD Record, Counsel's Submissions, Exhibit 7 before the RPD. 12 Exhibit 3, RPD Record, NDP, June 30, 2017, Item 2.1, Eritrea. Country Reports on Human Rights Practices for 2016, United States. Department of State. March 3, 2017. 13 Exhibit 3, RPD Record, NDP, June 30, 2017, Item 1.4, Country Policy and Information Note. Eritrea: National service and illegal exit. Version 4.0e, United Kingdom. Home Office. October 25, 2016. 14 Exhibit 3, RPD Record, NDP, June 30, 2017, Item 2.1, Eritrea. Country Reports on Human Rights Practices for 2016, United States. Department of State. March 3, 2017. 15 Exhibit 3, RPD Record, NDP, June 30, 2017, Item 14.2, Response to Information Request ERI105801.E, Situation of people returning to the country after they either spent time, claimed refugee status, or were seeking asylum abroad (July 2015-May 2017), Immigration and Refugee Board of Canada, June 14, 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB7-07285