TB6-10435

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 : TB6-10435 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 4, 2017 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Daniel Tilahun Kebede Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION [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. She has made an application to submit new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either substitute a positive decision or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to section 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 alleged before the RPD that she is of Amhara ethnicity and was politically active in opposition to the government. Her father and fiancé were also political activists. She claims that she was detained and mistreated by the authorities. She came to Canada in 2011, where she allegedly continued her political activities, and eventually made a refugee claim near the end of 2013. [4] The Minister of Immigration, Refugees, and Citizenship Canada intervened in the Appellant's claim before the RPD, taking the position that the Appellant's credibility was in doubt.1 [5] The Appellant's application for refugee protection was heard on May 10, 2016. As the Amharic interpreter was unable to stay for the entire scheduled sitting, the matter was adjourned and continued on June 21, 2016, with the assistance of another interpreter. [6] By a decision of July 15, 2016, the RPD rejected the claim. The panel cited numerous credibility concerns and did not believe that the Appellant had been politically active in Ethiopia, that she had been detained, or that she is or will be sought by the authorities in her country. [7] The Appellant argues on appeal that her claim failed because of deficient interpretation, that the RPD's credibility and plausibility analyses were wrong, and that her sur place claim was not adequately considered. ANALYSIS Admissibility of Evidence Submitted on Appeal [8] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected2 in the circumstances to have presented, at the time of the rejection. [9] It is for the Appellant to make full and detailed submissions in her Memorandum about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to the Appellant.3 Application of Section 110(4) [10] Section 110(4) establishes a disjunctive test.4 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claim. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claim. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellant could reasonably have been expected, in her circumstances, to have presented the evidence to the RPD prior to the rejection of her claim. If she could not have been expected to do so, the evidence meets the requirements of the section. [11] If the evidence did not arise after the rejection of the claim, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in section 110(4). The RAD does not have discretion to admit such evidence.5 [12] As the RAD understands it, section 110(4) provides the Appellant with an opportunity to present evidence that could not have been submitted to the RPD - either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellant could not have been expected to present it to the RPD. [13] Section 110(4) does not provide an opportunity for the Appellant to complete a deficient record submitted to the RPD; rather, it allows for the correction of errors of fact, errors in law, or mixed errors of fact and law.6 [14] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.7 Old evidence remains old evidence, even if it is placed in a new document with a recent date. Assessment of Evidence that Meets the Requirements of Section 110(4) [15] Where a document meets the test in section 110(4), as discussed above, the RAD will conduct a further assessment of that evidence. While section 110(4) provides the RAD with factors to consider in assessing a document's "newness," these factors alone cannot determine the admissibility of new evidence in an appeal. To put it simply, if a document is lacking in credibility, or is irrelevant, it would make little sense to admit such document even if it meets the test in section 110(4). [16] In Singh,8 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza9 to the assessment of new evidence. While Raza predates the introduction of section 110(4) of the IRPA, it is based on the nearly identical wording of section 113(a). In that case, the Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.10 In Singh, the Court found that the criteria from Raza are necessarily implied in the wording of section 110(4).11 [17] Where evidence meets the test in section 110(4), the RAD will go on to assess it for credibility. While this is a factor set out in Raza, there are also other reasons to apply it. Section 171(a.3) of the IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." This provision makes it clear that, in addition to the factors in section 110(4), the RAD must consider the credibility or trustworthiness of proposed new evidence. [18] Relevance is a basic condition for the admissibility of any piece of evidence.12 RAD Rule (3)(3)(g)(iii) requires the Appellant's Memorandum to include full and detailed submissions about how any proposed new evidence "relates to the Appellant." It would be highly inefficient for the RAD to admit irrelevant evidence, and contrary to section 162(2) of the IRPA, which requires all divisions of the IRB to "deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." [19] In addition to credibility and relevance, the factors in Raza include "newness" and "materiality." Newness is implicitly incorporated into section 110(4) and does not require additional analysis. The Federal Court of Appeal has also found materiality to be redundant, as it is also found in section110 (6) of the IRPA, which describes when the RAD may hold an oral hearing.13 [20] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in section 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of section 110(4), the RAD will assess its credibility and relevance in order to determine whether it is admissible. [21] The Appellant asks the RAD to admit the following evidence in this appeal:14 (a) Photographs of the Appellant in what appears to be some sort of public demonstration;15 (b) Print-outs of pages from the Appellant's Facebook social media account;16 (c) A partial transcript, along with an affidavit from an interpreter;17 and (d) Via an application under Rules 29 and 37 of the Refugee Appeal Division Rules, objective evidence of events relating to a state of emergency in Ethiopia in October of 2016.18 [22] The Appellant submits that the documents in (a) were "produced after the hearing of the Appellant's application for refugee protection."19 This, however, does not speak to the requirements of section 110(4), which defines new evidence as that arising after the rejection of the claim, not after the hearing. In this case, there was approximately one month between the last sitting of the hearing and the signing of the RPD's decision. The photographs in (a) are not dated, and it is simply not evidence when they were taken. The Appellant has not established that these documents meet the test in section 110(4), and the RAD finds that they are not admissible in this appeal. [23] The documents in (b) appear to be from the Appellant's Facebook account. They seem to show that the Appellant posted information between August 11 and 14, presumably of 2016, which is critical of the Ethiopian regime. These documents meet the requirements of section 110(4), in that they arose after the rejection of the Appellant's refugee claim. [24] The RAD cannot help but notice the timing of these posts. The Appellant filed a Notice of Appeal on August 9, 2016. A few days later she posted a few items critical of the Ethiopian government and provided these as new evidence in her appeal record. Although the Appellant claims to have been politically active in quite some time in Canada, and testified that she writes political comments on social media, she provided no evidence of this other than these documents, which she created over the span of a few days as she was filing her appeal. While the motivation for the creation of these documents is suspicious, the RAD will nevertheless admit this evidence in order to properly consider the Appellant's arguments with respect to the sur place aspect of her claim. [25] The documents in (c) include partial transcripts of the RPD hearing, along with an affidavit from the interpreter who prepared the transcripts. The translation and the affidavit arose after the rejection of the Appellant's refugee claim, and therefore meets the requirements of section 110(4). The RAD has no reason to doubt the credibility of the transcript and affidavit, and their subject matter is relevant to the appeal. The documents in (c) are admitted as new evidence in this appeal. [26] The documents in (d) are news articles about developments in Ethiopia in October of 2016. The RAD finds that these documents could not have been submitted with the appeal record, as they arose subsequent to the filing of the appeal. These documents meet the test in section 110(4). They come from credible sources and are relevant to the Appellant's refugee claim and appeal, and are therefore admitted in this appeal. Request for an Oral Hearing [27] The Appellant asks the RAD to convene an oral hearing, pursuant to section 110(6) of the IRPA. That provision allows the RAD to hold a hearing where there is new evidence which raises a serious issue with respect to the Appellant's credibility, which is central to the decision determining her refugee claim and which, if accepted, would justify allowing or rejecting that claim. [28] The documents in (b) do indeed raise concerns about the Appellant's credibility, but they are simply not central to the decision rejecting her claim and cannot justify allowing or rejecting her claim, as there is no evidence that her social media posts have come to the attention of the Ethiopian authorities. The documents in (c) do raise a serious issue of natural justice, but not with respect to the Appellant's credibility. The documents in (d) are not personally related to the Appellant, as they speak to country conditions in Ethiopia after she left, and they cannot therefore raise a serious issue with respect to her credibility. [29] None of the new evidence admitted here meets the requirements of section 110(6), and the RAD declines the Appellant's request for an oral hearing. THE ROLE OF THE RAD [30] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [31] The Appellant submits that the RAD must review the RPD's decision on a standard of correctness, and must review the record and the new evidence in order to reach its own conclusion about her refugee claim. [32] It is settled law that the RAD is not to review decisions of the RPD in the manner of a judicial review.20 [33] The RAD is a creature of statute and so is the appeal before it; its role and jurisdiction are best determined by looking at the legislative provisions creating the RAD and the appeal.21 Such an appeal (i) is directed at the decision of the RPD, (ii) unless new evidence is accepted, is to be entertained on the basis of the record as it was constituted at the time of the RPD's decision, and (iii) is to be concerned solely with the errors of law, of fact or of mixed fact and law that, according to the appellant, the RPD made. This is the statutory configuration of an appeal before the RAD.22 [34] According to the Federal Court of Appeal, the RAD is to carefully consider the RPD's decision and then carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. It is then to provide a final determination, either confirming the RPD's decision or setting it aside and substituting the RAD's own determination of the refugee claim. If the RAD cannot provide such a final determination without hearing the oral evidence already presented to the RPD, the matter can be referred back to the RPD.23 [35] With respect to findings of fact and of mixed fact and law, the RAD is to review the RPD's decision applying a standard of correctness.24 When applying that standard, the RAD will not show deference to the RPD's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the RAD to decide whether it agrees with the determination of the RPD; if not, the RAD will substitute its own view and provide the correct answer.25 [36] There are, however, cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because such findings require an assessment of the credibility or weight to be given to oral evidence heard by the RPD.26 The Federal Court of Appeal, in discussing the standard of review to be applied by the RAD to the RPD's decision, has declined to provide the scope and degree of deference to be shown by the RAD: The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.27 [37] While it is clear that some level of deference is warranted, it is less obvious how much deference is owed, and to what findings. As the Federal Court observed in Akuffo: [T]here also appears to be a consensus that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings. The opinions rather diverge on: i) the level of deference that is owed or its exact definition; and ii) the scope of the questions of fact and questions of mixed fact and law for which deference is owed.28 [38] The RAD will show deference to the RPD's findings where the RPD was in an advantageous position to reach such conclusions. The RPD's advantage comes from seeing claimants and witnesses and hearing oral testimony. As such, credibility findings arising from that oral testimony are deserving of deference, as are other findings of fact based on oral evidence, as are findings based on the RPD's specialized knowledge of a particular matter where the RAD does not have its own specialized knowledge with respect to the same factual issue. The RPD's advantage may even extend to personal documents in situations where it has questioned the claimant or witness about such documents and where the resulting testimony gives rise to credibility concerns. [39] Not every finding relating to credibility warrants deference. Where the RPD has made a finding of implausibility, for example, it has no advantage where the determination of plausibility is based on the RPD's own reasoning, or on objective documents, and does not arise directly from the oral evidence.29 Similarly, where the RPD draws an inference - a credibility finding based on deduction and reasoning, rather than a contradiction in evidence - the RAD may see no reason to show deference, as the appellate tribunal can be expected to have equal expertise in the inferential process.30 [40] How much deference is owed by the RAD to findings of the RPD? In Huruglica, the Federal Court held that the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error".31 This passage has subsequently been endorsed by other decisions of the Court. [41] Although the Court did not explain what level of deference is established by recognizing and respecting a conclusion of the RPD, it has repeatedly upheld decisions in which the RAD applied a reasonableness standard to decisions of the RPD.32 In the RAD's view, this suggests that "recognize and respect" is indeed somewhat similar to reasonableness. [42] In Dunsmuir, the Supreme Court discussed two elements of a deferential review: process and outcome.33 Despite the difference between judicial review and a RAD appeal, the RAD finds this framework helpful in considering its own approach to deference. [43] Even where the RAD is to show deference to findings of the RPD, those findings must still be the result of a comprehensible reasoning process. The RAD must be able to read the RPD's decision and understand how the RPD's conclusions were reached. [44] Further, the outcome of that process must be a result that is based on and supported by the evidence that was before the RPD. For this reason, it is particularly important that the RAD engage in its own review of the evidence in the RPD's record, in order to determine whether the RPD's finding is supported by that evidence. [45] The RAD will apply a standard of correctness to its consideration of the RPD's decision: it will conduct its own review of the evidence and undertake its own analysis of the question. If this does not lead the RAD to the same conclusion as the RPD, the RPD's finding is wrong. [46] However, the RAD will not interfere with the RPD's findings where such conclusions result from the RPD's distinct advantages or from a comprehensible reasoning process whose premises are rooted in such advantages. If either the process or the outcome does not meet these requirements, the RAD will determine the findings to be in error. [47] Having done this, the RAD will provide a final determination, either by confirming the RPD's decision or setting it aside and substituting its own determination. If it cannot do so without hearing oral evidence that was already heard by the RPD, it will refer the matter back for redetermination. The RPD's Decision [48] The Appellant raises the following issues in support of her appeal. Interpretation [49] Relying upon a partial transcript and an affidavit from an interpreter, the Appellant argues that she was denied natural justice and procedural fairness because the Amharic interpretation in her hearing was deficient. [50] Rule 19 of the Refugee Protection Division Rules provides that a refugee claimant may request the Division to provide an interpreter for a language or dialect specified by the claimant. The right to an interpreter in a proceeding in another language is enshrined in section 14 of the Charter, and this right has been held to be generally applicable to a proceeding before the RPD.34 [51] Interpretation should be continuous, precise, impartial, competent and contemporaneous. Although the standard of interpretation is high, it need not be so high as to be perfect. If a breach of this standard is shown, it is not necessary to show actual prejudice.35 What is important is whether the Appellant understood the interpretation and was able to adequately express herself through the interpreter.36 To put it another way, persons who do not speak and understand one of the official languages must be able to tell their story, and the interpretation must be of such quality that they are not impeached in their ability to make their case.37 [52] Complaints about the quality of interpretation must be raised at the earliest opportunity;38 failure to do so results in a waiver of the right to object to the interpretation on judicial review,39 and by analogy also on appeal to the RAD. [53] Was the Appellant able to adequately express herself - to tell her story to the RPD? The interpreter who prepared the transcript for this appeal declares that "I have established that for most part of the proceeding, the interpreting service provided was defective." He further opines that: "it is my opinion that the interpreting service provided at the hearing was not adequate and somehow might have contributed to misunderstanding and miscommunication between all parties involved at the hearing."40 It is for the RAD, however, not the interpreter, to determine whether the interpretation was defective and, if so, how this affected the hearing. [54] The RAD has carefully reviewed the partial transcript provided. It shows that the interpretation was not perfect. In some instances the interpreter changed or added words. For example, the RPD member, when discussing whether the Appellant might prefer to testify in English, said, "Not to put any pressure on you; if you feel that's not an option, let me know."41 This was interpreted as, "It is not to pressure you I need to know let me assist you that what she means."42 While this interpretation was not perfect, it did not prevent the Appellant from understanding the question or expressing herself in reply. [55] The transcript shows some instances where the interpretation appears to have been in error. For example, the Appellant used the term "central court" when referring to an area of Addis Ababa, but the interpreter replaced that with "central prison."43 However, this error was not with respect to a key element of the claim, and was not the basis for any of the RPD's negative findings. The error did not prevent the Appellant from communicating her story. [56] There are some alleged errors which could be significant, in that they relate to findings made by the RPD. The member asked about the "Central Prison," where the Appellant was allegedly detained. The interpreter translated "central" as "meakelawi" to the Appellant, and when the Appellant used the term "meakelawi," translated this to English as central. As the RPD did make a negative finding with respect to the Appellant's failure to name the prison in her Basis of Claim (BOC) narrative, an interpretation error on this topic could have significance. However, the RPD noted objective evidence that "Maekelawi" means "central" in Amharic, which the Appellant does not dispute; as such, the RAD sees no error of any significance in the interpretation of this word.44 [57] The Appellant testified that she was "pushed around and were punched." The interpreter changed this to "just they kicked us with their hands."45 While this was not accurate, the RPD member clarified that the Appellant was beaten. Again, the Appellant was able to understand the question and to tell her story. [58] There was some confusion in a series of questions about the dates on which the Appellant was detained. The RPD member asked about a period of XXXX XXXX, 2010 to XXXX XXXX, 2010. This was interpreted as "2010 XXXX XXXX to XXXX XXXX", and later as "XXXX to XXXX".46 It would appear from the transcript that the interpreter erred in interpreting these dates. However, this did not appear to affect the fairness of the Appellant's hearing; in fact, the RPD found that the Appellant "advanced dates of detention in the Schedule A form, the BOC form and in oral testimony that were consistent."47 While the RPD did make negative credibility findings, these were based on the provision of different dates in another immigration form, and were simply not related to any interpretation difficulty. Even if the interpreter did err here, it did not hinder the Appellant in understanding the proceeding or telling her story. [59] The RAD recognizes that the interpretation was not perfect; in fact, perfection is an impossibly high standard for the difficult task of interpreting in a refugee hearing. Having considered the proceeding as a whole, in addition to the specific examples pointed out by the Appellant, the RAD finds that the Appellant was not denied natural justice or procedural fairness. She was able to understand the proceeding and to tell her story; the interpretation errors that did occur did not impeach her ability to make her case. Testimony in English [60] The Appellant asks, "Was the decision to allow the appellant to testify in English correct?"48 She submits that the RPD "insisted time and again" that she testify in English, even though the panel had earlier concluded that the Appellant was not proficient in English. She argues that: [T]he correct thing to do was to stop the proceeding and continue with another interrater [sic] or postposed [sic] to the hearing to a different [sic] at which the Tribunal did not do. There was also no mid-hearing conference to iron out the interpretation issues with the claimant's counsel.49 [61] There are numerous difficulties with this argument. First, the RAD notes that it was the Appellant who initially asked to testify in English; the RPD tested her proficiency in English and then recommended she use the services of the interpreter.50 When that interpreter had to leave early due to an emergency, the RPD adjourned the hearing, rather than continue without interpretation. [62] At the second sitting, the RPD offered that the Appellant could testify in English with the interpreter on standby, and the Appellant agreed. The member then asked counsel how he communicates with the Appellant, and whether he could confirm her proficiency in English. When he responded that he communicates with her in Amharic, the RPD decided that the Appellant should use the services of the interpreter, and asked the Appellant to avoid listening to the questions in English.51 [63] Despite the requirements of RAD Rule 3(3)(g), the Appellant does not point out where in the proceeding the RPD "insisted" that she speak English. Instead, the RAD's own review of the recording and of the RPD's reasons show that the Appellant appeared to be listening to the questions in English and bypassing the interpreter. The Appellant also told the RPD that she is "fluent in reading English."52 [64] While the Appellant complains about the lack of a mid-hearing conference before the RPD to discuss interpretation, the RAD finds no indication that the Appellant's counsel before the RPD asked for such a discussion. Further, the RAD notes that counsel before the RPD actually questioned the Appellant without the use of the interpreter - he asked questions in English, which were not translated, and the Appellant answered in English.53 This exchange went quickly and fluidly, with no indication that the Appellant was struggling to understand or reply. [65] If the Appellant had concerns about testifying in English, even with an interpreter on standby, she or her counsel should have raised these at the earliest opportunity - during the RPD hearing. Instead, the RAD's own review of the record indicates that it was the Appellant who was eager to speak and read English, and it was the RPD member who preferred the use of the interpreter. There may have been some understandable frustration on the part of the RPD member, who wrote: I cautioned the claimant that, since she had requested the assistance of an interpreter for the hearing, she must listen to the Amharic translation rather than my English. I had cautioned the claimant many times in this regard in the course of the hearing, such that there were times that it was necessary, in order to elicit testimony, to allow the claimant to answer in English and to have the hearing interpreter on standby.54 [66] The Appellant's use of English in her refugee hearing did not breach natural justice or deny her procedural fairness. Further, the RPD did not err by referring to the fact that the Appellant obtained a work visa which required a working knowledge of English. In fact, the RAD notes that the Appellant herself listed English and Amharic in her BOC as the two languages she speaks.55 Credibility Assessment [67] The Appellant argues that the RPD erred in its credibility findings. As discussed above, the RAD will show some deference to the RPD where the lower tribunal was in an advantageous position to make a credibility determination. [68] The Appellant challenges the RPD's negative credibility finding with respect to inconsistent evidence about the dates on which she was detained. The RPD found that the Schedule 12 immigration form contained different detention dates than the Appellant's Schedule A, Basis of Claim, and oral testimony.56 The Appellant submits that the omission of one detention in one form is a very minor inconsistency, and that the RPD erred by holding this against her. [69] The RAD disagrees. The Appellant's alleged detentions and mistreatment go to the very heart of her refugee claim. Her unexplained omission of a key fact does indeed damage her credibility. The RPD's finding here warrants some deference, as the RPD was able to question the Appellant about this matter; however, even if the RAD would show no deference, it would reach the same conclusion as did the RPD. [70] The RPD observed that the Appellant's evidence did not indicate that her father's political background was referred to by the authorities during her detentions. As a result, and in light of other credibility concerns, the RPD concluded that the authorities did not seek the Appellant because of her father's profile. The Appellant argues that this was an error; the RPD did not confront her with this issue, but simply speculated that because her father's profile was not raised, the agents of persecution were not aware of it. In her view, "the fact that the appellant's father political profile was not raised during the detention proves nothing."57 [71] As the RAD understands the RPD's reasoning here, there was simply a lack of evidence to support a key allegation: that the Appellant was sought and harmed by the authorities, in part, because her late father was known to be a political opponent of the regime. The RPD observed that the Appellant's own evidence did not include allegations that her father's profile was raised during her detentions. The RPD was noting the lack of evidence with respect to a key allegation made by the Appellant. This was a valid observation, based on the evidence in the record, and was not an error; the RAD makes the same observation. [72] The Appellant challenges the RPD's findings with respect to omissions from her BOC narrative, including her failure to mention the name of the prison at which she was detained and her omission of the details of her mistreatment. The RAD agrees that these were minor omissions. The failure to provide the actual name of the prison, and the use of the word "maltreatment" to describe abuse in prison, are simply not significant omissions, and the RPD erred by making negative credibility findings with respect to the Appellant's failure to include them in her BOC. [73] The Appellant testified before the RPD that she was politically active in Canada, participating in demonstrations against the Ethiopian government. The RPD noted that the Appellant's BOC narrative did not set out these activities, and that in responding to one question she made reference to her "limited political activities" in Canada.58 The RPD did not accept the Appellant's explanation: that her BOC focused on her political association in Ethiopia, and that she presented a letter from XXXX Toronto to corroborate her membership and activity here. [74] The Appellant submits on appeal that the RPD failed to refer to two letters from XXXX Toronto, which do provide details of her activities; "the Tribunal in this regard was only drawing a negative inference because the appellant failed to incorporate the contents of this letter into the application forms."59 [75] The RAD does not accept this argument. First, the RPD did clearly consider both letters from XXXX Toronto.60 Second, there is no basis for the Appellant's implicit argument that evidence provided via corroborating letters need not be included in the BOC. The Appellant here claims that she faces persecution in Ethiopia for a number of reasons, including her political activity in Canada. The BOC narrative is to be a detailed explanation of the reasons for which a refugee claimant fears persecution; it was not an error for the RPD to expect the narrative to include a description of that political activity. [76] The Appellant claims that she applied for a passport only days after being released from detention. Not only did she receive a passport, but she was also able to receive a police clearance certificate. The RPD found it implausible that the Ethiopian authorities would issue such travel documents to a political dissident shortly after they released her from detention, noting that detainees are fingerprinted. [77] The Appellant argues on appeal that the RPD's implausibility finding here was wrong. In her submission, the evidence does not establish that all detainees are fingerprinted, and it does not indicate that the prints of political detainees are included in the general criminal fingerprint database. As she was not accused of any crime, it was not open to the RPD to find that she could not secure a police clearance. The Appellant also points to objective evidence that it is very easy to obtain a passport in Ethiopia, and that passports are not automatically seized even in cases of criminal charges. [78] The RAD owes no deference to the RPD on findings of implausibility. [79] Objective evidence indicates that the authorities harass and detain members and supporters of opposition parties;61 there are reports that the government regular arrests political opponents and subjects them to intimidation, abuse, and torture, while dissidents are kept under surveillance.62 Ethiopian government has in fact prevented political opponents from traveling abroad.63 The Appellant alleges that after her first detention, she was warned that the authorities would monitor her; after she was released from her second detention, she was told to report to the authorities each week.64 Having considered both the objective evidence and the Appellant's own evidence, the RAD agrees that it is implausible that she was able to obtain both a passport and a police clearance certificate without difficulty, almost immediately after her release. Sur Place Claim [80] The Appellant submits that the RPD denied her sur place claim based on minor inconsistencies in supporting letters. She argues that the RPD imposed an impermissibly high standard when it found that the motives for her political activity in Canada were not sincere; rather, the RPD should have considered the likelihood that her activities are likely to come to the attention of the Ethiopian authorities. She submits that "as long as there is a possibility that the authorities might know about her involvement," she must be found to be a Convention refugee.65 The Appellant also points to objective evidence that anyone who is actively involved in Ethiopian politics outside of Ethiopia is subject to scrutiny and harassment upon return to Ethiopia. [81] The RPD noted that the Appellant failed to produce a supporting letter from the opposition party she allegedly supported in Ethiopia. It considered her testimony that she was a member of XXXX Toronto since 2012, and found that it conflicted with a letter from that organization which stated she became a member in 2013. The RPD also considered the absence of information about this political activity in the Appellant's BOC. [82] The Appellant also asks the RAD to consider her new evidence. The RAD has not accepted the Appellant's photographs, but has admitted her Facebook evidence. The RAD finds, however, that the Facebook evidence does not assist the Appellant here, and in fact it undermines her credibility. She told the RPD that she was politically active on social media; the RPD observed that she did not produce evidence of such online political commentary.66 It appears that the Appellant, between the filing of her Notice of Appeal and the perfection of her appeal, posted several political items on Facebook. This hardly corroborates her claim that she has been politically active in Canada for some time; instead, it creates the impression that she quickly and briefly created evidence found lacking by the RPD, for the purpose of this appeal. In any event, there is simply no indication that the Appellant's few, brief, and convenient social media postings have or will come to the attention of the Ethiopian authorities. [83] In the RAD's view, it is not enough for the Appellant to simply suggest that her political activities in Canada might possibly have come to the attention of the Ethiopian authorities. Rather, she must establish that she faces a serious possibility of persecution in her country of origin. Her evidence about her political activity in Ethiopia is lacking in credibility. There are also credibility problems with her evidence about her political activity in Canada; she initially described it as "limited," gave conflicting evidence about when it began, alleged online activity which she could not corroborate, and then created online evidence in order to bolster her appeal. There is no credible evidence that the Appellant's activities in Canada have come to the attention of Ethiopian authorities, or that there is more than a mere possibility that she will be persecuted because of perceived political activities. [84] Finally, the RAD has considered the new objective evidence submitted by the Appellant in support of this appeal. While those documents speak to recent developments in Ethiopia, they do not assist the Appellant, as she has not established with credible evidence that she was or is sought by the authorities, or was or is perceived as a political opponent of the government. CONCLUSION [85] Having considered the evidence, the RAD reaches the same conclusion as did the RPD. The Appellant has not established with credible or trustworthy evidence that she was politically active, that she was detained, that she was or is sought by the authorities for any reason, or that she was or is perceived as a political dissident. While the RPD erred with respect to two relatively minor credibility conclusions, this does not change the overall determination of the Appellant's refugee claim. The Appellant gave inconsistent evidence about her alleged detentions and about her political activity in Canada. She was able to easily obtain a passport and a police clearance certificate, despite allegedly being under surveillance and required to report weekly to the authorities. [86] The RAD notes that the Appellant has not challenged other credibility findings made by the RPD. That tribunal found it suspicious that the Appellant produced a receipt showing a donation to an opposition party in Ethiopia, while at the same time claiming that she did not tell the party about her detentions because she was afraid to associate with the party for fear of further reprisals.67 The Appellant also failed to promptly seek refugee protection in Canada, despite having been terminated from the employment upon which her work visa was based.68 [87] Pursuant to section 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. This appeal is dismissed. (signed) "Edward Bosveld" Edward Bosveld January 4, 2017 Date 1 Exhibit RPD-1, RPD's Record, p. 114. 2 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 51. 3 Refugee Appeal Division Rules, section 3(3)(g)(iii). 4 See Olowolaiyemo, Olatunji v. M.C.I. (F.C., no. IMM-7767-14), Gascon, October 29, 2014, 2015 FC 895, para. 19. 5 Deri, Samuel v. M.C.I. (F.C., no. IMM-7050-14), Strickland, September 2, 2015, 2015 FC 1042, para. 55; Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, para. 63. 6 Singh, 2016 FCA 96, para. 54 7 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 16. 8 Singh, 2016 FCA 96, para. 64. 9 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 10 Ibid., Raza, paras. 13-15. 11 Singh, 2016 FCA 96, para. 64. 12 Singh, 2016 FCA 96, para. 45. Also: "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministery of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 13 Singh, 2016 FCA 96, para. 48. 14 The RAD notes that the Appellant's Written Statement also makes reference to "new pieces of evidence about the Appellant's membership in the defense athletic club..." (Appellant's Record, page 48); the RAD has no idea what this statement refers to and concludes that it is simply an error in the Written Statement. 15 Exhibit P-2, Appellant's Record, pp. 22-27. 16 Ibid., pp. 28-33. 17 Ibid., pp. 34-46. 18 Exhibit P-3, Application of October 25, 2016. 19 Exhibit P-2, Appellant's Record, p. 47, para. 3. 20 See, for example, Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063, para. 33. 21 Dhillon, Jatinder Singh v. M.C.I. (F.C., no. IMM-5156-14), LeBlanc, March 13, 2015, 2015 FC 321, para. 14; M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 46. 22 Dhillon, paras. 14-18. 23 Huruglica, 2016 FCA 93, para. 103. 24 Ibid. 25 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, para. 50. 26 Huruglica, 2016 FCA 93, para. 70. 27 Ibid., para. 74. 28 Akuffo, paras. 34-35; see also Meilina, Yani v. M.C.I. (F.C., no. IMM-642-14), Gagné, December 18, 2014, 2014 FC 1233, para. 11. 29 See Ghannadi, Vahid v. M.C.I. (F.C., no. IMM-1458-14), Manson, September 15, 2014, 2014 FC 879, para. 32; see also M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 72. 30 An inference is "a conclusion reached by considering other facts and deducing a logical consequence from them" (Black's Law Dictionary, 7th ed., page 781); the Federal Court has described an inference as a legal concept with the same meaning as a plausibility finding (para. 58, K.K. v. M.C.I., IMM-11142-12, 2014 FC 78, which decision contains a thorough discussion of the drawing of inferences.). 31 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799, para. 55. 32 See Yin, Sarom v. M.C.I. (F.C., no. IMM-2845-14), Noël, December 12, 2014, 2014 FC 1209, para. 36, citing Njeukam, Gaelle Leonelle Nguedo v. M.C.I. (F.C., no. IMM-7280-13), Locke, September 10, 2014, 2014 FC 859, Akuffo, Edwin Yaw Sarfo v. M.C.I. (F.C., no. IMM-6640-13), Gagné, November 12, 2014, 2014 FC 1063, Allalou, Abedelkrim v. M.C.I. (F.C., no. IMM-7217-13), Shore, December 17, 2014, 2014 FC 1084, and Sajad, Zeeshan v. M.C.I. (F.C., no. IMM-926-14), Shore, November 21, 2014, 2014 FC 1107; also Bui, Van Son v. M.C.I. (F.C., no. IMM-1654-14), Shore, November 28, 2014, 2014 FC 1145. 33Dunsmuir v. New Brunswick, 2008 SCC 9 [2008] 1 S.C.R. 190, at para. 47: "A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." 34 Mohammadian, Soliman v. M.C.I. (F.C.T.D., no. IMM-6500-98), Pelletier, March 10, 2000. Reported: Mohammadian v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 371 (T.D.); (2000), 4 Imm. L.R. (3d) 131 (F.C.T.D.). Reported: Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 85 (C.A.). 35 Sohal, Manwinder Singh v. M.P.S.E.P. (F.C., no. IMM-1078-11), Harrington, October 18, 2011, 2011 FC 1175, para. 18, citing R. v. Tran, [1994] 2 SCR 951. 36 Lawal, Kayode Fasasi v. M.C.I. (F.C., no. IMM-3534-07), de Montigny, July 10, 2008, 2008 FC 861, at para 26. 37 Singh Dhaliwal, Hardial v. M.C.I. (F.C., no. IMM-978-11), de Montigny, September 26, 2011, 2011 FC 1097, para. 18. 38 Mohammadian, supra, footnote 34, para. 27. 39 Bal, Tarlok Singh v. M.C.I (F.C., no. IMM-1472-08), de Montigny, October 17, 2008, 2008 FC 1178, at para 31. 40 Exhibit P-2, Appellant's Record, pp. 38-39. 41 See Exhibit P-2, Appellant's Record, p. 36; the RAD has listened to the audio of the RPD proceeding and notes that the transcript provided by the Appellant also has inaccuracies with respect to the English portions. 42 Ibid.; the RAD notes that the transcript largely omits any punctuation, making the translation appear more confusing that it might have been; for example, the same line, with punctuation, would read, "It is not to pressure you - I need to know. Let me assist you. That what she means." 43 Exhibit P-2, Appellant's Record, p. 42. 44 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 28. 45 Exhibit P-2, Appellant's Record, pp. 44-45. 46 Ibid., p. 46. 47 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 21. 48 Exhibit P-2, Appellant's Record, p. 61. 49 Ibid., p. 62. 50 Exhibit RPD-1, RPD's Record, Audio Recording, May 10, 2016, 00:00:10 to 00:01:00. 51 Exhibit RPD-1, RPD's Record, Audio Recording, June 21, 2016, 00:02:00 to 00:05:00. 52 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 24. 53 Exhibit RPD-1, RPD's Record, Audio Recording, June 21, 2016, beginning at 01:30:00. 54 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 23. 55 Exhibit RPD-1, RPD's Record, p. 24, BOC form, question 1g). 56 Exhibit RPD-1, RPD's Record, RPD's Reasons, paras. 19-21. 57 Exhibit P-2, Appellant's Record, p. 68, para. 45. 58 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 35. 59 Exhibit P-2, Appellant's Record, p. 70, para. 50. 60 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 41. 61 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Ethiopia (January 29, 2016), item 2.6, p.1. 62 Ibid., item 4.3, pp. 2-4. 63 Ibid., item 2.1, p. 19. 64 Exhibit RPD-1, RPD's Record, pp. 35-36, BOC Narrative. 65 Exhibit P-2, Appellant's Record, p. 74. 66 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 49. 67 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 52. 68 Ibid., paras. 61-64. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-10435