TB6-15086

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 : TB6-15086 Private Proceeding / Huis clos Redetermination of Appeal ? Nouvel examen de l'appel Reasons and decision ? Motifs et decision 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 September 5, 2018 Date de la décision Panel D. Goff Tribunal Counsel for the person(s) who is(are)the subject of the appeal Paul Vandervennen Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX, a citizen of Ethiopia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either grant his claim for protection, or refer the matter back to the RPD for redetermination. The appellant has provided new evidence in support of his appeal. He has not requested a hearing. BACKGROUND [2] In September, 2015, the appellant acquired a multiple entry visa to travel to Canada for a "family visit" to see his cousin "XXXX XXXX XXXX" in Calgary, Alberta.1 In October 2015, the appellant travelled to Canada.2 He returned to Ethiopia after his visit. [3] In May 2016, the appellant again travelled back to Canada. [4] In June 2016, the appellant initiated an inland claim for refugee protection alleging a fear of persecution by the XXXX XXXX XXXX XXXX XXXX XXXX XXXX) because he is a political opponent of the government and a member of the XXXX XXXX also known as the "XXXX XXXX". The appellant alleges: a. He is of Amharic ethnic background. He completed university at the XXXX XXXX University. He is a long time employee of XXXX XXXX as an 'XXXX XXXX XXXX XXXX XXXX.3 b. In 2013, the appellant joined the XXXX XXXX after talking to a co-worker and XXXX XXXX member "XXXX XXXX" during lunch. c. In XXXX 2013, the appellant was detained by authorities after attending a demonstration. During this time he was beaten and barely fed. He was released after signing a document outlining strict conditions that he would not say a word concerning the imprisonment to anyone and that he would not participate in any demonstration again and if he got caught again he would face consequences.4 d. In XXXX 2016, the appellant's mother was informed by a friend that the government was planning to arrest the appellant. The appellant fled to Canada since he already had a valid visa. The police issued two summons asking the appellant to appear at the police department for questions.5 e. The appellant has participated in some political-related events while in Canada. [5] The appellant's claim was heard by the RPD on September 21, 2016. A representative of the Minister of Immigration, Refugees and Citizenship Canada intervened in the matter on credibility grounds.6 By a decision dated October 4, 2016, the RPD rejected the claim finding the appellant had not credibly established his claim. [6] The appellant appealed the negative decision to the RAD. The appellant argued the RPD erred in finding that the appellant's evidence was not credible.7 In a decision of February 27, 2017, the RAD dismissed the appeal and upheld the decision of the RPD. [7] The appellants sought judicial review of the RAD's decision. In a decision of October 6, 2017, the Federal Court allowed the application and returned the matter to the RAD for re-determination before a differently constituted panel. DETERMINATION OF THE APPEAL [8] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (the "Act"),8 the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. ANALYSIS [9] Pursuant to the Federal Court of Appeal's (FCA) decision in Huruglica,9 the RAD is to review RPD findings of law, fact (and mixed fact and law), which raised no issue of credibility of oral evidence, applying the correctness standard. In assessing the credibility of oral evidence, the RPD may have a meaningful advantage over the RAD, as the RPD directly sees, observes, and selects questions to ask of the appellant. The RAD must be satisfied the RPD's findings are a result of a comprehensible reasoning process and based upon the evidence.10 Admissibility of new evidence presented on appeal [10] The admissibility of new evidence before the RAD is subject to strict criteria.11 Subsection 110(4) of the Act provides that the appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection of his claim. The RAD has no discretion to disregard the statutory requirements. The RAD Rules also require that the appellant "must" explain how any new documentary evidence meet the requirements of subsection 110(4) of the Act and how that evidence relates to him.12 As such, the burden of proof for admitting new evidence lies with the appellant. [11] The appellant has submitted the following documents as proposed new evidence.13 a. An affidavit from the appellant dated November 16, 2017. b. An article from the New York Times dated November 5, 2017. c. Photographs of the appellant attending two political events in Canada. [12] The appellant submits these documents are "new" because they are dated after his RPD hearing. He argues the documents corroborate his sur place claim based upon his political activities in Canada. [13] The RAD has carefully reviewed the proposed documents and have accepted the appellant's updated affidavit and attached photographs as new evidence because they are relevant to his sur place claim based upon his political activities in Canada. However, the RAD has not accepted the proposed news article, as it is a general article describing the government's surveillance activities inside Ethiopia. The RAD finds this article falls under general country documentation that was already before the RPD in the form of the Board's comprehensive National Documentation Package on Ethiopia, dated 29 April 2016.14 The RAD thus finds this article is not "new" in accordance with subsection 110(4) of the Act and Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. It has therefore not been admitted as new evidence. Oral Hearing [14] The appellant has not requested an oral hearing. Further, no new evidence that is determinative of this claim has been accepted. Accordingly, an oral hearing has not been held. The RPD Findings [15] The onus is on refugee claimants to establish their claim for protection. The RPD found the appellant had not met his burden to do so. Appellant's Ability to Travel, Failure to Claim Elsewhere, Re-Availment [16] The appellant alleged he was detained and beaten by the XXXX in 2013. The RPD noted that he soon afterwards travelled to various countries, but always returned to Ethiopia and failed to seek asylum in those countries. In response to the RPD's questions, the appellant testified he was not afraid to return to Ethiopia and he thought he should remain to change the government. [17] The RPD did not find the appellant's responses to be credible. The RPD concluded the appellant's return to Ethiopia and failure to claim protection elsewhere undermined the credibility of his allegations of persecution and that he was targeted by authorities. [18] The appellant argues the RPD erred because his explanation was not implausible. [19] Having independently reviewed the record, the RAD does not agree with the appellant's argument. The RPD explained in clear and specific terms why the appellant's explanation was found not to be credible and in doing so also gave more weight to the objective country documentation. [20] The RAD similarly does not find the appellant's explanation to be reasonable nor credible under the circumstances. By his own evidence, the appellant travelled extensively outside of the country after his alleged detention and beating by authorities in 2013. He thus frequently exited and re-entered the country on multiple occasions thereby also successfully passing various airport security checks despite being under strict conditions by authorities. Indeed, his passport evidences many entry and exit stamps, as well as various Schengen visas.15 [21] The RAD further notes the appellant indicates in his visa application(s) to the United States (US) in 2014 (and again in 2016), that his primary occupation is "government" and that he works with XXXX XXXX.16 In his Canadian visa application, he similarly indicated he worked for XXXX XXXX, which is wholly owned by the Ethiopian government. He also indicated in both his US and Canadian visa applications that he had never been arrested in any country.17 Further, the appellant successfully acquired a Canadian visa and travelled to Canada in 2015. He did not seek protection in Canada and returned to Ethiopia with no apparent problems. [22] The RAD has also carefully reviewed the country documents. The objective evidence indicates that the authorities harass and detain members and supporters of opposition parties;18 there are reports that the government regularly arrests political opponents and subjects them to intimidation, abuse, and torture, while dissidents are kept under surveillance.19 The Ethiopian government has prevented political opponents from traveling abroad.20 [23] The RAD accordingly does not find the appellant's extensive travel history and response that he was not afraid to return to Ethiopia and returned to change the government to be reasonable nor credible under the circumstances. The appellant alleged he was detained, beaten and mistreated by authorities and that he signed strict conditions in 2013. He also testified as to his knowledge about the repressive practices of the government. The RAD accordingly finds it is reasonable to expect an appellant under these circumstances to seek protection without delay and at his earliest available opportunity(ies), particularly for someone alleging a risk to their life or of cruel and unusual treatment or punishment for political reasons. In this regard, the RAD notes the appellant is not unsophisticated. He is well-educated and very well-travelled. Accordingly, while not determinative on its own, the appellant's frequent ability to travel with no apparent issues after his alleged detention and imposed conditions (including in 2014, 2015 and after May 2016 when he was informed that he was to be arrested), his repeated failure to seek protection elsewhere (and/or to even enquire about seeking asylum), his repeated return to the country, and his corresponding responses for not doing so, added to the RAD's own concerns with the credibility of the appellant's allegations of persecution and that he has been targeted by authorities for political reasons. Alleged Political Profile [24] The appellant alleged he was a member of the XXXX XXXX, but had no particular role or title. The RPD found the appellant's knowledge of the XXXX XXXX mandate and goals to be minimal and superficial. The RPD determined the appellant failed to establish he was active or influential in the XXXX XXXX and that his activities had come to the attention of the XXXX. [25] The RPD further did not find the appellant's supporting documents to be credible. For example, the RPD found a letter purportedly from the XXXX XXXX21 to be unreliable. The RPD noted that the letter was written in English and signed by the Chairman. It noted that a Response for Information Request (RIR)22 in the NDP indicates that support letters from the party are rarely issued to regular members and that the letter would usually be written in Amharic (not English) and signed by the General Secretary or an executive member of the party (not the Chairman). In response to the RPD's questions, the appellant alleged that he called the XXXX XXXX office and requested a letter. He provided details about his problems and someone wrote the letter and gave the letter to his mother. The RPD concluded the manner in which the appellant obtained the letter was inconsistent with what is articulated by the chairperson in the RIR and gave the letter minimal weight. [26] The appellant has not challenged the RPD's finding. Nevertheless, having independently reviewed the evidence, the RAD agrees with the RPD. The appellant's purported XXXX XXXX letter does not match the details in the RIR. Further, his vague testimony as to how he acquired the letter was not reasonable nor credible i.e., that someone allegedly wrote a "letter of support" to get the actual letter from the party. It is unclear as to what was in the "letter of support" or how the party accessed the information to put in the letter, given that the Chairman has stated in the RIR: "The party doesn't have the resources to trace the activities of all members."23 The RAD accordingly finds the letter from the XXXX XXXX unreliable and gives it no weight. This also added to the RAD's own credibility concerns with the appellant and his allegations. [27] The RPD further did not find two alleged summons24 from the police to be reliable and gave them no weight. In particular, the RPD noted: The panel noted that the documents were typed on plain white paper with no letterhead. There is no way to reliably ascertain the veracity of the documents. The panel notes that the authorities routinely make arrests on mere suspicion of anti-government activities without a warrant. The panel finds it unusual that the police would take the time to issue two summons to the claimant given that the EPRDF are known for arbitrary arrest and detention without warrants.25 [28] The appellant has not challenged the RPD's analysis and findings in this regard. The RAD nevertheless finds no error in the RPD analysis or finding in giving the documents no weight. Further, the RAD also notes the alleged documents summoning the appellant for police questioning do not match the samples in the RIR.26 [29] The RPD further noted the treatment of his family in Ethiopia was not consistent with the documentary evidence indicating that security forces detain family members of persons sought for questioning by the government. The RPD explained: [g]iven the alleged interest in the claimant having been issued two summons, it is likely that the claimant's family members would be arrested and detained in an attempt to force the claimant to report as directed. Other than the authorities searching the home of the claimant, the claimant's family members remaining in Ethiopia do not indicate in their respective affidavits that they have been arrested or have been threatened with arrest by the authorities.27 [Footnote omitted] [30] The appellant has (again) not challenged the RPD on this point. The RAD finds no error in the RPD's analysis or finding. The RAD agrees with the RPD that the fact the appellant's family has not been detained despite his allegation that he is being sought for questioning detracts from the credibility of the appellant's alleged political profile and that he is in fact wanted by authorities. [31] The RPD concluded the appellant failed to establish with sufficient trustworthy and credible evidence that he was active or influential in the XXXX XXXX and that his activities had come to the attention of the XXXX. Specifically, the RPD found "...his role and activity in the party, if any, was negligible and unlikely on the balance of probabilities, to have come to the attention of the XXXX".28 [32] The appellant argues the RPD erred in finding that the Ethiopian government persecutes only active and influential political opponents. [33] Having independently reviewed the evidence, the RAD does not agree with the appellant's argument. The RPD made a number of credibility findings specifically with regards to the appellant's allegations and his alleged political profile, which the appellant has not challenged. The RPD also considered both the appellant's personal and country documents. The RPD gave clear and specific reasons why it determined the appellant failed to credibly establish that he is personally likely to be of interest to the authorities. Moreover, the RAD agrees. In this regard, the country documents specifically indicate that individuals that are perceived to be "active or influential" in opposition are at risk of ill treatment by the Ethiopian authorities. However, the appellant has not established that he was active and/or influential in political opposition of the government and/or perceived to be so. The appellant did not hold any leadership positions with the XXXX XXXX nor did he have any "influence" in the community or otherwise. His role with the XXXX XXXX was at a low-level, at best. The RAD accordingly finds the appellant has failed to establish with sufficient trustworthy and credible evidence that he was or is sought by authorities, or was or is perceived as a political opponent of the government. Sur Place Claim [34] The appellant also argues the RPD erred in assessing his sur place claim. [35] Having independently reviewed the evidence, the RAD agrees, in part. The RPD incorrectly took a negative inference for the appellant's failure to update his Basis of Claim (BOC) to include a photograph of him attending a political-related event in Canada that was posted on the Internet. However, the RPD's error is not fatal to the RPD's final determination. [36] The appellant cites the NDP in arguing that he will be persecuted because 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. The representative noted his organization is aware of many cases of ex-patriots [sic] being detained upon arrival at the airport, interrogated, and "intimated" by security.29 [37] Having independently assessed the record, the RAD does not agree with the appellant's argument. In considering the appellant's argument, the RAD has carefully considered the United Nations Handbook on Procedures and Criteria for Determining Refugee Status30 which outlines the criteria to be considered in the determination of a sur place claim. Specifically, Article 96 states: A person may become a refugee "sur place" as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities. [emphasis added] [38] Accordingly, it is not enough for the appellant to simply suggest that he might possibly have come to the attention of the Ethiopian authorities. Rather, he must establish that he faces a serious possibility of persecution in his country of origin. He has not done so. Further, the information the appellant cites in support of his argument is distinguished by the particular circumstances of his case. For example, the appellant has not established that he is "actively involved" in Ethiopian politics (neither in Ethiopia nor in Canada) as compared to the situation in his cited document. Moreover, he also cites the "many cases of ex-patriots being detained upon arrival at the airport". However, by his own evidence, the appellant has had the exact opposite experience i.e., he has frequently traveled to (and from) Ethiopia with no apparent problems at the airport despite his alleged political profile and his arrest, detention, and strict conditions imposed by authorities in 2013. [39] The RAD further finds that although it appears that Ethiopian authorities monitor individuals in the Ethiopian diaspora, they cannot possibly monitor everyone or have the resources to monitor everyone who takes part in small demonstrations or protests, as suggested by the photographs. While it is likely that high profile opposition leaders and/or those "actively involved" in European politics are monitored while abroad, it does not seem reasonable that "political activities" by all Ethiopians abroad with little or no previous political profile are monitored. Given the appellant's very limited profile, the RAD does not find that Ethiopian authorities or their agents have been monitoring the appellant. There is no credible evidence the photographs of the appellant in group and crowd settings at some political-related events have or will come to the attention of Ethiopian authorities. Moreover, even if the appellant were to be seen on the internet participating in one of the activities that are depicted in his photographs, given his lack of profile, the RAD does not find that he would now be targeted by authorities upon his return to Ethiopia. CONCLUSION [40] As noted above, the appellant has not challenged key RPD credibility findings, including concerns with the genuineness of his supporting documents and that the treatment of his family remaining in Ethiopia was not consistent with the documentary evidence. [41] The RAD similarly had credibility concerns with the appellant and his allegations of persecution, including concerns with the appellant's apparent lack of subjective fear. For example, the appellant frequently and extensively travelled outside his country in 2014, 2015 and 2016. He was however unable to reasonably explain how and why he was able to do so; why he did not seek protection earlier and elsewhere in those countries; and, why he repeatedly returned to Ethiopia despite his alleged political profile and alleged arrest, mistreatment and beating by authorities and being under strict conditions since 2013. [42] Having reviewed the entire record, including the new evidence, the RAD finds the appellant has not established with sufficient credible or trustworthy evidence his allegations of persecution, including that he was detained and beaten by authorities, and that he was or, is sought by the authorities for political reasons. Disposition [43] Pursuant to paragraph 111(1)(a) of the Act, 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) "D. Goff" D. Goff September 5, 2018 Date 1 Exhibit RPD-1, RPD Record, Exhibit 4, Temporary Resident Visa (TRV) application, at pp. 164-197. 2 Ibid, Exhibit 1, Appellant's passport and entry stamps to Canada, at p. 70. 3 Ibid, Exhibit 4, Appellant's visa application to Canada, at p. 167. 4 Ibid., Exhibit 2, Basis of Claim Form, narrative at pp. 24-25. 5 Ibid., at pp. 25-26. 6 Ibid., Exhibit 5, Minister's Notice of Intent to Intervene, at pp. 200-207. 7 Exhibit P-2, Appellant's Record, Memorandum, at p. 3. 8 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 9 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 10 X (Re), 2017 CanLII 33034 (CA IRB). 11 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, FCA 96. 12 Rule 3(3)(g)(iii), IRB, Refugee Appeal Division Rules, SOR/2012-257. 13 Exhibit P-3, Appellant's Additional Documents, not paginated. 14 Exhibit RPD-1, RPD Record, Exhibit 3. 15 Ibid., Exhibit 1, at pp. 62-74. 16 Ibid., Exhibit 10, US visa applications, at pp. 274-291. 17 Ibid., at pp. 278, 286, Exhibit 4, at p. 168. 18 Ibid., Exhibit 3, item 2.6, p.1. 19 Ibid., item 4.3, pp. 2-4. 20 Ibid., item 2.1, p. 19. 21 Exhibit RPD-1, RPD's Record, Exhibit 6, at p. 210. 22 Ibid, at pp. 260-262. 23 Exhibit RPD-1, RPD's Record, Exhibit 7, at p. 260. 24 Exhibit RPD-1, RPD's Record, Exhibit 6, at pp. 219-222. 25 Ibid, Reasons, at p. 7, para. 18. 26 Ibid, Exhibit 3, National Documentation Package (NDP) for Ethiopia 29 April 2016, item 10.2, RIR, ETH105314.E, at pp. 7-8. 27 Ibid., Reasons, at p. 10, para 20. 28 Ibid, at p. 7, para 17. 29 Exhibit P-3, Appellant's Additional Documents, not paginated. 30 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, re-edited January 1992. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-15086