TB9-15541

RAD File / Dossier de la SAR : TB9-15541 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 28, 2020 Date de la décision Panel Joel Bousfield Tribunal Counsel for the person who is the subject of the appeal Teklemichael A Sahlemariam Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is the decision in the appeal of XXXX XXXX XXXX. The appellant is a citizen of Ethiopia. He appeals a Refugee Protection Division (RPD) decision dated April 30, 2019, rejecting his claim for refugee protection. He is requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find that he is a Convention refugee or a person in need of protection. In the alternative, he requests that the RAD refer the matter back to the RPD for redetermination by a differently constituted panel. He has requested to submit new evidence but not an oral hearing. DETERMINATION [2] The RAD allows the appeal and sets aside the decision of the RPD. The RAD substitutes the determination that, in its opinion, should have been made, namely that the appellant is a Convention refugee, pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA).1 BACKGROUND Basis of Claim [3] The appellant alleges that he is a photojournalist who fears persecution by the Ethiopian government because he wrote reports that are critical of the government. The rest of the central allegations are set out in his Basis of Claim form (BOC) narrative.2 In addition to the central allegations set out in his BOC narrative, the appellant alleges that the Ethiopian authorities visited his family residence after he fled Ethiopia - XXXX XXXX XXXX XXXX XXXX XXXX. RPD Decision [4] The RPD rejected the appellant's claim because it found that his claim was no longer objectively well-founded due to a change of circumstances in Ethiopia. The RPD also rejected the claim because it drew negative credibility inferences. REQUEST FOR ADMISSION OF NEW EVIDENCE DECLINED [5] The appellant requested that the RAD admit multiple items of new evidence including affidavits, photographs and country articles.3 As the RAD has allowed the appeal based on the evidence that was before the RPD, the RAD declines to address the admissibility of this evidence because the requests are moot. The new items are therefore not admitted and were not considered in deciding the appeal. ANALYSIS Determinative Issue [6] The determinative issues in this appeal are whether the RPD made critical errors in assessing the appellant's credibility and the objective basis of his claim. For the following reasons, the RAD finds that it did. [7] The RAD has done an independent assessment of the record. The RAD is reviewing the RPD decision on a standard of correctness. Credibility [8] The RPD drew a negative inference because the appellant changed his testimony when he was asked whether the state of emergency was in effect when he fled Ethiopia. At first, he testified that it was not in effect and then he testified it was in effect. He also testified that he could not remember when it came into effect. The RPD found it implausible that he would not know when the state of emergency came into effect. [9] The appellant argues that the RPD should not have drawn this inference. He argues that the state of emergency did not play a major role in his history of persecution, nor in affecting the negative human rights situation in Ethiopia, and that the RPD should therefore not have been drawing negative inferences based on what he did not appear to know about it. The RAD disagrees with this argument. It is implausible that a persecuted XXXX would not know when the state of emergency came into effect. The RAD therefore also draws a negative inference as to the appellant's credibility. However, the RAD finds that this inference is not determinative of the appeal because the RAD finds that it has no other bases upon which to discount the appellant's credibility. [10] The RPD drew another negative inference because it found the appellant had a high profile as a XXXX but that he had attempted to mislead the panel by pretending to be humble and by testifying that he did not have a high profile. [11] The appellant argues that the RPD should not have drawn this inference. He argues that his testimony and supporting documents consistently indicated that he is not a high-profile XXXX and that the RPD therefore had no basis upon which to conclude that he had attempted to mislead the RPD about his profile. Having reviewed the record and assessed it independently, the RAD agrees with this argument. The appellant's testimony and supporting documents do not indicate that he is a high-profile XXXX. The RPD therefore made a mistake in finding that he is a high-profile XXXX and another mistake in finding that he had attempted to mislead it about his profile. The RAD therefore declines to draw the negative inference drawn by the RPD. [12] The RPD drew a negative inference about the appellant's credibility and his supporting documents because the alleged police visits of XXXX XXXX XXXX XXXX XXXX, which are mentioned in letters4 from family members, are not mentioned in the appellant's BOC amendments,5 and because it found these visits are not consistent with the country documents and implausible in the context of the improved human rights situation in Ethiopia. The RPD found these alleged visits to be claim embellishments. [13] The appellant argues that the RPD should not have made this finding. He argues that these visits are not inconsistent with the country documents and that they are not implausible considering that Ethiopian authorities continue to perpetrate human rights abuses despite improvements in the human rights situation. He also argues that the RPD should not have expected these alleged incidents to be mentioned in his BOC amendments and that it was sufficient for them to be mentioned in the supporting letters from his family as they were. The RAD agrees with this argument as well. The recent changes in the human rights situation in Ethiopia - see change of circumstances issue below, are not so dramatic and complete as to render the alleged police visits XXXX XXXX XXXX XXXX XXXX XXXX implausible. Moreover, the RPD was wrong to expect these two police visits to necessarily appear in the BOC amendments. The alleged police visits of XXXX XXXX XXXX XXXX XXXX do post-date the appellant's original BOC and they are referenced in the supporting letters from his family members. So, this is not a situation where the claimant completely failed to disclose alleged events before the hearing. Moreover, it is clear from the amendments that the appellant did make to his BOC that he understood that the BOC had to be accurate as of the time it was signed rather than up to the date of the hearing. The RPD therefore erred in finding these alleged visits to be implausible and inconsistent with the country documents, and in finding them to be unreasonable BOC omissions. The RAD therefore declines to find these visits to be embellishments and to draw the negative inferences drawn by the RPD. [14] The affirmed evidence of refugee claimants is presumed to be true unless it is internally inconsistent, inherently implausible, or inconsistent with the documentary evidence on country conditions.6 Having reviewed the record, the RAD finds no such issues with the rest of the appellant's evidence concerning the central allegations in its independent analysis. The RAD also notes that the appellant told the same story at the port of entry.7 The RAD further notes that the central allegations are corroborated by multiple personal documents8 that the RAD has insufficient reason to discount including witness letters, a biography, reference letters, a recognition letter, professional works, photographs, flyers, videos and magazine publications. Therefore, in spite of the single implausibility concerning the appellant's knowledge of the state of emergency, the RAD finds that the appellant is a credible witness and that the central allegations in this claim are all true, on a balance of probabilities. Change of circumstances [15] The RPD found that there had been a change of circumstances since the appellant fled Ethiopia that is sufficient to remove the objective basis of the appellant's fear of persecution. The RPD noted that the government of Ethiopia had recently lifted the state of emergency, decriminalized political groups, invited opposition leaders to return, released political prisoners including journalists, revised repressive laws, allowed new political movements and peaceful rallies, removed people from the terror list, loosened restrictions on media reporting, and passed an amnesty proclamation. [16] The appellant argues that the RPD should not have made this finding. He argues that the RPD based the finding on one Department of State report and that it ignored a lot of other country documents indicating that the human rights situation in Ethiopia is still negative. He argues that the RPD did not conduct a sufficient analysis of the country documents and that it did not analyze whether the country conditions changes are sufficiently meaningful, effective and durable to remove the objective basis of his fear as caselaw requires it to do before arriving at a change of circumstances conclusion. He argues that the country conditions documents9 indicate that, despite what the RPD noted in terms of changes, it is still the same government in Ethiopia, that arrests and detentions continue, and that the reform process is recent and unstable. The RAD agrees with the appellant that the RPD was wrong to find that there has been a change of circumstances. The RPD did not conduct a sufficient analysis of the country documents.10 The country documents indicate that the improvements in the human rights situation in Ethiopia are still relatively recent, that it is still the same government in Ethiopia, that arrests and detentions continue, and that deep-seated ethnic cleavages seriously threaten the stability and continuity of the reforms. Therefore, the RPD should have found based on the documents cited by the appellant, as the RAD does now, that the recent changes in Ethiopian country conditions are not sufficiently meaningful, effective and durable to constitute a change of circumstances to the point that the appellant no longer faces a reasonable chance of persecution if he returns to Ethiopia. For these reasons, the RAD finds that the RPD's change of circumstances conclusion is wrong and cannot stand. Well-foundedness [17] Based on all of the previous, the RAD finds, in its independent analysis, that the appellant has a well-founded fear of persecution by the government in Ethiopia by reason of his anti-government political opinion. As the agent of persecution is the government, the RAD finds that adequate state protection and viable internal flight alternatives (IFAs) are not available to him. CONCLUSION [18] The RPD made credibility and objective basis assessment errors which are fatal to the RPD's determination of the claim. [19] After an independent assessment of the evidence in the case, the RAD has arrived at positive conclusions about the appellant's overall credibility and the central allegations in his case. The RAD finds that his claim is objectively well-founded, that adequate state protection is not available to him, and that he does not have a viable IFA anywhere in Ethiopia. [20] The RAD therefore finds that the appellant has a well-founded fear of persecution in Ethiopia by reason of his anti-government political opinion. [21] The RAD therefore allows the appeal and sets aside the decision of the RPD. The RAD therefore substitutes the determination that, in its opinion, should have been made, namely that the appellant is a Convention refugee, pursuant to section 111(1)(b) of the IRPA. (signed) JOEL BOUSFIELD Joel Bousfield July 28, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit RPD-1, RPD Record, Exhibit 2, pp. 14-18. 3 Exhibit P-2, Appellant Record, pp. 1-45; and Exhibit P-3, Appellant Record, Supplementary Record, pp. 1-57. 4 Exhibit RPD-1, RPD Record, Exhibit 5, pp.183-91. 5 Ibid., note 2, pp. 24-27. 6Maldonado v. Canada (M.E.I.), [1980] 2 F.C. 302 (C.A.). 7 Exhibit RPD-1, RPD Record, Port of Entry Notes, pp. 62-68. 8 Ibid., note 4, pp. 90-205. 9 Appellant's Record, Appellant's Memorandum, see all country documents cited in paragraphs 38-57, pp. 60-67. 10 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-15541 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français