VB8-04687

RAD File / Dossier de la SAR : VB8-04687 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 September 27, 2020 Date de la décision Panel Colin Anderson Tribunal Counsel for the person who is the subject of the appeal Amina Muhammad 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 INTRODUCTION AND DECISION [1] The following reasons explain why I am dismissing the appeal of Mrs. XXXX XXXX XXXX. The Appellant has appealed the Refugee Protection Division's (RPD) August 2, 2018 decision that denied her claim for refugee protection. The Appellant has asked that I either find her to be Convention refugee or a person in need of protection, or send her claim back to the RPD for redetermination. I agree with the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [2] The Appellant has made the following key allegations in her Basis of Claim forms and at the RPD hearing: * That an individual wanted to forcibly marry the Appellant; and * That this individual attacked the Appellant three times: in 2000, in 2002, and in 2014. [3] The RPD found that the Appellant's claim failed because of credibility problems and because the Appellant failed to rebut the presumption of adequate state protection in Ethiopia. [4] The Appellant has argued that the RPD erred as follows: * By breaching procedural fairness as a result of bias and by ignoring evidence; * By conducting a microscopic examination of the Appellant's credibility; and * By unduly fixating on omissions from the Basis of Claim form. PRELIMINARY MATTERS New evidence is admissible [5] The Appellant has requested the admission of two new pieces of new evidence in support of the appeal. I find that both these pieces of new evidence are admissible. The items of new evidence are both media articles that post-date the Appellant's perfection of her appeal. Both pieces of new evidence are credible, because they are sourced from the well-known media organizations Washington Post and Al-Jazeera. Both pieces of new evidence are relevant, in that they speak to updated country conditions in Ethiopia. For these reasons, I find that the proposed new evidence meets the requirements of the RAD rules, the relevant factors described by the Federal Court in Singh and Raza, and IRPA s. 110(4). No RAD oral hearing [6] IRPA s. 110(6) specifies that I may only hold a RAD oral hearing if, among other things, the new evidence admitted raises a serious question of the Appellant's credibility. In this case, the new evidence does not meet this requirement and I therefore have no discretion to hold a RAD oral hearing. The role of the Refugee Appeal Division [7] I have reviewed the entirety of the written record and have listened to the audio recording of the RPD hearing. The RPD had no meaningful advantage over me in assessing the credibility of oral testimony. I have therefore undertaken a review of the correctness of the RPD decision throughout. State protection as the determinative issue [8] As I will explain below, I agree with the RPD that the Appellant has failed to rebut the presumption of adequate state protection in Ethiopia. I have also considered the RPD's findings on exclusion and the Appellant's arguments regarding procedural fairness. Because of my findings on state protection, I have not considered the RPD's findings on credibility in depth. Gender guideline is relevant [9] In my analysis of the RPD's decision, I have been mindful of the Board's Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution. ANALYSIS The RPD did not breach procedural fairness [10] The Appellant has argued that the RPD breached procedural fairness because there was a reasonable apprehension of bias present in the RPD member's oral decision, and because the member failed to consider all of the evidence. [11] I disagree with the Appellant that there was a reasonable apprehension of bias at the RPD. While the Appellant has suggested that the RPD member "got angry" at the Appellant over a credibility problem1 and that the RPD member "blurted out, 'I put it to you that you were a permanent resident and you disagreed with me'" during the hearing,2 I find that this is a mischaracterization of the facts. I find this way because I have listened to the entirety of the RPD hearing. In my opinion, the RPD member maintained a very calm, respectful, neutral tone of voice throughout the entire hearing. The RPD member asked a variety of questions on a variety of issues, including identity, credibility, and state protection. The RPD member questioned the Appellant's witness, allowed the Appellant's counsel to ask questions, and allowed the Appellant's counsel to make full submissions. The RPD member also took plenty of time for language interpretation. [12] The RPD member did mention the credibility problem in question a number of times during the oral decision, but I do not see this as a problem. This is not a problem because in my opinion, the member carefully and thoroughly explained the implications of the credibility problems that he had identified. Thorough, well-explained decisions are required of the RPD. [13] I further note that the RPD member's decision referred to specific pieces of evidence, explained why certain evidence was given weight and why other evidence was not, and specifically cited various relevant pieces of country condition evidence. I have no evidence before me that the RPD member personally stands to benefit from any decision either way in this case. Because of my observations above, I cannot conclude that the RPD member entered the hearing with his mind made up, I cannot conclude that the RPD member was angry with the Appellant, and I cannot conclude that the RPD member was biased. [14] I also disagree with the Appellant that the RPD member breached procedural fairness by ignoring evidence. The Appellant has not pointed me to any specific evidence that the RPD member ignored, and in my independent review of the RPD record I see none that disrupts the RPD's findings on state protection. [15] I therefore find that an informed person, viewing the matter realistically and practically, having thought the matter through, would not conclude that it is more likely than not that the RPD member was unfair in deciding this case. The Appellant is not subject to 1E exclusion [16] The Minister of Immigration, Refugees and Citizenship intervened at the RPD and raised the question of exclusion under the Immigration and Refugee Protection Act (IRPA) s. 98. The Minister intervened on the basis of the Appellant's potential status as a resident in the Republic of Guinea-Bissau. [17] The RPD found that the Appellant was not excluded under IRPA s. 98, because her residency status had expired shortly before the date of the RPD hearing, and because the Appellant's former status in Guinea-Bissau was predicated on her work with a XXXX XXXX. The Appellant's membership in the XXXX XXXX had been revoked before the date of the RPD hearing and the Appellant was not permitted to rejoin the XXXX XXXX for disciplinary reasons.3 [18] The Minister did not intervene further on appeal. [19] In my independent assessment, I find I agree with the RPD on this matter, and note that the evidence on record indicates that the Appellant did not, at the time of the RPD hearing, have the right to return to Guinea-Bissau and enjoy status similar to a national of that country. Adequate state protection exists for the Appellant in Ethiopia [20] The RPD correctly found that the Appellant failed to rebut the presumption of adequate state protection in Ethiopia. [21] States are presumed to be capable of protecting their citizens except in situations of complete breakdown. This presumption of adequate state protection can be rebutted with clear and convincing evidence of the state's inability to protect its citizens.4 [22] In making its finding, the RPD cited the following: * The Appellant's evidence indicating that her mother had gone to the police three times with no result was inconsistent and therefore not credible; * According to the Appellant, the police in Ethiopia provided a guard to the Appellant following an attack; * According to the Appellant, she did not tell the Ethiopian police about the sexual assaults; * According to National Documentation Package item 1.4, "the security forces are largely effective in maintaining law and order..." * According to National Documentation Package item 1.5, "the Ethiopian government maintains an extensive security and intelligence regime, which assists in protecting people from major crimes..." [23] The Appellant has made no argument against the RPD's findings on state protection. [24] In my independent review, I find that the Appellant's evidence regarding attempts to seek police assistance is inconsistent and vague. In her original Basis of Claim form, the Appellant indicated that she had not sought police assistance.5 In her revised Basis of Claim form, the Appellant did not include an answer to the question regarding police assistance (that page is omitted from the record and it is not an error on the side of the Board, because the page numbering is consecutive). However, in a different answer on the revised Basis of Claim form, the Appellant wrote that "...we have asked protection from the police but never managed because neighbours have significant influence over the police and authorities."6 The Appellant further wrote in the revised narrative that, "...my family informed to the police but never managed due to the position that the father has in the village."7 At the RPD hearing, the Appellant stated, "...my mother tried with the police, she went two or three times and she didn't see any results from the police side."8 [25] This evidence is problematic for two reasons. First, it is extremely vague. It is unclear if and when people went to the police, what specific efforts were made to report incidents, who they spoke with, and how exactly the police responded. No details have been offered with regard to what position the neighbours and/or father hold in the community, and in what ways these people specifically interfered in getting police help. There is no documentary evidence and no witness evidence supporting any attempt to seek police assistance, despite the fact that the Appellant's family is still living in Ethiopia and is contactable. As a result, I find that the few mentions of attempts to seek police assistance are quite bald assertions. [26] The second problem with this evidence is that it is inconsistent with the Appellant's other evidence, which is that the police did take a report after the attack at the XXXX. The Appellant further explained at the RPD hearing, "we went to the police station, and his name was [unclear] who was in charge of the station and he said 'ok we are going to give you a police who will protect you with a guard,' and they gave us one police."9 In my opinion, this indicates police willingness to offer protection and assistance to the Appellant when the Appellant requests it. [27] When I look at the objective country condition evidence on Ethiopia, I note that the National Documentation Packages do contain the information described by the RPD above - that Ethiopian authorities have a generally effective system of maintaining law and order. I am aware that a new National Documentation Package has been issued since the RPD hearing. I have reviewed this package and find no new information that disrupts these findings. Again, no new evidence has been disclosed by the Appellant on appeal. [28] As a result of the above observations, including the fact that the police apparently offered a dedicated guard when asked for help, I find that the RPD was correct to determine that the Appellant has not rebutted the presumption of adequate state protection in Ethiopia. There is no valid residual claim on the basis of gender [29] Though the Appellant has not argued that a residual claim exists, I have also turned my mind to the possibility of a residual claim on the basis of the Appellant's gender and her risk of forced marriage by abduction in Ethiopia. [30] The objective documentary country condition evidence does show that marriage abduction continues in some regions in Ethiopia.10 However, the evidence also indicates that the government is making efforts to combat it. I can find no evidence that women who are already married (as the Appellant is) are at significant risk of marriage abduction, and no evidence that women of the Appellant's age are at a particular risk. [31] Given this information, I find that there is no serious possibility of persecution and, on a balance of probabilities, no risk to life, risk of torture, or risk of cruel and unusual treatment or punishment on the basis of the Appellant's residual profile. There is no residual claim on the basis of current country conditions [32] The Appellant has argued that the new evidence admitted, which documents ongoing ethnic violence and civil disobedience in Ethiopia, causes the Appellant to face a s. 97 risk such that she is a person in need of protection. I disagree. [33] While I consider the new evidence credible and find that ethnic violence and tensions are occurring, I note that the Appellant's submissions on this topic do not substantially link the Appellant to the violence described in the evidence. The articles detail that after a week of unrest, 215 civilians, nine police officers, and five militia members have been killed. The articles also state that thousands have been arrested in connection with the incidents and that shops are now starting to reopen following the incidents. The article states that the unrest was caused by an uproar following the murder of a popular singer. The article further specifies that an Oromo activist and numerous supporters were arrested. The article states that some Oromo have been targeting ethnic Amhara, and in one location individuals were going door to door looking for Amhara. [34] I have no evidence before me that the Appellant has any connection to Oromo or Amharic activists, no evidence or argument that the Appellant would be involved in the ethnic protests in any way, no evidence or argument that the incidents described have affected any of the Appellant's family members who still reside in Ethiopia, and no evidence or argument that the incidents described have occurred in the Appellant's own residential or employment area. [35] While the deaths and related arrests described are extremely concerning, I am mindful that millions of other Ethiopians have apparently not been affected by the incidents described. I cannot conclude that the evidence before me indicates that the Appellant would face a serious possibility of persecution or, on a balance of probabilities, a personal risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture on the basis of her Amharic ethnicity and the current country conditions. CONCLUSION [36] The RPD did not breach procedural fairness and was not biased in its decision. [37] The RPD correctly found that the Appellant has not rebutted the presumption of adequate state protection in Ethiopia. [38] There is no valid residual claim on the basis of the Appellant's gender or on the basis of her Amharic ethnicity given country conditions. [39] The Appellant would not be subject to a serious possibility of persecution, or, on a balance of probabilities, a risk to life or a risk of cruel and unusual treatment or punishment, or a danger of torture should she return to Ethiopia. [40] The Appellant is not a Convention refugee and is not a person in need of protection. The appeal is dismissed pursuant to IRPA s. 111(1)(a). (signed) "COLIN ANDERSON" Colin Anderson September 27, 2020 Date 1 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 17, para. 16. 2 Ibid. 3 Exhibit RPD-1, RPD Record, Exhibit 7, p. 146. 4 Flores Carrillo v. Canada (Minister of Citizenship and Immigration), 2008 FCA 94 (CanLII), [2008] 4 FCR 636. 5 Exhibit RPD-1, RPD Record, Exhibit 2, p. 13. 6 Exhibit RPD-1, RPD Record, Exhibit 8, Revised BOC, p. 161. 7 Exhibit RPD-1, RPD Record, Exhibit 8, p. 169. 8 RPD Hearing Audio Recording, timestamped at 2:01:50. 9 RPD Hearing Audio Recording, timestamped at 1:27:00. 10 National Documentation Package (NDP) for Ethiopia (31 March 2020), Items 1.5 and 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-04687 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