TC0-06892

RAD File / Dossier de la SAR : TC0-06892 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 March 12, 2021 Date de la décision Panel T. Card Tribunal Counsel for the person who is the subject of the appeal Jack C. Martin 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 [1] XXXX XXXX XXXX (the "Appellant") is a citizen of Ethiopia and is appealing a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. DETERMINATION [2] The Appeal is allowed. BACKGROUND AND ALLEGATIONS [3] The Appellant is a citizen of Ethiopia and is of Tigray ethnicity. The Appellant's father had been detained several times due to his membership of the Arena Tigray Party. The Appellant's sister (the "Sister") is a lesbian. [4] The Appellant also alleges that she was sexually assaulted by a police officer in the same prison her father was detained on XXXX XXXX 2017. [5] The Appellant and the Sister went to the United States (US) for medical treatment. While there, they received news that their father was arrested again. The Appellant and the Sister then decided to travel to Canada, arriving on XXXX XXXX 2019. They made their refugee claims after arriving. [6] The RPD accepted the Sister's claim on the basis she was accepted as a lesbian, and would face a serious possibility of persecution for her sexual orientation identity. [7] However, the RPD rejected the Appellant's claim on the basis that she was not credible, in particular about her sexual assault. The RPD also did not accept the Appellant's claims that she would be persecuted because of her Tigrayan ethnicity, imputed political opinion through her father, profile due to the Sister being a lesbian, or a sur place claim due to participating in protests against the Ethiopian government while in Toronto. ADMISSIBILITY OF APPELLANT'S EVIDENCE SUBMITTED ON APPEAL [8] In support of this appeal, the Appellant proposed the admission of the following as new evidence: a. Psychological Report from the XXXX XXXX XXXX XXXX XXXX dated 18 August 2020.1 [9] S.110(4) of the Immigration and Refugee Protection Act (IRPA)2 provides that the Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected3 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of s.110(4) and how that evidence relates to the Appellant.4 [10] In addition, if the new evidence meets one of the explicit legislative factors in s.110(4), then the second step of the analysis is for the Refugee Appeal Division (RAD) to apply the adapted Raza factors endorsed in Singh.5 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance, and newness. Report rejected [11] The Psychological Report provided does post-date the RPD decision date. However, it is not the date of publication which must be considered when assessing if a document meets the requirements of s.110(4). Rather it is the date of the content of the document which must be considered. [12] The report refers to an assessment being conducted on what was reported, but does not say when the assessment was actually conducted. The report also refers to the Appellant having attended 12 out of a recommended 20 treatment sessions, but does not say when the sessions began or when the recommendation was made. [13] I have considered the Appellant's submissions in the Memorandum6 but note that again there is little explicit explanation about the dates referred to in the previous paragraph. All that is said is that "the report is new, evidencing the appellant's current situation and the diagnosis and therapy since the hearing."7 The problem is, the RPD Decision refers to the Appellant seeing "...a psychologist on XXXX XXXX, 2020."8 Assuming that's the case, the evidence presented, including the diagnosis, could well have taken place not only before the RPD Decision date, but before the hearing date. [14] It is not for me to guess which side of the RPD decision date line the new evidence content took place. It is for the Appellant to establish this, and she has not done so. [15] I have also considered whether or not the report was not reasonably available at the time of the rejection. I have nothing before establishing this to be the case. [16] I have also considered whether or not the Appellant could not reasonably have been expected in the circumstances to have presented the report at the time of the rejection. The RPD Member already established the issue regarding the Appellant's psychological situation as live, and I note that no application for an adjournment to get the report was made. No arguments have been made by the Appellant to explain why the report was otherwise not available. Correcting a previous strategic mistake is not a reason for a piece of evidence to be admissible under s.110(4) of the IRPA. I am not satisfied that the Appellant could not have presented the report at the time of the RPD decision. [17] For these reasons, I find the report does not meet the requirements of s.110(4) of the IRPA. The proposed documents are dismissed as new evidence. NO ORAL HEARING [18] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.9 [19] As no new evidence has been accepted, the requirements of subsection 110(6) of the IRPA have not been met, and an oral hearing cannot be held. ISSUES IN APPEAL [20] The Appellant argued the following issues in her appeal: (a) The RPD erred in its assessment of the Appellant's evidence regarding her sexual assault and its finding that this allegation was not credible. (b) The RPD erred by failing to apply the Chairperson's Guidelines on Gender Based Violence10 (the Gender Guidelines) when making its determination. (c) The RPD erred in its assessment of the Appellant's risk profile due to her membership of a Particular Social Group (PSG) as the family member of her father's due to his political activities. (d) The RPD erred in its assessment of the Appellant's sur place risk profile and in concluding she did not have sufficient profile that placed her at a serious risk of persecution. [21] I find the following issues to be determinative: (a) Credibility (b) Did the RPD err in its assessment of the Appellant's claim regarding her sexual assault. (c) What is the Appellant's overall cumulative risk profile, and does it meet the threshold of serious possibility of persecution? ANALYSIS [22] I have conducted an independent analysis of the evidence concerned, including reviewing the RPD hearing, as well as considering the Appellant's Memorandum,11 the RPD Decision,12 and the Appellant's Basis of Claim (BOC) form13 as amended14 amongst other documents. [23] I also bear in mind the Gender Guidelines in rendering this decision. Sexual assault did happen [24] One of the main reasons the RPD found the Appellant not credible was in relation to the alleged sexual assault on XXXX XXXX 2017. The RPD found that because the Appellant did not refer to the assault from the outset of her claim, this affected her credibility adversely. [25] The Appellant has argued that the RPD erred in its assessment of her evidence on this issue. Specifically, the Appellant argues that the RPD Member failed to consider the Gender Guidelines and her explanation as to why she did not initially disclose this assault, which was a sense of shame, amongst other reasons. The RPD Member did refer to this explanation, but dismissed it as insufficient. [26] I concur with the Appellant's argument. I note that in the amended statement, she gave a high amount of detail about the assault, which adds credibility to the allegation. I find the RPD Member erred in not considering this factor. [27] I also note that the Appellant was consistent and again gave detailed testimony about the assault during the RPD Hearing. Again, I find the RPD Member erred in not considering this evidence properly. [28] The RPD Member was particularly focussed on the fact that the allegation was not disclosed from the outset. I find that this focus was too blinkered an approach and did not consider the factors referred to in the previous two paragraphs. [29] Furthermore, I note that the disclosure still took place ahead of the RPD Hearing, and not in sudden response to questioning at the Hearing, which adds further weight to the allegation. Even if such a circumstance were to occur, the level of detail in the testimony is still a factor in assessing its credibility. I consider the high level of detail given to add weight to the credibility of the allegation. [30] I am also mindful of the Gender Guidelines, correctly cited by the Appellant. In particular, I note the following section: a. Women from societies where the preservation of one's virginity or marital dignity is the cultural norm may be reluctant to disclose their experiences of sexual violence in order to keep their "shame" to themselves and not dishonour their family or community. b. Women from certain cultures where men do not share the details of their political, military, or even social activities with their spouses, daughters or mothers may find themselves in a difficult situation when questioned about the experiences of their male relatives.15 [31] The reasoning by the Appellant that she was ashamed of the assault, and that it was because of this shame that she did not go to a doctor after the assault, falls squarely in the considerations outlined above. I find that the explanation for delay provided is perfectly reasonable, particularly in the context of the Gender Guidelines, and the detail given in evidence that was finally given. I find the RPD erred in not considering the Gender Guidelines when assessing this evidence. [32] For these reasons, I find the RPD erred in its assessment of the Appellant's evidence and credibility regarding the sexual assault. I overturn the RPD's findings on this issue. I substitute my finding that on a balance of probabilities, the sexual assault did take place as claimed, and that the Appellant is credible on this issue. Other cumulative elements [33] The Appellant has also alleged enhanced risk due to her political profile. This is a combination of her protest activities in Toronto, along with her imputed political opinion because of her father's political activities. [34] On this second point, I note that this was a ground that the Sister used in her claim, and that the RPD found the Sister "...to be a very credible, straightforward and sincere witness."16 I note that while the Sister was found to be a refugee based on her sexual orientation, the fact that the RPD Member found her to be credible overall, and made no adverse finding in relation to her evidence regarding their father's political activities, means that the RPD Member must have accepted those political activities as credible. This therefore also applies to the Appellant. [35] Furthermore, I note that the activities are not merely in opposition to the Ethiopian government, but that in the case of the father's activities, they were pro-Tigrayan. [36] In relation to the change in country circumstances, I note that in the aftermath of the Ethiopian government's offensive in the Tigray region at the end of 2020, reports of "mass killings [that]may amount to a crime against humanity."17 More pertinent to this case, "the security and humanitarian situation has deteriorated, with reported sexual assaults against women on the rise [EMPHASIS ADDED]."18 While this article refers to the circumstances in the Tigray region, given the control the Ethiopian government has over the whole country, I am not convinced that these risks to Tigrayan women is confined to the Tigray region. [37] The fact that the Appellant has been found to be a victim of sexual assault, and is Tigrayan, combined with this rise in reported sexual assaults, only elevates her risk profile further. Her political profile also adds to this. [38] When taking all of these factors into account, I find the RPD erred in its finding that the Appellant is neither a refugee nor a person in need of protection. The RPD's findings are overturned. I substitute my finding that the Appellant is a refugee as a member of a Particular Social Group (PSG), namely as a Tigrayan woman. No Internal Flight Alternative (IFA) or State Protection [39] As referred to above, I find that the risk situation to Tigrayan women in similar situations to the Appellant applies across all of Ethiopia. There is therefore no safe or reasonable IFA available to her. [40] I note that the sexual assault was committed by members of Ethiopian security, and that the Ethiopian authorities comprise at least one of the agents of persecution. The Appellant therefore cannot rely on state protection. CONCLUSION [41] Pursuant to s.111(1)(b) of the IRPA, the determination of the RPD is set aside. I substitute my determination that the Appellant is a refugee by virtue of PSG membership as a Tigrayan woman. [42] The appeal is allowed. (signed) T. Card T. Card 12 March 2021 Date 1 Exhibit P-2, Appellant's Record, Pages 2-5. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 3 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, Paragraph 51. 4 Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(g)(iii). 5 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, cited in Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96, Paragraph 64. 6 Exhibit P-2, Appellant's Record, Memorandum, Pages 20-22, Paragraphs 55-62. 7 Ibid., Page 22, Paragraph 60. 8 Exhibit RPD-1, RPD Record, RPD Decision, Page 8, Paragraph 12. 9 Immigration and Refugee Protection Act, S.C. 2001, c. 27, subsection 110(6). 10 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Guidelines issued by the Chairperson pursuant to s.65(3) of the Immigration Act, Immigration and Refugee Board of Canada, Ottawa, 9 March 1993, Update: 13 November 1996, as continued in effect by the Chairperson on 28 June 2002 under the authority found in s.159(1)(h) of the IRPA. (The Gender Guidelines) 11 Exhibit P-2, Appellant's Record, Memorandum, Pages 6-23. 12 Exhibit RPD-1, RPD Record, RPD Decision, Pages 5-20. 13 Ibid., Exhibit 2.1, Pages 21-35. 14 Ibid., Exhibit 4, Pages 53-55. 15 The Gender Guidelines, Section D. 16 Exhibit RPD-1, RPD Record, RPD Decision, Page 13, Paragraph 28. 17 Exhibit RAD-1, Article "Ethiopia's Tigray crisis: Blinken says US concerned about atrocities" by the British Broadcasting Corporation (BBC), dated 28 February 2021, Page 3. 18 Ibid., Page 6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-06892 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