TB5-10534

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 : TB5-10534 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 23, 2015 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane 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] XXXX XXXX XXXX (the Appellant), who claims to be a citizen of Ethiopia, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has submitted new evidence in support of his appeal and he is requesting that the Refugee Appeal Division (RAD) conduct an oral hearing. He is asking the RAD to make a positive determination, or in the alternative, remit the matter to a newly-constituted panel of the RPD for re-determination. DETERMINATION [2] Pursuant to sections 111(1)(c) and 111(2) of the Immigration and Refugee Protection Act (IRPA), the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. Background [3] The Appellant's claim is based on his Oromo ethnicity and perceived political opinion. He alleges that he has been detained and tortured by Ethiopian government agents as a result of his involvement in opposition political activities. In XXXX 2005, he states that he was detained for three weeks during a student demonstration. He alleges that he was falsely accused of being aligned with XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX an opposition group. He further alleges that while being interrogated, he was tied up, beaten with sticks, a rubber baton, gun butts and electric wires. He alleges that he was released on the conditions that he sever ties with the youth and XXXX, refrain from engaging in any political or human rights activities, report monthly to the XXXX Federal prison, and that he was prohibited from leaving the city. [4] On XXXX XXXX, 2015 he was visited by five XXXX security agents in his home, where he was attacked, pushed, punched, and chained. His home was also searched and vandalized. He was then taken to the XXXX XXXX criminal investigation department and accused of financially and morally supporting opposition activities abroad. He was accused of leading the XXXX XXXX XXXX XXXX and XXXX XXXX, which he alleges he did not. The Appellant was released the following day on the condition that he ceases any contact with the opposition groups and agrees to cooperate with the security officers. [5] On XXXX XXXX, 2015, the Appellant was prohibited by the XXXX XXXX from competing in the XXXX XXXX XXXX XXXX competition in XXXX due to his lack of support of the current government. He was taken by the federation's security officer to the XXXX XXXX where he was detained for two days, beaten and warned that he could no longer compete until he proves his "political activism" to the current government. [6] On XXXX XXXX, 2015 the Appellant received an invitation from the XXXX XXXX XXXX to compete in XXXX. His visa was approved XXXX XXXX and he arrived in Canada XXXX XXXX, 2015. The Appellant alleges that if returns to Ethiopia, due to his past problems and imputed political opinion, his life is in danger and he further alleges that the police continue to search for his whereabouts and have been to his home on at least two occasions. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL EXPRESS STATUTORY CONDITIONS [7] Section 110(4) of the IRPA 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. [8] The following new evidence has been submitted: a) Article from the Guardian Weekly, which incorporates material from the Washington Post, dated XXXX XXXX XXXX 2015 "XXXX XXXX begin new lives after fleeing to the United States". b) Letter from the XXXX XXXX Police Commission delivered by police to the Appellant's brother's home (where the Appellant had been living) received on XXXX XXXX, 2015, thereby post-dating the rejection of the claim. It was received by courier, a copy of the envelope is attached. The Appellant's brother told him that he had to go to the police on XXXX XXXX, 2015 to explain why the Appellant did not appear and he told them he was not in the country. According to the Appellant, his brother then received a threat that unless the Appellant reported to the police, he may be put in mail or he will encounter other problems. c) Letter from the Appellant's brother attesting to the above. [9] The Appellant acknowledges that the article is not "new" as it pre-dates the rejection of the claim. However it is submitted that the Appellant only became aware of its existence following the rejection of the claimant, and it is argued that this evidence is material and probative, given that it relates to XXXX specifically and the risk of being political neutral. [10] With respect to the letter from the XXXX XXXX Police Commission, this post-dates the rejection of the claim and the Appellant's brother's letter explains the circumstances surrounding the order from the Police Commission. [11] The RAD admits the foregoing evidence, and will accord the appropriate weight when conducting its analysis. However, the RAD finds that this "new" evidence is insufficient to meet the criteria as set out in section 110(6) of the IRPA, and therefore, an oral hearing is denied. 6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. ROLE OF THE RAD [12] The Appellants have made submissions on the role of the RAD in line with the reasoning by the Federal Court in Huruglica1 wherein Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: 54. Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. 55. In conducting its assessment, it 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 an "overriding and palpable error." [13] The RAD has applied the reasoning as set out in Huruglica. SUBMISSIONS BY THE APPELLANT [14] Did the RPD err in its credibility findings? [15] The RPD found that the Appellant had not established his Oromo ethnicity, as he testified in Amharic and listed Amharic as the only language spoken in his Basis of Claim (BOC). Moreover, the RPD noted that the Appellant's identity card clearly indicates his ethnicity as Amara and his passport and birth certificate bear no indication that he is Oromo. Counsel makes no submissions in this regard. Finally, the Appellant himself acknowledged that his problems arose out of suspected opposition to the government. Accordingly, the RAD will analyze the credibility findings and the Convention refugee ground of imputed political opinion. Delay in departure [16] The RPD noted that the Appellant's testimony revealed that he believed that his life was in danger since his detention in 2005. However, given the fact that the Appellant had travelled to Morocco (2008), France (XXXX 2012), Switzerland (2012), Congo (2012), the UAE (XXXX 2013; XXXX 2015) and Ireland (XXXX 2014) (as evidenced by stamps in his passport), the RPD asked the Appellant why he had not sought refugee status in one of the aforementioned countries. The Appellant responded that it was only in XXXX 2015 that he decided to leave Ethiopia, as he believed the political scene in Ethiopia would improve and the issue could be resolved. [17] The RPD noted that the Appellant was unable to cite an example of a specific event which would have demonstrated to him that the situation could improve; moreover, he acknowledged that, in fact, the situation had worsened. Furthermore, the RPD noted that the Appellant waited for one month after he received his visa to travel to Canada, despite his allegations of having been previously detained and interrogated on three occasions. The RPD drew a negative inference when the Appellant could not provide an example of something that would support his assertion that he thought things would improve. [18] The Appellant submits that he could not leave earlier because he did not want to raise any suspicion in the eyes of the government as the XXXX XXXX XXXX was not scheduled until XXXX XXXX, 2015. The RPD rejected this explanation as it found that it did not make sense that he would be put on their radar for leaving a month earlier given his XXXX profile and frequent foreign travel and therefore concluded that leaving a month earlier would not likely raise suspicion. [19] The Appellant submits that the RPD erred, as the Appellant only decided to leave after his detention in XXXX 2015, and after he was told by a security officer that his life was in danger. Moreover, the Appellant submits that it is clear that in 2015 he was told that he should join the party or otherwise demonstrate his political bona fides if he wanted to continue competing in marathons abroad. [20] With respect to the Appellant having received his visa one month prior to his departure on XXXX XXXX, 2015, the Appellant testified that he believed that immediate departure would arouse suspicion, and he submits that a one month delay ought not to be held against him. [21] The RAD concurs with the RPD that the issue of delay in departure, when the Appellant had travelled abroad to so many countries, is suspect. However, the RAD must examine the incident which gave rise to his departure in 2015. This will be more thoroughly analyzed below under the heading of "Family Treatment" and the determination by the RPD. Delay in claiming [22] The RPD asked the Appellant why he had not claimed refugee status upon his entry to Canada. It was acknowledged that the appellant had a valid "worker" visa, however, the RPD did not accept his explanation for waiting to make a claim, given his level of sophistication and his alleged fears. It considered this along with the finding with respect to delay in departure. [23] The RAD finds that this delay in claiming on its own has no merit, given the fact that the Appellant had a valid "worker" visa. Family treatment [24] The RPD noted that the Appellant's family had suffered no consequences as a result of the belief that he is a political opponent as described in his BOC narrative. The RPD relied on an Amnesty International report2 with respect to the authorities targeting families of suspects, detaining and interrogating them. [25] The RPD acknowledged that the Appellant had indicated that his half-brother was contacted on two occasions by Ethiopian security officers in XXXX 2015, who left two "orders to appear". It also noted that the day of the hearing, the Appellant submitted a BOC amendment, in which it added "in early XXXX 2015 my brother communicated that unidentified people had come to my parents' house and questioned about where I was".3 This amendment, in the Appellant's opinion, was an example that the authorities remain in pursuit. However, the RPD drew a negative inference based on the fact that his half-brother was able to carry on without facing consequences at the hands of the authorities despite the Appellant's allegation of continued interest in pursuing the Appellant. Based on the RPD's view that the family members were able to carry on without facing consequences at the hands of the Ethiopian authorities, the RPD found that the XXXX 2014 detention, on a balance of probabilities, did not occur. [26] The Appellant argues that the "new" evidence addresses threats to his brother. [27] The RAD finds that the RPD erred when relying on the documentary evidence4 in finding that family members ought to have faced consequences. The foregoing document speaks to some family members suffering consequences, however, the RAD finds that this document provides insufficient persuasive evidence to suggest that this applies evenly to the majority of the population. For example, the report indicates that "several may have been detained solely for their family ties to men who have expressed political opposition to the government".5 The RAD concludes that this finding based on the foregoing evidence cannot stand. Moreover, the RAD further finds that as a consequence, the finding by the RPD that the Appellant had not been detained in XXXX 2014, and he was not being pursued due to his perceived political opinion, is also unsustainable. [28] Upon review of the entire record, the RAD finds that it cannot substitute a positive determination in the absence of further examination of the Appellant's political profile. Accordingly, pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently-constituted panel. This appeal is allowed. (signed) "Roslyn Ahara" Roslyn Ahara December 23, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Exhibit RPD-1, National Documentation Package (NDP) for Ethiopia (January 30, 2015), item 1.4., at para. 3.16.12. 3 Exhibit RPD-1, RPD's Record, exhibit 8, p. 32. 4 Exhibit RPD-1, NDP for Ethiopia (January 30, 2015), item 4.3. 5 Ibid, p. 1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-10534