TB8-05613

RAD File / Dossier de la SAR : TB8-05613 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX a.k.a. XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 6, 2019 Date de la décision Panel M. Oh Tribunal Counsel for the person who is the subject of the appeal Daniel Tilahun Kebede 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] XXXX XXXX XXXX ("the Appellant") appeals a decision of the Refugee Protection Division ("RPD"), rejecting his claim for refugee protection. The Appellant, who is a citizen of Ethiopia, claims to fear persecution by the Ethiopian government due to his political opinion and ethnicity as an Oromo and member of the Blue Party. He argues that the RPD erred in its assessment of his risk in Ethiopia. He also argues that the RPD erred in its assessment of his sur place claim, as he has participated in political activities since his arrival in Canada. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA")1, the appeal is dismissed. After conducting an independent assessment of the evidence, I agree with the RPD's credibility findings. With respect to the Appellant's residual profile, I have determined that the country conditions evidence does not establish that the Appellant faces a degree of risk that entitles him to refugee protection. I therefore confirm the RPD's negative determination. BACKGROUND [3] The Appellant is of Oromo ethnicity and claims to have been politically active in Ethiopia. He became a member of the Blue Party in 2015, and alleges that he actively volunteered his time to help the party. As a result of these activities, he alleges that government informants and cadres warned him to stop his support for the Blue Party and to instead join the ruling party. The Appellant's refusal to cooperate supposedly led him to be beaten, threatened, and detained by authorities. In 2016, a state of emergency was declared following protests in Ethiopia. During this period, the Appellant learned from local cadres that he would be arrested. He therefore decided to leave Ethiopia. He obtained a Canadian visa and left Ethiopia in XXXX 2017. [4] The RPD heard the Appellant's claim on November 27, 2017 and rejected it on the basis of credibility. The RPD determined that he had submitted a fraudulent police summons. The panel also drew negative inferences from omissions in the Appellant's Basis of Claim Form and also from his delay in departure from Ethiopia. [5] Crucially, although the RPD found that the Appellant was generally lacking in credibility, the RPD accepted a number of facts: 1) On the basis of his Blue Party receipts for membership dues between 2015 and 2017, the RPD accepted that the Appellant was a member of the Blue Party in Ethiopia. However, the RPD rejected the Appellant's allegations that he participated in demonstrations or party activities. The RPD accepted only the fact that he had made a number of donations in the form of membership payments; 2) The Appellant's kebele identification confirmed his Oromo ethnicity. The RPD therefore accepted that the Appellant is Oromo; and 3) The RPD accepted that the Appellant took part in a number of Ethiopian political activities in Canada. [6] Despite accepting the above facts, the RPD considered the country conditions evidence and determined that there was no residual profile upon which the claim could succeed. Role of the Refugee Appeal Division [7] The jurisprudence establishes that the Refugee Appeal Division ("RAD") is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing the evidence.2 [8] In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at my own independent findings based on the evidence before me. Disclosure of New Evidence by the RAD [9] The Appellant does not challenge the RPD's credibility findings. On appeal, he merely argues that on the basis of the facts that were accepted by the RPD - i.e. due to his ethnicity and political affiliations in both Ethiopia and Canada - the RPD should have found him to be a Convention refugee or a person in need of protection. [10] Refugee protection is forward-looking. The RPD decision was issued in January 2018. Since that time, a number of significant developments have taken place in Ethiopia. As such, the RAD notified the Appellant that the latest National Documentation Package for Ethiopia (version 29 March 2019) would be considered in his appeal.3 In addition, the RAD disclosed four articles from Human Rights Watch, reviewing the new Ethiopian prime minister's first year in office and its impact on human rights in the country.4 [11] Counsel was given two weeks to provide additional written submissions or other evidence. Though his submissions were provided late, they have been accepted and considered in the present appeal. Admissibility of New Evidence and Request for an Oral Hearing [12] Though the Appellants did not provide any new evidence with their additional written submissions, the Appellant's Record (filed in April 2018) contained three country conditions articles as new evidence. I have admitted each of the three articles. [13] The IRPA limits the ability of Appellants to present new evidence on appeal to the RAD. Subsection 110(4) of the IRPA states that, on appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the claim's rejection. If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must then consider factors around the credibility, relevance, and newness of the evidence.5 [14] The Appellant's articles concern the implementation of the state of emergency in Ethiopia in 2018. They all post-date the rejection of the Appellant's claim by the RPD. As the evidence arose after the claim was rejected, the documents meet the criteria set out in ss. 110(4) of the IRPA. The articles were published by reputable sources, and should be considered credible. They are also new in the sense that the version of the National Documentation Package that was considered by the RPD was too outdated to address the state of emergency in 2018. The articles are relevant to the Appellant's arguments about the human rights abuses that he submits are continuing to take place in Ethiopia. The existence of the state of emergency is relevant to the Appellant's risk as an Oromo and member of the Blue Party, which is the central issue on appeal. [15] However, the Appellant's request for an oral hearing is denied. The new evidence consists solely of country conditions articles. They do not raise a serious issue with respect to the Appellant's credibility. The RAD is capable of considering the new evidence without holding an oral hearing. MERITS OF THE APPEAL [16] The Appellant's arguments can be categorized into two main issues: a) Whether the RPD erred in its assessment of the risk to the Appellant and whether the latest country conditions establish that he continues to be at risk in Ethiopia; and b) Whether the RPD erred in its assessment of the sur place aspect of his claim. [17] These issues will be addressed below. a) Whether the RPD erred in its assessment of the risk to the Appellant and whether the latest country conditions establish that he continues to be at risk in Ethiopia [18] The Appellant argues that due to his profile as an Oromo, as a member of an opposition party, and as someone who has participated in political activities abroad, he should be recognized as a Convention refugee or person in need or protection due to the current country conditions in Ethiopia. According to the Appellant, the RPD erred in its assessment of the country conditions evidence. He argues that despite recent changes in the political situation in Ethiopia, the new country conditions evidence has no effect on his claim. [19] I do not agree. In my view, the country conditions evidence does not establish that the Appellant's residual profile would lead him to face a degree of risk that entitles him to refugee protection. The RPD's assessment of country conditions [20] I will briefly address the RPD's assessment of the country conditions. The RPD considered documentary evidence about the treatment of Blue Party members. At the time, the documentary evidence indicated that the Ethiopian government allowed the Blue Party to operate, but that many organizers and demonstrators had been detained. The RPD noted that tens of thousands of Ethiopians have made donations to the Blue Party and that the documentary evidence was insufficient to establish that donations alone would place the Appellant at risk. The RPD found that since the Appellant was not a prominent Blue Party member, nor actively involved in demonstrations or party activities, he would not face a serious possibility of persecution. [21] The RPD also considered the Appellant's Oromo ethnicity. The documentary evidence indicated that the government actively targeted Oromos with real or perceived political links, but that Oromos were not being targeted solely due to their ethnicity. The RPD found that, absent a political element that could raise his risk profile, the Appellant would only face discrimination as a result of his ethnicity, rather than persecution. [22] It is the disjunction of the Appellant's claim as an Oromo and as a Blue Party member that the Appellant disputes on appeal. The Appellant argues that it was an error for the RPD to find that he was in fact a member of the Blue Party, but then conclude that he is not at risk as an Oromo because he has no political links. The Appellant argues that the RPD should have considered the intersection of his ethnicity and political profile. The Appellant points to documentary evidence about arbitrary arrests and detentions of opposition party members and supporters during the state of emergency, and how this contradicts the RPD's finding that only individuals with an influential profile would be targeted. The Appellant's new evidence indicates that another state of emergency was announced in 2018, suggesting that arbitrary arrests would continue. Current political situation in Ethiopia [23] For the reasons below, however, I find that the documentary evidence relied upon by the Appellant is outdated. It is no longer reflective of the situation that the Appellant would face in the event of his return to Ethiopia. On appeal, the RAD must assess the forward-facing risk to the Appellant based on the most recent documentary evidence. [24] In February 2018, the Prime Minister of Ethiopia resigned, resulting in the selection of the current Prime Minister, Dr. Abiy Ahmed, who took office in April 2018. He is reportedly the first Omoro-speaking prime minister in Ethiopia, and is of part-Oromo descent. The new prime minister has made numerous sweeping changes affecting the human rights situation in Ethiopia. Importantly, in June 2018, the Ethiopian parliament voted to lift the state of emergency. Thousands of political prisoners were released, and political movements previously labelled as terrorist organizations were delisted. These include the Oromo Liberation Front ("OLF"), the Ogaden National Liberation Front ("ONLF"), and Ginbot 7, whose exiled leaders were invited to return to Ethiopia to resume political activities.6 The Ethiopian parliament passed a bill of amnesty that annulled charges against individuals, whether in Ethiopia or abroad, except for charges relating to murder and rape. Prime Minister Abiy even admitted to the government's use of torture and made commitments to legal reforms, including the closure of the notorious Maekelawi prison. Media outlets, such as websites, blogs, radio, and TV stations that were previously unavailable were unblocked. Violent repression of mass demonstrations had decreased.7 The Appellant's argument [25] The Appellant acknowledges the attempts at reform by the new Ethiopian prime minister. The Appellant argues, however, that the changes are not structural, as the regime remains under the control of the same party, and that the lack of independent institutions in the country means that reform is unlikely to be sustained. He emphasizes that politically-motivated arrests continue to take place, including the use of mass detention tactics against protestors. [26] The Appellant points out that the same officials who carried out human rights abuses continue to remain in the government, with no accountability for their past actions. This, according to the Appellant, is demonstrative of the cosmetic nature of the changes. [27] The Appellant submits that he remains at risk, as ill-treatment continues to occur in many detention centres. In addition, he states that the 'political amnesty' that was offered to exiled political figures would not be available to him. Assessment of risk in Ethiopia [28] I do not agree with the Appellant's interpretation of the country conditions evidence and its relationship to the Appellant's risk in Ethiopia. [29] Though independent and democratic institutions may not yet exist in Ethiopia, and though the government continues to use a number of repressive measures against protesters and certain individuals, these facts do not necessarily mean that the Appellant himself would face a serious possibility of persecution in Ethiopia. [30] The Appellant has not challenged the RPD's credibility findings. The RPD found that the Appellant was not a genuine political activist, and that it could only accept that the Appellant had paid some membership dues to the Blue Party. The RPD accepted that he is Oromo, and that he had been in attendance at some Ethiopian political events in Canada. The RPD found otherwise that the Appellant was generally lacking in credibility. I agree entirely with the RPD's credibility findings. The only remaining question is whether there remains a sufficient risk to the Appellant in Ethiopia based on his residual profile. [31] When this appeal was perfected, much of the documentary evidence relied upon by the Appellant related to the arrests that were taking place during the state of emergency in Ethiopia. It was argued that in such an environment, the Appellant's status as a Blue Party member and Oromo were sufficient to establish that he faces a serious possibility of persecution. However, it has now been one year since the state of emergency was lifted in Ethiopia. [32] In its review of Prime Minister Abiy's first year in office, Human Rights Watch found that the use of arbitrary detention as a tactic to stifle dissent or opposition had decreased. It stated that there had been "far fewer" reports of politically-motivated arrests than in the past. The volume of reports of beatings and mistreatment of detainees had also dropped dramatically.8 Groups formerly listed as terrorist organizations, such as the OLF, ONLF, and Ginbot 7 were allowed to operate relatively openly.9 This is significant, as affiliation with these groups was widely used as a justification for arrest in the past, especially in the case of Oromos who were often arrested under the pretext of their support for the OLF.10 [33] In regard to Blue Party members, an Immigration and Refugee Board Response to Information Request examined the treatment of opposition party members since April 2018. According to a Human Rights Watch senior researcher, there was "not a lot of harassment" of Blue Party members. The researcher cautioned that although there were reforms at the higher levels, on the local level in some parts, the "same abusive people" were still in place, which made it possible for intimidation and harassment to occur towards local members.11 The situation has improved a great deal as compared to what was described in the previous Response to Information Request on this subject. That report described the raiding and arrest of Blue Party members at the party's headquarters, and the arrest of party members at protests.12 The documentary evidence also previously described severe repression of opposition party activity, with hundreds of Oromo opposition party members arrested in Oromia and Addis Ababa in large sweeps.13 [34] That is not to say that arbitrary or politically-motivated arrests are no longer occurring in Ethiopia. Human Rights Watch noted that some 3000 youth had been detained in September 2018 around Addis Ababa, with approximately 1000 having been sent to rehabilitation camps. Most of those arrested were caught smoking shisha or consuming khat, during raids supposedly meant to respond to rising criminality in the city. Many others were arrested while taking part in protests.14 There have also been a number of arrests in the Oromia region, where conflicts between suspected OLF members and the military have taken place.15 On the whole, however, politically-motivated arrests have been taking place far less frequently than before. [35] The Appellant is right to point out the lack of democratic institutions and some of the human rights abuses that continue to occur in Ethiopia. However, I consider that there have been substantial, effective, and durable changes in the human rights situation in Ethiopia that have a direct bearing on the risk to the Appellant. Given the nomination of the new Ethiopian prime minister, the government's reformist agenda, and numerous changes affecting the human rights situation, I find that the changes are indeed of substantial political significance. The changes have been generally effective insofar as the lifting of the state of emergency and decrease in politically-motivated arrests are concerned. Given the length of time that has passed since the nomination of the prime minister over one year ago and the continually improving human rights situation, I find that the changes have been shown to be durable. [36] I agree that it is important to consider the intersection of the Appellant's grounds of risk, as an Oromo and as a Blue Party member. Even so, I find that the risk that arises for the Appellant is insufficient. The Appellant is a member (or former member) of the Blue Party on paper. According to the documentary evidence, the Blue Party counts more than 20,000 individuals in its membership.16 Neither the RPD nor the RAD accept that the Appellant's political involvement has constituted anything more than the payment of some membership donations. The Appellant is not a genuine activist. According to the documentary evidence, the Oromo population comprises 34.4% of the Ethiopian population and is the most populous ethnic group in the country.17 The state of emergency has come to an end, and politically-motivated arrests and arbitrary detentions have greatly declined. In this factual context, I find that the Appellant's profile is not of such a nature that it would cause him to face a serious possibility of persecution in Ethiopia. b) Whether the RPD erred in its assessment of the sur place aspect of his claim [37] The Appellant also challenges the RPD's treatment of the sur place aspect of his claim, and relies on updated country conditions evidence in arguing that his activities in Canada place him at risk. I do not agree with this argument. [38] The RPD noted the evidence around the Appellant's political activities in Canada, including his attendance at a protest at XXXX Park in Toronto. There were photographs of his activities and evidence of his membership with an Ethiopian political group by the name of XXXX XXXX XXXX XXXX XXXX XXXX Toronto. Again, it is worth noting that the RPD found that the Appellant was generally lacking in credibility. It did not accept that the Appellant was a genuine activist. The RPD found that the Appellant's limited participation in some activities was insufficient to establish a sur place claim. [39] The Appellant argues that the RPD erred by requiring him to prove that the Ethiopian government is aware of his activism. He submits that the RPD thus erred in law by imposing a higher standard than is required. The Appellant also disputes the RPD's assessment of the country conditions evidence regarding the government's monitoring of the Ethiopian diaspora. He points to a number of items in the National Documentation Package that referred to the surveillance of political dissidents in the United States and Europe, as well as an opinion from an organization in Toronto that believed that anyone actively involved in Ethiopian politics in the diaspora would be subjected to scrutiny and probably harassment if they returned. [40] In addition to the above, the Appellant submits that the latest National Documentation Package now includes new information about the risk to diaspora activists. According to the Appellant, the new documentary evidence indicates that there is a high risk that the Ethiopian authorities are aware of diaspora activities, including protests. He submits that even individuals without a high profile would be monitored, and that the Ethiopian government would take action against these people upon their return to Ethiopia. [41] I do not agree with the Appellant's arguments. First, the RPD did not require him to prove that the government is aware of his activities in Canada. As the Appellant points out, the applicable standard is a balance of probabilities, i.e. whether the Appellant's activities are likely to come to the attention of Ethiopian authorities. The RPD's finding is consistent with that standard, where it states at paragraph 30 of its reasons: "That said, the panel finds, on a balance of probabilities, that the claimant's activities will not come to the attention of the authorities in Ethiopia".18 [42] The RPD found, on a balance of probabilities, that the Appellant's activities would not come to the attention of authorities in Ethiopia, and that due to his limited participation, there was an insufficient basis to establish a sur place claim. I see no error in this assessment. [43] With respect to the country conditions evidence, I have considered both the version of the National Documentation Package that was before the RPD as well as the latest version that was recently disclosed. I agree with the Appellant that the Ethiopian government's surveillance activities and capabilities in monitoring the diaspora are more sophisticated and extensive than suggested by the RPD. However, all of the documents cited by the Appellant in the memorandum of argument and in additional submissions pre-date the new Ethiopian prime minister's taking office in April 2018. They are not reflective of the current human rights situation in Ethiopia. [44] I give much greater weight to the information from a recent Danish Immigration Service report from September 2018 that examines the issue of Ethiopian diaspora returnees. The report relied on information gathered from interviews with several sources. Sources informed by human rights organizations in Nairobi noted that for the first time in twenty years, members of the diaspora were returning to Ethiopia. This was seen as a strong sign of a change in the political environment in Ethiopia.19 One source, a national newspaper in Ethiopia, was interviewed in May 2018 and gave the opinion that diaspora community members would be monitored without a doubt, wherever they might reside. That source gave the view that it might be possible for such individuals to be detained upon their return to Ethiopia. However, at the time the interview took place in May 2018, the new prime minister had only just taken office. As such, the source emphasized that the situation seemed to be somewhat more relaxed since the new prime minister's nomination, but that the fear had been particularly high in 2017.20 On the whole, however, sources expressed that members of the diaspora were less worried for their safety than before due to the significant changes in the political situation following the nomination of the new prime minister.21 A source from the British Embassy, for instance, gave the view that violent and hate-related activity would likely be flagged in Ethiopia, whereas mere political criticism would be monitored but would not likely lead to repercussions.22 [45] In my view, according to the most recent evidence, the Ethiopian government's capability and interest in monitoring members of the diaspora appear to be greater than described by the RPD. However, given the significant changes in the human rights situation in Ethiopia, the preponderance of the evidence does not indicate that members of the diaspora who have participated in some limited anti-government activities abroad would face repercussions in the event of their return to Ethiopia. On an independent assessment, I find that the Appellant's activities in Canada would not lead him to face a serious possibility of persecution in Ethiopia; nor would it cause him to face a danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment. CONCLUSION [46] On an independent assessment of the evidence, I find that the Appellant's residual profile and his activities in Canada do not establish that he is either a Convention refugee or a person in need of protection. I agree with the RPD's credibility findings, which have not been disputed on appeal. I therefore confirm the RPD's negative determination. [47] The appeal is dismissed, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "M. Oh" M. Oh June 6, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Exhibit RAD-1, National Documentation Package (NDP) for Ethiopia (version 29 March 2019). 4 Exhibit RAD-1, Country conditions articles. 5 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 6 Exhibit RAD-1, NDP for Ethiopia (29 March 2019), items 2.1, 2.3, 4.4, and 4.7. 7 Exhibit RAD-1, NDP for Ethiopia (29 March 2019), items 4.4 and 4.7. 8 Exhibit RAD-1, at p. 10. 9 Exhibit RAD-1, at pp. 6-7. 10 Exhibit RPD-1, RPD Record, Exhibit 3, items 1.10 and 13.4. 11 Exhibit RAD-1, NDP for Ethiopia (29 March 2019), item 4.7. 12 Exhibit RPD-1, RPD Record, Exhibit 3, item 4.10. 13 Exhibit RPD-1, RPD Record, Exhibit 3, item 13.4. 14 Exhibit RAD-1, NDP for Ethiopia (29 March 2019), items 2.6 and 2.7. 15 Exhibit RAD-1, at p. 10. 16 Exhibit RPD-1, RPD Record, Exhibit 3, item 1.10. 17 Exhibit RPD-1, RPD Record, Exhibit 3, item 1.3. 18 Exhibit RPD-1, RPD Record, at p. 16, para 30. 19 Exhibit RAD-1, NDP for Ethiopia (29 March 2019), item 4.4 at paragraph 55 of Appendix A. 20 Exhibit RAD-1, NDP for Ethiopia (29 March 2019), item 4.4 at sections 9.2 and paragraphs 140-141 of Appendix A. 21 Exhibit RAD-1, NDP for Ethiopia (29 March 2019), item 4.4 at section 9.3. 22 Exhibit RAD-1, NDP for Ethiopia (29 March 2019), item 4.4 at paragraphs 55-57 of Appendix A. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-05613 RAD.25.02 (April 04, 2019) Disponible en français 14 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 (April 04, 2019) Disponible en français