TB5-04061

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 : TB5-04061 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision October 5, 2015 Date de la décision Panel Ken Sandhu Tribunal Counsel for the person(s) who is(are)the subject of the appeal Paul Vandervennen 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), a citizen of Ethiopia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal and is not requesting an oral hearing at Refugee Appeal Division (RAD). 1 The appellant asks that the RAD set aside the decision of the RPD and order a new hearing at the RPD.2 DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD, that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Issue [3] Did the RPD err in its assessment of the appellant's credibility?3 Background [4] The details of the appellant's allegations are captured in his Basis of Claim (BOC) form.4 [5] In summary, the appellant is fearful of returning to Ethiopia because he alleges the Government suspects that he is affiliated with the opposition party, in particular the Oromo Liberation Front (OLF). He is also fearful of returning because of his Oromo ethnicity. [6] The appellant alleges that he was detained from XXXX XXXX to XXXX XXXX, 2005 following his participation in a demonstration organized on the 8th of June 2005 by the Coalition for Unity and Democracy (aka Kinijit or CUD). [7] He alleges that he was again detained from XXXX XXXX, 2009 to XXXX XXXX, 2009 and released after payment of 8,000 birr.5 [8] He claims that he has no involvement with or knowledge of the Oromo Liberation Front (OLF) but the Ethiopian authorities repeatedly questioned him about names of the members. [9] He alleges that both times he was tortured and severely beaten during the detention. [10] He states that he is fortunate to have been accepted to take a training program which enabled him to come to Canada and he decided to ask for refugee protection. The Basis of His Appeal [11] The counsel for the appellant indicates that the RPD "made a number of serious errors in assessing credibility."6 He argues that the RPD findings were erroneous, unreasonable and speculative. He states that his client was held to a higher standard of review by requiring clear and convincing evidence as opposed to the civil standard of a balance of probabilities. The RAD has examined and addressed all the arguments presented by the counsel on behalf of the appellant in the Appellant's Memorandum of Argument, specifically Part III: The Law and Argument, paras 7 to 20. ANALYSIS [12] The Appellant argues that "the RAD is required to conduct a full appeal on the merits of the claim, and not simply review the decisions to determine if the inferences drawn by the RPD were reasonably open to it."7 The RAD agrees with the Appellant on this matter and has followed the direction of the Federal Court of Canada (FC). According to Justice Phelan of the FC in Huruglica,8 paragraphs 54 and 55, state: [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] Accordingly, the RAD conducted its own assessment of the evidence and came to an independent decision of whether the Appellant is a Convention refugee or a person in need of protection. [14] This claim was first heard over a little more than three hours on November 17, 2014 by the RPD. It was adjourned until March 11, 2015, when it was reconvened and heard for another two hours. The proceedings are captured in two recordings. The RAD listened to both recordings thoroughly and examined all the documentary evidence closely. [15] The RAD acknowledges that the human rights record of Ethiopia is dreadful based on the documentary evidence, particularly the report: "Because I am Oromo: Sweeping Repression in the Oromia Region of Ethiopia".9 It is for this reason that the RAD examined the allegations and the evidence of the Appellant very closely, especially the Appellant's Memorandum of Argument. The RAD came to the conclusion that despite the human rights record and the fact that the appellant is an Oromo, he has not made the case for his persecution by the Ethiopian authorities. [16] Oromo is by far the largest ethnic group in Ethiopia. According to the World Fact Book, the Oromo language is spoken by the majority of people in Ethiopia and the Oromo People's Democratic Organization or OPDO is one of the key parties that entered into the coalition to form the ruling party, Ethiopia People's Revolutionary Democratic Front (EPRDF). The ruling party has over 90% of the seats in the Parliament.10 The following information shows the importance of Oromo people within Ethiopia. Ethnic groups: Oromo 34.4%, Amhara (Amara) 27%, Somali (Somalie) 6.2%, Tigray (Tigrinya) 6.1%, Sidama 4%, Gurage 2.5%, Welaita 2.3%,Hadiy a 1.7%, Afar (Affar ) 1.7%, Gamo 1.5%, Gedeo 1.3%, Silte 1.3%, Keffic ho 1.2%, other 10.5% (2007 est.) Languages: Oromo (official working language in the State of Oromiya) 33.8%, Amharic (official national language) 29.3%, Somali (official working language of the State of Sumale) 6.2%, Tigrigna (Tigrinya) (official working language of the State of Tigray) 5.9%, Sidamo 4%, Wolaytta 2.2%, Gurage 2%, Afar (official working language of the State of Afar ) 1.7%, Hadiya 1.7%, Gamo 1.5%, Gedeo 1.3%, Opuuo 1.2%, Kafa 1.1%, other 8.1%, English (major foreign language taught in schools), Arabic (2007 est.) The ruling party, Ethiopian People's Revolutionary Democratic Front or EPRDF (including the following organizations: Amhar a National Democratic Movement or ANDM; Oromo People's Democratic Organization or OPDO ; Southern Ethiopian People's Democratic Movement or SEPDM; and Tigray People's Liberation Front or TPLF ) The ruling party is a coalition of leading parties representing the largest ethnic groups in Ethiopia. Election results: per cent of vote - NA; Seats by party - EPRDF 499, SPDP 24, BG PDP 9, ANDP 8, G PUDM 3, HNL 1, FORUM 1, APDO 1, independent 111 [17] According to the World Factbook, the population of Ethiopia is 96,633,458. The country has more than 80 ethnic groups, of which the Oromo, at approximately 35 percent of the population, is the largest. One report states that 45% of the population is Oromo. Ethiopia is the "oldest independent country in Africa and one of the oldest in the world - at least 2,000 years (may be traced to the Aksumite Kingdom, which coalesced in the first century B.C.)"12 [18] The above evidence and other documentary evidence in the national documentary package suggest that the majority situation of the Oromo in Ethiopia does not render them vulnerable to unabated persecution. Despite the scathing report by Amnesty International, "Because I am Oromo", there is no evidence to show that all Oromo are being persecuted. They are clearly represented in the coalition party, EPRDF that rules Ethiopia and all other aspects of life. [19] There is also evidence that Ethiopia is making efforts to improve the human rights of the people as the following report states: 2.2.10 The USSD Human Rights report goes on to state -The government continued its efforts to provide human rights training for police and army recruits. During the year the government continued to accept assistance from the Justice For All -Prison Fellowship Ethiopia (JFA-PFE) [a domestic NGO] and the Ethiopian Human Rights Commission (EHRC) to improve and professionalize its human rights training and curriculum by including more material on the constitution and international human rights treaties and conventions. The JFA-PFE and the EHRC conducted human rights training for police commissioners, prosecutors, judges, prison administrators, and militia in Tigray, Amhara, Oromia, Afar, Southern Nations, Nationalities and People's Region (SNNP), Gambella, and Addis Ababa.13 [20] It is a well-known principle in Canadian law that the onus is always on the claimant/appellant to make his case. RAD finds that he failed to make his case. [21] During the two separate occasions when the oral hearings were conducted over a total of five hours, the appellant is repeatedly warned by the RPD member to answer the question that is posed to him. While reviewing the recordings the RAD found the RPD member warns the appellant on at least six separate occasions to give clear and direct answers. The greatest problem that the RAD finds in this case is that the appellant's oral testimony to the RPD is extremely vague, indirect, confusing, disjointed, inconsistent and therefore unreliable as explained below. [22] For instance, the Appellant testified at the RPD hearing that he was under constant surveillance by the authorities while he was in the community. Yet when questioned closely he testified that he was followed only during two months after his first detention in 2005. RAD finds his testimony internally inconsistent. He writes in his BOC, "I was kept under surveillance, and I was approached by security officers who followed me and threatened me"14. Yet when questioned by the RPD he contradicted himself by not being able to give any example of being approached or threatened. When asked how he knew that he was being followed, he testified that they go around the city. His answers were vague and indirect leaving the questioner wondering what really happened if anything. When asked by the RPD why he not mentioned this very significant information in his BOC, he testified because they did not actually contact him. His responses were continuously evasive. [23] The RAD tried to understand the reasons for the vague, confusing and disjointed answers. The RAD found that this behavior was repeated in both hearings and that it was not just that the appellant had a bad day during the first hearing. Secondly, the appellant is an educated person. There is no reason to think that he was not following the questions. The appellant's answers inculcate no confidence in the decision maker to accept them as being truthful or reliable. [24] The appellant alleges that he was suspected of being an OLF recruiter and that he was detained twice for several months each time and once for a day. While RAD realizes that it is virtually impossible to provide corroborative evidence of detention, the letters from one's wife and brother are insufficient in the face of other serious shortcomings in the testimony as discussed here. The letters from the appellant's wife and brother provide no details and do not mention his third arrest. When asked by the RPD why the letters neglected to capture the third arrest, he responded that he did not tell them. Contrary to the appellant's point in his memorandum15, RAD finds it unreasonable that he would not share this information with his wife. [25] The appellant testified to the RPD that he was visited in jail during his first detention by some of his work colleagues. He then stated to the RPD that particularly one work colleague visited him in jail but he neglected to get any corroboration from him. This corroboration was missing at both the RPD and now at the RAD. Corroboration from a colleague from work would have added weight to his argument. When he was asked by the RPD, he provided no explanation for why he did not produce the corroboration from his work-colleague. The RAD agrees with the RPD that lack of corroborative evidence is a serious problem in this case.16 [26] The appellant alleged that he was detained two times; first from XXXX XXXX, 2005 to XXXX XXXX, 2005, secondly from XXXX XXXX, 2009 to XXXX XXXX, 2009. The appellant alleges that each time he was detained he was tortured. When the RPD asked what form did the torture take, the appellant testified that he was pounded, slapped and beaten with rubber and wooden sticks. He states in his BOC form, "They beat me with the butts of guns and with heavy sticks".17 There is no corroborative evidence of any medical treatment after the alleged torture. There was no mention of any psychological or physical problems as a result of the alleged serious torture. When asked by the RPD if he had any corroborative evidence in the form of a medical report he stated in a matter of fact manner as though nothing serious had been done to him that he only lost a little weight during the detentions. The RAD finds the appellant's evidence doubtful because it is not plausible that after intensive interrogations accompanied by physical torture, all he suffered was a loss of some weight. [27] The appellant also testified to the RPD that nothing happened to him between XXXX XXXX, 2005, the date of his release from first detention and XXXX XXXX, 2009, the arrest date for his second detention or between XXXX XXXX, 2009, the date of his release from his second detention and the date that he could not remember in 2013 when he was questioned for a day. These are two periods of nearly four years each during which he was left alone after alleged two periods of nearly three months each of intense torturous detention. When questioned by the RPD, the appellant had no explanation for why he was not mistreated during those periods. The RAD finds it unbelievable that if the ruling party really suspected him of working for the OLF, a party that the Government has declared to be a terrorist party, that he would not be questioned more often. [28] The appellant was continuously employed by Government owned companies in Ethiopia since his graduation. Contrary to the point made in the appellant's Memorandum,18 the documentary evidence shows that had he been suspected of belonging to the opposition party, his employment would have been terminated. As the following report shows: 3.16.6 The USSD report states "Political parties were predominantly ethnically based. EPRDF constituent parties conferred advantages upon their members; the parties directly owned many businesses and were broadly perceived to award jobs and business contracts to loyal supporters. During the year [2012], there were credible reports teachers and other government workers had their employment terminated if they belonged to opposition political parties. According to Oromo opposition groups, the Oromia regional government continued to threaten to dismiss opposition party members, particularly teachers, from their jobs. Government officials made allegations many members of legitimate Oromo opposition political parties were secretly OLF members and more broadly that members of many opposition parties had ties to Ginbot 7...."19 [29] The Appellant repeatedly changed jobs without any alleged harm. He was neither forced to change jobs nor was he fired from his job. It would appear that if he was suspected of sympathizing with the opposition he would not have been permitted to continue to work unabated in the Government owned companies. On the contrary, the evidence provided by the Appellant shows his monthly income steadily arose from 1,530 Birr at the XXXX XXXX XXXX in 200520; 3,531 Birr at the XXXX XXXX XXXX XXXX in 201021 and 11,500 Birr at the XXXX XXXX XXXX XXXX XXXX at the time of his departure in 2014.22 The evidence also shows that he progressed through his work culminating in being fully sponsored to travel to Canada on the company's expense to undertake training.23 The RAD finds that the appellant does not fit the profile of someone who would have been considered a member of the OLF. [30] The RAD disagrees with the argument in the Appellant's Memorandum of Argument that "... the RPD erred in drawing a negative inference from the fact that he had no problems in acquiring a passport and leaving the country... there is no mention of the government taking steps to prevent political dissidents from leaving the country".24 The RAD reads the following documentary evidence differently: 2.3.5 The USSD in its Human Rights report states "Although the law provides for freedom of movement within the country, foreign travel, emigration, and repatriation, the government restricted some of these rights in practice. The government continued to relax but did not completely remove restrictions on the movement of persons into and within the Ogaden area of the Somali Region, continuing to argue the ONLF posed a security threat. The government cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) and other humanitarian organizations in providing protection and assistance to internally displaced persons (IDPs), refugees, returning refugees, asylum seekers, stateless persons, and other persons of concern."25 [31] From the documentary evidence presented here on country conditions and based on the appellant's evidence pertaining to a successful, progressively improving employment in Ethiopia and sponsorship of an all-expenses paid training trip to Canada, RAD finds that the appellant's profile is closer to a "favourite" of the EPRDF government than a protagonist. [32] The Federal Court has made it clear in a number of cases that when assessing the credibility of a claimant, it is important to remember that all of the evidence, both oral and documentary, must be considered and assessed, not just selected portions of the evidence.26 The RAD finds that the RPD member adequately assessed all the evidence before her in finding the appellant not credible. The RAD has also not only reviewed the RPD member's decision thoroughly, but it has also assessed all the evidence thoroughly. Having reviewed the entirety of the record, the RAD too finds the appellant not credible. DISPOSITION [33] After reviewing the evidence in this matter, the RAD finds that there is not a serious possibility that the appellant has a well-founded fear of persecution if he should return to Ethiopia or that, on a balance of probabilities, there would be a risk to his life or a risk of cruel and unusual treatment or punishment or torture if he returned to Ethiopia. Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "Ken Sandhu" Ken Sandhu October 5, 2015 Date 1 Exhibit P-2, Appellant's Record, at p. 10 2 Ibid., at p.19 3 Ibid., at p. 14 4 Exhibit RPD-1, RPD Record, The Basis of Claim document and any Changes or additions to it, at pp. 11-24 5 Ibid., at p. 14, line 35 6 Exhibit P-2, at pp.14-19 7 Ibid., at p. 14 8 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 9 RPD-1, Because I am Oromo: Sweeping Repression in the Oromia Region of Ethiopia, by Amnesty International, at pp. 104 to 218 10 RPD-1, National Documentary package (NDP) for Ethiopia (January 30, 2015), item 1.3, Ethiopia, The World Factbook, at p. 6 11 Ibid., at p. 3 12 Ibid., at p. 5 13 RPD-1, NDP Ethiopia, (January 30, 2015), Item 1.4, Operational Guidance Note: Ethiopia, at p. 4. 14 RPD-1, at p. 14, lines 39 and 40 15 P-2, Appellant's Memorandum of Argument, at p.5, para 11 16 P-2, at p. 8, lines 35 to 47 17 RPD-1, at p. 14, lines 30 to 31 18 P-2, at p. 15-16, para 12 19 RPD-1, NDP Ethiopia (January 30, 2015), Item 1.4, Operational Guidance Note: Ethiopia, United Kingdom Home Office, November 2013, at p. 19 20 RPD-1, Letter from XXXXX XXXX, at p.101 21 RPD-1, Letter from XXXXX XXXXX XXXXX at p. 100 22 RPD-1, Letter from XXXXX XXXXX XXXXX XXXXX, at p. 98 23 RPD-1, Letter from XXXXX XXXXX, at p. 232 24 P-2, Appellant's Memorandum of Argument, at p.17, para 16 25 RPD-1, NDP Ethiopia (January 30, 2015), Item 1.4 Operational Guidance Note: Ethiopia, United Kingdom Home Office, November 2013, at p.6 26 Owusu, Kweku v. M.E.I. (F.C.A., no. A-1146-87), Heald, Hugessen, Desjardins, January 31, 1989. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-04061