TB5-06575

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 : TB5-06575 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 September 9, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Paul Vandervennen Barrister and Solicitor 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 appeals a decision of the Refugee Protection Division (RPD), denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute its own positive decision, or to refer his claim to the RPD for redetermination by a differently-constituted panel. [2] The Appellant did not ask that an oral hearing be held, pursuant to Section 110(6) of IRPA. DETERMINATION [3] Pursuant to Section 111(c) of IRPA, the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. BACKGROUND [4] The Appellant alleges before the RPD that his problems began in 2009 as a result of when he was expelled from his employment at a government office, where he did repairs on XXXX equipment, as a result of his membership in the Unity, Democracy and Justice Party (UDJ). The Appellant further alleges that as a result of becoming a member of the Blue Party, he was detained and tortured in XXXX 2014 for having been nominated by the party to run for his constituency in the elections. Upon his release, he had bail conditions for which he had to comply in where one of the conditions was that he refrains from participating in political activities. The Appellant was issued a visitor visa to Canada on November 7, 2014. He left Ethiopia on XXXX XXXX, 2015, and transited via XXXX before arriving in Canada the next day. The Appellant made a claim for protection inland office on or around March 26, 2015. [5] The Appellant had a refugee determination hearing on May 19, 2015. Written reasons dismissing his claim were issued on June 10, 2015. In its decision, the RPD panel found the following: a) Inconsistent evidence surrounding his arrests which detracted from his credibility. b) Inconsistency with a medical letter undermined the Appellant's credibility; and c) Subjective Fear: Delay in Departure; and d) Inconsistency between knowledge in his BoC and testimony detracted from his credibility, such as date of release; and e) Membership in the Blue Party. [6] In the Appellant's memorandum, the Appellant alleged that the RPD made several errors of law and fact as follows: 1. The RPD erred when it failed to consider the documentary evidence and other convention grounds that were applicable to the Appellant. [7] The Appellant asks the RAD to set aside the determination and substitute a positive determination, or refer the matter to the RPD for re-determination as per Section 111(1) (b) and (c) of IRPA. The Appellant did not request an oral hearing, as it relates to the new evidence (under Rule 29) presented in support of his Appeal. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [8] As outlined above, the Appellant submitted no evidence in support of his Appeal, however he did make an application pursuant to Rule 29 to submit new evidence in support of his Appeal. [9] Section 110(4) of IRPA indicates that: "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 rejection". RAD Rule 3(3) (g) (iii) directs applicants to include an explanation of how the documentary evidence meets the requirements of Subsection 110(4) of IRPA. The Appellant's memorandum did not provide a detailed explanation of why his documents were unavailable before the rejection by the RPD. Admissibility of Evidence Presented on Appeal [10] The Appellant has sought to submit new evidence after he submitted his appeal record, therefore this evidence must be considered under both Rule 29 and subsection 110(4). [11] The Appellant applies under Rule 29 to provide a new document: (a) An article from a magazine;1 Application under Rule 29 [12] The RAD notes that the document which was submitted pursuant to Rule 29, the written representation in support of application by the Appellant's counsel explaining why the document is being provided, an article from a political magazine XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (English translation and affidavit or translator is attached). The Appellant submits that this document relate to the RPD's finding concerning his testimony in regards to his fear of returning to Ethiopia. [13] The RAD has considered this document pursuant to the factors in Rule 29 (4). [14] Section 29 (4) of the RAD Rules states that, in deciding whether to allow an application, the Division must consider any relevant factors, including: (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [15] It is for the Appellant to provide an explanation of how the document meets the requirements of Section 29(3) of IRPA and how the evidence relates to the Appellant.2 Sub rule 29(3) states that the PSA must include an explanation of how the document not previously provided meets the requirements of subsection 110(4). [16] The article from a political magazine XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant alleges he became aware of the article on August 17, 2015, and the Appellant had the article translated to English that same day. The unknown author of the article writes about members of the opposing parties and how they were nominated to run in past elections but were prevented from doing so. The author of the article mentions the names of several candidates which were prevented from running in the last election; the name of the Appellant appears as one of those names. The author, further states that numerous persons associated with the UDN and the Blue party were arrested, some were held in detention while others were killed. The Appellant does not provide any information regarding the existence of this magazine. Where is it located, when or who publishes and how often, but most important how the existence of the article became known to him. The content of the magazine article supports some evidence which was given by the Appellant at his RPD hearing, it does not add any new evidence that would alter the RPD decision, as such the RAD finds that the Appellant has not provided a fulsome and reasonable explanation as to why he was not able to obtain or tender this document at an earlier stage. [17] Accordingly, the Appellant's application to submit this document must fail under the provisions of Rule 29 (4). As the document is not admissible under 29 (4), the RAD finds there is no need to go on to consider the factors in 110 (4) IRPA. [18] The Appellant's Application to Submit Documents Not Previously Provided is denied. ROLE OF THE RAD [19] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica, provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. 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". [20] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person is need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. RPD FINDINGS [21] The Appellant argues that finding the claimant is not a credible witness is not determinative of the issue of whether he qualifies for protection. The Appellant argues that the panel erred when it failed to consider and assess documentary evidence in support or his claim, including a letter from a XXXX in Ethiopia,3 and letter from the Blue Party,4 and country documents in the IRB's National Documentation Package for Ethiopia. The Appellant argues that the RPD, in its decision, makes mention of the above evidence which corroborate his allegations and fears, but doesn't explain why it gives the evidence little weight. The Appellant further argues that the RPD, in its decision, also failed to mention that he submitted a receipt for his contribution to the Blue Party in Ethiopia, and by failing to mention and address this evidence, implies that the decision was made without regard to the evidence. The RPD is presumed to have considered all of the evidence before it.5 [22] The RPD is not required to refer to each and every piece of documentary evidence before it. However, the more important the evidence not specifically mentioned and analyzed in the Board's reasons, the more willing the Federal Court is to find that the RPD made an erroneous finding of fact without regard to the evidence,6 and the same reasoning seems applicable to the RAD's review of the RPD's reasons. [23] The RAD has reviewed the evidence referred to by the Appellant.7 In the RAD's view, some of that evidence was assessed by the RPD such as the medical certificate from XXXX XXXX XXXX. In its reasons, the RPD mentions the Appellant's arrest on XXXX XXXX, 2013 to XXXX XXXX, 2013, however the RPD made credibility findings in regard to the XXXX 2013 and not XXXX 2014.8 This clearly shows that evidence submitted by the Appellant was reviewed and assessed, and mentioned in the reasons. The RAD notes that there were some important pieces of evidence which were not mentioned, but the RAD feels it's important enough for the RPD to have mentioned. Such as, the RPD did not mention in its reasons the letter from the XXXX in which the author says that the Appellant was arrested and released on strict bail conditions, this leaves this piece of evidence untested. Also, the receipt of the contribution by the Appellant to the Blue Party, and no mention of the NDP, which would indicate if the appellant is at risk, notwithstanding his credibility problems, simply because of his political activities. [24] While the RAD acknowledges that the RPD is not required to refer in its reasons to all potentially relevant evidence, I agree with the Appellant's position that it is also well-accepted that the more important the evidence that is not specifically mentioned and analyzed in a decision-maker's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact without regard to the evidence (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 FTR. 35, at paras. 14-17, [1998] FCJ No 1425 (FCTD)). [25] In this matter, the RPD simply did not acknowledge or articulate in its reason whether it directly or indirectly assessed all the documents corroborating the alleged targeting by the Ethiopian authorities, and the RAD finds the RPD erred by making its risk analysis finding without making mention of this evidence in its reasons, and finds that the finding in this area is unreasonable and unsupportable. [26] At paragraph seventeen of its decision, the RPD panel found that the "the panel concludes that the above-mentioned credibility findings also apply to section 97 of IRPA, and that, on a balance of probabilities, you would personally be subjected to a danger of torture, or face a risk to life or a risk of cruel and unusual punishment in Ethiopia."9 After a lengthy and detailed credibility analysis, the RPD member found that "having considered all of the evidence, the Panel determines that the claimant is neither a Convention refugee nor person in need of protection...."10 The Appellant's lack of credibility was equally fatal to his claim under Section 96 and Section 97 of IRPA. Once the RPD found that he had not provided credible evidence concerning his XXXX 2013 arrest and other aspects of his claim, there was simply no basis for a finding that the Appellant was a person in need of protection. [27] It is trite law that a negative credibility finding in relation to Section 96 will often obviate the need to consider Section 97. Although in this case, the consideration of Section 97 was contained in the reasons, there was nevertheless an analysis. Given the RPD's concerns about credibility, the relatively cursory nature of the Section 97 analysis was reasonable in fact and correct in law.11 Credibility Findings [28] The RPD made many negative credibility findings which it stated led to a final determination that the Appellant was not credible and that the lack of credibility cast doubt on the totality of the evidence. The RPD's decision was based on credibility issues including: inconsistency with the circumstances surrounding his arrest and detention, inconsistency with the release dates, inconsistency between knowledge in BoC and oral testimony. [29] The RPD had the opportunity to test the Appellant's knowledge and his testimony related to the allegations. The RPD is to be given deference in its findings of fact and in its overall assessment of the Appellant's credibility. Based on the concerns identified by the RPD and given the significant deference afforded the RPD member, the RAD finds that the RPD's findings related to credibility of the allegations were supportable. [30] The Appellant argued that the RPD erred by ignoring country documentary evidence and the objective basis for the claim. The RPD found that the Appellant's allegations were not credible, and therefore the Appellant has not established his political profile and that he would be wanted by Ethiopian authorities. Given that the Appellant has not provided sufficient credible or trustworthy evidence to attest to his political profile, the RAD finds that the RPD did not err by failing to assess country conditions or similarly situated persons. Furthermore, documentary evidence notes that country conditions evidence only establishes that family members of opposition members are at risk. [31] A review of the RPD's reason reveals that the RPD found credibility concerns in some areas of the Appellant's allegations for which the Appellant was not able to provide a reasonable explanation. A panel may err by discounting the entirety of the evidence based on one or two non-determinative credibility concerns; however, this is not the case in this Appeal. The concerns raised by the RPD went to the heart of the Appellant's allegations. The RAD finds that this finding was open to the RPD given the number and nature of the concerns identified by the panel. [32] It would have been better had the RPD considered the context of the Appellant's documents and provided fulsome reasons as to why it gave them little weight. These in RAD's view are important documents which go to the heart of the claim, in such aspects of establishing his political identity and his credibility. [33] For all of the reasons set out above, the RAD finds that the RPD's decision is not supportable. [34] After conducting an independent assessment of the entirety of the evidence, the RAD does not reach the same conclusion as the RPD did in its findings. The RAD noted that there were numerous credibility concerns in the record before it, but without giving the Appellant the opportunity to give explanations, the RAD defers any credibility concerns to the RPD. SUMMARY AND DETERMINATION [35] I am unable to make a determination as to whether the Appellant is a Convention refugee or a person in need of protection under paragraph 111(1)(a) or (b) without hearing the evidence that was presented to the Refugee Protection Division. Therefore, the matter is remitted to the RPD for redetermination by a differently-constituted panel. CONCLUSION [36] Pursuant to ss. 111(1)(c) of the Act, the Refugee Appeal Division remits the matter for redetermination to the Refugee Protection Division by a differently constituted panel. [37] This appeal is therefore allowed. (signed) "Luis F. Agostinho" Luis F. Agostinho September 9, 2015 Date 1 Appellant's Application under Rule 29, dated August 18, 2015 pages 4-5 2 Refugee Appeal Division Rules, Rule 29(3). 3 Exhibit RPD-1, RPD's Record, at p. 104, Medical Certificate signed by XXXX XXXX XXXX XXXX 4 Exhibit RPD-1, RPD's Record, at p. 89, letter from the Blue Party signed by the XXXX XXXX XXXX XXXX XXXX XXXX 5 Hassam v. M.E.I. (1992), 14 N.R. 317, at para 318 6 Dessie, Worku v. M.C.I. (F.C., no. IMM-3927-11), Mactavish, December 19, 2011, 2011 FC 1497, para. 7-8. 7 Exhibit P-2, Appellant's Record, at pp. 13-18. 8 Exhibit P-2, Appellant's Record, at p. 6, para 12. 9 Exhibit P-2, Appellant's Record, at p. 7, para 17. 10 Exhibit P-2, Appellant's Record, at p. 8, paras 18-19. 11 Ache, Djidda Mahamat v. M.C.I., (F.C., No. IMM-5907-10), Simon Noël, June 9, 2011; 2011 FC 659, para. 15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-06575