TB4-00371

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 : TB4-00371 Private Proceeding / Huis clos Redetermination of the Appeal 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 21, 2015 Date de la décision Panel Robert Bebbington 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 (Appellant) alleges he is a citizen of Ethiopia. He sought judicial review of a decision of the Refugee Appeal Division (RAD) rejecting his claim for refugee protection to the Federal Court of Canada. On June 30, 2015, the Federal Court set aside the RAD decision and his appeal was remitted back to the RAD for re-consideration with a different decision-maker. [2] The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the Refugee Protection Division (RPD) and substitute a decision with its own determination that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the RAD refer the matter back to the RPD with a differently constituted panel. The Appellant has not submitted new evidence with the appeal and he has not requested an oral hearing before the RAD. DETERMINATION [3] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [4] The Appellant alleged before the RPD that he is a citizen of Ethiopia who fears returning to Ethiopia because he is perceived by security forces of being involved with opposition political groups. Following the 2005 elections, he was falsely accused of being aligned with the Coalition for Unity and Democracy (CUD) party. He was detained for XXXX weeks, during which time he was interrogated, beaten and accused of being an instigator of campus protest, organizing meetings in the university library and producing graphic material for protest. [5] In 2007, he opened an XXXX company but was forced to close the company when security agents accused him of producing materials for the other opposition party, the Union for Democracy and Justice (UDJ). [6] In 2009, he was detained by security agents for two months. He was again accused of supporting the UDJ and was subjected to beatings and interrogation. He was released from detention after he paid a 12,000 Birr fee. Following his release, he was under surveillance and continued to be threatened by security forces. [7] In XXXX 2012, the Appellant commenced employment with the XXXX XXXX XXXX XXXX to head up the XXXX XXXX department. In XXXX 2012, security agents demanded he report on the activities of XXXX and XXXX of the XXXX; however, the Appellant refused to co-operate. [8] In XXXX 2013, he was detained for XXXX days and interrogated about his involvement with the two opposition parties. He was released and returned to work at the XXXX. [9] In XXXX 2013, the Appellant traveled to Canada on an XXXX training XXXX. The Appellant abandoned the training after one day and traveled to Toronto where he filed a refugee protection claim. He fears he will be detained and tortured if he returns to Ethiopia due to the false perceptions of his political involvement and because authorities in Ethiopia know that he has sought refugee protection in Canada. [10] The Appellant's refugee protection claim was heard on December 9, 2013. In a decision on the same day, the RPD rejected the Appellant's claim finding that the Appellant was not credible. RPD Findings [11] The RPD in its Reasons found: * The Appellant failed to establish his allegations of detention, mistreatment and opposition political involvement with credible or trustworthy evidence. [12] The Appellant submits the following issues: * The RPD erred in its credibility findings. ROLE OF THE RAD [13] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. 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". [14] 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 in need of protection. The RAD will recognize and respect the credibility findings of the RPD. ANALYSIS OF THE MERITS OF THE APPEAL Failure to leave Ethiopia and re-availment [15] The RPD found the Appellant's allegations of harm were inconsistent with his alleged fear. The RPD made a negative inference to the Appellant's credibility that following two terms of brutal detention and torturous treatment he would chose to remain in, and even return to, Ethiopia. The Appellant argues that the RPD's adverse credibility findings are erroneous. The RAD is not persuaded by the Appellant's argument in this regard. [16] The RAD has reviewed the record as well as the audio recording of the hearing. The RAD notes that it was the Appellant's testimony that he believed his life to be in danger since his first detention in 2005. He alleged he was detained for two lengthy periods in 2005 and in 2009, during which time he was repeatedly beaten. Despite this, the Appellant made no efforts to leave the country or even to explore the possibility of leaving the country prior to 2013. In addition the Appellant testified that he was able to depart Ethiopia and travel to Uganda in 2012 and re-avail shortly thereafter. The RAD further notes that the Appellant's testimony confirmed that he was able to safely leave Ethiopia in 2013 and travel to Canada. The Appellant's testimony further confirmed on both these occasions this travel took place following the issuing of a visa and acknowledgement of his exit by customs officials through stamping his passport. [17] The RAD notes the Federal Court has stated: "Return to the country of nationality may indicate that a well-founded fear of persecution is lacking where the claimant's conduct is inconsistent with such fear."2 As well as: "Obtaining or renewing a passport or travel document,3 and leaving or emigrating through lawful channels may also indicate that a well-founded fear of persecution is lacking."4 The RAD finds the Appellant's actions of re-availment and his exit through lawful channels demonstrate a lack of credibility as to his claim and a lack of subjective fear. These actions are not consistent with his allegations of threats against him by the agents of persecution. [18] The Appellant testified that his reason for not departing Ethiopia sooner and for re-availing in 2013 following a visit to Uganda was that he had a good life and a good job in Ethiopia and that he did not want to leave his family and friends. He further explained that there had been some improvement in the political situation, and he believed the situation would continue to improve. The RPD asked the Appellant to provide examples of the improvements he was referring to. He testified that the government reacted violently to activities of opposition groups in a 2005 election, yet in a subsequent election in 2010 other groups mounted opposition against the government. The Appellant on further questioning contradicted that explanation when he testified that the government reacted to the 2010 opposition with violence. The RAD finds the Appellant's testimony did not support his explanation that things had improved. The RAD further finds the Appellant's testimony in this area was vague and non-specific. He was provided with opportunities to explain how the situation had improved and he was unable to provide any salient response. The RAD finds the Appellant's vague testimony undermines the credibility of his allegations of harm. [19] Furthermore, the RAD notes that the Appellant's testimony confirmed that, following his release after a two month detention in 2009, security forces continued to have him under surveillance and threaten him. The RAD finds these reasons for his delay may be convincing if less was at stake, but when weighed against the Appellant's allegations of harm and continuing jeopardy his explanation is not credible. [20] The RAD has considered the Appellant's reluctance to leave his family, career and friends. The RAD finds when one considers that the Appellant testified, "I was afraid all the time" (in Ethiopia) and that his life was at risk. The RAD finds that the Appellant's actions are inconsistent with his alleged fear. The RAD concurs with the RPD finding in respect of the Appellant's delay in departure from Ethiopia and for his decision to re-avail to the alleged country of persecution. The RAD finds the Appellant's argument must fail. The Appellant's XXXX Employment [21] The RPD made an adverse credibility inference through the contradiction between the Appellant's employment at the XXXX XXXX XXXX XXXX and his allegations that the state considered him a political enemy because he was supporting opposition parties. The Appellant submits that the RPD was wrong to find this implausible and that its finding in this regard was based in sheer speculation. The RAD is not persuaded by the argument of the Appellant. [22] The RAD has reviewed the available documentary evidence5 and finds that although while the documentary evidence does not explicitly state that the XXXX only employs persons loyal to the ruling party, it makes definitive statements that the ruling government controls the access to jobs and government resources in an effort to shut down dissent. The RAD notes that the Appellant's testimony confirmed that the XXXX which employed him was a XXXX XXXX XXXX XXXX. Further to this the Appellant's testimony stated that he was aware of an individual who was fired by the XXXX when it was discovered that the person supported the opposition. The Appellant confirmed in his testimony that he believed that political actors could use their influence to have persons dismissed from the XXXX. [23] The RAD has additionally considered that given the Appellant's alleged profile and that it is not plausible that he would be allowed to continue his employment with the XXXX after being detained and accused of being a supporter of the opposition for a third time in 2013. [24] The RAD notes the Federal Court has stated: It is insufficient for the Division to simply assert that the claimant's testimony is implausible, or that their explanation is not satisfactory. The Division must explain the reasoning behind that finding. The Division should also provide a reliable and verifiable evidentiary basis against which the plausibility of the claimant's evidence might be judged: Aguilar Zacarias, Gabino Olegario v. M.C.I. (F.C., no IMM-9303-11), Gleason, October 1, 2012; 2012 FC 1155. [25] The Appellant's allegation is that he is perceived to be a political enemy of the ruling party. The RAD finds the Appellant's explanation that the XXXX had greater interest in creating an XXXX department than in protecting the interests of the ruling party is not credible, especially when it is considered in the context of the documentary evidence. The RAD has reviewed the documentary evidence and considered it in reference to the Appellant's testimony. The RAD concurs with the RPD and finds it is implausible that the Appellant would have been hired into a XXXX XXXX XXXX XXXX that he could use to influence dissent against the state. [26] The RPD assigned an adverse credibility finding through the Appellant's action and explanation of choosing government employment given his history of abuse and detention by the government. The Appellant submits that his explanation that XXXX XXXX XXXX was the best place to establish an XXXX department was a reasonable explanation and the RPD's finding in this regard was erroneous. The Appellant further submitted that it is plausible that the XXXX chose to hire him in order to exercise its control over him. The RAD is not persuaded by the Appellant's argument in this regard. [27] The Appellant testified that he studied XXXX and after having the XXXX company he wanted to open an XXXX department at the XXXX. The Appellant alleged in his BoC document and confirmed in his oral testimony that he feared for his life at the hands of government agents. He has further alleged that the government kept him under surveillance. The RAD finds that the Appellant's explanation that his personal goals outweighed his fears about working for the XXXX that was persecuting him detracts from the credibility of his allegations of harm. The RAD agrees with the finding of the RPD that his explanation was inconsistent with his allegation that government authorities had forced him out of the XXXX business a few years previous. The RAD finds the Appellant's argument must fail. The Appellant's Testimonial Consistency [28] The RPD found that the Appellant's testimony was consistent with his BOC allegations and aspects of the documentary evidence concerning his detention, but that these findings did not outweigh its adverse credibility findings. The Appellant submits that in light of the RPD finding which support his credibility, its negative inferences are unreasonable and speculative. The RAD is not persuaded by the argument of the Appellant. [29] The RAD notes that the core component of the Appellant's claim for refugee protection is his allegation that he was perceived to be a political enemy of the state which led him to be detained, beaten and interrogated on a number of occasions. The RPD found on the basis of its adverse credibility findings, and, on a balance of probabilities, that the Appellant failed to establish with credible or trustworthy evidence that he was detained, mistreated or suspected of opposition political involvement. [30] The RAD has reviewed the audio recording of the hearing as well as the available documentary evidence and finds that there is sufficient evidence to establish that the Appellant has not satisfied his burden of establishing that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, he would be personally subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture. The RAD agrees with the finding of the RPD and the Appellant's argument must fail. CONCLUSION [31] The Appellant has alleged that the RPD erred in rejecting his claim. The RAD finds no such errors and, upon review of the evidence, has reached the same conclusion as the RPD. [32] The RAD agrees with the RPD's determination and finds that, on the basis of the totality of the evidence in this appeal, the Appellant has not satisfied the burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture by any authority in Ethiopia. [33] Pursuant to Section 111(1)(a) of 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. (signed) "Robert Bebbington" Robert Bebbington October 21, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. paras 54 and 55. 2 Hoballah, Hassane v. M.E.I. (F.C.T.D., no. IMM-3670-93), Joyal, January 10, 1995. 3 Jbel, Bouazza v. M.E.I. (F.C.T.D., no. A-1058-92), Gibson, September 10, 1993. 4 Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (C.A.). 5 RPD-1, National Documentation Package (NDP) for Ethiopia,version 3 May 2013, item 4.8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-00371