TB5-14290

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 : TB5-14290 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 26, 2017 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Daniel Tilahun Kebede 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), a citizen of Ethiopia, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the 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 submitted new evidence with the appeal as referred to in section 110(4) of the Immigration and Refugee Protection Act (IRPA)1 and requests an oral hearing be held pursuant to section 110(6) of the IRPA. [2] This appeal was heard and reviewed by the Federal Court in a decision issued October 27, 2016. The RAD decision in this appeal was remitted for redetermination by a different member. DETERMINATION [3] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [4] The Appellant alleged that she is an XXXX Ethiopian and a member of the Ethiopian Orthodox Church. The Appellant alleged that she is a political activist and has a long-standing history of being involved in activities opposing the ruling party in Ethiopia. She alleged that she fears persecution upon return to Ethiopia due to her support of the exiled patriarch of the Ethiopian Orthodox Church. The Appellant also opposes the ethnic policy of the regime due to which she was identified as XXXX and, as a result, was forced to leave her employment. [5] The Appellant came to Canada to visit her daughter in XXXX 2014. She alleged that she and her family decided that, upon her return to Ethiopia, she would help the families of political prisoners by giving them letters to encourage them and provide support. [6] Upon return to Ethiopia, the Appellant's luggage was searched, and the authorities found the letters and the money that she had collected for the families. The Appellant was detained and released on bail after XXXX days. Thereafter, she and her family were under constant surveillance. The Appellant was told that she would be prosecuted under anti-terror legislation unless she agreed to become a member of the Ethiopian Peoples' Democratic Revolutionary Front (EPDRF). [7] The Appellant returned to Canada on August 10, 2015. She made her claim for refugee protection on September 24, 2015. The Appellant's refugee claim hearing concluded on November 18, 2015. By a decision rendered on December 1, 2015, the RPD rejected the Appellant's claim. The RPD found the Appellant to be not credible, and it determined that she was not being targeted as alleged. [8] The Appellant submits that the RPD erred in drawing its credibility findings and in its treatment of the documentary evidence. ROLE OF THE RAD [9] The RAD finds that the Federal Court of Appeal decision, in Huruglica,2 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. [10] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [11] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Section 110(4) of the IRPA provides 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. [12] The Appellant has submitted: Personal documents: 1. A Psychodiagnostic Evaluation Report, dated January 10, 2016;3 2. A Letter of Support from Unity for Human Rights & Democracy, dated January 14, 2016;4 3. Photographs of the Appellant at Unity for Human Rights & Democracy Toronto Events;5 Country documents: 4. Human Rights Watch, Dispatches: Arrest of Respected Politician Escalating Crisis in Ethiopia, dated January 7, 2016;6 5. BBC News Report, Ethiopian forces kill 140 Oromo Protesters', dated January 8, 2016; and7 6. D.W. report, EU asked to break silence on alleged killing of Oromo protesters in Ethiopia, dated January 13, 2016.8 [13] As proposed new evidence with the Appellant's Record. [14] The Appellants submit that the proposed new evidence meets the test of s. 110(4) of the IRPA because it arose after the refugee claims. [15] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). While the RAD agrees with the Appellants that further analysis of the evidence is required before the RAD can accept the proposed new evidence, the analysis as set out in Raza9 is not entirely appropriate for the purpose of assessing evidence submitted to the RAD. In this regard, the RAD is guided by the Federal Court of Appeal decision in Singh.10 [16] Accordingly, the RAD has adapted the analysis in Raza11 to the assessment of evidence submitted to the RAD. [17] In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.12 b) The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.13 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. c) It is important to note here that section 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility and relevance of the document.14 e) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,15 or that it proves a fact that was unknown to him at the time of the hearing?16 If so, the RAD will proceed to assess the newness, credibility and relevance of the evidence. f) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of the refugee claim? If so, the evidence need not be considered.17 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility, and relevance of the evidence. g) If the proposed new evidence meets the tests set out in the statutory requirements and in Raza,18 the evidence will be admitted as evidence in the appeal. The materiality of the evidence will be considered in the context of the assessment made under section 110(6) of the IRPA. [18] The RAD notes the Letter of Support from Unity for Human Rights & Democracy and the Appellant's photographs19 at its events in Toronto, is dated January 14, 2016. The RAD further notes the contents of the document confirm the Appellant has been a member of the organization since September 2015. The RAD finds the Appellant has not explained why this document was not before the RPD at the time of her hearing for refugee protection. In respect of the photographs accompanying the letter the RAD finds the photographs are undated and simply depict the Appellant in a room with a series of unidentified individuals at an unidentified activity. The RAD finds these documents do not meet the statutory requirements of section110 (4) and will not be admitted as new evidence in this appeal. [19] The RAD notes the remaining documents (described as 1, 4, 5 and 6) were produced following the rejection of the Appellant's claim for refugee protection. The RAD has considered that the RPD decision was issued in approximately two weeks following the hearing and finds the Appellant could not reasonably have been expected in the circumstances to have presented this evidence prior to the time of rejection of the claim. The RAD finds this evidence meets the requirements of section 110(4) of the IRPA and it is accepted into evidence in this appeal. [20] The RAD notes the Psychodiagnostic Evaluation Report, dated January 10, 2016,20 originates following the rejection of the Appellant's Claim for refugee protection. The Appellant states that the desire to obtain the report arose from testimonial issues which arose at the hearing. As stated previously, the RAD has considered that the RPD decision was issued in approximately two weeks following the hearing. The RAD finds the Appellant could not reasonably have been expected to have presented this evidence prior to the time of rejection of the claim and it will admit this report as new evidence in this appeal. REQUEST FOR AN ORAL HEARING [21] According to section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in section 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in section 110(3) must be understood in relation to section 110(4). [22] When read together, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [23] The RAD has reviewed the Psychodiagnostic Evaluation Report21 the Appellant submitted as a result of what she perceived to be testimonial problems that arose in the RPD hearing. The RAD notes the following issues surrounding the report: * The report is based upon an examination and a diagnosis by an individual, Ms. XXXX XXXX, who is a "Psychological Associate" of a certified psychologist, Dr. XXXX XXXX. The RAD notes the document clearly indicates Ms. XXXX conducted the assessment, arrived at the diagnosis and made further recommendations. * Ms. XXXX assessment clearly sets out a diagnosis, to be relied upon in these proceedings. The RAD notes the report is also signed by Dr. XXXX, but there is no statement as to what role Dr. XXXX played in conducting the examination or developing this report. * The assessment of the Appellant was based on an interview conducted through an interpreter and the contents of her narrative. The report states the results are based on the interview and clinical testing, although the RAD notes there are no results in the report of any clinical testing, beyond the Appellant's response to a series of interview questions. The RAD notes the information utilized to develop this assessment is based on self-reporting by the Appellant. * The RAD further notes that the report states that the Appellant, "does not present with any major abnormalities in her thought content". The RAD notes the report does not state that she has any difficulty recalling specific information, beyond the statement, "it will be difficult for Ms. XXXX to report these experiences as she may not feel safe to fully express herself". * The RAD has reviewed the audio recording of the hearing and notes that the Appellant's testimony flows freely and she often seems eager to provide more detail than requested by the RPD. Upon refocusing the Appellant provides a clear response to questions. The RAD notes that she struggles with dates in her testimony. The RAD finds this is not an unusual occurrence because there are significant differences between the Ethiopian calendar and the traditional calendar utilized in North America. * The RAD finds the only time the Appellant sounds nervous or hesitant in her testimony occurs when she is asked to explain deficiencies or inconsistencies in her documentation or testimony. The RAD finds these situations are not consistent with the issues described in the psychological report and the report is not cable of offsetting or explaining these inconsistencies. * Furthermore, the RAD finds that Ms. XXXX went beyond the scope of a psychological report when she went on to advocate for the Appellant to remain in Canada. She states in the summations of her report, "It is quite evident that if Ms. XXXX is unable to remain in Canada, she will be placed at great risk of physical and psychological hardship". [24] The RAD recalls the words of Mr. Justice Mosley in Molefe, where he cites the Court's decision in Czesak22 in which Mr. Justice Annis warned of the dangers posed by expert reports submitted to administrative tribunals. [37] Moreover, I am of the view that decision-makers should be wary of reliance upon forensic expert evidence obtained for the purpose of litigation, unless it is subject to some form of validation. This remark would apply to the report of Dr. XXXX which went as far as to advocate on the applicant's behalf in the guise of an opinion on the very issue before the panel. [38] Our legal system has a long experience in dealing with forensic experts testifying on matters relating to technical evidence for the purpose of assisting courts in their determinations. From that experience, the courts have developed what I would describe as a guarded and cautionary view on conclusions of forensic experts which have not undergone a rigorous validation process under court procedures. ... [40] This is not to say that every expert report prepared for litigation should be dismissed as having no, or little, weight. But what the court's experience with forensic experts does suggest in relation to these reports being proffered before administrative tribunals where there exists no defined procedure to allow for their validation, is that caution should be exercised in accepting them at face value, particularly when they propose to settle important issues to be decided by the tribunal. In my view therefore, unless there is some means to corroborate either the neutrality or lack of self interest of the expert in relation to the litigation process, they generally should be accorded little weight. [25] The RAD finds for all these reasons this document deserves little evidentiary weight. Accordingly the evidence lacks the materiality to justify either allowing or rejecting the refugee protection claim, and, as such, it does not meet the requirements of section 110(6).The RAD finds this report lacks the materiality to justify either allowing or rejecting the claim. As such the RAD has no discretion to hold a hearing based on this evidence. [26] The RAD has reviewed the three media articles23 (Items 4,5,6 listed above) and finds that these articles discuss an event that involve a protest in Ethiopia over the expansion of the boundary of the capital city, Addis Ababa. The RAD finds these documents are not capable of establishing the Appellant's allegations relating to the risks she fears upon return to Ethiopia. The RAD finds these articles lack the materiality to justify either allowing or rejecting the refugee protection claim, and, as such, it does not meet the requirements of 110(6). Each of the requirements in 110(6)(a) through (c) have to be met, and in this case the requirement in 110(6)(b and c) are not met. As such, the RAD has no discretion to hold a hearing based on this evidence. As such, the RAD must proceed without a hearing on the basis of the RPD's record, and her application for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL [27] The Appellant submits the following issues in the appeal: * The Appellant was impaired by medical conditions from testifying competently. * The RPD erred in assessing the Appellant's credibility? * The RPD did not give appropriate consideration to the documentary evidence supporting the claim. * Does the Appellant meet the standard of being a refugee sur place? Medical Impairment [28] The RAD notes that at her RPD hearing, the Appellant adduced no evidence that she suffered from any medical difficulties that would inhibit her ability to testify. The Appellant submits that the new evidence from the psychologist supports the fact that she was medically impaired and unable to provide logical connections between questions and answers. The RAD is not persuaded by the argument of the Appellant. [29] The RAD has reviewed the record as well as the audio recording of the hearing. The RAD finds the Appellant is relying in her submissions on evidence that has not been admitted in this appeal. As such, the Appellant's arguments arising from the psychologist's report are unable to demonstrate that the RPD erred. [30] The RAD notes that the Appellant's testimony was offered freely and without hesitation until she was asked to add further detail or explain inconsistencies. The RAD further notes the Appellant was often eager to provide more detail than requested by the RPD. Upon refocusing the Appellant was able to provide a clear response. The Appellant further argues that she struggled with basic aspects of her testimony such as dates. The RAD notes that its review confirms this did occur at a number of points during the hearing. The RAD finds this is not an unusual or unreasonable occurrence because there are significant differences between the Ethiopian calendar and the traditional calendar utilized in North America. The RAD further finds that the RPD made no negative inferences because the Appellant was not able to recall dates accurately. [31] The RAD finds the Appellant has not provided any persuasive evidence to support the allegation that her testimony was impaired for medical reasons. The Appellant's argument must fail. Anti-Terrorist Activities [32] The RPD found: * The Appellant's testimony surrounding her summoning to the XXXX in her area and being advised that she would be prosecuted under the anti-terrorist legislation was not credible. * Given that the Appellant alleges a long history of intimidation, harassment and multiple detentions as a political enemy of the state that it was not credible that she would simply be released and allowed to go home to think about joining the ruling party in Ethiopia in order to avoid being prosecuted under anti-terrorist legislation. [33] The Appellant submits that the RPD misapprehended the core of the Appellant's claim. The Appellant further argues that it is not a crime under Ethiopian law to bring money and letters to prisoners in Ethiopia. The RAD is not persuaded by the argument of the Appellant. [34] The Appellant submits the RPD misapprehended this aspect of the Appellant's claim,24 that she was detained following her return to Ethiopia in XXXX 2013. The RAD has reviewed the record as well as the audio recording of the hearing. The RAD notes the RPD based its finding on the fact that the Appellant provided testimony that was inconsistent with statements in her Basis of Claim (BOC) narrative in respect to when and how long she was detained. The RPD additionally found her testimony was evasive and confused in respect of when these events took place and what occurred at the time. The RAD notes the RPD was not seeking details as to whether the Appellant was detained upon her return to Ethiopia. The RAD notes the issue under discussion was in reference to the Appellant being summoned for questioning to the local XXXX in XXXX 2015. The RAD after reviewing the record finds no evidence to confirm the RPD misapprehended this aspect of the claim. The RAD further finds the Appellant's testimony in this issue evolved through the posing of successive questions from the RPD and was not credible. The RAD finds it further detracts from the credibility of core components of her claim. [35] The RAD further finds in its review of the record that the RPD finding is not addressing the legal aspects of the Appellant's actions on return to Ethiopia. [36] The RAD finds that the Appellant's allegations that she was allowed to go home and consider joining the EPRDF to avoid terrorism charges not to be credible. The Appellant has alleged a long history of harassment and intimidation that included detention, including her most recent incident. The Appellant states in her BOC document, "I was summoned weekly or biweekly to the XXXX office and questioned and asked to fill and sign forms." Given this long and serious history involving by the authorities, the RAD finds that it is not credible that the Appellant would simply be released and allowed to go home to consider joining. The RAD finds the documentary evidence confirms the Ethiopian government is intolerant of dissent and is known to detain individuals who oppose their political views. There are consistent reports of numerous and ongoing allegations of routine use of torture by police officers and members of security forces against individuals such as, but not limited to political dissidents, opposition party members, and students.25 [37] The RAD notes that the Appellant's return to Ethiopia and her arrest and detention upon arrival make up a central component of her claim. The RAD further finds that the Appellant's inconsistent testimony in respect of her arrest and detention upon her return to Ethiopia detracts not only from the credibility of her allegations of harm, but the core element of her claim. The RAD agrees with the finding of the RPD that the Appellant's testimony was not credible and the argument of the Appellant fails. [38] The Appellant further argues that she provided proof of detention26 in her documentary evidence and she explained in her BOC document that the regime was using the anti-terrorism charges to intimidate her. The RAD is not persuaded by the submission of the Appellant. [39] The RAD examined the copy of the "Receipt Voucher" in the record. As described below the RAD noted a number of inconsistencies in the document. The RAD requested that the Case Management Officer (CMO) contact the Appellant's counsel and request that the original document be submitted to the RAD for submission to the RCMP for forensic examination.27 The Appellant responded through her counsel, stating that the document was unavailable as it had been misplaced. She further stated that she would submit an application to the court in Ethiopia in order to obtain a duplicate original of the receipt.28 The Appellant submitted a document29 through her counsel to the RAD on April 26, 2017. [40] The RAD has reviewed the document30 and notes it is not the "duplicate original" that the Appellant undertook to obtain. The document submitted in evidence to the RAD is a generic letter that states "we confirm, from the copy of the remaining pad that Mrs XXXX XXXX XXXX XXXX XXXX in the charged offense deposited a bond an amount of 2000 (Two thousand) and it was issued to on XXXX XXXX XXXX XXXX 2015". The RAD finds that this document does not allow it to assess the genuineness of the "Receipt Voucher" as requested. [41] The RAD has examined the document submitted by the Appellant and notes the following: 1) The document is not on any type of formal letterhead, it is on basic bond paper without any security features, such as watermarks. 2) The document contains two "revenue stamps" affixed to the upper left corner (similar to a postage stamp) overlaid by a large ink stamp. 3) The large stamp contains a series of "blank spaces for entering information", but the information is absent. 4) There is an illegible signature in the large ink stamp and a date of April 19, 2017. 5) There is as second date on the document of April 3, 2017 6) There is an ink stamp at the bottom of the document that states, "Federal Republic of Ethiopia 12 Federal First Instance Court 12" [42] The RAD finds it reasonable to expect that a letter allegedly from a government agency confirming the action of the courts would be on a formal letterhead. The RAD finds a letter of this nature could be composed by any individual, with a few simple ink stamps. The RAD finds the two revenue stamps provide little support as to the genuineness of the document as there are no such identifying features on any other government documents submitted (receipts or copy of a receipt) by the Appellant. Further to this the overlaid ink stamp, which lacks full data also detracts from the credibility of the document. In addition the RAD notes that the photocopy of the "Receipt Voucher and the document requesting the copy of the original do appear to be produced on some form of government letterhead. [43] The RAD further notes that there are two differing dates on the document "April 3, 2017, and April 19, 2017", which seem inconsistent. The RAD finds it reasonable to expect that the dates would be the same. The RAD notes the document is signed in the lower right by the "Secretary of General Manager", but there is no indication as to what department or agency this individual is the "Secretary of General Manager" for. [44] The RAD further notes the letter states that there is a copy of the original receipt that was examined. The RAD has cause to question if the duplicate copy of the original exists, why it was not attached to the letter. The RAD in considering the noted inconsistencies in the letter submitted in evidence, places little evidentiary weight on the document. The RAD further notes this document does not address or fulfill the intended request of the RAD and it undermines the credibility of her allegations of harm. [45] The RAD has reviewed the photocopy of the "Receipt Voucher" submitted by the Appellant. The RAD notes the following issues associated with the document: * The document is a photocopy of an original document. * The document is a very basic hand-filled form that can be reproduced with simple word processing tools. * The document is lacking any visible security features beyond a signature on the document. * There are numerous alignment issues associated with the fonts in the headings provided for the English language portion of the document. The RAD further notes that a number of the letters or fonts on the document vary in size or pitch. For example the word "Address" - the letters "A" "d" "ress" are inconsistent in size and definition. The "A" is bold in appearance in more than one location in the document. The letters "ress" appear smaller in font size against the letter "d". In a similar fashion in the word "Accounts" - the letter "A" is similarly bold in appearance and the letter "o" is displaced upward when compared to the letter "u" adjacent to it. In a similar manner the word "Name" appears in two locations at the bottom of the document. The "N" is bold in appearance and the letters "ame" are misaligned. As well adjacent to the word "Serial" the designation "B/3" is misaligned. [46] The RAD notes this form of inconsistent letter presentation occurs throughout a number of the words in the document. The RAD does not have the original document to examine and it must work with what is on the record. The RAD finds on a balance of probabilities that these print inconsistencies are not the result of photocopying of the document. The RAD finds it reasonable to believe that a document issued by a country's government authority would not be produced with numerous print inconsistencies. [47] The RAD notes that where there is sufficient evidence to cast doubt on a document's authenticity, whether because of an irregularity on its face or the questionable circumstances in which it was obtained or provided, a document may be assigned little (or no) weight, without expert verification or where such verification is inconclusive.31 32 33 The RAD also notes that submitting a false or irregular document may have an impact on the weight assigned to other documents provided by the claimant, especially when they are interrelated34, and on the overall credibility of a claimant35. [48] The RAD in assessing the document presented in evidence finds there is sufficient evidence to assign the Receipt Voucher no evidentiary weight. The RAD further finds on a balance of probabilities the Appellant has submitted a fraudulent document in support of her claim for refugee protection. The RAD finds the Appellant's actions in this issue undermine her allegations of detention and risk by the authorities in Ethiopia. Credibility of the Appellant's Return to Ethiopia [49] The RPD found that the Appellant's action of returning to Ethiopia was not credible based on her allegations that she alleges a long hostile history with the Ethiopian government, and that she and her family had been closely watched by the authorities over a long period of time. The RPD further found that the Appellant further increased her risk by returning with letters of support for prisoners who are accused of being anti-government. The Appellant submits that the RPD misapprehended the basis of her claim and its finding was based in speculation. The Appellant further argues that this was least risky action for the Appellant in order to bring about change in her country. The RAD is not persuaded by the argument of the Appellant. [50] The RAD has considered that the Appellant's allegations of ongoing harassment, surveillance and detention of herself and her family members dating back to the early 1990's were sufficient cause to initiate a refugee claim upon her initial trip to Canada in November 2014. The RAD notes that he Appellant's daughter, who the Appellant resided with in Canada made a refugee claim in the US on a basis of persecution by the Ethiopian government. The Appellant provided testimony to confirm her daughter has assisted her through her refugee claim process. [51] The Appellant explained in her testimony that her reasons for returning were that she owned property and had relatives in Ethiopia. When prompted by the RPD, she did confirm that she brought the letters in her suitcase. The RAD finds the Appellant's testimony did not confirm her higher motives of bringing about change in her country as she argues in her the memorandum. The RAD finds her testimony detracts from the credibility of her submissions. The RAD in considering the magnitude of risk the Appellant alleges she would face finds this explanation and action of returning confirms her re-availment of the country's protection. The RAD finds that the Appellant's allegations that she was detained, harassed and constantly watched when she was home in 2015 further detracts from the credibility her actions. The RAD notes that the record confirms that the Appellant despite her allegations of risk, was able to live in her home for five months and then depart safely for Canada. The RAD finds the Appellant's testimony detracts from the credibility of her allegations of harm. [52] The RAD finds that, given the long-standing history of abuse of the Appellant and her family by the authorities, the re-availment distracts from the Appellant's credibility. In this case, the return to the country of nationality and persecution indicates a fear of persecution or a risk of torture or cruel and unusual treatment or punishment is lacking because the Appellant's conduct is inconsistent with her allegations and alleged fear. [53] The RAD finds the act of returning, in the context of her testimony and statements in her BOC narrative, would endanger the Appellant's safety and is not reasonable. The RAD further finds the action of re-availment demonstrates a lack of subjective fear. [54] The Appellant argues that the RPD relied on speculation in arriving at its conclusion in this issue. The RAD finds the RPD finding is based in a balanced review of the evidence and the Appellant's testimony The RAD is guided by the Federal Court of Appeal's decision in Shahamati,36 wherein Pratte, J.A., writing for the court, states, in part: "Contrary to what has sometimes been said, the Board is entitled, in assessing credibility, to rely on criterion such as rationality and common sense." [55] The RAD supports the RPD finding in this issue and the Appellant's argument fails. Credibility Summary [56] The RAD finds: * The Appellant's statements and testimony in respect to the actions of the authorities in releasing the Appellant to consider joining the ruling party in Ethiopia are not credible when assessed against the documentary evidence. * The Appellant's testimony about her interactions with the Ethiopian authorities at the local XXXX was not credible. * The Appellant tendered a fraudulent document in her claim for refugee protection. * The Appellant's actions of reavailment to Ethiopia detract from the credibility of her allegations of harm in Ethiopia. The Appellant's Religious and Ethnic Identity [57] The Appellant submits that the RPD arrived at its decision by misconstruing evidence and without proper foundation. The Appellant further submits that the RPD erred in stating that her ethnicity is Harar; she submits that she was born in Harar and that her ethnicity is XXXX. The RAD acknowledges this error in the RPD's analysis. The RAD finds despite this error in identifying the Appellant's ethnic identity, the RPD was able to conduct an assessment of the Appellant's religious identity. [58] Regardless, the RAD will conduct its own independent assessment of the Appellant's Orthodox Church religion and her XXXX ethnicity. [59] The RAD has reviewed the record as well as the audio recording of the hearing The Appellant was asked if there was any other reason for her fear in returning to Ethiopia. She testified that the government sees her family as an opposition group. The question was put to her a second time and she replied there was no other reason. The Appellant was subsequently prompted about her religion and her ethnicity, as she had indicated these as reasons contributing to her fear of return to Ethiopia in her BOC narrative. [60] The Appellant then began to testify about aspects of the Orthodox Church. The RPD inquired as to why she failed to mention her alleged religious and ethnic persecution when asked if she had additional reason to fear return to Ethiopia. She did not address the question as put to her, but stated that she described it in her narrative. The RAD finds her testimony was evasive and designed to avoid addressing her testimonial omission. The RAD finds her failure to identify her additional fear of return detracts from the credibility of her allegations of harm on religious and ethnic grounds. [61] The Appellant states she is a member of the church and had submitted a support letter37 from the church in Toronto. The RAD notes the letter from the church provides information about the historical event that took place in Ethiopia relating to the removal of the Patriarch XXXX XXXX XXXX The RAD additionally notes it does not provide any specific information in reference to persecution or problems that the Appellant may have experienced. The RAD further notes the letter does not indicate, when she became a member of the church, nor does it provide information about her attendance or participation in the faith. The RAD finds the letter does not persuasively establish the Appellant's involvement with the church other than that she has become a member of the church. In this respect, the RAD finds it can give the church letter little evidentiary weight. The RAD further finds the letter does not provide persuasive probative evidence to confirm that she would be persecuted upon return to Ethiopia due to her Orthodox Church religion and her support of and affiliation with the Ethiopian Orthodox Church, the Saint Mary Cathedral of Toronto. [62] The Appellant submits that the RPD misconstrued her evidence in assessing her fear upon return to Ethiopia due to her having signed the petition in support of the restoration of the legitimate patriarch of the Orthodox church who is in exile. The Appellant further argues that the RPD ignored the documentary evidence to show persecution of the exiled synod and its supporters in Ethiopia. The RAD is not persuaded by the argument of the Appellant. [63] The RAD finds upon its assessment of the evidence that RPD is not obligated in its analysis, to address every piece of evidence, just the evidence that the RPD found relevant to its decision.38. Nonetheless the RAD has reviewed additional documentary evidence39 submitted by the Appellant. The RAD notes this in-depth article describes a division within the members of the Ethiopian Orthodox Church throughout the world. The RAD finds that this document confirms the Ethiopian government involvement in the church's issues in the 1990's. The RAD finds the document does not provide persuasive evidence to support the Appellant's allegations of harm on a religious basis should she return to Ethiopia. [64] The RAD notes the RPD found the Appellant to be generally lacking in credibility and the RAD has supported that finding. The RAD finds that the Appellant has not, on a balance of probabilities, established that she would be persecuted, or personally subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture due to her religion upon her return to Ethiopia. [65] As discussed above the RPD found the Appellant's testimony in respect of her fear of return to Ethiopia because of her ethnic identity was not credible. The RAD has acknowledged that the RPD incorrectly identified the Appellant's ethnic group in its decision. [66] The Appellant submits that her BOC narrative indicates the Ethiopian regime has forced her to be identified as a member of her principal ethnic group, XXXX a on her identity card and that this has affected her life. The RAD has reviewed the IRB country document40 submitted in evidence as well as the current Ethiopia National Documentation Package (NDP).41 The RAD finds the document submitted by the Appellant is dated from 1993 and makes some reference to problems faced by the XXXX at that time. The RAD notes that this document was subsequently removed from the IRB NDP package as part of regular review to update current applicable country conditions. The RAD upon review of the documentary evidence before the RAD finds there is no persuasive evidence to confirm the current situation for members of the XXXX ethnic group in Ethiopia rises to the level of persecution. [67] The RAD has reviewed the Appellant's BOC narrative in respect of her allegations of discrimination based on her ethnic identity. The RAD finds that the Appellant's allegations of discrimination are vague and generalized in nature. The RAD finds the Appellant's allegations of discrimination are not supported by any documentation. Further to this the RAD notes the Appellant specifically states she was denied a national identity card for ten years. The RAD finds the Appellant's own evidence confirms she was responsible for the action of not receiving her identity card. [68] The RAD has considered the contents of the Appellant's BOC narrative and her testimony at the hearing. The RAD finds the Appellant's allegations of harm in Ethiopia based on her ethnicity are not credible. The RAD having reviewed the full record in respect of the Appellant's allegations of harm in Ethiopia in respect of her religious and ethnic identity finds these aspects of her refugee claim were advanced to embellish a fraudulent refugee claim. [69] The RAD finds the Appellant's arguments in these issues must fail. Sur Place Identity [70] The Appellant submits she meets the standard of a refugee sur place. The RAD notes that claims may also be advanced based, in whole or part, on the activities of the Appellant since leaving his or her country.42 According to paragraph 96 of the UNHCR Handbook, the key issues in such cases based on the claimant's activities since leaving his or her home country are "whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities." Even though a claimant's actions subsequent to departure may have come to the attention of the authorities there, it may nevertheless be that, in the circumstances, those actions do not give rise to a well-founded fear of persecution.43 [71] The RAD finds the Appellant's claim is based on her allegations of being identified by the Ethiopian authorities as a political activist in Ethiopia. The RAD is aware that she was allegedly accused of anti-terrorist activities by the Ethiopian authorities upon return from Canada and that she has joined the Ethiopian Orthodox Church. The Appellant submits that country conditions have deteriorated in Ethiopia as of December 1, 2015. The RAD has considered all of this and RAD finds the Appellant's allegations of being a long-standing political activist in Ethiopia and her having taken letters and money from Canada in support of political prisoners' families in Ethiopia not to be credible. The RAD also found the Appellant's allegations surrounding her religious and ethnic identity were not credible. [72] Even if the RAD were to find the evidence adduced in this case was sufficient to establish the Appellant's alleged political and religious profile in Canada, no evidence has been adduced to support the notion that she has come to the attention of the authorities in Ethiopia. The RAD finds the Appellant's argument must fail. In Summary [73] Accordingly, the RAD finds that the Appellant has not satisfied her burden of establishing that there is a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, she would be personally subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture. CONCLUSION [74] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeals. (signed) "Robert Bebbington" Robert Bebbington May 26, 2017 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 2. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit P-2, Appellant's Record, pp.12-20. 4 Ibid, pp.21-22. 5 Ibid, pp.23-26. 6 Ibid, pp.27-30. 7 Ibid, pp.31-33. 8 Ibid, pp. 34-36. 9 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 10 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 11 Raza, 2007 FCA 385. 12 Raza, 2007 FCA 385, para. 13.3(a). 13 Raza, 2007 FCA 385, para. 16. 14 Raza, 2007 FCA 385, para. 13.5(b). 15 Raza, 2007 FCA 385, para. 13.5(a). 16 Raza, 2007 FCA 385, para. 13.3(b). 17 Raza, 2007 FCA 385, para. 13.5(a). 18 Raza, 2007 FCA 385. 19 Exhibit P-2, Appellant's Record, pp. 21-26 20 ExhibitP-2, Appellant's Record, pp.12-20. 21 Exhibit P-2, Appellant's Record, pp.12-20. 22 Czesak, Maria v. M.C.I. (F.C., no. IMM-9539-12), Annis, November 4, 2013, 2013 FC 1149. 23 Exhibit P-2, Appellant's Record, pp.27-30, 31-33, 34-36. 24 Exhibit P-2, Appellant's Record, p. 53, para 46. 25 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Ethiopia (17 July 2015) Item 2.1, Ethiopia. Country Reports on Human Rights Practices for 2014. 26 Exhibit RPD-1, RPD Record, pp.272-273. 27 Exhibit P-3, at p.2. 28 Exhibit P-3, pp.1,3-6. 29 Exhibit P-4, pp.1-5. 30 Ibid pp.3-4. 31 Adar, Mohamoud Omar v. M.C.I. (F.C.T.D., no IMM-3623-96), Cullen, May 26, 1997. 32 Uddin, Nizam v. M.C.I. (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002. 33 Mohanarajan, Sriahilandtharanathan v. M.C.I. (F.C.T.D., no. IMM-5482-00), Simpson, November 6, 2000. 34 Uddin, Nizam v. M.C.I. (F.C.T.D., no. IMM-895-01), Gibson, April 26, 2002. 35 Gochez, Julio Cesar v. M.C.I. (F.C.T.D., no. IMM-3545-99), Dubé, September 7, 2000. 36 Shahamati, Hasan v. M.E.I. (F.C.A., no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994. 37 Exhibit RPD-1, RPD Record, pp. 279-280. 38 Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 16, 1998. 39 Exhibit RPD-1, RPD Record, pp.352-371. 40 Exhibit RPD-1, RPD Record, at p. 339, Exhibit 6, Response to Information Request: [ETH14712] July 23, 1993. 41 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Ethiopia (17 July 2015). 42 Urur, Mohamed Ahmed v. M.E.I. (F.C.A., no. A-228-87), Pratte, Joyal, Walsh, January 15, 1988; Chen, Kang v. S.G.C. (F.C.T.D., no. A-1176-91), Gibson, August 6, 1993; Ali, Ismail Farah v. M.E.I. (F.C.T.D., no. A-1095-92), Noël, November 2, 1993; Vasuthevan, Nagamany v. M.E.I. (F.C.T.D., no. IMM-887-93), Jerome, March 23, 1994; Cai, Heng Ye v. M.C.I. (F.C.T.D., no. IMM-1088-96), Teitelbaum, May 16, 1997. 43 In Vafaei, Farah Angiz v. M.E.I. (F.C.T.D., no. IMM-1276-93), Nadon, February 2, 1994, the Court referred specifically to paragraph 96 of the UNHCR Handbook. See also André, Marie-Kettelie v. M.E.I. (F.C.T.D., no. A-1444-92), Dubé, October 24, 1994 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-14290