TB4-04855

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 : TB4-04855 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 September 10, 2014 Date de la décision Panel Daniel McSweeney 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 and Decision [1] XXXX XXXX XXXX (the Appellant), a citizen of Ethiopia, has appealed a negative determination of the Refugee Protection Division (RPD) issued on May 6, 2014. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection. BACKGROUND [3] The Appellant owned a XXXX close to XXXX XXXX University. On XXXX XXXX, 2012, the Appellant was asked to report to the Central Investigation Department the next day. The Appellant was informed that there were subversive elements within the university who were anti-government and who posed a threat to the country. The police wanted the Appellant to give them information on any suspicious students who came to XXXX XXXX. The Appellant refused. The police threatened to close down the XXXX if the Appellant did not cooperate with them. The Appellant was given 15 days to reconsider the offer. [4] On XXXX XXXX, 2012, four members of the security forces came to the Appellant's home, pushed her to the floor, slapped her children, and threatened to shoot everyone. They accused the Appellant of being an enemy of the people and in organizing the youth to revolt against the government. The Appellant was accused of contributing money to plot against the government and in feeding and hiding students who were wanted by the security forces. The Appellant was taken to the police station where she was interrogated and tortured. [5] The Appellant was accused with contributing money to Andinet (Unity for Democracy and Justice - UDJ), an opposition party, and for using her XXXX for meetings and writing leaflets against the government. The Appellant denied any involvement and was threatened with death and physically tortured. The Appellant was detained for over three months and was released on bail on XXXX XXXX, 2012. The Appellant's cousin paid bail. The release conditions included: reporting to the police station every week, severing all contact with Andinet, and not leaving the city without permission. The Appellant was treated in hospital. The Appellant alleges that she was called twice for questioning and police continued to harass and threaten her. [6] The Appellant left Ethiopia on XXXX XXXX, 2013. The Appellant made her claim for refugee protection on September 23, 2013. [7] The Appellant had a refugee determination hearing on November 28, 2013 and written Reasons were issued on May 6, 2014. In its decision, the RPD decided the claim on the issues of credibility. The RPD made the following findings: 1. The RPD found the Appellant's allegations that she was suspected of using her XXXX as a meeting place for the UDJ was not credible given that her business license was renewed for 2012-2013, which was not consistent with the documentary evidence which states that the government awards business contracts to those loyal to the party. 2. The RPD found the Appellant's explanation for why she delayed leaving Ethiopia for over one year, despite having valid US and Canadian visas and her unreasonable explanations for the delay, undermined the credibility of her allegations. 3. The RPD found that the Appellant's allegation that she used an agent to assist her to leave Ethiopia through the airport was not credible. 4. The RPD drew a negative inference in regard to the Appellant's credibility as she was evasive and inconsistent regarding the RPD's concerns with the failure of the letter from the police station to indicate the address of the office she was supposed to report to. 5. The RPD found the police letter regarding the Appellant's detention and release not to be credible given that it indicated that the Appellant was detained for her involvement with illegal political activities given that the documentary evidence indicates that the government uses the terrorism law to arrest and charge political opponents. 6. The RPD assigned little weight to the medical letter, as the Appellant's allegations were found to be lacking in credibility. [8] Appeal pleadings were received on June 13, 2014. In the appeal, counsel argued that the RPD erred in fact as follows: 1. The RPD erred in fact in its finding that the Appellant's allegations were not credible given that her business license had been renewed as this finding was based on sheer speculation and is an unreasonable inference. 2. The RPD erred in fact by regarding the Appellant's delay in departure by failing to consider the Appellant's situation of being kept under surveillance, her weekly reporting condition, and her reluctance to leave her family and country. 3. The RPD erred in fact by finding the Appellant's testimony of her departure from XXXX XXXX airport to be implausible given that it was based on sheer speculation. 4. The RPD erred in fact in its implausibility finding that the Appellant would simply approach an immigration officer not knowing whether or not they would intercept her. 5. The RPD erred in its findings related to the letters from the police as they were based on speculation. [9] The Appellant provided a Response to Information Request1 (RIR) for consideration as new evidence. This RIR deals with exit controls at Bole International Airport in Addis Ababa. 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 circumstance to have presented, at the time of the rejection. The RIR was evidence produced by the IRB on January 2, 2014, after the hearing on November 28, 2013 but before the Reasons were issued on May 6, 2014. The RAD noted that there was a significant time between the hearing and the issuance of the reason (five months) which was not consistent with the intention of the RPD to provide decisions as quickly as possible. The RAD finds that counsel could not have predicted that the Reasons would have been issued as late as May of 2014, and therefore the RAD finds that the Appellant could not have reasonably been expected to provide the RPD with the RIR before the rejection. The Appellant did not request a hearing with respect to this new evidence. [10] The Appellant requests that the RAD set aside the determination and refer the matter back to the RPD for redetermination. ANALYTICAL APPROACH [11] The RAD focused on one issue in assessing this appeal: Were the Appellant's allegations credible? [12] In the pleadings, counsel argued that the appropriate standard of review for findings of fact and mixed fact and law is "correctness" given that the RAD has the power to set aside RPD findings which counsel argued were analogous to the Viera2 decision, which deals with appeals before the Immigration Appeal Division. Counsel also provided additional submissions3 in which it argued that the RAD is required to perform its own assessment of all the evidence and not simply determine whether the findings of the RPD are reasonable. Appeal counsel provided submissions4 dated August 14, 2014 indicating that the RAD is required to perform its own assessment of all of the evidence and not simply determine whether the findings of the RPD are reasonable. [13] In assessing the appeal, the RAD is guided by the recent Huruglica5 decision which outlines the approach that the RAD should take as an appellate body in reviewing the first-level decisions of the RPD. In this decision, Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects 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. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD's determination that, in its opinion, should have been made, as per s. 111(b) of IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise to the RPD in the interpretation of country condition evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. ANALYSIS OF THE MERITS OF THE APPEAL [14] As outlined above, the RAD focused on one issue in assessing this appeal: Were the Appellant's allegations credible? [15] The RPD made several negative credibility findings regarding the Appellant's allegations and found that the Appellant's allegations were not credible. Counsel argued that the RPD's findings were drawn in error, as they were based on speculation or were not supported by the evidence. [16] The RAD finds that the Appellant's claim turns on the credibility of her allegations that she was: identified by police as an informant, detained and tortured for failing to cooperate with the police, suffered ongoing harassment by police, and was requested to return to the police on XXXX XXXX, 2013. The RAD considered the totality of the evidence, including a review of the recording of the hearing. Bail/Release Document [17] The Appellant provided a Bail/Release document.6 The RPD found that this document was not credible given that it indicated that the Appellant was detained for her involvement with illegal political activities given that the documentary evidence indicates that the government uses the terrorism law to arrest and charge political opponents. Counsel argued that the RPD erred in its findings related to the letters from the police, as they were based on speculation as the RPD did not have evidence about the practices of the police or what their letters ordinarily contain. [18] The RPD supported its negative findings regarding the Bail/Release document on the fact that it indicated that the Appellant had been detained due to her involvement in illegal political activities, and it was addressed: "To Whom It May Concern". The RPD also found that the documentary evidence indicated that government officials use the counter-terrorism law to arrest political opponents7 to avoid a conflict which allows for freedom of association, assembly, movement and expression.8 [19] The RAD concurs with the RPD that the Bail/Release document was not credible; the document did not conform to the evidence in the documentary package regarding the use of Ethiopia's anti-terrorism laws. [20] The RAD considered the remaining evidence on the record regarding the Appellant's release from detention. The document indicates that the Appellant was released on 10,000 birr bail and ordered to appear when the police inform her to appear. The RAD noted that the letter contains only one bail condition (order to appear). This does not conform to the Appellant's BoC narrative which indicated additional bail conditions: weekly reporting to the police, severance of all contact with youth movements and with Andinet, and a bar on leaving the city without permission. The Appellant was asked twice by the RPD to explain her bail conditions, and she did not mention that she was required to report to police on a weekly basis, and that she was barred from leaving the country. The inconsistency between the bail conditions in the BoC narrative, the Bail/Release document, and the Appellant's oral testimony was significant. For example, if the Appellant had reported to the police weekly between her release on XXXX XXXX, 2012 and her departure on XXXX XXXX, 2013 (XXXX months), this would mean that she would have had to report approximately XXXX times. The fact that the Appellant did not make reference to having to report XXXX times during her oral testimony when she was asked about her bail conditions undermined the credibility of the alleged conditions amounted to a significant omission in her oral testimony. The RAD finds that these omissions further support the finding that the Appellant's allegation of detention was not credible. Call-Up Letter [21] The RPD drew a negative inference in regard to the Appellant's credibility, as she was evasive and inconsistent regarding the RPD's concerns with the failure of the letter from the police station to indicate the address of the office she was supposed to report to. Counsel argued that the RPD erred in its findings related to the letters from the police, as they were based on speculation. [22] The call-up letter9 was issued on XXXX XXXX, 2013 and orders the Appellant to appear at: "The Federal Police Office at XXXX XXXX XXXX XXXX on XXXX XXXX, 2013 at XXXX XXXX XXXX a.m.". The RPD noted that the letter does not provide an address where the Appellant was to report. The RAD considered the two portions of the recording regarding the call-up letter. The Appellant testified that the letter indicated that she should report to XXXX police station. When read the portion of the letter in question, the Appellant changed her response and provided evasive responses as to how she knew which office to report to. The RAD finds that the RPD's negative inference regarding the letter and the Appellant's testimony regarding the letter was supported by the recording. The Appellant did change her testimony that the letter indicated that she should report to XXXX. The Appellant was unable to explain why she believed that the Federal Police Office at XXXX XXXX XXXX XXXX was the same as XXXX. No evidence was presented by counsel after the hearing or along with the pleadings to confirm that the Federal Police Office was the same as XXXX. The documentary evidence indicates that there are six federal and 120 regional prisons in Ethiopia.10 The document did not indicate that the Appellant had to report to XXXX. The RAD also noted that the document was copied to the Federal Police Commission, which was curious as it was a document produced by the Federal Police Commission. It was also copied to the XXXX XXXX Police Commission, which seems to indicate that there are several different police authorities in Ethiopia. The RAD also noted that, if the Appellant had regularly attended weekly reporting sessions as she alleged in her BoC, there would be no need to send her a call-up letter, as the police could simply detain her when she reported. It is beyond understanding that a police force who tortured a prisoner and kept her detained for three months, and who had weekly reporting sessions and who allegedly surveilled and followed the Appellant, would provide her with advance notice of an appointment for "questioning", as this would give the Appellant an opportunity to go into hiding. [23] Given the multiple police authorities and prisons in Ethiopia, given the lack of specificity in the letter which would confirm that the Appellant was supposed to report to XXXX prison, and given the Appellant's evasive responses to the RPD's questioning related to the letter, the RAD finds that the allegations that the Appellant had been arrested and tortured and was requested to report back by authorities were not credible. Subjective Fear [24] The RAD considered the evidence on the record regarding the Appellant's support for Andinet. The RPD addressed this issue on the record but did not make reference to it in the Reasons. The Appellant testified that she was a supporter of the opposition but not a member. The Appellant testified that she donated twice to Andinet in 2004 and 2005 (Ethiopian Calendar). The Appellant provided receipts11 which, when translated, indicated that the Appellant made two donations to Andinet: XXXX XXXX, 2012 and XXXX XXXX, 2013. In questioning, the RPD asked the Appellant to explain why she made donations. The Appellant responded that the people had asked her for contributions, and they explained that they were working for democracy in the country and that she decided to support them. The Appellant made the donations at XXXX XXXX. When asked if she was concerned that making the donations would raise the attention of the police, the Appellant responded: "yes, since I was really...I was really tortured, and I really felt it, and I thought that when these people running for democracy, and I want to contribute what I could". The RPD clarified the question again, and the Appellant testified: "well, I didn't fear because once I am in their attention there wouldn't be anything worse and that was also confidential; the contribution was confidential". [25] The Appellant testified that she was being surveilled and followed by the police and that the police made regular visits to her XXXX. Her BoC narrative indicated: "The authorities continued to harass and threaten me. Security officers came to XXXX XXXX to threaten and intimidate me. I was afraid all the time, and I was afraid I would be detained again". The Appellant testified that she had been threatened with death, and she experienced torture while in detention which left her the inability to smell. The Appellant indicated that her release conditions included the fact that she could be recalled at any time by the police. The RAD noted that, with respect to credibility, the real test of the truth of a story of a witness must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those circumstances.12 It is not sufficient simply to indicate that a claimant's story is implausible without explaining further the reasoning behind that finding.13 Adverse findings of credibility must be based on reasonably drawn inferences and not conjecture or mere speculation,14 and there must be evidence to support the inferences.15 [26] The RAD finds that it is inconceivable that someone who had no political conviction, whose activities at the XXXX were being monitored by police, who was under regular surveillance and being followed by police, who suffered torture and three-months detention, and who was subject to being recalled by police would risk being tortured again by police to make two separate donations to Andinet-a party which she passively supported-given the risks that she would have faced if she were found to support the opposition. In addition, it is inconceivable that the Appellant would retain two tax receipts from the UDJ party attesting to her donation, as these receipts would be evidence of her support for the opposition. [27] The Appellant's behaviour (donating to an opposition party while at her place of work, which was regularly visited by police, and keeping donation receipts) was not consistent with the behaviour of someone who had been detained and tortured, and who alleged to be in fear of re-arrest all the time. It is more likely than not that the Appellant made the donations to the party to bolster her claim. Delay in Departure [28] The RPD found the Appellant's explanation for why she delayed leaving Ethiopia for over one year, despite having valid US and Canadian visas, and her unreasonable explanations for the delay, undermined the credibility of her allegations. Counsel argued that the RPD erred in fact by regarding the Appellant's delay in departure, by failing to consider the Appellant's situation of being kept under surveillance, her weekly reporting condition, and her reluctance to leave her family and country. The RAD noted that the failure to flee one's country of origin at the first opportunity after the occurrence of a persecutory nature can negate a claimant's fear in the absence of a reasonable explanation, as per Rosales.16 [29] The Appellant was in possession of a valid US visa at the time she was released from detention in XXXX of 2012. When asked why she did not leave soon after her detention, the Appellant testified that she had to make arrangements for her children. Later, she testified that she needed to save some money. This was not consistent with the Appellant's behavior of donating to a political party. The RPD found that the arrangements that the Appellant made for her children were minimal as the children remain on their own in her home. As such, the RPD rejected the Appellant's explanation that she did not have support for her children. The RPD also found that the Appellant's explanation that she needed to save money was not reasonable given that she spent money on a Canadian visa, which she did not require to travel to safety, given her valid US visa. The RAD also notes that, at the time that her Canadian visa application was submitted on XXXX XXXX, 2013,17 the Appellant demonstrated that she had $7,000 CAD available to her. The Appellant did not provide evidence regarding her financial situation; however, the record indicates that she had a XXXX and a home which she could have sold in order to finance her flight out of Ethiopia and her children. At the time of the hearing, the Appellant did not indicate that her home or her business had been sold (the business was closed). [30] Given that the Appellant alleged extensive torture and ongoing threats and surveillance by police, given that the Appellant had money in her possession before XXXX of 2013, given that she did not testify that she made efforts to dispose of assets in order to flee and she has retained her home, given that the Appellant made minimal arrangements for her children, the RAD finds that the delay undermined the Appellant's subjective fear and the credibility of her allegations of torture. Medical Document [31] The RPD assigned little weight to the medical letter, as the Appellant's allegations were found to be lacking in credibility. The pleadings did not address this finding. The RAD noted that the Appellant was asked about this document at the hearing. The RPD noted that the letter was not issued by a doctor but by the Administration and Finance Department. The letter was issued on XXXX XXXX, 2012, XXXX months before the Appellant testified that she decided to leave Ethiopia. The RPD asked the Appellant to explain why she obtained the document, and the Appellant indicated that she obtained it for evidence of her torture. The RAD noted that the letter does not make reference to the fact that the condition that the Appellant had was the result of torture, or even an assault. The document indicates that the Appellant had harm to her respiratory organ, vomiting and body aches since XXXX XXXX, 2012. The Appellant's BoC narrative indicated that her back was whipped; her throat was injured; her toes were beaten. The letter does not address these injuries which would support the claim that the Appellant was tortured, or physically assaulted. [32] The RAD notes that the RPD may also reject corroborating documents where the preponderance of the evidence before it does not support a claimant's credibility, as per Trako.18 Given that the Appellant's allegations of being detained and tortured were found not to be credible, given the document did not mention that the Appellant had been assaulted or suffered any injuries that were consistent with torture, the RAD finds that the letter had little probative value in support of the Appellant's allegations. Exit from Ethiopia [33] The RPD found that the Appellant's allegation that she used an agent to assist her to leave Ethiopia through the airport was not credible. Counsel argued that the RPD erred in fact by finding the Appellant's testimony of her departure from XXXX XXXX Airport to be implausible given that it was based on sheer speculation. In addition, the RPD erred in fact in its implausibility finding that the Appellant would simply approach an immigration officer not knowing whether or not they would intercept her. [34] Upon review of the evidence, the RAD finds that the negative inferences regarding the Appellant's lack of knowledge of arrangements made for her to exit the country, and her testimony that there were only two immigration officers at the checkpoint were not adequately supported by the RPD; however, these inferences were not determinative of the claim, and the RPD's overall determination that the Appellant's allegation that she used an agent to leave Ethiopia was not credible was supported by the record. [35] The RAD finds that there was additional evidence on the record to undermine the Appellant's allegations that she used an agent to avoid detection by Ethiopian officials. The RAD noted that the Appellant did not mention in her BoC narrative that she was assisted by a relative to find a smuggler and that the smuggler arranged her exit through the airport. The Appellant did not indicate in response to Question 7 in her IMM-000819 that anyone had facilitated her journey to Canada. The Appellant was represented by experienced counsel at the time that she submitted her claim documents, as well as when she submitted her BoC narrative. The Appellant alleged that she feared government authorities and that she fled shortly before she was required to report to government authorities. The Appellant's passport20 has an exit stamp from Ethiopia dated XXXX XXXX, 2013. Given that the Appellant's claim documents do not mention that she used an agent to exit the country, given that the Appellant had the opportunity to indicate this in both her claim documents and her BoC, given that the Appellant was represented by experienced counsel, given that the RIR indicates that low-level opposition members who wish to leave the country travel first to Kenya by bus or other means of ground transportation to avoid being apprehended at the airport,21 the RAD finds that the Appellant's oral testimony regarding her use of an agent to get through XXXX XXXX Airport was an embellishment and was made to explain how she was able to leave her country without being detected. The fact that the Appellant was able to leave Ethiopia with an exit stamp on her passport, using Ethiopia's national airline, undermined the Appellant's allegations that she was labelled a threat to Ethiopia. Additional Documents [36] The RPD's Decision did not make mention of the handwritten letter from the Appellant's daughter.22The RAD considered this evidence in support of the Appellant's allegations and claim. There are several concerns with the document. Firstly, the letter was not dated. No evidence was presented to establish the existence of the writer such as an identity card, a school identity card etc. The wording and content of the letter was contrived. It ends with "I love you, my dear mother XXXX XXXX!" and then, "Your daughter XXXX XXXX". The use of the full names in the letter is not indicative of a mother/daughter relationship. The letter does not indicate who continues to come to ask about the Appellant. The letter seems to explain why documents are not available". The letter does not make reference to the well-being of the other children. [37] Given the concerns identified in the letter and given that the Appellant's allegations of being detained and tortured were found not to be credible, the RAD finds that the letter had little probative value. Summary [38] The RAD finds that, based on the totality of the evidence before it, the Appellant's allegations of being detained and tortured by authorities in Ethiopia were not credible based on concerns with the Appellant's oral testimony, concerns with the documents provided in support of the allegations, the Appellant's significant delay in departure, and a lack of subjective fear. DISPOSITION [39] Based on a review of the totality of the evidence, the RAD confirms the RPD's determination that the Appellant is neither a Convention refugee nor is she a person in need of protection, as per s. 111(1)(a) of IRPA. [40] The appeal is dismissed. (signed) "Daniel McSweeney" Daniel McSweeney September 10, 2014 Date 1 Appeal Pleadings, p. 12, Response to Information Request (RIR), ETH104707.E, 2 January 2014. 2 Castellon Viera, Ronald Antonio v. M.C.I. (F.C., no. IMM-9279-11), Crampton, September 18, 2012; 2012 FC 1086. 3 Exhibit P-3, Submissions dated August 14, 2014. 4 Exhibit P-3, Counsel's Submissions dated August 14, 2013. 5 Huruglica, Bijar et. al. v. M.C.I. (F.C. no., IMM-6362-12), Phelan, August 22, 2014, 2014 FC 799. 6 RPD's Record, pp. 97-98, Exhibit 5, Bail/Release document, dated May 30, 2012. 7 RPD's Record, National Documentation Package (NDP) for Ethiopia (3 May 2013), Items 2.1, 4.6 and 4.9. 8 RPD's Record, NDP for Ethiopia (3 May 2013), Item 4.9. 9 RPD's Record, pp. 99-100, Exhibit 5, Call-Up Letter dated XXXX XX, 2013. 10 RPD's Record, Exhibit 2, NDP for Ethiopia (3 May 2013), Item 2.1. 11 RPD's Record, pp. 107-108, Exhibit 5, Receipts. 12 Faryna v. Chornoy, [1952] 2 D.L.R. 354 (B.C.C.A.), at 357, per O'Halloran J.A. 13 Arumugam, Kandasamy v. M.E.I. (F.C.T.D., no. IMM-1406-93), Reed, January 20, 1994. 14 Kong, Win Kee v. M.E.I. (F.C.T.D., no. IMM-471-93), Reed, January 27, 1994; (1994), 23 Imm. L.R. (2d) 179 (F.C.T.D.). 15 Miral, Stefnie Dinisha v. M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 16 Rosales, Carlos Guillermo Cabrera v. M.E.I. (F.C.T.D., no. A-750-92), Rothstein, November 26, 1993; (1993), 23 Imm. L.R. (2d) 100 (F.C.T.D.). 17 RPD's Record, p. 66, Exhibit 3, GCMS Information Request Document. 18 Trako, Klodjan v. M.C.I. (F.C., no. IMM-1613-11), Crampton, September 8, 2011; 2011 FC 1063. 19 RPD's Record, p. 59, Exhibit 3, IMM-0008. 20 RPD's Record, p. 28, Appellant's Passport. 21 Appeal Pleadings, p. 12, RIR ETH104707.E, 2 January 2014. 22 RPD's Record, pp. 104-105, Exhibit 5, Letter from XXXX XXXX. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-04855