TB7-02698

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 : TB7-02698 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 Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 26, 2017 Date de la décision Panel Anthony Da Silva Tribunal Counsel for the person(s) who is(are)the subject of the appeal Faraz Bawa 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 Pete Stathakos Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The Minister (the Appellant) appealed a decision of the Refugee Protection Division (RPD) issued on January 5, 2015, accepting the claim of XXXX XXXX XXXX, (the Respondent) a citizen of Somalia, for refugee protection. The Appellant asked the Refugee Appeal Division (RAD) to set aside the decision of the RPD and substitute a decision with its own determination that the Respondent is not a Convention refugee or a person in need of protection. In the alternative, the Appellant requested that the RAD refer the matter back to the RPD for redetermination. [2] In a decision of May 15, 2015, the RAD set aside the RPD decision and found that the Respondent was not a Convention refugee or a person in need of protection. [3] The Respondent sought judicial review of the RAD decision and on May 20, 2015, the Federal Court quashed the RAD decision and ordered that the matter be sent back to a different RAD panel for reconsideration. The Respondent requested an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA), but the RAD finds that a hearing is not required in order to render a decision. DETERMINATION [4] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Respondent is a Convention refugee or a person in need of protection. This appeal is dismissed. BACKGROUND [5] The Respondent alleged that in May 2014 she was beaten and left for dead by Al-Shabaab, who also killed her son and daughter. In June 2014, she moved to Addis Ababa in Ethiopia and remained there until XXXX 2014 when she travelled to Canada via the United States (US) with the assistance of a smuggler. ROLE OF THE RAD [6] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica1 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law. Justice Gauthier found that in Huruglica, where the credibility of the oral evidence before the RPD was not a determinative issue, a standard of correctness should be applied by the RAD when assessing RPD findings of fact or of mixed fact and law. [7] In light of the Court's ruling, when conducting an appeal of a determination by the RPD, the RAD will carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Where the credibility of the oral evidence before the RPD was not a determinative issue, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of the oral evidence before the RPD was a determinative issue, the RAD will defer to certain findings of the RPD where the RPD enjoyed an advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with an analysis of the record as a whole. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [8] 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. [9] It is for the person who is the subject of the appeal to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of Section 110(4). [10] The Respondent has submitted the following new evidence: 1) A statutory declaration from XXXX XXXX (November 16, 2016)2 2) Correspondence from the Minister regarding the Respondent's removal3 3) Updated country condition documents on Somalia4 [11] The RAD has considered the Respondent's new evidence. The new evidence post-dates both the RPD decision as well as the RAD decision and was not reasonably available prior to the decisions. The RAD finds the new evidence to be credible and relevant, and therefore also finds it to be admissible under Section 110(4). ANALYSIS Summary of Previous Findings and Decisions [12] As indicated earlier, the Respondent was found to be a Convention refugee by the RPD. While the RPD had several concerns regarding the Respondent's identity and credibility, it found that there was sufficient evidence, namely that she is a single woman from a minority clan in Somalia, to find her to be a Convention refugee. [13] The RPD's decision was appealed by the Minister. The Minister submitted that the Respondent's identity had not been satisfactorily established, and that he had only conceded, at a pre-hearing conference, that the Respondent is an ethnic Somali female. [14] The Minister noted that despite significant credibility concerns voiced by the RPD in its oral decision, it found that the Respondent would face persecution in Somalia as a single woman and was therefore a Convention refugee. The Minister submitted that there was insufficient credible or trustworthy evidence for the RPD to arrive at its finding, and appealed the decision to the RAD. [15] In its review of the Minister's appeal, the RAD concurred with the Minister in that the only element of the Respondent's identity that had been established was that she is an ethnic Somali female. The RAD concluded that that element was insufficient to establish her name or country of origin. It found that the Respondent had failed to provide acceptable credible documentation to establish her identity nor had she provided a reasonable credible explanation as to why she had not presented the required documentation to support her identity. In light of the Respondent's failure to satisfactorily establish her identity, the RAD set aside the RPD decision and allowed the appeal. [16] As noted, the Respondent appealed the RAD decision to the Federal Court which subsequently quashed the RAD decision and ordered that her appeal be re-determined by a different RAD panel. The RAD notes, however, that no direction was provided to the RAD. The Current Appeal [17] The RAD has considered the various findings and decisions leading to the current appeal before the RAD. In arriving at its decision, the RAD has focused on what it considers to be the key elements and evidence in this claim: 1) the Respondent's birth certificate; 2) the statutory declaration of XXXX XXXX; 3) the letter from the Minister (January 12, 2016); 4) well-founded fear of persecution. The Respondent's birth certificate [18] As previously noted, the RPD gave the Respondent's birth certificate no weight. It found that her account of how she had obtained the copy of her birth certificate confusing and improbable. Further, the RPD accepted the Minister's submission that the birth certificate was obtained without the Respondent's knowledge, by people from her community who were trying to help her with her refugee claim. [19] The RAD, in its Reasons and Decision of May 15, 20155 also had concerns with Ms. XXXX birth certificate and assigned little or no weight to the document. It based its finding on the following factors: the contradictory explanation given in her interview with CBSA as to how the document was obtained, the different spelling of her name in the document, the unsatisfactory explanation as to why an original was not available, and the unlikelihood that a former neighbour in Somalia had obtained it for her. [20] In this current appeal, the Respondent submits that there is a typo in the document where her name has been spelled as XXXX rather than XXXX. She submits that the Court has ruled in Sinnasamy6 that typos on a foreign document should not be fatal to a claim. She further submits that same logic should apply as to the omission of her one of her names, "XXXX'," on her birth certificate. She points out that when asked her full name at the hearing, she clearly stated, "XXXX." She notes, as well, that the Minister has recognized that in Somalia "there is not a robust government apparatus to issue identity documents."7The Respondent further submits that she is illiterate and that the document was obtained by others. [21] The RAD notes that the birth certificate and accompanying letter from the government of Somalia8 are the only documentation in support of the Respondent's identity. While it concurs that minor "typo" errors should not be fatal to a claim, it gives no evidentiary weight to the Respondent's birth certificate or the accompanying letter from the Somali government. The RAD notes the following country documentation regarding official documents in Somalia. The Landinfo Report of 2009 states the following in regards to birth certificates: Although no Somali authorities register births or issue official birth certificates, certain certificates are issued in connection with births in hospitals. There is currently little or no possibility of verifying such certificates. In order to obtain a birth certificate, a person would have to approach the municipal administration, which in turn would create a family file and allocate a family number. The applicant would have to bring two attending witnesses from the clan/sub-clan, with good knowledge of the applicant (IRB 1994).9 [22] Further, a Request for Information Report (RIR) from 2013 indicates the following with respect to general documents from Somalia: The US Department of State's Country Reciprocity Schedule for Somalia states "there are no circumstances under which immigrant visa applicants can reasonably be expected to recover original documents held by the former Government of Somalia" due to a lack of "competent civil authority" and the destruction of most records during the civil war (n.d.).10 [23] The RAD notes that the Respondent did not obtain the birth certificate herself, but instead it was obtained by a former neighbour in Somalia. It is not entirely clear how the document was obtained or who obtained it, but given the problems with obtaining reliable documents from Somalia, the RAD finds that there is insufficient evidence that Ms. XXXX birth certificate and accompanying letter from Somali authorities are reliable documents. Indeed, Canadian authorities have determined that "any passport claiming to have been issued by Somalia is considered unreliable and is 'not acceptable' for entry into Canada."11 The decision on Somali passports by Canadian authorities is clearly because the identity documents on which the passport is based or the processes used to determine the identity of the passport holder are not reliable. [24] The RAD also notes the Respondent's comment at the December 16, 2014 CBSA interview, when asked how she obtained the copy of her birth certificate. She stated that she had contacted a woman, XXXX XXXX XXXX, and then stated: "I contacted her and she spoke to a guy who arranged to make [emphasis added] the document for me."12 Later in the interview, when asked if the birth certificate is false, the Respondent replies: "I don't read and write. I don't know what he did. Put it in the computer to see if it's the right one or the wrong one."13 [25] Given the absence of trustworthy information as to how and by whom the Respondent's birth certificate was obtained, and in light of country documentation on Somali documents, the RAD gives the copy of the Respondent's birth certificate no weight. The Statutory Declaration of XXXX XXXX [26] The Respondent has provided a statutory declaration of XXXX XXXX, a relative of the Respondent and a Canadian citizen, living in Canada. In her declaration, Ms. XXXX has indicated how she and the Respondent are related.14 Ms. XXXX credibility has not been challenged and the RAD had no basis for questioning her sworn declaration. As such, the declaration has clearly established how Ms. XXXX and the Respondent are related and established the Respondent's identity as XXXX XXXX XXXX. The declaration further establishes the Respondent's clan affiliation as a member of the Gabooye clan, a minority clan in Somalia. Correspondence from the Minister (January 12, 2016) [27] The Respondent has provided a letter15 from Brittany Gerritsen, an Inland Enforcement Officer with CBSA. The letter states that CBSA has cancelled the removal of the Respondent to Somalia, but may proceed at a future date should the Administrative Deferral of Removal (ADR) for Somalia be lifted. The Respondent submits that the letter establishes her identity since the Minister has accepted her identity as XXXX XXXX XXXX, for purposes of removal. [28] In a letter of January 20, 2017, CBSA Hearings Officer Pinto has stated: Regarding the letter from the Removals Officer it is the Minister's position that it does not establish the subject's identity either. While the subject was issued a single journey document by the Canadian government it was solely to facilitate her removal process. The letter from Officer Gerritsen relates to the scheduling of the removal and the willingness of the subject to be removed. It does not serve as an indication that CBSA is now satisfied with any documentation provided to date.16 [29] The Minister cannot have it both ways: if it accepts that the Respondent is XXXX XXXX XXXX for purposes of removal then it must accept that the Respondent is XXXX XXXX XXXX for purposes of a refugee claim. Despite its comment that it is not satisfied with any documentation provided to date, it was nonetheless willing to remove the Respondent as XXXX XXXX XXXX. The RAD therefore concurs with Respondent and finds that there is sufficient evidence that the Respondent is who she says. [30] The RAD finds that together with the statutory declaration of XXXX XXXX, the letter from CBSA satisfactorily establishes the Appellant's identity as XXXX XXXX XXXX, a single woman from the Gabooye Clan in Somalia. Well-founded fear of Persecution [31] While the RAD accepts the Respondent's personal and national identity, it must consider whether she has a well-founded fear of persecution. The RAD acknowledges that questions remain as to the Respondent's travel to Canada and the location of her family in Somalia. It finds, however, that the Minister has not provided any persuasive evidence that would contradict the finding that the Respondent is a single older woman from a minority clan. As such, the RAD finds that she faces more than a mere possibility of persecution were she to be returned to Somalia. [32] While the RAD is also not persuaded that she would be targeted by Al-Shabaab, it finds that were she to return to her home area in Mudug, there exists significant danger there for a single woman without any apparent family or clan protection.17 Her profile also precludes any internal flight alternative and state protection continues to be sporadic and inadequate.18 CONCLUSION [33] On the basis of the findings noted above and after its own assessment of all the evidence in the record, including the recording of the hearing, the RAD confirms the decision of the RPD that the Respondent is a Convention refugee pursuant to section 111(1)(a) of the IRPA. (signed) "Anthony da Silva" Anthony Da Silva April 26, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-3, Respondent's Record, Vol. 2, at pp. 455-456. 3 Exhibit P-4, Letter from CBSA. 4 Exhibit P-3, Respondent's Record, Vol. 2, at pp. 457-470, 472-566. 5 Exhibit P-5, RAD's Reasons, at paras 50-56. 6 Sinnasamy, Thavam v. M.C.I. (F.C., no. IMM-713-07), de Montigny, January 18, 2008, 2008 FC 67. 7 Exhibit M-2, Appellant's Record, at p. 33. 8 Exhibit P-1, Respondent's Record, at pp. 10-11. 9 Exhibit RPD-1, RPD's Record, exhibit 3, National Documentation Package (NDP) for Somalia (March 14, 2014), item 3.2. 10 Exhibit RPD-1, RPD's Record, exhibit 3, NDP for Somalia (March 14, 2014), item 3.4. 11 Ibid. 12 Exhibit P-2, Respondent's Record, Vol. 1, at p. 98, para. 26. 13 Ibid., at p. 99, para. 29. 14 Exhibit P-3, Respondent's Record, Vol. 2, at p. 455, para. 7. 15 Exhibit P-4, Letter from CBSA, at p.6. 16 Exhibit M-3, Letter from CBSA Officer Pinto. 17 Exhibit RPD-1, RPD's Record, at pp. 136-170, 402-414. 18 Exhibit RPD-1, RPD's Record, at pp. 348-401, 415-452. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-02698