TB9-12008

RAD File / Dossier de la SAR : TB9-12008 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision September 18, 2020 Date de la décision Panel Daniel Tucci Tribunal Counsel for the person who is the subject of the appeal Paul Dineen Barrister and Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister R. Lonardi Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Minister of Public Safety and Emergency Preparedness (Minister) appeals a decision from the Refugee Protection Division (RPD) accepting the claim of XXXX XXXX XXXX (respondent). The Minister requests that the Refugee Appeal Division (RAD) set aside the decision from the RPD and refer the matter back for reconsideration pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA).1 DETERMINATION OF THE APPEAL [2] Pursuant to section 111(1)(a) of the IRPA,2 the panel confirms the determination of the RPD. BACKGROUND [3] The respondent is a citizen of Somalia. He was targeted by Al-Shabaab in March 2018. He was initially threatened by a member of Al-Shabaab because of his work with the Somali government. He had been threatened several times in the past because of his employment with Non-Governmental Organizations. On March 8, 2018, a member of Al-Shabaab threatened him with death. While traveling in a vehicle with a friend on March 11, 2018, they were fired upon. The respondent's friend was seriously wounded. The respondent was able to flee the scene. Fearing for his safety, he decided to leave Somalia. [4] The respondent traveled to Kenya where he was able to obtain a US Visa. He then traveled to the US. He remained there for a short period of time until traveling to Canada where he made a refugee claim. The respondent's refugee claim was accepted by the RPD. The Minister filed an appeal of that decision to the RAD. The Minister has submitted new evidence that was obtained after the respondent was deemed to be a Convention3 refugee by the RPD. The Minister argues that the new evidence impugns the respondent's credibility, his nationality as a citizen of Somalia and the risk he faces in Somalia. ISSUES [5] The main issue in this appeal is whether the new evidence presented by the Minister is sufficient to impugn the credibility and the nationality of the respondent as well as the risk he faces in Somalia. NEW EVIDENCE AND ORAL HEARING [6] The Minister has submitted a number of documents in support of this appeal. The panel has accepted the documents into evidence and considered them in coming to this decision. The Minister is also asking for the panel to convene a hearing as the evidence raises issues with respect to the respondent's credibility. The respondent's counsel provided an affidavit from the respondent as well as a memorandum of argument. [7] The panel does not need to conduct an oral hearing in this matter. The panel finds that the Minister has not established that the new evidence raises a serious issue with respect to the respondent's credibility. The panel finds that the evidence presented by the Minister is not central to the decision on the refugee claim, and finally, the panel finds that the evidence does not justify rejecting the refugee claim. SCOPE OF RAD APPEAL [8] When reviewing the RPD decision, the panel is required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. The panel may defer to the RPD's credibility assessment of oral testimony, if the panel finds that the RPD had a meaningful advantage in the circumstances. Reasons will be provided in the panel's analysis if the panel finds that the RPD had a meaningful advantage. ANALYSIS OF THE MERITS OF THE APPEAL [9] The Minister has filed a number of documents in support of the appeal. The evidence presented by the Minister includes information from the Ministry of Transportation for the Province of Ontario. The respondent applied for an Ontario driver's licence. In his application, the respondent indicated that he had five years of experience driving a vehicle in Kenya. He also provided an attestation from the Kenyan authorities. The attestation confirmed that the respondent was issued a Kenyan driver's licence in November 2012. This information was obtained by the Minister after the respondent was found to be a Convention refugee by the RPD. [10] The Minister argues that the Ministry document and the Kenyan attestation impugns the credibility of the respondent. The Minister also argues that the documents raise doubts as to the citizenship of the respondent as a citizen of Somalia and that it suggests that the respondent may have some form of legal status in Kenya. The Minister also argues that the documents raise doubts that the respondent may not have been in Somalia at the time that he was threatened and targeted by Al-Shabaab. [11] The Minister argues that the respondent's application for a driver's licence occurred some nine months before his refugee hearing. The Minister suggests that the respondent deliberately omitted submitting these documents to the RPD because they were detrimental to his refugee claim. The Minister is also asking that the panel draw a negative inference with respect to the respondent's credibility because he failed to disclose these documents to the RPD. [12] The respondent provided an affidavit in response to the Minister's documents and arguments. The respondent stated that he was in possession of the Kenyan document when he arrived in Canada but the Canadian Border Service Agency (CBSA) officer did not seize the document. He further stated that he provided the documents to his counsel who represented him at the RPD and he does not know why they were not disclosed for his hearing. The panel accepts the respondent's explanation. The panel accepts that he tendered the documents to his RPD counsel. In any event, the panel finds that the documents provided by the Minister for this appeal are not central to his claim. [13] The respondent provided a significant number of documents to establish his identity. In many Somali claims, the claimants often have little or no documents to establish their identity. This is not the case with the respondent. The panel has reviewed all the documents submitted by the respondent at the RPD. The documents he submitted include two passports from Somalia. One is a regular passport while the second is a diplomatic passport. The respondent also submitted a school identity card from the university in Kenya where he XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The respondent also submitted an article and photos of him with Somali government officials. He also provided documents showing his employment in Somalia. [14] The documents presented by the Minister establish that the respondent was issued a driver's licence in Kenya in November 2012. The document does not identify the citizenship of the respondent. The respondent provided an explanation of why he obtained a driver's licence. He explained that his work required him to travel regularly to Kenya and he thought it would be a good idea to obtain a licence as he had a friend who would lend him his vehicle when needed. The panel finds the explanation provided by the respondent to be reasonable. The panel finds that the respondent has provided sufficient credible and trustworthy to establish his personal identity as well as establishing that he is a citizen of Somalia. [15] The Minister finds that the evidence presented by the Minister is insufficient to impugn the respondent's credibility or his evidence establishing that he is a citizen of Somalia. The Minister argues that the Kenyan driver's licence could indicate that the respondent has some form of legal status in Kenya. The panel finds this to be speculative based on the Minister's evidence. The panel has not been presented with sufficient evidence to establish, on a balance of probabilities, that the respondent has any form of legal status in Kenya. [16] The Minister also argues that the Kenyan driver's licence raises doubts about the risk faced by the respondent in Somalia. In particular, the Minister suggests that the existence of the Kenyan licence raises some doubt that the respondent was in Somalia in March 2018. The panel disagrees. The Minister's evidence establishes that the respondent was issued a Kenyan driver's licence in 2012. The evidence from the Minister does not place the respondent in Kenya in March 2012. As stated previously, the panel finds that the respondent was a credible witness. The panel accepts that he was targeted by Al-Shabaab in March 2018, and that he fled the country shortly thereafter. The Minister suggested that the respondent may have lied to the provincial authorities about his driving experience. The Minister's suggestion goes beyond the scope and jurisdiction of this panel. [17] The panel therefore finds that the respondent has not provided sufficient credible evidence to impugn the credibility of the respondent. The panel further finds that the Minister's evidence is insufficient to impugn the respondent's evidence about his identity, his nationality as a citizen of Somalia as well as the evidence he presented to establish that he was targeted by Al-Shabaab in Somalia in March 2018. The panel finds that the respondent has established his claim under section 96 of the IRPA.4 REMEDIES [18] For all these reasons, the panel confirms the determination of the RPD and finds that the respondent is a Convention refugee under section 96 of the IRPA. (signed) Daniel Tucci Daniel Tucci September 18, 2020 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 111(1)(c). 2 IRPA, section 111(1)(a). 3 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 4 IRPA, section 96. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-12008 RAD.25.02 (January, 2020) Disponible en français 2 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.25.02 (January, 2020) Disponible en français