VB9-02301

RAD File / Dossier de la SAR : VB9-02301 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision June 15, 2020 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the persons who are the subject of the appeal Me Lina Anani Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

INTRODUCTION [1] XXXX XXXX XXXX is a citizen of Djibouti. He appeals a decision of the Refugee Protection Division (RPD) rendered on February 19, 2019, denying his claim for refugee protection. [2] The Appellant claims to fear persecution in Djibouti based on his political opinion, in opposition to the regime. He submits that the RPD erred in finding that he did not establish his identity. He also argues that the RPD erred in finding his evidence lacked credibility and in reaching the conclusion that he did not establish a sur place claim. [3] After considering the evidence, I allow the appeal, finding that the Appellant is a Convention Refugee.

BACKGROUND [4] In 2009, the Appellant participated in the youth wing of the Movement for Democratic Renewal and Development (MRD), a political party which opposes the political regime in Djibouti. [5] In 2011, the Appellant moved to Malaysia where he attended University until 2015. [6] While living in Malaysia, he pledged allegiance to the MRD in 2013. Following his return to Djibouti in 2015, he was actively involved with the MRD. In 2016, he participated in anti-government demonstrations in Djibouti city for which he was arrested, detained and mistreated on at least three occasions. In XXXX 2017, an arrest warrant was issued against the Appellant. [7] As such, he fled Djibouti to the United States (US) on XXXX XXXX XXXX 2017, on a previously obtained visa. At the airport, he was detained by airport security and released upon payment of a bribe. Following his stay in the US, he made his way to Canada on XXXX XXXX XXXX 2017, and made a refugee claim. [8] The RPD rejected the claim finding that the Appellant did not establish his identity. The RPD also found that the Appellant's evidence was generally not credible on the basis that he lacked sufficient knowledge of the functioning and activities of the MRD party. Moreover, the RPD found aspects of the evidence implausible, including the Appellant's assertion that he completed high school at the age of XXXX and was hired by a Non-Governmental Organization (NGO) to assist with distributing aid. Finally, the RPD determined that the Appellant did not establish a sur place refugee claim in Canada following his active participation in events aimed at opposing the Djiboutian regime.

DETERMINATIVE ISSUE [9] The Appellant raises several issues on appeal. I consider that the determinative issues on appeal are whether the RPD erred in its assessment of the Appellant's identity and whether the RPD erred in the assessment of the sur place claim.

ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [10] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or evidence that he could not reasonably have been expected in the circumstances to have presented at the time of the rejection. If the new evidence meets the test for admissibility in ss. 110(4), then the Refugee Appeal Division (RAD) is required to further analyze the content of the document which requires an assessment of the credibility, relevance and newness of the evidence. [11] In the present case, the RPD hearing was adjourned September 25, 2018. Following the hearing, the Appellant submitted post-hearing evidence to the RPD depicting his participation in a protest in Canada against the illegal imprisonment and torture of political dissidents in Djibouti - an event which was shared on social media in solidarity with protests organized by other political activists abroad. This evidence was taken into consideration by the RPD in reaching the decision to reject the claim February 19, 2019. [12] Counsel requests to submit Item 1 as new evidence on appeal. [13] Item 1 is an extract of the Facebook page of the Force Progressiste pour le Changement, dated XXXX XXXX XXXX 2018, identifying the Appellant as one of the

participants at a demonstration held by a group protesting human rights violations in Djibouti. [14] It is submitted that Item 1 is admissible on appeal as the Appellant could not anticipate that the RPD would disbelieve the credibility of his political activities in Canada. Item 1 further establishes the Appellant's participation in demonstrations opposing the regime since he arrived in Canada. His name and photograph are posted on social media which places him at further risk from the authorities. [15] On the face of it, Item 1 pre-dates the rejection of the claim by the RPD (February 19, 2019). [16] There is no explanation as to why Item 1 was not reasonably available or could not reasonably have bee expected in the circumstances to have been presented at the time of the rejection of the claim by the RPD. This is noteworthy considering that the Appellant advanced a sur place claim in front of the RPD and even provided the RPD with other post-hearing evidence depicting his involvement in demonstrations opposing the Djibouti regime while he has been living in Canada. [17] It is well-established that it is incumbent on the Appellant to put his best foot forward at the time of the RPD hearing. The Appellant has not explained why he could not reasonably submit Item 1 prior to the rejection of the claim by the RPD. I find that Item 1 does not meet the statutory requirements for admissibility under 110(4) of IRPA.

ORAL HEARING BEFORE THE RAD [18] There is no new evidence admissible on appeal. This, in itself, means that the statutory requirements to hold a hearing before the RAD is not met and I must proceed without an oral hearing in the present case.1

SCOPE OF THE RAD APPEAL [19] The RAD reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.2 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.3 I have applied the correctness standard in the present case.

ANALYSIS Identity [20] The Appellant's Djiboutian passport and National Identification Document (ID) Card issued in 2016, indicates that he was born in XXXX. [21] Prior to the RPD hearing, Counsel sent a letter to the RPD advising that the Appellant's correct date of birth is XXXX. Counsel explained that the Appellant applied for an updated National ID Card which was issued in 2016. The card incorrectly states that the Appellant's date of birth is XXXX.4 In the process of preparing to leave Djibouti, the Appellant applied for a new passport. After pointing out the error to the official, he decided that it was best to continue indicating that his year of birth is XXXX for the sake of consistency and to avoid any potential problems or delays in obtaining his passport. For the same reason, he indicated that his year of birth is XXXX when he filled in his refugee claim forms. Counsel attached a copy of the Appellant's previous National ID Card which indicates his year of birth is XXXX. [22] At the outset of the RPD hearing, the Appellant reiterated that he was actually born in XXXX even though his most recent National ID card and passport indicate that his year of birth is XXXX. He explained that his previous National ID card bears his correct date of birth (XXXX). Moreover, his correct date of birth appeared on his birth certificate and previous passport which his father

lost. [23] The RPD concluded that the Appellant did not establish his identity because the discrepancy with respect to his year of birth means that the identification documents are not reflective of his true identity. [24] I find that the RPD erred in rejecting the Appellant's identity in this case. [25] It is incumbent on every refugee claimant to prove who they are and their country of nationality or residency. Section 106 of the IRPA provides that the RPD must consider, with respect to the credibility of a refugee claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. [26] In the present case, the Appellant provided his Djiboutian National ID card and his passport to establish his identity. While it is true that these identity documents contain a discrepancy with respect to his year of birth, I find that the Appellant reasonably explained that an administrative error occurred when he obtained his new ID card in 2016, and that after he spoke with an official at the passport office, he chose to perpetuate the error when he filled in his application for his passport in order to avoid any further delays in obtaining his passport and ensure his departure from the country. [27] The RPD discounted

the identity documents after the Appellant volunteered that there was a discrepancy in his year of birth. This implies that the identity documents are not authentic. I consider this finding problematic. [28] First of all, documents issued by a foreign government are presumed valid unless evidence is produced to the contrary. This being said, the Federal Court has held that minor typographical errors cannot be reasonably used as the basis for concluding that a document is fraudulent.5 [29] Secondly, I find that the RPD erred by failing to consider all the evidence on the record before reaching the conclusion that the Appellant's identity is not established. I make this finding because a combination of testimony and documentary evidence can establish identity. [30] In Evbuomwan, the Federal Court held that before concluding that a claimant failed to prove his identity, the RPD must consider the evidence relating to identity as a whole including documentary evidence, the written narrative and testimony at the hearing.6 [31] In Jiang, the Federal Court notes that the Board erred by failing to consider the refugee claimant's oral evidence when assessing whether identity was established. The Court noted the following: "Unquestionably, the Board in this case was properly concerned with the evidence before it about the availability of false or fraudulently obtained identity documents

in China. However, it seems to me that, to the extent the documents may be suspect, it becomes all the more important to consider the totality of a claimant's evidence about their identity. This error, by itself, warrants an order setting aside the decision of the Board."7 [Emphasis added] [32] Turning to the present case, the RPD's decision to reject the Appellant's identity focuses primarily on the discrepancy with respect to his year of birth that appears in his documentary evidence. Yet, the Appellant also provided other evidence aimed at establishing his identity. For example, in addition to his passport and National ID card which indicate that he was born in XXXX, the Appellant volunteered information at the outset of the hearing explaining that an administrative error occurred. Prior to the hearing, his lawyer also submitted the Appellant's previous National ID card which states he was born in XXXX. The Appellant provided official documents speaking to the name and nationality of his parents and his paternal grandfather in Djibouti. He submitted his father's ID, his grandfather's citizenship document and passport; and his grandfather's pension records. He provided his parents marriage certificate and a letter from his father which outlined his son's political activities in Djibouti. The Appellant also provided his MRD membership card. [33] The Appellant also testified

that he was born in the United Arab Emirates (UAE) and moved to Djibouti when he was three years old where he was raised by his parents alongside his siblings. He provided information about his addresses, his academic and work history. [34] Looking at the evidence as a whole, I find that the Appellant has reasonably explained that the noted discrepancy regarding his year of birth stems from an administrative error which was not corrected. On a balance of probabilities, I find that the Appellant has established his identity in the present case. Sur place claim [35] The Appellant states that the Djiboutian government does not tolerate any dissent and oppresses political opponents. He claims to fear the government upon his return to Djibouti as a result of his political activities in Canada which was posted on social media. [36] In reaching the finding that the Appellant does not face a risk in Djibouti as a result of his activities in Canada, the RPD noted the following: The claimant did provide photos and he had made statement of protesting in Winnipeg[sic]. I take no issue with the claimant's evidence of political activities here. However, I find that the claimant has had no genuine political opinion due to his lack of credibility. There is almost no evidence that merely participating in local demonstrations would put the claimant at risk in returning to Djibouti.8 [Emphasis

added] [37] Counsel submits that the RPD erred in its analysis by importing its adverse credibility findings into the sur place analysis. Moreover, it is argued that the RPD erred in finding that the Djibouti government would not know about the Appellant's activities in Canada. To the contrary, the available documentary evidence points to the fact that the Appellant faces a serious possibility of persecution in Djibouti as a result of his political activities in Canada and the visibility of these activities on social media platforms. [38] For the following reasons, I find that the RPD erred in its assessment of the Appellant's sur place claim. [39] A "sur place" refugee is an individual who was not a refugee when leaving his or her country of origin but who becomes a refugee at a later date. As noted by the Federal Court in Kyambadde, this may arise "either because of some circumstance arising in the country of origin during the absence or because of some action of the individual while outside his country."9 [Emphasis added] [40] Section 96 of the UNHCR Handbook offers the following guidance: A person may become a refugee "sur place" as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be

determined by a careful examination of the circumstances. Regard should be in particular to 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.10 [Emphasis added] [41] Turning to the present case, the RPD found that the Appellant's story in Djibouti was generally not credible. This being said, the RPD took no issue with the Appellant's political activities in Canada. As noted above, the Appellant provided evidence including his MRD membership card11 in addition to photographs depicting his participation in demonstrations against the ruling regime following his arrival in Canada.12 As such, I have considered whether the Appellant's actions may come to the notice of the authorities in Djibouti and how his behaviour is likely to be viewed by the authorities. [42] While the RPD found that there is insufficient documentary evidence establishing that the Appellant's participation in demonstrations in Canada would put him a risk in Djibouti, I disagree. [43] In this regard, I have reviewed the available documentary evidence regarding the political situation that prevails in Djibouti. Information gleaned from the objective evidence13 reveals that Djibouti is ruled by a powerful president who has been in office since 1999, and is not subject to term limits. The ruling Union for a

Presidential Majority (UMP) party uses authoritarian means to maintain its dominant position. The opposition's ability to operate is severely constrained. Journalists and activists who air criticism of their leader or the UMP are regularly harassed or arrested.14 [44] The government deprived citizens of the ability to choose their government freely by suppressing the opposition and refusing to allow several opposition groups to form legally recognized political parties. It is reported that the ruling party dominates the state apparatus and uses security forces and other administrative resources to marginalize, disrupt, and suppress independent political activity.15 [45] This is corroborated by the US Country Reports on Human Rights Practices for 2019 in Djibouti which states that security officials arbitrarily arrested online bloggers on Facebook, opposition members, academics and demonstrators.16 Individuals who criticized the government publicly or privately could face reprisals. The government harassed and intimidated opposition parties, human rights groups and labour unions.17 [46] The government monitored social networks to prevent demonstrations or overly critical views of the government.18 [47] In sum, I find that there is more than a mere possibility that the Appellant faces persecution by the regime should he return to Djibouti as a result of the expression of his

political activities in Canada. [48] In this case, I do not find that the Appellant could obtain adequate state protection because it is the state that the Appellant fears for its abuse of basic human rights and its violation of fundamental freedoms. Similarly, I do not find that the Appellant could safely relocate within the small country of Djibouti since it is the state that he fears. [49] Having considered all of the evidence, I find that the RPD erred in its analysis of the Appellant's sur place claim. I find that the Appellant has established that there is a serious possibility of persecution if he returns to Djibouti and I accept his claim under section 96 of the IRPA.

CONCLUSION [50] The appeal is allowed. Pursuant to ss. 111(1)(b) of the IRPA, I set aside the RPD decision and substitute my own determination, namely that the Appellant is a Convention refugee. (signed) Patricia O'Connor Patricia O'Connor June 15, 2020 Date 1 See 110(3) and 110(6) of IRPA. 2Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), paras. 78, 103. 3 Ibid, paras. 58, 59 and 70. 4 Letter from Counsel to the RPD, September 25, 2018, RPD record p 191. 5 Ali v Canada (Minister of Citizenship and Immigration) 2015 FC 814, para 31; Mohamud v Canada (Minister of Citizenship and Immigration) 2018 FC 170, para 6, 8-9. 6 Evbuomwan v Canada (Citizenship and Immigration) 2014 FC 1105, para 13. 7 Jiang v Canada (Citizenship and Immigration) 2007 FC 1292, para 7. See also Tran v Canada (Citizenship and Immigration) 2013 FC 1080. 8 RPD-1, RPD Record, Exhbit 3, RPD decision, para 12. 9Kyambadde v Canada (Citizenship and Immigration) 2008 FC 1307, para 15. 10 The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/1P/4/ENG/REV.3 11 MRD card, RPD record p 168. 12 Post-hearing disclosure, RPD record, p 203. 13 RAD-1, National Documentation Package (NDP) for Djibouti, 31 March 2020. 14 RAD-1, National Documentation Package (NDP) for Djibouti, 31 March, 2020, Tab 2.3: Djibouti, Freedom in the World 2019. Freedom House, 2019, 22 June 2018, p.

1. Tab 2.3, ibid, p 2; Tab 2.6: Treatment of political dissidents, journalists and defenders of freedom of the press by the authorities (2016-May 2017). IRB, 16 June 2017. DJI105810.FE. RAD-1, National Documentation Package (NDP) for Djibouti,31 March 2020, Tab 2.1: Djibouti. Country Reports on Human Rights Practices for 2019. US. Department of State. 11 March 2020, p. 5. 17 Ibid, pp. 7 and 10. 18 Ibid, pp. 9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-02301 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français