MB5-03206

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: MB5-03206 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Appellant The Minister of Citizenship and Immigration Appelant Respondent XXXX XXXX XXXX Intimé Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision March 3, 2016 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the Respondent Me Rezaur Rahman Conseil de l'intimé Designated representative N/A Représentant désigné Counsel for the Minister Virginie Francoeur Conseil du ministre REASONS AND DECISION [1] Mr. XXXX XXXX XXXX, who is allegedly a 36-year-old citizen of Somalia, was found by the Refugee Protection Division (RPD) to be a "Convention refugee". This decision has been appealed by the Minister. The Appellant has not requested an oral hearing. DETERMINATION OF THE APPEAL [2] With respect to the RPD's determination on identity and credibility coupled with country conditions applied to the Respondent's allegations, for a number of reasons the RPD concluded that the Respondent was a Somali national and that he faced a serious possibility of persecution if he were to return to Somalia. I must conclude that there are obvious credibility issues with respect to the Respondent's identity. I note that the Minister has identified other elements of the claim which, on a balance of probability, also suggest credibility problems with the Respondent's testimony. Given the absence of an audio recording of the hearing, which IRB staff are unable to locate, I have no way of assessing the RPD's reasoning related to identity or other elements of the claim. I note that the RPD decision is lacking in detail and documentary support for any of its conclusions. In a situation where I am unable to 'properly dispose' of the substance of this appeal, I conclude I am left with a single path which is to accept the appeal and return the file to the RPD for a redetermination. [3] I am unable to confirm or set aside the RPD decision without hearing further evidence with respect to the issue of identity, credibility and Internal Flight Alternative (IFA). Pursuant to ss. 111(1)(c) and ss. 111(2) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers this matter to the RPD for redetermination by a differently constituted panel. BACKGROUND [4] The Respondent alleges that if he returns to Somalia he might be killed Al-Shabaab and there is no effective state protection in his area. [5] The Respondent alleges that he is a member of the minority Ashraf clan in the area of XXXX XXXX, which is a part of the city of XXXX XXXX in the XXXX XXXX District, XXXX Region of Somalia. The Appellant alleges that his family was driven from Somalia to Ethiopia by assaults of Al-Shabaab in early 2015. The Respondent alleges that the risk of kidnapping and being killed by Al-Shabaab in Somalia can be seen in the reporting of attacks on others and the alleged 'disappearance' of the Respondent's four brothers. The Respondent alleges that in Ethiopia he was harassed by government officials and took the opportunity to travel by clandestine means through the US to Canada. [6] The Appellant alleges he arrived in Canada in XXXX 2015 to claim Canada's protection in March 2015. The RPD heard the claim on May 25, 2015, and rendered an oral positive decision. This decision was appealed by the Minister by submitting a Notice of Appeal with an Application for Extension of Time to Perfect, which was received by the RAD on August 21, 2015. SUBMISSIONS [7] The Appellant argues that the RPD's analysis includes errors related to its determination on the credibility of the Respondent. The Appellant identifies the fact that the Respondent is alleging that he entered the US by air using Ethiopian documents yet the US Visit biometric border control system has no record of this entry. The Appellant is also concerned that there is no oral hearing recording in this case which would allow for an understanding of the RPD's reasoning related to the issues of identity, transit and IFA. I note that the Appellant has submitted documents which are identified as Number M-1 through M-11 which provide evidence related to the US Visit program and other matters. [8] In terms of an outcome from this appeal, the Appellant seeks to have the RAD return the file to the RPD for reconsideration by a 'different' panel. ROLE AND FUNCTION OF THE RAD [9] With respect to the role and function of the RAD in reviewing the RPD decision, Justice Phelan in Huruglica1 states that the RAD "must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection". Justice Phelan also indicates that there is no need for the RAD to enunciate a 'standard of review' and suggests that while the RAD might show some deference on a credibility assessment and/or where the RPD enjoys a particular advantage in reaching such a conclusion, in other areas, such as an assessment of country conditions evidence, the RAD need not be deferential. [10] In Njeukam,2 Justice Locke references Huruglica and suggests that "Except in cases where the credibility of a witness is critical or determinative or when the RPD has a particular benefit from the RAD to draw a specific conclusion, the RAD must not give any deference to the analysis of the evidence made by the RPD". [11] Following Huruglica and Njeukam, I conclude that this appeal, which turns on questions of mixed law and fact, I must provide my own assessment of the evidence and reach my own conclusion. I also conclude that in this appeal, on questions of fact, although I may show a degree of deference to the RPD with respect to its credibility assessment, I must provide my own assessment of the evidence to reach my own conclusion. ANALYSIS First Issue: Did the RPD err with respect to its analysis of the Respondent's identity? [12] The first objective in any RPD hearing is to establish the identity of the claimant. With respect to this element of the claim the RPD writes: With regard to your identity, after having taken into consideration your responses to questions about your life in Somalia, your family and the events that occurred and when they occurred, as well as taken into consideration the letter from the XXXX XXXX Centre, to which I gave a lot of weight, as well as the affidavit of XXXX XXXX XXXX, I find that you have established to my satisfaction that you are a citizen of Somalia (RPD Record, p. 3). [13] In reviewing this evidence I note that the letter from the XXXX Centre for XXXX XXXX simply states that the Respondent is a Somali national and provides no further information. It should be noted that the Appellant is alleging having lived in Ethiopia and the Somali Region of Ethiopia has a population of greater than 5 million of which most are of Somali ethnicity and language. I note that the Appellant is alleging he is originally from a neighbourhood of XXXX XXXX city which is near the border with Ethiopia. The question arises as to how the Somali Centre determined that the Appellant was a Somali national and not an Ethiopian national? This is a question I would expect the RPD to have asked the Appellant, but there is no record of the hearing to evaluate any such inquiry. [14] The other piece of corroborative evidence is from Mr. XXXX XXXX XXXX which states that like him the Respondent's mother is XXXX (RPD Record, p. 89). According to the record, the Respondent is alleging he is of the Ashraf clan. This raises an immediate and important credibility issue because Ashraf and XXXX are at opposite ends of the spectrum in terms of socio-demographic status in Somalia. A review of the documentation would suggest that it would be unlikely for an Ashraf male to take a XXXX wife. [15] According to the documentation, the Ashraf are identified as believing they have a higher status in Somalia because of their alleged decent. They are also viewed has being better educated, urban, 'lighter skinned' and sometimes having greater wealth than those around them. I note that the Respondent provided filled in forms which give indication of education and access to resources (RPD Record, p. 39). One source on the Ashraf sets out that: According to the ACCORD-Austrian Red Cross report, the Ashraf's religious status means that they are "usually protected" by those among whom they live (Dec. 2009, 20). The Associate Professor similarly stated that, when doing fieldwork in Somalia in the 1990s, he found the Ashraf to be "quite respected, at least in principle" (27 Oct. 2010). He added that, although people in urban centres might privately complain about an individual Ashraf, from a religious point of view, the Ashraf were considered to be morally superior by virtue of their descent (27 Oct. 2010). The Independent Scholar also said that the Ashraf who live with the Benadiri are "traditionally respected for religious reasons by their fellow citizens" (23 Oct. 2010).3 [16] Another source notes that among Ashraf "marriage takes place almost exclusively within the Ashraf community itself"4 and with respect to occupation, "Before the civil war a relatively large number of Ashraf received education in Somalia, and during the Siad Barre administration a number of Ashraf were employed as civil servants in the administration while others were businesspeople and therefore travelled frequently throughout the country".5 [17] With respect to XXXX, they are described as basically a marginalized group/caste by the UK documentation: The marginalized groups in this context are the caste groups, i.e. the XXXX, Tumal, Benadiris and Jareer. It further reported that the marginalized groups have less access to business opportunities, likewise to education and health facilities since they cannot pay for hospitalisation and medical services, school fees etc. An international NGO working in South and Central Somalia notes that groups such as XXXX, Gaboye, Tumal and Jareer are marginalised in Mogadishu. The U.S. State Department notes that Somali Bantus and XXXX are sometimes kept in servitude by more powerful Somali clan members as domestic workers, farm laborers, and herders.6 [18] I conclude that that there is a credibility issue here but without a hearing recording there is no way to assess whether this issue has been addressed during the hearing. [19] With respect to the absence of a hearing recording, I note the Appellant argues that there was a "breach of procedural fairness" because there is no audio recording to assess the RPD's questioning of the Respondent to determine if the RPD conclusions on the Respondent's identity, for example, were 'reasonable' (Appellant's Memorandum, paragraph 23). [20] I note that the Respondent challenges whether the absence of a transcript of the hearing is necessarily a breach of procedural fairness and emphasizes a Federal Court decision where Mr. Justice Pinard writes "In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice..." (Respondent's Memorandum, p. 3). [21] To my mind I cannot go further with this file. The Appellant notes that the corroborative evidence related to the Appellant's identity is 'short' and 'provides little information' (Appellant's Memorandum, paragraph 22). This is in a situation where the RPD decision is manifestly lacking in detail with respect to its reasoning on identity. [22] In reviewing the corroborative evidence on identity which is subsumed in 2 short letters, I must conclude that both are open to question. The first simply states that the Appellant is a Somali national without providing any background on how this conclusion was reached. The second piece of corroborative evidence, as noted above, is open to question because if Mr. XXXX is truly a XXXX, how did his family grow close to an Ashraf family such that there could be intermarriage? This is open to question on the face of it given the clan and traditional nature of Somali society. This is a question which I would expect to be asked during the hearing. I see no reference to this obvious credibility issue in the RPD decision and again, I do not have the hearing recording to assess the RPD's questioning of the Respondent on his identity. [23] Put simply, the record before me does not provide me the resources or capacity to "properly dispose" of even the first issue of identity in this case. I note the Appellant goes on to identify a credibility issue with respect to how the Respondent reached Canada and then there is the issue of Internal Flight Alternative where again, the RPD decision is simply a gloss. In reviewing the arguments on both sides of this appeal, I am simply unable to reach a conclusion on any substantive issue in this claim in the absence of the hearing audio recording. CONCLUSION [24] In this case the RAD is unable to confirm or set aside the RPD decision without hearing evidence that was presented to the RPD. The RAD, therefore, under paragraph 111(1)(c) and 111(2) of IRPA, refers the matter back to the RPD for a redetermination to a differently constituted RPD panel. [25] Therefore, the appeal is allowed. Stephen J. Gallagher Stephen J. Gallagher March 3, 2016 Date /kp 1 Huruglica v. M.C.I. (2014) FC 799. 2 Njeukam v. M.C.I. (2014) FC 859, paragraph 14. 3 National Documentation Package (NDP), Somalia, March 31, 2015, Tab 13.6, IRB, Information on the Ashraf clan, including the location of their traditional homeland, affiliated clans, risks they face from other tribes; whether the name Sharif is given to a male at birth. (23 November 2010). 4 Idem, Tab 13.5, Report on minority groups in Somalia: Joint British, Danish and Dutch Fact-Finding Mission to Nairobi, Kenya, 17-24 September 2000, Danish Immigration Service (2000), p. 42. 5 Idem, p. 43. 6 Idem, Tab 1.7 Operational Guidance Note: Somalia, United Kingdom. Home Office (September 2013) 13.11.14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (June 23, 2014) Disponible en français RAD File No. / N° de dossier de la SAR: MB5-03206 6 RAD File No. / N° de dossier de la SAR : MB4-02198 2