TB5-05422

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 : TB5-05422 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 8, 2015 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal Inderpreet Kaur Budesha 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 (the Appellant), who claims to be a citizen of Somalia, has appealed a negative determination of the Refugee Protection Division (RPD) dated December 8, 2014. He has submitted new evidence in support of his appeal. [2] The Appellant requests that the Refugee Appeal Division (RAD) find the RPD failed to observe the principles of natural justice by not providing the proper guidance about the alternative evidence the RPD would consider to establish the Appellant's identity, by not giving proper weight to the letter issued by the Somali-Canadian Cultural Society of Edmonton (Society) and by doing a microscopic analysis of the Appellant's testimony. The Appellant also asks the RAD to find that the RPD member was biased and pre-occupied with the decision. The Appellant further requests the RAD to reassess the evidence of the Appellant in the light of the letter issued by the Society. The Appellant also requests the RAD to hold a hearing to give an opportunity to the Appellant to provide new evidence and to make a finding that the Appellant is a Somali Citizen and have a risk of prosecution (sic).1 [3] The RAD also considered granting the appeal and that an oral hearing be held, pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). In addition, the RAD considered whether the decision of the RPD should be set aside and substituted with a determination that the Appellant is a Convention refugee or a person in need of protection or, in the alternative, refer the matter to the RPD for redetermination, giving the directions to the RPD that it considers appropriate. DETERMINATION [4] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [5] The Appellant alleges that he is a citizen of Somalia from a minority clan. His father was murdered by militia men, and shortly after his mother died. He went to live with his grandmother and helped her farm. He married a girl from a majority clan and suffered a beating following the marriage from some men who did not think he was good enough for his wife. They demanded that he divorce his wife and he did so. His grandmother died in 2013. He met another woman and started a love affair, and he avoided public areas because of his problems with majority clan men. He alleges masked gunmen knocked at his door, entered and tied him up and beat him. They threatened him because of his involvement with his new woman. They dragged him to the Al-XXXX jail and accused him of adultery. He appeared before a judge from a majority clan and was wrongfully convicted. He was able to escape imprisonment. He is aware that they have been searching for him in the neighbouring towns. He asked for help from the elders of his clan but was told he must abide by the minority clan rules. He alleges that if he returns to Somalia be will be persecuted by members of the majority clan and the Al-Shabaab. He claims to have left Somalia on XXXX XXXX, 20142 and that he is not safe in any part of Somalia since there is no strong government institution to protect him, and his minority clan does not have proper representation in the existing government. [6] The Appellant had a refugee determination hearing on December 8, 2014, and an oral decision was delivered on the same day. [7] The Minister intervened in writing for the claim.3 [8] The Minister did not participate in the appeal. [9] The Appellant submits that the RPD erred in its credibility and identity determination as follows: a) The RPD was biased and pre-occupied with its decision before the hearing. b) The RPD erred in its assessment of the Appellant's identity due to failure to provide any documentary evidence. c) The RPD failed to follow the principles of natural justice and procedural fairness by not giving proper weight to the Somali-Canadian Cultural Society of Edmonton (Society) issued letter and by not calling witnesses mentioned in the letter. d) The RPD erred in not believing the evidence of the Appellant based on its plausibility findings. Admissibility of Evidence Submitted on Appeal [10] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. [11] Subsection 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. [12] The Appellant provided four pieces of evidence to the RAD for consideration as new evidence.4 [13] The Appellant asks the RAD to admit the following documents as new evidence: a) Affidavit of the Appellant, dated XXXX XXXX, 2015. b) Affidavit of XXXX XXXX XXXX, dated XXXX XXXX, 2015. c) Affidavit of XXXX XXXX XXXX, dated XXXX XXXX, 2015. d) Letter from the Somali-Canadian Cultural Society of Edmonton, dated XXXX XXXX, 2014. [14] The Appellant submits that the proposed new evidence meets the test of s. 110(4) of the IRPA because "even though XXXX XXXX XXXX and XXXX XXXX XXXX were available" at the time of the hearing, they made a false assumption that, as their contact information is included in the letter issued by the Somali-Cultural Society of Edmonton, the RPD would have called them if the RPD needed any further information. Therefore, they did not want to take time off from their work unnecessarily. [15] The RAD considered the following evidence submitted as new evidence by the Appellant as noted above. Appellant's Affidavit [16] Portions of this affidavit, set out the basis of the Appellant's refugee claim, information which predates the rejection of his claim, which was before the RPD, and which is already before the RAD as part of the RPD's Record. However, paragraphs 7 to 11 of the affidavit5 contain the Appellant's explanation for the provision of new evidence, and the RAD requires that explanation in order to assess the other new evidence submitted to the RAD. As such, for the purposes of section 110(4), the RAD admits paragraphs 7 to 11 of the affidavit as evidence for the purpose of considering the other new evidence submitted for the appeal. Affidavit of XXXX XXXX XXXX XXXX XXXX XXXX XXXX [17] The RAD has considered the affidavits of XXXX XXXX XXXX6 and XXXX XXXX XXXX.7 The Appellant states in his affidavit8 that he received a letter from the RPD "demanding documentary evidence of Somali identity." The RAD notes the form letter dated October 22, 20149 from the RPD to the Appellant states that they had received the Appellant's Basis of Claim (BoC) form and the RPD member "who will decide in your case has instructed you to provide the following information in relation to your BoC form": Claimant should provide reliable documentary evidence to substantiate claim for refugee protection, including evidence of Somali citizenship. Documents must be translated to English and given to the Board at least 10 days before the hearing.10 [18] Therefore, the Appellant was aware of his responsibility to provide evidence in support of his claim. The RAD notes from the record that the Appellant had provided a letter from the Somali-Canadian Cultural Society of Edmonton, dated XXXX XXXX, 2014 to the RPD.11 [19] The Appellant's hearing was held on December 8, 2014 with Reasons delivered orally on the same day. A review of the audio recording shows that the issue of identity was raised at the time of his hearing. The Appellant was represented by experienced counsel who did not request to the RPD in submissions, to have affidavits from the Appellant's friends submitted post-hearing and prior to the rejection, nor did they request at the hearing for an adjournment so they could call the witnesses. The Appellant explains in his affidavit that his friends, "XXXX XXXX XXXX and XXXX XXXX XXXX were available" at the time of the hearing, but assumed that, as their contact information is included in the letter issued by the Somali-Cultural Society of Edmonton, the RPD would have called them if the RPD needed any further information. Therefore, they did not want to take time off from their work unnecessarily. The RAD finds that the Appellant had the opportunity to present the affidavits from XXXX XXXX XXXX and XXXX XXXX XXXX prior to the rejection, and his explanation for failing to do so is not reasonable. [20] The onus is on the claimant to establish his identity. With regard to the Appellant's submissions that he assumed the RPD would have contacted his friends, it is not for the IRB to advise the claimant how to present his case. A represented claimant would know his obligations to put his best case forward. Therefore, the affidavits do not meet the requirements of s. 110(4) for the purposes of admissibility. The RAD does not accept the affidavits of XXXX XXXX XXXX XXXX XXXX XXXX XXXX as new evidence at the RAD. Letter from the Somali-Canadian Cultural Society of Edmonton [21] The Appellant has included in the pleadings the letter from the Somali-Canadian Cultural Society of Edmonton,12 which was before the RPD, and which is already before the RAD as part of the RPD's Record. Therefore, for the purposes of section 110(4), the RAD does not admit the letter from the Society as new evidence for the appeal but will consider it as part of the RPD's record. Statement from Aunt [22] The Appellant states in his affidavit that friends showed him how he could socialize with other people using Facebook. They also made his Facebook profile and uploaded his photo. A few days after he created his Facebook profile, he got a friend request from a family friend of his aunt who is living in XXXX. He told him that his aunt got a phone and provided her number. [23] As part of the pleadings, the Appellant is requesting an oral hearing and in his statement submits that "an international calling card will be provided to the RPD at the time of the hearing." It is unclear to the RAD why the Appellant will provide a calling card to the RPD as he is requesting an oral hearing before the RAD. For the purpose of this appeal, the RAD will consider that this statement was made in error and the pleadings were to read that he would be providing the calling card to the RAD. The Appellant submits that his aunt's evidence is important because it would prove that his life was in danger when he left Somalia and that he would face the danger of execution if he returns to Somalia. There is no persuasive evidence before the RAD that the Appellant made efforts to reach his aunt, through friends or family, prior to the rejection or that there has not been sufficient time to have included an affidavit or letter of support from his aunt along with the pleadings, for the purpose of the appeal. [24] The RAD has considered the Appellant's request and finds that the Appellant is offering his explanation for not providing the "new evidence" (evidence of his aunt); however, he has not provided the RAD with the actual new evidence of his aunt (i.e., in affidavit form or letter). The RAD finds this is merely an explanation for why the Appellant did not contact his aunt prior to the rejection by the RPD. The RAD finds that this explanation should have been accompanied by an affidavit of his aunt or a letter and then this would be considered as new evidence which would allow the RAD to have an oral hearing. The Appellant is represented by counsel for this appeal who would understand the importance of submitting an affidavit or letter. Therefore, the RAD finds the portion of his affidavit concerning this issue is not accepted as new evidence at the RAD. [25] For the reasons identified above, the RAD does not accept the documents (items a to d) noted above, presented as new evidence. ORAL HEARING [26] The Appellant has requested an oral hearing. [27] According to section 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s. 110(3) that raises a serious issue with respect to the credibility of the Appellant that is central to the RPD's decision, and that, if accepted, would justify allowing of rejecting the refugee claim. In this appeal, where there is no new evidence from or in response to the Minister, the documentary evidence referred to in section 110(3) must be understood in relation to section 110(4). [28] When read together, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [29] The RAD has not admitted new evidence in this appeal. As such, the RAD must proceed without a hearing. ROLE OF THE RAD [30] Counsel for the Appellant provided submissions on standard of review.13 [31] The RAD finds that the recent Federal Court decision, in Huruglica,14 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It 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. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.15 [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error".16 [32] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,17 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [33] Accordingly, the RAD will conduct its own assessment 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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [34] The RAD focused on the following issues in assessing this appeal: Did the RPD adjudicate his claim fairly? Is the Appellant a citizen of Somalia? Procedural Fairness and Natural Justice [35] Although not stated overtly, the RAD notes that the Appellant's submission in this regard is an allegation of bias and breach of natural justice. In essence, the Appellant submits that the manner in which the RPD panel member rendered his decision gave a reasonable apprehension of bias based on an impression that the panel member had pre-determined his decision. [36] The Appellant submits that the circumstances that give rise to this apprehension of bias are as follows. The Appellant argues that the RPD delivered its detailed reasons for the decision within less than five minutes after concluding the hearing. Delivering such a lengthy and written decision within less than five minutes gives a strong indicia to a reasonable person that the RPD member was biased and pre-occupied with the decision, that the RPD had already made its decision, and the RPD hearing was nothing but a formality.18 [37] Having reviewed the record, in my view, the Appellant has not met the onus of establishing the existence of a reasonable apprehension of bias and breach of natural justice. The test for reasonable apprehension of bias can be found in the dissent of de Grandpré J. in Committee for Justice and Liberty v. National Energy Board19 and as followed in Satiacum.20 "What would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would decide fairly." [38] The bystander test was further defined in a Supreme Court decision, Newfoundland Telephone Co.,21 as: "Whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator." [39] The principles and considerations noted above are equally applicable to administrative tribunals, which are presumed to be impartial in their decision making.22 [40] An analysis of the jurisprudence on the issue raised by the Appellant reveals that, if there is an allegation that the member displayed bias because he or she prejudged the claim, the Court will require clear evidence that a predetermination had in fact occurred. [41] In Arthur,23 the Federal Court of Appeal wrote: An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation.... It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard. [42] Similarly, in Roshid,24 the Federal Court wrote: The question is - what would an informed person, viewing the matter realistically and practically, having thought the matter through, conclude? The grounds must be substantial and the test should not be related to the very sensitive or scrupulous conscience. [43] The RAD is not persuaded that the Appellant has provided the material evidence necessary to meet the test articulated in the aforementioned cases. The Appellant has submitted that delivering such a lengthy and written decision within less than five minutes gives a strong indicia to a reasonable person that the RPD member was biased and pre-occupied with the decision. [44] The Appellant has not provided any material evidence demonstrating that the RPD's panel member's conduct derogates from the standard. The fact that the panel had rendered its decision from the bench after a short deliberation does not in itself reflect bias.25 [45] The RAD also notes that the Appellant does not allege that the RPD panel member read his reasons directly from a prepared document. Rather, the Appellant alleges that the RPD delivered its detailed reasons for the decision within less than five minutes after concluding the hearing. [46] The RPD had the opportunity to prepare prior to the hearing by reviewing the complete record. The RAD notes that the case was not a complicated one, and the decision is not lengthy. Furthermore, the RAD notes that the syntax, grammar and general readability of the decision is more consistent with an oral decision made at the time rather than one that was pre-written with the benefit of time. In his decision, the RPD Board member included the responses given by the Appellant during the hearing. He also noted discrepancies and submissions made by the Appellant's counsel on those discrepancies. It is apparent to the RAD that the RPD Board member had an open mind with respect to the Appellant's evidence and had not prejudged the case. The RAD finds that the RPD had properly considered the Appellant's allegations and all the evidence submitted. [47] In short, an informed person, viewing the matter realistically and practically-having thought the matter through-would not conclude that there exists a reasonable apprehension of bias. [48] The Appellant also argues that the RPD misguided the Appellant by sending him a letter dated October 22, 2013,26 mentioning that the RPD needed documentary evidence to establish the identity of the Appellant. The Appellant submits the RPD erred in reaching its decision that he did not take reasonable steps to establish his identity. The Appellant argues that contrary to this finding of the RPD, he did his best to obtain all possible evidence that a reasonable person would have obtained in his situation and especially following the RPD letter's guideline. The Appellant submits he approached his friends he knew from back home to contact the Society, so that the Society could interview them and release a letter if they were satisfied with their interview. Further, the Appellant submits that, had the RPD's letter mentioned that the RPD needs more evidence, not just the documentary evidence to establish the identity of the Appellant, he would have been able to convince his friends to come with him to the RPD hearing and give evidence to the fact that he is a Somali citizen. The RAD does not accept this argument as persuasive. [49] As noted above with regard to the acceptance of new evidence, the form letter from the RPD dated October 22, 2014 included the instructions: Claimant should provide reliable documentary evidence to substantiate claim for refugee protection, including evidence of Somali citizenship. The RAD finds that it is clear from a reading of the form letter that the RPD was requesting documentary evidence to support the Appellant's claim and not only evidence of his Somali citizenship. [50] Further, the Appellant was aware of his responsibility to provide evidence in support of his claim as the Appellant had provided a letter from the Somali-Canadian Cultural Society of Edmonton, dated XXXX XXXX, 2014 to the RPD, which the Board will address later in the reasons. The RAD notes the Appellant does not contest the following: the RPD's Reasons state that the RPD had raised the issue of identity at the hearing. The RPD's Reasons further show that the RPD highlighted to the Appellant that: "the Board asked you to provide reliable documentary evidence. Not only this, but a representative from the Minister of Citizenship and Immigration Canada intervened on this case to say that identity would be an issue." [51] The RAD also notes the RPD's further findings that state: You have had more than two months to get documentation from Somalia, for instance, from your aunt that could have corroborated your story. Now you said that you did not realize that you needed all of this information when you left Somalia. That is reasonable, but I am assessing the efforts that you took since you have been in Canada and you have not taken reasonable efforts to establish your identity. You would have had to have shown that you, at least, tried to get a hold of your aunt to get her testimony relating to your identity or from other people who knew you and your situation who are in Somalia. [52] The RAD notes that the Appellant did not contest these findings by the RPD. [53] The RAD notes that the RPD explained to the Appellant their conclusion that: "you have competent counsel and so when we have competent counsel we have to give that more weight than just somebody who is representing themselves. With the combination of resources that you had before you, you should have taken more efforts to establish your identity." [54] The RAD finds, based on the totality of the evidence, there is no breach of natural justice in this matter. Overall Identity Finding [55] The RPD found that the Appellant had failed to establish his identity, on a balance of probabilities. Alternative Evidence [56] The Appellant argues that the RPD rejected his claim on the basis of failing to provide documentary evidence establishing his identity. The Appellant further submits that this finding of the RPD is self-contradictory on the face of its own finding that Somalia is a failed state, and the refugee claimants coming from Somalia do not have proper documentation. Therefore, by not providing the Appellant an opportunity to establish his identity by alternative means and by not giving proper weight to the letter issued by the Society to establish his identity, the Appellant submits the RPD failed to follow the principle recognised by the Federal Court, in Elmi,27 that refugee claimants from the countries with unstable civil administration such as Somalia ought to be afforded other means of providing their national identity. Letter from the Somali-Canadian Cultural Society of Edmonton [57] The Appellant submits that the RPD erred by failing to give proper weight to the letter from the Somali-Canadian Cultural Society of Edmonton.28 [58] The RPD considered the content of the letter from the Somali-Canadian Cultural Society of Edmonton, dated XXXX XXXX, 2014, to corroborate his identity. The RPD notes in the Reasons that the Appellant had: ...submitted a form from the Somali Canadian Cultural Society. This is a generic document that that the Board receives on these types of claims. I give the document little weight in establishing your identity. At the most it establishes, as with your testimony, that you speak Somali and that you come from Somalia but there is nothing in there that would really clarify your identity. This generic form that I have does not speak of any details of how they came to the assessment, just a very short sentence that somebody from your past knew you. [59] The RAD notes the letter states: We as the Somali community in Edmonton used the traditional way of identifying Somalis. We interviewed two members of the community, who attested that they knew XXXX XXXX before his arrival to Canada, and came up the conclusion that Mr. XXXX is a Somali citizen. [60] The RAD notes the letter tendered by the Appellant from the Somali-Canadian Cultural Society of Edmonton claimed that the Appellant is a Somali citizen. The author of the letter indicates that two members of the community attested that they knew the Appellant before his arrival to Canada, and therefore they came to the conclusion that the Appellant is a Somali citizen. The RAD notes the letter from the Somali-Canadian Cultural Society of Edmonton does not indicate how the two individuals interviewed know the Appellant and does not provide important facts or dates to confirm this fact. The letter does not indicate that the person writing it took efforts to double check or verify the statements from the two individuals. For example, were the two individuals interviewed separately and were their statements as to when and how they know the Appellant verified with statements by the Appellant? While the letter provided the names of the individuals, the letter does not indicate the relationship between the Appellant and the persons who confirmed his identity. The Appellant did not provide any identity documents related to the two persons who attested to his personal identity. The two individuals did not provide to the RPD any statements, affidavits or letters to support the credibility of the statement made in the letter. Finally, the RAD finds that the unverified statements made to a programs coordinator at the Society cannot be afforded weight. As such, the RAD finds that the letter from the Somali-Canadian Cultural Society of Edmonton cannot be afforded weight. [61] The RAD finds that, while the letter may confirm the claimant's origins, it does not confirm his national or personal identity. [62] The RPD placed little weight on the letter as evidence of the Appellant's identity. [63] The RAD notes the letter does not state that the Appellant speaks the Somali language fluently with any particular dialect, nor has characteristics and features of Somali; nor did they question his ability to give details about his neighbourhood or to name local places and customs. Further, the RAD finds the letter does not confirm the Appellant's personal identity or nationality; rather, it indicates the Appellant spent some time in Somalia by stating that two members of the community were interviewed, who attested that they knew him before his arrival to Canada. There were no dates included in the letter to indicate when the two individuals purport to have known him. Given the above concerns, the RAD finds that the above-noted letter from the Somali-Canadian Cultural Society of Edmonton has little probative value in supporting the Appellant's personal identity, nationality, and his clan. [64] The RAD also considered that the Appellant testified in the Somali language. Given that it is not uncommon for individuals to have acquired the ability to speak in different dialects and also the ability to speak a language with a particular accent, it does not establish a person's personal identity, nor can it establish a person's citizenship. The RAD concurs with the RPD's finding that there is nothing in the letter to clarify the Appellant's identity. Further, the RAD concurs with the RPD affording little weight in establishing the Appellant's identity. Plausubility Findings and Microscopic Assessment of the Evidence [65] The Appellant further argues that, in Elmi, the Federal Court held that it should not be over-vigilant in searching out inconsistencies or be microscopic in its examination of the evidence, particularly where persons testify through an interpreter. [66] The Appellant submits that the RPD failed to appreciate the testimony of the Appellant in the light of fact that before entering Canada, he just dodged his death and the fact that, during the time of travel, the Appellant was still living under the trauma which he experienced in the XXXX XXXX XXXX jail. The Appellant argues that the RPD further rejected his explanation that he was not able to keep track of time while he was sleeping during his travel to Canada, and the RPD erred in expecting microscopic detail of travel account from him. The RAD notes the Appellant describes himself as a person who had just saved his life from Al-Shabaab's terror and a person whose only language at the time of escape was limited to Somali. [67] The RAD is mindful of Lubana,29 where the Court has stated that it is not proper for the Board "to base its findings on extensive 'microscopic' examination of issues irrelevant or peripheral to the applicant's claim". [68] The RAD does not accept the Appellant's argument that the RPD conducted a microscopic assessment in this matter. The questions posed by the RPD were intended to assess the credibility of the Appellant's testimony and the credibility of the witness he provided to support his claim. It was open to the RPD to test the credibility of the Appellant's evidence. Moreover, the Federal Court stated, in Bénéclerc,30 that the panel member can question the applicant energetically in order to, among other things, clarify the shortcomings in the evidence and to assess his credibility. The RPD relied on the totality of evidence before it in determining that the Appellant was not credible. As such, given the foregoing, the RAD finds the RPD did not apply an unduly stringent or microscopic analysis. [69] The Appellant points to the Maldonado31 principle that holds that an applicant's testimony is presumed to be true unless there are reasons to doubt its truthfulness. [70] The Appellant also points to the decision of the Federal Court, in Elmi,32 where the Court recognizes the difficulty that nationals of Somalia have in establishing their national identities due to the unstable civil administration and lack of available documentation. [71] The Appellant argues that the RPD not only failed to assess the totality of the evidence before it that related to his identity, but it failed to have regard for Elmi or, specifically, it failed to have regard for the lack of identity documentation available in Somalia due to its unstable civil administration. [72] The RAD does not accept the Appellant's argument in this regard. The RPD stated: Since Somalia does not have a well-functioning government it is quite plausible that you would not have adequate documentation from Somalia. This is consistent with other testimony that I have heard from people making claims from Somalia, but your claim is different because the Board provided you with instruction very soon after you made your refugee claim that identity would be an issue. The Board asked you to provide reliable documentary evidence. Not only this, but a representative from the Minister of Citizenship and Immigration Canada intervened on this case to say that identity would be an issue. [73] The RAD finds the RPD clearly acknowledged and considered that identity documents are difficult to obtain in Somalia in its analysis of the lack of corroborating documents. The RAD also finds that, based on the totality of the evidence, the RPD did not fail to have regard for all of the Appellant's alternative evidence, including the Appellant's testimony as to his identity and the evidence in the letter from the Somali-Canadian Cultural Society of Edmonton before finding the Appellant had failed to establish his identity. SUMMARY [74] The RAD finds that the RPD considered the totality of the evidence before it and found the Appellant had not introduced identity documents to show: who he is, where he came from or where he travelled from. The RPD found that all of these factors go towards a negative credibility finding relating to the Appellant's identity. [75] Having considered the totality of the evidence, the RAD concurs with the RPD's finding that, for reasons of failure to establish his identity, the Appellant is not a Convention refugee, nor is he a person in need of protection in accordance with sections 97(1)(a) and 97(1)(b) of the IRPA. Therefore, the RAD finds his claim against Somalia fails. [76] The RAD considered that the Appellant testified in the Somali language, as noted above. The ability to speak a language does not establish a person's personal identity, nor can it establish a person's citizenship. This is especially relevant for individuals who speak Somali and given that this language can be spoken in Somalia, Djibouti, Kenya and Ethiopia. [77] The jurisprudence sets out that, where identity is not established, it is unnecessary to further analyze the evidence and the claim.33 The burden of establishing identity must be satisfied before the RPD goes on to consider the merits of the claim and whether the Appellant, in this case, faces a serious possibility of being persecuted or is a person in need of protection. The RPD rightly found, on a balance of probabilities, that the Appellant had not established his identity. In light of this finding, the RAD finds the Appellant's argument must fail. DISPOSITION [78] Based on a review of the totality of the evidence, the RAD confirms the RPD's determination that the Appellant is not a Convention refugee, nor is he a person in need of protection, as per s. 111(1)(a) of the IRPA. [79] The appeal is dismissed. (signed) "C. Forbes" C. Forbes July 8, 2015 Date 1 Appellant's Record, p. 19. 2 RPD's Record, Exhibit 2, BoC, Question 2 (e). 3 RPD's Record, Exhibit 4. 4 Appellant's Record, p. 19, Request for new hearing and admission of new evidence. 5 Appellant's Record, pp. 7 to 8. 6 Appellant's Record, p. 11. 7 Appellant's Record, p. 12. 8 Appellant's Record, p. 7, paragraph 10. 9 Appellant's Record, p. 10 10 Ibid. 11 RPD's Record, Exhibit 5. 12 Appellant's Record, p. 9; RPD's Record, Exhibit 5. 13 Appellant's Record, p. 17. 14 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 15 Ibid., Huruglica, para 54. 16 Ibid., Huruglica, para 55. 17 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 18 Appellant's pleadings, Issue 1, p. 16 of 19. 19 Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369. 20 Satiacum v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 430 (C.A.). 21 Newfoundland Telephone Co., v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 at 636. 22 Arthur, Gertrude v. M.E.I. (F.C.A., no. A-991-90), MacGuigan, Linden, Gray, November 2, 1992; (1992), 18 Imm. L.R. (2d) 22 (F.C.A.), at para. 8; See also Ali, Sulaman v. M.C.I. (F.C.T.D., no. IMM-5653-01), Tremblay-Lamer, October 2, 2002; 2002 FCT 1034; Sabri Khader v. M.C.I. (F.C., no. IMM-5383-12), Shore, April 4, 2013; 2013 FC 315, at 38-46. 23 Fehr v. Canada (N.P.B.) (1995), 93 F.T.R. 161, at para. 22; R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 92. 24 Roshid, Mohammad v. M.C.I. (F.C., no. IMM-1248-04), Layden-Stevenson, December 8, 2004; 2004 FC 1714. 25 Stapleton, Elizabeth Sylvia v. M.C.I. (F.C., no. IMM-1315-06), Blanchard, November 1, 2006; 2006 FC 1320. 26 Appellant's Record, p. 10. 27 Elmi, Sahra Shukri v. M.C.I. (F.C., no. IMM-4956-07), Teitelbaum, June 24, 2008; 2008 FC 773. 28 Appellant's Record, p. 9; RPD's Record, Exhibit 5. 29 Lubana, Rajwant Kaur v. M.C.I. (F.C.T.D., no. IMM-2936-02), Martineau, February 3, 2003; 2003 FCT 116. 30 Bénéclerc v. M.C.I. (F.C., no. IMM-2538-06), Martineau, March 6, 2007; 2007 FC 266. 31 Maldonado, Pedro Enrique Juarez v. M.E.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979; [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.), p. 305. 32 Elmi, Sahra Shukri v. M.C.I. (F.C., no. IMM-4956-07), Teitelbaum, June 24, 2008; 2008 FC 773. 33 Li, Lina v. M.C.I. (F.C., no. IMM-2342-05), Phelan, March 7, 2006; 2006 FC 296, [2006] F.C.J. No. 369 (QL), at para. 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05422