TB4-03139

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 : TB4-03139 TB4-03140 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 XXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 30, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Raoul Boulakia 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 FOR DECISION [1] XXXX XXXX XXXX (the Appellant) and XXXX XXXX XXXX (the minor Appellant), who claim to be citizens of Somalia, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have submitted new evidence in support of their claims and they have requested an oral hearing. The Appellants further request that the Refugee Appeal Division (RAD) find that they are Convention refugees. Alternatively the Appellants request that the matter be remitted to the RPD for reconsideration by a differently-constituted panel. DETERMINATION [2] Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), The RAD sets aside the determination of the RPD and substitutes its decision that the Appellants are Convention refugees. The appeals are allowed. BACKGROUND [3] The Appellant alleges she and the minor Appellant are members of the minority XXXX clan who used to live in XXXX, Somalia. The Appellant and her family used to run a XXXX XXXX and her husband worked as a XXXX XXXX with the XXXX XXXX XXXX XXXX XXXX XXXX. [4] The Appellants further allege they are Somali citizens only and not citizens or permanent residents of any other country. They fear persecution by Al Shabaab and majority clan militias. [5] The Appellant has no formal education. [6] Life was always difficult because majority clan militias would frequently steal from minority clans. [7] The Appellant opened a XXXX XXXX in early 2010 and gave up working there in 2012 when the minor Appellant was born. Her mother and siblings took over the shop. [8] The XXXX XXXX attracted Al Shabaab threats because many customers were XXXX personnel. The Appellant's husband also received threats because he worked for the XXXX as a XXXX XXXX. In XXXX 2013 her husband was assaulted by Al Shabaab fighters and he fled to Ethiopia. He telephoned the Appellant regularly and told her it was not good for Somalians in Ethiopia and told her to go to Kenya where he would join them. [9] On XXXX XXXX, 2013, Al Shabaab fighters came to her home trying to find her husband, and they were told she did not know his whereabouts. They left but said they would return. The Appellants fled to Kenya on XXXX XXXX, 2013. [10] The Appellant lost contact with her husband after XXXX XXXX, 2013. The XXXX XXXX was closed and sold in XXXX 2013, and the proceeds were sent to the Appellant in Kenya to enable her to flee to Canada in XXXX 2013. They made their refugee claims in January 2013. The Issues [11] The panel indicated the determinative issue in regard to these claims is credibility. [12] The Appellants submit the issues in this appeal are the following: a. Whether the panel's decision with respect to citizenship is unreasonable and untenable? b. Whether the panel violated natural justice? c. Whether the decision can be sustained once the finding with respect to citizenship is set aside? d. Whether the decision should be set aside because it is based on unfounded speculation? e. Whether the panel's credibility assessment should be set aside? f. Standard of Review g. Whether the RAD should admit new evidence, pursuant to s. 110(4)? h. Whether an oral hearing should be granted? i. Whether the Appellants should be determined Convention refugees without a hearing?1 The Role of the RAD [13] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [14] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [15] In this regard, the Court in Huruglica2 considered the appropriate relationship between the RAD and the RPD. In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [16] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [17] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Admissibility of evidence presented on appeal [18] Section 110(3) of the IRPA, with certain exceptions, provides that the RAD must proceed without a hearing, on the basis of the RPD record. Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected, in the circumstance, to have presented, at the time of the rejection of the claim. [19] The Appellants have tendered the following new evidence in support of their appeal: [20] 1. An affidavit from XXXX XXXX XXXX, dated 18 April 2014. [21] The Appellant submits that the writer of the Affidavit has knowledge of the Appellant and her family. The Appellant further submits this evidence was not available before the RPD decision because she only came to know that the witness was in Canada after the rejection of their claims. [22] The RAD finds this document meets the test in section 110(4) noted above as the Appellant could not have been expected to have tendered this document prior to the rejection of their claims. [23] The RAD further finds the document is admissible as evidence concerning the Appellants' national identities, but it is not evidence concerning the Appellant's allegations of persecution as the writer left Somalia in 1992. [24] The RAD notes the Appellants have submitted two additional affidavits as proposed new evidence that were not submitted in their initial appeal and therefore not considered by the RAD at that time. [25] 2. An affidavit from XXXX XXXX XXXX, dated 5 August 2015.3 [26] The Appellant submits that XXXX arrived in Toronto after the previous RAD hearing. He was born in XXXX as was the Appellant and is a member of the XXXX clan as is the Appellant. XXXX confirms the Appellant's testimony regarding the XXXX XXXX, her clan membership, her husband's flight from Al Shabaab militants and her presence in XXXX until XXXX 2013. [27] The RAD finds this document meets the test in 110(4) noted above. The RAD further finds the document is admissible as evidence concerning the Appellants' national identities and also as evidence confirming aspects of the Appellant's testimony. [28] 3. An affidavit from XXXX XXXX XXXX, dated 3 August 2015.4 [29] The Appellant submits that XXXX arrived in Toronto after the previous RAD hearing and he confirms that he last saw the Appellant in XXXX in 1999. He left Somalia. In 2009. XXXX confirms he knew the Appellant as a young girl and he attended her wedding. He further indicates that the Appellant is known to him as a citizen of Somalia and a member of the|XXXX clan [30] The RAD finds this document meets the test in 110(4) above. The RAD further finds the document is admissible as evidence of the Appellant's residence in XXXX, her clan membership, and her likely nationality. [31] 4. A section from the 2014 version of the US Department of State (DOS) report for Somalia, National Documentation Package (NDP), 17 July 2015.5 [32] The RAD finds that these documents are admissible as new evidence as they concern in part information about the current treatment of minority clan members in Somalia and are relevant to the Appellant's subjective fear if she were to return to Somalia. These documents meet the test in 110(4) as they were not available at the time of the 2013 RPD decision. They are included in subsequent versions of the Board's NDP. [33] 5. Minority Rights Group International, January 2015 report, NDP, 17 July 20156 [34] The RAD finds this document is admissible as new evidence as it was not available to the Appellant before the RPD decision. The RAD notes this document is included in the 5 August 2015 NDP which has been admitted as new evidence. Identity as citizens of Somalia [35] The panel agreed that the Appellants are members of the minority XXXX clan who used to live in XXXX, Somalia. The panel further agreed that the Appellant and her family used to run a XXXX XXXX and the Appellant's husband used to work as a XXXX XXXX with the XXXX. [36] The panel found as well that the allegations noted above which it found to be true did not mean that the Appellants are Somali citizens only and not also citizens or permanent residents of another country, nor even that the Appellants are or ever were Somalian citizens. The panel found in this regard that the facts noted above that it has accepted as true could reasonably co-exist with a current reality where the claimants were not citizens of Somalia or not only Somalian citizens. [37] The panel found that it had insufficient credible evidence to determine, on a balance of probabilities, the Appellants' nationality. [38] The Appellant submits the panel decided the issue of citizenship without regard to country document evidence in the NDP7 included in the RPD record. The Appellant notes this document contains information on the citizenship laws of Somalia. [39] The RAD has reviewed all of the evidence in the RPD record concerning the Appellants' nationality. The RAD notes that affidavit evidence accepted as new evidence supports a conclusion that the Appellants are Somali citizens. The RAD further notes that Article 3 of the Somali citizenship law states that "any person who by origin, language or tradition belongs to the Somali Nation, shall be considered a Somali." Article 13 states that "any woman who is not a citizen and marries a citizen shall acquire Somali citizenship."8 [40] The RAD notes that the RPD accepted that the Appellants are members of the XXXX clan who used to live in XXXX, Somali. The RAD further notes the Appellant speaks Somali and required a Somali interpreter in the RPD hearing. The RAD notes as well that the XXXX clan is indigenous to Somalia. The RAD also notes the panel accepted that the Appellant's husband worked as a XXXX XXXX for the XXXX and agrees with the Appellant that it is not plausible that the XXXX XXXX would hire a foreigner as a XXXX XXXX. [41] The RAD finds in regard to the panel's finding that the Appellants might have status in another country, that the panel is speculating and there is an insufficient evidentiary basis for the finding. [42] The RAD finds that the Appellant's husband is a Somali citizen based on the evidence accepted by the panel. On the basis of the citizenship law of Somalia cited above, the RAD finds, on a balance of probabilities, that the Appellants are Somali citizens. The RAD further finds the panel's finding in this regard lacks a sufficient evidentiary basis. Credibility [43] The panel found the Appellant was not a credible or trustworthy witness. [44] The panel noted the Appellant's Basis Claim (BOC)9 form narrative does not mention the XXXX XXXX, 2013 visit by Al Shabaab fighters to the Appellant's home. The Appellant was asked to explain but she had no explanation. The panel found this was a major omission and drew a negative inference as to her subjective fear and her credibility. [45] The panel noted the Appellant stated that her husband called her from Ethiopia regularly and several times between XXXX and XXXX 2013. However in oral testimony she testified that he only called her from Ethiopia once in this period. The Appellant was asked to explain the discrepancy and she changed her oral testimony to have it accord with the BOC. She failed to explain however why she testified that he only called once. The panel drew a negative inference as to her subjective fear and her credibility. [46] The panel noted the Appellant indicated in her BOC that the XXXX XXXX opened at the beginning of 2010 but she testified that it opened in XXXX 2010 and then changed her testimony to indicate she could not remember when it opened. She explained she was not accustomed to remembering months. The panel noted the Appellant provided in her BOC, month and year timing for several events. The panel drew a negative inference in this regard as to her subjective fear and her credibility. [47] The panel noted the Appellant indicated in her BOC that the XXXX XXXX was closed in XXXX 2013. When she was asked in the hearing when the shop was closed she testified she could not remember when it was closed. She explained that she was confused and had no explanation as to why she could not remember when the shop was closed. The panel found this was another indication that the Appellant was making up allegations and drew a negative inference as to her subjective fear and credibility. [48] On the basis of its findings above, the panel found the Appellant is not a credible and trustworthy witness. The panel therefore gave no weight on any of her testimony with respect to establishing any matter in this case. [49] The Appellant submits that the credibility of the 2013 incidents is not central to the outcome of this case, as the Appellants are at objective risk in Somalia, as argued below. [50] The Appellant further submits the panel questioned and assessed the Appellant without regard to her lack of education. The Appellant submits as well the panel unfairly told her that her narrative did not mention being threatened after her husband left, when it actually suggested this. The Appellant submits the panel's questioning made the Appellant feel confused and that she was testifying badly. [51] The Appellant further submits the panel demanded she give specific dates even when she was unsure, and then lambasted her for attempting to guess. The Appellant submits the panel unreasonably presumed she must be lying about her ability with dates. [52] The Appellant submits the panel's questioning and arguments during questioning were unfair to her and adversely impacted on her ability to give clear testimony, and this led to an unreasonable assessment of her credibility. [53] The Appellant argues that the panel's finding with respect to the XXXX XXXX should be set aside as it is unclear and contradictory. The Appellant further argues that if it is believed the Appellant's family had a XXXX XXXX for a few years, it means they had a XXXX XXXX for the period in question, whether or not she remembers the exact dates. [54] The Appellant acknowledges contradicting or adding to her BOC when she failed to mention in her BOC that Al Shabaab militants had threatened her in 2013; when she testified she spoke to her husband only once since he left Somalia even though she indicated in her BOC she spoke weekly with him and when she was able to state the year but not the month when she opened the tea shop. [55] The Appellant submits that the panel's credibility findings should be set aside because it's central assumption is that they are not Somalian citizens was wrong. [56] The RAD has reviewed and assessed all of the evidence in the RPD record concerning the Appellant's credibility. The RAD notes that the Appellant has acknowledged and not contested some of the panel's negative credibility findings. [57] The RAD finds that the panel indicated it was aware of the Appellant's lack of formal education and no evidence was disclosed or arises from the RAD's review of the hearing recording that the panel did not consider the Appellant's education level in rendering its decision. [58] The RAD further finds on the basis of its review of the hearing recording that there is no evidence that the panel's questioning was unreasonable and as a result the Appellant became confused. [59] The RAD further finds that the Appellant has misconstrued the panel's finding in regard to her failure to mention the Al Shabaab visit in her BOC. The RAD notes the Appellant does mention in her BOC threats made against her in regard to the tea shop, but the panel's finding concerns a specific visit to the Appellant's home by Al Shabaab fighters. The RAD concurs with the panel's finding that this was a significant omission that goes to the heart of the claim and finds it was open to the panel to draw a negative inference. [60] The RAD concurs as well with the panel's finding concerning the Appellant's contact with her husband after he left Somalia. The RAD finds the difference between one contact and regular contact is sufficiently substantial to raise a doubt regarding the Appellant's credibility. [61] In regard to the Appellant's difficulty with dates, the RAD finds it was open to the panel to assess the Appellant's credibility by assessing her consistency in oral testimony with allegations contained in her BOC. The RAD further finds that there are relatively few dates concerning events that are central to this claim, that she provided specific dates in her BOC, and in spite of the Appellant's alleged difficulty with dates it was open to the panel to draw a negative inference from her inability to recall them. The RAD concurs with this finding. Country document evidence concerning the Appellants' objective risk in Somalia [62] The RAD notes that the Federal Court, in its consideration of the initial RAD decision in this case, stated that the RAD had not performed the required assessment of the NDP and that the Appellants' claim has not yet benefited from such an assessment. The Court's decision to allow the application for judicial review is founded on the RAD's failure to consider country condition documents "such that it cannot be considered to have conducted the necessary independent assessment of the evidence."10 [63] The RAD notes as well that the RPD panel did not mention country document evidence in its reasons. [64] As noted above, the RAD has admitted the 2014 US DOS Reports on Somalia and also other documents in the July 17, 2015 NDP.11 [65] The RAD has reviewed and assessed all of the documentary evidence in recent NDPs concerning the situation for minority clan members and in particular for women members of these clans, including the XXXX clan. [66] The RAD notes the Appellant states that she is vulnerable to persecution as a Somali woman belonging to an oppressed minority clan. The RAD finds that the documentary evidence cited by the Appellant is clear and convincing that the situation in Somalia places the Appellant and the minor Appellant at risk. [67] The RAD notes in particular "No One Cries for Them: The Predicament Facing Somalia's Minority Women"12 and "No Redress: Somalia's Forgotten Minorities"13 These documents make clear that persecutory abuse of minority women is pervasive in Somalia and there is no redress available to them. [68] The US DOS Report on Somalia14 states that minority clans, specifically including the XXXX clan, "continued to be disproportionately subjected to killings, torture, rape, kidnapping for ransom, and looting of land and property with impunity by faction militias and majority clan members." This document further states that the UNHCR and UNICEF have documented patterns of rape perpetrated with impunity, particularly of members of minority clans. [69] The Appellant submits that the determinative issue in their cases is their identity, whether as a Somali citizen of the XXXX clan, or simply as a Somali citizen who is a woman or girl. The Appellant further submits that if either national identity or clan were established, the Appellants should be determined Convention refugees. [70] The Appellants cite the Federal Court decision in Dezameau15 in which the Court stated that where the RPD finds that an applicant did not provide credible or trustworthy evidence, it must still give proper consideration to documentary evidence of gender-based violence. While the RAD has concurred above with the panel's credibility findings, it notes as well that the panel accepted that the Appellants were members of the minority XXXX clam. The RAD further notes that it has found that the Appellants are Somali citizens. [71] The RAD finds as well that while the panel's credibility findings are not insignificant, country document evidence cited above is sufficiently clear and convincing concerning evidence of persecution targeting women and in particular women who are members of minority clans to find that the Appellants' subjective fear of persecution in rooted is a clear objective basis that offsets the negative credibility findings of the panel. [72] The RAD finds that the Appellants have established that there are good grounds for fearing persecution and there is a serious possibility that they would be persecuted if they were to return to Somalia. Application for an oral hearing [73] The Appellants ask that an oral hearing be held pursuant to subsection 110(6) of IRPA. Section 110(3) of IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to subsection 110(6), the RAD may hold a hearing if in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and if accepted, would justify allowing or rejecting the refugee protection claim. The RAD finds that its positive decision in regard to these claims makes an oral hearing unnecessary. Therefore the request for an oral hearing is dismissed. Disposition [74] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and finds that the Appellants are Convention refugees. The appeals are allowed. (signed) "Milton Israel" Milton Israel September 30, 2015 Date 1 Exhibit P-2, Appellant's Record, at pp. 134-147. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit P-2, Appellant's Record, Index to Further Appeal Record, at p. 2. 4 Exhibit P-2, Appellant's Record, Index to Further Appeal Record, at p. 15. 5 Exhibit P-2, Appellant's Record, National Documentation Package (NDP) for Somalia (July 17, 2015), item 2.1, at pp. 30-44. 6 Exhibit P-2, Appellant's Record, NDP for Somalia (July 17, 2015), item 5.13, at pp. 45-76. 7 Exhibit RPD-1, RPD's Record, NDP for Somalia (February 3, 2014), item 3.1. 8 Exhibit P-2, Appellant's Record, at p. 29. 9 Exhibit RPD-1, RPD's Record, at pp. 10-11. 10 Exhibit P-3, Federal Court decision in Saalim, Sahra Salah v. M.C.I. (F.C., no. IMM-5932-14), Southcott, July 9, 2015, 2015 FC 841. 11 Exhibit P-2, Appellant's Record, NDP for Somalia (July 17, 2015), item 2.1, pp. 30- 44. 12 Exhibit P-2, Appellant's Record, NDP for Somalia (July 17, 2015), item 5.13, pp. 45-76. 13Exhibit RPD-1, NDP for Somalia (February 3, 2014), (July 17, 2015), item 13.1. 14 Exhibit P-2, Appellant's Record, NDP for Somalia, (July 17, 2015), item 2.1, at p. 42. 15 Dezameau, Elmancia v. M.C.I. (F.C., no. IMM-4396-09), Pinard, May 27, 2010, 2010 FC 559. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-03139 TB4-03140