TB8-27542

RAD File / Dossier de la SAR : TB8-27542 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 27, 2020 Date de la décision Panel D. Goff Tribunal Counsel for the person who is the subject of the appeal Paul Dineen Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the "appellant"), allegedly a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] In XXXX 2017, the appellant initiated an inland claim for refugee protection alleging a fear of persecution in Somalia. He alleged he was from XXXX XXXX Somalia, and is a member of the minority XXXX clan. He alleged Al Shabaab attacked his family at their store in XXXX 2017 and accused them of being informers for or supporters of the government. He allegedly fled Somalia that month and travelled to XXXX XXXX XXXX. He then allegedly travelled to Canada via airplane using a Canadian passport in XXXX 2017. [3] In a decision dated October 10, 2018, the RPD rejected the appellant's claim finding he had not established his identity. [4] The appellant argues the RPD decision is "unfair and fraught with errors". He asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either grant his claim for protection or, refer the matter back to the RPD for redetermination. He has provided new evidence and requested an oral hearing. DETERMINATION [5] The appeal is allowed. The RAD refers the matter back to the RPD for redetermination by a differently constituted panel pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act.1 ANALYSIS Role of the RAD [6] The panel has conducted an independent assessment of the evidence to assess whether the RPD's decision is correct pursuant to the direction of the Court.2 New Evidence [7] The appellant has submitted an affidavit from XXXX XXXX XXXX, dated XXXX XXXX, 2018. XXXX is an acquaintance from Somalia. He is currently residing in Toronto and was accepted as a Convention refugee by the RPD on October 19, 2018. [8] The panel accepts the affidavit from XXXX as new evidence for the purposes of this appeal. The document is relevant to the issue of identity. The new evidence also meets the requirements as established in the Raza3 decision, subject to the necessary adaptations in the context of the RAD. The RAD has accordingly admitted the new document and related submissions. Request for Oral Hearing [9] The panel has considered holding an oral hearing to provide a final determination of this claim. However, the panel finds it is unable to do so because the appellant's new evidence is not determinative of the claim before the RAD, as the RPD failed to assess the appellant's allegations of persecution and the merits of his claim for protection. The RPD further decided it would not consider the appellant's residual profile. The request for an oral hearing is therefore dismissed. The RPD's Findings on Identity [10] The RPD determined the appellant was not credible and failed to establish his identity. [11] The appellant argues that the RPD made several inappropriate and unfair errors, including by failing to give adequate weight to his evidence and by erring in its credibility findings. The appellant submits he provided consistent testimony about his Somali identity - albeit not as elegantly expressed as the country documents. He also argues it was wrong for the RPD to reject someone as Somali and an XXXX because of an incomplete knowledge of clan genealogy and spellings. [12] The RAD partly agrees with the appellant and finds the RPD failed to adequately consider the appellant's limited education, reliance on interpretation, as well as the different spellings and pronunciations of various words, when assessing the credibility of his testimony. For example, the RPD took a negative inference because "the claimant said one of XXXX subgroups was Sharif Alawi, the NDP [(National Documentation Package)] indicates there is one called Sharif Balaaw or Sharif Baalawi".4 The RAD does not agree with the RPD's analysis and finding in this regard. The RAD therefore finds the RPD erred in taking a negative inference as to the appellant's identity and credibility on this basis. [13] The RAD similarly finds the RPD erred in giving little weight to an affidavit from the appellant's aunt, accompanied by her identification, because it contained one spelling error and the apparent prevalence of fraudulent affidavits in Kenya. The Federal Court has repeatedly cautioned the Board against doing so. [14] Moreover, the RAD finds the RPD erred in extending its negative credibility findings to "...doubt the veracity of all of the claimant's evidence".5 The RPD failed to demonstrate that it independently assessed all of the appellant's evidence and to provide reasons why it did not consider it relevant or trustworthy, or why it chose to disregard it6 in establishing identity. With inadequate reasons provided by the RPD, the RAD has no way of knowing whether the RPD turned its mind to independently assess all the evidence fairly. The RAD finds the RPD's errors to be fatal to the RPD's determination on identity, which was the determinative issue in dismissing this claim. [15] The RAD notes the RPD is not required to refer to each and every piece of documentary evidence. However, the more important the evidence not specifically mentioned and analyzed in the Board's reasons, the more willing the Federal Court is to find that the RPD made an erroneous finding of fact without regard to the evidence,7 and the same reasoning is applicable to the RAD's review of the RPD's reasons. CONCLUSION [16] Upon its own review of the record, the RAD has its own concerns with credibility of the appellant. Nevertheless, as the RPD failed to independently assess the merits of the claim for protection, the RAD is of the opinion that it cannot provide a final determination of this claim. The matter is therefore referred back to the RPD for redetermination by a differently constituted panel. This appeal is allowed. (signed) D. Goff D. Goff August 27, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on June 21, 2019, at s. 111(1)(c). 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 3 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (CanLII). 4 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 7, para. 26. 5 Ibid., at p. 13, para. 52. 6 Nasufi v. Canada (Citizenship and Immigration), 2011 FC 586 (CanLII); Khan v. Canada (Minister of Citizenship and Immigration), 2003 FC 1076 (CanLII); Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC). 7 Dessie v. Canada (Citizenship and Immigration), 2011 FC 1497 (CanLII), at paras. 7-8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-27542 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français