TB7-22082

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 : TB7-22082 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 20, 2018 Date de la décision Panel Angus Grant Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A Kaminker 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 (a.k.a. XXXX XXXX XXXX) is a citizen of Somalia. She appeals a decision of the Refugee Protection Division (RPD), dated September 12, 2017, rejecting her claim for refugee protection. On appeal, the Appellant has not submitted new evidence and does not request an oral hearing. DETERMINATION [2] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently constituted panel. BACKGROUND AND OVERVIEW OF APPEAL Basis of the Appellant's Claim [3] The Appellant claims to be a citizen of Somalia, from the Bakol Region, and a member of the minority Ashraf clan. According to the information she has provided, at the time of her hearing, she was 18 years old. She alleges that her mother was killed in 2016 by Al Shabaab after they accused her of being a spy. Later in that same month, the Appellant alleges that three Al Shabaab members came to the family gas station where she was working and one of them told her he wanted to marry her. Her brother XXXX managed to persuade him not to take her that day, and that she would go with him the next day. That same evening, her father made arrangements for her to go to XXXX XXXX and stay with her father's friend. When the men returned the next day and did not find her, they killed her brother, XXXX. [4] The claimant alleges that she remained in XXXX XXXX until enough money was raised for her to leave Somalia and go to Kenya where her maternal aunt, XXXX, lives. The claimant alleges that she remained in Kenya with her aunt until a smuggler was found to help her travel to Canada. [5] Further details of the Appellant's claim are set out in the RPD Record and in the materials submitted by the Appellant. Rather than recite them here, I shall refer to them as necessary throughout these reasons. [6] Because of the nature of the allegations in this matter, I have taken into consideration the Chairperson's Gender Guidelines.1 I will indicate in my reasons where I have specifically applied the Guidelines. The RPD Decision [7] The RPD found that the Appellant had failed to establish her personal identity or her nationality on a balance of probabilities and rejected her claim for refugee protection on this basis. It based this determination on a number of credibility findings, which I shall consider in the below analysis. SCOPE OF THE RAD APPEAL [8] The Appellant has a statutory right to appeal to the RAD from a decision of the RPD on questions of law, fact or mixed law and fact.2 The standard of review on such questions is correctness, where there is no issue of credibility of oral evidence.3 In defining this standard of review, the Federal Court of Appeal in Huruglica held that the legislative purpose of the RAD is to serve as a "safety net" that would catch all mistakes made by the RPD.4 This requires the RAD to carry out its own independent analysis of the RPD record to determine whether, as submitted by the Appellant, the RPD erred.5 The RAD as a true specialized appeal tribunal must come to its own conclusions based on a fresh review of the evidence.6 ISSUES [9] As noted above, the RPD based its determination on the sole issue of identity. On appeal, the Appellant argues that the RPD erred in each of the credibility findings that it identified in concluding that the Appellant had failed to establish her identity. I will consider these findings in turn. ANALYSIS [10] The RPD correctly indicated at the outset of its analysis that refugee claimants bear the onus of producing acceptable evidence establishing their identity.7 However, the countervailing consideration to this well-established principle in the Somalian context is that official documentation of one's identity will rarely be available. As the Federal Court recently noted, "[I]t is well-established that government documents in Somalia are virtually unobtainable, such that its refugee claimants must establish their identities through secondary sources."8 It is with these two considerations in mind that I will engage in my own analysis of the RPD decision. The Appellant's Efforts to Establish her Personal Identity [11] The RPD found that the Appellant had failed to make reasonable efforts to establish her personal identity. It based this conclusion on a number of findings, several of which I find to have been made in error. [12] First, the RPD drew a negative inference because the Appellant had not adduced evidence from her father, who continues to reside in Somalia, to help establish her identity. However, in arriving at this conclusion, I find that the RPD failed to adequately consider the testimony of the Appellant, most notably that she had difficulty obtaining her father's phone number, that when she did obtain the number and was able to get through to him, the connection was bad and dropped after she told him who was calling, that she has unsuccessfully tried calling him back "many times" and that he has never called her since she has been in Canada. The panel did not indicate in its reasons that it disbelieved this testimony and, as such, I conclude that it erred in finding that the Appellant did not make serious efforts to obtain a letter from her father. Indeed, it is not immediately apparent to me what further efforts the Appellant could have made to communicate with her father. [13] I also find that the RPD erred in failing to consider the Appellant's explanation as to why she did not obtain an affidavit from an aunt who resided in XXXX, namely that she had already sought an affidavit from her aunt XXXX with whom she had resided in Kenya and that she had no relationship with this other aunt and did not have her contact information. [14] I further agree and adopt as my own the Appellant's arguments as to how the RPD erred in attributing no weight to the affidavit of her Kenyan aunt. Most notably, the RPD erred in finding that there was a material discrepancy in the spelling of the aunt's name. Recalling the Appellant's age, literacy and level of education, I do not believe that any adverse inference can be drawn from the Appellant's misspelling in her Basis of Claim (BOC) form of her aunt's name. [15] The RPD further provided contradictory reasons for dismissing the affidavit. On the one hand, it found that the Appellant had failed to explain how she obtained her aunt's affidavit. On the other, it found fault with the submitted email message containing the affidavit because it did not indicate the "internet protocol" address. With respect, it was clearly implicit in the Appellant's disclosure of the e-mailed attachment that this was how she had obtained her aunt's affidavit. It is also unclear from the record how providing the internet protocol would have assisted the panel in discerning where the email originated. [16] The aunt's affidavit does inaccurately state that the Appellant's "only family members" were killed in October, 2016. However, read in the context of the entire affidavit, I do not believe that this error seriously undermines its reliability. This is most notably because in the paragraph preceding the general statement that the Appellant had lost her only family members, the aunt sets out specifically what happened in October, 2016, namely that it was only her mother and brother who were killed by Al Shabaab militants. [17] Finally, I agree with the Appellant that the fact that she stated that her aunt lived in Kenya for a "long time" when her identity card indicates that she was born in Kenya should not have been a basis on which to draw a negative inference. [18] I further accept the Appellant's arguments that the RPD erred in drawing a negative inference because she had not made efforts to obtain school documents from the elementary school that she attended in XXXX, Somalia. As noted by the Appellant, the documentary evidence establishes that obtaining reliable records from Somalia is very difficult in light of the ongoing instability and lack of any central governmental authority. The evidence further establishes that since the collapse of the Somali government there has been no formal education system in the country.9 I further note that in arriving at its conclusions on this point, the RPD paid little attention to the Appellant's very brief attendance at school, or her oral testimony that her schooling was frequently interrupted due to school closures arising from the civil war. The Appellant's whereabouts prior to coming to Canada [19] The RPD further found that the Appellant's "Schedule A" form and her BOC contained errors concerning the sequence and timing of her departure from her home in XXXX, Somalia. The Appellant explained that she appeared at her referral interview with Immigration, Refugees and Citizenship Canada with her completed forms. The "Schedule A" form contained an error that was immediately apparent: it indicated both that the Appellant had stayed in XXXX until December, 2016 and that she had commenced living in XXXX XXXX, Somalia in October, 2016. When this mutually incompatible information was pointed out to the Appellant by the immigration officer, she became confused and agreed to make changes to her forms that were inaccurate. The RPD rejected this explanation. [20] Taking into consideration the Appellant's age, sophistication, education and the Gender Guidelines, I conclude that the explanation provided by the Appellant was plausible and that the RPD erred in failing to adequately consider the above factors in rejecting it. The Appellant's National Identity Card [21] The RPD further erred in finding an inconsistency in the Appellant's testimony that she never had a national identity card in Somalia, but did have a cell phone. The RPD found that this testimony further undermined the Appellant's credibility, as documentary evidence suggested that a national identity card is required in order to obtain a SIM card in Somalia.10 When confronted with this information, the Appellant denied that this was actually the case. While it is true that the document relied upon by the RPD cites one individual as suggesting that a national identity card is required to obtain, amongst other things, a SIM card, the document goes on to state that "in practice, the identity card 'is rarely used to do anything other than [serve] as a precursor to obtaining a passport.'"11 As noted by the Appellant, other evidence before the RPD indicated that since the civil war in Somalia, the government has ceased to regulate telecom networks and that private networks have emerged in the absence of state control.12 In neglecting to acknowledge this key evidence as to the actual situation in Somalia, the RPD erred. The claimant's evidence concerning her travel to Canada [22] The panel further erred in conflating two different individuals who assisted the Appellant after she had arrived in Canada. In the Appellant's testimony, she clearly indicated that she was assisted by a Somali stranger named XXXX at the airport in Toronto, who took her to a restaurant where she met another individual named XXXX XXXX, with whom she has been living since that time.13 The RPD panel wrongfully found that the Appellant had stated that she met XXXX XXXX at the airport. In finding that this information conflicted with the affidavit of Ms. XXXX, who indicated they met at a restaurant, the Panel drew an adverse inference with respect to the Appellant's credibility and gave the affidavit no weight. In fact, the Appellant's testimony was entirely consistent with the account provided in Ms. XXXXs affidavit, and the RPD erred in finding otherwise. [23] I further find that the RPD panel provided an insufficient basis on which to dismiss another affidavit submitted in support of the Appellant's claim - this one sworn by XXXX XXXX XXXX, a Canadian permanent resident who purported to know the Appellant from Somalia. I agree with the RPD panel that there were shortcomings with the affidavit evidence and that it would have been preferable to have had an original copy of the affidavit to present to the Panel. However, in my review of the affidavit, together with the consistent testimony of the Appellant as to how she met and knew the affiant, I find the RPD erred in attaching "no weight" to the affidavit in its assessment of the Appellant's identity. The affidavit may not have been sufficient, on its own, to establish the Appellant's identity, but I disagree with the RPD's finding that its shortcomings warranted attaching no weight to it. Conclusions with respect to the RPD's identity findings [24] In the above analysis, I have outlined a number of errors committed by the RPD in its assessment of the Appellant's claim for refugee protection. Cumulatively, I find that these errors call into question the correctness of the RPD's conclusion that the Appellant had failed to establish her identity. REMEDY [25] Having found that the RPD erred in rejecting the Appellant's claim, I must consider the appropriate remedy in this case. Because the RPD's decision is confined to the issue of identity and did not deal with the substance of the claim put forward by the Appellant, and because I have found that the RPD erred in its identity analysis, I conclude that the RAD cannot provide a final determination in this claim. As a result, I am compelled to refer this matter to the Refugee Protection Division for re-determination, pursuant to paragraph 111(1)(c) of the IRPA. CONCLUSION [26] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for redetermination by a differently constituted panel. (signed) "Angus Grant" Angus Grant September 20, 2018 Date 1 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 2 Sections 110 and 111 of the Immigration and Refugee Protection Act. 3 M.C.I. v. Huruglica, 2016 FCA 93, at para 103. 4 Ibid., at para 98. 5 Ibid., at para 103; Marin v. M.C.I., 2016 FC 847, para 32; Bersie v. M.C.I., 2016 FC 900, para 17. 6 Marin, ibid.; Bersie, ibid. 7 Citing Su v. Canada (Citizenship and Immigration), 2012, 2012 FC 743; Duale v. Canada (Citizenship and Immigration), 2004, 2004 FC 150. 8 Ali v. Canada (Citizenship and Immigration), 2018 FC 688, at para. 6. 9 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Somalia, 31 May, 2017, Item 3.8 Response to Information Request (RIR), SOM104486.E Birth registration, including the issuance of birth certificates; the registration of children attending school; title deeds; whether the owner of a home or business must obtain a title deed. 10 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Somalia, 31 May, 2017, Item 3.11, RIR, SOM105248.E Somalia: Identification documents, including national identity cards, passports, driver's licenses, and any other document required to access government services; information on the issuing agencies and the requirements to obtain documents. 11 Ibid. 12 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package for Somalia, 31 May, 2017, Item 1.14 RIR, SOM105092.E Somalia: Prevalence of cell phones and Internet cafes in Mogadishu, including the ability to use cell phones for financial transfers. 13 Audio-recording of RPD hearing at 39:40. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-22082