TB6-07837

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 : TB6-07837 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 XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 8, 2016 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Paul Vandervennen Barrister & 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") appeals the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not tendered new evidence in this appeal, and he does not request an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision and substitute a determination that he is a Convention refugee or a person in need of protection. In the alternative, the Appellant asks that RAD refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. His appeal is denied. BACKGROUND [3] The Appellant alleged before the RPD that he is a citizen of Somalia who fears returning there because he is a member of a minority clan and has been targeted by Al-Shabaab and other clans in Somalia due to his family's practice of Sufism. [4] The Appellant's refugee determination hearing was held over three days, February 18, April 5, and April 20, 2016. In a written decision of May 17, 2016, the RPD rejected the Appellant's claim finding that the Appellant was not a credible witness and that he did not establish his identity as a member of the minority XXXX clan or his identity as a practitioner of Sufism. The RPD further found that the Appellant has not resided in Beledweyne over the past five years, as he has alleged, and that there is insufficient evidence adduced to establish his residency over the past ten years. ROLE OF THE RAD [5] The RAD finds that the Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. [6] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD decisions applying the correctness standard. Deference may be applied to RPD findings on credibility where, in the opinion of the RAD, the RPD is better positioned to make those findings. Thus, after carefully considering the RPD's decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ANALYSIS OF THE MERITS OF THE CLAIM [7] The Appellant submits that the RPD erred in its findings with regard to the credibility of his allegations and in particular submits that the RPD made the following errors in coming to its determination on his claim: (a) The RPD erred in making adverse credibility finding with regard to his residency in Beledweyne between 2011 and 2016; (b) The RPD erred by failing to make a clear finding with regard to his membership in the XXXX clan; and (c) The RPD erred in finding that he was not a member of the Sufi sect of Islam. [8] After its own review and assessment of the evidence in the claim, the RAD finds that the determinative issue in this appeal is whether the Appellant has established his residency in Somalia at the material time. The RPD found that the Appellant did not provide reliable evidence to establish where he has been living during the past ten years, what he has been doing or in which country. [9] The RAD notes that section 106 of the IRPA and Rule 11 (of the Refugee Protection Division Rules)2 make it clear that a claimant must provide acceptable documents establishing identity and other elements of the claim or provide an explanation why they were not provided and what steps were taken to obtain them, a corollary of which requires that a claimant provide acceptable documents (or other evidence) to establish residency at the material time. [10] A cousin of the Appellant testified on behalf of the Appellant that he remembers meeting him in Beledweyne in the XXXX to XXXX 2004 time period. He also testified that the Appellant is a member of the XXXX clan, as he is. The Appellant has also tendered a letter from the Somali Multi-Service Centre which states that the Appellant is from the town of Beledweyne and is a member of the XXXX clan. The RAD notes that neither the witness nor the letter provides any evidence of the Appellant's recent residency in Somalia. The only other evidence the Appellant adduced to establish his residency was his own testimony. For the reasons that follow, the RAD finds that the Appellant's testimony of his residency cannot be relied upon. Discrepancy with the Port of Entry Notes [11] The Appellant submits that the RPD noted a discrepancy between the information he gave at the port of entry and his testimony concerning the death of his father and whom he feared in Somalia. The RPD noted that, according to Schedule "A", question 4,3 the Appellant stated that his father, XXXX XXXX, died in 1995 and that his mother died in 1996. This form was completed at the Emerson, Manitoba port of entry on XXXX XXXX, 2015 and declared before a Canada Border Services Agency (CBSA) officer. However, according to the Basis of Claim (BoC) form, his father was living in Kampala, Uganda when the form was signed on October 19, 2015 with the assistance of counsel. It also states that his mother died in 1996. The RPD also noted that, when the Appellant was asked whom he feared, he made no mention of fearing Al-Shabaab and made no allegations that he was being persecuted by them, only that he fears stronger clans in Somalia. [12] The Appellant essentially submits that the RPD did not make clear findings with regard to the discrepancy, but even if the discrepancy leads to an adverse inference, it is a peripheral issue that does not affect the substance of his claim. [13] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the Appellant provided the explanation that he was tired and not psychologically or mentally stable at the time and that this accounted for the discrepancy. The RAD rejects the explanation. The declaration is a nine-page, pre-printed document that was filled out by hand. It includes details about the Appellant's wife and three children including their dates of birth. The Appellant stated in the declaration that his father died in 1995 and his mother died in 1996. He provided extensive details about his travels through Latin America. An interpreter's declaration dated October 11, 2015 states that the interview, notes and declaration were interpreted to the Appellant in Somali. [14] As noted by the RPD, although fatigue can reasonably explain some degree of confusion, it does not reasonably explain why he was able to provide significant details about his family including that his mother died in 1996 but was confused as to whether his father was alive or whether he died over twenty years previous. As further noted by the RPD, the Appellant was not arriving from Somalia, but from the United States, where he had already made an asylum claim. Given that he came to Canada for the express purpose of making a refugee claim, he had ample time in the United States prior to arriving in Canada to prepare for his entry into this country, and, as such, he ought to have been able to provide accurate details regarding his father's death. The RAD further notes that the statement that his father died in 1995 is found in both the declaration4 and Schedule "A". [15] Although the RPD did not make clear findings with regard to this discrepancy, the RAD finds that the jurisprudence requires the RAD to make its own findings on the facts. The RAD finds contrary to the Appellant's argument that these discrepancies are not peripheral but are integral to the Appellant's allegations. The RAD finds that the discrepancies undermine the Appellant's allegations in his BoC and his testimony that his father is alive. This finding is significant in that the Appellant has alleged that his father advised him in 2011 to study with Sufi scholars, and it was there that he was attacked by Al-Shabaab. [16] In addition, as noted by the RPD, the Appellant did not identify risk from Al-Shabaab upon arrival in Canada and did not retain a copy of the U.S. asylum officer's conclusion that he had not established a credible fear of persecution. As a result, the Appellant was not in a position to provide evidence from this American asylum claim that would substantiate risk from Al-Shabaab prior to drafting his Basis of Claim form. Although the RPD found that the Appellant's explanation for not mentioning Al-Shabaab at the port of entry was plausible, the RAD cannot agree. The RAD finds that the discrepancy with regard to whether his father was alive at that time and his failure to mention Al-Shabaab at the port of entry as agents of persecution whom he feared undermines the allegations that he studied with Sufi scholars and was attacked by Al-Shabaab and further undermines his allegations that Al-Shabaab continued to pursue him and that he fled his home district to escape them. Residency in Beledweyne [17] The RPD drew an adverse inference with regard to the Appellant's testimony that he resided in Beledweyne based on his lack of knowledge regarding key events and governance. Although he acknowledged that the Appellant had some knowledge of the city that was consistent with once having lived there in 2004, his lack of knowledge of more recent events led the RPD to conclude that it was unlikely that the Appellant was living in Beledweyne during the material time period of 2011 to 2016 as alleged. [18] The Appellant submits that the RPD misconstrued the evidence about when he was living in Beledweyne. He argues his evidence was that he did not live in Beledweyne after 2011 when he went to the Sufi camp. He went from the Sufi camp to Mogadishu and from there, he moved to a border town near Ethiopia. He further argues that, when Al-Shabaab came to his home in 2014, he was not living there. It was a fundamental error for the RPD to state that he should have known that he could have gone to the African Union Mission in Somalia (AMISOM) for protection. [19] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that although it is clear that the RPD erred in stating that the Appellant resided in Somalia in 2016, the RAD finds that the Appellant's argument that he did not live in Beledweyne after 2011 is inconsistent with his testimony and the allegations that the Appellant has made in his other refugee documents. The RAD notes that, while it is true, the Appellant alleges that he spent time at a Sufi Camp, the Appellant stated that it was in the same district of his home in Beledweyne. The Appellant also alleges that he lived for a period of time in Mogadishu and Kahanley; he was unclear about how long he remained in those cities. [20] The RAD notes that the Appellant declared under oath during an interview with Immigration authorities after entering Canada that he got married in Beledweyne in XXXX 2012.5 He further declared his sole residency was in Beledweyne from birth until he left there in XXXX 2015.6 In addition, his Generic Application Form7 included declaration forms for his three children in which he declared that they had all been born in Beledweyne in 2012, 2013 and 2014. Finally, the RAD notes that the Appellant declared in his Schedule "A" of his refugee application documents8 that his sole residency in Somalia was in Beledweyne from birth until he left Somalia in XXXX 2015. [21] The RAD finds it reasonable to expect that, if the Appellant resided outside Beledweyne for extensive periods of time, his residency in those locations would be reflected in his supporting documents. The RAD notes that the Appellant has been represented by competent counsel since his refugee claim. The RAD notes that the instructions for completing the claim documents instruct the Appellant to include all addresses of residency for the past ten years. The Appellant has tendered amendments to his Basis of Claim documents, and it is reasonable to expect that, if the Appellant had resided in locations out of Beledweyne from 2011 until he left Somalia, those addresses or cities would have been included in the claim documents. [22] The RAD finds that inconsistencies in the Appellant's claim documents undermine his argument that he did not live in Beledweyne from 2011 until he left Somalia in XXXX 2015. [23] The Appellant further submits that, although he was incorrect about the date that al-Shabaab was expelled from the town, he did provide some correct information about the current and previous two governors of Hiran. [24] The RAD is not persuaded by the Appellant's argument in this regard. Notwithstanding the foregoing, the RAD finds it is reasonable to expect that, even if the Appellant did not reside in Beledweyne during the material time, given he has alleged that the agents of persecution were pursuing him in Beledweyne and that his family experienced persecution at the hands of those in pursuit of him that he ought to be aware of the current circumstances as it relates to governance and state protection. The Appellant has alleged that he was aware of the circumstances of the events which occurred to his family and that he was in contact with his family. Even though the Appellant was able to correctly identify the last three Hiran governors; he was not aware of the District Commissioner or that Beledweyne had elected a mayor. When asked about municipal governance, the Appellant was only able to refer to the Governor of Hiran Region. As noted by the RPD, the Appellant's recollection of Beledweyne was consistent with having lived there in 2004 and inconsistent with a more recent residency. The Appellant described Beledweyne as a town with a tribal administration, but with no central government. He was unaware that Al-Shabaab was expelled from Beledweyne in December 2011. He was unaware that Beledweyne has a functioning police force with a police headquarters that operates under the mandate of Djiboutian AMISOM troops that likely could provide some protection. [25] The RAD notes that the Appellant has alleged that he lived in Beledweyne from birth until he left Somalia in 2015. The RAD finds it reasonable to expect him to have greater knowledge of the city at the time he alleges that he and his family were suffering persecution. His lack of knowledge of the city at the material time undermines his allegations that he resided in the city at that time. [26] Taking into consideration the adverse credibility findings with regard to the Appellant's allegations that he had been attacked and was being pursued by Al-Shabaab, the RAD finds that the Appellant's testimony about where he resided in Somalia cannot be relied upon. As such, the RAD agrees with the RPD that the Appellant has not established his residency in Somalia at the material time. Once the RPD had determined that the Appellant had not established his identity in Somalia at the material time, there was no need for the RPD to go on to assess the merits of the claim. [27] Though the RPD erred by determining that the Appellant could return to Somalia when the Appellant had not established his recent residency there, the RAD finds that the error is not determinative of this claim. [28] The panel finds, on a balance of probabilities, that the Appellant has failed to produce sufficient credible evidence to establish his recent residency of Somalia as required by section 106 of the Immigration and Refugee Protection Act and Rule 11 of the Refugee Protection Division Rules. CONCLUSION [29] The RAD agrees with the RPD and finds, based on the totality of the evidence, that the Appellant has not established his residency in Somalia and has not established that there is a serious possibility that he would be persecuted in Somalia or that, on a balance of probabilities, he would be personally subjected to a danger of torture, or face a risk to life, or a risk of cruel and unusual treatment or punishment in Somalia. [30] The RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection. [31] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division. (signed) "L. Favreau" L. Favreau September 8, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Rule 11, Immigration and Refugee Board (IRB), Refugee Protection Division (RPD) Rules. 3 Exhibit RPD-1, RPD's Record, Schedule "A" IMM 5669 Form, pp. 51-54. 4 Exhibit RPD-1, RPD's Record, Report under Subsection 44(1) of the IRPA, IMM 5480 form, pp. 95-105. 5 Exhibit RPD-1, RPD's Record, report under Subsection 44(1) of the IRPA, IMM 5480 form, pp. 95-105. 6 Exhibit RPD-1, RPD's Record, report under Subsection 44(1) of the IRPA, IMM 5480 form, pp. 95-105. 7 Exhibit RPD-1, RPD's Record, Generic Application Form, IMM 0008 Form, pp. 37-50. 8 Exhibit RPD-1, RPD's Record, Schedule "A" IMM 5669 form, pp. 51-54. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07837