TB6-07832

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 : TB6-07832 Private Proceeding / Huis clos Redetermination of the Appeal - Nouvelle décision relative à l'appel Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 22, 2018 Date de la décision Panel G. Erauw Tribunal Counsel for the person(s) who is(are)the subject of the appeal Eve Sehatzadeh 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") is a citizen of Somalia and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find that he is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests the RAD refer the matter back to the RPD for redetermination by a differently constituted panel. The Appellant has requested to submit new evidence and has not requested an oral hearing. DETERMINATION OF THE APPEAL [2] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA),1 the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. This appeal is allowed. Background [3] The Appellant alleges that he is a member of the minority XXXX clan and that he fears the XXXX clan and Al Shabab if he returns to Somalia. In 1992, he alleges that the XXXX clan confiscated his family's property and that he was burned and his father was murdered during this incident. In XXXX 2013, the Appellant alleges that a military officer by the name of XXXX, who belongs to the XXXX clan, forcibly took his family's home and threatened them if they resisted or complained. [4] As a result of his family's home being expropriated, the Appellant and his mother fled to XXXX XXXX where his grandmother lives. While living in XXXX XXXX, the Appellant's mother opened a shop, but Al Shabab started requesting taxes and requesting the Appellant join them. When the Appellant refused, he alleges that he was kidnapped and held prisoner for one month. He also states that Al Shabab sentenced him to beheading for disobeying Al Shabab's rules and for refusing to join their organization and not paying them taxes. The Appellant managed to escape and made his way to Kenya, where he then travelled to South America and then to the U.S. where he made a refugee claim. His claim in the U.S. was refused, afterward he made his way to Canada and made a refugee claim. Further details are provided in his Basis of Claim (BOC) Form, and his testimony at the RPD hearing.2 The RPD's Decision [5] The Appellant had a refugee determination hearing on September 9 and September 22, 2015. In a written decision issued on September 30, 2015, the RPD rejected the claim. Although the RPD accepted he was a Somali citizen, the RPD panel found the Appellant failed to establish his clan identity as XXXX. Therefore, the RPD concluded that the Appellant does not have a well-founded fear of persecution on a Convention ground, or that he would not personally be subjected to a risk to life or a risk of cruel and unusual treatment or a danger of torture upon return to Somalia. First Appeal to the RAD [6] The Appellant appealed to the RAD, arguing the RPD erred in its credibility assessment of his clan identity, and that it failed to consider his well-founded fear of persecution based on his risk from Al Shabab. By a decision of August 10, 2016 (the first RAD decision), the appeal was rejected. The RAD confirmed the RPD's credibility findings and found that the Appellant did not face a risk of persecution from Al Shabab if he returned to Somalia. The RAD also found that his failure to claim asylum in the Convention countries he travelled through on his way to the U.S. and Canada, undermined his subjective fear. Judicial Review [7] The Appellant sought and was granted leave for judicial review. By a judgment of May 5, 2017, the Federal Court granted the judicial review and returned the matter to the RAD for reconsideration by another member. The Federal Court found that the RAD breached procedural fairness by raising subjective fear as a new issue and for failing to notify the Appellant and giving him an opportunity to provide submissions on why he did not make his refugee claim earlier.3 ROLE OF THE RAD [8] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness in accordance with the Federal Court of Appeal's decision in Huruglica.4 In assessing findings involving the credibility of oral testimony, the RAD may apply the modified standard of reasonableness in situations where the RPD enjoys a meaningful advantage.5 Unless otherwise stated in the reasons, the RAD uses the correctness standard on all findings and will consider the overall refugee determination on a standard of correctness, even where the RAD has deferred on some or all findings. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [9] In support of his appeal, the Appellant proposes 11 documents as new evidence: a) Letter of Somali-Canadian Cultural Society of Edmonton, dated 25 June 2016;6 b) Affidavit of XXXX XXXX XXXX, dated 27 June 2016;7 c) Emails to Former RAD Counsel, dated 27 June 2017;8 d) Letters from Law Society of Manitoba, dated 31 May 2017;9 e) Affidavit of the Appellant's Cousin, XXXX XXXX XXXX, dated 11 June 2017;10 f) Letter from Center for Social Development, dated 9 June 2017;11 g) Documents of Shipment and DHL, dated 13 June 2017 and 16 June 2017;12 h) Letter from XXXX XXXX XXXX, dated 13 June 2017;13 i) Affidavit of the Appellant's Friend, XXXX XXXX XXXX, dated 19 June 2017;14 j) Affidavit of the Appellant's Friend, XXXX XXXX XXXX, dated 19 June 2017;15 and, k) Affidavit of Interpreter, Madina Ahmed Mohamud, dated 22 June 2017.16 [10] Evidence from the person who is the subject of the appeal is only admissible on appeal if it meets one of the statutory conditions set out in subsection 110(4) of the IRPA, namely that it arose after, or was not reasonably available, or could not reasonably have been expected in the circumstances to have presented the evidence at the time the claim was rejected. If one of these conditions is met, the RAD will then consider if the evidence is credible, relevant, and new as endorsed by the Federal Court of Appeal in Singh.17 The Appellant's Submissions on Admissibility of New Evidence [11] The Appellant basically argues that his evidence is admissible and meets 110(4) because of the issues with his former RAD counsel's representation at his first appeal. This includes his former counsel's failure to: inform him of the content of the RPD's decision; canvass possible interpretation errors with him; discuss what documents would have been useful for him to gather in support of his appeal; and, disclose two documents to the RAD that the Appellant emailed to him. Due to the deficiencies of his former counsel, the Appellant submits that his new evidence be admitted in this appeal. Such evidence includes: letters about his complaint to the Law Society of Manitoba about his former counsel; affidavits of his cousin and friends attesting to his XXXX identity; affidavit of his teacher proving that he was in India to send the letters from via DHL; and, a letter from the NGO who raised funds to send his mother in-law to India for treatment.18 The RAD's Assessment of the New Evidence Submitted on Appeal [12] I accept the Appellant's submissions and I find the Appellant's new documents, with the exception of documents a) and e), are admissible as new evidence. I find the documents from the Law Society of Manitoba, suggesting that his former counsel at the RAD did not provide adequate representation, to be a reasonable explanation for why his new evidence could not have been provided earlier. I also find that the above listed new documents (except a) and e)) meet 110(4) because they speak to issues arising from the RPD's decision, which the Appellant could not have anticipated until reviewing the RPD's decision. These new documents also appear new and credible on their face, as they post-date the RPD's decision and include sworn affidavits from individuals he did not know were in Canada until after the RPD's decision. Therefore, I find documents b) - d), and f) - j) are admissible as new evidence. [13] With regard to documents a) and e), I find they are inadmissible. In particular, I note that document a), the letter from the Somali-Canadian Cultural Society of Edmonton, is not relevant to an issue in this appeal. That letter attests to the Appellant's identity as a Somali citizen, but his national identity as a Somali citizen was accepted by the RPD, and is not disputed in this appeal. In regard to document e), the letter from his cousin, this is inadmissible for lack of "newness". The content of this letter simply reiterates the content of other supporting letters and other documentary evidence in the RPD record, such as from his teacher and his neighbour. Also, as a credibility issue, the cousin does not indicate how she acquired the information she states in her letter, so even if it was admitted it would be given no weight. Therefore, I find documents a) and e) are inadmissible under subsection 110(4). Request for an Oral Hearing [14] The Appellant makes no submissions under rule 3(3)(g)(v) on why the RAD should hold a hearing under subsection 110(6). [15] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.19 [16] In this appeal, the Appellant's new evidence pertains to establishing his XXXX identity, which the RAD has accepted, in order to find that his XXXX identity has been established on a balance of probabilities. The RAD is able to make this determination based on the RPD record and the new evidence under 110(4) and without an oral hearing. Therefore, the RAD chooses not to hold an oral hearing in this case. ISSUES IN APPEAL [17] The Appellant argues the following issues in his appeal, which I have rephrased as follows for ease of reference: 1) The RPD erred by rejecting his XXXX identity; and, 2) The RPD failed to assess his risk from Al Shabaab.20 [18] However, as discussed below, I find that the first issue is determinative. ANALYSIS XXXX Identity The RPD's Decision [19] The RPD accepted as credible the Appellant's personal and national identity as a citizen of Somalia, based in part on his birth certificate and marriage certificate. However, it did not accept that the Appellant established his ethnic and clan identity as a XXXX on a balance of probabilities. In reaching this conclusion, the RPD noted the following concerns with the Appellant's testimony and evidence about his clan identity. [20] First, the RPD noted that his testimony about the specific occupations of persons from the XXXX clan was evolving and unreliable about his identity as a XXXX. In this regard, the RPD found the Appellant made no reference to the occupational basis that divides clans in Somalia and his testimony changed from saying he was a shoe-shiner to saying he was not a shoe-shiner when discussing his occupation.21 [21] Second, the RPD found his letters of support from his neighbour and teacher, as well as his wife deserved no weight. It found that the letter from his neighbour and teacher were very similar, the letters each had the same date, and his description of how they arrived in Canada from India was implausible. The RPD also observed that he provided no evidence that his teacher, Mr. XXXX, travelled to India in order to send the letters from India to Canada via DHL. With respect to his wife's letter, the RPD found the Appellant gave vague and implausible testimony about his wife's mother going to India for surgery. In particular, the RPD noted that the Appellant could not recall the name of the NGO that paid for her surgery there, despite having frequent contact with his wife at the time. The RPD concluded that the Appellant fabricated the response that his mother in-law had surgery in India with NGO assistance, in order to account for the inconsistency that his allegedly marginalized and poor wife and mother in-law were able to obtain medical treatment outside Somalia.22 [22] Third, the RPD found that there was a significant inconsistency between the Appellant's testimony and that of his witness. Namely, the Appellant stated that "they never visited for long - mostly we would just chat at each other's house", but the witness stated "we played outside together." The RPD found that unlike the other questions, which were answered consistently, this question was less easy to anticipate and prepare for, which warranted a negative inference to the reliability of the witness. The RPD also noted that although the witness knew the Appellant's clan identity, the Appellant did not know the witness' clan identity. This was problematic given the National Documentation Package (NDP) documents indicate that clan is very important for all social interactions in Somalia. The RPD concluded that the witness' testimony of having known the Appellant for many years is not reliable. The RPD stated that where they were consistent, it was simply a product of preparation.23 [23] Fourth, the RPD further found the Appellant is not a reliable witness because one of his two documents about his father's death in 1992 indicated he was killed by a stray bullet. Therefore, it did not support his allegation that his father died in 1992 as a result of a targeted killing based on his minority clan identity.24 The Appellant's Argument Testimony Regarding Minority Group Membership [24] The Appellant argues that the new evidence regarding the interpretation issues at the first sitting of his RPD hearing, adequately explain that his responses were not accurately interpreted to the RPD. Specifically, he notes that he indicated to the interpreter that there was a misinterpretation about his occupation and about whether he was a shoe shiner and if he helped his father. However, the RPD did not get this message and incorrectly made a negative credibility finding because of this misinterpretation. Furthermore, the Appellant submits that the RPD failed to consider that he did testify that the XXXX was a disadvantaged group who were left to do lower-level jobs, such as blacksmiths, shoe-shining, and bringing water to people with a donkey cart. This testimony is corroborated by the information in the NDP, but not considered by the RPD.25 His Supporting Letters Mailed from India [25] In addition, the Appellant argues that his new evidence from his teacher, Mr. XXXX, establishes that his mother in-law did travel to India for medical treatment and that it was plausible that the supporting letters were mailed from India. To support this, the Appellant provides a letter from his teacher explaining the situation, including evidence of a visa he obtained for India showing that he travelled to India a week before the documents were sent to Canada via DHL. Also, his new evidence from the NGO who funded the mother in-law's medical treatment shows that they were in India for the reasons provided during the hearing. Therefore, the Appellant submits that the RPD erred in its credibility finding about the letters and that it was plausible that his teacher travelled to India, his mother in-law went to India for medical treatment, and that the support letters were sent to him from India.26 The RAD's Assessment Testimony Regarding Minority Group Membership [26] I agree with the Appellant and I find the RPD erred. As submitted by the Appellant, I find that the affidavit of the interpreter clearly demonstrates that the RPD erroneously concluded that the Appellant's testimony was evolving and unreliable about his clan's traditional occupation. The Appellant did testify about his clan, that they typically did low-level jobs, and that his father was a shoe shiner and his brother was a water carrier with a donkey. Also, as indicated by the interpreter, he informed the RPD that he helped his brother a little, but did not help his father because he was young. He also indicated and attempted to clarify that he did not say that he was a shoe shiner at any time. I find the interpreter's affidavit warrants significant weight in this respect, based on its contents and my review of the record. The Appellant provided consistent and credible testimony about his minority group membership and its occupations, as well as the occupations of his family members. I find the Appellant's testimony was not evolving or unreliable. Therefore, I conclude this credibility finding of the RPD cannot stand. His Supporting Letters Mailed from India [27] I accept the Appellant's argument that his teacher did travel to India and sent his support letter together from India with the Appellant's wife's letter, and his neighbour's letter. The Appellant's teacher provides a copy of his Indian visa to show that he travelled to India a week before the letters were sent from India. I am satisfied that the Appellant's teacher did travel to India and from there sent supporting documents to Canada. In addition, I have no reason to doubt the letter from the Center for Social Development indicating that the Appellant's mother in-law was funded by the organization to obtain medical care. Given this otherwise uncontradicted evidence, I find the RPD erred in concluding that it was implausible for the Appellant's teacher to travel to India and to send documents to him from there. I also find the RPD erred in finding the Appellant not credible because he testified that an NGO funded his mother in-law's treatment in India. There is now evidence to support his testimony. Finally, in regard to the dates on the letters from his teacher, his neighbour and his wife, Mr. XXXX provides a reasonable explanation for why they are similar. He explains that the date on the Appellant's neighbour's letter was added in India, once they realized it was missing, and he further explains that he and the Appellant's wife wrote their letters while in India, so that is why they are all dated the day they were mailed. Therefore, I find the RPD erred and that the fact that the letters were sent from India with the same date is plausible. Totality of the Evidence [28] Considering the RPD's errors above with respect to the Appellant's minority clan, I find the RPD's determination that the Appellant is not a member of the XXXX group, due to its credibility concerns, is unsustainable. As a result, its determination that he is not a credible witness is also unsustainable. [29] In conducting my own independent assessment of the record, I note that identity findings must be based on the totality of the evidence.27 In this case, I find that the Appellant has established on a balance of probabilities, with sufficient credible and trustworthy evidence, that he belongs to the XXXX clan. The Appellant provides many supporting documents attesting to his XXXX identity, as well he provides credible testimony about this minority group. The supporting documents include letters from his wife, his neighbour in Somalia, his teacher in Somalia, and now three friends in Canada have sworn affidavits attesting to his XXXX identity. [30] Furthermore, the documentary evidence is consistent with his testimony. The documentary evidence indicates that the XXXX are also known as XXXX or XXXX people and the XXXX can be divided in four other sub-groups: XXXX XXXX XXXX XXXX, XXXX, and XXXX.28 Documentary evidence indicates that the traditional occupations of the XXXX XXXX XXXX) include shoemaking and hairdressing. Also indicated is that they can only obtain jobs as street sweepers or janitors, shoe maker/shoe mender, shoe polishing, blacksmith, potter, circumcision practitioner, hunter, tanner, well-diggers and water carriers.29 The Appellant indicated that the XXXX are known as shoemakers, blacksmiths, and metalworkers, and that his father was a shoe shiner and that his brother was a water carrier, both considered low-level occupations. The Appellant was also quite detailed in his testimony about his clan's lineage, stating that XXXX and XXXX was the larger group, his clan was XXXX, his sub-sub group was XXXX. [31] Based on the totality of the evidence, I find on a balance of probabilities that the Appellant is XXXX. Well-founded Fear of Persecution [32] As noted above, the XXXX is a minority clan in Somalia. The United Nations High Commissioner for Refugee report International Protection Considerations with Regard to People Fleeing Southern and Central Somalia indicates that persons belonging to minority clans remain at a particular disadvantage in Mogadishu and other parts of Southern and Central Somalia.30 [33] Minority Rights Group International (MRG) indicates that civil war, and later an Islamist insurgency against a weak transitional government in south-central Somalia, have forced thousands of minorities from their homes, both to other parts of Somalia and abroad. Minorities have been targeted due to lack of protection as well as, in some cases, for their religious or other traditional beliefs and practices.31 A United Kingdom Home Office report on Somalia indicates that minority groups, often lacking armed militias, continued to be disproportionately subject to killings, torture, rape, kidnapping for ransom, and looting of land and property with impunity by faction militias and majority clan members.32 The documentary evidence also indicates there is no guarantee of clan protection in Somalia, in particular members of minority clans and ethnic minority groups are vulnerable.33 Those from a minority clan cannot depend on a clan's protection or support, especially if they have no family to return to in Somalia.34 This is consistent with the Appellant's testimony and the allegations in his BOC about why he fled Mogadishu. In this respect, I note that the RPD did not impugn the credibility of his allegations that a XXXX military officer confiscated his family's home in 2013 and threatened his family. Therefore, I find this credible. [34] The Appellant's evidence is consistent with and is not contradicted by country condition documents. Thus, there is an objective basis to support the Appellant's subjective fears and there is a well-founded fear of persecution. The RAD finds that the Appellant has established, with sufficient credible evidence, a well-founded fear of persecution in Somalia based upon his ethnicity as a XXXX man. [35] The RAD finds, on a balance of probabilities, the Appellant is from a minority clan (XXXX). The RAD concludes, given the particular circumstances of this Appellant and the situation in Somalia, that there is no adequate state protection or an internal flight alternative (IFA) in Somalia for the Appellant. The RAD finds that the Appellant has established more than a mere possibility of persecution should he return to Somalia under section 96 of the IRPA based on his ethnicity. [36] Since the RAD finds that the Appellant faces more than a mere possibility of persecution under section 96 of the IRPA, there is no need to address the other issues raised by the Appellant. CONCLUSION [37] Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee, as he has a well-founded fear of persecution on the basis of his ethnicity as a member of the minority XXXX clan. This appeal is allowed. (signed) "G. Erauw" G. Erauw February 22, 2018 Date 1 Paragraph 111(1)(b), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA] 2 Exhibit RPD-1, RPD's Record, Appellant's BOC, at pp. 17-29; and Exhibit RPD-1, RPD's Record, Audio Recording. 3 Mohamed v. M.C.I., 2017 FC 450 [unreported]. 4 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 5 X (Re), 2017 CanLII 33034 (CA IRB). 6 Exhibit P-3, Appellant's Additional Disclosure, Letter of SCCSE, at pp. 14-15. 7 Exhibit P-3, Appellant's Additional Disclosure, Affidavit of Mr. XXXX, at pp. 17-18. 8 Exhibit P-3, Appellant's Additional Disclosure, Emails to Former RAD Counsel, at pp. 16, 19-20. 9 Exhibit P-3, Appellant's Additional Disclosure, Letters from Law Society of Manitoba, at pp. 22-30. 10 Exhibit P-3, Appellant's Additional Disclosure, Affidavit of Appellant's Cousin, at pp. 33-37. 11 Exhibit P-3, Appellant's Additional Disclosure, Letter from Center for Social Development, at p. 39. 12 Exhibit P-3, Appellant's Additional Disclosure, Shipping Documents, at pp. 42-44. 13 Exhibit P-3, Appellant's Additional Disclosure, Letter from Mr. XXXX, at pp. 47-51. 14 Exhibit P-3, Appellant's Additional Disclosure, Affidavit of Mr. XXXX, at pp. 52-57. 15 Exhibit P-3, Appellant's Additional Disclosure, Affidavit of Mr. XXXXX, at pp. 58-63. 16 Exhibit P-3, Appellant's Additional Disclosure, Affidavit of Interpreter, at pp. 64-68. 17 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 18 Exhibit P-3, Appellant's Additional Disclosure, Affidavit of the Appellant, at pp. 7-12; Exhibit P-3, Appellant's Additional Disclosure, Further Submissions, at pp. 1-7. 19 Subsection 110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. 20 Exhibit P-3, Appellant's Additional Disclosure, Further Submissions, pp. 3-10; and Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 43-51. 21 Exhibit RPD-1, RPD's Record, RPD's Reasons and Decision, pp. 7-8, at paras. 15-17. 22 Exhibit RPD-1, RPD's Record, RPD's Reasons and Decision, pp. 8-11, at paras. 18-35. 23 Exhibit RPD-1, RPD's Record, RPD's Reasons and Decision, pp. 12-13, at paras. 36-43. 24 Exhibit RPD-1, RPD's Record, RPD's Reasons and Decision, p. 13, at para. 44. 25 Exhibit P-3, Appellant's Additional Disclosure, Further Submissions, at pp. 6-7. 26 Exhibit P-3, Appellant's Additional Disclosure, Further Submissions, at pp. 3-5. 27 Yang, Mei v. M.C.I. (F.C., 5717-08), Snider, June 30, 2009, 2009 FC 681 at para. 6. 28 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Somalia (17 July 2015), item 13.7, Response to Information Request (RIR) SOM104589.E, Immigration and Refugee Board of Canada (7 October 2013), at p. 1. 29 Ibid., item 13.13, RIR SOM104239.E, Immigration and Refugee Board of Canada (4 December 2012), at pp. 3-4; and item 13.18, Austria. Federal Ministry of the Interior (2013), at p. 3. 30 Ibid., item 1.10, HCR/PC/SOM/14/01, United Nations. High Commissioner for Refugees (January 2014), at p. 11. 31 Ibid., item 13.1, Minority Rights Group International (November 2010), at p. 3. 32 Ibid., item 1.7, United Kingdom. Home Office (September 2013), p. 39, section 3.11.3. 33 Ibid., item 1.7, United Kingdom. Home Office (September 2013), p. 39, section 3.11.4. 34 Ibid., item 1.10, HCR/PC/SOM/14/01, United Nations. High Commissioner for Refugees (January 2014), at p. 9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07832