TB7-19708

RAD File / Dossier de la SAR : TB7-19708 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 25, 2019 Date de la décision Panel T. Cheung Tribunal Counsel for the person(s) who is(are) the subject of the appeal Lina Anani Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The Appellant, XXXX XXXX XXXX, appealed a decision of the Refugee Protection Division (RPD), dated August 11, 2017, rejecting his claim for refugee protection. The RPD member rejected the claim for reason that the Appellant had not established his personal identity or his nationality as a Somali citizen. The RPD member made a number of negative credibility findings with regards to the Appellant's testimony about his identity and nationality.1 Appellant's claim [2] The Appellant claims he was born in Mogadishu, Somalia, and that he is a citizen of no other country. He claims that in 2010, he was badly beaten up by a man from the majority clan, Habar Gadir, because the Appellant belongs to the minority clan, XXXX XXXX. The Appellant was threatened over the next five years. In 2014, the Appellant fell in love and secretly entered into a "marriage" with XXXX, who belongs to the majority clan, Habar Gadir. According to the Basis of Claim (BOC), the union was not an official marriage, but a union akin to an official engagement presided over by a Sheikh. Shortly after the clandestine engagement to XXXX, the Appellant's father arranged for the Appellant to marry his first cousin from his father's side of the family. The Appellant could not refuse this arranged marriage. After the arranged marriage, XXXX told her family that she had secretly "married" the Appellant. This revelation prompted XXXX father, accompanied by two other men, to attend at the Appellant's house to severely beat up his father and sister; the perpetrators also attempted to shoot the Appellant. [3] The Appellant fled to Ethiopia, where a smuggler helped him travel to the United States (US) to make an asylum claim. The Appellant traveled through nine countries in South and Central America before reaching the US. He was detained in Panama and Mexico. While the Appellant was in Columbia, he learned that XXXX was pregnant, and that her family had forced her to have an abortion. XXXX family again harassed and threatened the Appellant's family, if they did not reveal the Appellant's whereabouts. The US asylum claim was rejected on XXXX XXXX, 2015. Fearing that his life would be in danger in Somalia, the Appellant fled to Canada to make a refugee claim.2 DETERMINATION [4] The appeal is allowed. The Appellant has proven his identity and his Somali citizenship. Due to the breach of procedural fairness at the RPD hearing and the new medical evidence that indicates the need for procedural accommodations, the matter is remitted to the RPD for redetermination by a differently constituted panel pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA). ROLE OF THE RAD [5] The applicable standard of review is correctness on questions of law, fact, or mixed fact and law where there is no issue of credibility in the oral evidence.3 The RAD can accord deference when the RPD has a meaningful advantage in making a finding of fact or mixed fact and law.4 Unless otherwise stated, the standard of review of the RPD decision is correctness. The RAD carries out an independent review of the record, on a correctness standard, to determine whether the RPD erred.5 NEW EVIDENCE [6] The Appellant's application for the admission of new evidence is granted for the reasons that follow. The Appellant requested the following documents to be admitted as new evidence: a. an affidavit from XXXX XXXX XXXX, a childhood friend from Somalia who became reacquainted with the Appellant in Canada after the RPD decision6; and, b. a letter from the Appellant's medical doctor stating the Appellant has been under his care for the past year for the management of diabetes.7 [7] Section 110(4) of IRPA provides that "the person who is subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection."8 Affidavit from XXXX XXXX XXXX [8] Mr. XXXX attested in his affidavit that he has knowledge that the Appellant is a citizen of Somalia; he is a member of the XXXX XXXX clan; his father is a Somali citizen; and the Appellant was living in Mogadishu, Somalia as a child. According to Mr. XXXX affidavit, he and the Appellant lived in neighbouring districts when they were children: they attended the same mosque, spent time together in activities, such as sports, movies, and swimming. After Mr. XXXX fled Somalia in 2009, he kept in regular contact with the Appellant until 2015 when they lost contact. [9] Mr. XXXX, now a permanent resident of Canada, was sponsored to Canada as a refugee in October 2015. Mr. XXXX settled in XXXX, Ontario9. Mr. XXXX ran into the Appellant in Toronto in October 2017 at the Somali Immigrant Aid Organization, when Mr. XXXX was seeking assistance with accommodations in Toronto. They became reacquainted and renewed their friendship.10 [10] Approximately eight months after Mr. XXXX was sponsored to Canada, the Appellant entered Canada on XXXX XXXX, 2016,11 and filed the BOC in June 2016.12 The RPD hearing was heard a year later on July 7, 2017, and the decision was rendered on August 11, 2017. Given the disruptive circumstances of Mr. XXXX fleeing Somalia for safe refuge and being sponsored to Canada as a refugee, it is plausible that Mr. XXXX and the Appellant lost contact in early 2015. As Mr. XXXX settled in XXXX, Ontario approximately eight months prior to the Appellant settling in Toronto, it is plausible that they did not have contact with one another until the chance encounter in Toronto in October 2017. As such, Mr. XXXX affidavit is evidence that arose after the rejection of the claim. [11] Turning to the assessment of the new evidence for credibility, relevance and newness, as required by Singh and Raza,13 I find Mr. XXXX affidavit is credible, as the presumed truthfulness of the sworn statements therein has not been rebutted. The affidavit is relevant to the issue of identity, as it speaks to the Appellant's presence in Somalia when he was a child, and it attests that the Appellant's father is Somali. The affidavit is new evidence that can rebut the negative identity finding by the RPD. Accordingly, Mr. XXXX affidavit is admissible as new evidence in support of the Appellant's claim. Medical note [12] The medical note written on XXXX XXXX 2018 confirms that the Appellant has been treated for the management of diabetes for the past year. The medical doctor states that the Appellant has difficulties controlling his glucose, which renders him prone to sweating, palpitations, tremors, hunger and fatigue, and difficulties with cognitive functions, such as memory or concentration. The medical doctor has been working towards stabilizing his diabetes and can expect further improvement over time. [13] I accept the Appellant's argument that his cognitive functioning has been impacted by the medical condition which hindered him from obtaining the medical note in time for the RPD hearing. The impact of the medical condition on the Appellant's concentration and memory is a plausible explanation as to why the Appellant could not reasonably have been expected to have disclosed the medical evidence at the RPD hearing. [14] Turning to the assessment of the medical note under the Singh and Raza14 factors of credibility, relevance and newness, I find the medical evidence is credible, as the physician is a reliable source. The letter is relevant, as it presents a plausible explanation for the confusion exhibited by the Appellant in his testimony. The medical letter is new in that it could inform the RPD member for the need to make procedural accommodations, such as frequent health breaks, to allow the Appellant to regain his focus and concentration, if he appeared to lack focus during testimony due to the medical condition. ANALYSIS [15] Having reviewed the RPD record and testimony, I find the RPD misconstrued the concepts of credibility, implausibility, probative value, and insufficiency of evidence. The RPD erroneously made credibility findings which were, in actuality, findings of insufficient evidence or implausibility without expressly identifying the implausibility. The RPD member erred in assigning no weight to the documentary evidence of the affidavit of XXXX XXXX XXXX and the letter from Dejinta Beesha. These errors in the assessment of the evidence led the RPD member to find that the Appellant had not established his personal identity, his Somali citizenship, or that he was in Somalia during the alleged time.15 Non-genuine birth certificate does not impugn the Appellant's credibility [16] The RPD erred in drawing a negative inference from the Appellant's willingness to obtain a fraudulent identity document.16 It is an established principle that it is peripheral and not probative of general credibility if a refugee claimant escaping persecution travels on false documents, destroys travel documents or lies about travel documents in following an agent's instructions.17 Applying this principle, I do not draw a negative inference from the existence of an inauthentic birth certificate as the Appellant stated in his BOC that he engaged a smuggler who provided him with "fraudulent passports and other documents" to facilitate his entry into the US where he made an asylum claim.18 [17] The RPD drew a negative inference from the Appellant's initial lack of candour in his testimony concerning the US immigration authorities finding a fraudulent birth certificate in his bag. Although the Appellant could have been forthright about the existence of a fraudulent birth certificate when he was first asked questions by the RPD member, the inconsistent testimony does not impugn the Appellant's credibility because the Appellant was candid in the BOC that the smuggler gave him fraudulent documents, and he later admitted in his testimony to possessing the inauthentic birth certificate which was seized by the US authorities. Veiled implausibility finding regarding documents related to the journey to the US [18] The RPD panel drew a negative inference from the Appellant's lack of efforts to obtain records from the countries where he traveled prior to entering the US, especially since he was detained in Panama and Mexico. The RPD member found it highly suspicious that the Appellant would throw away documents issued to him in his name from immigration authorities in Columbia, Panama, Costa Rica and Mexico, when he was traveling to the US without government issued identity documents from Somalia. The RPD's reasoning underlying the negative inference is a veiled plausibility finding.19 As there was no contradiction or inconsistencies identified in the evidence, the RPD's disbelief and rejection of the Appellant's explanation is in actuality a finding that it is not plausible that the Appellant did not regard such documents as important.20 [19] A tribunal may make adverse findings of credibility based on the implausibility of a claimant's story, provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases (i.e. if the facts, as presented, are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant).21 [20] I find the RPD erred in making a veiled plausibility finding, as the circumstantial evidence does not support a clear finding that it is implausible for the Appellant to dispose of immigration documents issued to him while travelling to the US and Canada to seek refuge. Testimony related to the Appellant's family members [21] The RPD member drew a negative inference from the Appellant's failure to provide a reasonable explanation for the discrepancies in his testimony and documentary evidence concerning his family members. The RPD member also drew a negative inference from the lack of a clear explanation as to whether it was the Appellant or his family members who initiated contact in March 2015. [22] Apart from the US asylum claim forms and the BOC, the Appellant disclosed no documentary evidence from family members in support of his refugee claim. Two months after his arrival in the US, the Appellant completed a Withholding of Removal form on June 23, 2015 (US asylum form), stating the whereabouts of his mother and two siblings were unknown, and that his father and two other siblings were in Mogadishu, Somalia.22 A year later on June 15, 2016, the Appellant stated in the BOC that his entire family including his wife were in Somalia, but their exact location was unknown. However, the BOC narrative states that his family contacted him in March 2015 while he was in transit in Colombia. The Appellant testified at the RPD hearing that March 2015 was the last time he had spoken with his family, and that he does not know whether his parents and siblings are alive. The Appellant seemed confused at the hearing and testified that he did not understand the question in the US asylum form. [23] The Appellant submitted at the RAD that the RPD member was aggressive, abrupt, and interrupted the Appellant's testimony, which caused the Appellant to be afraid and stressed, which worsened his medical condition and affected his ability to fully respond to the questions from the RPD member. The Appellant submitted that the conduct of the hearing breached the principles of procedural fairness and natural justice.23 There is merit in the Appellant's argument. [24] A review of the testimony reveals the RPD made an error in the assessment of the oral testimony concerning the Appellant's knowledge of the whereabouts of his family members and who contacted whom first. Firstly, the testimony can be characterized as an exchange of questions and attempted answers by the Appellant, interrupted by cross-talk.24 The RPD member asked questions in such a manner that the Appellant was not given the opportunity to explain himself without being interrupted by the RPD member. With respect, I find the RPD member should have managed the testimony in the hearing room by allowing the Appellant to finish his answers before interrupting him. [25] The disruptive exchange between the RPD member and the Appellant likely caused the RPD member to err in drawing a negative inference from the "failure to provide a reasonable explanation for the discrepancy between his oral and written evidence."25 In this regard, the Appellant was not accorded procedural fairness at the RPD hearing, as his testimony was abruptly cut short by the RPD member, before he was able to finish his sentences about his knowledge of the whereabouts of his family members. [26] In another instance, the Appellant was not accorded procedural fairness when the RPD member did not answer the Appellant's question to clarify whether the RPD member was asking about the US asylum forms or the BOC; the RPD member erroneously assumed the Appellant can decipher the form shown to him which is in English.26 The breach of procedural fairness resulted in the error of the RPD member drawing a negative inference from the Appellant's failure to provide a reasonable explanation for the inconsistency between the BOC that states his family is in Somalia, and his testimony that he did not know whether they are dead or alive since March 2015.27 [27] It is only in the RAD's independent review of the testimony that I was able to filter out the cross-talk from the transcript, to ascertain that the Appellant attempted to explain the last contact he had with his family was in March 2015, and one month later, he indicated in the US asylums forms that his father and three siblings were in Mogadishu, but he has since lost contact with his family members because his phone was taken away.28 Hence, by the time of the RPD hearing in 2017, he did not know the whereabouts of his family and he was not aware whether his family members are dead or alive. The Appellant's testimony is plausible, as he made it clear that he last had contact with his family in March 2015; hence, it is plausible that one month later, the Appellant would believe that his father and three siblings were in Mogadishu, and would state this belief in the US asylum forms. However, by the time of the RPD hearing two years later, the Appellant no longer knew the whereabouts of his family members in Somalia, as he lost contact with them after March 2015. [28] Regarding the inconsistency as to whether it was the Appellant who contacted his family or his family who contacted the Appellant in March 2015, the RPD member did not consider the Appellant's explanation that he initially needed to contact his family through XXXX who would go to his family's place to facilitate the phone call.29 The RPD's assessment of the evidence is microscopic in its finding of a discrepancy as to whether the Appellant called XXXX or vice versa, after XXXX arrived at this family's place. Such is a minor inconsistency that is immaterial to the issue of the Appellant's identity, and does not impugn the Appellant's credibility. [29] Moreover, in light of the new medical evidence, it is not possible to ascertain whether the Appellant's testimony about his family members was impacted by his medical condition that affected his concentration and memory. Testimony related to the sale of land [30] The RPD committed an error in drawing a negative inference from the conclusion that nine days is an unreasonable amount of time for the Appellant's father to sell a piece of land to fund the Appellant's exit from Somalia. Such a finding is a veiled implausibility finding. This is not the clearest of cases in which an implausibility finding is justified30 because the RPD member did not explain how the evidence, as presented, is outside the realm of what could reasonably be expected, or that the documentary evidence demonstrates that the events could not have happened in the manner asserted by the Appellant. [31] The line of questioning by the RPD member on this issue contained much cross-talk, which the RPD member should have managed and controlled. In the confusion that ensued, the RPD member erroneously did not consider the testimony that his father was already in negotiations to sell the land for proceeds for the marriage and to start a business.31 [32] The Appellant was not accorded procedural fairness because the RPD member did not facilitate the Appellant to clarify his testimony, but rather allowed cross-talk to disrupt the flow of testimony which created an environment wherein the Appellant could not put his best case forward. For example, the RPD drew a negative inference from the internal inconsistency in the Appellant's testimony that his father sold the land for proceeds for his marriage, but the land was sold 8 days after the marriage date. It was an error on the part of the RPD member to not put this inconsistency to the Appellant for an explanation. Based on a review of the testimony, it appears the RPD was relentless in finding fault with the Appellant's testimony when it drew a negative inference from the sale of land by the Appellant's father after the marriage. [33] The foregoing errors call into question the RPD's finding of serious doubt on the Appellant's whereabouts prior to entering the US, and whether he was in Somalia at the relevant times. Testimony related to the lack of education documents [34] The RPD drew a negative inference from the Appellant's testimony that he called his school in 2016 to request school documents only to be informed that the school had been destroyed by the war in 2012. The RPD found the Appellant's testimony both confusing and evolving as to why he would call the school in 2016, if he knew of the school's destruction because he was still in Somalia in 2012.32 [35] The RPD testimony on this issue contains cross-talk that hindered the Appellant's ability to explain himself. The RPD member wrongly characterized the testimony as evolving and cut short the Appellant's ability to explain himself.33 Having reviewed the testimony, I find the RPD member erred in not providing an explanation for rejecting the Appellant's testimony that he called the management of the school after the school was destroyed, because the former school administration may have saved the school documents. The Appellant's explanation is plausible. [36] The Federal Court of Canada has cautioned on erroneous credibility findings used in a broad sense, when in actuality it is the insufficiency of evidence that is the basis of an adverse finding.34 As there is no basis to reject the Appellant's explanation that the school was destroyed in the war, the lack of school documents is an aspect of insufficient evidence, rather than a negative credibility finding. Affidavit of XXXX XXXX XXXX [37] The RPD assigned no weight to the affidavit from XXXX XXXX XXXX (a permanent resident of Canada residing in Alberta)35 for reason of credibility concerns outlined in the RPD decision, and the Appellant did not arrange for the affiant to testify by telephone in order for the RPD panel to test the veracity of the statements in the affidavit.36 [38] It is an error for the RPD to assign no weight to the affidavit for the following reasons. Firstly, based on the RAD independent review of the evidence, the Appellant's credibility has not been impugned such that that a general lack of credibility extends to all relevant evidence emanating from his testimony.37 Second, the affidavit is a sworn statement that is presumed to be truthful unless there is evidence to the contrary. Thirdly, the RPD made an error in imposing a requirement that an affiant must be questioned before the affiant is believed. Section 171 of IRPA stipulates that the RAD is not bound by any legal or technical rules of evidence. It is an error to assign little weight to the affidavit evidence merely because the affiant was not called as a witness to test the credibility of his statements."38 [39] The RPD member did not challenge Mr. XXXX credibility by identifying which aspect of Mr. XXXX affidavit is inconsistent with the other evidence, which would negatively impact the credibility of the affiant or the Appellant. Rather, the RPD member assigned no weight to Mr. XXXX affidavit because the affiant was not available to testify.39 [40] Mr. XXXX affidavit is probative of the Appellant's identity. Mr. XXXX states in his affidavit that he met the Appellant in early 2010 in Mogadishu at his aunt's house, as the Appellant lived near his aunt. Mr. XXXX and the Appellant became close friends through their mutual interest in soccer. The last time Mr. XXXX saw the Appellant in Somali was in June 2014 before Mr. XXXX left Somalia for Canada to claim refugee status. Mr. XXXX, now a permanent resident of Canada, was a refugee sponsored by the Canadian government. The Appellant contacted Mr. XXXX in Canada through a mutual friend.40 [41] Although the affidavit of XXXX XXXX XXXX corroborates the Appellant's presence in Somali between 2010 and 2014, the affidavit is silent on the Appellant's clan membership, the Appellant's union with XXXX, and the arranged marriage with his first cousin. Therefore, although Mr. XXXX affidavit is probative of the Appellant's identity, the affidavit is not probative of the Appellant's claim. Letter from the Somali community organization [42] The RPD erred in assigning no weight to the letter from the Somali community organization, Dejinta Beesha. One paragraph in the letter is germane on how Dejinta Beesha assesses undocumented refugee claimants to determine if they are of Somali origin: 41 Dejinta Beesha community verification assessment policy for undocumented refugee claimant clients from Somali origin refugee follow a rigorous process of assessment a writing questionnaire in Somali language script was well as oral interview through the Somali mother tongue language, background geography, history, heritage and culture of Somalia from a professional Somali settlement counsellor. [43] The letter could have provided more detail about the rigours of the verification process to assess a claimant's nationality, such as the qualifications of the assessor, the length of the oral interview, the questions asked, and the answers given; and the letter could have disclosed the notes produced at the oral interview. That said, the RPD erred in outright assigning no weight to the entirety of the letter, without giving an explanation for the rejection of the contents of the letter, even if the letter could have provided more detail. [44] Instead, the RPD focused on irrelevant considerations, such as there is no evidence that the author of the letter and Appellant knew each other prior to meeting in Canada or prior to the Appellant making his refugee claim. The lack of prior association does not negate the community organization's assessment of the Appellant. The RPD made another irrelevant consideration that there is no evidence that Dejinta Beesha independently interviewed the Appellant's relatives to confirm his identity. This is an irrelevant consideration as the whereabouts of the Appellant's relatives are unknown according to the testimony and documentary evidence. [45] These irrelevant considerations erroneously tainted the RPD's assessment of the Dejinta Beesha letter because there is no basis to infer that the letter is not credible or reliable. In the RAD's independent review of the evidence, I find the letter is positive evidence in favour of finding the Appellant's nationality is Somali, as there is no indication that the author of the letter lacks credibility. That said, I assign lesser probative value to the letter because the letter contains little detail about the rigours of the verification process to assess a claimant's nationality, such as how the assessor was qualified and what questions were asked to determine the Appellant's nationality. Letter from XXXX XXXX XXXX [46] The RPD made a negative credibility finding and assigned no weight to the letter from XXXX XXXX XXXX (the XXXX letter) in establishing the Appellant's identity because the Appellant was unable to produce the original letter for the RPD to verify where the letter originated or who authored the letter.42 The letter was emailed by the author from an internet café in Somalia to XXXX XXXX who translated the letter. The email address indicates a recipient named XXXX XXXX, but the Appellant does not know a person by this name. [47] In response to the RPD's questioning as to why he has not produced the original letter, the Appellant stated that there is no DHL in Somalia, and therefore no means to send documents out of Somalia. The RPD was correct in citing the objective country condition evidence that DHL is available in Somalia to courier documents from Somalia to the rest of the world, including Canada. However, I am not able to ascertain whether the Appellant's inability to explain the email routing of the XXXX letter is due to his lack of knowledge, or whether his testimony was impacted by the compromised cognitive functioning due to the medical condition described in the medical note admitted as new evidence. Therefore, the origins and genuineness of the XXXX letter is not ascertainable without another RPD hearing to allow the Appellant to testify with procedural accommodations on account of the medical condition. The letter from Mr. XXXX is material to proving the claim because it corroborates the claim that the Appellant hid after he was targeted by the majority clan. [48] I find the RPD erred in drawing a negative inference from the omission in the XXXX letter that the Appellant was taken to XXXX hospital where he was treated for 2 days for injuries caused by the beating by the majority Habar Gadir clan.43 It is trite law that documentary evidence is assessed for what it does say, rather than what it does not say.44 Decision of the US immigration judge did not raise identity as an issue [49] The identity and nationality of the Appellant was not raised as an issue by the US immigration judge. The US immigration judge found the Appellant's testimony was generally internally consistent and thus, credible. 45 The US asylum claim was rejected because the Appellant failed to submit sufficient evidence that he was persecuted on account of his membership in the minority clan, XXXX XXXX, despite having several months to obtain declarations or affidavits from family members or other clan members.46 [50] The RPD committed an error in not considering the US decision. The US decision is not determinative of the Appellant's identity; nor is the RPD required to adopt any findings by the US immigration judge. However, unless the US decision is devoid of merit, there should be consideration of the US decision.47 Although not determinative of the Appellant's identity in this appeal, the positive credibility finding by the US immigration judge and the lack of contentiousness over the Appellant's identity in the US decision are countervailing considerations against the RPD's negative finding on the Appellant's identity. Letter from XXXX XXXX XXXX [51] The Appellant's counsel was given until July 24, 2017 for closing submissions to be filed in writing.48 The Appellant's counsel faxed the closing written submissions to the RPD on August 9, 2017.49 On August 10, 2017, the Appellant's counsel disclosed a letter from the Appellant's friend, XXXX XXXX XXXX from Sioux City, Nebraska.50 The RPD's decision was issued the next day. Although the letter is not an affidavit, as submitted by the Appellant's counsel, the letter submitted after the RPD hearing, is an additional document that is subject to a Rule 43 application pursuant to the RPD Rules. [52] Given the circumstances, there was no error by the RPD member in not considering the letter in the reasons for decision, as there is no indication that the letter came to the attention of the RPD member. The letter may not have reached the RPD member's desk prior to the signing of the decision, as it was received by the tribunal only one day prior. As the letter is now in the RAD Record, there is no bar to the Appellant relying on the letter as evidence in the RPD redetermination. Affidavit of XXXX XXXX XXXX [53] The affidavit of XXXX XXXX XXXX, admitted as new evidence, is proof of the Appellant's identity and Somali citizenship. Mr. XXXX affidavit attests that the Appellant's father is a Somali citizen. The Somali law of citizenship stipulates that any person whose father is a Somali citizen shall be a Somali citizen by operation of law.51 CONCLUSION [54] To sum up, the RPD impugned the Appellant's credibility based on a number of errors in the credibility assessment: a. The RPD made erroneous credibility findings on the basis of the Appellant's use of fraudulent documents provided by the smuggler. It is not in accordance with the jurisprudence to make negative credibility findings based on non-genuine documents to escape the country of persecution.52 b. The RPD erred in making a veiled implausibility finding related to the lack of documents from his journey to the US. c. The Appellant was not accorded procedural fairness as his testimony about the sale of land was interrupted with cross-talk which the RPD member should have controlled. d. The lack of school documents was misconstrued as an adverse credibility finding, when it is actually a finding of insufficient evidence. e. The Appellant was not accorded procedural fairness in his testimony about his family members, which led the RPD to err in drawing a negative inference. f. Although the US decision is not determinative, the RPD member erred in not considering the positive credibility finding of the US immigration judge and the lack of contention over the issue of the Appellant's identity. [55] As the RPD made errors in its negative assessment of credibility, the RPD erroneously assigned no weight to the affidavit of XXXX XXXX XXXX. The RAD's independent review of the record reveals there is little basis to rebut the presumption of truth of Mr. XXXX affidavit. [56] Irrelevant considerations tainted the RPD's assessment of the Dejinta Beesha letter. The Dejinta Beesha letter is positive evidence in favour of finding the Appellant's nationality is Somali, as there is no indication that the author of the letter lacks credibility or is not reliable. Although I assigned less weight to the Dejinta Beesha letter because it lacked details of the process used to evaluate the Appellant, I find the Dejinta Beesha letter, in conjunction with the affidavits of XXXX XXXX XXXX and XXXX XXXX XXXX, are sufficient proof, on a balance of probabilities, of the Appellant's identity and Somali citizenship. [57] The two affidavits attesting to the Appellant's identity are not probative of the merits of the claim. In light of the new medical evidence, it is unknown whether the Appellant's inability to explain the email route of the XXXX letter is due to deficits in his concentration and memory caused by the medical condition. Therefore, the credibility and probative value of the XXXX letter is not ascertainable without another RPD hearing convened for a redetermination of the merits of the claim. [58] For all of the foregoing reasons, the appeal is allowed. Pursuant to section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. DIRECTION [59] At the RPD hearing for the re-determination of the merits of the claim, the RAD directs the Appellant to be accorded procedural accommodations that account for his medical condition. (signed) "T. Cheung" T. Cheung April 25, 2019 Date 1 RPD Record, pp. 5 and 17, RPD Reasons and Decision, para. 7, 10, and 49. 2 Exhibit RPD-1, RPD Record, Exhibit 2, pp.27 to 30. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 103. 4 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 70. 5 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 103. 6 Exhibit P-2, Appellant's Record, pp. 21-23. 7 Ibid., p. 24. 8 Section 110(4), Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 9 Exhibit P-2, Appellant's Record, p. 23. 10 Exhibit P-2, Appellant's Record, pp. 21 to 22, Affidavit of XXXX XXXX XXXX. 11 Exhibit RPD-1, RPD Record, Exhibit 1, p. 52, Report Under Subsection 44(1) Of The Immigration And Refugee Protection Act. 12 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim (BOC), p. 31. 13 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 51; Raza, Syed Masood v. M.C.I. (F.C.Appellant., no. Appellant-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in M.C.I. v. Singh, Parminder (F.C.Appellant., no. Appellant-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 14 Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 51; Raza, Syed Masood v. M.C.I. (F.C.Appellant., no. Appellant-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in M.C.I. v. Singh, Parminder (F.C.Appellant., no. Appellant-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 15 Exhibit RPD-1, RPD Record, RPD Decision, p. 17, para. 49. 16 Exhibit RPD-1, RPD Record, p. 7, RPD Reasons and Decision. 17 Koffi v. Canada (Citizenship and Immigration), 2016 FC 4 (CanLII), <http://canlii.ca/t/gms6t>, para. 41 to 51 and 56; Rasheed v Canada (Minister of Citizenship and Immigration), 2004 FC 587 (CanLII) at para 18, [2004] FCJ No 715 (QL); Gulamsakhi v Canada (Minister of Citizenship and Immigration), 2015 FC 105 (CanLII) at para 9, [2015] FCJ No 271 (QL). 18 Exhibit RPD-1, RPD Record, Exhibit 2, p. 28, Basis of Claim form, para. 19. 19 Exhibit RPD-1, RPD Record, p. 8 to 9, RPD Reasons and Decision, para 19 to 23. 20 Exhibit RPD-1, RPD Record, p. 8, RPD Reasons and Decision, para 20 to 21. 21 Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131, at para. 7. 22 Exhibit RPD-1, RPD Record, Exhibit 1, pp. 71 to 74. 23 Exhibit P-2, Appellant's Record, Memorandum of Law and Argument, p. 49, para. 71 to 72. 24 Transcript of RPD Hearing, pp. 42 to 45. 25 Exhibit RPD-1, RPD Record, p. 10, RPD Reasons and Decision, para. 24. 26 Exhibit RPD-1, RPD Record, p. 10, RPD Reasons and Decision, para. 25; Transcript of RPD hearing, pp. 42 to 44. 27 Exhibit RPD-1, RPD Record, p. 11, RPD Reasons and Decision, para. 25. 28 Transcript of RPD hearing, pp. 42 to 44. 29 Transcript of RPD Hearing, p. 41. 30 Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131, at para. 7. 31 Transcript of RPD Hearing, p. 26. 32 Exhibit RPD-1, RPD Record, RPD Decision, p. 12, para. 33. 33 Transcript of RPD Hearing, pp. 13 to 15. 34 Huang v. Canada (Citizenship and Immigration), 2018 FC 940, para. 42. 35 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 120 to 121, affidavit of XXXX XXXX XXXX sworn July 12, 2016. 36 Exhibit RPD-1, RPD Record, pp. 13 to 14, RPD Reasons and Decision (August 11, 2017), para 38 to 39. 37 Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 FC 238, 1990 CanLII 8017 (FCA), para. 8. 38 Shahaj v. Canada (Minister of Citizenship and Immigration), 2005 FC 1044 (CanLII), para. 9. 39 Exhibit RPD-1, RPD Record, pp. 13 to 14, RPD Reasons and Decision (August 11, 2017), para 37 to 39 40 Exhibit RPD-1, RPD Record, Exhibit 5, pp. 120 to 121. 41 Exhibit RPD-1, RPD Record, Exhibit 6, p. 123. 42 Exhibit RPD-1, RPD Record, RPD decision, pp. 14 to 15, para. 40 to 43. 43 Exhibit RPD-1, RPD Record, RPD decision, p. 12, para. 34. 44 Teganya, Jean Leonard v. M.C.I. (F.C., no. IMM-3798-11), Hughes, January 12, 2012, 2012 FC 42, at paras. 24-25. 45 Exhibit RPD-1, RPD Record, Exhibit 1, p. 92. 46 Exhibit RPD-1, RPD Record, Exhibit 1, pp. 89 to 100. 47 Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC), para. 27; Mahdi v. Canada (Citizenship and Immigration), 2016 FC 218 (CanLII), para. 12. 48 Transcript of RPD Hearing, p. 69. 49 Exhibit RPD-1, RPD Record, exhibit 7,p. 128-133. 50 Exhibit P-2, Appellant's Record, pp. 25 to 29, post-hearing submissions. 51 Husian v. Canada (Citizenship and Immigration), 2016 FC 462 (CanLII), para. 21 to 24. 52 Koffi v. Canada (Citizenship and Immigration), 2016 FC 4 (CanLII), <http://canlii.ca/t/gms6t>, para. 41 to 51 and 56; Rasheed v Canada (Minister of Citizenship and Immigration), 2004 FC 587 (CanLII) at para 18, [2004] FCJ No 715 (QL); Gulamsakhi v Canada (Minister of Citizenship and Immigration), 2015 FC 105 (CanLII) at para 9, [2015] FCJ No 271 (QL). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-19708 RAD.25.02 (September 18, 2018) Disponible en français 10 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 (September 18, 2018) Disponible en français