VB5-00336

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 : VB5-00336 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision July 21, 2015 Date de la décision Panel Philip MacAulay Tribunal Counsel for the person(s) who is(are) David Yerzy Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "appellant"), a citizen of Somalia, appeals the negative determination of the Refugee Protection Division (the "RPD") regarding his claim for refugee protection. As is set out in the RPD Notice of Decision dated January 16, 2015, the appellant's claim was heard by the RPD on December 29, 2014 with a written decision being rendered on January 9, 20151. The RPD determined that the appellant is neither a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act ("IRPA" or the "Act")2 nor a person in need of protection pursuant to section 97 of the Act. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of IRPA, the Refugee Appeal Division (the "RAD") confirms the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. The appeal is rejected. BACKGROUND [3] The appellant was represented at the RPD by different counsel from the counsel who represents him before the RAD. The Minister has not intervened at either the RPD or the RAD. [4] No transcript of the RPD proceedings is included in the Appellant's Record (AR).3 However, a compact disc (CD) of those proceedings forms part of the Refugee Protection Division Record (RPDR) and is found at the back of that Exhibit.4 The appellant has made no time-code references to any portion of the CD in his Memorandum. I have listened to the entire CD and reviewed the RPDR. [5] The appellant seeks to present a new document to the RAD pursuant to subsection 110(4) of IRPA as well as a hearing before the RAD pursuant to subsection 110(6) of the Act.5 Basis of claim [6] As is written in his Basis of Claim form (BOC), the appellant is a XXXX-year-old married man from Mogadishu, Somalia. He is of the Gare (Garre) tribe or clan. In his BOC the appellant cites the primary reason for leaving Somalia was in connection with the murder of his father and brother by Al Shabab terrorists in XXXX 2013. His father had been a XXXX XXXX in one of the areas of Mogadishu for a number of years. In 2012 the father was contacted by Al Shabab and ordered to cease to work for the government upon pain of being killed, along with his family if he did not. The father refused. One day in XXXX 2013, the appellant, his father and two brothers were stopped by Al Shabab while the four were driving in Mogadishu. The father and one brother were murdered while the appellant and the second brother were blindfolded and held in a small hut outside of the city. They managed to escape. [7] The appellant immediately went into hiding until he was able to flee in June 2013 to Bula Hawa, Somalia, located on the border between Somalia and Kenya. There he remained until October 2013 after which he left the country, ultimately arriving in the United States (US) in January 2014 where he remained until traveling to Canada in July 2014. There he made his claim for refugee protection. The appellant had also made a claim for asylum in the US but it was unsuccessful. He was ordered to be removed to Somalia which led to his leaving the US for Canada. [8] In his BOC, the appellant also alleged that as a member of a small clan, he feared targeting and violence from larger clans. While not mentioned in his BOC, at his RPD hearing the appellant alleged that, aside or in addition to the fears and risks associated with his relationship with his XXXX father and being a member of a small clan, he would be targeted by Al Shabab as a suspected spy for the government against Al Shabab because he had been away from Somalia living in Western countries. [9] The appellant alleges that if he is returned to Somalia he faces persecution, risks or danger from Al Shabab because of his relationship to his father and their perception that he is a spy for the government, in addition to the potential for harm he faces from larger clans as a member of a small clan. He maintains that adequate state protection would not be available for him in Somalia or that he could live safely anywhere in that country. RPD decision [10] The RPD found that the appellant had established his identity as a national of Somalia as well as his membership in the Garre, a sub-clan of the Digil.6 [11] The RPD's rationale for its determination will be considered in more detail in the Analysis on the Merits portion of this decision. Broadly stated, the determinative issue regarding all of the claims was that the appellant had not established them with credible and trustworthy evidence leading to the Member's conclusion:7 [19] The claimant in failing to establish his status as a Convention refugee, which is at the lower test, of a serious possibility that he would be persecuted consequently, the claimant has also failed to establish that he would be subjected on a balance of probabilities to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture if removed to Somalia. [12] Accordingly, the appellant's claims under both section 96 and section 97 of IRPA were rejected. GROUNDS OF APPEAL [13] The issues or grounds of appeal as stated by the appellant are as follows:8 a) Did the Immigration and Refugee Board (the "IRB" or the "Board") err in its determination that the Digil are not a minority and therefore not at risk of persecution in Somalia? b) Did the Panel err in determining that the appellant's one-year absence from Somalia did not constitute a long absence? Did the Panel ignore documentary evidence that Al Shabab continued to pose a threat to individuals in Mogadishu? Did the Panel err by failing to consider the perspective of the agent of persecution? REMEDY SOUGHT [14] The appellant seeks an order that the determination of the RPD be set aside and substituted with a determination that he is a Convention refugee or a person in need of protection. Alternatively, the appellant seeks an order that the determination of the RPD be set aside and the matter be referred to the RPD for redetermination with directions to that Division which the RAD considers appropriate. THE ROLE OF THE RAD AND THE CRITERIA FOR INTERVENTION [15] In their AR, the appellants made no specific submissions with respect to the role of the RAD, its appropriate standard of review of the RPD findings or the proper criteria for the RAD's intervention. [16] The RAD commenced its operations in December 2012, following amendments being made to IRPA. The RAD's initial decisions found that reasonableness was the appropriate standard of review for matters concerning fact and mixed fact and law with correctness being the standard for issues of law alone. The correctness standard with respect to alleged errors of law continues to be acknowledged by the Federal Court. [17] The first Federal Court judicial review of a RAD decision was not until May 2014. This initial review by Justice Shore in Iyamuremye9 supported the RAD's then interpretation that "reasonableness" should be the standard of review with respect to RPD findings of fact and mixed fact and law. Nonetheless, the Federal Court found that the RAD's failure to assess all of the evidence when determining whether the RPD findings were reasonable required that the matter be returned to the RAD for reconsideration. [18] However, commencing in late July 2014, the Federal Court began to provide numerous other decisions which rejected the standard of "reasonableness" with respect to the RAD's assessment of RPD findings of fact or mixed fact and law. The subsequent problem created for the RAD with respect to the matter of the appropriate standard of review arose from the fact that, aside from virtually unanimously rejecting the "reasonableness" standard, there developed a lack of comity among the Justices of the Federal Court as to what standard, if any, should replace it, as well as to what type of RPD findings any such standard should apply. [19] In the first two of these decisions decided in July 2014, Alvarez10 and Eng,11 Justice Shore, who initially adopted the reasonableness standard in May 2014, altered his position and found that because the RAD process is an appeal and not in the nature of judicial review, the RAD should conduct its own assessment of the facts in order to determine whether the RPD made an error regarding findings of fact to the point of making "a palpable and overriding error."12 The Federal Court found that the RPD's ability to hear viva voce evidence required the RAD to show deference to the RPD's findings of fact and mixed fact and law. This standard of palpable and overriding error was subsequently adopted by Justice Roy in Spasoja13 in September 2014. [20] In August 2014, subsequent to Alvarez and Eng but prior to Spasoja, Justice Phelan in Huruglica14 also rejected the reasonableness standard. However, he found that the RAD should not become involved in applying a standard of review but, rather, when coming to its determination, should consider its purpose as an appellate body, the provisions of the legislation, its expertise compared to that of the RPD and comparable appellate regimes. The RAD is to conduct a "hybrid appeal" whereby it is not restricted to intervening only in the event of a palpable and overriding error. Rather, the RAD is to "recognize and respect" the findings of the RPD, but only where the RPD had an advantage in making findings such as when it hears direct evidence from an appellant or witness. Otherwise, the RAD is to make its own independent assessment as to whether or not an appellant is a refugee or a person in need of protection. Importantly, having apparently rejected the standards of reasonableness and palpable and overriding error regarding the deference to be shown by the RAD to the RPD, Justice Phelan did not further define what the phrase "recognize and respect" might mean in the context of its actual application to specific cases. Subsequent cases which adopted the general thrust of Huruglica have also not provided a specific definition of that type of deference.15 [21] Many other subsequent Federal Court decisions discuss various nuances as to whether or not the type of deference subsumed in the phrase "recognize and respect" only applied with respect to credibility issues, extended to general findings of fact or, perhaps in some situations, matters of mixed fact and law. [22] Yet other Federal Court decisions which found that the RAD was in error in applying the standard of reasonableness to findings of fact by the RPD nonetheless confirmed the ultimate determination of the RAD on the basis that the RAD had, in any event, reviewed all of the evidence and what the RAD had confirmed in these cases were essentially credibility findings of the RPD. I will comment further on these cases later in these reasons. [23] The history and development of the above varying points of view were discussed in detail by Justice Martineau in his October 8, 2014 decision in Alyafi.16 Justice Martineau concluded that as a result of the case law which had developed at the Federal Court and, due to a lack of comity among the various Justices on certain fundamental principles, a conundrum had been created whereby inconsistent and irreconcilable authorities had developed which were, nonetheless, equally binding on the RAD as a result of the application of the principles of stare decisis. [24] Justice Martineau noted that certain certified questions yet to be determined by the Federal Court of Appeal could ultimately resolve the conundrum. However, as stated by the Justice, the matter could well not end at the Federal Court of Appeal level and could require an ultimate determination by the Supreme Court of Canada. In Justice Martineau's estimation the clarity which might be expected to emerge from this process could take considerable time to emerge. In the interim, in the Justice's view the RAD faces the unresolvable dilemma of being legally bound by decisions which are contradictory and mutually exclusive in important respects. [25] Justice Martineau found that as an interim solution until the questions are resolved by authorities superior to the Federal Court, Members of the RAD should be free to select either of the two basic streams of analysis developed to that point, without facing the prospect of having their RAD determinations set aside solely for the reason of having selected one of the two analysis to the exclusion of the other. One of the lines regarding deference and alleged RPD errors relating to findings of fact is represented by Justice Roy in Spasoja who would apply the standard of palpable and overriding error while the other is led by Justice Phelan in Huruglica using the phrase "recognize and respect" in connection with RPD credibility findings where the RPD is in a better position than the RAD to make those findings. [26] It is important to recall that, up to and including the point in time that Justice Martineau decided Alyafi, all of the Federal Court judges had taken the approach that the Federal Court's review of the RAD's interpretation of IRPA should be based on the standard of correctness. That being so, in my assessment a junior decision-maker such as a Member of the RAD, being equally bound by both lines of reasoning, but invited by Justice Martineau to select one or the other until the matter was resolved at a higher level, left the RAD to select all of the reasoning of one or the other of the lines but did not allow the RAD to provide an interpretation of its home statute that was different from either or, even, a blend of the two. As I understand it, that is also the nature of the principle of stare decisis. [27] In what I consider to be a further important development in the case law, in November 2014 Madam Justice Gagné in Akuffo17 broke with her colleagues and specifically found that the Federal Court's review of the RAD's interpretation of its home statute should not apply the standard of correctness but, rather, reasonableness. She did so having regard to four recent Supreme Court of Canada decisions which she determined were binding. She came to a similar general conclusion in Kurtzmalaj18 and, specifically when dealing with the introduction of new evidence before the RPD pursuant to subsection 110(4) of the Act, in Singh.19 This was the conclusion as well which Justice Martineau adopted later in November in Djossou.20 Justice Martineau also stated the following with regard to a "pragmatic approach" to the issues he suggests is appropriate in light of the law surrounding the function of the RAD: [37] Hence, this is why it seemed to me to be more prudent, in this case, as long as the issue has not been finally resolved on appeal, to adopt a pragmatic approach. Also, for the very reasons that were put forth in Alyafi, above, I do not think there is any need, at this particular moment, for me to make any sort of final ruling on the interpretation of sections 110 and 111 of the IRPA to determine this application for judicial review. For the time being, there appear to be a number of possible approaches, but what is clear, however, is that the option chosen by the RAD (a judicial review-based approach) is not an acceptable outcome in law. Even applying the lesser standard of reasonableness, I still arrive at the same end result as my colleagues who applied the more stringent correctness standard. Intervention is warranted in his case. In this way, the choice of appropriate standard of review will not be determinative of the matter (which might not have been the case had I adopted a correctness standard or had I dismissed the applicant's application by applying a standard of reasonableness). [RAD emphasis] [28] More recently, Justice Boswell in Siliya,21 after concluding that the question of the standard of review as between the RAD and the RPD was not dispositive in the case before him, provided the most definitive view to that time that the Federal Court is to apply the standard of reasonableness to RAD factual findings when stating: [20] Otherwise, the reasonableness standard applies to the RAD's factual findings, and its assessment of the evidence before it is entitled to deference (see: Dunsmuir v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 SCR 190 Dunsmuir]; Yin at para 34; Akuffo v Canada (Citizenship and Immigration), 2014 FC 1063 at para 27; Lin v Canada (Minister of Citizenship and Immigration), 2008 FC 1052 at para 13-14). Moreover, the RAD's decision should not be disturbed so long as it is justifiable, intelligible, transparent and defensible in respect of the facts and the law (Dunsmuir at para 47). Those criteria are met if "the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes" (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16, [2011] 3 SCR 708). [29] Using the same criteria applied by Justice Martineau in Alyafi22 when he determined that, while inconsistent with each other, the Federal Court decisions in Huruglica and Spasoja were both binding on the RAD, I find so too would be Justice Gagné's decision in Akuffo, Justice Martineau's in Djossou and Justice Boswell's in Siliya. [30] I appreciate that Justices Gagné, Martineau and Boswell were dealing with the Federal Court's standard of review regarding the RAD's determinations and not the RAD's analysis of the decisions of the RPD. However, having concluded that when the Federal Court utilizes the correctness standard when reviewing RAD decisions, there is strictness to that analysis that requires the RAD to apply the Federal Court's direction in a very specific way. Compliance with that level of "correctness" is exceedingly difficult, if not impossible, when there are multiple views of what is correct emanating from the same level of judicial authority, all of which technically bind the RAD. As Justice Martineau has noted, a significant time will likely pass before further direction will be available from the Federal Court of Appeal, if not higher authority. However, when the Federal Court adopts a standard of review of reasonableness in reviewing the RAD's interpretation of how it is to perform its legislatively mandated jurisdiction, particularly in light of the divergent views of the Federal Court, additional flexibility may be allowed the RAD in dealing with its ongoing caseload in the interim on a case-by-case basis. However, this flexibility will still be constrained to the extent that some common principles have emerged from the body of jurisprudence provided so far by the Federal Court. I will discuss those later in these reasons. [31] One of the more significant conundrums noted by Justice Martineau and other Justices arising from the current case law concerning the RAD is what is meant by "deference". "Palpable and overriding error" is, like "reasonableness," a legal concept for which much legal guidance has been provided from the courts at all levels for many years. However, the notion of the RAD "recognizing and respecting" the conclusions of the RPD in particular circumstances (such as findings based on credibility or where the RPD otherwise enjoys a particular advantage over the RAD in coming to its conclusions) has not been given any further definitional substance. [32] Broadly stated, "deference" involves the concept by which one sublimate's one's own view to that of another. That is to say, even though one's conclusion differs from that of another, there is good reason to defer to the other's conclusion. [33] When assessing the "good reason" to defer, one measure is the existence of "palpable and overriding error". In the Alvarez case noted earlier, Justice Shore stated: [29] "Palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. However, this is the appellate-level standard of intervention that a specialized appeal tribunal such as the RAD must apply when reviewing a decision and not the judicial review standard of reasonableness. Even though there are similarities, these standards are different.23 [RAD emphasis] [34] In 2012 Justice Stratas of the Federal Court of Appeal in South Yukon Forest Corporation commented: [46] Palpable and overriding error is a highly deferential standard of review: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Pearl v. Peel Regional Police Services (2006) 217 O.A.C. 269 (C.A.) at paragraphs 158-59; Waxman, supra. "Palpable" means an error that is obvious. "Overriding" means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.24 [RAD emphasis] [35] When reviewing a decision on the basis of "reasonableness" the analysis will be concerned with the existence of justification, transparency and intelligibility within the decision-making process, and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.25 [36] I acknowledge both Justice Shore's observation that, while "reasonability" and "palpable and overriding error" have some similarities, the standards are different and Justice Stratas' statement that the latter is a "highly deferential standard of review." It may well be that, under the definitions provided; an error that is palpable and overriding will always also reveal an unreasonable conclusion. However, the reverse may not always be the case. There may well be a steeper hill for an appellant to demonstrate a palpable and overriding error than it is to show a lack of reasonableness. [37] Given the general thrust of virtually all of the Federal Court decisions to date that a RAD appeal is to be comprehensive in its nature, I conclude that the palpable and overriding test may be too stringent for the task at hand. I elect not to use it in the circumstances where the Federal Court is not of one mind on the issue. [38] As noted by Justice Barnes in the Federal Court decision in Kanga, in such situations it is not necessary for me to explain further why I have selected one of the two competing lines of authority as opposed to the other: [11] Furthermore, even where there is divided Federal Court authority on a point of law, I do not agree that the Board is required to explain why it has adopted one view over the other. Presumably, Federal Court jurisprudence speaks for itself and the Board has no obligation to offer any additional interpretation of the legal authorities that it chooses to rely upon in resolving a point of law.26 [39] In the Akuffo decision discussed earlier, Madame Justice Gagné found that in the particular case before her she was, "far from being convinced that there is a real and pragmatic difference between an 'unreasonable' error and an 'overriding and palpable' one, I am of the view that said distinction would have no impact in the case at bar."27 She determined that the RAD had reviewed and reassessed the evidence and "gave proper deference to the RPD's credibility findings which were sufficient for the RAD to reasonably confirm the RPD's overall conclusion that the [appellant] was neither a Convention refugee nor a person in need of protection."28 She also concluded: [47] The RAD did consider the applicant's explanations for his behaviour during his birthday party and later on the same night. The RAD concluded that even if these explanations seemed reasonable, it was nevertheless of the view that the RPD's analysis was reasonable when looking at the claim as a whole. This is a strong indication that the RAD had reviewed the evidence given by the applicant and reassessed the claim in light of its own finding that some explanations given by the applicant were reasonable.29 And, [50] I find it reasonable that the RAD deferred to the RPD's credibility findings. I also find that its overall reassessment of the evidence is reasonable. Therefore, the application for judicial review will be dismissed.30 [40] In Akuffo, the RAD had clearly applied the traditional definition of "reasonableness" in assessing the RPD's determination but, because the RAD had restricted itself to the analysis of the credibility of the appellant and it was evident that the RAD had conducted its own analysis of the evidence, the RPD decision was confirmed. This was so even though the RAD believed, contrary to the RPD, that some of the appellant's explanations given by the appellant were reasonable. [41] There are a number of similar examples to be found in the case law where the RAD's confirmation of the RPD's negative credibility findings have been upheld by the Federal Court, even though the RAD had utilized the reasonableness standard in assessing those findings. However, in so doing the Federal Court has certainly not endorsed the nomenclature of "reasonableness" but has accepted the result in any event, at least where the RAD's analysis is restricted to the credibility findings of the RPD. A common thread appears to be the fact that the Federal Court was satisfied with the process the RAD had followed in comprehensively reviewing the available relevant evidence in assessing the RPD findings rather than the RAD's decision to use the word "reasonable" in its conclusions. [42] Examples would include the decisions of Justice Shore in Sajad and Allalou.31 In Sajad, Justice Shore found that the RAD had "validly shown deference" to the RPD's credibility findings and that the result would have been the same "regardless of the standard of review it applied." In Allalou, he found that "considering that the RPD's decision is solely founded on findings of credibility, the RAD applied the appropriate level of deference towards the RPD's determinations of the applicant's credibility." The RAD had used the reasonability standard. Likewise, this was also the case for Justice Locke in Njeukam32 where, although the reasonability standard was utilized to assess the RPD's credibility findings, the issue of standard of review was not determinative because the RAD had conducted a thorough review of the evidence and, having done so, ". . . the RAD was right to defer to the RPD's finding." [43] Thus it is then that a standard of review generally applied by the RAD to all findings of fact and mixed fact and law based on reasonableness, per se, will not be acceptable to the Federal Court. However, a comprehensive analysis of the RPD credibility and other factual findings (where the RPD is in a better position than the RAD to make such conclusions) based on criteria similar to that of the traditional definition of "reasonableness" may find approval on judicial review. Based upon the culmination of the case law to date, I cannot craft a more precise conclusion than that. [44] Some support regarding the above conclusion about the standard of review as between the Federal Court and the RAD can be drawn from the December 2014 decision of Justice Noël in Yin.33 The Justice notes in detail the mixed state of the law regarding the standard of review the Federal Court should use in assessing RAD determinations (at paragraph 32) and states further: [33] As such, the standard of review this Court should apply when reviewing the standard of intervention chosen by the RAD in its review of a RPD decision is undecided. As noted, this question is not determinative with regards to the case at bar. I therefore adhere to Justice Martineau's approach in Djossou, supra at para 37, that until this question is resolved by the Federal Court of Appeal, a pragmatic approach should be used for the determination of the present judicial review. [34] In the present appeal, the RAD is being asked to deal only with the credibility findings made by the RPD, as the appeal shows. As it is well recognized, in such cases, the standard of review applicable is that of reasonableness.34 [45] Justice Noël provides examples of four of the cases I have noted above where the Federal Court dismissed an application for judicial review in instances where the RAD used a reasonableness standard regarding RPD credibility findings and then stated: . . .however in Djossou, supra, Justice Martineau states that he will not judicially impose on the RAD any degree of deference whatsoever to be applied to RPD decisions (at para 91). Being prudent, Justice Martineau also does not speculate nor gives a definitive opinion as to the scope of the examination of a RPD decision on appeal to the RAD (Alyafi v Canada (Minister of Citizenship and Immigration), 2014 FC 952 at paras 51-52).35 [46] Regarding the case before him Justice Noël found: [37] In the case at bar, in its decision, the RAD reiterates the RPD credibility conclusions and concludes that the RPD findings were reasonable. A reading of the RAD decision shows that it read the transcript of the RPD hearing, the documentation filed and that it reassessed the credibility findings of the RPD. It even went further than the RPD in its analysis of the political context in Cambodia by comparing the Applicant's allegations to the US Country Reports on Human Rights Practices for Cambodia for 2012. The RAD notes that the Applicant's allegations contradict this documentary evidence. It is also based on this last evaluation that the RAD confirmed the RPD conclusions. The RAD assessment therefore goes further than simply confirming the RPD decision. The RAD conducted its own examination of the record before the RPD in making its decision. This situation is therefore very similar to the four cases identified above, where this Court confirmed the RAD decision and rejected the application for judicial review. Whatever the deference to be given by the RAD to RPD credibility findings, the RAD in this case looked at the evidence, dealt with the credibility issues raised by the appeal and concluded that the RPD credibility findings were sound, as its own assessment reveals. I, therefore, conclude that the RAD, by doing its review and own assessment of the evidence, did assume fully its role as an appellate tribunal and did show the required deference to the credibility findings made by the RPD.36 [RAD emphasis] [47] Given its recent publication date and the fact that the decision is rendered in the context of not only the Federal Court internal debate regarding standards of review (both as between the Federal Court and the RAD and the RAD vis-à-vis the RPD, but also with respect to the meaning of "deference" regarding the latter) I take Justice Noël's synopsis as a general overall guide to the appropriate practical or pragmatic approach I should take in conducting a RAD appeal until the various issues in play are resolved by the Federal Court of Appeal. [48] Bearing always in mind that an appeal to the RAD is not in the nature of a judicial review, I am to undertake a comprehensive review of the RPD decision and the RPD Record in light of, and sufficient to, resolve the issues raised and assess the errors alleged in submissions by the parties in the RAD appeal.37 As well, I am to make an independent assessment of any new documentary evidence provided to the RAD pursuant to subsection 110(4) of IRPA or evidence arising from a hearing under subsection 110(6) of IRPA. I am to come to an independent determination of these questions, subject to deference being given to the findings of the RPD with respect to credibility and those matters about which the RPD was in a better position to make an assessment than is the RAD. Without any common specific standard of deference being provided by the Federal Court, I will measure the RPD findings in light of the examples provided by the Federal Court to date. Of course, all of this is to be accomplished in view of the objectives of the Act with respect to refugees set out in subsection 3(2) of IRPA. ANALYSIS OF THE MERITS OF THE APPEAL Subsection 110(4) new document and subsection 110(6) RAD hearing [49] The appellant seeks to present a new document to the RAD that was not provided to the RPD.38 For the reasons that follow, the RAD does not accept the document as evidence on the appeal. [50] The document is a letter dated January 28, 2015, purportedly from the Commander of the CID (Criminal Investigation Department) on the letterhead of the Somali Police Force, Criminal Investigation Dept., Criminal Records Office in Mogadishu, Somalia. The letter states that a person bearing the alleged name of the appellant's father had been the XXXX of the XXXX XXXX XXXX of the XXXX XXXX in Hulwadaag district. Further, the letter states that "When they killed this man his son was with him and his name [one of the appellant's brothers]. . . The reason they killed him was because he serves the government." It also states that after the CID investigated, "They proved that those two persons were killed in Mogadishu." It also notes that the letter was provided at the request of the appellant. [51] As noted earlier in the RPD Decision portion of these reasons, one of the primary credibility determinations of the RPD was that the appellant had been imprecise and unclear with respect to the details of his father's alleged employment with the police such that the Member could not conclude that the father was at all connected to the XXXX. Due to their similar lack of reasonably expected knowledge about the father, no weight was given to the evidence of the appellant's witnesses in that regard. Finally, the lack of any documentary evidence to support the appellant's allegation that his father was involved in the police and the lack of a reasonable explanation as to why such documentation had not been provided to the RPD, further buttressed the RPD's conclusion that the appellant had not satisfactorily established the father's employment which the Member saw as "a central issue" in the claim.39 [52] Similarly, the RPD Member drew a negative inference from the lack of and consistency of the evidence of the appellant about the murders of the father and the appellant's brother.40 [53] In order for an appellant to successfully present new documentary evidence to the RAD it is necessary that the appellant satisfies the criteria set out in subsection 110(4) of the Act which reads: 110(4). On appeal, the person who is the 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. [54] Quite clearly, the alleged fact that the appellant's father had been a XXXX XXXX XXXX for many years in Mogadishu was critical to this claim. It was that employment that the appellant alleged attracted the attention of the Al Shabab, leading to the two murders and affixing a target on the appellant for his connection to the father, a servant of the government Al Shabab opposed. In my assessment and on a balance of probabilities, I agree with the Member that this was "a central issue." [55] Being such a crucial factor in the claim, I concur with the Member that the appellant's need to provide credible evidence about the father's employment was obvious. I find that the appellant and his counsel should also have recognized that establishing the father's employment was very important. The appellant left his country in June 2013 ultimately arriving in the US in January 2014. As indicated in the US materials on record.41 the unsuccessful claim he made for asylum in that country was factually very close to that which he pursued in this country with respect to the persecution, risk and danger he allegedly fears due to his association with his XXXX father. He traveled to Canada in July of 2014 where he made his claim for protection. The RPD hearing did not take place until December 29, 2014. It was not rejected until the written decision of the Member was rendered on January 9, 2015. [56] One of the requirements of the RAD Rules is that, where an appellant seeks to present new documents pursuant to subsection 110(4), they must include in their Memorandum in their AR "full and detailed submissions" how any such document "meets the requirements of subsection 110(4) of the Act.42 In his affidavit, the appellant notes that:43 I did not have any documentary proof of my father's employment at the time of the hearing. I did not realize that this would be needed. I have since contacted my family and I attach a letter from the XXXX in Somali corroborating my father's employment. [57] The Memorandum states, "The Appellant was able to obtain a letter from the Somali police corroborating his father's former employment."44 And:45 4.02 The Appellant testified that due to the ongoing conflict and the difficulties in maintaining communications he was in sporadic communication with his family. He also testified that he didn't realize that such a document would be needed. 4.03 Subsequent to the Board's decision he was able to re-establish contact with his family and understanding that this type of evidence as important to his claim, he asked them to send in a letter to confirm his father's past employment. [58] It is clear that the appellant had the benefit of legal counsel regarding his claim since at least July 29, 2014. This is indicated in his Use of a Representative form found in the record.46 The representative named is the same lawyer who represented him before the RPD. As noted earlier, I find on a balance of probabilities that the importance of establishing the father's employment was very important to the claim which importance should clearly have been obvious to the appellant and even clearer for his counsel. [59] About 10 days before the December 29, 2004 RPD hearing, counsel provided a letter to the RPD Registry noting that, "Mr. XXXX has recently lost contact with his family and does not know where they are currently." Accompanying this letter was a one-page amendment to the appellant's BOC which, with respect to question 5 of the form concerning his family, changed from the previous information that they were all living in Mogadishu to a statement that their whereabouts was "unknown." 47 [60] During his testimony, the Member asked the appellant where his mother, wife and children were now living and he testified that they were still in the family home in Mogadishu. The Member asked why the amended BOC stated their whereabouts were unknown. The appellant testified that he had spoken to them after he arrived in Canada but, on a subsequent occasion when he tried to phone again, the telephone did not work. That is why he amended his BOC. However, he since discovered that the phone was working and he was able to speak further to his family, including the night before his RPD hearing. He said that "we talk all the time."48 [61] Later in the hearing, the Member asked the appellant if he had made any attempts to obtain information from his family in Mogadishu confirming that the father was a XXXX. When he stated, "no" he was asked "why not" and he responded that he had never gone back there. He confirmed that he has been in contact with his wife and mother. He was asked if they could not have provided information with respect to information about his father and the appellant asked, "What kind of papers?" The Member suggested a letter from the police or anything that could help support his story. He then responded that he could call and ask the mother or wife to do so. The Member asked, "Why haven't you done that?" He responded that, "I didn't but I could do so if you want."49 [62] Still later in the hearing when counsel asked questions of the appellant, counsel asked if he [counsel] had ever asked the appellant to get any material from his family. The appellant responded, "No, you didn't ask me." Counsel then asked the appellant when the appellant had told counsel that the appellant was no longer in contact with the family. The appellant said he had done so after he had tried to phone his family but "the phones were off". The appellant testified that he later found out the phones were okay but he never told counsel that. He had previously told the lawyer that he could not contact them, "The day I was with you."50 From this testimony I conclude on a balance of probabilities that the point at which he temporarily lost contact with his family was likely at about the same time as his BOC was amended just before the RPD hearing to indicate that it was unknown where his family then was. [63] Taking the above testimony into account, I conclude that, although he had counsel from the outset of his Canadian claim, and had advanced a claim in the US substantially the same as the one made in Canada, the claimant never requested his contacts in Mogadishu to forward information to confirm the story concerning his father. Also based on the testimony, the appellant was of the view that had he done so, such information could have been had. It seems that counsel may have never asked him to gather such information in any event. In my assessment, this inactivity and lack of effort runs counter to what one would reasonably expect would have happened in the circumstances of this claim. There were many months between the time he commenced his claim and the point at which he allegedly lost contact with his family. Most importantly, the record indicates that counsel requested no adjournment of the RPD proceeding in order that efforts might be made to obtain the corroborative information prior to the RPD making its determination. This was so even after the Member made it clear that she had an expectation that documentation should have been made available. [64] A similar situation was recently considered by Justice Zinn in Fida.51 In that case the RPD had found a lack of credibility in the claimant's assertion that he was gay. As appellant, three affidavits confirming the appellant's sexual orientation were presented to the RAD pursuant to subsection 110(4). The RAD Member found that the appellant had not met the requirements of that section. Justice Zinn notes: [3] Among other areas of concern, the RPD noted in its decision that the applicant had failed to provide any corroborative evidence of his sexual identity or the events relating to that alleged sexual identity which formed the basis of his fear: The panel finds that it is not reasonable that he did not provide corroborating documents in the form of affidavits from these individuals considering he lives with his uncle and since Jawad Jamal and his wife were directly involved in the events alleged by the claimant. The panel draws a negative inference regarding his lack of efforts to corroborate central elements of his claim. [4] Included in his appeal to the RAD were the precise three affidavits that the RPD complained had not been produced. The applicant asked the RAD to accept them as evidence in his appeal. [5] The RAD noted the restriction on the acceptance of new evidence found in subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27, which provides: "On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of the 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." [6] The RAD observes that "if the statutory requirements have been met, the panel must then consider the factors in Raza [2007 FCA 385]" [emphasis added]. There are many cases before this court addressing whether the RAD is to consider and apply the Raza test to new evidence; however, that issue does not arise in this case because the RAD explicitly finds that the requirements of subsection 110(4) of the Act had not been met. The applicant urges that this was unreasonable. [7] The applicant was asked at his RPD hearing why he did not have affidavits of the sort at issue to corroborate his evidence. He responded that he did not know that he could submit this kind of evidence. He submits that his lack of knowledge that such documents would be important is corroborated by the fact that he was now providing them in response to the decision of the RPD. The RAD did not accept that explanation. With due respect, the RAD disagrees. The Appellant had the services of competent counsel at the time of the RPD hearing. Moreover, the BOC and kit provided to the Appellant explains the process which includes the instructions to submit corroborative evidence to support the allegations. The Appellant had the opportunity to do so at the time of the RPD hearing [held on June 3 and 20, 2013] and up until the time that the RPD rejected the claim on October 3, 2013. He failed to do so, and therefore all of the "new" documentation does not meet the statutory requirement, as these documents could reasonably have been available at the time of the RPD hearing. The RAD particularly notes the affidavit from the Appellant's uncle in Canada, who could have come forward in person and testified as a witness at the RPD hearing. [8] Decisions of the RAD are reviewed by this court on the standard of reasonableness, save for questions of law. I find that the RAD's assessment that the "new" evidence did not meet the requirement of subsection 110(4) of the Act was reasonable; moreover, it is the very decision this court would have reached on these facts. The court takes particular note of the fact that there was no request made by either the applicant or his counsel at the RPD hearing to adjourn in order that the affidavits could be obtained, nor was there any request made to tender them following the hearing. Moreover, the decision of the RPD was rendered more than three months following the last hearing date, but the affidavits were produced only when the negative decision was rendered and the RPD was functus. In short, there was no effort made to provide them until the decision was made rejecting the applicant's claim. [9] It should not come as a surprise to a claimant or to his lawyer that proving sexual identity may well require more than simply the sworn the appellant the claimant: see for example Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC 1067. [65] In light of all of the above, I have concluded on a balance of probabilities that the information set out in the letter from the police department would likely have been available for presentment to the RPD had it been sought. It was clearly information that the appellant and his counsel both should have known, if deemed reliable, was very important to the claim. I conclude that reasonably could have been expected to be provided to the RPD. It was not and no adjournment was sought in order to provide it. In the result, I find that the appellant has not met the requirements of subsection 110(4) of the Act. Accordingly, the letter is not accepted into evidence before the RAD. That being the case, there is no basis upon which the RAD may conduct a hearing under subsection 110(6)52. [66] I note that neither of the Grounds of Appeal disputes the RPD's conclusion that the appellant had not credibly established his claims with regard to an alleged association with the XXXX father who worked for the government or the two murders allegedly arising from that association. Presumably, had the police Commander's letter been accepted by the RAD, there was an expectation that the RAD would reconsider that finding of the RPD. However, that was not the case as the letter was not accepted. In the result, having conducted my own review of the record and in recognition of and with respect for the credibility findings of the RPD the RPD Member having heard the direct testimony of the appellant and his witnesses, there is no further basis for me to revisit that issue. First Ground: Did the Board err its determination that the Digil are not a minority and therefore not at risk of persecution in Somalia? [67] The RPD found that the appellant had established that he is a member of the Garre, a sub-clan of the Digil. The Member acknowledged the testimony of the appellant that his family had been robbed in the middle of the night in 1997, an event he attributed to the insecurity arising from being a member of his "small clan" inasmuch as the neighboring houses were not robbed.53 [68] In his BOC, the only specific references the appellant makes with respect to anticipated problems arising from his clan status are the comment that, "As a person from a small clan and a person who has been displaced from my home I also fear the militias from the larger clans and even the government. I could also been forcibly recruited to fight or to be enslaved and forced to work for these militias."54 And:55 I am from a small clan known as Gere. We have no power or a militia and we are not armed. The major clans can attack us without fear. My family had faced problems over the years with the various armed groups who have been fighting in Somalia. Although I was young when the war first came I understand minorities were under attack. My family faced robberies and assaults over the years from different armed groups. Life was never easy. [69] The material filed at the RPD relating to the appellant's claim in the US is focused only on the potential of persecution arising from the events surrounding the appellant's father's profession and the murders associated with it. The appellant raised no claim whatever based on his membership in a minority clan. In fact, in an interview conducted by US authorities in the course of processing that claim, the appellant was asked if there was anything else he had not mentioned that he felt it would be important for the interviewer to know and he responded "no". He was later asked if the summary provided by his interviewer was complete and accurate (the summary only mentioned the Al Shabab threats tied into his father's job), he said it was. When later asked if there was anything to add to the summary he, again, said "no."56 [70] In the course of the RPD hearing the Member asked a number of questions with respect to the issues raised by the appellant arising from his membership in a small clan. The appellant testified generally that the Garre tribe had no power and was small. He stated that bigger tribes "beat us and kill us." The Member pressed him for details about the appellant's family and which other clan targeted Garre. The appellant identified a particular clan. The Member asked for more details about when the appellant and his family had been targeted by that group. The appellant responded that, in 1997, those people came to the family's house and robbed them by taking "gold and everything". He said he even remembered that occasion. [He would have been approximately 14 at that time]. He testified he believed that the robbery was because his family was Garre because the neighbors had not been targeted, "only us." Finally, the Member asked whether or not the appellant had anything more to tell her about the family being targeted because of their clan. His response was, "There's lots of problems but that's all I can remember."57 [71] The appellant was also asked some clan-related questions by his counsel. In response, the appellant identified that he his was a sub-clan of Digil and identified some areas of Somalia where the clan had traditionally lived. Counsel asked how large a group were the Digil and the appellant responded that they are "three tribes altogether, a big nation, a lot of people" and that the Garre was the largest of the three tribes.58 [72] The above was the extent of the testimony presented to the RPD on the clan issue. [73] The only Ground of Appeal raised by the appellant relating to clans is the allegation that the RPD Member was in error in determining that the Digil were not a minority and therefore not at risk of persecution in Somalia. [74] In his submissions before the RPD, the then counsel referred to a country document which stated that the Digil comprise 3% of Somalia's population. Counsel stated that, at 3%, the Digil were even smaller than the smallest ethnic groups in Somalia. Further, while they were not a "minority" group as in being a low-caste group, they were still very small without resources and could not protect themselves from attacks.59 [RAD emphasis] [75] When writing about the clan issue in her reasons, the RPD Member commenced by stating, "The Garre is a relatively small clan in Somalia, however it is not considered a minority clan, which does face significant social discrimination."60 [76] In his memorandum the appellant cites the above quote and states:61 3.03 Given that the Digil are 3% of the population and the Garre are a subset of the Digil it is impossible to determine why the Panel finds that they are not considered a minority clan. The Panel never explains how a group of people who compromise a very small percentage of the population are not a minority. [77] Having read the RPD reasons and, more importantly, having listened to the submissions that previous counsel made to the Member found on the CD, I find it not at all remarkable that the Member described the clan as she did inasmuch as it is clear that she simply adopted what had been submitted to her by the appellant's previous representative. Counsel had specifically submitted that the group "is not a minority as in low caste," In other words, the word "minority" is not meant to describe the number of people in the group but, rather, their social status. Previous counsel's submission was that the clan does not suffer discrimination in the sense that one might from a low caste minority group but, nonetheless, they are a small group without resources to protect themselves from attacks. [78] As is obvious in the country documents generally, Somalia has one of the more complex and nuanced social system and structure of any country. Illustrative of that fact are the large number of country documents listed in the National Document Package (NDP) for Somalia of March 14, 2014, disclosed in this claim dealing with that topic. Section 13 of that NDP package contains no less than 15 separate reports concerning clans and minorities found in the country. There are not only many clans but also sub-clans and sub-sub-clans. There are also a number of minority groups who are not ethnically Somalian. [79] The nomenclature used in the reports is varied but, generally speaking, the word "minority" is used in conjunction with the racial ethnicity of persons as opposed to their numbers. Document 13.11 on the list is one of the more succinct that illustrates this point.62 The distinction between "minority" and "clans" is evident from the report's introductory words, This paper is intended to provide a brief overview of Somalia's clan structure, including major and minor clans, minority groups, clan elders, political representation and the mag or diya paying group and its significance within society. [80] Page 1 includes the following: According to the CIA Factbook, the population of Somalia is about 9,925,640. The vast majority of the population1 identify with a clan, sub-clan or sub-sub clan. However, there are also minority groups, defined by the UK Border Agency "Country of Origin Information Report" as non-ethnic Somali, such as the Bantu, the Benadiri and the Rer Hamar, which represent about one third of the population. [RAD emphasis] [81] Annexed to the report, the authors provide extremely detailed charts regarding clans and minorities. The first chart concerns "Somalian Clan Structure", the first page of which identifies the four "major" clans while the second deals with the two "minor" clans of Somalia (one of these two minor clans is the Digil-Mirifle which has a sub-clan called the Digil-Geledi. The Garre is one of the three sub-clans of Digil-Geledi). Highlighting the difference between clans and minorities, the second, two- page chart, the "Main Minority Groups in Somalia" is ethnically based. [82] On page 3, the document identifies the Digil as one of the minor clans: The descendants of Saab, (who is said to have been a farmer), and based on research by the Library of Congress Country Studies of Somalia, represent about 20% of the population and form the minor clans which are the Digil and Rahanweyn. The Digil and Rahanweyn are agro-pastoralist people, who grow crops and raise livestock to support their families. Joakim Gundel points out that the Saab clan structure differs from that of the four major clans. The minor clans are unable to trace their family tree as far back as the others. In addition, the Rahanweyn clan is comprised of smaller rather than larger family units. [RAD emphasis] [83] By way of further example, one can refer to the Landinfo country document titled, Somalia: Vulnerability, Minority Groups, Weak Clans and Individuals at Risk which is item 13.3 in the NDP. This document too speaks of "minority groups" on the basis of ethnicity, i.e. members are other than ethnically Somalian and "weak clans". As well, the 67 page item 13.5 2000 document titled Report on Minority Groups in Somalia63 from the Danish Immigration Service identifies "minority groups" primarily on the basis of ethnicity as opposed to the number of people in any group. However, with respect to the Digil, the report states: The Digil and Mirifle, or Rahanweyn, seem to take a middle position between a Somali clan and a minority. They are considered as a minority group by some experts (such as the UN Special Rapporteur on human rights in Somalia, Ms Mona Rishmawi). By others they are considered as clans related to the major Somali clans, though considered as less 'noble'. In the Transitional National Assembly (TNA), recently formed in Djibouti, the Digil and Mirifle have been included as one of the major Somali clan-families (with 33 sub-clans) and allotted 49 seats, distinct from the recognised "official" minorities grouped together at Arta under the title "Alliance Clans Community." [84] Thus it is then that, while for the most part the Digil are viewed in the context of the clan system, some commentators will sometimes use the word "minority". In terms of the number of people involved in that particular clan, the documentation generally identifies the Digil as being a small clan perhaps, as indicated by the appellant's original counsel, constituting no more than 3% of the population.64 [85] As noted earlier, there are a great many documents in the NDP concerning clans and minority groups in Somalia. Typically, this information is cited in support of allegations that the claimant is at risk because of their group affiliation. In other words, general information that is not directly tied to the claimant is used to create a profile against which a decision-maker might assess the possibility, little or serious, that the particular claimant either does or does not have a well-founded fear of persecution, or probably faces risks or danger. As well, whereas an affiliation in one part of the country may present a threat, it may be far less in another part of the country. [86] One of the complaints raised by the appellant was that the RPD performed "a very superficial analysis of the situation of the Digil."65 However, the same can be said of the appellant's analytical offerings set out in the brief 4-page portion of the appellant's memorandum contained in the AR dealing with the topic. In my assessment, given the voluminous material set out in the NDP dealing with clans and minorities numbering in the hundreds of pages, if an appellant is suggesting that the RPD's consideration concerning a clan was deficient, it is incumbent upon the appellant to provide detailed submissions as to what they suggest is a more accurate analysis. The appellant must direct the RAD specifically to the portions of any particular country document they wish to rely upon. Only very brief direction or guidance is provided by the appellant in this case. [87] The RPD's Member's comments considering the clan question were: [16] The Garre clan is a relatively small clan in Somalia, however it is not considered a minority clan, which does face significant societal discrimination. The Digil, and therefore the Garre, are characterised in the documentation as being agro-pastoralist people. Although they are part of the minor clans who make upwards of 20% of the population, the panel also notes that the clan system in Somalia is flexible and fluctuates and clan politics are constantly shifting.66 In the Transitional National Assembly, these clans including the Digil have been included as one of the major Somali clan-families and allotted 49 seats, distinct from the recognized minorities grouped together.67 The Digil are the smaller of this clan grouping, and have a small independent confederacy which have been relatively stable bound together by reciprocal relations of aid and defence.68 The evidence before this panel is that the clans no longer provide protection to an individual.69 That in Mogadishu, commissioners or warlords or business men, and are the ones persons are turning to for assistance and support.70 The evidence does suggest that persons belonging to the Digil who are displaced and are the visible minority in Somaliland and Puntland, are at the lowest socio-economic stratum and have very little access to work and many often live on begging, but are not systematically targeted.71 [88] I agree with the appellant that the Member could have been more fulsome in her analysis of the specific circumstances of the appellant's clan or sub-clan. For example, the Member's reference to the situation for Digil who become displaced and end up in the far north of the country (i.e. Somaliland and Puntland) seems to be off the mark inasmuch as she had found (and I have confirmed as well through my own analysis) that the story relative to the father was determined to be not credible. When that part of the narrative is taken away, there is no part of the remaining story whereby it would be necessary for the appellant to live other than where he lived previously with his family, where they live to this day and have lived since the 1990s. Certainly not in Somaliland or Puntland. [89] While the authorities discussed in the Role of the RAD and Criteria for Intervention portion of these reasons certainly condone the RAD giving deference to the RPD with respect to credibility matters the RPD is in a better position to determine, the same cannot be said relative to the analysis of country documents. That is an area of consideration where the RAD need not be deferential toward the RPD. The RAD has expertise similar to that of the RPD and is as capable of analyzing such evidence as is the RPD. [90] Given my ultimate conclusion with respect to the clan related portion of the appellant's claim set out below, a particularly detailed review of the country documents concerning the appellant's clan and sub-clan is not necessary. Nonetheless, I, like the RPD Member set out in paragraph 17 of her decision, take note of the fact that the appellant and his family have lived in Mogadishu for virtually the entirety of the appellant's life. The appellant testified that the family had left their Mogadishu home for only approximately one year in 1991-1992 during the Civil War before they returned. It is clear that the family did not live life as "agro-pastoralist people," growing crops and raising livestock to support the family. While not accepted as credible by the RPD or the RAD, the appellant alleged that his father was a XXXX throughout his working life. There was no hint in the evidence that the father was involved in any ongoing agricultural activities. The appellant testified that he worked as a restaurant XXXX from 2000-2013 near the central market. The four brothers (including half-brothers) worked in the market and one was a government XXXX. At one point, the entire family lived in the same house in Mogadishu the family lives in today. Some brothers and sisters then moved out upon getting married. However, at the time he left the country, two brothers continued to live in the family home, together with the appellant's wife, three children and the appellant's mother.72 [91] What is clear from the above is that the appellant's family was not involved in the traditional lifestyle attributed to his clan in many of the country condition reports. They lived in the city and had urban employment. [92] Further differentiating the appellant and his family from more, perhaps, traditional members of his clan is that he lived, and his family lives, in Mogadishu. In this regard, one of the more recent documents disclosed in this claim was NDP document Item 1.7 being the Operational Guidance Note: Somalia published by the Home Office of the United Kingdom in September 2013.73 It is a lengthy document which, in some sections, specifically focuses on the situation in Mogadishu. While some clan issues continue to play a role for people that live there, times have apparently changed. For example, in paragraph 2.2.13 the report notes:74 . . . Regarding crime it was explained that if a person is a victim of crime he or she may go to the police, but is it uncertain whether the police will take any action or not. With regards to clan protection within Mogadishu this is less important as there are no clan based militias in Mogadishu. Persons returning from abroad are not at particular risk because of their clan affiliation. When asked if this also include members of small minority clans as well as members of ethnic minority groups an international NGO stated that this is the case. The NGO made reference to the Chief of Police in Mogadishu who is a member of a Bravanese minority group. People of Mogadishu have less to fear than two to three months ago, both in relation to security and clan issues. When asked if individuals who are having trouble with other persons or if they fear for something would be able to seek assistance the international NGO stated that people can go to the police, contact their elders and/or contact an MP who is representing their own clan. It was reiterated that the clan system is not very strong today and as there are no militias, people have less to fear when it comes to clan affiliation. There are no longer any clan related conflicts in Mogadishu and people can move everywhere in Mogadishu irrespective of their clan affiliation. [93] Regarding Al Shabab in Mogadishu, at paragraphs 3.9.10-3.9.11 the report states:75 3.9.10 According to an international NGO, people are returning from the Diaspora in increasing numbers and today the citizens of Mogadishu have access to all parts of the city. A UN agency, Nairobi, confirmed that most checkpoints in Mogadishu have been removed. All illegal or unauthorised checkpoints are now gone. The UN agency also stated that the risk of a return to warlordism in Mogadishu is no longer an issue. It is now the SNG and AMISOM who are in control of Mogadishu, not the District Commissioners and their militias. 3.9.11 The UN Department of Safety and Security (UNDSS) in Mogadishu, stated that from a UN point of view there has been a gradual improvement regarding security since early 2012 and UN threat and risk levels for Mogadishu have gone down. Regarding the threat of terrorism UNDSS stated that al-Shabaab is still present in Mogadishu as well as across Somalia, but it has no capacity to undertake conventional warfare in Mogadishu, and there is no longer a frontline in the city. [94] Additional comments concerning the state of affairs of clan affiliations in Mogadishu found in paragraphs 3.10.1-3.10.8 (at pp.213-216 of RAD Exhibit 3). While acknowledging that clan affiliation maintains relevance in the city, there is some evidence indicating that: . . . It was reiterated that the clan system is not very strong today and as there are no militias, people have less to fear when it comes to clan affiliation. There are no longer any clan related conflicts in Mogadishu and people can move everywhere in Mogadishu irrespective of their clan affiliation. UNHCR- Somalia, Mogadishu, confirmed that someone in Mogadishu will not be at risk today solely because he/she is of a different clan, although clan dynamics in combination with other factors are an important element when considering risk, including for the IDP population. It is obvious that one is safer when he or she is residing in an area dominated by his or her own clan or if one has good relations with a dominating clan.76 [95] The generalized profile of the appellant's sub-clan of a small clan aside, I find that the actual experience of the appellant and his family over many decades is probably the most predictive factor as to whether or not there would be more than a mere possibility that the appellant would be persecuted because of his clan affiliation were he to return to his family's home in Mogadishu. Aside from one event in 1997 where the appellant deduced that the robbery of his home was clan motivated, the appellant could provide no other examples of any sort of persecution arising from his affiliation with his clan. [96] Overriding even that consideration when considering if the appellant is a Convention refugee owing to his clan is the actual conduct of the appellant. Such a claim requires that a claimant not only establish an objective basis for the claim but he must also establish that he has a subjective well-founded fear associated to it. The fact that the appellant did not leave Somalia until the fall of 2013 leads me to find that the appellant did not have a subjective fear of clan related persecution. This conclusion is reinforced when considering that, when he had an opportunity to make a claim for asylum in the US, no such issues were raised with the US authorities, even though he had a full opportunity to do so. His delay in leaving Somalia and the failure to advance the claim in the US leads me to conclude on a balance of probabilities that the appellant has no subjective fear of persecution based on his clan affiliation. [97] Accordingly, I find there is not more than a mere possibility that the appellant will be persecuted for his clan affiliation should he return to Somalia. [98] I come to a similar conclusion with regard to any claim by the appellant under section 97 IRPA as it relates to his clan identity. It is not enough to simply point to country documentation to identify risks and danger that might exist for members of a particular clan in a country. As was synopsized by Justice Shore in Nijjar:77 [24] In Ahmad v. Canada (Minister of Citizenship and Immigration), 2004 FC 808, [2004] F.C.J. No. 995 (QL), at paragraphs 21-22, Mr. Justice Paul Rouleau made the following comments about the test under section 97 of the Act, according to which it can be determined whether the claimant will personally be exposed to a risk: First of all, I wish to point out that the relevant test under section 96 is in fact quite distinct from the test under section 97. A claim based on section 97 requires the Board to apply a different criterion pertaining to the issue of whether the applicant's removal may or may not expose him personally to the risks and dangers referred to in paragraphs 97(1)(a) and (b) of the Act. However, this criterion must be assessed in light of the personal characteristics of the applicant.... Thus the assessment of the applicant's fear must be made in concreto, and not from an abstract and general perspective. The fact that the documentary evidence illustrates unequivocally the systematic and generalized violation of human rights in Pakistan is simply not sufficient to establish the specific and individualized fear of persecution of the applicant in particular. Absent the least proof that might link the general documentary evidence to the applicant's specific circumstances, I conclude that the Board did not err in the way it analyzed the applicant's claim under section 97. [99] Given the above and the fact that the only evidence of arguably clan related personalized targeting the appellant can point to happened nearly 20 years ago, I find on a balance of probabilities that it is not likely that he will face section 97 risks or danger upon a return to Somalia. Second ground: Did the Panel err in determining that the appellant's one-year absence from Somalia did not constitute a long absence? Did the Panel ignore documentary evidence that Al Shabab continued to pose a threat to individuals in Mogadishu? Did the Panel err by failing to consider the perspective of the agent of persecution? [100] I found the second ground as raised by the appellant to be somewhat confusing and indistinct. In the body of his Memorandum78 there is but one page of submissions concerning these questions, all under the heading, "Whether One Year Absence Is a Long Time." [101] The following is the entirety of the appellant's submissions under that heading: 3.12 The Appellant testified that he was afraid that he would be perceived as a spy by the Al Shabab group since he has been abroad for over a year. 3.13 The Panel finds in paragraph 18 that there is an objective basis for such fears but that: The claimant has been outside of Mogadishu for over a year. He has been in Canada since July 2014. A year in the panel's view does not constitute a significant time period. 3.14 The Panel makes two mistakes. 3.15 First, the panel does not explain why her is not a significant period. This is required because of her is obviously a long time. The Panel's finding appears arbitrary. [The following is apparently a quote from a case authority] Again, there is no reasoning as to why it does not accept her evidence, other than a reference to delay. The manner in which the Board dismissed the question of the warrant is simply not fair. The decision appears arbitrary. The Board is obligated to give reasons when it makes an adverse finding of credibility (Hilo v. M.E.I. (1992), 15 IMM. L.R. (2d) 199 (F.C.A.)) 3.16 Second, the Panel may not think a year is significant but that is not the issue. The issue is whether the agent of persecution considers a year a long time. The Panel never turns its mind to that issue. 3.17 The Panel further finds that there is no risk to the Appellant because Al Shabab are no longer in control of Mogadishu. 3.18 This finding is documentary evidence which shows that even in 2014 Al Shabab continues to operate in Mogadishu and retains the ability to strike those it considers its enemies. [102] The appellant then refers to four annexed exhibits which had also been disclosed at the RPD. No specific references are provided in the Memorandum with respect to these exhibits. However, some sentences in the annexures have been underlined so I assume those portions the appellant wishes me to consider in particular. [103] Although it is not altogether clear to me given the form and content of the Memorandum, given their placement in that document I assume that all of the questions are tied into the allegation that, because the appellant has been in the West for a period of time, upon a return to Somalia Al Shabab may suspect him to be a spy for the Western influenced Somali authorities or other anti-Al Shabab entities. Accordingly, the group may harm or kill him. For ease of reference I will refer to this as the "Westernized spy" claim. [104] The RPD dealt with the issue as follows: [18] The claimant had submitted to this panel, that once he returns to Somalia, he will be targeted and killed, that as having resided abroad. Although there is some evidence before this panel that those persons returning to Mogadishu after a significant time abroad or appearing western, may face a real risk of harm.79 The claimant has been outside of Mogadishu for over a year. He has been in Canada since July 2014.A year in the panel's view does not constitute a significant time period overseas or abroad. Further, these persons or returnees were targeted in Al-Shabab controlled areas, and further Al -Shabab is no longer controlling Mogadishu.80 The claimant has not reasonably established any recent issue with Al-Shabab or persons associated with Al-Shabab and therefore would not be specifically targeted. There is insufficient evidence before this panel to conclude that the claimant would be targeted simply by returning to Mogadishu after being away for over a year. [105] It is first to be noted that the Westernized spy claim is not raised in any way in the appellant's BOC. As well, no amendment was made prior to the RPD hearing to add that claim, even when the appellant otherwise amended his BOC on December 18, 2014, not even two weeks before the RPD hearing. There is also no evidence that it was raised with respect to the US asylum claim. [106] There was only the briefest mention of the Westernized claim in the RPD testimony. After the Member's initial questioning, the brief questioning of two witnesses and then counsel's questioning of the appellant, the Member had a further final question. The Member asked what the appellant thought would happen to him if he returned to Somalia. He answered that he would face the same problems he ran away from and added words to the effect that anyone who comes from the Western world will be killed immediately.81 [107] All of the above indicates to me on a balance of probabilities that the Westernized spy claim was very much an afterthought, added to the very end of the RPD hearing. In failing to raise the claim either in the US or, more tellingly, in the BOC or its amendment, leads me to conclude that the appellant did not demonstrate that he had a well-founded subjective fear of persecution on that basis. [108] In the course of his RPD submissions, previous counsel made reference to an October 23, 2014 Amnesty International document titled Forced Returns to South and Central Somalia, Including to Al Shabab Areas: A Blatant Violation of International Law.82 First, at page 3, mention is made that people who are suspected of having contact with the government are at high risk, as well as those suspected of spying for the government. Such people might be killed, tortured and otherwise ill-treated or threatened. It states, "Those unfamiliar to Al Shabab operatives or have been outside of Al Shabab held areas can be objects of suspicion." [109] The following page states: People on transport routes report being interrogated and treated with suspicion by Al Shabab. Movements need to be justified, particularly if the movement is between Al Shabab areas and areas controlled by the SFG and allied forces. An unknown person or a person looking slightly westernized may be at increased risk if Al Shabab stops the vehicle. [110] On that same page an anecdote was provided about what happened to a woman traveling on a bus: When one lady was checked, they found an American ID. . . they put all her documents on the fire and put her in a separate room. She was crying and crying. They kept us for around two hours, then all of us but her were allowed to go on our way. They said the driver, "If you look back, we will slaughter you." They started walking with her towards the forest. We never saw her again. Even if my father dies tonight in Somalia, I cannot go back. [111] The final reference made to the RPD by counsel related to page 7 of the document where it was noted that Al Shabab had been increasingly suspicious towards those returnees from abroad because of alleged espionage for the SSG allied troops or "for westernization". It stated that Somalis returning from Western countries usually try to avoid going back to Al Shabab controlled areas, even when their clans live in that area. A Danish and Norwegian fact-finding mission found Somalis returning from the diaspora could be at risk of targeted attacks by Al Shabab, especially those 'who are visible and who do not blend in.' Even so, that same page reports that the Minister for Migration in the Netherlands "continues to claim that people who return to Al Shabab controlled areas and who know how to live under Al Shabab control, (assuming they have previous experience of living under Al Shabab rule, have left Al Shabab controlled areas recently, and are not yet 'westernized' and will thus not attract specific attention of Al Shabab) will not be at risk of torture or ill-treatment." European cases cited in the article follow that thinking. Amnesty International disputes this latter position. [112] Of the four country documents the appellant annexes to his "Ground Two" submission, only the above-noted Amnesty International report provides any material comments about the "Westernized spy" issue. [113] The appellant's submission to the RAD is that he does not agree with the RPD that one year away from the country is not a long time. He also observes that what the RPD thinks is a long time is not the issue but, rather, whether the agent of persecution considers a year a long time. However, the appellant does not offer any evidence one way or the other on that point. [114] Having read the Amnesty International article, the point I take from it is that the length of time someone might have been out of the country could reflect that they had been away so long that they had never been a resident when Al Shabab had been in control of where they had lived and, therefore, such a person would not know "how to play the game" or know how to live in the face of Al Shabab's rules if they went to live in an area predominantly controlled by that group. They would "stick out". It might also be the case that an individual might have been away so long that their personal habits, manner of dress and linguistic nuances resulting from being away so long might be obvious. One example given was a man who was returned at age 26 from having lived outside the country for 20 years. He was wounded three days later in an Al Shabab attack.83 I find it unlikely that these sort of obvious differences from others in Somalia would apply to the appellant, his having lived in Mogadishu when Al Shabab was unquestionably in control there some years ago and having been out of the country for only about two years. I find the appellant has failed to demonstrate on a balance of probabilities that his having been out of the country would be obvious to Al Shabab. [115] Moreover, if returned, it is not likely that the appellant would be one of those who would be left stranded in the country with nowhere to go, either ending up in an internally displaced person camp or wandering from place to place, perhaps running across Al Shabab checkpoints. It is to be recalled that the evidence is that the appellant's family continues to live in the same house in Mogadishu they have lived in for decades. Noting my earlier finding that the claim based on the father's employment and murder having been found to be not credible, there is no apparent reason why the appellant could not return to live there with his established family. Aside from that narrative based on his father, the appellant provided no evidence that his family has had any specific problems with Al Shabab since he left the country, even having spoken to his wife the evening before his RPD hearing.84 [116] Finally, the appellant challenges the RPD Member's statement that Al Shabab no longer controls Mogadishu. In paragraph 3.18, the appellant alleges that the group continues to operate in Mogadishu. My assessment is that they are both right. The RPD relied upon the United Kingdom Home Office Somalia: Country of Origin Information Report of August 2013. In particular, at paragraph 1.26 the report notes that Al Shabab no longer controls the city in terms of troops having fixed combat positions or front lines, having withdrawn from Mogadishu beginning in August 2011, and completing the withdrawal by the end of May 2012. The same report does acknowledge that there continue to be underground Al Shabab cells and terrorism together with some attacks against targets in the city's outlying districts. The report notes that this does not reflect an attempt to retake the city but are a form of harassment and as a reminder of its presence. As well, the group uses explosives and conducts grenade attacks as well as some assassinations. People still must be on guard but the situation is more stable. It notes that in the previous October people "did not dare go to the Bakara market, today they are going." [This is where the appellant worked for many years] An observer in the report states, "These days there are no armed struggle and no front-line in Mogadishu, people can move freely around the city and people are back from the Afgoye corridor and from elsewhere." [117] The report concerning the Westernized spy threat noted earlier emphasizes that the threat is greater in the Al Shabab controlled areas. Obviously, any time an organization has control in the sense of permanently placed troop positions, their ability to enforce their strict Sharia law might more easily enable them to identify those may have been away for extended periods of time as they would be unfamiliar with how to act in that environment. [118] Considering all of the above I have concluded that, in addition to not demonstrating a well-founded fear of persecution by failing to advance this portion of the claim until the last moment, together with my analysis of the personal circumstances and history of the appellant, there is not more than a mere possibility that the appellant will be persecuted as a suspected spy because he has been out of the country. I also find that it is not likely on a balance of probabilities that he will face section 97 of IRPAA risks or danger by such means. CONCLUSION [119] For the foregoing reasons, the determination of the RPD that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection is confirmed. The appeal is rejected. (signed) July 21, 2015 Philip MacAulay "Philip MacAulay" Date 1 Refugee Appeal Division (RAD) Exhibit 3, Refugee Protection Division Record (RPDR), pp. 3-12. 2 Immigration and Refugee Protection Act ("IRPA" or the "Act"), S. C. 2001, c. 27. 3 RAD Exhibit 2, Appellant's Record (AR). 4 RAD Exhibit 3, RPDR, p. 507. 5 RAD Exhibit 2, AR, p. 30-32 and p. 69, para 2.03-2.05. 6 RAD Exhibit 3, RPDR, p. 5, para. 4 and p. 9, para. 15. 7 RAD Exhibit 3, RPDR, pp. 11-12, paras. 19-20. 8 RAD Exhibit 2, AR, p. 69, paras. 2.01-2.02. 9 Iyamuremye v Canada (Minister of Citizenship and Immigration), 2014 FC 494. 10 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 11 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 12 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; and Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 13 Spasoja v Canada (Minister of Citizenship and Immigration), 2014 FC 913. 14 Huruglica v Canada (Minister of Citizenship and Immigration), 2014 FC 799. 15 For example see Njeukam v Canada (Minister of Citizenship and Immigration), 2014 FC 859; Yetna v Canada (Minister of Citizenship and Immigration), 2014 FC 858; and Akuffo v Canada (Minister of Citizenship and Immigration), 2014 FC 1063. 16 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952. 17 Akuffo v. Canada (Minister of Citizenship and Immigration), 2014 FC 1063, paras. 15-27. 18 Kurtzmalaj v. Canada (Minister of Citizenship and Immigration), 2014 FC 1072. 19 Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 1022. 20 Djossou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1080. 21 Siliya v. Canada (Minister of Citizenship and Immigration), 2015 FC 120; see also Broderick v. Canada (Minister of Citizenship and Immigration), 2015 FC 491paras. 15-29. 22 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, paras. 42-52. 23 Alvarez v. Canada (Minister of Minister of Citizenship and Immigration), 2014 FC 702, para. 29. 24 Canada v. South Yukon Forest Corporation, 2012 FCA 165, para. 46. 25 Dunsmuir v. New Brunswick, 2008 SCC 9. 26 Kanga v. Canada (Minister of Citizenship and Immigration), 2012 FC 482, para. 11. 27 Akuffo v. Canada (Minister of Citizenship and Immigration), 2014 FC 1063, para. 38. 28 Akuffo, ibid., para. 46. 29 Akuffo, ibid., para. 47. 30 Akuffo, ibid., para. 50. 31 Sajad v. Canada (Minister of Citizenship and Immigration), 2014 FC 1107, at para. 26; and Allalou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1084, at para. 20. 32 Njeukam v. Canada (Minister of Citizenship and Immigration), 2014 FC 859, at para. 18. 33 Yin v. Canada (Minister of Citizenship and Immigration), 2014 FC 1209. 34 Yin, ibid., paras. 33 and 34. 35 Yin, ibid., para. 36. 36 Yin, ibid., para. 37. 37 Dhillon v. Canada (Minister of Citizenship and Immigration), 2015 FC 321; Spasoja v Canada (Minister of Citizenship and Immigration), 2014 FC 913 at paras. 42-42: Siliya v. Canada (Minister of Citizenship and Immigration), 2015 FC 120 at paras. 24-25. 38 RAD Exhibit 2, pp. 17-19 and p. 69. 39 RAD Exhibit 3, RPDR, pp. 5, para. 7- p. 8, para. 10. 40 RAD Exhibit 3, RPDR, p. 8, paras. 12-13. 41 RAD Exhibit 3, RPDR, pp. 82-114. 42 RAD Rules SOR/2012-257, Rule 3(3)(g)(iii). 43 RAD Exhibit 2, AR, p. 18, para. 12. 44 RAD Exhibit 2, AR, p. 69, para. 2.03. 45 RAD Exhibit 2, AR, p. 75. 46 RAD Exhibit 3, RPDR, p. 60. 47 RAD Exhibit 3, RPDR, pp. 25-26. 48 RAD Exhibit 3, RPDR, CD, 01:19:00-01:23:10. 49 RAD Exhibit 3, RPDR, CD, 01:33:30-01:37:00. 50 RAD Exhibit 3, RPDR, CD, 02:01:25-02:03:40. In 51 Fida v. Canada (Minister of Citizenship and Immigration), 2015 FC 784. 52 Balde v. Canada (Minister of Citizenship and Immigration) 2015 FC 625 at para.17. 53 RAD Exhibit 3, RPDR, p. 9, para. 15. 54 RAD Exhibit 3, RPDR, p, 17, q. 2(b). 55 RAD Exhibit 3, RPDR, p. 19, q. 2(h). 56 RAD Exhibit 3, RPDR, p. 95-96. 57 RAD Exhibit 3, CD, 00:43:00-00:52:00. 58 RAD Exhibit 3, CD,01:59:00-02:01:00. 59 RAD Exhibit 3, RPDR, CD, 02:08:40-02:09:45. 60 RAD Exhibit 3, RPDR, p. 10, para.15. 61 RPD Exhibit 2, AR, p. 70. 62 RAD Exhibit 3, RPDR, pp. 497-505, "Clan Structure in Somalia", Civil-Military Fusion Centre, August 2011. 63 RAD Exhibit 3, RPDR, pp. 430-496. 64 RAD Exhibit 3, RPDR, CD, 02:08:40-02:10:00. 65 RAD Exhibit 2, AR, p. 73, para. 3.10. 66 RPD Exhibit 3, NDP, Item 13.11, found at RAD Exhibit 3, RPDR, pp. 497-506. 67 RPD Exhibit 3, NDP, Item 13.5, found that RAD Exhibit 3, RPDR, pp. 430-496. 68 Ibid. 69 RPD Exhibit 3, NDP, Item 1.7, found at RAD Exhibit 3, RPDR, pp. 179-232. 70 Ibid. 71 Ibid. 72 RAD Exhibit 3, RPDR, CD, 00:52:00-01:00:00. 73 RAD Exhibit 3, RPDR, Item 1.7, pp. 179-232. 74 RAD Exhibit 3, RPDR, pp.184-185. 75 RAD Exhibit 3, RPDR, p. 206, 76 RAD Exhibit 3, RPDR, p. 216. 77 Nijjar v. Canada (Citizenship and Immigration), 2006 FC 829. 78 RAD Exhibit 2, AR, p. 74-75. 79 RPD Exhibit 3, NDP, Item 2.3 and Exhibit 8; found in RAD Exhibit 3, RPDR, pp. 269-426 and pp.169-178. 80 RPD Exhibit 3, NDP, Item 2.1; found in RAD Exhibit 3, RPDR, pp. 233-268. 81 RAD Exhibit 3, RPDR, CD, 02:08:40-02:05:00. 82 RPD Exhibit 3, RPDR, pp. 170-177. 83 RAD Exhibit 2 AR, p. 61, at bottom of page. 84 RAD Exhibit 3, RPDR, CD, 01:20:50-01:23:10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB5-00336