TB6-12230

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB6-12230 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision November 23, 2016 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Laurie I Wood Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted new evidence in support of her appeal and does not request an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to reverse the decision of the RPD and send her file back to the RPD for a hearing de novo. DETERMINATION [2] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that she fears al-Shabaab and its sympathizers in Somalia because they believe her husband spied for the federal government. [4] The claim for refugee protection was heard on January 21, 2016. By a decision dated February 16, 2016, the RPD rejected the claim finding that the Appellant lacked credibility with respect to the key information in her claim regarding a fear of persecution or harm from al-Shabaab. The RPD also found that the residual evidence did not support a claim for refugee protection. [5] On appeal to the RAD, the Appellant submits that the interpretation services provided to her throughout the process was inadequate and therefore affected her natural rights to be heard. She further submits that the RPD was overzealous in scrutinizing her interpreter-assisted testimony in a scenario where it should have known that inconsistencies were likely the result of faulty interpretation services. She also submits that the RPD misapprehended the evidence regarding her clan. ANALYSIS Role of the RAD [6] The Appellant notes that one of the grounds of her appeal can be broadly categorized under the breaching of principles of natural justice and procedural fairness, namely, whether or not the interpreter and his services were adequate. She submits that issues of procedural fairness are typically reviewable on the correctness standard. With respect to the second ground of her appeal, relating to findings of fact and credibility, the Appellant submits that the appropriate standard of review is generally reasonableness. [7] The RAD notes that the Federal Court of Appeal, in Huruglica, indicated that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law; and this translates into an application of the correctness standard of review.1 The Court held that, with respect to findings of fact (and mixed fact and law), which raises no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. It went on to indicate that after carefully considering the RPD decision, the RAD is to carry out its own analysis of the record to determine whether the RPD erred. The Court also stated that having done the above, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination.2 [8] Considering the recent jurisprudence, the RAD will conduct its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Where no issue of credibility of oral evidence was raised, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of oral evidence was raised, the RAD will defer to certain findings of the RPD where the RPD enjoyed an advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with the RAD's own analysis of the record as a whole. In addition, the standard of correctness will be used for any error of law including a breach of natural justice or procedural fairness found in the RPD decision on appeal to the RAD. MERITS OF THE APPEAL Interpretation issues and allegation of negligent counsel [9] On appeal to the RAD, the Appellant points out that she fully relied upon XXXX XXXX, a counselor assigned to her by the Somali community, to interpret and translate for her when she first arrived in Canada because she did not speak English or French. She also points out that Mr. XXXX assisted her in completing all of her paperwork prior to having a lawyer, and she relied on Mr. XXXX to communicate with her lawyer after she retained one. She notes that eventually she no longer relied on Mr. XXXX and instead relied on her niece, after they were reunited. The Appellant maintains that her niece reviewed her paperwork, noticed various inconsistencies, and expressed concern regarding Mr. XXXX prior services. She maintains that she was unable to make corrections to her refugee application because she was unable to meet with her lawyer until just before her hearing; and simply sent in a new narrative that was more true and complete than the Basis of Claim Form (BoC) completed with the assistance of Mr. XXXX. [10] The Appellant points out that Mr. XXXX was the interpreter at her hearing before the RPD. She submits that, given Mr. XXXX services to her and the concerns regarding his services to her, there is a reasonable apprehension of bias that would affect the integrity of the entirety of her hearing. She submits that the two primary indicators of potential bias in her case are the personal interest the interpreter has in any evaluation of the quality of his past services to her, and a prior professional relationship with her that may have ended on less than favourable terms. The Appellant argues that the interpreter had a personal interest in the outcome of the hearing, to her detriment, as his interest would be in maintaining his reputation by insisting or insinuating that his services are of the highest quality and that any problems with documentation had nothing to do with him and that the blame instead rested with her. She submits that a reasonable person could reasonably believe that the interpreter may manipulate his translation at the hearing to cover up the past mistakes he made during his prior professional relationship with her. [11] The Appellant submits that everything about her claim was tainted because she did not have the ability to correct any misinterpretation and she did not have any other assistance for that purpose until it was too late. She submits that her former counsel should have objected to the services of the interpreter and informed her of her rights to competent interpretation. She submits that her former counsel was negligent and therefore did not notice obvious inconsistencies such as different birthdays on different pages of her documents. She argues that careful counsel would have asked her about the inconsistencies and probably would have drawn attention to and inquired about the competency of the initial interpreter; her former counsel should have then asked for a different interpreter and informed the IRB of any changes through sworn declaration; and, when her former counsel noticed that the interpreter at the hearing was the same as the one who provided careless services at the documentation state, he should have objected and requested an adjournment to allow for the arrangement of a new interpreter. The Appellant submits that, given that the interpreter's role is pivotal in her hearing and there is a reasonable apprehension of bias on the part of the interpreter, natural justice would demand, at a minimum, that a new hearing be held with a different interpreter and Board member. [12] In the RAD's view, the Appellant's argument regarding interpretation and negligent counsel fails for the following reasons. The Appellant was wrong to believe that the person who assisted her in preparing her claim forms was also the interpreter at her hearing. It is clear from documents3 in the record that XXXX XXXX assisted the Appellant in the completion and interpretation of her forms. It is clear from the recording of the Appellant's hearing that XXXX XXXX XXXX was the interpreter at her hearing. Although XXXX XXXX was called as a witness at the Appellant's hearing by her counsel, he provided no interpretation or translation services at the hearing. He testified for approximately 15 minutes mainly in the area of clan structure and the treatment of women in Somalia. Therefore, the Appellant's allegations regarding the interpreter at the hearing are completely without basis. [13] As noted above, the Appellant maintains that she became aware of errors in her refugee application but was unable to make corrections before her hearing because she only met with her lawyer immediately before her hearing. However, the RAD notes that the Appellant, at her hearing, confirmed that the information she had provided in her documents was complete, true, and correct, and that she had understood the questions and the answers. The Appellant even indicated at her hearing that the questions were interpreted to her in the Somali language and her responses were recorded on the forms and read back to her in the Somali language. She indicated that her narrative was read back to her in the Somali language. The Appellant had the opportunity at the outset of her hearing to make changes to the information in her forms before she confirmed that the information was accurate. She also had the opportunity at the outset of her hearing to indicate that the information in her forms was not accurate. She failed to make changes to the information in her forms and failed to indicate any inaccuracies at the outset of her hearing. If the Appellant noticed errors in her forms before her hearing as she alleges, it would be reasonable to expect her to notify the RPD at the outset of her hearing. The RAD finds that the Appellant's assertion that she was unable to make corrections to the information in her forms is without merit. [14] The Appellant has alleged that her former counsel was negligent. She maintains that her former counsel did not notice obvious inconsistencies in her documents that careful counsel would have addressed before her hearing. She maintains that, when her former counsel noticed that the interpreter at the hearing was the same as the one who provided careless services at the documentation state, he should have objected and requested an adjournment to allow for the arrangement of a new interpreter. [15] Incompetence or negligence of counsel will amount to a breach of procedural fairness in only limited circumstances where: (a) the incompetence is sufficiently specific and clearly supported by evidence; and (b) there is a fairly arguable case that the result would have been different.4 Where counsel incompetence or negligence is alleged, the courts have required a complaint to the governing body as a form of corroborating evidence of the allegations.5 While complaints to a regulatory body may serve to corroborate claims of incompetence, they should not be perceived as requirements to making such an allegation.6 It is required that former counsel be given notice and an opportunity to respond to the allegations made against him.7 [16] In this case, no evidence was presented to indicate that a complaint has been made by the Appellant against her former counsel to his regulatory body. More importantly, there is no indication that the Appellant's former counsel was advised of the complaint and allegations made against him. The RAD finds that the Appellant has not met the requirement of giving her former counsel notice and an opportunity to respond to the allegations made against him. [17] As noted above, the standard of correctness will be used for any error of law including a breach of natural justice or procedural fairness found in the RPD decision on appeal to the RAD. The Appellant not only alleges that natural justice would demand that she get a new hearing due to the interpreter issues noted above; her allegations are directed at her former counsel, and it was the alleged negligence of former counsel that led to an unfair hearing. With respect to former counsel's conduct, the Supreme Court of Canada has stated, The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.8 [18] Did former counsel's acts or omissions constitute incompetence? The RAD must presume that former counsel's conduct fell within the wide range of reasonable professional assistance, and it is for the Appellant to establish otherwise. As noted above, the interpreter at the hearing was not the same person who assisted the Appellant prepare her documents; therefore the Appellant's allegation that her former counsel failed to notice that that the interpreter at the hearing was the same as the one who provided careless services at the documentation state is without basis. Furthermore, the Appellant's former counsel addressed anomalies in the Appellant's evidence with the Appellant at her hearing. He also addressed these anomalies in his submissions. In the RAD's view, former counsel's treatment of anomalies in the Appellant's evidence does not demonstrate negligence. The RAD finds that the Appellant has failed to establish that her former counsel's conduct fell outside the wide range of reasonable professional assistance. Evidence regarding Appellant's clan [19] The Appellant submits that the RPD misapprehended the evidence that was given to it concerning the status of the XXXX clan when it found that there was no evidence of the XXXX being a weak clan. She argues that evidence presented at the hearing should have alerted the RPD to the possibility that the XXXX and the Hawiye could accurately be described as "separate descent groups" within the meaning provided in a United Kingdom Country Information and Guidance report. The Appellant submits that the third witness's assertion that the Hawiye clan and the XXXX were separate clans fits within the current understanding of separate descent groups; that the second witness would have described the XXXX as "part of the Hawiye clan" was reasonable given the dual definitions of "group" in common usage and the reality that the Hawiye clan would have been the dominant clan in an alliance between itself and the XXXX. [20] The Appellant submits that the RPD's misapprehension of the evidence concerning the status of the groups and the function of the clan alliances led it to unreasonably conclude that there was a discrepancy between the testimonies of the three witnesses, particularly the second witness and the documentary evidence, when there wasn't one. She submits that this misunderstanding concerning the affiliation of the XXXX with the Hawiye clan led the RPD to preclude the possibility that the XXXX clan, due to its status in the hierarchy, may have had an alliance with Hawiye but was nonetheless still a small and minor clan. She notes documentary evidence on the XXXX clan suggesting that the clan has been scattered and its numbers have not been properly accounted for. She submits that the fact that the RPD noted that most documents that listed Somali clans and groups did not list either XXXX or XXXX, was evidence that reasonably indicated that her clan was not a major clan in terms of influence or population. The Appellant submits that the RPD's misapprehension of the evidence concerning the XXXX clan led it to unreasonably find that the weakness of the XXXX clan was not established while also making negative inferences with regards to her credibility. [21] The evidence, in the RAD's view, demonstrates that the XXXX are a part of, or have aligned themselves, with a majority clan. Therefore, the RPD was not wrong to find that the Appellant had not established that she is part of a weak minority clan as alleged. Documentary evidence indicates that the XXXX are a sub clan of the Gorgate, who are a sub clan of the majority Hawiye clan.9 In Somalia, minorities can seek protection by attachment to stronger lineages, and the adoption of weak clans does occur. 10 XXXX XXXX XXXX, a witness for the Appellant at her hearing and a member of the XXXX sub clan herself, testified that the XXXX are not a big clan. She indicated that every sub clan belongs to a clan and the XXXX are the third in a branch, after the Hawiye clan and the Gorgate sub clan. XXXX XXXX XXXX another witness for the Appellant at her hearing, indicated that people in the minority in Somalia try to ally themselves with major tribes who can protect them. Even though the Appellant alleges she was poor in Somalia, she and her husband owned a home in Mogadishu which they sold prior to leaving. She attended Koranic school, although intermittently. There was no indication of any other problems or hardship due to clanship in Appellant's history. XXXX XXXX XXXX indicated at the hearing that she went to school in Somalia because her father had money. The evidence suggests that the XXXX, although they are few in numbers and are scattered throughout Somalia, have allied themselves with one of the majority clans, including the Hawiye which they are affiliated through lineage. The evidence also suggests that the Appellant was not viewed as a member of a weak minority clan as alleged. Overzealous criticism [22] The Appellant points to jurisprudence indicating that it is important for Board members to avoid being overzealous in the finding of inconsistencies in the testimony of applicants who are speaking through interpreters. She points out that she relied on an interpreter in her dealings with the Board with respect to both her written BoC and her oral testimony. She notes that the RPD drew a number of negative inferences about her credibility on the basis of the discrepancies between her BoC, the statement that was proffered by her former counsel prior to the hearing, and her oral testimony. [23] The Appellant points out that she needed to testify through an interpreter at her hearing, despite having signed Declaration A on her BoC indicating that she understood English. She argues that, instead of associating such an obvious mistake to a faulty interpreter's carelessness, an interpreter who was also interpreting at the hearing, the RPD instead associated the inconsistencies to her credibility. She submits that the evidence suggests, at the minimum, carelessness on the part of the interpreter, and at the worst, incompetence in the services of the interpreter. The Appellant submits that, given the situation with the inappropriate interpretation, the discrepancies in her evidence, on a balance of probabilities, were more likely to be a result of bad support during the documentation period rather than her lack of cooperation or truthfulness. [24] While the Appellant is critical of the individual who assisted her in the preparation of her forms, she called the same individual as a witness in her hearing to provide testimony regarding clan structure and the treatment of women in Somalia. It does not make sense that the Appellant would call a witness she was dissatisfied with unless she was calling him to address anomalies in her evidence that he was allegedly responsible for. This was not the case here. This individual was called to give evidence regarding clans and the treatment of women in Somalia. [25] Furthermore, the allegedly faulty interpretation of forms does not explain many of the anomalies in the Appellant's evidence such as her vague testimony regarding contact with her husband at a refugee camp. The Appellant's allegation that the interpreter who assisted her in the preparation of her forms was also the interpreter at her hearing is without basis as discussed above. Moreover, the Appellant fails to point out any errors in interpretation while completing her forms or at her hearing, simply relying on the fact that she signed her declaration in the wrong place to justify her allegation that the interpretation was faulty. [26] Having reviewed the record, in the RAD's opinion, the RPD's findings were thorough, addressed significant aspects of the claim, and were based on the evidence. The RPD was not overzealous in identifying inconsistencies in the Appellant's evidence. The following findings support the conclusion reached in the Appellant's claim for refugee protection. [27] Contradictory evidence regarding family members - The Appellant indicated at her hearing that she had a sister, however, she had not indicated that she had a sister in her BoC. She explained that she did not include her sister in her BoC because her sister is deceased; however, the Appellant's parents, who are also deceased, were included in the BoC. The Appellant's witness testified that the Appellant had brothers and sisters. When confronted with the information from the witness, the Appellant indicated that she has a brother and another sister. When asked about the prior omission of this information, the Appellant indicated that she was only thinking about her husband and children when she filled in the form and did not think about mentioning the brother or sister who might have been living but are missing. [28] Instructions for completing section 5 of the BoC are clear in asking refugee claimants to list their relatives in the following order: spouse, children, parents, brothers and sister. If a person is dead, the refugee claimant is instructed to provide the date of death. It would be reasonable to expect the Appellant to provide accurate and consistent information regarding her family members as instructed. The inconsistencies and omissions in the Appellant's evidence regarding her siblings, without reasonable explanations, undermine her credibility. [29] Inconsistent evidence regarding residence - The Appellant indicated in her Schedule A - Background/Declaration that she had resided in XXXX District, XXXX, XXXX, Somalia from XXXX 2004 until XXXX 2014.11 However, according to her BoC narrative and testimony at her hearing, the Appellant resided in Mogadishu from birth until XXXX 2013, when she went to reside with her husband's grandmother in XXXX. The Appellant attributed the inconsistency to the individuals who filled in her form; however, at the outset of her hearing, the Appellant indicated that the information on the forms had been read back to her to ensure accuracy. The location of the Appellant's residence in the two-year period before her departure from Somalia is a significant element of her story, particularly because the allegations regarding threats from members of al-Shabaab are specific to the area she was residing and the area where her husband sold their home. The Appellant's residence information is relevant to her whereabouts at the time of the alleged threats, to her ability to live safely in Mogadishu, and her connection to XXXX. It is reasonable to expect the Appellant to give consistent evidence about her residence, and her failure to do so further damages her credibility. [30] Inconsistent evidence with witness - The Appellant indicated at her hearing that she and her witness (XXXX XXXX XXXX) had gone to the same Koranic school in XXXX, Mogadishu. She first indicated that they attended the school together and later said that her witness had attended the school before her. She indicated that she did not remember playing with her witness when they were young children. On the other hand, the Appellant's witness indicated that she had never attended the Koranic school in XXXX and that she and the Appellant played together when all the cousins got together at their grandmother's house. Although it would be unreasonable to expect the Appellant and her witness to recall all their interactions with each other as children, one would expect them to provide consistent evidence regarding their attendance at a school in XXXX where the Appellant had indicated she and her witness had known each other. The inconsistency further undermines the Appellant's credibility. [31] Vague testimony regarding whereabouts of husband and children - The Appellant indicated in her BoC that the whereabouts of her husband and children was unknown. According to her BoC narrative prepared the day before her hearing, the Appellant indicated that her husband found a way to get their children and they were all in a safe environment. At her hearing, the Appellant indicated that her husband and children were at the XXXX refugee camp. However, the Appellant failed to provide information about how her husband and children had been located, or how her husband and children were reunited, or how her husband and children had made their way to the XXXX refugee camp, even though the Appellant alleges to have spoken to her husband a number of times in the months before the hearing. The Appellant was vague in her responses to questions about the new information about her husband and children. For instance, when asked how she learned that her husband and children were in the XXXX refugee camp, the Appellant said that she kept asking about her family and she was asking anyone who knew someone who would be able to help her. When asked to be more specific with her answer, the Appellant said that she had asked the lady who was with her in the community to help her look and find her family. She went on to say that it wasn't one person specifically and that it was a long process. The Appellant's meaningless responses related to finding her husband and children, when one would expect her to have and provide fulsome and detailed responses, further undermines the Appellant's credibility. [32] Clan affiliation - The RPD was not wrong to find that the Appellant had not satisfactorily established that she is necessarily XXXX or that the XXXX are a weak and small sub clan. As noted above, the evidence suggests that the XXXX have allied themselves with one of the majority clans, including the Hawiye which they are affiliated through lineage. The evidence also suggests that the Appellant was not viewed as a member of a weak minority clan as alleged. [33] Credibility of leaving children in harm's way - The Appellant alleges that she and her husband fled XXXX based on inside information that al-Shabaab suspected the husband of having provided information to government officials that would have led to the arrest of one of their members. The RPD found that it did not make sense that the Appellant and her husband would leave their six young sons under the care of a neighbour in the very town where al-Shabaab is allegedly seeking reprisals against the Appellant and her husband. The RAD concurs with the RPD. Considering the ruthlessness of al-Shabaab and their propensity to abduct and forcibly recruit children,12 and considering the Appellant's allegation that al-Shabaab had come for her in XXXX, it is unreasonable that the Appellant would leave her six young children in harm's way in XXXX. If al-Shabaab sought retaliation as alleged, the Appellant's six young children would be likely targets. If the Appellant and her husband were at risk of harm at the hands of al-Shabaab in XXXX, one would not expect the Appellant and her husband to leave their six young children in harm's way in XXXX while they fled. The RAD finds, on a balance of probabilities, that the Appellant's allegation in this regard is not credible. [34] Credibility of flight from Mogadishu - The RPD noted that the Appellant provided vague testimony about why she would choose to flee from Mogadishu, or why the people she was staying with there would be so sure that she was in danger from al-Shabaab in Mogadishu, that she would have to abandon her home and her children to leave on an uncertain trip away from her country at huge cost to herself and her family. It noted that the Appellant had friends to stay with in Mogadishu, she allegedly had $14,000 given to her by her husband, and she was in a city where she had grown up and lived her whole life. The RPD found that it did not make sense that the Appellant was supposedly unable to safely remain in Mogadishu, far away from the al-Shabaab members in XXXX who allegedly wanted to find her. The RAD concurs with the RPD. The Appellant was unable to adequately explain why she had to flee Mogadishu, when her evidence suggests that she was safe in that city from those who wanted to harm her, and she had the support of friends in Mogadishu, and she had the funds to support herself in that city. The RAD finds, on a balance of probabilities, that the Appellant's allegation with respect to having to leave Mogadishu is not credible. [35] Photo of injury - The Appellant alleges that she injured herself while escaping from her home in XXXX. She presented photographs of her injury. The RPD found that the presence of an injury is not sufficient to establish the credibility of the Appellant's overall allegations. The RAD concurs with the RPD. The Appellant's story has been found to lack credibility and photographs corroborating an injury does not make her story credible. Corroboration does not make an incredible story credible.13 [36] Residual evidence - The RPD considered whether there was any residual evidence to support a claim for refugee protection; namely the Appellant's profile as a female from Somalia. It was pointed out by the Minister that the Appellant had not alleged that she was a refugee based on her gender alone, and noted that the Appellant had apparently lived comfortably in Mogadishu with her husband and six children for years. The RPD noted in its conclusion that the Appellant had not satisfactorily established the vulnerability of her clan affiliation. It also noted that country documents reveal serious concerns with women's rights to education and personal autonomy in Somalia. The RPD noted that the evidence about the situation in Mogadishu is mixed; there is evidence of attacks in Mogadishu while there is evidence that the city has recovered its liveliness and overall security and former residents have chosen to return. [37] The RAD notes, as did the RPD, that the Appellant was not forthcoming about the identity and whereabouts of her immediate family members. The fact that the Appellant and her family, as well as her husband and his family, originate from Mogadishu suggests that the Appellant has family and friends who reside in Mogadishu. The Appellant even indicated that she stayed with friends in Mogadishu before she left Somalia. This is indicative of the support that would be available to her in that city. The fact that the Appellant spent most of her life in Mogadishu suggests that she is familiar with the city. The fact that she and her husband owned a home in Mogadishu suggests that they were doing well in that city. The lack of credible evidence regarding the Appellant's circumstances and the whereabouts of family members hinders a more fulsome analysis of the Appellant's risk profile; however based on the analysis above, the RAD finds that the Appellant does not face a serious possibility of persecution in Mogadishu based on her gender. Disposition [38] The Appellant has alleged that she received inadequate interpretation services, her former counsel was negligent, the RPD was overzealous in scrutinizing her testimony, and the RPD misapprehended the evidence regarding her clan. Based on its own analysis of the record, the RAD has found that the Appellant's allegations regarding interpretation and former counsel are baseless and the RPD did not err by being overzealous in scrutinizing or misapprehending her evidence. The RPD's findings are thorough and based on the evidence. Upon a review of the record, the RAD has reached the same conclusion as the RPD. [39] As a cumulative result of the above-noted anomalies in the Appellant's evidence, the RAD finds that the Appellant lacks credibility. The RAD does not accept, on a balance of probabilities, that the material events, as described by the Appellant in her Basis of Claim Form and at her hearing with the RPD, occurred as described. [40] On the basis of the findings noted above and after its own assessment of all the evidence in the record, including the recording of the hearing, the RAD finds that the Appellant has not established, on a balance of probabilities, that she was harmed or threatened with harm by members or sympathizers of al-Shabaab. The Appellant has not established on a balance of probabilities that she is part of a weak minority clan as alleged. The residual evidence does not support a claim for refugee protection. [41] Therefore, the RAD finds that there is not a serious possibility of persecution should the Appellant return to Somalia. The RAD therefore concludes that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and, for these same reasons the RAD finds that the Appellant is not a person in need of protection or at a risk to life, or at risk of cruel and unusual treatment or punishment, or in danger of torture as set out in section 97 of the IRPA. CONCLUSION [42] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division and dismisses the appeal. (signed) "M. Pettinella" M. Pettinella November 23, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93, para. 78. 2 M.C.I. v. Huruglica, para. 103. 3 Exhibit RPD-1, RPD Record, at pp. 33, 52. 4 Srignanavel, Thangarasa v. M.C.I. (F.C., no. IMM-2619-14), Brown, May 5, 2015; 2015 FC 584. 5 Pusuma, Jozsef v. M.C.I. (F.C., no. IMM-8948-11), Russell, August 29, 2012; 2012 FC 1025, para. 42. 6 Basharat, Sadaf v. M.C.I. (F.C., no. IMM-1611-14), Diner, April 29, 2015; 2015 FC 559. 7 Pusuma, Jozsef v. M.C.I. (F.C., no. IMM-8948-11), Russell, August 29, 2012; 2012 FC 1025, para. 43. 8 R. v. G.D.B., 2000 SCC 22, para. 27. 9 Exhibit RPD-1, RPD Record, at p. 131. 10 Exhibit RPD-1, RPD Record, at p. 240. 11 Exhibit RPD-1, RPD Record, at p. 61, 12 Exhibit RPD-1, RPD Record, at pp. 63-90, National Documentation Package (NDP) for Somalia, 17 July 2015, item 5.8. 13 Gomez, Hector Cisneros v. M.C.I. (F.C., no. IMM-5741-04), Harrington, June 16, 2005, 2005 FC 859. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-12230