TB5-09367

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 : TB5-09367 Private Proceeding / Huis clos Redetermination of the Appeal 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 at Toronto, Ontario Appel instruit à Date of decision March 21, 2017 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Barrister and Solicitor Conseil(s) 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), a citizen of Somalia, appeals the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) refer the matter back to a different member of the RPD for re-determination. The Appellant submits no new evidence in her appeal nor does she request an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). In a decision issued on December 30, 2015, the RAD dismissed the appeal, finding that the Appellant had not established her identity and was not a credible witness. The RAD's decision was set aside by the Federal Court on judicial review. According to a judgment by Justice Campbell, dated XXXX XXXX, 2016, the appeal was referred back to the RAD for redetermination by a differently constituted panel. After the Federal Court decision, the Appellant submitted a Supplemental Memorandum dated December 13, 2016. The Appellant is requesting that the RAD set aside and substitute the negative determination with a positive determination. DETERMINATION [2] This appeal is allowed. Pursuant to section 111(1) (b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. Background [3] The Appellant alleges that she is a member of the minority XXXX clan. [4] The Appellant's mother was a XXXX XXXX of XXXX XXXX which incorporates XXXX tradition and XXXX. XXXX XXXX was created by XXXX XXXX as a result of being excluded from XXXX XXXX XXXX XXXX XXXX. The Appellant learned to perform the XXXX XXXX rituals from her mother. [5] The Appellant married in 1970 and moved from Kismayo to live with her husband in Mogadishu. In 1991, they relocated to XXXX after four of their children were killed by artillery fire. They returned to Mogadishu three years later. [6] In 2000, the Appellant began to perform XXXX XXXX in people's homes. She stopped when the Islamic Courts Union took over, fearing the extremist wing of the courts as well as Al Shabaab. When Al Shabaab was driven out of Mogadishu, the Appellant recommenced her XXXX XXXX practice. She taught her daughter to assist her. [7] On XXXX XXXX, 2015, when the Appellant was absent from her home, members of Al Shabaab came in search of her. They informed her husband and daughter that the Appellant was an apostate and they condemned her to death. Al Shabaab killed the Appellant's husband and seriously injured her daughter. When the Appellant attended the clinic where her daughter had been taken, her daughter informed her of the actions of Al Shabaab. Her daughter died shortly thereafter. [8] The Appellant's brother assisted her in leaving Somalia. In Nairobi she stayed with XXXX, who assisted her in finding a smuggler with whom she travelled to Canada. [9] The Appellant arrived in Canada on XXXX XXXX, 2015 and made a claim for refugee protection on June 17, 2015. [10] The Appellant had a refugee determination hearing on August 19, 2015. In a written decision issued on August 24, 2015, the RPD rejected the claim. The RPD found that the Appellant was not credible and that she had not established her identity. [11] Appeal pleadings were received on October 5, 2015. The Appellant argues that the RPD erred in its findings with regards to her identity and her credibility. APPLICATION TO FILE ADDITIONAL WRITTEN ARGUMENT ON APPEAL [12] The Appellant requested to submit an additional argument pursuant to Rules 29 and 37 of the RAD Rules. [13] Rule 29 of the RAD Rules states: 29 (1) A person who is the subject of an appeal who does not provide a document or written submissions with the appellant's record, respondent's record or reply record must not use the document or provide the written submissions in the appeal unless allowed to do so by the Division. (2) If a person who is the subject of an appeal wants to use a document or provide written submissions that were not previously provided, the person must make an application to the Division in accordance with rule 37. (3) The person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Act and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. (4) In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the [14] The RAD accepts the new submissions as the submissions are based upon jurisprudence that was not available at the time the Appellant made her appeal and the Appellant provided a satisfactory explanation for the slight delay in providing the submissions. ROLE OF THE RAD [15] As the Appellant states in the new submissions, the recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. [16] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD's decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD is to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ANALYSIS OF THE EVIDENCE Identity Citizenship and clan affiliation [17] The RPD accepted as credible, on a balance of probabilities, that the Appellant is ethnically Somali and a member of the XXXX clan. The RPD based these findings on a letter from the XXXX XXXX XXXX XXXX XXXX in Canada and the fact that the Appellant testified in the Somali language. The RPD found, however, that this did not establish the Appellant's personal or national identity. [18] The Appellant submits that the RPD erred in its finding with regard to her citizenship because the ability to speak Somali fluently and know the heritage and culture in Somalia means you are a citizen that is if you are part of the Somali nation. The Appellant depends upon the independent documentary evidence with regards to Somali citizenship2 and the recent decision in Husian3 where the Court found the following: The RAD further failed to consider whether there was evidence that the Applicant was a "Somali". Article 3 of Somalia's citizenship law describes a Somali in broad terms as "any person who by origin, language or tradition belongs to the Somali Nation". The RAD recognized that the Applicant spoke the Somali language and that he "has association" with the Reer Hamar clan and Dhabarweyne sub-clan, groups historically associated with the city of Mogadishu. The RAD erred by finding there was insufficient evidence to identify the Applicant as a Somali national without considering the legal effects of his Somali heritage.4 [19] The Appellant submits further that the Court in Husian noted that a person will be a citizen of Somalia by virtue of being Somali culturally. [20] For the following two reasons, the RAD finds that the Appellant's submissions have merit. i) The RAD, having considered the evidence available to the RPD in this case, agrees with the RPD's findings with regards to the Appellant's Somali ethnicity and clan affiliation. ii) As the Honourable Madam Justice Tremblay-Lamar found in Husian, Article 3 of Law No. 28 of 22 December 1962 - Somali Citizenship states the following: For the purpose of this law, any person who by origin, language or tradition belongs to the Somali Nation, shall be considered a "Somali".5 [21] The RAD, thus, finds on a balance of probabilities that the Appellant is a Somali citizen. Affidavit from the Appellant's brother [22] The RPD gave the letter from the Appellant's brother6 no weight because of inconsistencies between the Appellant's oral testimony and information contained in the letter. For example, the Appellant testified that her brother sold her property for $9,000 whereas her brother stated the property was sold for $10,000 and the Appellant testified that she left Somalia on XXXX XXXX XXXX 2016 while her brother stated that she left Somalia on XXXX XXXX, 2016. [23] The Appellant submits that her brother's letter specifically states that she is a Somali citizen, confirms her date of departure, that four of her children were killed in the civil war and that a clan member assisted her in Kenya and that money from the sale of her property was forwarded to her in Kenya to assist her. The Appellant submits that because she cannot read, she did not know specifically what her brother's letter said. The Appellant submits further that since the letter is notarized it cannot be dismissed out of hand. The Appellant depends upon the jurisprudence in Ferguson7 when she submits that an affidavit is entitled some weight. The Appellant depends upon further jurisprudence when she submits that it is an error to make a determinative credibility finding before considering the totality of the evidence.8 [24] For the following reasons, the RAD finds that the Appellant's submissions have merit. [25] The RAD appreciates that there were contradictions between the Appellant's testimony and information contained in her brother's letter and the RAD acknowledge the deference it should show to the RPD's finding but nonetheless finds it cannot recognize and respect the finding in this case. [26] The RAD finds the contradiction between the dates on which the Appellant left Somalia, a difference of three days, to be insignificant. In addition, according to the recording of the hearing, upon being asked, the Appellant testified that her brother sold her home for $9,000. When the RPD pointed out to the Appellant that her brother stated that he sold the house for $10,000 not $9,000, the Appellant testified that she only saw $9,000. The RAD finds the Appellant's explanation to be reasonable in that it is possible that the Appellant's brother provided her with $9,000 of the $10,000 he received. [27] In any case, the RAD finds that there is significant information contained in the affidavit which confirms a number of the Appellant's allegations. For example, the brother affirms that the Appellant is a Somali citizen and a member of the XXXX clan. The brother affirms his name which is consist with that provided by the Appellant in her Basis of Claim (BOC) form.9 The brother affirms that four of the Appellant's children died during the war which is consistent with information contained in the Appellant's BOC. The brother affirms that the Appellant fled from Somalia to the home of XXXX, a clan member, in Nairobi after Al Shabaab killed her husband and daughter. The information is consistent with allegations found in the Appellant's BOC. [28] The affidavit was issued by the Ministry of Justice in the Federal Republic of Somalia. It contains an official stamp over the signature of the Notary officer. The Appellant's brother confirmed the information in the affidavit with his fingerprint. The RAD finds nothing on the face of the document to make it doubt its veracity. The RAD wishes to make an observation between the two siblings. The RAD reasonably infers that a confirmation by fingerprint on the part of the brother indicates that he is illiterate. The RAD notes that according to the recording of the hearing the Appellant testified that she is illiterate. [29] The RAD, thus, assigns significant weight to the affidavit of the Appellant's brother. Affidavit from XXXX XXXX [30] The RPD gave no weight to the affidavit from XXXX XXXX10 because of inconsistences between information in the affidavit and the Appellant's testimony. In particular, the RAD noted that the Appellant testified that she left Somalia on XXXX XXXX, 2016, her brother stated she left on XXXX XXXX XXXX 2016 and XXXX XXXX stated that the Appellant arrived in Nairobi, Kenya on XXXX XXXX, 2016. [31] The Appellant depends upon the same submissions as outlined above. [32] For the following reasons, the RAD concurs with the Appellant's submissions. [33] There is no contradiction between the time the Appellant testified she left Somalia and the time XXXX XXXX affirms that Appellant arrived in Nairobi, Kenya. [emphasis added] [34] According to the recording of the hearing, the Appellant testified that she remained in Nairobi from XXXX XXXX, 2016 until XXXX XXXX XXXX 2016. The RAD, thus, finds there was a contradiction between the Appellant's testimony and information provided by XXXX XXXX regarding when the Appellant arrived in Nairobi. However, the RPD did not put this contradiction to the Appellant. In any event, the RAD does not find a difference of five days to be a significant contradiction. [35] The affidavit supports the Appellant's allegations that her brother made arrangements for her to stay with XXXX XXXX in Nairobi and the Appellant remained with her in Eastleigh, Nairobi from early XXXX 2016 until she left the country to travel to Canada. The affidavit has a Notary Public stamp from a Commissioner of Oath in Nairobi. There is nothing on the face of the document that would lead the RAD to doubt the authenticity of the document. [36] The RAD, thus, assigns significant weight to the affidavit of XXXX XXXX. Witness [37] The RPD found that information provided by the Appellant during her testimony contradicted evidence provided by the witness. In particular, the RPD found that Appellant gave confusing and contradictory testimony when asked to state the age of the witness. [38] The Appellant submits that the RPD erred in this finding. The Appellant depends upon the jurisprudence11 when submitting that the Board must be careful about imposing western standards on non-western cultures. The Appellant submits that there were no discrepancies in the testimony of the witness. The Appellant submits further that the RPD raised no concerns with the witness in its decision. [39] The RAD agrees, in part, with Appellant. [40] The recording of the hearing indicates that the Appellant testified that she last saw the witness in 1990 when everyone was fleeing. The RAD finds that when the Appellant was asked the age of the witness at that time the Appellant continually changed her response. She first testified that the witness was very young then stated that the witness was not very young just middle-aged. She added that the witness was mature at that time. When asked to state the age of the witness, the Appellant testified that she had been approximately 14 or 15 years of age. The RPD drew the Appellant's attention to information in the affidavit of the witness where she affirms that she was born in 1963 and then indicated to the Appellant that the witness would have been 27 years old in 1990. The Appellant testified that this was possible and then added that the witness had not been married at that time. When reminded that she had approximated the witness' age to be 14 or 15 years, the Appellant testified that she knew the Appellant had developed breasts and been a mature woman. [41] The RAD acknowledges the deference it should show to the RPD's finding but nonetheless finds it cannot recognize and respect the RPD's finding in this case. [42] The RAD appreciates the RPD's concern with the Appellant's changing testimony but, nevertheless, agrees with the Appellant in that the RPD must be cautious not to impose western standards. The objective evidence indicates that Somalis, like many other Africans, are not particularly concerned about age and that very few know their exact date of birth.12 In any event, the Appellant provided other testimony regarding the witness which was not contradicted by the witness. For examples, the Appellant testified that the witness had been her neighbour in Mogadishu and that the mother of the witness had been her good friend; she correctly identified the clan of the witness. In addition, having listened to the recording of the hearing, the RAD finds that the testimony of the witness was not contradictory. For example, she identified the Appellant as a good friend of her mother. She named the various members of the Appellant's immediate family. The witness identified the neighbourhood in which the Appellant lived and the location of the Appellant's home in relationship to her own home. The witness identified the rituals in which the Appellant was involved that put her at risk from al Shabaab. [43] The RAD, therefore, gives some weight to the testimony of the witness in establishing the identity of the witness. Identity Summary [44] As a result of the above analysis the RAD finds, on a balance of probabilities, that the Appellant is who she says she is and that she is a citizen of Somalia. Risk Profile [45] The Appellant submits that she seeks protection under section 96 and section 97 due to her risk profile as a member of a minority clan, her gender, and as an unaccompanied woman. [46] The RAD will consider the objective evidence with regards to the Appellant's profile as a member of a minority clan and an elderly, unaccompanied woman. The RAD notes that the independent documentary evidence indicates that life expectancy in Somalia is approximately 54 years and that women over the age of 65 make up less than 1% of the population.13 The RAD, therefore, finds it reasonable to consider the Appellant, whose age is 68 years, to be elderly woman in Somali society. Objective Evidence [47] According to information from a 2015 report from the United Kingdom (UK) Home Office14 several sources state that particularly vulnerable minorities in Somalia. The same report provides the following information: Somalia is one of the countries: '... in which minorities are most at risk. During outbreaks of fighting, it is the minorities who suffer most. They fall outside the clan structure, and therefore outside its umbrella of protection. They are also vulnerable to increased risk of rape, attack, abduction and having their property seized by criminals in an increased atmosphere of lawlessness.'15 Hate speech against minority communities, focused on their appearance and different customs, has enhanced their vulnerability to attacks and other forms of discrimination.16 People returning to Somalia from overseas are extremely vulnerable unless they have strong clan and family connections, as well as the economic means to establish a life. Somalis that have left, particularly those that have been in western countries, tend to be viewed as foreigners, and may be perceived to have western agendas. This in itself puts them at an increased risk of persecution.17 [48] The Department of State (DOS) report18 indicates that major human rights abuses include abuse of and discrimination against minority clans. The DOS report also provides the following information: Minority groups, often lacking armed militias, continued to be disproportionately subjected to killings, torture, rape, kidnapping for ransom, and looting of land and property with impunity by faction militias and majority clan members, often with the acquiescence of federal and local authorities. Many minority communities continued to live in deep poverty and to suffer from numerous forms of discrimination and exclusion.19 [49] A 2013 report from the Home Office of the United Kingdom (UK) provides the following information:20 Somalia ranks second to Afghanistan as the worst country worldwide for women. Violence against women cuts across all social and economic strata, and is deeply embedded in Somali culture. The Somali customary system is based on clear gender divisions of labour. Women are generally confined to the household, "while men have jurisdiction over decisions outside the home." Gender-based violence has been a significant feature of Somalia's conflict, in which customary conventions to protect women and children and preserve human dignity have been violated. Women in IDP camps are particularly vulnerable, having lost their clan protection, and are common victims of murder, rape and kidnappings. The 2012 Minority Rights Group report notes that "Harsh restrictions are placed upon women, including their dress code, movement, economic activities and proscriptions on their associations with non-kin men of any kind, which places widows and single women at a severe disadvantage." The destruction or absence of traditional protection mechanisms, especially clan protection that occurs from being displaced contributes to their vulnerability along with lack of shelter, access to livelihoods, and the culture of impunity that has characterised the conflict in Somalia. The presence of a male relative does not always protect women against abuse" Given the generalised discrimination towards women in Somalia and the inability of the State to provide protection in many areas of south central Somalia, most applicants are likely to be able to demonstrate a need for international protection. Factors to be taken into account include the clan, age, health, economic status, family responsibilities, connections with the diaspora (which can be material both in terms of income and ability to find work with reference to the diaspora driven economic boom).and other individual circumstances of the applicant.21 [50] A 2014 report from the UK Home office indicates that although a returnee may also seek assistance from her clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer.22 [51] A report from Minority Rights Group International indicates that exclusion from the dominant clan structure, or membership in a weaker clan, leaves minority groups more vulnerable to property grabbing, physical attacks, killings and general discrimination. The report also states that the marginalization of minority women informs almost every aspect of their lives, from access to humanitarian assistance and livelihood opportunities to health care and education.23 [52] The RAD finds that the independent documentary evidence supports the Appellant's subjective fear as a member of a minority clan and an unaccompanied woman. [53] The RAD, thus, finds it unnecessary to consider any other credibility concerns of the RPD referred to by the Appellant in her appeal. DISPOSITION [54] After carefully carrying out its own analysis from the hearing before the RPD and of the record, the RAD determines that the Appellant has established her identity. Based on its own analysis of the record, the RAD finds that the Appellant has established, with credible evidence, a well-founded fear of persecution in Somalia. CONCLUSION [55] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugees. This appeal is allowed. (signed) "Lesley Mason" Lesley Mason March 21, 2017 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Somalia (April 29, 2016), item 3.1 3 Husian, Ahmednoor Farah v. M.C.I. (F.C., no. IMM-4551-15), Tremblay-Lamer, April 22, 2016, 2016 FC 462. 4 Ibid., para. 24. 5 Exhibit RPD-1, RPD's Record, NDP for Somalia (April 29, 2016), item 3.1, p. 1. 6 Exhibit RPD-1, RPD's Record, pp. 80-82. 7 Ferguson, Mitchell Marie v. M.C.I. (F.C., no. IMM-1356-08), Zinn, September 23, 2008, 2008 FC 1067. 8 John, Charm Leana v. M.C.I. (F.C., no. IMM-4757-10), Campbell, March 29, 2011, 2011 FC 387; Touré, Moussa v. M.C.I. (F.C., no. IMM-8618-11), Shore, June 19, 2012, 2012 FC 773; Chen, Jin Xiang v. M.C.I. (F.C., no. IMM-5888-12), Rennie, March 26, 2013, 2013 FC 311. 9 Exhibit RPD-1, RPD's Record, pp. 10-21. 10 Exhibit RPD-1, RPD's Record, p. 78 11 Bhatia, Varinder Pal Singh v. M.C.I. (F.C.T.D., no. IMM-4959-01), Layden-Stevenson, November 25, 2002. 12 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Somalia (July 17, 2015), item 3.2. 13 Exhibit RPD-1, RPD's Record, NDP for Somalia (July 17, 2015), item 1.5. 14 Ibid., item 1.18. 15 Ibid., section 2.5.13. 16 Ibid., section 2.6.6. 17 Ibid., section 2.2.5. 18 Ibid., item 2.1. 19 Ibid., p. 36. 20 Ibid., item 1.7. 21 Ibid. 22 Exhibit RPD-1, RPD's Record, NDP for Somalia (July 17, 2015), item 1.12, section 1.3.12. 23 Ibid., item 5.13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.28.07 (June 2, 2015) RAD File No. / N° de dossier de la SAR : TB5-09367