TB8-17253

17 August RAD File / Dossier de la SAR : TB8-17253 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision 17 August 2020 Date de la décision Panel S. Thompson Tribunal Counsel for the person who is the subject of the appeal Tina Hlimi (Law Office -Tina Hlimi) Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant, XXXX XXXX XXXX, claims he is a citizen of Somalia. XXXX XXXX XXXX is appealing a decision of the Refugee Protection Division (RPD) dated July 10, 2018, rejecting his claim for refugee protection. [2] For the following reasons, I allow this appeal. BACKGROUND OF APPEAL The Appellant's allegations, the RPD's decision, and the Appellant's arguments before the Refugee Appeal Division (RAD) [3] The Appellant identifies as a member of the minority XXXX clan, and the XXXX XXXX sub-clan. He alleged that on XXXX XXXX XXXX 2015 his father was harassed and killed by Al-Shabaab after leaving the mosque in XXXX, Somalia. Thereafter, his family was threatened by Al-Shabab and told not to travel to or from Mogadishu. [4] In XXXX 2017 the Appellant met XXXX XXXX XXXX, a member of the dominant Hawiye clan, while attending private school, and pursued an intimate and clandestine relationship with her, In XXXX 2017 the Appellant learned XXXX was pregnant, as did her family. On XXXX XXXX members of XXXX family attacked the Appellant's family in their home. The Appellant fled his home in XXXX and travelled to Nairobi, Kenya via Bulomarer. [5] In Nairobi, the Appellant contacted an agent named XXXX who facilitated his travel to Canada. The Appellant's aunt XXXX XXXX helped him raise the funds for his travel. While in Nairobi the Appellant's aunt XXXX informed him that his family had fled XXXX for parts unknown. [6] The RPD refused the Appellant's claim, making the following findings: - The Appellant failed to credibly establish his civil and national identity; - The Appellant's credibility was undermined as he was not truthful and withheld information about the passport and airline he used to travel to Canada; - The Appellant failed to credibly establish his presence in Kenya and in Somalia; - His testimony about his relationship with XXXX, how he financed his departure from Kenya and his family's whereabouts was not credible; and - The Appellant's witness, the letter he disclosed from the Somali community organization in Canada, and his ability to speak Somali were not sufficient evidence to establish his identity. [7] In this appeal, the Appellant submits: - The RPD breached his right to procedural fairness by failing to give him a chance to respond to its concerns about how he financed his exit from Kenya; - The RPD also breached his right to procedural fairness by failing to hold a second sitting of the hearing for the post-hearing evidence. - The RPD failed to thoroughly analyze documents that establish the appellant's Somali identity; - The RPD erred by focusing on travel documents, which are peripheral in determining credibility; and - The RPD made unreasonable inferences about the Appellant's relationship with XXXX XXXX the whereabouts of his family, and his stay in Kenya. APPLICATION TO ADMIT NEW EVIDENCE [8] The Appellant has not requested an oral hearing of this appeal. He has, however, asked that I admit the following documents as new evidence in this appeal: - A copy of the Appellant's father's secondary school certificate that appears to be dated XXXX XXXX XXXX19891; - A written statement from the Appellant's maternal Aunt XXXX XXXX XXXX, dated XXXX XXXX XXXX 20182; - A written statement from the Appellant's former teacher XXXX XXXX XXXX, dated XXXX XXXX XXXX 20183; and - An affidavit from his uncle XXXX XXXX XXXX, the former spouse of the Appellant's maternal aunt XXXX XXXX XXXX, dated XXXX XXXX, 2018.4 [9] By law I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision.5 [10] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.6 Decision on the application to admit new evidence [11] The written statement from the Appellant's maternal Aunt XXXX XXXX XXXX meets the statutory requirements in subsection 110(4), as it post-dates the RPD's decision by a little over one month. While I have some concerns about the reliability of this letter, it does contain some novel information relevant to my assessment. I will therefore exercise my discretion to admit this document as new evidence in this appeal. [12] The Appellant obtained his father's secondary school certificate from his maternal aunt XXXX XXXX XXXX. While the certificate pre-dates the RPD's decision of July 10, 2018 by several years, the Appellant submits it was not reasonably available when the RPD determined his claim because he "did not have contact with anyone in XXXX leading up to his RPD hearing".7 [13] According to XXXX XXXX XXXX statement, however, she lives in XXXX and was contacted by the Appellant "recently" concerning his RAD appeal. The statement post-dates the RPD decision by little more than a month, which suggests the Appellant might have been able to contact XXXX at the telephone number in her statement before the date of the RPD's decision. Despite my concerns with the timing of this document, out of an abundance of caution and in the unique circumstances of this particular case I will nevertheless accept his explanation as meeting the statutory requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). The information in the secondary school certificate, while not novel, is credible at first glance and appears relevant to my assessment of issues in this appeal. I will exercise my discretion to admit this document into evidence. [14] The written statement from the XXXX XXXX XXXX meets the statutory requirements in subsection 110(4), as it post-dates the RPD's decision by a little over one month. While the statement is credible at first glance, it does not appear to contain much novel information that is relevant to my assessment of issues in this appeal. I will not exercise my discretion to admit this document into evidence. [15] The affidavit of XXXX XXXX XXXX meets the statutory requirements in subsection 110(4), as it post-dates the RPD's decision by a few weeks. Having reviewed the affidavit, however, I find that much of its content is not novel as it pre-dates the RPD's decision. [16] Moreover, the Appellant submits this affidavit is intended to address "the Panel's concerns that the Appellant's aunt, XXXX, was living in Nairobi, Kenya without any Kenyan identification documents".8 Given the Federal Court of Appeal's statement in Singh that "[t]he role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD"9, this is not a basis to admit this document. As the affidavit fails to satisfy any of the statutory criteria stated at subsection 110(4) of the IRPA, I will not exercise my discretion to admit this document into evidence in this appeal. ANALYSIS [17] My role is to look at all the evidence and decide if the RPD made the correct decision.10 I will apply the correctness standard of review after independently assessing the record in order to determine whether the RPD erred. I will only show deference to the RPD's credibility assessment and/or to its weighing of the oral evidence in situations where the RPD enjoys a particular advantage. If I find the RPD had a particular advantage, my reasons will explain why. [18] My determination is based on my independent assessment of the evidence before me. This includes: the records prepared by the RPD and the Appellant; an audio recording of the Appellant's RPD hearing on June 20, 2018; a transcript of the same RPD proceeding; and documents contained in the current compilation of the National Documentation Package (NDP) for Somalia. Alleged procedural fairness violations The RPD's concerns about how the Appellant financed his exit from Kenya [19] The Appellant submits the RPD did not ask him "how much money his mother provided him with in order to leave Somalia" but nonetheless found him not credible after deeming it unlikely "a woman belonging to the XXXX clan" would be "able to provide her own son, whose life is in danger, with funds on such short notice."11 He submits the RPD "should have accepted [his] testimony as the truth, per Maldonado, since she cited no specific documentary evidence to the contrary."12 [20] The RPD found it "incredulous that the [Appellant's] mother, a widow and woman belonging to the XXXX clan, would have the resources or money needed to get the claimant out of Somalia given the documentary evidence" showing the XXXX clan hold a disadvantaged position in Somalia's clan structure.13 [21] During the hearing the RPD questioned the Appellant about his departure from Somalia. He testified that his mother made all the arrangements for his departure and that he didn't know where she got the money to finance his departure for Kenya. The RPD appears to have accepted the Appellant's response as it did not raise any further concerns with his answer.14 The RPD's finding does not appear to have considered the Appellant's testimony that after his father's death his mother supported their family with proceeds from the sale of produce from their farm, including paying his school fees.15 [22] In my independent assessment, the country conditions evidence cited by the RPD is insufficient to redeem this finding. This is especially true as there was no further evidence from the Appellant about the state of his family's finances after his father's death that disclosed a link between the situation of the Appellant's family in Somalia and their status as members of the marginalized XXXX clan. [23] However, I do not agree with the Appellant that the RPD's finding on this single issue amounted to a violation of his right to procedural fairness overall. Rather, I find the RPD erred in drawing a negative credibility inference from the Appellant's testimony that his mother financed his travel from Somalia to Kenya. The RPD's treatment of the support letter from the Appellant's mother XXXX XXXX XXXX [24] The Appellant submits the RPD should have held another sitting of his hearing to address concerns it had with a letter16 written by his mother XXXX XXXX XXXX. The Appellant submits the RPD's weighing of his mother's letter amounts to a violation of his right to procedural fairness "because the [RPD] expected that [the Appellant] would include his own affidavit along with the letter from his mother" even though "[t]here is no case law regarding this and this is not standard procedure."17 [25] The RPD rejected the letter from the Appellant's mother as "unreliable" and "insufficient to establish the [Appellant's] identity", expressing concerns over the provenance of the letter and the fact that it was not accompanied by any document establishing his mother's registration with authorities running the refugee camp in Ethiopia where and his siblings lived. The RPD found it "suspect that it was only after [its] concerns were put to the [Appellant]" that the latter "was able to obtain the letter, but was not able to do so in the two months prior to his hearing."18 [26] I find the RPD's last concern, in particular, was valid given the Appellant's testimony in the hearing that he was unable to get a support letter from his mother. According to the Appellant his mother told him that there was "'no place that [she could] find help to write a letter.'"19 [27] In my independent assessment, the RPD's findings about the letter's reliability appear to have arisen not only from the timing of the letter's disclosure but also from the form of the letter itself. It was open to the RPD to find these factors so undermined the letter's reliability that the document was of no utility in assessing the credibility of the Appellant's testimony. [28] In short, the Appellant's submissions essentially dispute the RPD's weighing of this letter. While I agree with the Appellant that the RPD should not have expected him "to have written an affidavit regarding how his mother was able to scan and send [her] letter via a Gmail account"20 I find that overall the RPD's weighing did not violate the Appellant's right to procedural fairness as its assessment of the letter was not based solely on the Appellant's failure to provide an affidavit explaining the provenance of the document. In my independent assessment the RPD's finding on this point did not have the effect of denying the Appellant his right to a fair hearing. The RPD's concerns about travel documents used by the Appellant [29] The Appellant submits the RPD's discussion of the documents he used to travel to Canada calls into question its impartiality, and disputes the findings at paragraphs 22 through 28 inclusive of the RPD's Reasons as improperly focused on matters peripheral to the substance of his claim. In his submission "the details used by the smuggler to bring [him] to Canada [...] has nothing to do with the overall determination of whether [he] is a refugee or not."21 [30] The RPD found the Appellant was untruthful "and was withholding information concerning the travel document he used to travel and enter Canada" and drew a negative inference about his credibility and identity.22 According to the RPD it was "not reasonable" the Appellant was "unsure about the specific details in the passports he used to travel" as it found it "reasonable to expect that the agent/smuggler would tell the [Appellant] to memorize the critical details found in the passport."23 It rejected the Appellant's explanations, including his testimony that "the agent mostly held the passport", finding they contradicted statements in his immigration intake documents, to the effect that "the agent held the passport the 'whole' time" and dismissed the Appellant's further testimony that the agent would allow him to hold the passport only when they moved through immigration as "not reasonable and simply a reiteration of his first response."24 [31] Having considered the evidence I find it was not open to the RPD to draw a negative credibility inference from the Appellant's testimony that he did not know the details of the passport he used to travel from Kenya to Canada. [32] The Appellant testified to the RPD that he did not turn his mind to answering any questions put to him by immigration officials as he followed the smuggler's instructions. He testified that "[i]t was the first time that [he] travelled" and he "didn't even [think] about that and [the smuggler] didn't tell [him]" any of the details in the passport he used to travel.25 [33] In my independent assessment, the RPD's finding was essentially a plausibility finding that was not made in the clearest of cases - that is, it was made in the absence of reliable evidence that undermined the plausibility of the Appellant's account. I note while the RPD raised concerns with perceived inconsistencies between who held his passport while he travelled, the RPD panel did not appear to take issue with the Appellant's explanation during the hearing, which was consistent with his initial testimony [34] In my assessment the RPD's finding the Appellant was "withholding information concerning the travel document"26 is not borne out by the transcript of the proceedings, which shows the Appellant's responses to the RPD's questions about his passport and travel from Kenya to Canada were straightforward. The Appellant appears to have told the RPD panel directly when he did not know the answers to questions it posed and did not evade the RPD's questions. [35] Based on the foregoing, I find the RPD erred in impugning the Appellant's credibility on the basis of his testimony about the document he used to travel to Canada. The RPD's treatment of: the Appellant's evidence of his ties to Somalia; the Appellant's evidence about his family's whereabouts; and the Appellant's whereabouts before coming to Canada The RPD's assessment of the Appellant's ties to Somalia [36] The Appellant submits the RPD erred when it dismissed documents he disclosed to establish his ties to Somalia, specifically "an original affidavit from his aunt [XXXX] in Nairobi".27 He characterizes the RPD's assessment of this document and his testimony about his aunt XXXX as rooted in "speculation and microscopic analysis".28 [37] The RPD found the Appellant had failed to establish where he was before coming to Canada. In so finding, it rejected the affidavit of his aunt XXXX as insufficient to establish the Appellant's identity as the affidavit "[did] not mention when and where the [Appellant] was born". The RPD found XXXX XXXX letter contained "information that is inconsistent with the [Appellant's] evidence about the alleged incident that caused him to leave Somalia".29 [38] First, I note in passing the RPD made this finding without specifying what the inconsistency was. Based on my review of the transcript of the RPD hearing, the RPD considered that XXXX statement, that the Appellant was present when members of the Abgow clan attacked him in Somalia, was inconsistent with the Appellant's testimony that he was away from home at the time.30 [39] XXXX statement says "[t]he Abgal men attacked XXXX XXXX XXXX in his house. They tried to kill him but luckily, he managed to escape from them."31 In my submission, while this appears inconsistent with the Appellant's testimony that he "was away" when the Agbal clan members attacked,32 I find the account in the Appellant's Basis of Claim (BOC) narrative consistent with his testimony before the RPD that he was not at home at the time of the Abgal clan attack. The Appellant's BOC narrative states: On XXXX XXXX XXXX 2017, XXXX family members came to our home, and they attacked my mother and my siblings. My older brother, XXXX XXXX and I were on the farm working when this occurred. As I was told, they were beating my family and calling them derogatory names because of our clan, as well as asking them where I was. They stated that I was responsible for tarnishing their family's reputation by impregnating their daughter.33 [40] In my independent assessment the RPD's finding that the Appellant's testimony was inconsistent with XXXX statement discounted the Appellant's explanation to the RPD that he was the one who told XXXX about the attack, and that she was "trying to explain how the problem happened".34 In so doing the RPD appears to have treated the translated English-language wording of XXXX statement, "[t]he Abgal men attacked XXXX XXXX XXXX in his house. They tried to kill him but luckily, he managed to escape from them" in an overly formalistic manner. [41] On my reading, the phrase "in his house" could be taken to mean at the Appellant's home or on his property. In this interpretation, XXXX statement is not inconsistent with the Appellant's account: in his BOC narrative, that the Abgal clan members came to his home to find him; and his testimony, that "[w]hen [the Abgal clan members] were searching [his] home [he] was at the farm".35 [42] In my assessment, the apparent formal inconsistency between XXXX statement and the Appellant's testimony warrants less weight than the consistency between the Appellant's testimony and the account given in his BOC narrative. I find the RPD erred in drawing a negative inference about the Appellant's credibility from this comparatively minor inconsistency. [43] Second, the RPD also drew a negative credibility inference "from the [Appellant's] failure to mention that when he was last in Somalia, the country was experiencing a severe drought, which would have affected his crops and his livestock."36 Having read the transcript, however, I note that when the RPD asked the Appellant if there were "any challenges that affected [his] crops, or [his] livestock when [he was] last in Somalia"37, he testified: that he and his family were terrorized after his father's death, that they were afraid all the time, that they "didn't work the same way [his] father used to work, and [they] didn't use to produce the same way, and [they] didn't have all the land" because "half of the farm was taken and some of the livestock were being robbed".38 [44] In my independent assessment, the finding in the RPD's reasons for decision was erroneous because the question of whether or not there was a drought in Somalia at the time of the Appellant's departure is not relevant to the credibility of the issues at the heart of the claim. The RPD's finding ignores the Appellant's testimony in response to its question, testimony that was, in my independent assessment, actually relevant to the assessment of the Appellant's personal identity and the merits of his claim. [45] Third, the RPD also drew a negative inference from the Appellant's failure to disclose "a single piece of paper from Somalia" and found it "difficult to accept that [he was] not resourceful enough to contact anyone in Somalia" but managed "to locate his family in Ethiopia, a country where he has never lived."39 [46] I find the RPD erred in drawing this inference because in so doing it ignored the Appellant's testimony about efforts he made to try and obtain documents from Somalia40. In my reading of the RPD hearing transcript the Appellant's testimony that documents from Somalia were not available was not, at first glance, implausible or outright lacking in credibility, and the country evidence in the current NDP for Somalia supports a finding that documents generally - and identity documents in particular - are extremely difficult to obtain in Somalia. [47] Despite the fact that the Appellant submits the new evidence "further corroborates [his] presence in Somalia prior to traveling to Nairobi, then to Canada"41, in my independent assessment the new evidence that I have admitted under subsection 110(4) of the IRPA does not speak to this particular issue. [48] I find based on the evidence that was before the RPD that the panel's adverse credibility findings on this issue were made without adequate reference to evidence that tended to support the Appellant's account of his time in Somalia and his personal identity and family relationships. The RPD's assessment of the whereabouts of the Appellant's family [49] Concerning the RPD's treatment of the Appellant's evidence about the whereabouts of his family, the Appellant submits the RPD used the information disclosed at the hearing about his family's whereabouts in Ethiopia "to attempt to discredit [him] instead of giving him the benefit of the doubt."42 He submits the RPD's finding that his aunt XXXX would not have been able to track down his mother and siblings was speculative and that its finding that XXXX affidavit should have mentioned that she "had indeed called several people" was unfair as he was not in a position to dictate the content of XXXX statement.43 [50] The RPD did not accept the Appellant's "explanation for the lack of a supporting document from his mother prior to his hearing or any efforts by the [Appellant] to obtain it, as reasonable." It also rejected his testimony "that after simply learning that his family had fled Somalia and were heading to Ethiopia" that his aunt XXXX in Nairobi "would have the resources to be able to find them in the XXXX XXXX XXXX." Nor did the RPD believe the Appellant's mother, "a widowed woman from the XXXX clan, would have the resources needed to get her and her five children out of Somalia and to Ethiopia."44 [51] In my independent assessment, the RPD's credibility findings are based in speculation rather than in a logical assessment of the Appellant's testimony and other evidence. While I accept that the Appellant's BOC narrative did not mention his mother and siblings fled Somalia for Ethiopia45, there was no valid basis for the RPD reject his explanation that he "didn't know if [his family] made it [to] Ethiopia, or [if] they would have been hiding in between, or they were just going to come back and head to Kenya".46 [52] First, I have reviewed the RPD hearing transcript and the Appellant testified consistently and more than once that "XXXX people in Nairobi who had a family in [XXXX XXXX Somalia] told [his] aunt that her family fled away and they were heading to Ethiopia."47 I find this testimony is not inconsistent with the statement in his BOC narrative, "I do not know where my family is"48 as of the date of the narrative. [53] I therefore reject the RPD's characterization of his testimony on this point as not credible, and I find his testimony credible. I also reject the RPD's reliance on the Appellant's credible testimony about when he learned of his family's whereabouts in Ethiopia to discredit the Appellant's explanation for why his BOC narrative failed to mention that his family was in Ethiopia. [54] Second, I take issue with the RPD's finding that the Appellant's mother would not have been successful in fleeing to Ethiopia with her children and with its related finding that his Appellant's mother would not have had the resources to flee with herself and her children to Ethiopia. In my independent assessment, these are plausibility findings that were not made in the clearest of circumstances. [55] If anything, the RPD's findings about the resourcefulness (or lack thereof) of the Appellant's mother are contradicted by the Appellant's testimony that after his father's death, his mother and his older brother were responsible for the family's finances49, and that his mother generated enough income in doing so to continue sending him to school.50 I find the RPD erred in characterizing the Appellant's evidence on this point as not credible. [56] In short, I find no reason to reject the Appellant's evidence that his mother and siblings were in a refugee camp in Ethiopia at the time of his RPD hearing. The RPD's assessment of the Appellant's whereabouts before coming to Canada [57] As well, the Appellant submits the RPD improperly discredited his account of his stay in Nairobi, Kenya prior to traveling to Canada, having rejected his testimony about his aunt XXXX immigration status in Kenya as not credible. The Appellant submits the issue of "how his aunt was able to live in Kenya" at the time of the hearing was unrelated to the question of how XXXX got the money to finance his flight from Kenya to Canada, and that the RPD's finding was speculative and microscopic.51 [58] The RPD did not accept that XXXX "would be able to raise $XXXX XXXX XXXX in the manner alleged by the [Appellant]" and also found it illogical that XXXX "would give [the Appellant] this money and not use it to leave Kenya herself if she is residing there illegally as alleged." The RPD did not believe the Appellant's account of "how he obtained the money to travel to Canada and that he was even residing in Kenya prior to coming to Canada."52 [59] In my independent assessment, there was no adequate evidentiary basis for the RPD's negative credibility findings. First, the Appellant testified his aunt XXXX had amassed the funds he used to travel to Canada by selling clothing and collecting donations from people.53 Nothing about the way the Appellant testified indicates he was not credible or that the scenario he described was implausible. Rather, his response to the RPD's question was unequivocal and straightforward. [60] Second, in asking the Appellant why XXXX would not simply use the money herself to leave Kenya, the RPD's very question invited speculation about XXXX state of mind and motivation. The Appellant's response - "I don't know. It's her decision. She's the one. The person knows where they're going and where they like to go"54 - was entirely open to him and does not call his credibility into question. In my independent assessment, it was not for the RPD to assess the logic of XXXX action in a vacuum, not only given the Appellant's straightforward refusal to speculate her motivations but also because the RPD failed to point to any other evidence that undermined the scenario the Appellant testified about. The RPD's finding was a plausibility finding, but the panel's appreciation of what was plausible in circumstances is not at all clear. [61] Before the RPD, the Appellant testified that he remained in Kenya without status for two months and a week before leaving for Canada.55 When the RPD later asked him about XXXX status, the Appellant affirmed he had no status in Kenya.56 The RPD appears to bookended this testimony with questions about XXXX status in Kenya. When the RPD asked the Appellant whether XXXXhad status in Kenya his testimony that she did not was consistent. [62] In sum, the RPD's finding that the Appellant failed to establish his whereabouts before coming to Canada was made in error. In my independent assessment, the Appellant's evidence establishes the Appellant was in Kenya immediately prior to coming to Canada. The Appellant's identity witness XXXX XXXX XXXX [63] The Appellant submits the RPD acted unreasonably in placing no weight on the testimony of the Appellant's identity witness, which he says "was significant in establishing [his] identity", and he asks for the RAD to re-weigh that testimony.57 The RPD found the witness's testimony was "insufficient" to establish the Appellant's identity because it was "based on what the [Appellant] has told him and not as a result of knowledge acquired independently or as the result of a long-term relationship or association in Somalia."58 [64] I note the RPD's Reasons also make a series of passing observations about the witness's testimony: that it was "unable to properly verify the accuracy of his statements" because "he did not provide any of his refugee claim forms/documents to establish his presence in XXXX or in Somalia during the relevant time period"59; and that information about the relationship between the witness and the Appellant "could have easily been memorized in preparation for the refugee hearing."60 It also described the timing and resumption of the witness's relationship with the Appellant in Canada in XXXX 2017 as "somewhat coincidental and fortuitous".61 [65] In my independent assessment, these passing remarks made by the RPD are veiled credibility findings. First, despite the RPD's fixation on the witness's failure to disclose documents from his own refugee claim, nothing in the RPD Rules explicitly requires witnesses to disclose documents from their own refugee claim proceedings as part of the information that must be submitted to the Division prior to the RPD hearing. [66] Moreover, the RPD's observation about verifying the accuracy of the witness's statements makes no sense since the witness testified he did not disclose any identity documents to the RPD panel in his own hearing. The witness told the RPD he had established his Somali citizenship by relying on his testimony "that [he is] Somali, [he] was born in Somalia, and [he] came from Somalia" along with the testimony of an identity witness.62 In short, it makes no sense for the RPD to have questioned the witness's reliability for failing to disclose his own documents in the Appellant's hearing, since according to the witness, he had no identity documents from Somalia at all. [67] In my independent assessment, the RPD erred in drawing a negative inference about the witness's legitimacy as an evidentiary source from the fact that he did not disclose parts of the record of his own proceedings before the RPD. [68] Second, the RPD's remark that the information about the Witness and Appellant's relationship could have been memorized suggests the RPD was willing to draw a negative inference from any points of concordance between their respective testimonies and other corroborating evidence, even though, absent evidence to the contrary, such concordance would normally be a factor tending to buttress the credibility of the testimony given by both parties. It strikes me as perverse that the RPD would base a negative credibility finding on such a speculative inference about the degree of knowledge and readiness to testify shown by the subject of an appeal or their witness in a hearing. [69] Third, it is not clear from the RPD's Reasons or the record that the timing of the resumption of the witness's relationship with the Appellant in Canada in XXXX 2017 is material to the witness's credibility, since the RPD did not ask the witness detailed questions about the circumstances in which he and the Appellant reconnected with one another in Canada. Nor did the RPD take issue with the Appellant's testimony about when and how he reconnected with the witness in Canada63, testimony that corresponds to the account given in the witness's affidavit.64 [70] There was simply no reason for the RPD to infer that the timing of their reunion was suspicious. This suggests obliquely that their relationship was contrived for the purpose of furthering the Appellant's claim, not only because the witness's account of reuniting with the Appellant in Canada in XXXX 2017 is prima facie credible, but more generally because the witness was entitled to have his sworn testimony presumed true absent evidence rebutting its truthfulness. [71] In short, the RPD undermined the witness's legitimacy as an evidentiary source not with respect to attributes of his testimony - for example, internal inconsistencies in his account, or evasiveness - but based on its own assumptions about how the witness should have behaved. In my independent assessment, these assumptions were not rooted in the evidence before the panel and had no objective basis. They irredeemably tainted the RPD's assessment of the witness's testimony. [72] If the RPD had focused on the affidavit the witness did provide65, it would have observed that it largely corroborates the witness's testimony before the RPD, in particular: - about knowing the Appellant through his uncle XXXX XXXX XXXX, who lived in the town of XXXX at the same time as the Appellant's family66; - that the Appellant's maternal aunt XXXX is married to the witness's uncle XXXX67; - that he first met the Appellant in Somalia in XXXX 2012 while visiting his uncle 68; and - that he saw the Appellant again when he visited his uncle in XXXXinXXXX XXXX 2015.69 [73] Additionally, the witness's testimony about his relationship with the Appellant was broadly consistent with the Appellant's testimony about his relationship with the witness in Somalia.70 [74] In light of the foregoing, I find the witness XXXX XXXX XXXX was a credible witness before the RPD and find that his testimony warrants significant weight in establishing the Appellant's personal identity and his identity as a national of Somalia. [75] Excluding the errors in the RPD's assessment identified above, in my independent assessment the evidence on record is acceptable and supports a finding that the Appellant is who he says he is. I find on a balance of probabilities that the Appellant is a citizen of Somalia. The RPD's assessment of the Appellant's alleged relationship with XXXX [76] The Appellant submits the RPD failed to consider the entirety of his testimony about his relationship with XXXX XXXX the majority-clan woman whose pregnancy prompted her family and clan members to target the Appellant with death threats. He submits the RPD erred when it dismissed his testimony about his inter-clan relationship with XXXX as "incredulous".71 [77] The RPD dismissed the Appellant's allegation that he was in a relationship with a majority-clan woman: The panel finds it not reasonable, given the documentary evidence, that either the claimant or the alleged girlfriend would decide to begin a relationship; and that she would tell him it is fine. The panel draws a negative inference and finds this casts serious doubt on the claimant's alleged clan membership.72 [78] The RPD also made an alternative finding that even if the Appellant was found to belong to the XXXX clan, his clan membership would "[cast] serious doubts on his allegations that he became involved with a girl from the majority Abgal clan."73 [79] The RPD's finding appears to rely on "documentary evidence" without citing the specific documents it relied on to support its finding. By contrast, the Appellant has cited four documents in the National Documentation Package for Somalia, and quotes one that speak to the risks of discrimination, targeting and harassment associated with inter-clan marriages in Somalia. [80] The information cited by the Appellant contradicts the RPD's finding about the plausibility of the Appellant's relationship with XXXX. In my independent assessment, the RPD committed a significant error in failing to consider this highly relevant information in making its finding. [81] I have read the transcript of the Appellant's testimony to the RPD about his alleged relationship with XXXX and in my independent assessment nothing about his testimony was inherently implausible or lacking in credibility.74 I find on a balance of probabilities that the Appellant's evidence that he was in a relationship with XXXX XXXX XXXX, is credible. I also accept as credible his evidence that he was targeted by members of her family and majority clan in Somalia, and that this targeting by non-state actors forced him to flee Somalia for fear of reprisals up to and including death.Therefore, I find that, should the Appellant return to Somalia, he faces a risk on the basis of his clan, which is a particular social group. [82] In my independent assessment there is no adequate state protection available to the Appellant in Somalia. The fact that the country's transitional federal government is not in control of the country is confirmed by the NDP. As there is no state protection given that Somalia is in a state of near-complete breakdown, and, pursuant to Ward,75 this is a situation in which it is not reasonable to expect the Appellant to approach the state for protection.76 [83] Nor, in my independent assessment, is a viable Internal Flight Alternative (IFA) for the Appellant in the city of Mogadishu. Given the Appellant's credible testimony that his father was killed by Al-Shabab while travelling between his hometown of XXXX and Mogadishu, as well as the frequent targeting by Al-Shabab of persons returning to Somalia from overseas in the city of Mogadishu itself, I find the Appellant would face a serious forward-looking risk of persecution in the proposed IFA location. Country documents in the current NDP for Somalia attest to the presence of Al-Shabab throughout the country. [84] For these reasons, I find the Appellant is a Convention refugee within the meaning of section 96 of the IRPA.77 The appeal is allowed. CONCLUSION [85] The 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. (signed) S. Thompson S. Thompson 17 August 2020 Date 1 Exhibit P-2, Appellant's Record, pp. 141-143. 2 Exhibit P-2, Appellant's Record, pp. 134-136. 3 Exhibit P-2, Appellant's Record, pp. 137-140. 4 Exhibit P-3, Appellant's Supplementary Record of September 10, 2018, pp. 2-3. 5 Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). 6 Canada (Citizenship and Immigration v Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v Raza FC 385 7 Appellant's Record, Appellant's Memorandum, p. 149 at para. 71;Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at pp. 15 (lines 28-49) to 16 (lines 1-5). 8 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 148 at para. 3. 9 Canada (Citizenship and Immigration) v Singh, 2016 FCA 96, [2016] 4 FCR 230 at para. 54. 10 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 11 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 157 at para. 35. 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 158 at para. 39. 13 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 10 at para. 29. 14 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 31 (lines 2-29). 15 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at pp. 28 (lines 8-50) to 29 (lines 2-27). 16 Exhibit RPD-1, RPD Record, Exhibit 10, pp. 112-114. 17 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 166 at paras. 79-82. 18 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 12-13 at paras. 36-37. 19 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 26 (lines 8-12). 20 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 166 at para. 81. 21 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 155 at para. 27. 22 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 9 at para. 26. 23 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 8 at para. 24. 24 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 9 at para. 25. 25 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 35 (lines 9-22). 26 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 9 at para. 26. 27 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 163-164 at para. 67. 28 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 164 at para. 72. 29 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 14 at para. 40. 30 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at pp. 31 (lines 31-49) to 32 (lines 1-18) inclusive. 31 Exhibit RPD-1, RPD Record, Exhibit 8, p. 92. 32 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 31 (line 34). 33 Exhibit RPD-1, RPD Record, Exhibit 2, p. 31 (lines 53-57) (emphasis added). 34 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 32 (lines 3-18). 35 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 32 (lines 10-12). 36 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 15 at para. 43. 37 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 28 (lines 40-41). 38 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at pp. 28 (lines 40-50) to 29 (lines 1-27). 39 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 15 at para. 44. 40 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 13 (lines 28-37), pp. 14 (lines 36-49) to 18 (lines 1-41) inclusive, 41 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 165 at para. 76. 42 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 161 at para. 57. 43 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 162-163 at paras. 58-66. 44 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 12 at paras. 33-35. 45 Exhibit RPD-1, RPD Record, Exhibit 2, p. 31 at lines 65-67. 46 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 24 (lines 32-34). 47 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 24 (lines 7-8). See also pp. 22 (lines 33-49) to 23 (lines1-6), and p. 23 (lines 23-46) of the transcript. 48 Exhibit RPD-1, RPD Record, Exhibit 2, p. 31 at lines 66-67. 49 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 52 (lines 17-27). 50 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at pp. 27 (lines 7-50) to 28 (lines 1-36). 51 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 163-164 at paras. 67-72. 52 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 13-14 at paras. 38-39. 53 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at pp. 55 (lines 44-50) to 56 (lines 2-4). 54 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 56 (lines 6-9). 55 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 8 (lines 31-45). 56 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 18 (lines 43-48) to 19 (lines 1-14). 57 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 167 at para. 78. 58 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 16-17 at para. 50. 59 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 16 at para. 47. 60 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 16 at para. 48. 61 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 16 at para. 49. 62 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at pp. 46 (lines 39-49) to 47 (lines 1-9). 63 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 39 (lines 18-29). 64 Exhibit RPD-1, RPD Record, Exhibit 7, p. 82 at para. 12. 65 Exhibit RPD-1, RPD Record, Exhibit 7, pp. 82-83. 66 Exhibit RPD-1, RPD Record, Exhibit 7, p. 82 at para. 4. See also transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at pp. 43 (lines 30-49) to 44 (lines 1-7). 67 Exhibit RPD-1, RPD Record, Exhibit 7, p. 82 at para. 6. See also transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 44 (lines 9-15). 68 Exhibit RPD-1, RPD Record, Exhibit 7, p. 82 at para. 5. See also transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 44 (lines 21-44). 69 Exhibit RPD-1, RPD Record, Exhibit 7, p. 82 at para. 8. See also transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at p. 44 (lines 21-44). 70 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at pp. 37-42. 71 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 159-161 at paras 45-56. 72 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 10 at para. 30. 73 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 10 at para. 30. 74 Transcript of hearing in RPD file no. TB7-23507 on June 20, 2018 at pp. 52-55. 75 Canada (Attorney General) v. Ward, Patrick Francis, [1993] 2 S.C.R. 689. 76 NDP for Somalia (April 30, 2019), item 2.1, United States Department of State, "Somalia: Country Reports on Human Rights Practices for 2018", March 13, 2019. 77 IRPA, section 97(1). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-17253 RAD.25.02 (April 04, 2019) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français