TB4-05205

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 : TB4-05205 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 21, 2014 Date de la décision Panel Daniel McSweeney Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lani Gozlan Barrister and Solicitor 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 and Decision [1] XXXX XXXX XXXX (the Appellant), who claims that he is a citizen of Somalia, has appealed a negative determination of the Refugee Protection Division (RPD) issued on May 23, 2014. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is he a person in need of protection, as he has failed to establish his personal identity and nationality. BACKGROUND [3] The Appellant alleged that he is a member of the XXXX clan. The Appellant's family owned a XXXX XXXX outside XXXX and owned a small XXXX XXXX XXXX XXXX XXXX XXXX at the XXXX XXXX in XXXX. The Appellant alleged that Al Shabaab would extort a percentage of earnings. The Appellant's family tried to circumvent this by XXXX XXXX XXXX XXXX XXXX without Al Shabaab knowing. This scheme was discovered. On XXXX XXXX, 2013, Al Shabaab went to the XXXX and to the XXXX and killed the Appellant's father and brother. The Appellant, his wife and his mother fled to Ethiopia. The Appellant's uncle assisted him to come to Canada. [4] The Appellant travelled to Canada via XXXX and XXXX and arrived in Toronto on XXXX XXXX, 2014. The Appellant made his claim for refugee protection on March 13, 2014. [5] The Appellant had a refugee determination hearing on May 8, 2014 and written reasons were issued on May 23, 2014. The RPD found that the Appellant was not credible as a witness and did not provide sufficient credible or trustworthy evidence to establish his personal identity and nationality based on the following individual findings: 1. The Appellant's identity was undermined by his failure to make attempts to provide secondary evidence (XXXX XXXX, school documents, business contracts, marriage certificate, driver's license, mail, paid bills, bill of sale for the XXXX XXXX, and affidavits) to support his personal identity and nationality. 2. The RPD placed no weight on the letter from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX, as the letter did not explain how it came to the determination regarding the identity of the Appellant and his family. 3. The RPD found the connection between the Appellant and the witness was peripheral, tenuous and minor as the interaction between the witness and the Appellant's family focused on the Appellant's father; it was for a period of three months, fourteen years ago, and there had been no communication between the Appellant and the witness since 2000. 4. The Appellant had some knowledge of the geo-political history of Somalia, but this does not establish the Appellant's nationality as a citizen of Somalia. 5. The Appellant's ability to speak Somali did not establish his citizenship as Somali, as speakers are found in Ethiopia, Kenya, Djibouti, and Yemen. [6] Appeal pleadings were received on June 24, 2014. In the appeal, counsel argued that the RPD erred in its findings of fact as it relates to the Appellant's personal identity and nationality. Specific errors included: 1. The RPD erred in fact by assigning a negative inference to the lack of documents given the country conditions and evidence on the availability of documents in Somalia. 2. The RPD erred in fact by placing little weight on the letter from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX 3. The RPD erred in fact in failing to place significant weight on the witness testimony as the Appellant was only 11 years old when he knew the witness, and it was unreasonable that the Appellant be more aware of details regarding the witness at the time. [7] The Appellant requested that the RAD set aside and substitute the negative determination with a positive one, or refer the matter back to the RPD for redetermination. ADMISSIBILITY OF NEW EVIDENCE [8] The Appellant provided a letter from his wife,1 which he asks the RPD to accept as new evidence. The Appellant explained in an affidavit2 that, in the process of fleeing to Canada, he lost the piece of paper with the telephone number of his relatives in Ethiopia. He was unable to contact his wife or mother to provide an affidavit. After the hearing, the Appellant found the telephone number and was able to contact his relatives to obtain a letter. The RAD considered the explanation. The Appellant was unable to provide detailed information regarding the circumstances of how and when he lost the paper with his contact numbers on it after his arrival in Canada. The Appellant did not provide testimony as to what efforts he took to try to find the lost information or to replace it before the rejection. The lack of detail regarding the lost information and the lack of efforts to locate it undermined the credibility of the explanation. [9] In addition, the RAD noted that, in his affidavit submitted with the new evidence and pleadings, the Appellant did not explain the circumstances around which he found the information for his relatives in Ethiopia. As such, the RAD finds that the Appellant's explanation for losing the number and then finding it after the rejection was not credible and that the Appellant has failed to persuade the RAD that the letter was not reasonably available at the time of the rejection or that he could not reasonably have been expected in the circumstances to have presented the letter at the time of the rejection, as per s. 110(4). [10] Even if the RAD had accepted the letter as new evidence, the RAD has concerns with the credibility of the letter. The Appellant's affidavit indicated that he would provide a copy of the original letter to the RAD upon its arrival. The letter was sworn on XXXX XXXX, 2014. Appeal pleadings were received on June 24, 2014. At the time of rendering the decision (September 21, 2014), no original letter had been provided, including no evidence of how the letter was sent to Canada. The RAD finds that three months was adequate time for the original letter to be presented to the RAD as sworn to in the affidavit. The RAD cannot place significant weight on a FAXED letter rather than the original that was promised in the affidavit. In addition, the RAD noted that the date of the letter (XXXX XXXX XXXX/2014) was written in the Gregorian calendar. The RAD takes judicial notice that authorities in Ethiopia use the Ethiopian calendar. The inconsistent use of dates in the document undermined the fact that the document was issued by the XXXX XXXX XXXX XXXX. In addition, the RAD is concerned that the letter is written in English and not in Amharic or any other Ethiopian language if it was issued by local authorities in Ethiopia. The letter does not indicate the basis on which the affiant was identified, e.g., documents and therefore the identity of the person who wrote the letter has not been established. Finally, the letter does not provide the full birth date of the Appellant's husband. [11] Given the lack of an original letter and proof of how it came to Canada, and given the concerns with the use of Gregorian dates, and given the concerns with the content of the letter, the RAD finds that the letter is not credible as the source and circumstances in which it came into existence has not been established. Section 171(a.3) directs the RAD to receive and base a decision on evidence that is adduced in the proceedings that is considered credible or trustworthy in the circumstances. Given that the provenance and credibility of the letter has not been established, the RAD finds that the letter does not conform to the direction in s. 171(a.3). ANALYTICAL APPROACH [12] Counsel was asked to provide submissions3 on the Standard of Review as it related to two recent Federal Court decisions (Alvarez4 and Eng5). Counsel argued that the RPD's decision had palpable and overriding errors in its assessment of the evidence and its credibility findings, and that no deference should be afforded to the RPD's findings. [13] In assessing the appeal, the RAD is guided by the recent Huruglica6 decision, which outlines the approach that the RAD should take as an appellate body in reviewing the first-level decisions of the RPD. Justice Phelan has indicated that the RAD conducts a hybrid appeal and is required to review all aspects of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. This authority comes from the broad remedial powers of the RAD, including the power to set aside and substitute the RPD's determination that, in its opinion, should have been made, as per s. 111(1)(b) of IRPA. The RAD can recognize and respect the conclusions of the RPD on issues such as credibility and/or where the RPD enjoys a particular advantage in reaching its conclusion; however, the RAD has equal or greater expertise than the RPD in the interpretation of country condition evidence. The RAD is not restricted to intervening on facts where there is a palpable and overriding error. It is not necessary for the RAD to find an error on some standard of review basis in order to trigger its remedial power. ANALYSIS [14] The RAD focused on one issue in assessing this appeal: Has the Appellant provided sufficient credible or trustworthy evidence to establish his personal identity and nationality as a citizen of Somalia? [15] In analyzing the claim, the RAD considered the totality of the evidence, including the recording of the hearing. [16] The RAD noted an inconsistency in the Appellant's oral testimony and his Basis of Claim (BoC) narrative. The BoC narrative indicated that his family was one of the business people in the market who were forced by Al Shabaab to pay them a percentage of earnings. When questioned by his counsel, the Appellant testified that his family never paid the protection money. When asked to explain the inconsistency, the Appellant indicated that he stated that they imposed the payment, but they never paid it. This is not consistent with the BoC which indicated that the payment was a difficulty for the Appellant. The RAD finds that this inconsistency is significant given that the Appellant alleged that his family sold the mangoes to the military to avoid monitoring by Al Shabaab. The RAD finds that the inconsistency undermined the Appellant's allegations and his credibility as a witness. [17] The RPD found that the Appellant's identity was undermined by his failure to make attempts to provide secondary evidence (XXXX XXXX, school documents, business contracts, marriage certificate, driver's license, mail, paid bills, bill of sale for the XXXX XXXX, and affidavits) to support his personal identity and nationality. The RPD erred in fact by assigning a negative inference to the lack of documents, given the country conditions and evidence on the availability of documents in Somalia. [18] The RAD noted that, in paragraph 24 of its Reasons and Decision, the RPD clearly indicated that it did not expect the Appellant to provide evidence from government sources regarding his personal identity and nationality. The RPD focused on the Appellant's efforts to provide evidence from secondary sources. When asked by the RPD throughout the hearing if he attempted to obtain documentary evidence from secondary sources, the Appellant consistently indicated that he had made no efforts, as such information was not available. The RAD finds that, even in Somalia, it was implausible for the Appellant not to be able to provide at least one document to identify himself, place him in XXXX during the period of alleged persecution, and/or to establish his personal profile. For example, the Appellant indicated that he received a telephone call on his cell phone to inform him that his father had been killed. The RAD finds that it was reasonable to expect the Appellant to be able to contact his cell phone carrier to obtain some billing information, etc. from Canada. The Appellant indicated that he had a XXXX and XXXX XXXX XXXX XXXX. The Appellant could have made efforts to contact any of these former employees for evidence related to the alleged murder of his family members, and the Appellant's personal identity and nationality. Furthermore, the Appellant could have made efforts to obtain documents concerning his membership in the XXXX clan, his residence in XXXX, and his wedding from clan leaders in XXXX. The Appellant did not attempt to provide this information. [19] The Appellant testified that police provided security at the funeral of his father and brother. The Appellant testified that he did not seek any documents from police, as they could not help him, as they had no power to investigate or help. This explanation dealt with the issue of protection and did not explain why he made no efforts to contact police for evidence of the deaths. [20] The RAD also noted that, while the national governmental administration was weak in Somalia, there were still authorities in XXXX which the Appellant could have approached from Canada to assist in documenting the murders of his father and brother. For example, there was a regional administration established in XXXX (which includes XXXX) since September of 2012. There was an African Mission in Somalia, the Somali National Army, and the Somali Police Force.7 The existence of these authorities in XXXX undermined the credibility of the Appellant's testimony that there was no one that he could contact to obtain any documents in support of his personal identity or nationality, or any aspect of his claim. [21] The RAD also noted that the Appellant spent approximately two months in XXXX XXXX, during which he had communication with his relatives in Somalia as evidenced by his knowledge that the XXXX XXXX XXXX XXXX. Given this, the RAD found that the Appellant could have asked his remaining relatives in Somalia to provide evidence to him when he was in Ethiopia. The RAD noted that he had planned to come to Canada to seek protection while he was in Ethiopia and therefore he could have taken some time or effort to assemble documents to confirm his personal identity or nationality before coming to Canada. Furthermore, the Appellant used the money from the sale of XXXX XXXX to pay for a smuggler to assist him to leave Ethiopia and come to Canada. The RAD finds that it would be reasonable for there to be some documentation of a transfer of a large quantity of money from Somalia to Ethiopia or from Somalia to the smuggler which could demonstrate that the Appellant had been in Ethiopia and/or to support the Appellant's allegations that he used a smuggler to assist him to leave Ethiopia. [22] The Appellant was aware that he was required to provide evidence to establish his personal identity and nationality given that he obtained a document from a Somali social service agency, and arranged for a witness. The Appellant, however, failed to make any effort to obtain secondary evidence to establish his identity and nationality and other aspects of his claim. His explanations for this failure (things done orally, no documentation, no authority in Somalia) were not credible, especially given the fact that he made no efforts to try to obtain such information despite being represented by counsel and despite his being associated with a Somali social service agency in Toronto. The RAD concurs with the RPD that the Appellant's failure to make any efforts to obtain secondary information undermined his personal identity and nationality as well as undermined the Appellant's overall credibility as a witness. [23] The RAD considered the evidence from the XXXX. The RAD considered a Response to Information Request8 (RIR) concerning documents from Somali-Canadian associations in support of a person's identity. The RAD noted that the associations employed several different techniques to identify whether a person was Somali. For example, one organization asks the person to come to the organization with a person who knew him or her personally for three years in Somalia who could attest to the person's identity. The person is requested to sign a statutory declaration of identity. The identity of the person is established based on his or her accent and the testimony of people who knew him or her in Somalia. Another organization asks the person to bring up to three witnesses who are willing to attest to the person's identity under oath. The witnesses must explain how and for how long they have known the person, and they must be considered trustworthy by the organization. An organization in Toronto does not write attestation letters that vouch for a person's identity; rather, it assists clients in collecting information or proof necessary to have their identity confirmed through the legal system. Another organization interviews the client and witnesses about their city or town of origin in Somalia as well as how they know each other or how they are related in order to assess the level of knowledge. [24] The letter received from the XXXX indicates that it made inquiries among the XXXX members of the organization whether they know the Appellant's family. The documentary evidence indicates that members of the XXXX clan live throughout Somalia and the Arab world.9 The letter does not indicate that the XXXX consulted with members of the XXXX clan from XXXX. The letter indicates that members of the clan have confirmed that the Appellant is from the XXXX clan. The RAD is concerned with the contents of this letter for several reasons. Firstly, the letter does not provide details concerning exactly who was consulted to establish the Appellant's membership in the clan. The letter also does not indicate that any specific checks and balances were performed to ensure the accuracy of the information such as those cited in the RIR highlighted above. The RAD noted that the identification of the Appellant was made based on the names presented by the Appellant for his mother and father. The relationship between the Appellant and the two people identified as the Appellant's mother and father has not been established. It could be plausible that the two people identified as the Appellant's parents were recognized as members of the XXXX clan and are Somali; however, the letter does not confirm a link between the Appellant and the persons named as his parents. The RAD also noted that the letter does not confirm the Appellant's personal identity or nationality; rather, it indicates that the Appellant is a member of the XXXX clan. The Appellant could reasonably be a member of the XXXX clan but not be a citizen of Somalia, as members of the XXXX are scattered all over Somalia and all over the Muslim world.10 Furthermore, given that members of the XXXX clan live throughout Somalia, and given that the letter from the organization did not indicate that it consulted with members of the XXXX clan from XXXX, the RAD finds that it cannot place significant weight on the letter from the organization in support of the Appellant's membership in the XXXX clan as well as his personal identity or nationality as a Somali citizen. [25] The RAD considered the evidence and testimony of the witness. The RPD placed little weight on the testimony of the witness given that most of the contact between the witness and the Appellant's family was with the Appellant's father; the witness has not communicated with the Appellant's family since 2000; the Appellant knew little about the witness despite being in contact with him in Canada. The RPD found the connection between the Appellant and the witness was "peripheral, tenuous and minor at best". [26] The RAD noted that the Appellant's and the witness' testimony at the hearing was consistent. The witness indicated that he met the Appellant in 2000 while he was visiting his grandmother in XXXX XXXX but did not provide evidence such as a passport to confirm that he traveled to XXXX for three months in 2000. Such evidence would have been helpful in confirming the contents of the witness' statements. [27] The RAD was concerned with the lack of knowledge by the Appellant of the witness despite their being in contact in Canada. The Appellant testified that he was unaware of the clan to which his witness belonged. The Appellant also did not know what part of Somalia his witness came from or if the witness was married. Earlier in his oral testimony, the Appellant testified that it was customary for Somalis to ask people their clan affiliation before even asking their name. The fact that the Appellant did not know the clan affiliation of his witness, despite their contact in Canada, undermined the genuineness of the connection between the two and the genuineness of the Appellant's story of their chance meeting in a restaurant in Toronto. The RAD finds the Appellant's lack of knowledge of the witness, including one of the most important identifiers being clan affiliation, undermined the genuineness of the connection between the Appellant and his witness and undermined the credibility of the alleged chance meeting of an old family friend in Toronto. [28] The RAD identified another concern which impacted on the weight placed on the witness' testimony. The Appellant's original IMM-566911 indicated that he lived in XXXX District between a 1989 and 2013. The Appellant submitted an amendment to his address on XXXX XXXX, 2014 indicating that he lived in "XXXX". The Appellant did not provide an explanation for this change, and he was not requested to explain this inconsistency at the hearing. It was evident from the recording that the Appellant knew the various neighborhoods of XXXX, as he was able to identify them, including XXXX and XXXX. The RAD noted that the Appellant signed his IMM-3669 as truthful complete and correct. The RAD noted that the Appellant had an opportunity to make corrections on his IMM-5669 as evidenced by a handwritten change in his address in Toronto from Somalia to Canada. The RAD also noted that the Appellant had the assistance of an interpreter at the time that he submitted and affirmed his IMM-5669. The Appellant was represented by counsel at the time that he submitted his IMM-5669 and his BoC. It would be reasonable for the Appellant to be able to consistently identify the neighbourhood in which he lived his entire life. The amendment to the neighbourhood in which the Appellant lived came after the affidavit12 from the witness was submitted to the RPD. The affidavit indicated that the Appellant lived in XXXX XXXX, which was not consistent with the Appellant's original IMM-5669 statement that he lived in XXXX. The RAD finds that, on a balance of probabilities, the Appellant submitted the amendment so that his document would be consistent with the affidavit of the witness. The inconsistency between his original statement regarding where he had lived his entire life and the location of where he lived in the witness' affidavit further undermined the credibility of the witness' affidavit and testimony as it relates to the personal identity and nationality of the Appellant. [29] The RAD finds that, even if the witness' evidence was found to be credible, this evidence can only establish the Appellant's personal identity and affiliation with the XXXX clan. The witness' testimony cannot and does not establish the Appellant's nationality at the time the witness knew the Appellant or any time after. For example, the Appellant and his family could have left Somalia and obtained permanent residence or citizenship in another country in the 14 years after he was last seen by the witness. The Appellant could have been living in XXXX and have citizenship in another country as well as Somalia. [30] Given the credibility concerns highlighted above, the RAD finds that the witness' evidence is of little probative value in establishing the personal identity and nationality of the Appellant. Even if the RAD placed significant weight on the witness' testimony and evidence, it does not establish the Appellant's nationality or country of reference. It solely establishes that the Appellant is a member of the XXXX clan who lived in XXXX in the year 2000. This is of little value in establishing the Appellant's nationality in the year 2014. [31] Finally, the Appellant did not provide the RPD with any documentary evidence that would attest to his country of reference, or to document how and when he came to Canada. If the Appellant flew from Ethiopia through XXXX and XXXX to Canada, it would be reasonable for him to provide evidence of this, such as a baggage ticket, boarding pass or other documents. Summary [32] When taken as a whole, the RAD has before it evidence of the Appellant's failure to make any reasonable efforts to provide secondary documentation regarding his identity and nationality and his residence in Somalia; unreasonable explanations for his failure to provide secondary documentation regarding his identity and nationality; a document from social service agency whose conclusions are not adequately supported and which only comments on the Appellant's clan affiliation and does not establish the Appellant's personal identity or nationality; concerns based on an inconsistency in the neighborhood identified by the Appellant in his original claim documents and the witness' affidavit; concerns with the Appellant's lack of knowledge regarding his witness; evidence from the witness which does not establish the Appellant's nationality; no evidence other than the Appellant's oral testimony regarding his whereabouts since 2000 and his travel to Canada. As such, the RAD concurs with the RPD that the Appellant has failed to provide sufficient credible or trustworthy evidence to establish his personal identity and nationality. DISPOSITION [33] Based on a review of the totality of the evidence, the RAD confirms the RPD's determination that the Appellant is not a Convention refugee nor is he a person in need of protection, as per s. 111(1)(a) of IRPA. [34] The appeal is dismissed. (signed) "Daniel McSweeney" Daniel McSweeney September 21, 2014 Date 1 Appeal Pleadings, Letter from XXXX XXXX XXXX, p. 65. 2 Appeal Pleadings, Affidavit of XXXX XXXX XXXX, pp. 18-22. 3 Exhibit P-3, Counsel's Submissions, dated August 19, 2014. 4 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702. 5 Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 6 Huruglica, Bijar et. al. v. M.C.I. (F.C. no., IMM-6362-12), Phelan, August 22, 2014; 2014 FC 799. 7 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Somalia (1 March 2014), item 2.3, UK Home Office, Somalia: Country of Origin Information Report, Sections 1.29-1.33, 5 August 2013. 8 Exhibit RPD-1, RPD's Record, NDP for Somalia (1 March 2014), item 3.5, Response to Information Request (RIR) ZZZ104663.E, 29 November 2013. 9 Exhibit RPD-1, RPD's Record, NDP for Somalia (1 March 2014), item 13.6, RIR SOM103613.E, 23 November 2010. 10 Exhibit RPD-1, RPD's Record, NDP for Somalia (1 March 2014), item 13.6, RIR SOM104613.E, 23 November 2010. 11 Exhibit RPD-1, RPD's Record, p. 46, Exhibit 1, IMM5669 Question 12. 12 Exhibit RPD-1, RPD's Record, pp. 73-74, Exhibit 4, Affidavit from XXXX XXXX XXXX XXXX --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-05205