TB8-16757

RAD File / Dossier de la SAR : TB8-16757 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 January 18, 2021 Date de la décision Panel I. Singh Tribunal Counsel for the person who is the subject of the appeal Micheal Crane Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Richard Long Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Appellant), a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD), dated June 26, 2018, rejecting his claim for refugee protection. DECISION [2] The appeal is dismissed. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant alleged before the RPD that, upon return to Somalia, he fears harm from Al-Shabaab because when they attempted to recruit him, he refused to join them in their cause. He also alleged a fear of majority clans because he is from a minority clan. [4] The Appellant's application for refugee protection was heard on June 4, 2018. By a decision of June 26, 2018, the RPD rejected the claim. The RPD found that the determinative issues were identity and credibility. [5] The Appellant submits that the RPD erred in its assessment of his identity and credibility. [6] The Minister of Citizenship and Immigration (the "Minister") intervenes in this appeal and provides new evidence in support of that intervention.1 The Minister requests the Refugee Appeal Division (RAD) to confirm the determination of the RPD without holding an oral hearing. ROLE OF THE RAD [7] My role is to look at all the evidence and decide if the RPD made the correct decision.2 ANALYSIS Admissibility of the new evidence submitted on appeal The Appellant's two Rule 29 applications are rejected [8] The Appellant submits two applications under Rule 29 of the Refugee Appeal Division Rules for the admission of documents not previously provided. The Appellant requests to submit documents related to an identity witness named XXXX XXXX, for whom the Appellant requests an oral hearing.3 [9] Rule 29 allows the Appellant to make an application to provide a document not previously provided.4 In determining the application, the RAD must consider any relevant factors, including: the relevance and probative value of the documents, any new evidence the documents bring to the appeal, and whether the Appellant could have, with reasonable effort, provided the documents with the Appellant's Record. [10] The Appellant argues the documents related to Mr. XXXX are relevant as they corroborate the Appellant's identity, as well as the statements in Mr. XXXX's affidavit that he traveled to Somalia and saw the Appellant there. The Appellant and his counsel have also provided submissions and evidence demonstrating that the documents could not have been provided earlier. [11] I reject the Appellant's Rule 29 applications as I find the documents are not relevant to the determinative issue in this appeal, that being the Appellant's identity, and they have limited probative value. I find that these factors outweigh the little new evidence the documents bring to the appeal and that the Appellant could not have provided the documents earlier. I do not find that the documents corroborate the Appellant's identity as alleged. Though the Appellant's counsel argues that Mr. XXXX "can confirm that the Appellant's father was Somalian and that the Appellant are Somalian,"5 I find that there is nothing in Mr. XXXX's documents that states the Appellant is Somalian. Mr. XXXX states he believes the Appellant was born in Somalia and that he met the Appellant in Somalia; however, he does not state his knowledge about the Appellant's nationality. Mr. XXXX also states that he met the Appellant in Somalia on all of his trips there, except 2017 and 2018. Therefore, it appears the last time he met the Appellant in Somalia was in 2016. If so, Mr. XXXX is unable to attest to the Appellant's whereabouts since that time, until they had contact in Canada in September 2018, according to Mr. XXXX's affidavit. I find Mr. XXXX is unable to state, even on a balance of probabilities, where the Appellant was between 2016 and 2018, nor what countries he may have visited or may have acquired status in. Therefore, as I do not find this evidence has sufficient relevance or probative value, I reject the Appellant's Rule 29 applications and find the documents contained within both applications are inadmissible in this appeal. [12] As I have not admitted these documents, the Appellant's request for an oral hearing for these documents is denied. The Minister's new evidence is accepted [13] While the Immigration and Refugee Protection Act (IRPA)6 sets out restrictions on new evidence submitted by the subject of an appeal, those restrictions do not apply to the Minister.7 The RAD may receive and base its decision on evidence that is adduced in the proceedings and that is considered credible or trustworthy in the circumstances.8 [14] The Minister presented the following documents as new evidence:9 a. Personal Information Kiosk (PIK) Declaration Card printout for XXXX XXXX XXXX;10 b. E-mail confirmation regarding route of XXXX flight XXXX as XXXX to XXXX to XXXX;11 c. Integrated Customs Enforcement System (ICES) Report showing arrival of XXXX XXXX XXXX on XXXX XXXX, 2017;12 and d. Statutory Declaration: XXXX XXXX, August 25, 2020, in which he declares he met with XXXX XXXX XXXX in XXXX, who reported that in 2017 she became aware that someone was using facsimiles of her stamps so she changed them (Mr. XXXX attested to the new stamp and signature being different), and that documents dated after 2017 showing the stolen stamp and signature should be considered fraudulent.13 [15] The Minister submits that the new evidence listed in items (a) through (c) above raises issues of credibility and is highly relevant as it establishes details on the identity and documentation that the Appellant used to travel to and enter Canada, the point of embarkation from which the Appellant travelled to Canada, and the timeline of the Appellant's travel to Canada, all of which directly contradict the Appellant's declarations. Specifically, the Appellant declared that he travelled to Canada in XXXX 2017; however, the evidence indicates he arrived on XXXX XXXX, 2017. The Appellant also declared that he travelled to XXXX via XXXX and XXXX; however, the evidence indicates he travelled from XXXX, XXXX with a XXXX passport under an identity different than what he declared as his true identity. The Minister submits this evidence demonstrates the Appellant misrepresented himself and supports the RPD's finding that he was not a credible or reliable witness. The Minister submits that the Appellant's misrepresentations undermine the veracity of his declarations regarding his identity and support the RPD's finding that he failed to adequately establish his identity. The Minister also submits that based on the new evidence listed in item (d) above, the Appellant's two affidavits from XXXX14 are likely fraudulent, on a balance of probabilities, and this further supports the Minister's position that the Appellant's declarations regarding his identity were not credible. The Minister has not requested an oral hearing. [16] I have no reason to doubt that these are credible or trustworthy documents and the Appellant does not contest their credibility. The Minister's evidence is therefore admitted in this appeal. The Appellant's reply evidence to the Minister's new evidence is accepted [17] In reply to the Minister's evidence, the Appellant submitted the following: a. Letter from Royal XXXX Embassy, affidavit of Appellant with two exhibits and statutory declaration of interpreter XXXX XXXX, documents about why this evidence was not filed earlier, and an application and submissions;15 b. Additional memorandum of argument;16 and c. Affidavit of Appellant, e-mails to the Appellant, authentication of signature from XXXX Ministry of Foreign Affairs, authentication of signature from Government of XXXX, affidavit of the Appellant's father XXXX XXXX XXXX with a copy of his passport and affidavit and identification of interpreter XXXX XXXX XXXX XXXX and an application and submissions.17 [18] The Appellant requested extensions of time to submit his reply to the Minister's intervention. In granting the extensions, I considered the Minister did not object to the requests, the potential relevance and probative value of the documents filed, the impacts of the COVID-19 pandemic and the temporary closure of the Board's facilities, and the Appellant's counsel's submissions about his circumstances that contributed to the delays in filing, which I found to be reasonable. [19] Although I have numerous credibility concerns with the Appellant's reply evidence, as discussed below, I have admitted it pursuant to paragraph 110(5) of the IRPA, which stipulates that subsection (4) does not apply to evidence presented in response to the Minister's evidence. The Appellant's request for an oral hearing is denied [20] The Appellant has requested an oral hearing in relation to the evidence filed by the Minister. Paragraph 110(6) of the IRPA stipulates that the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.18 [21] I do not find that any of the new evidence admitted from the Minister or the Appellant justifies allowing or rejecting the Appellant's refugee protection claim. For reasons that will be discussed in more detail below, I have credibility concerns with the Appellant's new evidence; however, none of his documents or my concerns are sufficient to allow or reject the claim as none of them, alone, establish his identity, on a balance of probabilities. Similarly, the Minister's new evidence is not conclusive of the Appellant's identity, on a balance of probabilities, and therefore, it is also insufficient to allow or reject the claim. Therefore, the Appellant's request for an oral hearing is denied. Assessment of the new evidence admitted Evidence regarding the Appellant's travel to and entry into Canada [22] The Minister has submitted that their new evidence raises issues of credibility and contradicts the Appellant's declarations about his travel to and entry into Canada and the identity and documentation used during his journey, which supports the RPD's finding that he was not a credible or reliable witness. [23] The Appellant submits that his evidence is credible since his affidavit, in which he explains details about his: smuggler's instructions; travel to Canada; and efforts to obtain information from the XXXX authorities, was made under oath. He submits that he has established that he is not the person under whose identity he entered Canada, and rather, that the XXXX passport was used for the purpose of coming into Canada. He submits he provided evidence that he contacted XXXX authorities who confirmed that there is a person whose name matches that of the identity in the passport and that it is not the Appellant. The Appellant argues that he has made all reasonable efforts to prove that he is not the person stated in the passport. He also argues that the Minister may have breached his privacy rights if face recognition technology was used. Lastly, the Appellant argues that he was following his agent's instructions when he lied about when and under what name he entered Canada, and he cites jurisprudence in this regard. [24] I am not persuaded by the Appellant's evidence and submissions and I find that the Minister's evidence and submissions are convincing. [25] I have a number of concerns with the Appellant's arguments and documents. First, although normally evidence provided under oath should be deemed credible, the Appellant's initial declarations, ones which he now admits were false, were also provided under oath. In my mind, this, combined with my many credibility findings, diminishes the reliability of documents sworn to be true by the Appellant. [26] Second, I reject his explanation that he provided false statements because he was following the advice of his smuggler. I acknowledge the jurisprudence cited by the Appellant; however, in my assessment, the jurisprudence is clear that the explanation of "following the agent's instructions" is applicable for those fleeing persecution and/or upon arrival in Canada,19 which does not apply to the Appellant's circumstances. [27] The Appellant arrived in Canada in XXXX 2017. In the same month, he retained legal counsel, completed his Basis of Claim (BOC) form and claim documents (which contained the false statements), and made an inland claim at the office in Etobicoke in September 2017. The Appellant then submitted corroborating documents that also contained false statements, such as his father's affidavit from XXXX in which it states the Appellant left for Canada in XXXX 201720 and an affidavit from XXXX XXXX in which it states she provided the Appellant with accommodation as of XXXX XXXX, 2017.21 The Appellant then proceeded to continue with his false statements at his RPD hearing on June 4, 2018 and in his appeal to the RAD, until he became aware of the Minister's intervention. [28] The Appellant cited the following from the jurisprudence: a. [I]t is not uncommon for those who are fleeing from persecution not to have regular travel documents and, as a result of their fears and vulnerability, simply to act in accordance with the instructions of the agent who organized their escape.22 b. [W]here a claimant travels on false documents, destroys travel documents or lies about them upon arrival following an agent's instructions, it has been held to be peripheral and of very limited value to a determination of general credibility.23 [29] I draw three important distinctions between this jurisprudence and the Appellant. First, at the time of the RPD hearing, the Appellant had been in Canada for nearly a year. Though he did not have legal protection yet, he was in a safe country and was represented by experienced legal counsel. He was not actively "fleeing from persecution" at the time of his RPD hearing, nor had he just arrived such that he could state he was simply following an agent's instructions "upon arrival." In my assessment, these explanations apply to those traveling with an agent, who are vulnerable for a variety of reasons, and must follow the agent's instructions to ensure their safety. This is not the position the Appellant was in at the time of his RPD hearing as he had legal representation, was no longer reliant on the agent, and was no longer required to follow the agent's instructions. Moreover, even if I found it reasonable for the Appellant to adhere to his false statements at his RPD hearing, I do not find it reasonable that he still continued to follow them for his appeal, especially given the RPD's negative credibility findings about the Appellant's travel to Canada. [30] Second, even if I accept that the smuggler instructed the Appellant to lie about when he entered Canada and on what passport, this does not take the place of the Appellant having access to experienced legal counsel from whom he could have received sound and confidential advice, which I find the Appellant was capable of doing, despite his limited education.24 I also doubt that the smuggler's instructions would have included advising the Appellant to submit falsified affidavits in support of his false statements. I also do not think that the Federal Court's intention in the above-noted cases was to condone individuals who submit false statements and documents, without disclosing this to their legal counsel. The way the cases read to me, they apply to individuals who do not have legal counsel's assistance, and that is why they so heavily rely on their agent's instructions. Again, this is not the case for the Appellant. [31] Lastly, I draw a distinction between the Appellant's case and the facts in Lubana.25 While Lubana has found that matters related to traveling on a false document, destroying it, and lying about it following an agent's instructions are of peripheral and of limited value, the distinguishing factor in that case was: "[n]or is this a case where identity of the claimant has been questioned by the Board or where the absence of a valid passport has proven to be problematic, as e.g. in Elazi..."26 In Elazi, the Court stated: [I]t is entirely reasonable for the Refugee Division to attach great importance to a claimant's passport and his air ticket. In my opinion, these documents are essential to establish the claimant's identity and his journey to come to Canada. Unless it can be assumed that a refugee status claimant is actually a refugee, it seems unreasonable to me to ignore the loss of these documents without a valid explanation. In my view, it is too easy for a claimant to simply state that he has lost these documents or the facilitator has taken them.27 [32] I find the principles stated in Elazi apply to the Appellant's case as identity was an issue and the absence of a valid passport, as well as the Appellant's lack of knowledge about it, were problematic issues, and I do not find that the Appellant provided valid explanations. For these reasons, I find that the Appellant's case is distinguishable from Lubana such that the Appellant's false statements are not peripheral or of very limited value to a determination of general credibility. I will return to this assessment below when I assess the RPD's reasons with regard to the Appellant's travel to Canada. [33] I now return back to my concerns about the Appellant's arguments about the Minister's new evidence. The Appellant submits that he has established that he is not the person under whose identity he entered Canada, and rather, that the XXXX passport was used for the purpose of coming into Canada. Although I find that the XXXX passport was used for the purpose of coming into Canada, I am not persuaded that the Appellant has established he is not the person under whose identity he entered Canada; however, this was not the Minister's contention. The Minister has not argued that the XXXX passport is the Appellant's true identity. I do not find there is sufficient evidence to make that determination. However, I also cannot find that the Appellant has established the XXXX passport is not his true identity. The Minister argues issues of credibility were raised that supported the RPD's finding that the Appellant was not a credible or reliable witness, and I agree. [34] The Appellant also submits that he provided evidence that he contacted XXXX authorities who confirmed that there is a person whose name matches that of the identity in the passport and that it is not the Appellant. I do not find that the XXXX authorities confirmed that the identity in the passport is not the Appellant. The letter from the XXXX Immigration Services (XXXXIS) states: [T]here are no previous or current cases regarding individuals with the name of XXXX XXXX XXXX with the date of birth provided by the individual in question ... XXXXIS has located a file with the personal information used by Mr. XXXX to enter Canada. They have not been able to locate photo documentation in order to compare Mr. XXXX to the individual, whose passport Mr. XXXX used to gain entry to Canada.28 [35] I find the letter is inconclusive as to whether the Appellant has a case in XXXX and whether the passport he used is his true identity. The Appellant has demonstrated the willingness to submit false statements and documents for his own benefit, more of which I assess below. I have no way of knowing whether the name and date of birth provided to the XXXXIS is credible, and without photo identification, I have no way of knowing whether the passport is his or not. [36] The Appellant also submitted the result of a Google search29 of the individual named in the passport and stated he tried to call the telephone number but heard an automated message in a foreign language. Even if true, I do not find this to be of sufficient probative value in assessing the Appellant's explanations or identity. [37] Lastly, I turn to the Appellant's concerns about a possible breach of his privacy rights if face recognition technology was used. I reviewed the internet article30 cited by the Appellant and note that as of the time of the article (July 6, 2020), the investigation of Clearview remained open and findings were still planned to be issued. I do not have any other information. Given this, and given I also do not have information as to whether facial recognition technology was used, and if so, by which company, I find that a possible breach of the Appellant's privacy rights is too speculative to be considered in this appeal. [38] Given my analysis above regarding the evidence about the Appellant's travel to and entry into Canada, I find, on a balance of probabilities, that the Minister's evidence raises issues of credibility and contradicts the Appellant's declarations about his travel to and entry into Canada and the identity and documentation used during his journey, which supports the RPD's finding that he was not a credible or reliable witness. I therefore give no weight to the Appellant's documents submitted in reply to the Minister's evidence.31 Evidence regarding the Appellant's documents from XXXX [39] The Minister has submitted that the Appellant's two affidavits from XXXX32 are likely fraudulent, on a balance of probabilities, and this further supports the Minister's position that the Appellant's declarations regarding his identity were not credible. [40] The Appellant submits that his evidence is credible since his affidavit, in which he explains details about how his father was scammed by someone pretending to be XXXX XXXX XXXX and so a new affidavit was obtained, was made under oath. He also submits that the new documents from XXXX are credible as his father's affidavit was made under oath and stamped by the real XXXX XXXX XXXX and it was accompanied by two letters from the XXXX government authenticating her signature.33 [41] I am not persuaded by the Appellant's evidence and submissions and I find that the Minister's evidence and submissions are convincing. [42] I have a number of concerns with the Appellant's arguments and documents. First, although normally evidence provided under oath should be deemed credible, the Appellant's initial declarations assessed above, ones which he now admits were false, were also provided under oath. In my mind, this, combined with my many credibility findings, diminishes the reliability of documents sworn to be true by the Appellant. [43] Second, even if the Appellant's XXXX was scammed by someone pretending to be XXXX XXXX XXXX, this does not explain why his father's first affidavit from XXXX contains the false statement that the Appellant left for Canada in XXXX 2017.34 [44] Third, the Appellant's father's new affidavit35 starts with "I, XXXX XXXX XXXX of Post Office Box Number XXXX XXXX XXXX XXXX XXXX MOMBASA..." Given that the affidavit seems to indicate his address is in Mombasa, I do not find it logical or credible that a "sick and elderly" man "with XXXX XXXX and [having] XXXX XXXX XXXX XXXX XXXX"36 would travel to Nairobi, a distance of approximately 485 kilometers, for this affidavit. Moreover, given the credibility concerns with the Appellant's father's first affidavit, I do not find it credible that the new affidavit was allegedly obtained from the same, though "real," notary, as presumably, there are notaries in Mombasa. [45] Fourth, the Minister's evidence indicates that Ms. XXXX "became aware that someone was using facsimiles of her stamps so she changed them."37 There are two stamps shown in the Minister's evidence, a circular stamp and a rectangular stamp, which are images of what was stolen. When I compare these images to the stamps on the documents submitted by the Appellant, I note that the circular stamps appear to look the same, though there are slight differences in the rectangular stamps. Based on my assessment of the rectangular stamps, it appears the font size may be slightly different and the formatting and spelling are slightly different: "COMMISSIONER FOR OATHS/NOTARY PUBLIC" written on one line versus "COMMISSIONER FOR OATHS & NOTARY PUBLIC" written on two lines. In total, given that the circular stamps look the same and the rectangular stamps have only minor differences, I do not find, on a balance of probabilities, that the new documents bear Ms. XXXX's "changed" stamps. [46] Lastly, for the following reasons, I find that the documents referred to as authentication of signature from XXXX Ministry of Foreign Affairs (MFA letter) and authentication of signature from Government of XXXX (Government of XXXX letter)38 are fraudulent, on a balance of probabilities: a. According to the website for the Republic of XXXX's Ministry of Foreign Affairs,39 which is listed on the MFA letter, their address includes "XXXX XXXX XXXX" which is missing from the address listed on the MFA letter; b. Both documents bear XXXX's coat of arms at the top of each document, but the MFA letter is missing the words "REPUBLIC OF XXXX" which do appear on the Government of XXXX letter, as well as on the coat of arms pictured on the website for the Republic of XXXX's Ministry of Foreign Affairs; c. The title for the author of the MFA letter is stated as "Second Counsellor" in the first paragraph, but stated as "SECOND SECRETARY" under his signature; and d. The MFA letter indicates that the attached letter "...bears of the Seal of the High Court of XXXX" and the Government of XXXX letter states "the Seal of the Court is hereunto put and affixed" but it actually does not bear said seal; both letters appear to bear the seal of the Ministry of Foreign Affairs. [47] I find, on a balance of probabilities, that genuine and official documents would not contain the anomalies listed above. [48] The issues I have noted, on their own, may not support a finding that the documents are not genuine. Yet, the Federal Court has recognized that differences in small or microscopic details may be the way that a forgery is exposed. Whether those small differences are sufficient to conclude that a document is not authentic will depend on the facts of each case.40 [49] The Federal Court has also determined that the RAD is not required to give an Appellant notice of inconsistencies in their own documents. They are reasonably expected to be aware of the contents of the documents that they themselves provided.41 [50] When the concerns in the Appellant's XXXX documents are viewed together with my other credibility findings above and below, the Minister's evidence, and the objective evidence which states that fraudulent documents are available in Somalia and XXXX,42 I find, on a balance of probabilities, that there is a sufficient basis to find that the Appellant's documents from XXXX are not genuine. I therefore give these documents no weight and draw a negative credibility inference against the Appellant. [51] Given my analysis above regarding the Appellant's evidence from XXXX, I find, on a balance of probabilities, that the Minister has established that the Appellant's initial documents from XXXX43 are fraudulent, on a balance of probabilities, and that this further supports the Minister's position that the Appellant's declarations regarding his identity were not credible. I therefore give no weight to the Appellant's documents submitted in reply to the Minister's evidence.44 [52] In addition, I draw special attention to the copy of the Appellant's father's Somali passport.45 It, too, is stamped with the same problematic stamps, as well as a stamp that indicates the copy is certified as a true copy of the original document. Given it is stamped by the same notary public that stamped the affidavits which I have found to be fraudulent, I do not accept that the copy of the passport is a certified true copy of the original, on a balance of probabilities. Although the details of the passport appear to be generally consistent with some of the information in the National Documentation Package (NDP)46 and the information provided by the Appellant about his father in his BOC form47 and his refugee claim documents,48 I still have concerns with its credibility. I have considered that the Appellant has not provided a full copy of each page of the passport, including the front cover. I therefore am not able to compare all of it with the information in the NDP.49 Without a reliable certified true copy of the original passport or the original passport itself, I am unable to determine if the passport is genuine and credible. The NDP also states that applicants for Somali passports "must provide an ID card, the birth certificate, and a criminal background check."50 Without these documents from the Appellant's father, I am also unable to determine if the passport was legitimately obtained. I have also considered that Somali passport fraud is widespread.51 Given these concerns, as well as my above concerns with the Appellant's credibility, I find that the Appellant has failed to establish, on a balance of probabilities, that: the copy of his father's Somali passport is reliable, the passport is genuine, and that the passport was legitimately obtained. I therefore give the copy of the Appellant's father's passport no weight. The RPD did not err in its assessment of the Appellant's identity and credibility [53] The RPD's findings can be summarized as follows: a. The RPD found the Appellant's credibility regarding his identity was seriously undermined because he did not know the date of birth and nationality information from the passport he used to travel to Canada, which was provided by the smuggler, because it is a reasonable expectation that the smuggler would have made him memorize these details; b. The RPD found the Appellant failed to establish with credible and trustworthy evidence as to when and how he entered Canada and how he got here because he did not have evidence of his travel by air from Somalia; c. The RPD gave the Appellant's witness's testimony minimal weight in establishing his identity because the witness's knowledge of the Appellant's identity is based on what the Appellant told him and not as a result of knowledge acquired independently or as the result of a long-term relationship or association in Somalia; d. The RPD gave diminished or minimal weight to the affidavits from the Appellant's father, XXXX XXXX, and XXXX XXXX XXXX. The RPD found the Appellant's father's identity could not be established nor was it confirmed when the affidavit was commissioned. The RPD found the other two affidavits contained insufficient information to determine that XXXX XXXX personally knew the Appellant and that XXXX XXXX XXXX personally knew the Appellant in Somalia; e. The RPD found that the letters from the XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX did not establish the Appellant's identity on a balance of probabilities; and f. The RPD found that the Appellant was neither a credible nor reliable witness and while he may be ethnically Somali, it does not preclude him from having obtained the citizenship of another country. The RPD concluded that the Appellant failed to establish with reliable and trustworthy evidence who he is or where he is from. The RPD did not go on to analyze the merits of the claim. [54] The Appellant's arguments can be summarized as follows: a. The RPD erred by failing to consider each element of the evidence together; b. The RPD erred by failing to consider the Appellant's XXXX years of education and young age; c. The RPD erred in rejecting the Appellant's evidence regarding travel; d. The RPD erred by speculating that the Appellant's counsel's submissions meant that the smuggler would have had even more reason to ensure that the Appellant memorized details from the false passport, and by finding that travel documents are very relevant for the refugee process. e. The RPD erred in giving little and minimal weight to the evidence of the witness, which should have been given substantial weight; f. The RPD erred in giving the affidavits from the Appellant's father, XXXX XXXX, and XXXX XXXX XXXX diminished or minimal weight; g. The RPD erred in its treatment of the letters from the XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX; h. The RPD ought to have given some weight to the photograph of the Appellant with his father at Lido Beach;52 i. The RPD erred in its identity assessment as identity does not have to be proven to a higher standard; j. The RPD erred in failing to consider Somali nationality law, according to which the Appellant is a citizen of Somalia by virtue of his father's Somali citizenship, and the RPD erred in finding that speaking Somali and being knowledgeable about his clan and culture were not indicative of the Appellant's citizenship; and k. The RPD erred in failing to properly consider the benefit of the doubt when assessing the Appellant's credibility because there were no valid reasons to doubt the truthfulness of his evidence. [55] The Appellant's four remaining arguments relate to an assessment of the merits of his claim. He makes submissions about: a caution about jurisprudence from the United Kingdom; if his identity is accepted, he ought to be declared a Convention refugee; the risk for returnees to Somalia; and cumulative persecution. I have not addressed these arguments in my analysis as I do not find them to be determinative, given that I find identity is the determinative issue. The Appellant's travel to Canada and his lack of documents to establish his travel from Somalia [56] As discussed above, since the time of the RPD's reasons and the Appellant's Memorandum of Argument, new information has come to light with regard to the Appellant's travel to Canada. The RPD found the Appellant was not being truthful, which has since been confirmed. I therefore do not find it appropriate or necessary to assess the RPD's reasons and the Appellant's arguments with regard to the Appellant's travel to Canada and his lack of documents to establish his travel from Somalia. [57] I have conducted my independent assessment based on the most up-to-date evidence. As I explained above, I do not find the Appellant provided valid explanations for his false statements, considering the principles in Elazi and Lubana. I have also considered his age and level of education and do not find that these factors mitigate the circumstances as the Appellant had assistance from counsel in Canada. In continuing my credibility assessment, I find that the Appellant's false statements are not peripheral or of very limited value to a determination of general credibility. Given my findings, I find that the Appellant's credibility is undermined. [58] The Appellant's arguments included that the RPD erred by failing to consider his XXXX years of education and young age. The Appellant has not provided specific examples as to where the RPD failed to consider these factors. For the most part, I do not agree that the RPD failed to consider the Appellant's age and level of education. Though these factors are not specifically mentioned in the RPD's reasons, there are several examples from the hearing where the RPD demonstrated patience and sensitivity to the Appellant's age and level of education, such as by repeating and rephrasing questions,53 and accepting his answers that he had not understood after an inconsistency was put to him.54 [59] However, I do find that the RPD erred in failing to consider the Appellant's age and level of education when assessing his lack of documents to establish his travel from Somalia. The Appellant's allegations are that he travelled from Somalia to XXXX then back to Somalia, all on the advice of a smuggler. The RPD reasoned that the Appellant would have had tickets and boarding passes issued to him for his air travel. The Appellant testified the smuggler kept all the documents. Here, I find the RPD failed to consider the Appellant's XXXX years of education and age of XXXX at the time. The Appellant had likely never travelled abroad before this, travelled with the smuggler, and was vulnerable and reliant on the smuggler. Therefore, I do not find that a negative credibility inference was warranted due to the Appellant's failure to provide travel documents. The Appellant's witness [60] I find some of the Appellant's arguments have merit. Although I find the RPD erred by failing to evaluate the witness's evidence with the other credible evidence, overall I find the RPD did not err in its assessment of the witness's testimony. Having conducted my own independent assessment, I share the RPD's concerns with the witness's testimony. The Appellant and the witness allegedly only knew each other in Somalia from XXXX 2015 to XXXX 2016, then had no contact until they met in Canada in XXXX 2018. Therefore, the witness cannot attest to the Appellant's whereabouts for a period of over two years. Further, the witness's knowledge about the Appellant was obtained from the Appellant. When asked how he knew the Appellant was born in Somalia, the witness testified the Appellant told him. When asked how he knew that the Appellant was only a citizen of Somalia, the witness testified "[h]e speaks Somali and he said that he lived in XXXX."55 I find these to be insufficient in establishing the Appellant's identity, on a balance of probabilities. [61] Despite these concerns, the Appellant and witness testified consistently, for the most part. Although the Appellant argues that the witness was found credible by the RPD when his refugee claim was accepted, an RPD panel's finding that a claimant is credible in their own claim is not binding on another RPD (or RAD) panel assessing a witness's credibility in another matter. Therefore, after assessing the totality of the witness's evidence, I agree with the Appellant that the witness's testimony merits some weight, rather than the RPD's minimal or little weight, and ought to be evaluated with the other credible evidence, which I have done below. The practical difference in this case, however, is negligible. The extra weight awarded is not enough to overcome the other problems with the Appellant's evidence. Affidavits and identity documents of Appellant's father, XXXX XXXX, and XXXX XXXX XXXX [62] Given the Appellant's allegations that his father was scammed with respect to his first affidavit, and given my findings above regarding the inclusion of false statements in the affidavits of the Appellant's father and XXXX XXXX, I find these affidavits are entitled to no weight. I dismiss the Appellant's arguments as Ms. XXXX does not state her knowledge about the Appellant's nationality, or that of his father's; instead stating that the Appellant is of "Somali origin." She also states that she is of Somali origin and provided a copy of her Canadian passport showing her Canadian citizenship, which suggests to me that she understands the difference between origin and citizenship. I dismiss the Appellant's argument that the RPD failed to consider that the XXXX XXXX XXXX XXXX XXXX XXXX found her evidence credible, as it is the Board's responsibility to conduct credibility assessments, and given the false statement in her affidavit, I have not found her evidence to be credible. [63] In XXXX XXXX XXXX's affidavit, she affirms that the Appellant is of "Somali origin;" however, she does not state her knowledge about the Appellant's nationality. She affirms she visited the Appellant at Ms. XXXX's home; however, Ms. XXXX's affidavit contains the false statement that she provided the Appellant accommodations before he even arrived in Canada, and therefore, I do not find this to be reliable. For this reason, I also dismiss the Appellant's argument pertaining to the credibility assessment done by the XXXX XXXX XXXX XXXX XXXX XXXX, as it is the Board's responsibility to conduct credibility assessments, and given the concerns already identified, I do not find Ms. XXXX's evidence to be credible. The RPD found there was insufficient information to establish Ms. XXXX personally knew the Appellant in Somalia as he was born in XXXX and she became a Canadian citizen in XXXX. I agree with the RPD as it appears she never met the claimant in Somalia. The Appellant argues her affidavit is probative as it established the existence of the Appellant's family and if the Appellant's father is Somali, then the Appellant is Somali. I find there is insufficient evidence upon which I can determine this affidavit establishes the Appellant's father's nationality as Somali, as Ms. XXXX does not state her knowledge about the Appellant's father's nationality. Moreover, even if the Appellant's father's nationality could be established with her affidavit, I concur with the RPD that it does not preclude the Appellant from having obtained the citizenship of another country. Therefore, for these reasons, I find this affidavit is entitled to no weight. [64] In his Memorandum of Appeal, the Appellant argues that according to Somali nationality law, he is a citizen of Somalia by virtue of his father's Somali citizenship. I reject this argument for two reasons. First, there is insufficient evidence to establish that the Appellant's father has Somali citizenship. As stated above, I assigned no weight to the copy of the Appellant's father's passport. Secondly, as mentioned, even if the Appellant's father's nationality could be established, it does not preclude the Appellant from having obtained the citizenship of another country. Although the Appellant argued there is no evidence he has any other nationality, since he made that argument new evidence was received that raised serious concerns about his credibility as it relates to his identity. Therefore, I find the Appellant's arguments about his father's alleged Somali citizenship are without merit. Letters from the XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX [65] I am persuaded by the Appellant's arguments that the RPD erred in its assessment of the weight assigned to these two letters, as well as the weight assigned to the Appellant's ability to speak Somali and his knowledge about Somali heritage and culture, in determining his identity. Although I agree with most of the RPD's assessment, insofar as these letters and factors do not establish the Appellant's identity, on a balance of probabilities, I find they are deserving of some weight in my overall assessment. Photograph with father at Lido Beach [66] The Appellant provided a photograph, which he testified is of him and his father at Lido Beach in XXXX.56 I find the RPD erred by not assessing the photograph. Although the photograph is undated, having considered the Appellant's level of education, age, and the difficulty in obtaining documents from Somalia, and given that the photograph appears to show the Appellant in Somalia, I find it merits some weight towards establishing his identity. Conclusion on identity [67] I agree with the Appellant that the RPD erred by failing to consider each element of the evidence together, which I have done below. However, I do not find that the RPD imposed a higher standard for his identity to be established. I find the RPD treated each piece of his evidence fairly, reasonably, and correctly, and it is only in the weighing of the totality of the evidence where the RPD erred. [68] I also reject the Appellant's argument that the RPD erred in failing to properly consider the benefit of the doubt when assessing his credibility because there were no valid reasons to doubt the truthfulness of his evidence. Given my findings above, I find this argument is moot, as there are valid reasons to doubt the truthfulness of the Appellant's evidence. [69] Based on all of the above findings, the totality of the evidence, consideration of the Appellant's age and level of education, and the weighing of evidence that support the Appellant's identity and evidence that detracts from his credibility, I find, that the Appellant has failed to establish his identity, on a balance of probabilities. While there is some evidence that supports his identity, I do not find it is enough, even cumulatively, to overcome the negative findings. I do not know who the Appellant is, where he has been, and what countries he may be a citizen of. [70] Therefore, as the Appellant's identity has not been established, I do not need to continue to assess his risk in Somalia. I find the RPD also did not err in this regard. CONCLUSION [71] For the above reasons and after conducting its own analysis of the record, the RAD finds that the RPD did not err in rejecting the Appellant's claim. The RAD finds that the Appellant has not established his identity on a balance of probabilities. As a result, the RAD finds that he has not established that he faces more than a mere possibility of persecution as per section 96, or that he faces harm, on a balance of probabilities, under section 97 of the IRPA. Therefore, the RPD's final determination that the Appellant is not a Convention refugee nor a person in need of protection is correct, and this appeal is dismissed. [72] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) Inderpreet K. Singh I. Singh January 18, 2021 Date 1 Exhibit M-1, Notice of intervention and intervention record, April 2, 2019. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 3 Exhibit P-3, Rule 29 Application, November 7, 2018; Exhibit P-3, Rule 29 Application, December 7, 2018. 4 Rule 29, Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 5 Exhibit P-3, Rule 29 Application, November 7, 2018, at p. 14. 6 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 7 Ibid., at ss. 110(3)-(4), 171(a.4)-(a.5). 8 Ibid., at ss. 171(a.3). 9 Exhibit M-1, Notice of intervention and intervention record, April 2, 2019; Exhibit M-2, Minister's additional submissions, October 19, 2020. 10 Exhibit M-1, Notice of intervention and intervention record, April 2, 2019: Minister's intervention record, at p. 5. 11 Ibid., at p. 6. 12 Ibid., at p. 8. 13 Exhibit M-2, Minister's additional submissions, October 19, 2020, at p. 2. 14 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 71; Exhibit RPD-1, RPD Record, Exhibit 8, at p. 84. 15 Exhibit P-5, Appellant's reply to Minister's new evidence, October 7, 2020. 16 Exhibit P-6, Appellant's reply to Minister's new evidence, November 6, 2020. 17 Exhibit P-7, Appellant's additional reply to Minister's new evidence, November 26, 2020. 18 IRPA, supra, footnote 6, at s. 110(6). 19 Takhar v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 7544 (FC) at para. 14; Lubana v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116 (CanLII), at para. 11. 20 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 71. 21 Ibid., at p. 75. 22 Takhar, supra, footnote 19, at para. 14. 23 Lubana, supra, footnote 19, at para. 11. 24 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 35. 25 Lubana , supra, footnote 19, at para. 11. 26 Ibid., at para. 18(c). 27 Elazi v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 14891 (FC), at para. 17. 28 Exhibit P-5, Appellant's reply to Minister's new evidence, October 7, 2020 at p. 1. 29 Ibid., at p. 6. 30 "Clearview AI to end facial-recognition services in Canada: privacy commissioner," https://www.msn.com/en-ca/news/canada/clearview-ai-to-end-facial-recognition-services-in-canada-privacy-commissioner/ar-BB16pgvc, Published and Last Updated Monday, July 6, 2020. 31 Exhibit P-5, Appellant's reply to Minister's new evidence, October 7, 2020; Exhibit P-6, Appellant's reply to Minister's new evidence, November 6, 2020. 32 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 71; Exhibit RPD-1, RPD Record, Exhibit 8, at p. 84. 33 Exhibit P-7, Appellant's additional reply to Minister's new evidence, November 26, 2020, at p. 1. 34 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 71. 35 Exhibit P-7, Appellant's additional reply to Minister's new evidence, November 26, 2020, at p. 7. 36 Ibid. 37 Exhibit M-2, Minister's additional submissions, October 19, 2020. 38 Exhibit P-7, Appellant's additional reply to Minister's new evidence, November 26, 2020, at pp. 5-6. 39 Republic of Kenya Ministry of Foreign Affairs, publically accessible information at https://www.mfa.go.ke/, Copyright 2018. 40 Jiang v. Canada (Citizenship and Immigration), 2018 FC 1064 (CanLII). 41 Konare v. Canada (Citizenship and Immigration), 2016 FC 985 (CanLII). 42 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Somalia (April 30, 2018), item 3.6: Possibility for people outside the country without identity documents to establish their Somali nationality, in particular, those who have left Somalia since 1991; fraudulent identity documents (2012-July 2013), Immigration and Regugee Board of Canada (IRB), Response to Information Request (RIR) SOM104487.FE, 15 July 2013. 43 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 71; Exhibit RPD-1, RPD Record, Exhibit 8, at p. 84. 44 Exhibit P-7, Appellant's additional reply to Minister's new evidence, November 26, 2020. 45 Ibid, at pp. 9-10. 46 NDP for Somalia (April 30, 2018), item 3.11: ?Identification documents, including national identity cards, passports, driver's licenses, and any other document required to access government services; information on the issuing agencies and the requirements to obtain documents (2013-July 2015), IRB, RIR SOM105248.E, 17 March 2016. 47 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 24. 48 Ibid, at p. 39. 49 NDP for Somalia (March 31, 2020), item 3.23: ?Passport: Somalia. 50 NDP for Somalia (April 30, 2018), item 3.11, supra, footnote 46. 51 Ibid. 52 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 73. 53 Transcript of June 4, 2018 RPD Hearing, at p. 27. 54 Ibid., at p. 28. 55 Ibid., at p. 17. 56 Transcript of June 4, 2018 RPD Hearing, at p. 34. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-16757 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français