VC0-03138

RAD File / Dossier de la SAR : VC0-03138 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 February 17, 2021 Date de la décision Panel Linda Hart Tribunal Counsel for the person who is the subject of the appeal Leonardo Aniceto Conseil de la personne en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Appellant) is a citizen of Somalia. He is a minor and a Designated Representative has been appointed on his behalf. His claim for refugee protection, based on his fear of Al-Shabaab and domestic violence, was rejected by the Refugee Protection Division (RPD). The Appellant argues that the RPD erred in assessing his claim and asks the Refugee Appeal Division (RAD) to allow his appeal and determine that he is a Convention refugees. Alternatively, the Appellant requests that the matter be returned to the RPD for redetermination. DETERMINATION [2] I allow this appeal and substitute my own determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant alleged before the RPD that he fled to Ethiopia when he was eight or nine years old because he was afraid of being recruited by the Al-Shabaab after his childhood friend was kidnapped and murdered. When he was about twelve years old, he re-connected with his mother and eventually returned to his hometown. In 2019, after his brother was shot by his stepfather, the Appellant left home and sought help from his uncle, who took him to Mogadishu. The Appellant feared that his stepfather could find him in Mogadishu, so he fled to Jigjiga, Ethiopia. There he met a smuggler who arranged for him to travel to the USA. He stayed in the USA for about two weeks doing household chores for his smuggler. The Appellant felt unsafe living there because the smuggler had made sexual advances. He ran away from the smuggler and found a truck driver in a coffee shop who brought him to Winnipeg. The Appellant arrived in Canada on XXXX XXXX XXXX 2019 and made his claim for refugee protection as an unaccompanied minor. [4] The Appellant's claim for refugee protection was heard by the RPD on August 25, 2020. In a written decision dated September 16, 2020, the RPD found that the Appellant had not credibly established his identity. [5] The Appellant argues that the RPD erred in its assessment of his identity and credibility and that it is unreasonable to expect a minor to live on his own in Somalia. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [6] As provided for in subsection 110(3) of the Immigration and Refugee Appeal Act (IRPA), with certain exceptions, the RAD must proceed without a hearing on the basis of the record of the proceedings of the RPD, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal. Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim, or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The Appellant asks that an affidavit from his social worker Edel Barrera, who is also his Designated Representative, be allowed into evidence. Attached to the affidavit are copies of the emails between Mr. XXXX and the XXXX XXXX. The Appellant submits that this affidavit provides an update to the social worker's efforts to find his family. [8] I will allow the affidavit and emails into evidence. They postdate the rejection of the claim and are relevant to his identity. ANALYSIS Identity [9] The RPD found that the determinative issue in the claim was identity. The RPD found that the Appellant had not established his identity as he did not provide acceptable documentation or sufficient other credible evidence to establish his identity on a balance of probabilities. The RPD found that the Appellant had not provided a reasonable explanation for the lack of documentation and did not demonstrate that he had taken reasonable steps to obtain documentation to establish his identity. [10] The RPD considered that the Appellant is a minor but noted that he had a Designated Representative and competent counsel. The RPD noted that it was aware that children are not able to present evidence with the same degree of precision as adults with respect to context, timing, importance, and details. The RPD found that despite his youth, the Appellant's testimony was clear and coherent, and that he was able to recall traumatic events from the past. However, the RPD found that his testimony regarding his lack of effort to contact his family was not reasonably explained. The RPD considered the Appellant's testimony that all of his contact information had been taken away by the smuggler, but noted that he had been able to contact his mother while he was in Ethiopia when he was very young and that he had spoken to his father by FaceTime many times in the past. The RPD considered country conditions documentary evidence that there is telephone access, cell phone access and Internet access in Somalia and found that the Appellant's testimony that his family does not have access to the Internet and social media made no sense. The RPD additionally considered that the Appellant's uncle in Mogadishu had been helpful in the past and that the Appellant did not provide a reasonable explanation for not trying to reach out to him. [11] The RPD noted that the Designated Representative had contacted international agencies, but found that this was not enough since the Appellant had provided no reliable evidence that he took reasonable steps to contact his family who could have helped to establish his identity. [12] The RPD found that there were significant omissions from the Appellant's testimony regarding his entry into the USA, the time he spent there, and how he came to Canada. The RPD also noted that the Appellant was able to provide a timeline of events in his past but did not remember the approximate time in 2019 that his brother was shot. The Appellant also did not remember when he left Addis Ababa after fleeing to Ethiopia in 2019. The RPD considered that though the Appellant had suffered traumatic events in the past when he was eight years old, he was still able to remember the sequence of events and a general timeline. [13] The Appellant argues that he provided evidence independent of his testimony. He submits that his social worker, Mr.XXXX XXXX, testified at the hearing and recognizes his identity. He submits that Mr. XXXX provided letters stating the Appellant is a child in care of the XXXX XXXX XXXX XXXX XXXX, and that he is in constant contact with the Appellant. The Appellant submits that the RPD should have asked Mr. XXXX more details about his identity. He submits that the Chairperson's Guideline on Child Refugee Claimants states that alternative evidence may be considered, including evidence from members of the child's community, social workers who have dealt with the child, and documentary evidence regarding persons similarly situated to the child. [14] The Appellant argues that he provided a letter from his community, written by the Manitoba Somali Association and that the RPD erred by giving this letter little weight on the issue of his identity. He submits that the RPD has accepted this kind of evidence in other claims and there is no reason why he would have lied to his association. He submits that this letter is objective evidence that supports and complements the other evidence regarding his identity. He submits that he also provided documentation from the school he attends in Canada and that the RPD erred by not questioning him about how he was enrolled in the school. He submits that his social worker was present at the hearing and could have been asked about how his identity was established when he was enrolled in school. [15] The Appellant submits that he is being assisted by a social worker to find his relatives in Somalia but has not been successful. [16] The Appellant argues that the RPD did not find him to be untruthful but stated that it felt it was he was holding back information. He submits that he replied that he was telling the truth and that there is nothing in his testimony that was contradictory. He argues that the RPD focused on his recollection of dates and that testing his memory is not enough to say he is untruthful. He submits that the Guideline states that when assessing the evidence presented in the claim of the child refugee claimant, the panel may encounter gaps in the evidence and should consider whether it is able to infer details of the claim from the evidence presented. He submits that he tried his best to be truthful to the RPD. [17] I have considered the Appellant's testimony, his supporting documentation, and his personal circumstances. I am furthermore guided by the Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, as the Appellant is a minor. I find that the RPD erred in concluding that the Appellant had not established his identity on a balance of probabilities. [18] I find that the RPD erred by assigning little weight to the support letter written by the XXXX XXXX XXXX. The RPD found that the letter did not establish the Appellant's identity, as it did not give specific evidence regarding the questions that were asked and the answers received which led the organization to assert that the Appellant was a Somali national. However, I note that the letter specifically states that the Appellant was interviewed about his family and clan background and the town he lived in. His Somali language proficiency was reviewed, and his Somali dialect was assessed regarding the area he comes from. The Appellant was asked about the city he lived in, including specific features and landmarks, and the location of his home and distance from the important landmarks. The organization then interviewed members of the XXXX XXXX XXXX who also originated from that town. Based on the Appellant's testimony at his interview with the Association, and the assessment of the committee, it was determined that the Appellant is a member of the Gurgure minority group and is a citizen of Somalia. I do not agree with the RPD that the letter does not provide sufficient information regarding how the Appellant's identity was assessed by the organization. I find that the letter from the Manitoba Somali Association is probative in establishing the Appellant's Somali identity. [19] I have additionally considered that attempts were made through international organizations to find the Appellant's family and that these efforts were not successful. I have considered the RPD's finding that the Appellant did not make sufficient efforts to contact his family. The Appellant did provide an explanation for his inability to contact family which was that the smuggler who brought him to the US confiscated all his documents, including the contact information he had for his family. The RPD believed that the Appellant could have made more efforts through the Internet to find ways to contact his family. The RPD noted that the Appellant had an uncle in Mogadishu, had Face Timed with his birth father while in Somalia, and had been able to contact his mother while he was living in Ethiopia between the ages of 8 and 12. [20] I find that the RPD did not consider the Appellant's evidence that during the 4 years he was in Ethiopia he never contacted his family until someone from his village recognized him in Addis Ababa and arranged for contact with his mother. The RPD also did not consider his testimony that he did have contact with his birth father when he returned to Somalia from Ethiopia but that this was arranged by his mother. It is unclear how this was done. Furthermore, I note that, although the Appellant was able to look after himself in ways that one would not expect a child to, it remains that he only has two years of formal education and at the time of the hearing could not read. He stated that he taught himself the letters of the alphabet, but that was all. I also find that the RPD did not consider the Appellant's psychological state as a child who had been through several traumatic experiences during his very short life. I find that the RPD had expectations about the Appellant's ability to seek out his family that were not based on the reality of his particular circumstances. The Appellant relied on the designated representative, who was also his social worker, to make inquiries through international organizations about his family. He provided evidence of this and that his efforts were unsuccessful. [21] I have considered the RPD's statement in the decision that if the Appellant's testimony had been credible, he could have established his identity without documents. The RPD found that the Appellant was not credible because there were serious omissions from his testimony regarding the reasons he did not try to contact his family in Somalia, when he left Somalia, his entry into and time in the US, and how he came to Canada. The RPD took a negative credibility inference from the Appellant's inability to state when in 2019 his brother was shot by his stepfather. The RPD rejected his explanation that he did not remember because he did not go to school, as he had provided a timeline of events for the rest of his story. The RPD was concerned that the Appellant could clearly identify that he arrived in Canada on XXXX XXXX XXXX 2019 but was not aware of any other dates. [22] I have reviewed the Appellant's testimony and I do not agree with the RPD that the Appellant's inability to be specific about dates and recent timelines caused him not to be a credible witness. I find that throughout his testimony and in all the documentation he provided, the Appellant provided consistent evidence about what occurred in his life. I find that this evidence goes to the heart of his claim and that his inability to provide specific timelines is reasonable given his personal circumstances which include his age, a lack of education, and his recent experience of very traumatic events. I find that the RPD erred in rejecting all of the Appellant's evidence because of issues with timelines and by finding that he was not a credible witness. [23] Having reviewed all the evidence and the findings earlier noted in these reasons, I find that the Appellant has established, on a balance of probabilities, that he is a citizen of Somalia. Merits of the Claim [24] The RPD did not consider the merits of the Appellant's claim given its finding that he had not established his identity. [25] The Appellant argues that he had to leave home because of fear of being recruited by Al-Shabaab, and that when he was convinced to go back home, his stepfather shot his brother causing him to fear for his life. He submits that the domestic violence in his family was such that it was not safe to remain at home. He submits that he did not believe it was safe to live with his uncle in Mogadishu. He submits that if he were returned to Somalia it is likely that he does not have a safe place to stay and he cannot be with his uncle as he can be traced there by his stepfather. He argues that it is unreasonable to expect a minor to live on his own in Somalia and support himself. [26] I have reviewed the record and have considered that the Appellant was consistent in his allegations throughout the RPD process. He was questioned at the hearing about why he believed he was in danger of being shot by his stepfather and he replied that this man had told him that he would kill him, and had already tried to kill his brother who was now in a coma. He testified that his uncle spoke to his mother who said that the Appellant should not return to the family home. He also testified that his mother was a victim of abuse from the same person. The Appellant was asked why he did not remain in Mogadishu with his uncle and he replied that there were two reasons which were that his stepfather could find him in Mogadishu and that his uncle was poor and could not keep him there. He stated that he did not know where his mother was currently and believed that she had escaped from her husband. Although he did not provide specific dates for any events, he did provide detailed information at the hearing and in his Basis Of Claim (BOC) about events in Somalia, Ethiopia, the USA, and Canada. The Appellant stated in his BOC that if he went back to Somalia, he fears his stepfather would harm him and fears he would be recruited and forced to join Al-Shabaab. [27] I have considered the country conditions documentary evidence and note that it is stated that more than two decades of poverty, marginalization, armed violence, insecurity, political instability, natural hazards and disasters and lack of development have greatly impacted children in Somalia. It is noted that children in Somalia are increasingly vulnerable to all forms of violence, abuse, and exploitation, much of which is practiced in a climate of impunity, conflict, and instability. The scale and nature of grave violations against children has increased since 2015. Children continue to be recruited and used in the conflict primarily by Al-Shabaab and other militias. Children are executed publicly by Al-Shabaab, both as punishment for suspected spying and to instill fear in the civilian population. Displaced children are subjected to sexual and gender-based violence, as well as forced recruitment and abductions. Furthermore, Somalia is a source, transit and destination country for men, women and children who are subjected to forced labour and sex trafficking. Displaced persons, and those working in the informal economy, particularly children, are extremely vulnerable to trafficking.1 [28] I have conducted an independent assessment of the evidence. I have considered the Appellant's personal circumstances along with the country conditions documentary evidence. I find that there is a serious possibility that he would be persecuted in Somalia either at the hands of his stepfather or Al-Shabaab, or by traffickers. I find that adequate state protection is not available to the Appellant and that he does not have a viable internal flight alternative within Somalia. CONCLUSION [29] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) Linda Hart Linda Hart February 17, 2021 Date 1 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Somalia, version 31 March 2020, item 5.7: Somali Country Report: Children and Security. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-03138 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