TB8-01752

RAD File / Dossier de la SAR : TB8-01752 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 15, 2019 Date de la décision Panel T. Card Tribunal Counsel for the person(s) who is(are) the subject of the appeal Micheal Crane Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the "Appellant") is alleging to be a citizen of Somalia and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] The appeal is dismissed. BACKGROUND [3] The Appellant alleges that he is a citizen of Somalia. The Appellant allowed a XXXX-XXXX XXXX XXXX XXXX XXXX to store XXXX and XXXX in his warehouse in XXXX 2016 in XXXX. [4] On XXXX XXXX 2016, the Appellant received threats from Al-Shabaab about the storage of the XXXX XXXX, as the products were sold in the name of Christianity and thus poisonous. Two weeks later, a group of men came from Al-Shabaab and attacked the Appellant and his family. The Appellant's two brothers and a family friend were killed. The Appellant fled to Mogadishu from XXXX with his family. [5] The Appellant's uncle sold the warehouse and sent the proceeds to the Appellant. The Appellant's wife, children and mother then went to Kenya on XXXX XXXX 2016, while the Appellant, using a smuggler, went to Canada, arriving on XXXX XXXX 2016. [6] The Appellant made his refugee claim, but was refused by the RPD on the basis he had not established his identity. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [7] In support of this appeal, the Appellant proposed the admission of the following documents as new evidence: a. An Affidavit and accompanying Canadian refugee claim documents for XXXX.1 [8] S.110(4) of the Immigration and Refugee Protection Act (IRPA) provides that the Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected2 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of s.110(4) and how that evidence relates to the Appellant.3 [9] In addition, if the new evidence meets one of the explicit legislative factors in s.110(4), then the second step of the analysis is for the Refugee Appeal Division (RAD) to apply the adapted Raza factors endorsed in Singh.4 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for s.110(6) and the request for an oral hearing.5 Documents rejected [10] The Appellant has argued firstly that it was "reasonable...to put forward only one [witness] at the RPD".6 Whether the Appellant chooses to put forward only one witness or not is a matter of strategy for the Appellant. A RAD appeal is not meant as an opportunity to correct strategic mistakes made at the RPD stage, and regardless of whether or not the representative is the same or different between the RPD and RAD stages. This argument therefore has no merit in showing how the proposed documents meet the requirements of s.110(4) of the IRPA. [11] The Appellant also stated that he "learned that the witness had been accepted as a refugee only a short time before the hearing at the RPD because the witness moved to Ottawa and they lost contact for a few weeks [emphasis added] during which time the witness' appeal had been allowed by the RAD."7 [12] This argument is faulty for two reasons. Firstly, a witness's immigration status is not a prerequisite for being a witness in a case. Just because a witness is awaiting the outcome of a refugee application or appeal does not preclude them from being a witness. [13] Secondly, I note that the RAD decision was actually made on 25 April 2017, almost seven months before the RPD Hearing (10 November 2017) and decision (15 November 2017). This far exceeds the "few weeks" that the Appellant refers to losing contact with the Witness. I do not find the Appellant's submissions to be credible in this regard. [14] I also note that at no time ahead of the RPD hearing, nor during the hearing itself, was there any indication that the Appellant may wish to call XXXX as a witness, nor an adjournment request to try to locate him, despite plenty of opportunity to do so, and despite the difficulties the Appellant had in contacting his original witness by phone. [15] For these reasons, I do not accept that the Witness was not reasonably available, and do not accept that the Appellant could not reasonably have been expected in the circumstances to have presented the evidence at the time of the rejection. For these reasons, I find the proposed evidence does not meet the requirements of s.110(4) of the IRPA and reject it. NO ORAL HEARING [16] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s.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.8 [17] As no new evidence has been accepted, the requirements of s.110(6) of the IRPA have not been met, and an oral hearing cannot be held. ISSUES IN APPEAL [18] The Appellant argues the following issues in his appeal: a. The RPD erred in its assessment of the Appellant's evidence regarding identity and in its subsequent conclusion that the Appellant had not established his identity. b. The RPD erred in its treatment of the proposed witness's evidence. c. The RPD erred by drawing an adverse inference from the lack of evidence about the Appellant's journey to Canada. d. The RPD erred by giving no weight to the Somali Immigrant Aid Organization (SIAO) letter.9 e. The RPD erred by giving little weight to the affidavit from the Appellant's mother.10 f. The RPD erred by failing to adequately take into account the Appellant's knowledge of the Somali language and of Somali clans and culture when conducting its assessment. [19] I find that the determinative issue in this appeal is whether the Appellant has established his personal identity as a Somali citizen. RAD ANALYSIS [20] I have conducted an independent analysis of the evidence concerned, including reviewing the record of the RPD hearing, as well as considering the Appellant's Memorandum,11 the RPD Decision12 and the Appellant's Basis of Claim (BOC) Form and narrative.13 RPD did not err in its assessment of proposed witness's evidence [21] The Appellant provided evidence from a proposed witness at his RPD hearing, which included an affidavit14 from the proposed witness. The Appellant was asked a number of questions about the proposed witness by the RPD Member. The Appellant then attempted to call the proposed witness during the hearing, but was unable to get in contact, or get a message. At the time of the hearing, the proposed witness was in Edmonton. [22] The RPD noted that during his testimony, the Appellant stated that he and the proposed witness met in 2005, and would have been 24 years old at the time. The proposed witness would have been 21. The Appellant also stated that they met as adults and met once a week to play soccer. [23] The proposed witness in his affidavit stated that the Appellant was his "childhood friend"15 and that they saw each other daily. The RPD Member put these contradictions to the Appellant, who stated that he and the proposed witness actually met when they were young, and that the proposed witness was probably referring to that. [24] The RPD Member did not accept this explanation for the contradictions, and as the proposed witness could not be contacted, he was not available to explain the discrepancies either. The Appellant argued that the RPD Member erred by not accepting this explanation. [25] I find that the RPD Member did not err in the assessment of the contradictions. The Appellant effectively changed his testimony about when he first met the proposed witness, from being 2005 at age 24, to being when they were "very young". I concur with the RPD Member that this change in testimony adversely affects the Appellant's credibility. [26] I also find that the discrepancies are not minor ones, as what needs to be established is whether the Appellant and the proposed witness actually knew each other in Somalia. If basic details like when they first met and how they interacted in Somalia are not consistent, this creates credibility problems about the entire relationship. [27] Due to these credibility problems, I concur that there is in fact nothing left in the proposed witness's statement that can be relied on, and concur with the RPD's finding that the proposed witness's evidence be given no weight. RPD erred regarding evidence about the Appellant's journey to Canada [28] The RPD found the Appellant's evidence about details for his journey to Canada with the smuggler to be vague. The Appellant knew that a false Australian passport was being used, and that the name he was travelling under was "XXXX". However, the Appellant did not have further details such as the full false name, the date of birth in the passport and whether the photograph in the passport was one of him or not. [29] The Appellant explained that he was never handed the false passport and this was a major reason he did not have these particular details. The Appellant also argued that the lack of detail on this element of his claim was reasonably explained by this, and that the RPD erred by drawing a negative credibility finding against him. [30] I am concerned in relation to the lack of knowledge about whether or not the Appellant's photo was in the passport or not. The Appellant ought to know whether or not he got his picture taken and if it was then given to the smuggler. However, in relation to the other details the Appellant did not know, I find the Appellant's explanation to be reasonable. [31] I find that after analysing the evidence on this element of the Appellant's case, that the RPD Member erred by drawing an adverse credibility finding against the Appellant for his lack of knowledge about the specifics of his journey to Canada. That said, the explanation does not then provide positive evidence about his identity otherwise. SIAO letter carries little weight [32] The Appellant also stated that the RPD Member erred by placing no weight on the SIAO letter.16 The RPD Member noted that the letter gave little to nothing about how their 30-40 minute interview with the Appellant and the proposed witness led to the conclusion that the Appellant is Somali, and that the proposed witness was not available to give his version of events from meeting the SIAO. [33] As the standard of review to be applied is correctness, I find that the RPD was incorrect in providing no weight to the SIAO letter. That said, I share the RPD's concerns that the letter has very little detail about how they reached their conclusion, beyond conducting this interview. In making my assessment, I find the SIAO letter carries little weight, and that the weight it does carry is so miniscule as to be close to no weight, and is insufficient with the other evidence available to establish the Appellant's identity. Mother's affidavit carries little weight [34] The RPD Member also gave little weight to the Appellant's mother's affidavit17 as the contents were brief, simply a restatement of the Appellant's allegations, and the affiant was unavailable to provide additional details. [35] The Appellant argued that as the document was a sworn affidavit that should not be considered in isolation; it should be given more weight. The Appellant also argued that as the mother witnessed the threat from Al-Shabaab, it should also be given more weight. [36] I find that the RPD's reasoning about the amount of weight to be given to the mother's affidavit to be sound and correct. I concur with their findings. I find that the fact a statement is sworn adds little weight. It is the level of detail and content of a statement that is more important, and in this case, I concur that the content is brief and is little more than a restatement of the Appellant's account. This becomes all the more important when taking into account the Appellant's allegation that the mother witnessed Al-Shabaab's actions. In such a case, one would expect more detail than a mere recitation of the basic details of the Appellant's account. I find the RPD did not err in its assessment of its letter and uphold its finding. Knowledge of Somali or about Somalia does not confer citizenship [37] The Appellant also argued, citing Somali citizenship law,18 that his knowledge of the Somali language and traditions should be awarded more weight in establishing his claim that he is a Somali citizen. [38] I do not concur with the Appellant's arguments. Firstly, the section cited includes that Somali citizenship requires the person in question's father to also be a Somali citizen. This has not been established satisfactorily here. [39] Secondly, the RAD case cited states that Somali heritage is relevant for Somali citizenship. That may be true, but knowledge of Somali and its culture does not equate to therefore having Somali heritage. All of this can be learned. In short, knowledge of the Somali language, and about Somalia does not automatically equate to Somali citizenship. [40] The Appellant's knowledge can be taken into account in relation to his claim of being a Somali citizen, but having weighed this with the rest of the evidence available, and the adverse credibility findings arising from his proposed witness, I find that the total evidence available is insufficient to establish the Appellant's purported identity. CONCLUSION [41] After conducting my independent analysis of the entire record, I find that the RPD did not err in its overall finding that the Appellant has not established his identity, or its assessment of the Appellant's evidence. While I have some concerns over some elements of the RPD's decision, they were not fatal to its final determination that the Appellant has not established his identity and is neither a Convention refugee nor a person in need of protection. [42] Pursuant to s.111(1)(a) of the IRPA, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "T. Card" T. Card January 15, 2019 Date 1 Exhibit P-2, Appellant's Record, Pages 8-57. 2 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 3 Rule 3(3)(g)(iii), Immigration and Refugee Board of Canada, Refugee Appeal Division Rules, SOR/2012-257. 4 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 5 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 6 Exhibit P-2, Appellant's Record, Page 60, Paragraph 7. 7 Ibid. 8 S.110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA] 9 Exhibit RPD-1, RPD Record, Exhibit 6, Page 49. 10 Ibid., Exhibit 5, Page 46. 11 Exhibit P-2, Appellant's Record, Pages 59-83. 12 Ibid, Pages 2-7. 13 Exhibit RPD-1, RPD Record, Exhibit 2, Pages 9-21. 14 Ibid., Exhibit 4, Page 42. 15 Ibid., Page 42, Paragraph 3. 16 Exhibit RPD-1, RPD Record, Exhibit 6, Page 49. 17 Ibid., Exhibit 5, Page 46. 18 Exhibit P-2, Appellant's Record, Pages 78-79, Paragraphs 83-84. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-01752 RAD.25.02 (September 18, 2018) Disponible en français 9 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 (September 18, 2018) Disponible en français