TB9-34716

RAD File / Dossier de la SAR : TB9-34716 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 Ottawa, ON Appel instruit / entendu à Date of decision March 23, 2021 Date de la décision Panel Susan Brown Tribunal Counsel for the person who is the subject of the appeal Tina Hlimi Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister B. Sullivan Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant XXXX XXXX XXXX claims to be a citizen of Somalia who fears Al-Shabaab as a member of the minority XXXX clan. The Refugee Protection Division (RPD) found that the Appellant failed to establish his identity. [2] The Appellant submits that the RPD erred in finding that the Appellant did not establish his identity and in its assessment of his prospective risk in Somalia. [3] The Minister of Citizenship and Immigration (Minister) intervened and presented submissions and documents pursuant to section 110(3) of the IRPA. The Appellant presented reply submissions and an affidavit. [4] Following my independent assessment, I find that the RPD did not err when it found that the Appellant failed to establish his identity. DECISION [5] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. MINISTER'S INTERVENTION [6] The Minister's notice of intervention,1 documentary evidence package2 and intervention record3 were received on November 3, 2020. [7] The Minister relies on new documentary evidence and submits it is highly relevant as it presents an identity document, a Kenyan driving license, that the Appellant withheld from the RPD and establishes details on the identity of the Appellant and how he travelled to Canada, including information that contradicts his stated timeline of events. [8] The Appellant presented an affidavit and reply submissions4 to the Minister's intervention and record. SCOPE OF THE RAD REVIEW [9] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.5 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing the oral testimony heard, which in particular cases attracts a standard of review of reasonableness adapted to the RAD.6 Unless specifically stated below, I have applied the correctness standard. ANALYSIS [10] The RPD identified the determinative issue as identity and credibility and found that the Appellant failed to establish his identity on a balance of probabilities. [11] The Appellant did not submit any primary identification documents to support his Somali identity. The RPD considered the testimony of the Appellant and his witness, an identity letter from XXXX XXXX XXXX and letters from his co-worker at a XXXX in Nairobi, his mother and a paternal relative. The RPD referenced objective evidence about the difficulty obtaining primary identification documents and the prevalence of document fraud in Somalia. The RPD also took account of the Kenyan identity used by the Appellant to obtain a passport and to submit an application for a study permit, all of which the Appellant alleges are fraudulent. [12] The Appellant argues that the secondary identification documents were credible and convincing and, with the testimony of the Appellant and his witness, established his national and clan identity. [13] Following my review of the record, the transcript of the RPD hearing, the submissions of the Appellant, the documentary evidence and submissions of the Minister, and the reply affidavit and submissions of the Appellant, I find that the RPD did not err and that the Appellant did not establish, on a balance of probabilities, his personal identity and his identity as a citizen of Somalia. Difficulty obtaining documentation from Somalia [14] The objective evidence is clear:7 Somalia has not had a functioning state government since 1991, and large parts of the territory are under no actual central administration or governing. This means that Somalia's inhabitants have been unable to obtain official documents such as ID cards, passports or various certificates for the past 17 years. Witness [15] The witness gave affidavit and testamentary evidence that she first met the Appellant in XXXX 2015 and she saw him regularly until XXXX 2016 when purchasing vegetables in a market in Kismayo, Somalia. She reconnected with him in Nairobi, Kenya in XXXX 2017 when she went to a XXXX XXXX XXXX XXXX XXXX XXXX. She gave him her brother's telephone number so he could contact her in Canada and reconnected with him through her brother in XXXX 2019. [16] The witness gave the following evidence about the Appellant's Somali nationality: Appellant's testimony8 RPD: So, how do you know that XXXX was born in Somalia? Witness: I saw him in Somalia. If somebody's in Somalia who was born in Somalia, but I'm sure whether or not -- I don't know whether he was born in Somalia, but I think being a Somali in Somalia is a Somali. RPD: And how do you know --- Witness: I -- I don't -- I don't think anybody else who was not born in Kismayo would live in Kismayo. Life is very difficult. [17] The RPD found that while the evidence of a friend or relative can substitute for the lack of identity documents, the evidence offered by the witness is insufficient to establish the identity of the Appellant. The RPD cited the following reasons: the witness had no prior knowledge of the Appellant before meeting him in XXXX 2015-they are not related and were strangers; the fact of their meeting in Somalia during the period XXXX 2015 - XXXX 2016 does not establish that the Appellant is a citizen of Somalia; and the witness did not testify about her knowledge of the status of the Appellant. [18] The Appellant submits that the testimony of the Appellant and the witness was consistent and establishes the Somali identity of the Appellant. I do not agree. [19] Following my own review, I noted that there were inconsistencies between the witness's and the Appellant's evidence about their interactions in Kismayo and Nairobi and their reconnection in Canada: Appellant's testimony9 Witness testimony10 RPD: Did you have any other interactions with XXXX in Kismayo? Appellant: We used to meet a lot in Kismayo, and I also saw her where -- where I went to .... RPD: Where did you see her in Kismayo? Appellant: XXXX (ph). RPD: Okay. Where is that? Appellant: It is a small town in Kismayo. RPD: Did you go to her home? Appellant: I've seen the house where she lives, but I haven't gone in. RDP: Did you ever see him in other places in Kismayo? Witness: No Appellant's testimony11 Witness testimony12 Witness affidavit13 RPD: Okay, did you see her in Nairobi after you met her in 2017? Appellant: I used to see her. She used to come to -- to the XXXX, and we used to talk. RPD: And how often did you see him in Nairobi? Witness: And I never see him many times. It's only when I needed -- when I go to that XXXX, that's when I seen him.... I told him I'm going to Canada.... He told me, 'How can I get in touch with you?' And I told him that I don't have any Canadian number with me now, so I gave him my brother's number. We exchanged phone numbers and stayed in contact. I also gave XXXX my brother's Canadian number so that he could contact me once I was in Canada. Appellant's testimony14 Witness affidavit15 Appellant: When I first came to Canada, he's the one who I met first, and he's the one who assisted me. He connected me to social services. RPD: Did you have a -- did you have a --- Appellant: Oh, no, sorry. I -- I -- withdraw that statement. He connected me to -- to the girl -- to the sister. RPD: Oh, to [the witness]? I re-connected with XXXX through my brother in XXXX 2019, and I helped him go to the Somali community where he could obtain assistance to make his refugee claim. I have also invited XXXX to stay at our place with my sister and my cousin. [20] As these inconsistencies were not put to either the Appellant or the witness, they are not determinative, but they do support the finding of the RPD. I agree with the RPD that the relationship described between the witness and the Appellant and her lack of any basis for independently confirming his Somali nationality beyond seeing him in Kismayo from XXXX 2015 - XXXX 2016 is not sufficient to establish his identity. XXXX XXXX [21] The letter from the XXXX XXXX outlines its assessment process as follows: The assessment process consists of the administration of a Community Verification Assessment (CVA) which is written in the Somali language script, as well as an oral interview in the Somali language with the settlement counselor. Both exams are based on information about Somalia including its geography, history, heritage, sociopolitical and the current political situation, the individual's clan lineage and culture. The exams are subsequently assessed by a professional Somali settlement counselor who determines whether the individual's identity has been sufficiently established.16 [22] After reviewing the examination results of the Appellant, the XXXX XXXX confirmed that he is a national of Somalia: The XXXX XXXX can thus confirm that after reviewing the outcome of the examination results of MR XXXX XXXX XXXX XXXX DOB (XXXX XXXX XXXX XXXX XXXX) UCI XXXX that this claimant is a national of Somalia, that he belongs to minority XXXXsub-clan XXXX XXXX from the Somali clan structure.17 [23] The RPD gave minimal weight to the letter from the XXXX XXXX in establishing the identity of the Appellant. The RPD found that the ability to speak Somali does not in itself establish nationality and does not establish personal identity, nor does knowledge of the geography and the culture and customs, as information regarding regions, landmarks, and other information regarding Somalia is easily accessible on the internet. [24] The RPD also found that there was nothing in the XXXX XXXX letter to suggest that the information provided by the Appellant could only be provided by a citizen of Somalia or which would tip the balance in favour of establishing his identity as a citizen of Somalia, and the letter did not indicate how personal details such as the Appellant's name and date of birth were determined. [25] Following my own review of the XXXX XXXX letter, I noted two inconsistencies between the letter and the Appellant's BOC. First the XXXX XXXX misnamed the Appellant as XXXX XXXX XXXX instead of the name he listed in his BOC: XXXX XXXX XXXX. Secondly the XXXX XXXX said the Appellant belongs to the minority XXXX sub-clan XXXX XXXX from the Somali clan structure, whereas the Appellant identified his nationality, ethnic and racial group or tribe as XXXX XXXX XXXX XXXX in his BOC. As these inconsistencies were not put to the Appellant, they are not determinative. [26] The Appellant argues that the RPD erred in giving the letter from the XXXX XXXX minimum weight. The RPD did not take into consideration that the Appellant was provided an oral and written examination and just assumed that he could have memorized these details. The Appellant argues that there is nothing on the record to suggest that the Appellant would have memorized information about Somalia, or that he did do so, and that to assume this is wrong and suggests that the RPD was not impartial. [27] The Federal Court has found that a letter from the XXXX XXXX is not tendered to prove personal identity but rather as proof of Somali nationality and must be considered whether it supports the Appellant's identity as a Somali national.18 "This is particularly so in cases dealing with refugee claimants from countries where identity documents are often problematic and may not be readily available, or available at all."19 [28] I find that while the letter from the XXXX XXXX independently supports the Appellant's claim to Somali nationality, it was not determinative as it could not overcome the credibility issues raised by the Appellant's testimony, including his clan identity, the problems with the authenticity and content of the other supporting documents and the insufficient basis for the evidence of his witness. [29] According to the objective evidence, 6.2% or over 3 million of Kenya's population of approximately 48.4 million are ethnic Somalis and it shelters more than 300,000 Somali refugees as of April 2017.20 The Minister submitted a media article suggesting that the 2019 national statistics showing 2.7 million Kenyan Somalis is a gross underestimate.21 Appellant's testimony about Somali money [30] The RPD asked the Appellant what he got in exchange for XXXX XXXX XXXX XXXX XXXX XXXX XXXX:22 RPD: When you XXXX XXXX XXXX XXXX XXXX XXXX, what did you get in exchange for XXXX XXXX XXXX XXXX? APPELLANT: Given money. RPD: What kind of money? APPELLANT: Somali money. RPD: Was it cash? APPELLANT: Yes. RPD: Did you ever receive any other kind of payment? APPELLANT: No. RPD: What was the Somali money that you were given? APPELLANT: Somali -- Somali dollar. RPD: What is it called? APPELLANT: Somali money. [31] The RPD referenced objective evidence that the shilling is the currency used in Somalia.23 The RPD found that the Appellant would know the currency used in Somalia if the only form of payment he received was cash, which undermined his credibility. The RPD concluded that it was unlikely that the Appellant XXXX XXXX XXXX XXXX in Kismayo, which brings into question if he lived in Somalia. [32] The Appellant argues that in Somalia they call the money "Somali lacag" (direct tanslation: Somali money), which is what the Appellant testified to at the hearing. The Appellant argues that the RPD did not ask the Appellant what the currency was in Somalia and, if asked, the Appellant would have said it was the shilling. "Civilians in Somalia simply refer to money as 'Somali money' they don't specify the currency. The interpreter also directly interpreted what the Appellant stated, so it was interpreted as Somali money. The Appellant submits that according to the dictionary, 'lacag' means money, currency, cash. Hence, the Appellant's testimony was not wrong."24 The Appellant does not reference any objective evidence to support his argument. [33] I have reviewed both the transcript and the audio recording of the hearing.25 The RPD clearly asked him to identify the Somali money he was given and specifically asked what it was called. Following my review of the audio recording, I find that the Appellant answered the question differently when he replied "Somali dollar" than when he replied "Somali money." It is also clear from both the recording and the transcript that the interpretation of the answers was different. [34] I find that the RPD did not err when it found that the Appellant did not correctly identify the currency of Somalia and that this undermined the credibility of his claim that he worked in a market and lived in Somalia. Appellant's testimony about his clan [35] The Appellant gave the following evidence to the RPD about his clan:26 RPD: Okay, can you tell me about the XXXX clan? APPELLANT: They're -- they're, you know, a clan that is underrated by the Somalis. They -- we are discriminated our Somali -- the Somalis discriminate us. RPD: Okay. INTERPRETER: "As a Somali," sorry, I -- correction that. RPD: Why? Do you know why? APPELLANT: This has been going on for a long time, and so we are discriminated. We are not allowed to get married to -- to the other clans. RPD: And do you know why? APPELLANT: I don't know the reason why. It's a reason that nobody has told me. RPD: Do you know any other traditions or special holidays for the XXXX? APPELLANT: No, they don't. They only -- they share with other Somalis. They are famous for, pretty much, shoe repair. [36] When the Appellant's counsel asked him about the location of his clan in Somalia, the Appellant replied, "XXXX." His counsel asked if his clan could be found in other parts of Somalia, to which he replied, "...there are a few in many other areas [b]ut most of them are in XXXX XXXX." Appellant's counsel also asked if there were any in Kismayo and the Appellant replied no and that he did not meet any members of his clan in Kismayo. 27 [37] The RPD cited objective evidence that the XXXX clan are scattered in XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and Kismayo;28 that the Somali clan system shapes the social, political and economic life; and that clan affiliation is the main identity factor within the Somali nation.29 [38] Given the importance of clan affiliation in Somalia, the RPD made a negative credibility finding because the Appellant could not provide more details about his own clan and that he did not establish, on a balance of probabilities, that he is a member of the XXXX clan. [39] The Appellant argues that the RPD did not take into account that clan lineage is patrilineal and because the Appellant's father died when he was young, he did not learn about his claim, nor did it take into account that the Appellant left Somalia when he was only XXXX years old. The Appellant also argues that the RPD did not take into account an affidavit30 from his co-worker XXXX XXXX XXXX in Kenya confirming the Appellant's identity and clan identity. [40] While the XXXX XXXX letter does confirm the Appellant's clan membership it does not detail how it reached its conclusion. I find that the XXXX XXXX confirmation of the Appellant's clan membership does not carry much weight in light of the Appellant's very limited knowledge about his clan. I note that the evidence from his co-worker about the Appellant's clan membership is based on "what my mother narrated to me" without any explanation as to why his mother would be a reliable source of information. [41] I have considered the Appellant's arguments but given his sparse testimony reflecting little knowledge of his clan, that he did not connect with clan members in Kismayo and the objective evidence about the importance of clan identity in Somalia, I agree with the RPD that the Appellant did not establish, on a balance of probabilities, that he is a member of the XXXX clan. Supporting documents [42] The RPD addressed each of the corroborative documents presented by the Appellant. The RPD found that the affidavit from the Appellant's co-worker31 and the letter from his mother32 and a person who hosted him in 201133 did not establish the Appellant's identity. Given the availability of fraudulent documents in Somalia and the Appellant's admitted use of a fraudulent passport and study permit application, the RPD was not persuaded by the credibility of the supporting documents. [43] I note that this finding is bolstered by Minister's evidence that the Appellant failed to present to the RPD a primary identity document in his possession, a Kenyan driving licence,34 and the Appellant's admission that he "did not submit this document to the RPD because it is an improperly obtained document which does not establish [his] identity."35 [44] The Appellant argues that the RPD is suggesting that the supporting documents are fraudulent but there is nothing on the face of the documents to suggest that they are fraudulent. I disagree. I have undertaken my own review and note credibility issues on the face of the documents. [45] The co-worker contradicts his evidence in the first paragraph of his affidavit where he states that he is a Kenyan citizen and that his status is that of a permanent resident. There are no dates referenced in the affidavit, and his unnamed mother is identified as the source of much of his information. I agree with the RPD that the co-worker's affidavit does not credibly establish the Appellant's identity, his Somali nationality or his clan identity. [46] The credibility of affidavit of the Appellant's mother is adversely affected by the inconsistent evidence on the record about her name: BOC36 Immigration forms37 Witness38 Mother's Affidavit39 Translation of Mother's Affidavit40 XXXX Affidavit41 XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Appellant testified that the witness knew his mother's name42 XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [47] As the Appellant's mother did not provide any confirmation of her identity, I find, on a balance of probabilities, that her letter is not authentic and cannot, therefore, credibly establish the Appellant's identity, his Somali nationality or his clan identity. [48] There is insufficient information in the letter or about the identity of the author who hosted the Appellant in 2011 to assess its credibility. On its face it does not address the determinative issues of the Appellant's identity, his Somali nationality or his clan identity. CONCLUSION [49] For all these reasons, I find that the Appellant has not met his burden to establish, on a balance of probabilities, his personal identity and his identity as a citizen of Somalia. [50] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Susan Brown" Susan Brown March 23, 2021 Date 1 M-1, Minister's Record, pages 1 and 2, Minister's notice of intervention. 2 M-1, Minister's Record, pages 3-50, Minister's documentary evidence. 3 M-1, Minister's Record, pages 51-61, Minister's documentary evidence. 4 P-3, Appellant's Response to Minister's intervention. 5 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93 (CanLII). 6 Ibid., and X (Re), 2017 CanLII 33034 (CA IRB). 7 RPD-1, RPD Record, Exhibit 3, National Documentation Package for Somalia, 30 April 2019, tab 3.2: Documents in Somalia and Sudan. Norway. Norwegian Country of Origin Information Centre, Landinfo. 5 January 2009; tab 5.10: Country Marriage Pack. Somalia. Ireland. Refugee Documentation Centre, April 2015, page 8. 8 Transcript of hearing of November 14, 2021, page 19. 9 Transcript of hearing of November 14, 2021, page 8. 10 Transcript of hearing of November 14, 2021, page 17. 11 Transcript of hearing of November 14, 2021, pages 10 and 11. 12 Transcript of hearing of November 14, 2021, page 17. 13 RPD-1, RPD Record, page 159, Exhibit 6, para. 6. 14 Transcript of hearing of November 14, 2021, page 12. 15 RPD-1, RPD Record, page 159, Exhibit 6, para. 7. 16 RPD-1, RPD Record, page 162, Exhibit 6. 17 RPD-1, RPD Record, page 162, Exhibit 6. 18 Mohamed v. Canada (Citizenship and Immigration), 2020 FC 186 (CanLII), para. 55. 19 Warsame v. Canada (Immigration, Refugees and Citizenship), 2019 FC 118 (CanLII), para. 18. 20 RPD-1, RPD Record, Exhibit 4, National Documentation Package for Kenya, 29 March 2019, tab 1.3: Kenya. The World Factbook. United States. Central Intelligence Agency. 23 January 2019, pages 3 and 19. 21 M-1, Minister's Record, pages 48-50. 22 Transcript of hearing of November 14, 2021, pages 26 and 27. 23 RPD-1, RPD Record, Exhibit 3, National Documentation Package for Somalia, 30 April 2019, tab 1.5: Somalia. The World Factbook. United States. Central Intelligence Agency. 27 February 2019, page 12. 24 P-2, Appellant's Record, page 56, Appellant's Memorandum, para. 24. 25 Audio recording of hearing of November 14, 2021, 1:17:41-1:18:40. 26 Transcript of hearing of November 14, 2021, pages 29 and 30. 27 Transcript of hearing of November 14, 2021, pages 33 and 34. 28 RPD-1, RPD Record, Exhibit 3, National Documentation Package for Somalia, 30 April 2019, tab 13.12: Annex C - Somalia clan structure; Annex D - Main minority groups. Somalia. Country of Origin Report. United Kingdom. Home Office. 8 May 2007. 29 Ibid. tab 1.11: UNHCR Position on Returns to Southern and Central Somalia (Update I). United Nations High Commissioner for Refugees. May 2016; and tab 13.29: Country Policy and Information Note. Somalia: Majority clans and minority groups in south and central Somalia. Version 3 .0. United Kingdom. Home Office. January 2019. 30 RPD-1, RPD Record, page 163, Exhibit 6. 31 RPD-1, RPD Record, page 163, Exhibit 6. 32 RPD-1, RPD Record, page 166, Exhibit 7. 33 RPD-1, RPD Record, page 168, Exhibit 7. 34 M-1, Minister's Record, page 7. 35 P-3, Appellant's Response, page 5, para. 16. 36 RPD-1, RPD Record, page 18, Exhibit 2, BOC. 37 RPD-1, RPD Record, page 36, Exhibit 1, Schedule A. 38 RPD-1, RPD Record, page 159, Exhibit 6. 39 RPD-1, RPD Record, page 167, Exhibit 7. 40 RPD-1, RPD Record, page 166, Exhibit 7. 41 RPD-1, RPD Record, page 168, Exhibit 8. 42 Transcript of hearing of November 14, 2020, page 12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-34716 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