TB8-17250

RAD File / Dossier de la SAR : TB8-17250 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 25, 2020 Date de la décision Panel T. Card Tribunal Counsel for the person who is the subject of the appeal Max Berger Conseil de la personne en cause Designated representative N/A 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 and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] The Appeal is allowed. BACKGROUND AND ALLEGATIONS [3] The Appellant is a citizen of Somalia. The RPD found that the Appellant established his identity including being a Somali citizen of the majority Dir clan. [4] The Appellant and his family were threatened by the landlords of their home in Mogadishu for non-payment of rent. The landlords were from the majority Abgal (or Abgaal) clan. [5] The Appellant eventually left Somalia and lived in Kenya, South Africa and the United States (US) for periods of time. The Appellant made a refugee claim in the US which was refused. [6] After the US refusal, the Appellant went to Canada where he made his refugee claim. The RPD refused the Appellant's claim on the basis that he was not credible, did not face a serious possibility of persecution as a majority clan member, and did not face a residual risk of persecution from Al-Shabaab. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [7] In support of this appeal, the Appellant proposed the admission of affidavits from his sisters1 as new evidence. [8] S.110(4) of the Immigration and Refugee Protection Act (IRPA)2 provides that the Appellants 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 expected3 in the circumstances to have presented, at the time of the rejection. It is for the Appellants 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 Appellants.4 [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.5 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. Affidavits rejected [10] The affidavits provided all come from the Appellant's sisters who are confirming that they married men in the Dir clan, rather than the Abgal clan. [11] The Appellant during testimony had stated that his sisters had married into the Abgal clan but in fact had said so by mistake due to pressure in the hearing room. [12] I note that there were nine days between the hearing on 16 April and decision on 25 April 2018 for which the Appellant could have applied for the affidavits. I note that no notification to the RPD was made indicating that the Appellant wanted more time to get these affidavits ahead of the decision. I can find no reason that the Appellant could not have made this application. [13] The Appellant was aware of the mistake that he made during the hearing. Therefore, I find that he is not a person who could not have reasonably been expected to have presented the evidence at the time of the rejection. [14] The only argument made about how the affidavits meet the requirements of s.110(4) of the IRPA was that the Appellant "could not have anticipated that he would cave under the pressure of the hearing room..."6 I find this does not address the requirements of s.110(4), as what is to be examined is whether an Appellant could reasonably have been expected to present the evidence ahead of the RPD decision, not the RPD hearing. [15] I therefore find the documents do not meet the requirements of s.110(4) of the IRPA. [16] That said, even if the documents did meet the requirements of s.110(4), I find that the documents would not meet the relevance factor under Singh and Raza, as the evidence is not capable of disproving a sufficiently relevant finding. In this case, and as will be discussed below, I find the central issues to be the Appellant's long-term absence from Somalia as a risk factor, and state protection. [17] For these reasons, the documents are rejected. NO ORAL HEARING [18] 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.7 [19] As no new evidence has been accepted, the requirements of subsection 110(6) of the IRPA have not been met, and an oral hearing cannot be held. ISSUES IN APPEAL [20] The Appellant argues the following issues in his appeal: a. The RPD erred in finding that the Appellant would not be at risk because of his membership of the majority Dir clan. b. The RPD erred in finding that the Appellant does not have a residual profile as a returnee from the West. The Appellant argues that because he has spent so much time outside Somalia, he would be at risk of persecution from Al-Shabaab who would perceive the Appellant as a threat. [21] I find that the determinative issues in these appeals are: a. The Appellant's residual profile as a returnee from the West. b. State protection. RAD ANALYSIS [22] 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,8 the RPD Decision,9 and the Appellant's Basis of Claim (BOC) form.10 Appellant has a residual profile due to the length of absence from Somalia [23] The RPD found that as the Appellant was from a majority clan, and in finding that there is protection from Al-Shabaab in Mogadishu, where the Appellant had been living, the Appellant was not a refugee. The RPD did this analysis under s.97 of the IRPA. [24] The Appellant has argued that the RPD erred in this analysis, and that returnees will be threatened by Al-Shabaab following evidence in the National Documentation Package (NDP). I agree with the Appellant. [25] At this point, I find that while the RPD made its analysis using s.97, I find that in fact s.96 is more applicable, as the Appellant should be considered as a member of a Particular Social Group (PSG), namely Somalis who have been absent from Somalia for a considerable length of time. [26] I concur with the Appellant that Somalis who have been absent for a considerable period of time are considered a threat by Al-Shabaab. In this case, I find the Appellant's reference to the Response to Information Request (RIR) on diaspora returnees11 to be compelling. The RIR states "...returnees 'will be killed and fought against in the same manner' that Al-Shabaab fights against the Somali government" (CITATION OMITTED).12 This is in particular when combined with information in the US Department of State (DOS) Report13 referring to "...al-Shabaab's execution of persons it accused of spying for and collaborating with the FGS, Somali national forces, affiliated militias, and western security forces."14 [27] The Appellant has been away from Somalia since around 2002 when he was 16 years old, an absence of 16 years as of the date of the RPD decision, and 18 years as of the date of this decision. This is a considerable length of time during which he will not be as familiar with life and customs in Somalia, amplified by the young age at which he left Somalia. This differs from many other Somali cases where the absence period is much shorter. [28] When taking these factors into account, I find that the RPD erred in finding the Appellant did not face a serious possibility of persecution if he were to be returned to Somalia. I overturn the RPD's finding, and substitute my finding that the Appellant would face a serious possibility of persecution as a PSG Member as a Somali who has lived outside of Somalia for a significant period of time. Inadequate state protection [29] The RPD also made a finding that Somali forces and forces from the African Union Mission in Somalia (AMISOM) have been pushing Al-Shabaab out of Mogadishu, and that as a result, Mogadishu would be safe for the Appellant to return to. Without explicitly stating it, the RPD has made a state protection finding in this regard. I find that the RPD has erred in this finding and overturn it. [30] In assessing state protection, it is important to remember that while such protection need not be perfect,15 it must be adequate and provided by the state, rather than by another international actor.16 [31] I note that the US DOS Report firstly states, "Police were generally ineffective and lacked sufficient equipment and training. In Mogadishu, for example, police lacked sufficient vehicles to transfer prisoners from cells to courts or to medical facilities. There were reports police engaged in corrupt practices."17 [32] Instead, security is provided jointly between the Somali National Army (SNA) and AMISOM. I note that the SNA is composed of "An estimated 60 % of the soldiers belong[ing] to the Abgal (Hawiye) and Habr Gedir (Hawiye) sub-clans, and another large group is from the Murusade (Hawiye) subclan."18 [33] The report then goes on to say "[t]he government has tried to recruit more people from other clans, which has however not been a success. Minority or smaller clans are afraid to join the army".19 This goes on to indicate that the Appellant would be hard pressed to approach the SNA for protection, given that the Abgal clan, the clan which the Appellant fears, makes up a large contingent of this protecting force. [34] The other security provider is AMISOM, which is an international mission comprised of around 22,000 staff from Uganda, Burundi, Ethiopia, Kenya and Djibouti.20. What is particularly telling is that "[t]he Somali government is highly dependent of [sic] AMISOM for its survival."21 In fact, "[t]he army is dependent on the international troops and it is therefore deemed very unlikely that AMISOM would withdraw any time soon"22 and that "'it is unrealistic for SNA to take over from AMISOM' (CITATION OMITTED)".23 [35] This heavy dependence on international troops and personnel violates the premise that state protection be provided by the state, not the international community. When taking these factors into account, it cannot be said that there is adequate state protection. [36] I therefore substitute my finding that there is inadequate state protection available to the Appellant if he were to be returned to Somalia. CONCLUSION [37] Pursuant to s.111(1)(b) of the IRPA, the determination of the RPD is set aside, and I substitute my determination that the Appellant is a Convention refugee. The Appellant has a well-founded fear of persecution due to his PSG Membership as a Somali who has lived outside of Somalia for a significant period of time. [38] The appeal is allowed. (signed) "T. Card" T. Card February 25, 2020 Date 1 Exhibit P-2, Appellant's Record, Pages 33-36. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 3 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. 4 Refugee Appeal Division Rules, SOR/2012-257, rule 3(3)(g)(iii). 5 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385, cited in Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96, Paragraph 64. 6 Exhibit P-2, Appellant's Record, Page 43, Paragraph 13. 7 Immigration and Refugee Protection Act, S.C. 2001, c. 27, subsection 110(6). 8 Exhibit P-2, Appellant's Record, Pages 39-46. 9 Exhibit RPD-1, RPD Record, Pages 3-11. 10 Ibid., Exhibit 2, Pages 12-22. 11 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package, Somalia, 29 March 2018, tab 14.4: Frequency of members of the diaspora returning to live in the country, and particularly in Mogadishu; availability of housing and employment to diaspora returnees, including difficulties related to clan membership and economic opportunities (2012-2015). Immigration and Refugee Board of Canada. 13 March 2015. SOM105094.E. 12 Ibid. 13 National Documentation Package, Somalia, 30 April 2019, tab 2.1: Somalia. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019. 14 Ibid. 15 Davidova, Dana v. M.C.I. (F.C., no. IMM-6542-12), Noël, September 5, 2013, 2013 FC 908. 16 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 17 National Documentation Package, Somalia, 30 April 2019, tab 2.1: Somalia. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019. 18 National Documentation Package, Somalia, 30 April 2019, tab 1.8: EASO Country of Origin Information Report. Somalia: Security Situation. European Union. European Asylum Support Office. December 2017, Section 2.2.2.2, Page 27. 19 Ibid. 20 Ibid., Section 2.2.2.1., Page 29. 21 Ibid. 22 Ibid., Section 2.2.1, Page 24. 23 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-17250 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