VB5-00511

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 File No. / N° de dossier de la SAR : VB5-00511 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX Personne(s) en cause the subject of the appeal (Also Known As XXXX XXXX XXXX) Appeal considered at Vancouver, BC Appel instruit à Date of decision August 11, 2015 Date de la inister Panel Philip MacAulay Tribunal Counsel for the person(s) who is(are) David Matas Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant€ désigné€ Counsel for the Minister N/A Conseil du inister REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the "appellant"), a citizen of Somalia, appeals the negative determination of the Refugee Protection Division (the "RPD") regarding his claim for refugee protection. As is set out in the RPD Notice of Decision dated February 6, 2015, the appellant's claim was heard by the RPD on January 26, 2015 with an oral decision being rendered on that date.1 The RPD determined that the appellant is neither a Convention2 refugee pursuant to section 96 of the Immigration and Refugee Protection Act (the "Act" or "IRPA")3 nor a person in need of protection pursuant to section 97 of the Act. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of IRPA, the Refugee Appeal Division (the "RAD") confirms the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. The appeal is rejected. BACKGROUND [3] The appellant was represented at the RPD by different counsel than the counsel who represents him before the RAD. The Minister intervened at the RPD "by documents only"4 but has not intervened at the RAD. [4] No transcript of the RPD proceedings is included in the Appellant's Record (AR).5 However, a compact disc (CD) of those proceedings forms part of the RPD Record (RPDR) and is found at the back of that Exhibit.6 The appellant has made no time-code references to any portion of the CD in his Memorandum. I have listened to the entire CD and reviewed the RPDR. [5] The appellant seeks to present additional written submissions7 to the RAD not previously included in the AR pursuant to Rule 29 of the Refugee Appeal Division Rules (the "RAD Rules").8 This application will be considered later in these reasons. In his Statement9 the appellant stated that he did not seek to present new documents to the RAD that were not presented to the RPD and that he did not seek a hearing before the RAD. However, in his AR the appellant did submit a number of documents that were not presented to the RPD. I will also deal with this issue in the Analysis portion of this decision. Basis of Claim [6] The appellant is a 40 year old divorced man from Somalia. He describes himself as a Muslim and a member of the XXXX tribe of that country, a sub-clan of the Digil. [7] As is set out briefly in the appellant's Basis of Claim form (BOC)10 as supplemented by his testimony, shortly after the beginning of the Somali civil war in the early 1990s, the appellant, his family and other members of the XXXX were robbed, attacked, killed, and raped by militia of the United Somali Congress of Mohamed Aidid upon the government's collapse. [8] In 1994 a militia attacked the appellant's home killing three younger half-brothers of the appellant and his uncle. His 12 year old sister was violently raped suffering injuries leading to her death two weeks later. On the night of this attack the appellant and his father were staying at the appellant's grandfather's home located elsewhere in Mogadishu. [9] The father moved the remainder of the family to XXXX, Somalia to a United Nations (UN) refugee camp. The father was killed there in 2000. The mother then moved the family to XXXX, Somalia from which the appellant was able to leave by private plane. He left Somalia for Egypt in XXXX 2001 where he lived until XXXX 2008. He then travelled to the United States (US) where he lived in the state of Minnesota from that time until XXXX 2014 at which time he travelled to Canada, making a claim for refugee protection shortly thereafter. [10] While in the US the appellant was the subject of a sponsorship application by his then US-citizen wife which never was completed given the breakup of their relationship. However, during the latter part of that time he held Temporary Protected Status (TPS) in that country which prevented his removal to Somalia and entitled him to work in the US. [11] The appellant alleges that if he returns to Somalia he faces persecution and section 97 IRPA risks and danger at the hands of militia from both the Hawiye and Digil clans because of his membership in the XXXX tribe, as well as from the religious extremist group, Al-Shabaab. He maintains that he would not be safe anywhere in the country and that, due to the disorganized and ineffectual government of that country, adequate state protection would not be available to him anywhere in Somalia. RPD Decision [12] The RPD accepted that the appellant had established his personal identity, his Somali citizenship, and his membership in the XXXX tribe. [13] The determinative issue for the RPD was credibility which will be discussed more fully in the Analysis portion of this decision. [14] Briefly stated, the RPD found that the appellant was not credible in establishing that, as a member of the XXXX tribe, he was part of a minority tribe or clan such that there would be a serious possibility of persecution or a probability of risk or danger. To the contrary, the RPD found that the XXXX is a sub-tribe of the Digil tribe which the Member found is one of the majority tribes or clans in Somalia. Accordingly, the RPD found that the appellant had not established a nexus to one of the Convention grounds as a result of his affiliation. [15] The RPD also found that the appellant's testimony was not credible as to who took his family's land and killed some of his family members in 1994 in as much as the appellant provided inconsistent evidence about which clan was involved to the point of speculation in the RPD's view. In addition, this evidence was inconsistent with the narrative set out in the appellant's BOC. On this basis, the Member found that the appellant had inadequately established who it was he feared would persecute or target him if he returned to Somalia. [16] Further credibility concerns arose from the Member's findings that the appellant had provided inconsistent evidence about his activities in Egypt and his immigration status in that country, as well as similar concerns with respect to the many years he lived in the US. With regard to the latter, the RPD found that the appellant's leaving the US where his TPS status would have allowed him to live and work there for many future years (provided he did not commit a serious crime while there) to take a chance on securing status in Canada, demonstrated a lack of subjective fear which also had a negative impact on his overall credibility assessment. [17] Finally, the RPD found that, as the evidence on the topic was mixed, there was not more than a mere possibility that he would be persecuted or probable that he would be targeted for risk or danger as a "returnee" to Mogadishu by the Al-Shabaab. GROUNDS OF APPEAL [18] The appellant does not provide a concise statement of the grounds of appeal upon which he relies. The portion of his AR identified as being devoted to that matter, in fact, consists of 36 paragraphs of arguments and legal submissions. In the interests of clarity and to ensure that the RAD may better appreciate the appellant's concerns with the RPD determination, in future counsel is encouraged to specifically and concisely identify in short form the errors allegedly made by the RPD and the issues counsel believes lie at the heart of the appeal. Reliance should not rest solely on the RAD to distill what might be of importance to the appellant from the entire argument. [19] In light of the above, the following sets out my interpretation of the appellant's grounds of appeal: a) Did the RPD misconstrue and misrepresent documentary evidence thus leading the RPD to err in its assessment of the level of persecution or risk the appellant would face upon a return to Somalia?11 b) Did the RPD fail to properly assess the evidence of persecution or risk faced from a larger clan by a minority clan which is part of the larger clan's protectorate? Did the RPD err in expecting that there should be country condition information which would corroborate the appellant's testimony concerning his sub-clan's potential persecutory situation and to conclude its absence undercuts the appellant's credibility?12 c) Did the RPD err in concluding that the fact that the appellant lived without suffering serious persecution or personal targeting while living in a refugee camp from the time members of his family were murdered in 1994 until he left the country in 2001 undercut the appellant's credibility concerning a well-founded fear of persecution or a probable risk or danger should he return to Somalia? d) Did the RPD err by conflating living in safety as a displaced person in a refugee camp with the question of an internal flight alternative (IFA), especially when not analyzing the second prong of the IFA test, i.e. would it be reasonable in the circumstances to expect the appellant to return to that location?13 e) Did the RPD err in finding that the appellant's leaving two countries where he had protected status (i.e., Egypt and then the US) provided good reason to doubt the appellant's alleged well-founded fear of persecution, risk or danger in his country?14 REMEDY SOUGHT [20] The appellant requests that the RAD set aside the determination of the RPD and substitute it with a decision that the appellant is a Convention refugee or a person in need of protection or, alternatively, that the matter be returned to the RPD for redetermination by a different Member of the RPD.15 THE ROLE OF THE RAD AND THE CRITERIA FOR INTERVENTION [21] The appellant submits16 that the following portions of the Federal Court (the "Court") decision of Justice Phelan in Huruglica17 should guide the RAD in considering this appeal: [54] . . . must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a "palpable and overriding error". [22] In a previous decision,18 I considered in depth and in detail the chronology of the various views of the Court's jurisprudence concerning the proper role of the RAD as it has developed. These views have not always been consistent and a number of nuances have emerged. A number of fundamental questions have been certified which the Federal Court of Appeal is due to hear in late September and early October of 2015. In the meantime and in light of the case law I referenced in my earlier decision, I concluded that a practical and pragmatic approach19 to these questions is appropriate and will take that approach in this case as follows: Bearing always in mind that an appeal to the RAD is not in the nature of a judicial review, I am to undertake a comprehensive review of the RPD decision and the RPD Record in light of, and sufficient to, resolve the issues raised and assess the errors alleged in submissions by the parties in the RAD appeal.20 As well, I am to make an independent assessment of any new documentary evidence provided to the RAD pursuant to subsection 110(4) of IRPA or evidence arising from a hearing under section 110(6) of IRPA. I am to come to an independent determination of these questions, subject to deference being given to the findings of the RPD with respect to credibility and those matters about which the RPD was in a better position to make an assessment than is the RAD. Without any common specific standard of deference being provided by the Federal Court, I will measure the RPD findings in light of the examples provided by the Federal Court to date. Of course, all of this is to be accomplished in view of the objectives of the Act with respect to refugees as set out in subsection 3(2) of IRPA. ANALYSIS OF THE MERITS OF THE APPEAL Subsection 110(4) new documents [23] As noted earlier, in his Statement the appellant wrote that he was not relying on any new documents referred to in subsection 110(4) of the Act. However, in his AR the appellant does just that by referring to a number of documentary sources of evidence that were not presented to the RPD. In so doing, the appellant did not comply with RAD Rule 3(3)(g)(iii)21 which provides that when one does seek to present such documentation they must provide full and detailed submissions as to how the documents meet the requirements of subsection 110(4) of IRPA which provides: 110(4). On appeal, 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. [24] The first of these documents is an Immigration and Refugee Board Response to Information Request XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.22 The second document is an Immigration and Refugee Board Issue Paper "Victims and Vulnerable Groups in Southern Somalia", May 1995 written by Professor Lee Cassanelli of the University of Pennsylvania.23 The third is a document titled "San Remo Expert Roundtable 6-8 September 2001 organized by the United Nations High Commissioner for refugees and the International Institute of Humanitarian Law."24 The fourth is an extract from an undated document from the Norwegian Organization for Asylum Seekers (NOAS).25 While undated itself, the document refers to documents from 2001. [25] None of these documents are listed in the National Documentation Package (NDP) for Somalia of March 14, 2014 which was disclosed at the RPD.26 None of the documents were disclosed by the appellant's then counsel to the RPD. As well, I have listened to the entirety of the CD of the RPD hearing and none of these documents are referenced. The appellant was represented by counsel at the RPD. No application was made to the RPD to adjourn that proceeding in order to obtain any documents. [26] Considering the criteria of subsection 110(4) of IRPA, clearly the three dated documents were in existence long before the RPD's rejection of the appellant's claim. Some are nearly 20 years old. No explanation has been offered by the appellant as to why any of the four documents could not have reasonably been expected to have been presented to the RPD and no adjournment was ever sought in order to obtain them. [27] In the result, I find that the appellant has not provided any basis upon which the four documents should properly be accepted by the RAD. The documents and the submissions presented by the appellant concerning them will not be considered by the RAD. Not having complied with the requirements of subsection 110(4) or RAD Rule 3(3)(g)(iii), it is not necessary to further assess the documents' credibility, relevance or materiality.27 Rule 29 Application to provide additional written submissions [28] After counsel had already perfected the appellant's AR by filing it in the RAD Registry, he then forwarded a two page unsigned and unsworn statement28 identified as being that of the appellant. The document's cover letter was dated April 27, 2015. The statement provides, inter alia, evidence, both unattributed and attributed to specific country condition documents, concerning the appellant's subtribe and its relationship to the Digil clan. Reference is made to one document which was disclosed in the NDP. Another document is the same NOAS document I considered and rejected as noted in the above subsection 110(4) discussion. [29] Upon receipt of the statement, the RAD Registry returned the submission to counsel noting that there had been a failure to make an application to provide the document as required by Rules 29 and 37 of the RAD Rules.29 Counsel returned the document, together with a brief affidavit from counsel's legal secretary which simply stated that the appellant's statement had been received by counsel's office shortly before it was forwarded to the RAD. [30] RAD Rule 29(1), inter alia, provides that an appellant who had not provided a written submission with the AR must not provide that written submission in the appeal unless allowed to do so by the RAD. Rule 29(2) requires that if an appellant wishes to do so, an application must be made under Rule 37. If an appellant wishes to use a document that was not previously provided in the AR, Rule 29(3) requires that the appellant must provide an explanation as to how the document meets the requirements of subsection 110(4) and how it relates to the appellant. [31] Rule 29(4) provides: 29(4). In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [32] Finally, in support of the application, counsel made the following submission:30 The reasons why the Division should grant the application are: a) the document is relevant to the decision to be made; b) the document would assist the Division in making its decision; c) the document was provided to the Board shortly after the appellant provided the document to the office of counsel for the appellant; d) the time between the provision of the document and time by which the appeal had to be filed is short; e) there is no prejudice to the Board or the Minister in considering the document; f) there is merit to the submissions contained in the document; g) in light of the short timeline for filing an appeal and documents in support, the delay of the appellant in preparing the document he wishes submitted is reasonable. [33] As between Rule 29(4) and counsel's above-noted "reasons", I take guidance from the Rule in considering the acceptance of the appellant's statement. [34] In the first portion of the statement, the appellant provides a detailed overview of the Digil clan and its constituent sub-clans, including his own. The source of this information is not identified. This information is only mildly relevant in as much as there was no dispute before the RPD that the appellant's sub-clan is not considered part of Digil nor has that linkage been disputed at the RAD. As to the probity of the information the appellant personally supplies, I find I cannot rely on this information given the appellant's RPD testimony31 that he did not have much knowledge of the Digil apart from his allegation that, at one point, they took the family's land. I do not accept this portion of the statement. [35] The next portion of this statement contains a quote from a Danish Immigration Service document that was in the NDP disclosed at the RPD. In this regard there is no explanation as to why counsel could not have included this reference in his original written submission set out in the AR. It is not at all clear to me why counsel would have had to receive this information from his client in order for it to be included in the original AR Memorandum. In keeping with the provisions of Rule 29(4), I find that the document and/or the submissions related to it could have with reasonable effort been provided in the AR. I also do not accept that portion of the statement. [36] The third primary portion of the statement contains extracts from the NOAS document that was attached to the AR and which I rejected earlier as there was no explanation provided why such a pre-existing document could not have been presented to the RPD. That being so, if it could not be accepted when it was presented together with the AR, I see no logical reason why it should subsequently be accepted because it is attached to the appellant's statement. That portion of the document to is also rejected. [37] The final paragraph of the statement provides no evidence but merely a submission. Again, in consideration of rule 29(4), this portion of the statement is also not accepted as I find that, with reasonable effort, counsel could have made that submission in the AR, but did not. [38] Given the above, the appellant's statement, RAD Exhibit 4, is not accepted and the rule 29 application is rejected. a) Did the RPD misconstrue and misrepresent documentary evidence thus leading the RPD to err in its assessment of the level of persecution or risk the appellant would face upon a return to Somalia?32 [39] Counsel has submitted that the RPD misquoted a country document thereby leading the Member astray in coming to conclusions about the historical experience of the XXXX and Digil at the hands of the majority clan, Hawiye, as well as the subsequent support of the Digil groups by Al-Shabaab. [40] When considering the XXXX relationship with the larger Digil clan,33 the RPD Member made specific reference to a document from the NDP called Clans of Somalia. The written version of the Member's oral decision is formatted as follows: To find verification in this I looked at our National Documentation Package (NDP) which is Exhibit 3. There a document called the Clans of Somalia and in there it talks about the Garre tribe which is part of the Digil tribe and it includes the XXXX tribe as being part of the Digil tribe and it says that: Even though they face some difficulties at the hands of members of the Hawiye tribe that they are not a minority clan. [41] The appellant maintains that this is not only an inaccurate quote from the document but also demonstrates a misapprehension of what the document actually states. The appellant points to the actual quote from page 20 of the document which reads: Garre XXXX/Iroole The XXXX XXXX XXXX are part of Digil/Rahanweyn in Lower Shabelle, where the local clan composition further includes Biymaal and Banadiri groups. As a function of the civil war, the Digil groups, despite not being a minority, were suppressed by the Hawiye, along with the other groups. When Al-Shabaab recently moved in and took over this area, they did so on the basis of supporting the Digil and the Biymaal and other groups who until then had been suppressed by the Hawiye. 34 [42] The appellant also faults the Member for diminishing the power of the word "suppressed" by reducing it to a situation of the Digil and its associated sub-clans facing "some difficulties". [43] Having listened to the CD of the oral decision (but not knowing whether RPD Members generally proofread the written version of their oral decisions as a matter of course before mailing; or if the Member did so in this particular case), I conclude that it is likely that the indented "extract" from the country document was not intended by the Member to be a direct quote but, rather, a paraphrase of what the document states. The formatting chosen in this case could well be simply the way the transcriber heard the Member on the CD. [44] I do agree with the appellant that "facing some difficulties" is not a fair description of "suppression". However, I do not find that this is a particularly telling or material error on the RPD's part. The Member was referring to that document for the proposition that the Digil group (which includes the XXXX) is not a minority. As to the specific allegation of the appellant that three years after the civil war of the early 90s commenced, his family's farm was attacked in 1994 by the Hawiye leading to the deaths of a number of the appellant's family; the RPD never disputes that allegation. My own review of this and related evidence leads me as well to conclude like the RPD that the appellant's allegations of the attack on his family in 1994 by the Hawiye likely occurred. I also conclude that the Digil clan group, based on that evidence, is not a minority. [45] The appellant also disputes the Member's following statement:35 To back that up I looked at document 13.9 from the National Documentation Package and it gives four main divisions of the tribe breakdown and the first one is the Sade clan, underneath that is the Digil clan, and underneath that you would be a sub clan of one of the majority clans. [46] The appellant submits36 that the document does not contain the word XXXX and that the reference to the "Sade" clan (which word does not appear in the document) is probably the "Saab" clan (which reference is found in the document). He submits that this lack of precision demonstrates that the Member is "cavalier". I have considered the matter and agree that the word "XXXX" is not in that document and that the reference to "Sade" is a typographical error with the correct word being "Saab". Nonetheless, I believe it likely that what the RPD Member was referring to was page 10 of the document37 where "Chart of the main lines in the total Somali clan genealogy" shows "Saab" with the first group below it listed as "Digil". Page 11 of the document38 has a chart showing "Digil" as one of the clan families with one of its sub-clans being "Garre". The Member clearly stated that he was looking at document Item 13.9 in order to "back up" the earlier document referred to above which clearly showed that the XXXX was a subdivision of the Garre. [47] Taken together, the RPD came to the conclusion that the appellant's XXXX tribe or clan is a subset of groups associated under the Digil clan which is not considered a minority clan, at least in those documents. My own assessment leads to the same conclusion. b) Did the RPD fail to properly assess the evidence of persecution or risk faced from a larger clan by a minority clan which is part of a larger clan's protectorate? Did the RPD err in expecting that there should be country condition information which would corroborate the appellant's testimony concerning his sub-clan's potential persecutory situation and to conclude its absence undercuts the appellant's credibility?39 [48] Under this ground, the appellant disputes the underlying thrust of the RPD's reasoning that although the XXXX group itself is a small minority tribe, it falls under the grouping of the Digil which, as a non-minority clan, provides a consequent level of protection to the appellant's tribe from other antagonistic majority clans. As part of these submissions, the appellant makes reference to a number of documents which, as discussed earlier, I have not accepted into evidence as they do not comply with subsection 110(4) of the Act. [49] In the RPD hearing, the appellant expanded his allegations about potential agents of persecution or harm beyond the Hawiye and Al-Shabaab to also include the Digil. In my consideration, it is important to understand the context in which this came about and the appellant's actual testimony. [50] The RPD Member noted that nowhere in his BOC did the appellant raise any claim against the Digil and, when the appellant was asked why not, he responded that he had heard that the Digil clan had taken the family's land but that he did not really know anything about the clan.40 [51] At various points in his testimony, the appellant acknowledged that the XXXX are associated by some people with the Digil clan and that his group lived among them.41 At least twice he acknowledged that the Digil protected the XXXX from other clan groups.42 That aside, he also said that the Digil harmed the XXXX. At one point, the appellant was asked by his counsel to provide examples of Digil mistreatment of XXXX. He answered that members of that group called the XXXX names and reminded them that they were from a small minority tribe.43 [52] Curiously, having earlier testified that he did not mention the Digil as agents of persecution at all in his BOC because he "did not know much about them," at this latter point of the hearing he provided a number of allegations of the Digil having also taken the family's land in Mogadishu after the start of the civil war (the BOC states only that it was the Hawiye) and charging rent or bribes in XXXX.44 He was only in XXXX for the last year before he left the country and there is no mention of this in the BOC. He previously also testified that the Digil had taken land in XXXX.45 However, elsewhere in his testimony the appellant had also stated that when the family lived there in 1994 until 2000, they lived in a refugee or displaced persons' camp. There is otherwise no indication at all that the family held any land in that place. Again, none of this is mentioned in the BOC. [53] In what I found to be very confusing evidence, just after testifying that he did not know much about the Digil other than they are took land in XXXX, the appellant then alleged that the Digil took the family's land in 1991-but that the Hawiye then took it from the Digil that same year.46 [54] It was in the context of this imprecise evidence (much of which the RPD found to be speculative) and the emergence of the claim against the Digil for the first time at the hearing, that the RPD Member noted that he had not been referred to any documentary evidence to support the proposition that sub-clans who are part of a protectorate of a larger clan face persecution from that larger clan.47 In coming to the conclusion that the appellant had failed to provide clear and convincing evidence that he and his family were ever persecuted or faced section 97 risks or danger from the Digil, the RPD was not relying solely on the fact that no documentary evidence had been presented to corroborate that allegation. The RPD's conclusion was based upon a number of considerations. [55] In this regard, the RPD was better positioned than I to come to its negative determination on this aspect of the claim on the basis of credibility. I recognize and respect those conclusions. Nonetheless, I have reviewed all of the same evidence and considered the submissions of the appellant in this appeal and have also come to the same conclusion as the RPD. In particular, having reviewed the transcript and the documents, the introduction of the claim against the Digil only at the hearing and the progression in the appellant's evidence from his "not knowing much" about the Digil to allegations of specific acts of alleged persecution, also buttress my conclusion, on a balance of probabilities, of a late-in-the-game embellishment in an attempt to deflect any difficulty presented to the claim by his tribe being protected by one of the larger clans. c) Did the RPD err in concluding that the fact that the appellant lived without suffering serious persecution or personal targeting while living in a refugee camp from the time members of his family were murdered in 1994 until he left the country in 2001 undercut the Appellant's credibility concerning a well-founded fear of persecution or a probable risk or danger should he return to Somalia? And d) Did the RPD err by conflating living in safety as a displaced person in a refugee camp with the question of an IFA, especially when not analyzing the second prong of the IFA test, i.e. would it be reasonable in the circumstances to expect the appellant to return to that location?48 [56] In dealing with these grounds of appeal, I acknowledge that Al-Shabaab did not emerge as an organization in Somalia until after the appellant left the country in 2001. [57] With respect to the claims of the potential for future persecution, risk or danger which would face the appellant from the Hawiye or Digil upon a return to Somalia, the appellant alleged that he would not be safe from attack by these groups anywhere in the country. This gave rise to the RPD's inquiries about how it was then that, if these groups would be interested in harming him in connection with his family's land which had been confiscated over 20 years ago, they did not do so during the 1994-2000 time period he and his family were living in the UN camp in XXXX. The RPD found:49 You said that if you went back to Somalia today that you could lose your life; that people would want to kill you because of your father's land. I do not see how that can be because I put the question to you. You lived in Somalia for ten years after your father lost his land and sure there is evidence before me from your testimony that your father died in 2000 but that appears to me to be a random attack or something that the guards did to open up shooting in the camp that you were part of. It does not appear to me that you were particularly targeted or that your father was particularly targeted in that event. So I cannot see how members of the Hawiye tribe or other people would be motivated or inclined to want to kill you. You said you moved around a lot. Well I put it to you that you actually lived in a refugee camp for a long time and then you said to me, well, you left the camp and you went back and then when you went to XXXX then you moved around a lot. There is no information in the BOC form or any of the forms that you filled out that you did move around a lot so on a balance of probabilities you only lived in two places in all of that time. Nobody came to seek you during the time that you lived there to retaliate for the fact that you are still alive even though your father's land is confiscated. So now 24 years after the fact that your father's land was taken I do not see any evidence before me which would indicated that somebody would still be motivated or inclined after all of these years to seek you out to kill you for the confiscation of those lands especially when they did not do it in the ten years that you remained behind in Somalia. Your testimony about you having to move around a lot is not credible because you did not provide that information in your documents and the information that you provided beforehand is inconsistent with you moving around because you lived in that refugee camp for at least five or six years. I didn't have any indication beforehand that you had moved around. [58] On appeal, the appellant did not dispute the finding that the father's death in 2000 at the UN camp was unrelated to specific clan issues arising from the family's former property and was a random incident. [59] I have listened to the CD50 and can confirm that I share the same conclusions as those of the RPD with respect to this issue. As well, I disagree with the appellant's submission that these RPD comments were specifically directed to any proposition by the RPD that the area of the camp in XXXX was an IFA. It is directed to the far broader question of whether or not either of those clans were, in the past or would be in the future, interested in seeking out the appellant to do him harm for the reasons he has alleged. The point is, he was in a static place for a considerable period of time and there is no evidence that either the Hawiye or Digil were looking for him. I too come to the conclusion that, based on his history, the appellant has failed to establish that there is more than a mere possibility that these groups would seek to target him for persecution, or a probability that he would be at risk or danger from them because of anything that had happened in the past. That being so, the conclusion I draw is that the Hawiye or Digil would not personally target the appellant for historical reasons anywhere in Somalia, including XXXX. Looking forward, I also conclude that the appellant has similarly failed to establish a serious possibility that he would be persecuted or, on a balance of probabilities, face risks or danger by either clan in the future. [60] With respect to the appellant's claims concerning Al-Shabaab, I note that the organization is only briefly mentioned in the appellant's Memorandum. [61] In paragraph 3 the appellant simply notes: "He also expressed a fear of persecution from Al Shabaab because he did not want to join their agenda of terrorism." In paragraph 6, the cited quote from the country document states, "When Al-Shabaab recently moved in and took over this area, they did so on the basis of supporting the Digil and the Biymaal and other groups who until then had been suppressed by the Hawiye."51 [62] Finally, in paragraph 11 the appellant writes:52 Moreover, as noted, the appellant feared Al-Shabaab. This fear is supported by the passage of the Gundel lecture quoted. [i.e., the same quote noted in the above paragraph] The Division member then, in his paraphrase, omits any mention, even indirect, of this risk. This risk, in light of the manner in which the source document is treated, is completely overlooked. [63] I have considerable difficulty understanding the thrust of this submission. The Gundel quote's only connection to Al-Shabaab is that it states that when Al-Shabaab moved into the particular area where the Hawiye had suppressed the Digil and its associated groups, Al-Shabaab supported the Digil and other groups who had been suppressed by the Hawiye. Beyond noting that Al-Shabaab may have moved into the Lower Shabelle (which does not include Mogadishu), the citation seems to strongly suggest that Al-Shabaab supports the Digil (and associated sub-clans like the XXXX) rather than threatens them. [64] Beyond that, the appellant has nothing further to say about the RPD's findings53 concerning the mixed information found in the documents referred to by the RPD about Al-Shabaab's presence, power or influence in places like Mogadishu, or the targeting of people returning to the country. After considering those documents concerning Al-Shabaab and, in particular, the personal situation of the appellant in light of its earlier findings that the appellant had not established his claims against Hawiye or the Digil (and the latter's protection of the XXXX) the RPD's ultimate finding was that the appellant had not established that there is more than a mere possibility of persecution or a likelihood of his facing section 97 risks or danger upon returning to Somalia from Al-Shabaab. My independent review of the same material leads me to the same conclusion as that found by the RPD. It was open for the appellant to challenge the RPD's findings concerning Al-Shabaab but he has not done so. In this regard, I take guidance from the recent decision of the Court to the effect that it is for the appellant in a RAD appeal to specify the grounds of appeal and provide a focus in its Memorandum on any alleged errors made by the RPD. It is not for the RAD to search through the record for issues not raised by the parties to the appeal, especially where the appellant is represented by counsel.54 e) Did the RPD err in finding that the appellant's leaving two countries where he had protected status (i.e., Egypt and then the US) provided good reason to doubt the appellant's alleged well-founded fear of persecution, risk or danger in his country?55 [65] In my view, given the above analysis leading to the conclusion of a lack of credibility in establishing any of his claims as is required, it was, and is not now, necessary to make a finding of a lack of a well-founded fear in order to confirm the negative determination of the RPD. [66] Even so, I do note that the RPD ultimately acknowledged that marrying a US citizen and moving to that country with a future prospect of gaining permanent status in that country, provides a reasonable explanation for why one would give up whatever status one had in Egypt (i.e., "So I am not going to hold that against you.")56 [67] The appellant's testimony on his understanding of what his status was in the US after he broke up with his wife (he thought it was tenuous) does not seem to align with the specific information that had been provided to the RPD by the Minister.57 That information indicated that, while not constituting near citizenship or providing an evidentiary basis for exclusion under Article 1E of the Convention, the appellant's TPS in the US would have allowed him to stay and work in that country indefinitely, provided he did not commit a disqualifying serious crime. However, as noted at the outset of this section, it is not necessary to make a finding on conduct illustrating lack of subjective fear in order to come to my ultimate independent conclusion to confirm the RPD determination. CONCLUSION [68] For the foregoing reasons, the determination of the RPD that XXXX XXXX, also known as XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection is confirmed. The appeal is rejected. (signed) "Philip MacAulay" Philip MacAulay August 11, 2015 Date 1 Refugee Appeal Division (RAD) Exhibit 3, Refugee Protection Division Record (RPDR), pp. 3-10. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 3 Immigration and Refugee Protection Act, S. C. 2001, c. 27. 4 RAD Exhibit 3, RPDR, pp. 79-95. 5 RAD Exhibit 2, Appellant's Record (AR). 6 RAD Exhibit 3, RPDR, p. 480. 7 RAD Exhibit 4. 8 Refugee Appeal Division Rules (the "RAD Rules"), SOR/2012-257. 9 RAD Exhibit 2, AR, p. 1. 10 RAD Exhibit 3, RPDR, pp. 11-20. 11 RAD Exhibit 2, AR, pp. 91-93, paras. 3-15. 12 RAD Exhibit 2, AR, pp. 95, paras. 16-23. 13 RAD Exhibit 2, AR, pp. 95-97, paras. 24-31. 14 RAD Exhibit 2, AR, pp. 97-98, paras. 32-39. 15 RAD Exhibit 2, AR, p. 99, para. 42. 16 RAD Exhibit 2, AR, p. 91, para. 2. 17 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 18 X (Re), 2015 CanLII 30384 (CA IRB), paras. 47-80; errata note: the first two references to "RPD" in para 51 correctly should read "RAD". 19 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, paras. 46-52; and Tota v. Canada (Citizenship and Immigration), 2015 FC 890, paras. 18-19. 20 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, paras. 14-24; Spasoja v Canada (Citizenship and Immigration), 2014 FC 913, paras. 42-43; and Siliya v. Canada (Citizenship and Immigration), 2015 FC 120, paras. 24-25. 21 RAD Rules, SOR/2012-257. 22 RAD Exhibit 2, AR, p. 93-94, para. 16 and pp. 100-101. 23 RAD Exhibit 2, AR, p. 94, paras. 17-20 and pp. 110-111. 24 RAD Exhibit 2, AR, p. 96, paras. 28-29 and pp. 112-113. 25 RAD Exhibit 2, AR, pp. 96-97, paras. 30-31 and pp. 114-115. 26 RAD Exhibit 3, RPDR, pp. 51-70. 27 Fida v. Canada (Citizenship and Immigration), 2015 FC 784, paras. 3-9. 28 RAD Exhibit 4, pp. 5-6. 29 RAD Exhibit 4, p. 9. 30 RAD Exhibit 4, p. 1. 31 RAD Exhibit 3, RPDR, CD, 00:46:20-00:47:45; and RAD Exhibit 2, AR, pp. 93-95, paras.16-19. 32 RAD Exhibit 2, AR, pp. 91-93, paras. 3-15. 33 RAD Exhibit 3, RPDR, p. 4, line 16-p. 5, line 7. 34 RPD Exhibit 3, National Documentation Package, Somalia, March 14, 2014, Item 13.10 Clans in Somalia: Report on a Lecture by Joakim Gundel, COI Workshop Vienna, 15 May 2009; RAD Exhibit 3, RPDR, pp. 105-132 at p. 121. 35 RAD Exhibit 3, RPDR, p. 4, lines 31-34. 36 RAD Exhibit 2, AR, p. 93, paras. 12-14. 37 RAD Exhibit 3, RPDR, p. 144. 38 RAD Exhibit 3, RPDR, p. 145. 39 RAD Exhibit 2, AR, p. 95, paras. 16-23. 40 RAD Exhibit 3, RPDR, p. 5, lines 26-30 and CD, 00:46:20-00:47:50. 41 RAD Exhibit 3, RPDR, CD, 00:38:30-00:39:20 and 00:42:50-00:43:45. 42 RAD Exhibit 3, RPDR, CD, 00:43:45-00:45:00 and 01:08:00-01:09:20. 43 RAD Exhibit 3, RPDR, CD, 01:20:30-01:22:20. 44 RAD Exhibit 3, RPDR, CD, 01:22:20-01:23:40. 45 RAD Exhibit 3, RPDR, CD, 00:46:20-00:47:50. 46 RAD Exhibit 3, RPDR. CD, 00:47:50-00:49:50. 47 RAD Exhibit 3, RPDR, p. 5, lines 1-35 and p. 8, lines 5-14. 48 RAD Exhibit 2, AR, pp. 95-97, paras. 24-31. 49 RAD Exhibit 3, RPDR, pp. 5-6. 50 RAD Exhibit 3, RPDR, CD, 01:28:20-01:39:20. 51 RAD Exhibit 2, AR, p. 91, para 3 and p. 92, para. 5. 52 RAD Exhibit 2, AR, p. 93, para. 11. 53 RAD Exhibit 3, RPDR, p. 8, line 37-p. 10, line7. 54 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, paras. 14-24; Spasoja v Canada (Citizenship and Immigration), 2014 FC 913, paras. 42-43; and Siliya v. Canada (Citizenship and Immigration), 2015 FC 120, paras. 24-25. 55 RAD Exhibit 2, AR, pp. 97-98, paras. 32-39. 56 RAD Exhibit 3, RPDR, p. 7, line 4. 57 RAD Exhibit 3, RPDR, pp. 79-95. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB5-00511