TB5-03482

RAD File / Dossier de la SAR : TB5-03482 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(s) of Hearing February 12, 2019 Date(s) de l'audience Date of decision March 18, 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 [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 allowed. BACKGROUND [3] The Appellant alleges that he is a citizen of Somalia and a member of the XXXX minority clan. The Appellant and his family had been threatened and attacked on a number of occasions by members of the majority XXXX clan. The Appellant left Somalia in 2005 and stayed in Kenya for seven years. The Appellant's father was killed in 2011 after another XXXX attack. [4] The Appellant then found a smuggler who helped him get to the United States (US), arriving there on XXXX XXXX 2013 where he made a refugee claim, which was refused. The Appellant then went to Canada where he made his refugee claim. [5] The Appellant's claim was refused by the RPD on 23 March 2015. The Appellant appealed to the Refugee Appeal Division (RAD). During the appeal process, the Appellant did not meet the timeline to perfect the appeal, and his original application to extend the timeline was refused on 10 July 2015. The Appellant then applied for Judicial Review (JR) to the Federal Court on the basis that the RAD made an unreasonable decision in refusing to extend the timeline. The Federal Court granted JR and referred the matter back to the RAD for a decision to be made by a new panel on 17 February 2016. The application for an extension of time was allowed and the appeal was reopened on 7 May 2018. This is the decision for the reopened RAD appeal. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [6] In support of this appeal, the Appellant proposed the admission of the following documents as new evidence: a. The Appellant's mother's Somali birth certificate and identity card;1 b. A declaration by XXXX XXXX (the Employer) dated 11 April 2015;2 c. A declaration by XXXX XXXX XXXX XXXX XXXX dated 4 April 2015;3 and, d. A letter from XXXX XXXX XXXX dated 20 April 2015.4 [7] 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 expected5 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.6 [8] 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 RAD to apply the adapted Raza factors endorsed in Singh.7 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.8 Mother's identity documents accepted [9] In submissions by the Appellant, he explains that his mother, residing in Kenya, had been ill and had misplaced her identity documents at the time of the RPD hearing. The Appellant also explains that these are the only identity documents his mother has. As a result, the Appellant explains that the documents were not reasonably available at the time of the RPD rejection. [10] In light of these submissions, I find that these are reasonable explanations, and that the documents meet the requirements of s.110(4) of the IRPA. [11] On their face, the documents appear credible. They are relevant to the issue of identity and are capable of contradicting the RPD's finding that the Appellant had not established his identity. I therefore find the proposed documents also meet the Singh and Raza factors. The proposed documents are therefore accepted as new evidence. The Employer's declaration accepted [12] The Appellant also provided a declaration from his former employer from Kenya. The Appellant explained that he had been unable to contact the Employer at the time of the RPD hearing, and that it turns out he had been in China. It was not until after the RPD decision that the Appellant regained contact with the Employer. As a result of these circumstances, I find that the declaration was not reasonably available at the time of the RPD rejection, and therefore meets the requirements of s.110(4) of the IRPA. [13] The document on its face appears credible. It is relevant to the issue of the Appellant's credibility, as it pertains to his allegations about his identity and his presence in Kenya prior to coming to North America, and is capable of contradicting negative credibility findings made by the RPD. I therefore find the proposed document also meets the Singh and Raza factors. The declaration is therefore accepted as new evidence. XXXX declaration accepted [14] The Appellant also provided a declaration from his cousin, XXXX, in Edmonton. The Appellant explains that he only regained contact with XXXX after the RPD decision date. In light of this, I therefore find the proposed document was not reasonably available at the time of rejection, and meets the requirements of s.110(4) of the IRPA. [15] On its face, the declaration appears credible. It is relevant to the issue of identity and is capable of contradicting the RPD's finding that the Appellant had not established his identity. I therefore find the declaration also meets the Singh and Raza factors. The declaration is therefore accepted as new evidence. XXXX XXXX XXXX letter rejected [16] The Appellant also submitted a letter from XXXX XXXX XXXX attesting that the Appellant is Somali as claimed. The Appellant submitted that he had been attempting to get a letter from them prior to the RPD determination, but only got an interview afterwards. [17] I do not accept this explanation. I note that the Appellant never applied to the RPD for an adjournment to get an interview or letter prior to the RPD determination. The evidence concerned did not arise after the rejection of the claim, and I do not accept the Appellant's submission that the letter was either not reasonably available at the time of rejection, or that he could not reasonably have been expected to have presented the letter at the time of rejection. [18] Accordingly, I find the letter does not meet the requirements of s.110(4) of the IRPA and reject it. ORAL HEARING [19] 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.9 [20] As the determinative issue is personal identity, the new evidence that was admitted was not enough in itself for me to make a determination. An oral hearing was required in order to gain additional information to make a final determination. An oral hearing was ordered and held on 12 February 2019, and its details are discussed below. ISSUES IN APPEAL [21] The Appellant argued that 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. [22] I find that the determinative issue in this appeal is identity RAD ANALYSIS [23] I have conducted an independent analysis of the evidence concerned, including reviewing the RPD hearing, as well as considering the Appellant's Memoranda,10 the RPD Decision,11 and the Appellant's Basis of Claim (BOC) form,12 amongst other documents. RPD's findings were overzealous [24] One of the major findings the RPD made was that it found that the Appellant did not make sufficient efforts to get corroborating documents to establish his identity. The RPD did not accept the Appellant's explanation that he could not get documents from his mother in Kenya as she was ill, and did not accept that at the time of the hearing, the Appellant had tried and failed to get documents from his family and former employer in Kenya. [25] I find that the RPD erred in making this finding by not taking into account the Appellant's explanation for the lack of documentation. This is further backed up by the fact that the Appellant's mother was not only ill, but also had misplaced her identity documents at the time of the hearing. Additionally, the Appellant's employer was in China at the time of the hearing and could not be contacted beforehand. I find these are all reasonable explanations for the Appellant's lack of success in getting more documents at the time of the RPD hearing. [26] In terms of the Appellant apparently waiting until December 2014 and using this as a basis to draw a negative credibility inference, I find that this adverse credibility finding was made overzealously by the RPD and is incorrect. Even if the Appellant had made earlier attempts to get additional documents, it does not appear to me that they still would have been available in time for the RPD Hearing. [27] The RPD also stated it found it "incredulous" that the Appellant's family would wait until 2013 to leave for Ethiopia, and use what money it had to send the Appellant on his own. I find that the RPD relying on this as justification for finding identity was not proven is overly speculative and incorrect in this instance. [28] Overall, I find the RPD's reasons for rejecting the Appellant's identity evidence to be weak and incorrect, and its decision to find that the Appellant's identity has not been established cannot stand. Mother's birth certificate [29] Further to the evidence before the RPD, I also had a number of new pieces of evidence to consider in this appeal. [30] In terms of documentary evidence, the Appellant's mother's birth certificate, issued in 1986,13 was provided. The government-issued English version did have a couple of anomalies which concerned me. These included the fact that the Family Record Number section at the top of the document was not completed, and that the stamp towards the bottom of the document read it came from the Minister of "Forian" Affairs, rather than "Foreign" Affairs. The Appellant could not explain these issues. [31] However, the rest of the document contained details about the Appellant's mother that were consistent. Furthermore, while official government documents allegedly issued after 1991 are generally suspicious, in 1986, a functioning government did exist, and did have documents in both English and Somali. [32] An original document was not available for me to examine. The Appellant explained that his mother had sent the original, but it was lost in the post. The Appellant's mother still had a copy, and so she sent a copy of that copy, which was the document before me. [33] I have misgivings about the document, but find that there is not enough for me to make a finding that the document is not genuine. I therefore give some weight to this document. Mother's ID Card [34] The Appellant's mother also sent a copy of her ID card. The Appellant explained that after his mother's original birth certificate was lost in the post, she did not want her only other original ID document, the Somali ID card, to suffer the same fate, and so she was only willing to send a copy. I find this explanation to be plausible. [35] In relation to the document itself, it contains a photograph that appears to show the Appellant's mother at the age she would have been in 1985, when the document was issued. There are no sample documents from that era for me to compare to, other than reference in the Landinfo report14 stating that cards issued would have a reference and family number, which this appears to. The other information contained is generally consistent with that put forward by the Appellant. [36] Accordingly, I find on a balance of probabilities that the document is genuine, and give it some weight. Employer's letter [37] The Appellant also provided a letter from his employer in Kenya confirming how they know each other. While the letter is somewhat general, I find it adds some weight to the Appellant's account about his identity and his story. Identity witness [38] The Appellant also produced a new identity witness (the Witness), who alleges to know the Appellant from Somalia after a visit to his home when the Appellant was about six years old. They met each other again in Kenya in 2010. The Witness had a family home in Kenya, although he now lived in Canada at that time. The Appellant and Witness were then put in touch with each other by a mutual friend named XXXX, who was travelling from Toronto to Edmonton, where the Witness lived just after the RPD Hearing. [39] At the RAD Hearing, the Witness confirmed he had now moved to Toronto. I found that the testimony between the Witness and Appellant was generally consistent, although lacking in a lot of detail. That said, the Witness and Appellant had only ever met each other once in Somalia, and the Appellant was only six years old, so it's difficult to expect much more detail than was given under the circumstances. I place some weight on the testimony of the Witness and Appellant in regards to how they know each other. Appellant has made all reasonable efforts to get identity documents [40] It has been well established that getting identity documents in relation to Somali cases is extremely difficult, and that primary documentation is almost never available. It then falls to a decision-maker to assess whether a claimant or appellant has made all reasonable efforts to get evidence to establish their identity. [41] In this case, I find on a balance of probabilities that the Appellant has made all reasonable efforts to get corroborating identity evidence. I certainly have misgivings about some of the evidence in front of me, and I would have preferred stronger evidence to establish identity. However, having reviewed all the evidence that is available, I cannot see what else the Appellant could have done to satisfy me as to his identity. [42] Therefore, I find on a balance of probabilities that the Appellant has established his identity as a Somali citizen, and as a member of the XXXX clan. Appellant faces a serious possibility of persecution on account of XXXX clan affiliation [43] I note that following the National Documentation Package (NDP), members of minority clans face a serious possibility of persecution from Al-Shabaab, majority clan members and the authorities. As the Appellant has established his identity as part of the XXXX minority clan, I find that, on a balance of probabilities, the Appellant would face a serious possibility of persecution on account of his race as a XXXX clan member if he were to be returned to Somalia. State Protection and Internal Flight Alternative (IFA) [44] 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 In this case, the NDP shows that the security provided is not adequate, and what security there is, is in fact not predominantly provided by the state, but by the African Union Mission in Somalia (AMISOM). This mission "' ... is an African Union-led mission [composed of Kenyan, Ugandan, Burundian, Sierra Leonean and Djiboutian troops], mandated by the UN Security Council.'"17 I therefore find, on a balance of probabilities, that state protection is not available to the Appellant in Somalia. [45] Given the overall lack of security anywhere in Somalia, I also find, on a balance of probabilities, that there is no location in Somalia that is safe or reasonable for the Appellant to relocate to. CONCLUSION [46] 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 race as a XXXX clan member. [47] The appeal is allowed. (signed) "T. Card" T. Card March 18, 2019 Date 1 Exhibit P-2, Appellant's Record, Pages 53-57. 2 Ibid., Pages 58-59. 3 Ibid., Pages 60-61. 4 Ibid., Page 62. 5 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. 6 Rule 3(3)(g)(iii), Immigration and Refugee Board of Canada, Refugee Appeal Division Rules, SOR/2012-257. 7 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 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 8 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 9 Immigration and Refugee Protection Act, S.C. 2001, c.27, s.110(6). 10 Exhibit P-2, Appellant's Record, Pages 68-81; Exhibit P-3, Supplementary Appellant's Record, Pages 1-22. 11 Exhibit RPD-1, RPD Record, Pages 3-11. 12 Ibid., Exhibit 2, Pages 12-26. 13 Exhibit P-2, Appellant's Record, Pages 53-55. 14 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Somalia (14 March 2014), Item 3.2, Norway. Norwegian Country of Origin Information Centre, Landinfo, 5 January 2009, Section 2.7, Page 6. 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 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Somalia (14 March 2014), Item 2.3, United Kingdom Home Office, 5 August 2013, Section 1.06, Page 9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB5-03482 RAD.25.02 (September 18, 2018) Disponible en français 11 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