TB8-08821

RAD File / Dossier de la SAR : TB8-08821 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 January 25, 2021 Date de la décision Panel Cheryl Braden Tribunal Counsel for the person who is the subject of the appeal David P. Yerzy 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] I dismiss this appeal. [2] XXXX XXXX XXXX (Appellant) alleges to be a citizen of Somalia. He alleges that he was born and raised in XXXX, Somalia and lived there until 2011 when Al-Shabaab attempted to recruit him and his father sent him out of the country to avoid being recruited. [3] The Appellant alleges that he left Somalia for Kenya in XXXX 2011 and travelled to Kenya and then on to South Africa, where he was assisted there by his father's friend XXXX. He alleges that he attempted to apply for asylum on arrival in South Africa but was told he was too young since he was still a minor, but he remained in South Africa and eventually applied for asylum in XXXX 2015 at which time he received a one month temporary permit. [4] It is alleged that the Appellant was attacked twice while in South Africa, and that XXXX store where the Appellant worked was also attacked and destroyed, and one of the other workers shot and killed in the attack. The Appellant alleges that he decided to leave South Africa due to these attacks, and with the assistance of his father and XXXX, he left on XXXX XXXX XXXX 2016 and travelled to the United States (US) via Brazil, South America, Central America, and Mexico. [5] The Appellant arrived in the US on XXXX XXXX XXXX 2016, where he made an asylum claim and was detained on entry. His US claim was rejected on XXXX XXXX XXXX 2016, but he was granted a withholding of removal. He was subsequently released from detention on XXXX XXXX XXXX 2017 and went to stay with a friend in Minneapolis. [6] The Appellant alleges that on release from detention, he contacted his mother and learned that Al-Shabaab had returned to his home on XXXX XXXX XXXX 2016 to attempt to recruit his brother, and that his father had resisted and was shot and killed by the Al-Shabaab soldiers. [7] The Appellant alleges that he decided to come to Canada due to his fear of being returned to Somalia by US authorities. He entered Canada on XXXX XXXX XXXX 2017 and made a claim for refugee protection. His claim was heard before the Refugee Protection Division (RPD) on March 2, 2018 and rejected on March 27, 2018, on the grounds that he was not a credible witness and did not establish his identity on a balance of probabilities. DECISION [8] 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. NEW EVIDENCE [9] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [10] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 The new evidence submitted in the Appellant's record is rejected [11] The Appellant submitted two pieces of new evidence with his appeal record, as well as an affidavit from the Appellant sworn XXXX XXXX XXXX 2018. The Appellant's affidavit sworn XXXX XXXX XXXX 2018 is inadmissible as new evidence insofar as it provides a broad overview of information and allegations already in the record and contains arguments to dispute the findings of the RPD. However, the affidavit also contains information about the proposed new evidence, which has been considered in my analysis of the admissibility of each of the two documents below. The statement of XXXX XXXX is rejected on credibility grounds [12] The first is a statement from the Appellant's friend XXXX XXXX dated XXXX XXXX XXXX 20183. The Appellant states in his affidavit that he learned that XXXX XXXX XXXX was in Canada on XXXX XXXX XXXX 2018, and that he obtained XXXX XXXX XXXX contact information and contacted him that same day. XXXX XXXX XXXX provided a statement dated XXXX XXXX XXXX 2018 indicating that he knew the Appellant as a child in XXXX, Somalia. XXXX XXXX XXXX describes that he also previously lived in South Africa and saw the Appellant there in 2011 and attests that he knows that the Appellant "is a citizen of Somalia from the town of XXXX". [13] I accept that this evidence became available after the RPD decision. However, I do not find that the evidence is credible on its face. [14] The Appellant stated in his narrative that he "was born in the city of XXXX, Somalia".4 XXXX XXXX XXXX indicates in his statement that he knew the Appellant as a child in XXXX, Somalia as he attended the same school as the Appellant's sister and goes on to say that "XXXX is a small town so I often saw him and his sister outside of school"5. [15] The objective evidence confirms that XXXX, also known as XXXX, is the capital of the Lower Shabelle region with a population of 180,0006. XXXX XXXX XXXX alleges to have been in XXXX until at least 2007 when he would have been XXXX years of age. Under the circumstances, I do not find it reasonable that he would describe the large capital city that he grew up in as a small town. I conclude that on a balance of probabilities, XXXX XXXX XXXX did not grow up in XXXX XXXX XXXX with the Appellant as alleged and that this undermines the credibility of his statement. [16] I also find that the alleged circumstances of the new evidence are suspect. The Appellant states in his affidavit that he found out about XXXX XXXX XXXX being in Canada when he was talking to relatives in Kenya who gave him XXXX XXXX XXXX contact information in the intervening period between the negative RPD decision and the submission of the Appellant's appeal record. The RPD noted in its decision that in addition to concerns about the lack of reliable and credible evidence of the Appellant's personal and national identity, the panel was also concerned with the lack of evidence of the Appellant's alleged 4 year stay in South Africa. The Appellant now alleges that shortly after getting notice of the RPD's findings, he fortuitously happened to get back in touch with a witness who can verify both his identity and his personal history in both Somalia and South Africa. The convenient timing of this discovery would perhaps not be enough on its own to justify rejecting the new evidence on credibility grounds, however, when considered along with my concerns about the content of the affidavit outlined above, I find that these factors together lead to a conclusion that this new evidence is not credible, in consideration of its source and circumstances. As such, I find that XXXX XXXX XXXX statement is inadmissible as new evidence for this appeal. The new evidence from the Kenyan notary is inadmissible under s.110(4) [17] The second piece of new evidence is an affidavit from the notary in Kenya who witnessed the affidavit of the Appellant's mother which was submitted to the RPD, with an attached copy of the mother's Somali passport. The notary attests that the Appellant's mother presented her passport when she swore her affidavit on XXXX XXXX XXXX 2018.7 [18] The RPD drew an adverse inference because there were no identity documents submitted along with the affidavit and the panel was unable to confirm that the affiant's identity was verified by the notary. [19] The Appellant argues on appeal that he could not have reasonably been expected to present this evidence because the need for identity documents to be attached to the affidavit was not known to him until the RPD mentioned it in the hearing and he could not be expected to have anticipated the need to submit these documents. [20] I do not find that the Appellant has established that he could not have been reasonably expected to produce his mother's passport or other identity documents to the RPD. The Appellant was represented by counsel before the RPD. It is standard practice before the RPD to attach identity documents to foreign affidavits in order to bolster their credibility. Further, he was asked at the hearing if his mother's identity was verified by the notary and said he did not know. The RPD did not render its decision for a few weeks after the hearing. I see no evidence that attempts were made to verify the circumstances of the affidavit before the RPD rendered its decision, or to seek time to submit post-hearing evidence on this issue. [21] It is established in jurisprudence that section 110(4) of Immigration and Refugee Protection Act (IRPA) does not provide an opportunity for claimants to supplement a deficient record before the RPD. As stated by the Federal Court: ...the Applicant must put her best foot forward before the RPD, and present all the evidence that is available at the time, whether aware of it or not, unless there is an aspect of injustice arising from unexpected new facts, or old facts that no reasonable amount of due diligence could have turned up. It is not intended to be a tune-up procedure for the RAD that upon learning [of] deficiencies in the Applicant's case, additional evidence that could have been presented to the RPD may be presented as new evidence before the RAD."8 [22] For those reasons, I find that the notary statement and attached copy of the Appellant's mother's passport are inadmissible under s.110(4) of IRPA. The affidavit in response to the RAD's new issue notice is accepted, but the exhibits are rejected [23] On December 3, 2020, the Refugee Appeal Division (RAD) sent the Appellant notice of a new issue in the appeal and invited him to make submissions9. On December 11, 2020, the Appellant responded with submissions accompanied by an affidavit from the Appellant sworn on XXXX XXXX XXXX 2020, with exhibits A through D inclusive10. [24] While the admission of new evidence that is submitted after the appeal is perfected is typically subject to the requirements of RAD Rule 29, in this case since the evidence has been submitted in response to the RAD's notice, RAD Rule 29 does not apply. However, the new evidence must still meet the requirements of s.110(4) of IRPA, and the jurisprudential requirements of credibility, newness and relevance. [25] I find that the affidavit meets the express requirements of s.110(4) and the jurisprudential requirements of relevance and newness as it was submitted in response to new credibility issues identified by the RAD. The Appellant could not have reasonably expected to respond to the RAD's concerns before they were raised to him. As an affidavit duly sworn in Canada by the Appellant herein, I find it is sufficiently credible on its face to meet the threshold for admission as new evidence. [26] The affidavit of the Appellant sworn XXXX XXXX XXXX 2020 is therefore accepted as new evidence. However, I find that the exhibits to the affidavit to be inadmissible. [27] With respect to exhibits A and B, which purport to be copies of the Appellant's friends' South African asylum documents, I do not find that the Appellant has established the relevance of these documents. In his affidavit he states that the documents are submitted in response to the RAD's concerns about the format and authenticity of his own South African asylum document. However, the Appellant's document is an "Asylum Seeker Temporary Permit" while the documents at Exhibits A and B are "Formal Recognition of Refugee Status in the RSA" documents. Since these are not the same kind of documents, the format is not the same and I do not find that these documents are relevant for comparison to the Appellant's permit or are capable of proving or disproving its genuineness. [28] Exhibit C purports to be a photo of the Appellant at a mosque in South Africa while Exhibit D is a printout of the mosque's webpage containing a photo of the same mosque building. The Appellant submits that these documents are submitted as proof that he was once in South Africa, as alleged. The photo is undated but given that the Appellant has submitted it as evidence of his sojourn in South Africa from 2011 to 2016, I deduce that it must have been taken during that period and thus prior to the RPD hearing. The Appellant has not provided any explanation for his failure to present this photo to the RPD. His travel and residential history were live issues at the RPD, particularly given that the determinative issue in his claim was identity. As noted by the RPD in its decision, the Appellant failed to provide any evidence of his alleged stay in South Africa of approximately 5 years, beyond a copy of an asylum permit. I find that the Appellant could have reasonably been expected to produce any evidence he had to prove his travel and residential history to the RPD. He has not justified why these photos were not reasonably available to him for production to the RPD, or why he could not have reasonably been expected to present them to the RPD. As such, I find that the photos are inadmissible under s.110(4) of IRPA. No oral hearing will be held [29] Subsection 110(6) of the IRPA provides that the RAD may hold an oral hearing if new evidence is accepted that raises a serious credibility issue with respect to the Appellant, is central to the decision with respect to the refugee claim, and if accepted, would justify allowing or rejecting the claim. [30] In this case, the only new evidence that was accepted is the affidavit from the Appellant dated XXXX XXXX XXXX 2020 responding to the RAD's new issue notice, which relates to additional credibility concerns with the Appellant's South African asylum documents beyond the existing credibility concerns with that document that were articulated by the RPD. I note that the Appellant has specifically not requested to have a hearing to address this evidence11. The Appellant has only requested an oral hearing to be held related to the new evidence from XXXX XXXX12, which has been rejected. [31] I do not find that the new evidence that was accepted raises a serious credibility issue with respect to the Appellant, as the credibility of both the Appellant and the permit are already at issue in the appeal13. Moreover, I do not find that this evidence would justify allowing or rejecting the claim as the issue of the permit's genuineness will not be determinative of his claim. [32] For those reasons, no oral hearing will be held. ANALYSIS [33] My role is to look at all the evidence and decide if the RPD made the correct decision.14 [34] The Appellant did not present any identity documents from Somalia to establish his identity, which the RPD correctly noted is not unusual in view of the objective evidence regarding the difficulties in obtaining official documentation in Somalia. The RPD considered the Appellant's testimony and the corroborative evidence provided and concluded that he was not a credible witness and that his corroborative evidence was not reliable or sufficient to establish his identity on a balance of probabilities. [35] The Appellant argues that the RPD erred in finding that the Appellant's account of his travel from South Africa to the US was not credible, and by failing to give weight to his documentary evidence, including his South African asylum permit and the evidence of his witnesses. [36] I have reviewed the record and the arguments on appeal in conducting my independent analysis of the Appellant's claim, and while I find that the RPD did make a factual error in its analysis of the circumstances of the Appellant's travel route, I do not find that this error is determinative. I find that the RPD correctly concluded that the Appellant has not established his identity with credible and trustworthy evidence, for the reasons that follow. The RPD erred in drawing an adverse inference with respect to the evidence of the Appellant's travel route [37] The RPD found that the Appellant's testimony regarding his alleged travel route from South Africa to the US was not credible because while he was able to provide the name that was on the false passport he used, he was unable to provide the date of birth that was on the passport. The RPD found it implausible that the Appellant could have passed through airport checkpoints without knowing this information and drew an adverse inference on that basis. [38] The Appellant argues that the RPD erred in its finding, as he only testified that he did not remember the date of birth and did not say that he had never known the date of birth. He submits that he only used the passport once and it is reasonable that he would not remember the date of birth on the document years later when asked by the RPD. Having reviewed the transcript, I agree that the RPD misconstrued the Appellant's testimony and I find that his explanation is reasonable. [39] The RPD further drew an adverse inference based on the Appellant's failure to present or seek out evidence to corroborate his travel route to Canada. He testified to travelling by land through South and Central America and being detained in Panama and Mexico, but presented no corroborative evidence and testified to making no efforts to obtain such evidence, despite being represented by counsel who could assist in obtaining such evidence. [40] The Appellant argues on appeal that the RPD erred by expecting him to obtain such evidence, given that the time between his departure from South Africa until his entry to the US was relatively brief, he has US documents showing that he entered the US from Mexico on XXXX XXXX XXXX 2016, and the exact nature of his route is not particularly relevant to establishing his identity. [41] As the Appellant alleges that he was detained by the authorities in Panama and Mexico and issued a letter directing him to leave the country, it is reasonable to believe that there could be records available to corroborate his travel through these countries. At the same time however, I find that these documents would be of limited probative value in establishing the Appellant's identity as they relate to a brief period in transit and would likely only reflect identity information provided by the Appellant. For that reason, I accept that the Appellant would not reasonably anticipate that these documents would be requested by the RPD and I do not find an adverse inference is warranted. The RPD erred in its plausibility finding about the Appellant's South African asylum permit, but it is not determinative since the permit is fraudulent [42] The RPD went on to examine the South African temporary asylum seeker's permit submitted by the Appellant15. The panel was concerned about how the Appellant obtained the copy of the document that was provided. The Appellant testified that it had been sent to him by email by his father's friend XXXX, who had employed him and assisted him in South Africa. The RPD asked for evidence that the document was sent by XXXX, and the Appellant showed the email on his phone during the RPD hearing. The email does not appear in the RPD record, however, there does not seem to be any dispute that the email originated from a different person and not from XXXX directly16. The Appellant explained in testimony that XXXX had taken the document to another person who had in turn sent it to the Appellant at XXXX request. [43] The RPD found that if XXXX sent the document to the Appellant, it was reasonable to expect that the email would indicate somewhere that it was being sent from XXXX. The panel found it not credible that an email purportedly from XXXX did not have any indication that it was sent by him and drew an adverse inference on that basis. The Appellant argues on appeal that how the document was sent is irrelevant to the determination of whether it is an authentic document. He further submits that the document itself contains sufficient security features and that the RPD could have verified the document with the South African authorities or given the Appellant an opportunity to do so. [44] I do not find that the issue of how the Appellant obtained the copy of the document is irrelevant. Refugee claimants are expected to provide acceptable documents to establish identity and other aspects of the claim, and a claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them17. Although copies of documents may be admitted into evidence and given weight, clearly, original documents are the best evidence and provide the best opportunity for the RPD to assess the credibility and weight to be given to the document. The original copy of the South African permit that was allegedly once in the Appellant's possession was not offered to the panel for scrutiny, thus it was reasonable for the panel to inquire as to its whereabouts and as to how the Appellant obtained the copy presented. [45] While it was not an error to inquire about where the copy of the document originated, I do find that the RPD erred in not accepting the Appellant's explanation for the permit being sent from another person's email without any mention of it having been sent by XXXX. In my view, the panel made an unsupportable plausibility finding here. According to jurisprudence, implausibility findings may only be made in the clearest of cases, which has been found to include circumstances in which it is "clearly unlikely" that the events occurred in the asserted manner based on common sense or the evidentiary record18. I do not find that the alleged circumstances of the emailed permit meet this standard. [46] However, while I find that the RPD erred in its plausibility finding, having examined the document, I find that on a balance of probabilities, the permit presented by the Appellant is not a genuine document. Thus, I find that the RPD's conclusion that the permit is not reliable is nonetheless correct. The RAD's concerns with the South African permit [47] With respect to the Appellant's submission that the RPD should have verified the authenticity of the permit with the issuing authorities, I find that this is not properly the role of the RPD, or the RAD. It is up to the Appellant to provide all necessary documentation to prove his claim. Moreover, the RPD and the RAD are recognized as possessing expertise in the evaluation of foreign identity documents. It does not appear that the RPD engaged in an analysis of the permit document itself, having found the circumstances of the document's arrival in Canada to render it unreliable. However, I have conducted an analysis of the permit and noted a number of issues on its face that lead me to question its genuineness: * The Appellant has declared his date of birth (DOB) in his Canadian refugee claim as XXXX XXXX XXXX1996 however, the permit indicates that the holder's DOB is XXXX XXXX XXXX XXXX1996 using the DD/MM/YY format, which is XXXX XXXX XXXX 1996; * The format of the permit does not accord with the format of the sample permits available in objective evidence prepared by the IRB Research Directorate19, namely, the sample documents contain a field for the permit holder's address directly under the permit holder's surname, however the document presented by the Appellant does not contain an address field, suggesting that it may have been altered; * While the permit indicates that it was issued in Pretoria, the Appellant testified that he went to the Home Affairs office in Johannesburg to get it20; * While the permit indicates an expiry date of XXXX XXXX XXXX XXXX2015 at the top, it also indicates at the bottom of the permit "Number of Extensions:1, Permit Expiry Date: XXXX XXXX XXXX XXXX2016". This suggests that the permit originally set to expire on XXXX XXXX XXXX XXXX2015 was extended to XXXX XXXX XXXX XXXX2016, while the Appellant testified that he obtained a permit which was valid for one month and did not renew his permit; and * The permit holder signature on the permit does not match the Appellant's signature on his Canadian and US application forms, while his signature has a consistent appearance throughout the many times he signed his name in connection with his US and Canadian applications21. [48] These issues were not raised to the Appellant by the RPD, thus the RAD notified him of its concerns on XXXX XXXX XXXX 2020. The Appellant responded by way of affidavit sworn XXXX XXXX XXXX 2020, which was accepted as new evidence in this proceeding. [49] In his affidavit, the Appellant acknowledges that the permit has the wrong date of birth and submits that he noticed the error but did not want to go back to the authorities to have it corrected because they are known to be hostile towards Somali refugees and since the error had no practical impacts on him at the time, he decided not to seek to have it corrected. I find that this explanation is plausible and reasonable, and I therefore accept it and draw no adverse inference on this discrepancy. However, I do have outstanding concerns with the remaining issues. The Appellant's South African asylum permit is not genuine on a balance of probabilities [50] The Appellant acknowledges that his signature is different on his permit and submits that his signature was different because when he signed the document in South Africa in XXXX 2015, it was the first time he had ever signed an official form and was nervous and signed quickly. He explains that by the time he reached the US in XXXX 2016, he had gotten used to signing things and developed a standard signature. [51] I do not find that the Appellant has adequately explained how he developed a new signature over the period of just over a year from the issuance of his South African permit in XXXX 2015 to the time he signed his US asylum application on XXXX XXXX XXXX 2016. The Appellant says he had no reason to sign his name while in Somalia or until he signed his permit in XXXX 2015. Given that the Appellant has maintained that he only obtained one permit from the South African authorities, and that he travelled to the US using a false document in a different name, it would appear that he would have continued to have no reason to sign his name until he arrived in the US. It is not clear how he got used to signing official documents and developed a consistent signature in the meantime. I note that the Appellant signed many documents in the course of his US and Canadian refugee applications, and his signature has a remarkably consistent appearance throughout his US and Canadian forms but looks very different on his permit. [52] The Appellant also acknowledges that his permit is missing the field for 'residential address' and suggests that the form may have changed between 2015 when his form was issued and 2019 when the sample in the objective evidence was produced. Having reviewed his permit against the sample documents in the record, I find that they are virtually identical in wording, format and spacing other than this area which contains the address field on the sample permit but has a large blank area on the Appellant's permit with the letters "JHB" apparently at random. JHB is a common abbreviation for Johannesburg, causing concern as to whether the original document did indeed include the residential address field in that area but was subsequently altered. I also find it unlikely that if changes were made to the format of the form, it would remain otherwise completely identical in format. [53] The Appellant submits that he did obtain the permit in Johannesburg but clarifies that he did not receive it on the same date he applied, rather, he applied one day and was told to return 30 days later to pick up the permit. He speculates that in the interim period, the document may have been produced in Pretoria and sent back to Johannesburg. He acknowledges that the permit reflects one extension while he maintains that he did not seek any extension and speculates that it was an error or a notation internal to the issuing authority. He further submits that he did not state before the RPD that he had a document with a one-month validity, rather, he went to an interview and then returned and got the document a month later. [54] I find that the Appellant's submission is inconsistent with the other evidence in the record. While he submits that he has always maintained that he applied for the permit and then returned a month later to obtain it, I find that his narrative is clear that he applied and "was given a one month temporary status"22. His testimony at the RPD further supports that conclusion: MEMBER: Can you please describe the process for obtaining the Asylum Seeker permit. CLAIMANT: When we went to that office, my name, I was at that, they asked me about my name, when I was born, my nationality. I was asked quite a few questions again, then I was issued this letter, which was one month. MEMBER: Did you go to renew it? CLAIMANT: Before I renew it, I left.23 [55] There has been no suggestion that the Appellant returned to the office to obtain the permit a month after he applied for it until now. Further, as noted above, the document bears an original expiry date of XXXX XXXX XXXX 2015 at the top and then indicates at the bottom permit "Number of Extensions:1, Permit Expiry Date: XXXX XXXX XXXX XXXX2016". In this new version of events put forward by the Appellant, he applied for the permit on XXXX XXXX XXXX 2015 and returned to the office a month later on XXXX XXXX XXXX 2015 to obtain it. However, if the permit was first issued on XXXX XXXX XXXX 2015, it is not clear why it would also reflect an original expiry date of that same day. Moreover, in addition to being issued in Pretoria on XXXX XXXX XXXX 2015, the document also reflects that the information was captured on XXXX XXXX XXXX 2015 in Pretoria, while the Appellant maintains that he applied at the office in Johannesburg. [56] I acknowledge the Appellant's argument that the South African permit deserves evidentiary weight because it contains a photo, fingerprint, stamps, seal and a barcode. However, when I consider the totality of the evidence before me, I find that the Appellant has not adequately explained a number of significant concerns with the appearance and circumstances of the permit and I conclude that it is not genuine on a balance of probabilities. I therefore give it no weight in establishing his identity or his alleged sojourn in South Africa. The submission of a fraudulent document undermines the Appellant's overall credibility [57] I further find that the presentation of this document undermines the Appellant's credibility overall. In making this finding, I am mindful that the Federal Court has cautioned that findings that the submission of false documents have an effect on the overall credibility of a claimant must be cautiously approached24. In this case, it is not just that a document has been found to be fraudulent based on irregularities on its face, but also that the information on the document contradicts the Appellant's testimony about the circumstances of its issuance. As such, I am satisfied that an adverse credibility inference is warranted, and I find as a result that the presumption of truthfulness of the Appellant's sworn testimony is rebutted. The lack of corroborative evidence from South Africa is not reasonably explained [58] As noted by the RPD, there is no corroborative evidence to support the allegation that the Appellant spent four years in South Africa. Noting the Appellant's testimony that his father's friend XXXX had forwarded a copy of the Appellant's asylum permit, the RPD asked the Appellant why there was no corroborative evidence from XXXX himself. The Appellant responded that XXXX was busy and only able to send the permit. The RPD found this to be unreasonable given the extent of assistance that was alleged to have been provided to the Appellant by XXXX and drew an adverse inference. [59] The Appellant argues on appeal that the RPD erred in this finding, as he was not put on notice that he required any additional evidence to corroborate his stay in South Africa and because the panel speculated about the extent of assistance that XXXX should be willing to provide. [60] I do not accept these arguments. It is trite law that a refugee claimant is expected to put their best foot forward and provide all available evidence to the RPD in support of their claim. Identity was a live issue in the Appellant's claim, and he was represented by counsel. Under the circumstances, I find that the Appellant could have reasonably been expected to produce any evidence he had to prove his identity before the RPD, including his evidence of his travel and residential history. [61] I also agree that it is not plausible that XXXX, alleged to be a friend of the Appellant's father who assisted him for years including receiving him in South Africa in 2011 and providing him with a place to stay, employing him for four years, assisting him with the asylum process in South Africa, accompanying him to the South African immigration authorities and vouching for his identity to immigration officials, arranging and funding a smuggler to bring him to the US, and sending him a copy of his South African permit for his Canadian refugee hearing, would then refuse to write a letter to assist the Appellant with his refugee claim. [62] Moreover, I note that it is not clear from the Appellant's testimony that he did in fact ask XXXX for a support letter. The testimony in this area was as follows: MEMBER: Did you ask XXXX for a letter? Not the Temporary Asylum Seeker permit but a letter of support for your claim? CLAIMANT: He was a very peacey (ph) with his life and he said that I, I, that's all I can, he looked for all kinds of docu-, documents that he can find for me but he's told me that only can send it to me or start there.25 [63] I do not find that the Appellant has demonstrated that he made reasonable efforts to obtain corroborative evidence of his alleged time in South Africa. In summary, the Appellant alleges to have been in South Africa for 4 years but the only document that he has provided to establish his presence there has been found to be fraudulent. I agree with the RPD's finding and I too draw an adverse inference based on the Appellant's failure to produce any reliable documents concerning his 4 year stay in South Africa. The evidence of the Appellant's identity witness is not reliable [64] The RPD also found that the testimony of the Appellant's identity witness was insufficient to establish the Appellant's identity. The witness testified that he was a neighbour to the Appellant's family in Somalia and he estimated that he had last seen the Appellant in 2003 when the Appellant was approximately 7 years old. The witness and the Appellant did not have any contact with one another after 2003 until a chance encounter in Canada in 2017. The witness did not recognize the Appellant when they met in Canada, but the Appellant approached him and identified himself as being part of a family that the witness knew back in Somalia. The RPD found that the witness' statement confirming the Appellant's identity was unreliable given the amount of time that had passed and the fact that the Appellant would have been a young child when the witness last saw him and his appearance would have changed significantly in the intervening period. [65] The Appellant argues that the RPD erred by failing to give weight to the witness's testimony, and further submits that it is not reasonable to expect the witness to attest to the Appellant's activities in the period between their last meeting in 2003 until they met again in 2017. [66] The RPD did not make an adverse finding based on the witness's lack of knowledge of the Appellant's activities or whereabouts in the years since the witness left Somalia, rather the panel found that the witness identified the Appellant based on the Appellant's statement that he was part of the family with whom the witness had a relationship in Somalia. The RPD found that since the witness's knowledge of the claimant's personal identity is based on what the claimant told him and not as a result of his own independent knowledge, it is not highly probative corroborative evidence of the Appellant's identity. [67] Given that the witness's testimony that the Appellant is who he says he is relies in large part on the Appellant's own statements to the witness and the Appellant has been found lacking in credibility, I agree with the RPD that the evidence given by this witness deserves little weight and is insufficient to establish the Appellant's identity. The remaining corroborative evidence is not sufficient to establish the Appellant's identity [68] The Appellant also submitted a number of other corroborative documents in support of his identity. The RPD considered these documents and found that they were unreliable or lacked sufficient weight to establish the Appellant's identity. I agree with the RPD's findings for the reasons set out below. The affidavit of XXXX XXXX and XXXX XXXX XXXX [69] First, the RPD rejected a joint affidavit from XXXX XXXXandXXXX XXXX XXXX XXXX XXXX noting that while XXXX stated in the affidavit that he had known the Appellant since birth, the Appellant testified that he had in fact never met XXXX. The Appellant accepts that the RPD was correct to dismiss the evidence of XXXX on that basis and I agree. [70] The RPD also gave little weight to the affidavit as it related to XXXX, noting that when the panel asked the Appellant who XXXX was, the Appellant responded by asking the panel to identify XXXX to him. The Appellant later testified that he just wanted to clarify that the panel was no longer referring to the previous affiant XXXX, however the RPD rejected this explanation and drew an adverse inference based on the Appellant's inability to identify his own witness. [71] The Appellant argues that the RPD simply caught him off guard with the change in the subject of its questioning and that the panel erred by making an adverse finding based on a momentary lapse of concentration. [72] I agree with RPD, that the Appellant's explanation does not make sense in the context of the questioning26, and I find that the Appellant's inability to identify this witness undermines the credibility of the witness's evidence. I further note that in fact, the Appellant testified that he did not know either XXXX or XXXX, and that they are both friends of his mother's who were present at his birth and attested to his identity on that basis27. As neither of these individuals has seen the Appellant since birth, I find that the affidavit does not establish, on a balance of probabilities, that the Appellant before the RAD is the person whose birth they observed in 1996 in Somalia. The XXXX XXXX letter [73] The Appellant also submitted a letter from XXXX XXXX, a Somali community service organization in Canada. The author attests to the Appellant's Somali nationality based on an assessment of his knowledge of Somalia's geography, culture, customs, language and other related indicators. The RPD found that many of the factors assessed are not determinative of the Appellant's citizenship and that the letter does not contain sufficient reliable and trustworthy evidence as to how the author verified the Appellant's identity, thus the panel gave the letter little weight in establishing the Appellant's identity. [74] The Appellant argues that the RPD erred by failing to give weight to this letter, and that the RPD erred by failing to notify him of any concerns it had with the letter. Counsel submits that there is objective evidence in the record attesting to the role of community service organizations in establishing the identity of Somali nationals28 and argues that it is unfair to draw an adverse inference when no questions were asked to the Appellant about this evidence. [75] It is not in dispute that letters from community service organizations including XXXX XXXX can provide probative evidence of identity for refugee claimants in some circumstances. Indeed, the objective evidence relied upon by the Appellant outlines the practices of numerous organizations in support of resettlement of Somali refugees, many of which include independent verification of identity by fellow community members and assistance in finding identity witnesses to vouch for their identities. [76] In this case however, the letter outlines that the Appellant's identity assessment was based on his completion of a questionnaire and participation in an oral interview with a representative from the organization. Contrary to the counsel's submission on appeal, the Appellant was in fact questioned before the RPD by his counsel about his experience with XXXX XXXX29. He testified that he was interviewed for approximately 20-25 minutes and knew most of the answers to the questions posed, which were factual questions about Somalia. [77] I do not find that the RPD erred by failing to confront the Appellant with its specific concerns about the methodology used by XXXX XXXX to determine his identity. The panel is entitled to consider this independent evidence for what it says and weigh it accordingly. Even if I am wrong, the Appellant has now had the opportunity to make arguments to the RAD in response to the Appellant's concern. [78] Having reviewed the letter and the Appellant's arguments, I find that the letter is not persuasive evidence of the Appellant's original or current nationality. The Appellant could have knowledge of Somali geography, customs, language and similar factors without being a citizen of Somalia. I further note that the assessment is based on the Appellant's statements to the interviewer about his origin, in which he advised that he is a Somali national from the Biamaal (sic) clan born in XXXX, Somalia. Given that the Appellant has been found lacking in credibility, these statements are not reliable. There is no indication that the XXXX XXXX officials knew the Appellant prior to the interview or that they took steps to verify the Appellant's identity with any independent sources. For all of those reasons, I give this letter little weight in establishing the Appellant's identity. The Appellant's mother's affidavit and the Somali deed [79] Finally, the Appellant also submitted an affidavit from his mother30 along with a copy of a deed from Somalia showing that his father purchased land in Somalia in 197231. The RPD gave little weight to these documents, noting that there was no indication on the affidavit that the identity of the affiant was verified. The panel further found that while the deed establishes that the Appellant's family owned land in Somalia, it does not establish the Appellant's citizenship or former residence there. [80] The Appellant argues that the panel erred by failing to give the Appellant an opportunity to contact the notary to verify whether the affiant's identity was verified, and by speculating that the affidavit was not properly executed. He submits that the affidavit from his mother corroborates his testimony and should have been given some weight. He further submits that the deed corroborates his testimony that he hails from XXXX. [81] I do not find that the RPD erred by giving little weight to these documents, or by failing to provide the Appellant with an opportunity to contact the notary for additional information. First, I do not find that the deed is probative evidence of the Appellant's identity or residence in Somalia. It is simply evidence that the person alleged to be his father purchased property in XXXX nearly 25 years before the Appellant was born. [82] Second, the Appellant was represented by counsel before the RPD and it is a common practice before the RPD to attach identity documents to affidavits, particularly those sworn in foreign jurisdictions, in order to clearly link the affiant to the document. The Appellant was questioned as to whether he knew if the affiant's identity was checked, and he responded that he did not. It was open to him or his counsel to request time to seek further information or evidence, but no such request was made. I agree that the lack of corroborating identity documents or information as to whether the identity of the affiant was verified reduces the weight that can be given to the affidavit. Even accepting that this affidavit was properly sworn and the affiant's identity was verified, it is a brief statement that the RPD and RAD have been unable to test through cross-examination, which diminishes the weight that can be given to the document. Finally, it does not speak to the Appellant's activities after 2011 or preclude citizenship or status in another country. CONCLUSION [83] The Appellant is generally lacking in credibility and has failed to provide sufficient reliable and trustworthy corroborative evidence to establish his identity on a balance of probabilities. [84] 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) Cheryl Braden Cheryl Braden January 25, 2021 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, at s. 110(4). 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FC 385 (CanLII). 3 Exhibit P-2, Appellant's Record, at p. 57; Exhibit RAD-1, Member's Directions, June 19, 2020; Exhibit P-3, Response to Member's Directions, June 19, 2020 (Clear copy of Farah Abdi's statement). 4 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 24. 5 Exhibit P-3, Response to Member's Directions, June 19, 2020 (Clear copy of XXXX statement). 6 National Documentation Package (NDP) for Somalia (October 30, 2020), item 1.1: Somalia, United Nations. Cartographic Section, December 2011; NDP for Somalia (October 30, 2020), item 1.6: Somalia. 2020 Humanitarian Needs Overview, United Nations. Office for the Coordination of Humanitarian Affairs, December 2019, at p. 32. 7 Exhibit P-2, Appellant's Record, at p. 54. 8 Abdullahi v. Canada (Citizenship and Immigration), 2016 FC 260 (CanLII), at para. 14. 9 Exhibit RAD-2, Member's Directions, December 3, 2020. 10 Exhibit P-4, Response to Member's Directions, December 11, 2020. 11 Ibid., at p. 9. 12 Exhibit P-2, Appellant's Record, at p. 79. 13 Ikheloa v. Canada (Citizenship and Immigration), 2019 FC 1161 (CanLII). 14 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 15 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 92. 16 Exhibit RPD-1, RPD Record, RPD Reasonns at pp. 7-8; Transcript of March 2, 2018 RPD Hearing, at pp. 22-23; Exhibit P-2, Appellant's Record, at p. 67. 17 Rule 11, Immigration and Refugee Board, Refugee Protection Division Rules, SOR/2012-256; IRPA, supra, footnote 1, at s. 106. 18 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII); Al Dya v. Canada (Citizenhip and Immigration), 2020 FC 901 (CanLII). 19 Exhibit RAD-2, Member's Directions, December 3, 2020: Quick Responses from IRB Reasearch Directorate, ZAF-QR-200388-E (disclosed to the Appellant with the RAD's directions). 20 Transcript of March 2, 2018 RPD Hearing, at p. 9. 21 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 30; Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 32, 33, 40, 44, 48, 50, 51, 53, 57, 64, 68, 71, 73, 82. 22 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 26. 23 Transcript of March 2, 2018 RPD Hearing, at p. 10. 24 Guo v. Canada (Citizenship and Immigration), 2013 FC 400 (CanLII). 25 Transcript of March 2, 2018 RPD Hearing, at pp. 8-9. 26 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 9, para. 28. 27 Transcript of March 2, 2018 RPD Hearing, at pp. 16-17. 28 NDP for Somalia (October 30, 2020) item 3.5: Canada and Somalia: Somali-Canadian associations in Canada, including their history, activities, services offered and affiliation with Somalia; letter issued to establish the identity of Somalis and the methods used for this purpose (2016-August 2018), Immigration and Refugee Board of Canada, Response to Information Request ZZZ106153.E, 13 August 2018. 29 Transcript of March 2, 2018 RPD Hearing, at pp. 28-29. 30 Exhibit RPD-1, RPD Record, Exhibit 8, at p. 106. 31 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 103-105. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-08821 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