TB8-04755

RAD File / Dossier de la SAR : TB8-04755 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision May 17, 2019 Date de la décision Panel M. Pettinella Tribunal Counsel for the person who is the subject of the appeal Micheal Crane Barrister and Solicitor 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 OF THE APPEAL AND BACKGROUND [1] XXXX XXXX XXXX ("the Appellant") alleges a fear of al-Shabaab in Somalia. She alleges she fled Somalia in XXXX of 2017 after members of al-Shabaab condemned her family to death. The Appellant and her immediate family members travelled to Kenya where the Appellant remained for approximately three months. With the assistance of an agent, the Appellant then travelled to Canada using false identity documents. She filed a claim for refugee protection approximately one month after her arrival. [2] The Refugee Protection Division (RPD) denied the claim, finding that the Appellant lacked credibility and failed to establish her identity. [3] On appeal, the Appellant submits that the RPD made a number of errors. She maintains that she established her identity and ought to be determined to be a protected person or a Convention refugee. [4] Having found that the RPD did not make any significant errors in its analysis of the evidence or in its findings that are fatal to its determination, I am confirming the decision of the RPD and dismissing the appeal. SCOPE OF THE APPEAL [5] As held by the Federal Court of Appeal in Huruglica, the Refugee Appeal Division (RAD) is to review decisions of the RPD on a standard of correctness on questions of law, fact, and mixed fact and law, after conducting an independent assessment of the evidence before it.1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard.2 Unless otherwise stated, a correctness standard has been applied. ANALYSIS Admissibility of documents not previously provided [6] Following the filing of her appeal record, the Appellant submitted an application under Rule 29 of the Refugee Appeal Division Rules to use a document, and provide further written submissions, not previously provided. The Appellant applies to provide the affidavit of XXXX XXXX XXXX (and documents attached to the affidavit).3 She maintains that this evidence was not reasonably available for her hearing because Mr. XXXX was not in Canada from XXXX XXXX, 2017 to XXXX XXXX, 2018. She maintains that Mr. XXXX knew her before her hearing but was not going to be available because he was travelling. She maintains that Mr. XXXX identity had been accepted by the RAD and he has a travel document issued by Canada, and accordingly his identity is credible. She maintains that the evidence of Mr. XXXX is relevant because her claim failed on identity, and the evidence of Mr. XXXX corroborates her allegations and her identity. She submits that the evidence is credible because Mr. XXXX was found to be credible by the RAD. [7] The Appellant maintains that her application to provide Mr. XXXX affidavit was filed as soon as possible in the circumstances which are described in her affidavit, Mr. XXXX affidavit, and in the affidavit of the interpreter. She briefly summarizes these circumstances as follows: Mr. XXXX contacted her in April of 2018 to advise her that he had returned to Canada and she asked him to be a witness; her affidavit and the affidavit of Mr. XXXX were completed on May 7, 2018; and her counsel provided the application to the Board as soon as reasonably possible. [8] I considered the Appellant's explanation for submitting new documents after her appeal record was filed. Having considered relevant factors, including those mentioned in RAD Rule 29, I am disallowing the Appellant's application to use a document (the affidavit of XXXX XXXX XXXX and attachments) for the following reasons. In my view, the affidavit of Mr. XXXX and attachments do not meet the statutory requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). [9] Mr. XXXX indicates in his affidavit that he met the Appellant at the Somali Immigrant Aid Association in Canada in November of 2017. The Appellant had allegedly entered Canada on XXXX XXXX XXXX 2017 and she filed a claim for refugee protection on August 11, 2017. Her RPD hearing was scheduled for November 17, 2017, but she failed to appear for her hearing, as she alleged she was ill on that day. She was present at her abandonment hearing on November 24, 2017, and her claim was declared to have not been abandoned. The Appellant's claim was then heard on January 10, 2018. [10] The only explanation the Appellant has offered for not providing Mr. XXXX affidavit prior to the rejection of her claim is that Mr. XXXX was not in Canada from XXXX XXXX XXXX 2017 to XXXX XXXX, 2018, therefore I must conclude that this is the only reason. However, the Appellant has failed to explain why she was unable to obtain an affidavit from Mr. XXXX between the time they met in November of 2017 until the time Mr. XXXX departed Canada in XXXX of 2017. The Appellant has failed to establish that an affidavit from Mr. XXXX was not reasonably available prior to the rejection of her claim. [11] I also note that the information contained in Mr. XXXX affidavit pertaining to the Appellant's identity and her allegations, did not arise after the rejection of her claim. Also, identity is an issue in all claims for refugee protection, and is of particular concern for refugee claimants without official identity documents, such as the Appellant. The Appellant could reasonably have been expected to have obtained and provided the RPD with an affidavit from Mr. XXXX, prior to Mr. XXXX departure in XXXX of 2017, before the Appellant's claim was rejected. Since it does not meet the test for new evidence, the affidavit of Mr. XXXX (including attachments) is not accepted in this appeal. Request for an oral hearing [12] The Appellant requests an oral hearing so that Mr. XXXX can be heard. [13] My jurisdiction to convene an oral hearing is limited: there must be admissible new evidence that raises a serious issue of credibility, is central, and determinative.4 No new evidence has been admitted in this appeal so no hearing can be convened. The Appellant's request for an oral hearing is therefore denied. Identity/credibility findings of the RPD Witness [14] The RPD noted that the Appellant's witness testified over the telephone during the hearing. The RPD found that, while the witness' testimony was generally consistent, it was insufficient to establish the Appellant's identity on a balance of probabilities. It noted that the best the witness' testimony can do is place the Appellant in Somalia in 2015. It also noted that the identity of the witness was unverifiable as it had no way to determine if the person testifying on the phone was the same person whose refugee document was provided to the Board. The RPD found the witness' knowledge of the Appellant's personal and national identity was based on what the Appellant told the witness and not as a result of knowledge acquired independently or as the result of a long-term relationship or association in Somalia. [15] The Appellant submits that the RPD erred in finding that the credibility of her witness was reduced because he was not present at the hearing and had to be questioned by telephone. She maintains that this was an error because the evidence of her witness was found consistent. She maintains that it is very important evidence that the witness knew, as a direct witness, that she had a restaurant in Qoryoley in January of 2015. She submits that the evidence of her witness ought to be given substantial weight as a witness who has a solid basis for his information regarding her. She maintains that the witness was found credible by another panel of the RPD, and the RPD on this occasion found that his evidence was consistent. She submits that the RPD erred in evaluating each piece of evidence to see if each item by itself proved her identity. She submits that the evidence of her witness should be found, by itself, to establish her identity, but if not, this evidence ought to be evaluated with the other credible evidence. [16] In my view, the witness' evidence deserves no weight in terms of establishing the Appellant's identity. The Appellant alleges that she met her witness in Somalia because he would eat at her restaurant each of the four times he was in Qoryoley. The witness indicated in his affidavit, and over the phone at the hearing, that he ate at the Appellant's restaurant each of the four times he was in Qoryoley.5 The only portion of the evidence that was consistent was that the witness ate at the Appellant's restaurant in Qoryoley each of the four time the witness was in Qoryoley. This is hardly a reliable method of confirming the veracity of the statements made by the Appellant and her witness since the statements were included in the witness' affidavit. The limited information in the witness' affidavit could easily be memorized and reiterated at the hearing, which it was. [17] More telling about the veracity of the Appellant's testimony is his lack of knowledge and vague testimony regarding how many times he allegedly went to the Appellant's restaurant in Qoryoley, the frequency of those visits, and how many seats were in the restaurant. The following excerpts from the hearing demonstrate this. Counsel: How many seats in the restaurant? Witness: I cannot exactly tell, but there were some chairs were there and there were some woods (phonetic) that people sit on, but I cannot estimate. ... Counsel: Okay. How many meals did you eat there every day? Witness: Whenever I'm hungry. Whenever I'm hungry, I eat there. Counsel: Well would that be once a day, twice a day, three times a day? Witness: Well it depends when I'm hungry; sometimes it was the morning, sometimes it was at noon; sometimes for dinner. Counsel: Did you go there every day or only a few days, some days? Witness: I do not know the town well, so every day I used to go to that place and eat at house restaurant. [18] The witness alleged to have eaten at the Appellant's restaurant every day during the three weeks he was in Qoryoley in January of 2015, every day during the three weeks he was in Qoryoley in June of 2015, every day during the two weeks he was in Qoryoley in October of 2015, and every day during the three weeks he was in Qoryoley in January of 2016. Considering the alleged total of eleven weeks that he ate at the Appellant's restaurant, one would expect him to be able to provide the approximate number of times he frequented the restaurant, the frequency of his daily visits to the restaurant, and the approximate number of seats in the restaurant. His inability to do so undermines his credibility and the credibility of his and the Appellant's allegation that they knew each other from Somalia. It also further undermines the Appellant's general credibility and the credibility of her alleged identity. Appellant's travel to Canada [19] The RPD found the Appellant's testimony regarding her travel to Canada inconsistent and evolving. It noted that the Appellant first stated she did not know the name in the passport she used, and then said she thought it might be "XXXX", but could not remember. It noted that the Appellant thought the passport might be Australian, but indicated that she had never held it. It noted that the Appellant indicated that the smuggler did not give her any instructions, and then said that the smuggler said he would talk for her and she was to feign illness. [20] The RPD noted that the Appellant alleged to be uneducated and did not know how to read or write. It noted that the Appellant testified assertively and confidently, and did not appear overwhelmed or intimidated by the hearing room atmosphere. It found that the Appellant did not present as someone who has an unsophisticated background. [21] The RPD found it not credible that the Appellant was unsure of the name in the passport or the country the passport was from. It did not accept that a person travelling under an alias using an Australian passport or any passport would not know the name they are using. The RPD found it is not reasonable that the Appellant could not provide any documents to corroborate her travel to Canada such as luggage tags, boarding pass or ticket. It also found it not credible that the Appellant could feign illness prior to boarding the plane. It noted that if the Appellant vomited as alleged, this would likely have drawn attention to her and could possibly have prevented her from boarding. The RPD found that the Appellant was evasive about her true identity and was attempting to mislead it. It found that her credibility was seriously undermined. [22] The Appellant submits that the RPD erred on this issue because according to the jurisprudence and UNHCR, points regarding travel are not very relevant to credibility and cannot be significant in rejecting a claim. She maintains that her credibility was impugned for essentially following the directions of the smuggler. She submits that the RPD erred in using a Western paradigm noting that women are often subordinate in Somali culture, and the RPD failed to properly consider that she has no education. The Appellant submits that the RPD speculated that the smuggler should have given her details regarding the passport, but maintains that there is no evidence as to what smugglers tell their clients. She submits that the RPD speculated that each passenger will hold their own boarding pass even if more than one person is travelling together. [23] The Appellant also submits that she was not inconsistent regarding the name in the passport she used. She points out that she stated she did not know the name, but thought it was XXXX. She maintains that the jurisprudence and the UNHCR state that lying about how you came to Canada is secondary to the issue at hand. Moreover, the Appellant maintains that it would be just as likely that the agent did not care or did not know what information would have been necessary, or in fact knew that there would be no point in trying to get her to memorize a lot of information that she was not going to be able to repeat, or in fact knew exactly what Kenyan or Canadian officials would ask. [24] It is submitted that the RPD erred in using the "reasonable-person-smuggler" as a frame of reference to assess plausibility. She submits that the concerns of the RPD are erroneous, as this is not the clearest of cases for implausibility. She submits that if her evidence left something to be desired on this score, the RPD failed to properly consider that she has no education and has never left Somalia before and is not sophisticated in illegal travel. She maintains that the RPD speculated as to what the smuggler should have done. She submits that the RPD erred in failing to consider that the single journey on which the passport was used originated in Kenya, and there is no evidence as to what corruption might have taken place in Kenya. [25] The Appellant also submits it was erroneous for the RPD to impugn her credibility because she testified with confidence. She maintains that this was a very subjective reason to impugn her evidence. [26] In my view, while travel may not be significant in many cases, it is significant in cases where identity is an issue, involving credibility concerns, and involving an individual who alleges to have fled their country to another country, prior to coming to Canada. The case at hand is such a case. [27] The RPD was not wrong to find that the Appellant's inconsistent testimony regarding her alleged lack of knowledge regarding the information in the false passport she used, and the unlikelihood of her version of travel with a smuggler, undermines her credibility. I find that it further undermines her credibility and the credibility of her alleged identity. One would expect a smuggler to instruct their client to memorize the information in the false travel document the client would use to cross international borders. This protects the smuggler and the client from the ramifications of officials discovering that a passenger is using false travel documents, and protects the smuggler from having their operation exposed. Even if corruption or other factors facilitate a smuggler's operation, this does not prevent problems occurring from unforeseen circumstances. A traveler who knows the information in her travel documents reduces the risk of these problems occurring. The Appellant's allegation that she did not know the information in the passport she used to travel to Canada, strains credulity, and it further undermines the credibility of her alleged identity. [28] The Appellant's argument that lying about how one comes to Canada is secondary to the issue at hand, is without merit. When identity is the issue, travel to Canada is significant. Identity documents are required to travel abroad. Therefore, identity is tied to the travel. Moreover, while I accept that a refugee claimant may need to lie in order to leave the country where they allege persecution or harm, I do not accept that they are to continue with their lie in their refugee claim. The Court in Wang held that a refugee claimant may need to lie in order to obtain a visa to get to make a refugee claim, but when he does so, he ought to immediately correct the record and most certainly not later than when the refugee claim is made.6 Letter from Dejinta Beesha [29] The RPD noted that the Appellant attended an interview at Dejinta Beesha (Somali Multi-Service Centre) and her knowledge regarding Somalia and its culture and traditions was tested. The RPD indicated that while the Appellant may have been able to provide answers to questions posed to her about Somalia, information about language geography, heritage, history and culture can be taught and learned, and there was insufficient information as to how knowledge of Somalia establishes a person's name, date of birth or nationality. [30] The Appellant submits that the RPD erred in failing to state how much weight it gave to the Dejinta Beesha letter. She maintains that the RPD should have given more than minimal weigh to the letter. She points out that the Court has indicated that letters from established organizations are a legitimate form of proof in the context of Somali claimants. She submits that the RAD ought to give the letter due weight or at least some weight as to identity (personal, clan and national) because of the challenges that Somali claimants face in proving identity. [31] While I would normally assign some weight to a letter from a Somali community organization in support of a refugee claimant's nationality, especially when there is other credible evidence of the refugee claimant's identity, I am unable to do so in this case considering the lack of other credible evidence going towards the Appellant's personal identity and citizenship. While the organization may have some experience in assessing a person's nationality, it is not mandated to assess an individual's credibility, including credibility as it relates to multiple aspects of an individual's identity, as the RPD is. The Appellant and her evidence have been found to lack credibility and this extends to the letter from Dejinta Beesha. [32] Although the letter provides a brief statement on how the organization assesses a client, it fails to provide an adequate explanation on how it can determine that one of their clients is who she says she is and that the person is a citizen of a certain country. Without identity documents for the client or without verifying the client's identity with credible evidence, it cannot say with certainty that a client is who she says she is or that she is a citizen of Somalia or any other country. There is no indication that the organization had obtained credible evidence of the Appellant's personal identity or citizenship. If it had obtained such credible evidence, one would expect the author to have referred to this evidence in his letter. [33] Furthermore, the letter from Dejinta Beesha indicates that the Appellant attested that she was born in Qoryoley, Somalia and belongs to the Madhiban clan.7 It merely reiterates what the Appellant told them about her place of birth and clan. There is no indication that the organization assessed these aspects of the Appellant's identity. The author fails to assess or make a determination or offer an opinion on these aspects of the Appellant's identity. The letter is deficient in many respects. I therefore assign no weight to the letter from Dejinta Beesha in terms of establishing the Appellant's personal identity, citizenship, or place of origin. Ability to speak the Somali language [34] While the RPD acknowledged that the Appellant spoke in the Somali language, the RPD noted that this is not unique to Somali citizens. It accepted that the Appellant is ethnically Somali, however found that this does not preclude her from having acquired another nationality. [35] The Appellant submits that her ability to speak Somali is a positive point going to identity. She submits that the RPD speculated when it found that she is ethnically Somali, but could have obtained another citizenship. [36] I considered that the Appellant testified in the Somali language. The ability to speak a language does not establish a person's personal identity, nor can it establish a person's citizenship. This is especially relevant for individuals who speak Somali, given that this language is spoken in Somalia, Djibouti, Kenya, and Ethiopia. The Appellant even alleged to have resided in one of the countries outside Somalia, where Somali is spoken. I therefore give the Appellant's ability to speak and understand the Somali language very little weight in terms of establishing her identity. Letter from husband [37] The RPD gave minimal weight to the affidavit of her husband. It noted that there are no identity documents attached to the affidavit, nor was there any explanation or statement as to how the affiant's identity was confirmed by the notary public. It noted that it has no way to verify who signed the affidavit. [38] The Appellant submits that the affidavit was entitled some weight. She points out that it is an interpreted sworn statement, styled like an affidavit, sworn before an "advocate" in Kenya, and submits that it ought to be given more than minimal weight for identity purposes. She submits that the RPD erred in giving the affidavit minimal weight due to the lack of an attached identity document when it acknowledged that Somali nationals cannot obtain identity documents. She also submits that it is an error to find that the notary should have provided proof as to how identity was established. She argues that the RPD's finding on the affidavit from her husband belies its criticism of her failing to obtain the letters it thought she should have provided. She maintains that real Somali citizens are not likely to have official identity documents unless they have status somewhere else, and the evidence is that the persons concerned do not. [39] In my view, it is difficult to give any weight to a document confirming the identity of another person, when the identity of the person who made the confirmatory statements in the document is in question. The affidavit purported to be signed by the Appellant's husband deserves very little, if any weight in terms of establishing the Appellant's identity. The affiant's identity documents are not attached to the affidavit. There is no indication that the notary public whose initials or signature are on the affidavit, or the interpreter who signed the affidavit, verified the identity of the affiant. There is no contact information for the affiant, the notary public, or the interpreter on the affidavit, merely a post office box number in Nairobi for the notary public. I also note that a section of the affidavit is incomplete or is lacking information. Below the signature of the affiant, it reads, "On this 18th day Oct 2017 And signed his/her name in my".8 It is missing information regarding where the affidavit was signed. Considering the irregularities and deficiencies, the document lacks probative value and deserves very little if any weight. Lack of effort to obtain supporting documents [40] The RPD noted that the Appellant made no effort to seek or obtain documents that would establish her identity. It noted that the Appellant had been in contact with a close friend in Somalia (the aunt of her witness) and has an uncle in Somalia, but indicated that she had not tried to obtain documents from them that would establish her identity because she did not now she needed them. The RPD noted the assistance the Appellant received from individuals in Canada and found, under these circumstances, her lack of effort to obtain any documentation that would establish her identity undermines her credibility. [41] The Appellant submits that the RPD erred in indicating that she made no efforts to obtain documents to prove her identity when she provided a letter from Dejinta Beesha and a letter from her husband. She maintains that she might have obtained a letter from the aunt of her witness, but her witness was testifying and his identity had been accepted by the RPD. She maintains that the RPD was being arbitrary in finding that what was filed is not sufficient. [42] I acknowledge that the Appellant provided a letter from Dejinta Beesha and a document purported to be from her husband. However, the letter from Dejinta Beesha has been given no weight in terms of establishing the Appellant's personal identity, citizenship, or place of origin, and the affidavit she provided has been given very little, if any weight in terms of establishing her identity. The Appellant's presentation of evidence of limited probative value does not diminish the fact that she made no effort to obtain corroborating evidence from a close friend and an uncle who allegedly reside in Somalia. The RPD was not wrong to find this lack of effort undermined the Appellant's credibility. I find that it further undermines the Appellant's credibility and the credibility of her alleged identity. Somalia nationality law [43] The Appellant maintains that because she can speak Somali, and has knowledge of her clan and culture, she is a citizen of Somalia by virtue of the Somalia nationality law. She submits that this factor is worth significant or at least some weight. [44] In my view, this argument cannot succeed. The Appellant has not established that her knowledge of Somalia and the Somali language alone is sufficient to meet the criteria for acquiring citizenship in Somalia by operation of the nationality law. Summary [45] The Appellant and her evidence regarding her alleged identity have been found to lack credibility. She provided insufficient credible evidence to establish her identity. It was acceptable for the RPD to expect the Appellant to attempt to obtain evidence from her alleged friend and uncle in Somalia, but she made no effort to do so. She called an identity witness to testify over the phone at her RPD hearing, but the witness' testimony about meeting the Appellant in Somalia lacked credibility. The documents the Appellant provided were deficient, contain irregularities, and lack probative value. Her other evidence regarding her alleged identity contain anomalies. Her evidence regarding how she travelled to Canada has been found to lack credibility. The little evidence found to be credible has very little value in terms of establishing the Appellant's identity. It was not wrong for the RPD to find on a balance of probabilities that the Appellant had failed to establish her identity. Having reviewed and assessed the evidence, I find the same. [46] As she has not established her identity, neither the Appellant's refugee claim, nor this appeal can succeed. CONCLUSION [47] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD that the Appellant is neither a Convention refugee, nor a person in need of protection. This appeal is dismissed. (signed) "M. Pettinella" M. Pettinella May 17, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, para. 103. 2 Ibid., paras. 69-74. 3 Exhibit P-3, Appellant's application record to file additional documents and argument, at pp. 5-52. 4 Subsection 110(6), Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 5 Exhibit RPD-1, RPD Record, at p. 50. 6 Wang, Yong v. M.C.I. (F.C., No. IMM-5464-15), Zinn, August 26, 2016; 2016 FC 972. 7 Exhibit RPD-1, RPD Record, at p. 49. 8 Exhibit RPD-1, RPD Record, at p. 200. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-04755 RAD.25.02 (April 04, 2019) Disponible en français 14 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 (April 04, 2019) Disponible en français