VB3-02589

RAD File No. / N° de dossier de la SAR : VB3-02589 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at In Chambers at Appel instruit à Date of decision February 6, 2014 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) David Matas Conseil(s) du (de la/des) the subject of the appeal 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"), a national of Somalia, appeals the October 7, 2013 determination of the Refugee Protection Division (the "RPD") rejecting his claim for refugee protection. The claim was heard by the RPD on September 13, 2013 and a written decision of the RPD was rendered on September 23, 2013. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA" or the "Act"),1 the Refugee Appeal Division (the "RAD") confirms the determination of the RPD that the appellant is neither a Convention refugee pursuant to section 96 of IRPA nor a person in need of protection pursuant to section 97 of that Act. The appeal is dismissed. BACKGROUND [3] Although the Minister intervened in the RPD proceedings2 and attended at the RPD hearing, the Minister has not intervened in this appeal. [4] Appellant's counsel before the RAD is different than the appellant's counsel at the RPD. [5] No transcript of the RPD hearing is contained in the Appellant's Record (AR). A compact disc (CD) of those proceedings is provided in the Refugee Protection Division Record (RPDR)3 filed in this appeal. Basis of Claim [6] As referenced in the RPD decision4 and the appellant's Basis of Claim Form (BOC),5 the appellant alleges that he is a 45-year-old citizen of Somalia who arrived in Canada on XXXX XXXX, 2013, filing for refugee protection on June 24, 2013. [7] The claimant alleges he is Sunni-Muslim and of the minority Tumaal tribe. He was born and lived most of his life in the XXXX XXXX XXXX XXXX XXXX XXXX XXXX of southern Somalia. He states that he has three sons, ages 3-15, who now live in XXXX with the appellant's mother. é [8] The appellant alleges that his father was killed by the extremist religious group Al-Shabaab in 2009. As well, he alleges that three homes owned by his family had been taken by force by members of a larger tribe, the Habargidir in 1994. [9] Beginning in 1995, the appellant ran a small business in XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX. In XXXX 2010, a group of men from Al-Shabaab ransacked the appellant's business destroying much of it. The appellant was beaten, rendered unconscious, and taken into custody. He was held for three months in custody for violating religious restrictions on the type of activities in which the appellant's business was involved. The appellant's treatment in custody was severe and included torture. After he was released later in 2010, he returned to his home to live with his wife and children. [10] The appellant's wife (and the sons' mother) died in a motor vehicle accident in XXXX 2011. Subsequently, the appellant became romantically and secretly involved with a woman he describes as his "girlfriend" who was from the larger Habargidir tribe. In order to support his children, in XXXX 2012 the appellant opened a XXXX XXXX store. [11] On XXXX XXXX, 2012, the appellant visited his girlfriend. After they had retired for the night a group of armed people dressed in typical Al-Shabaab fashion began to pound on the door, yelling for the appellant. The group forced its way in and captured the appellant's girlfriend while the appellant managed to escape. [12] The appellant then fled further south to the coastal city of Kismayo. From there, on XXXX XXXX, 2012, he travelled to Nairobi, Kenya. After one month, he received news from his mother that Al-Shabaab had sentenced the girlfriend to death by stoning for committing adultery. She was killed on XXXX XXXX XXXX 2012. [13] Through friends of his family who had relocated to Nairobi and his mother, the appellant was able to gather enough funds to obtain false documents enabling him to travel on XXXX XXXX, 2013 from Nairobi via Istanbul to Toronto. The appellant left Toronto on XXXX XXXX 2013 and took a bus to Winnipeg, arriving on XXXX XXXX, 2013 where he was able to locate a friend of his father. [14] The appellant believes that if he returns to Somalia he would likely be killed by Al-Shabaab because of his illicit involvement with his girlfriend. He also believes that the Habargidir tribe is looking for him to do him harm inasmuch as it was because of his involvement with the girlfriend that she was stoned to death. He also believes that the Habargidir tribe will demand "blood-money" because of their loss. RPD Decision [15] The determinative issue for the RPD was credibility. The appellant's evidence was found wanting in two primary respects with a third contributing issue where his evidence was found unreliable. These issues were the appellant's alleged Tumaal clan membership, his reasons for departing Somalia and his travel/immigration history. [16] First, while the RPD found that there was sufficient evidence to determine that the appellant was a Somali national, he had failed to establish that he was a member of the minority Tumaal clan with credible and trustworthy evidence. The RPD found that this was an essential aspect of the claim inasmuch as his clan identity was a fundamental feature of his alleged need for refugee protection. [17] The RPD noted that the corroborative documentary evidence presented by the appellant to the RPD assisted in the conclusion that he was a Somali national but did not provide any reference to his clan identity. As well, the RPD found that the appellant's response to questions about the characteristics of his alleged clan provided unsatisfactorily non-specific answers that were confused with details concerning other clans. The RPD also noted that, when confronted with his apparent ability to testify only about what Somalis in general say about minority clans as a whole and could not speak in detail about issues specific to his allegedly own Tumaal clan, the appellant could only state that the general population mixes up minority groups all the time. In this regard, the RPD found that the appellant's inability to reasonably testify as to the basic attributes of the clan he identified as his own undermined his credibility. In this regard, the RPD also found that the appellant's testimony about his father's relatively successful educational and business background was inconsistent with objective documentary evidence reviewed by the RPD as referenced in the RPD reasons with respect to the situation for Tumaals.6 [18] The RPD also found that the appellant's inability to provide further details about his relationship with the woman from the majority clan, beyond what was written in the appellant's BOC form narrative, did not meet a reasonable expectation that he would be able to provide clear details in response to questions about the relationship for which he allegedly put himself at risk. As well, the RPD found that the appellant's lack of clarity in explaining his failure to include in his BOC narrative anything about his needing to be hospitalized after he learned in Nairobi about his girlfriend's violent death indicated an apparent embellishment, detrimental to the appellant's credibility. [19] Finally, while not being determinative on its own, the RPD found as a contributing factor in coming to the conclusion that the appellant was not credible, was the appellant's evidence that he was able to travel by air from Nairobi, through Istanbul to Toronto, then by bus to Winnipeg where he then randomly found a man who had been a friend of his father's, a man the appellant had not met and whose precise whereabouts were previously unknown, all in 48 hours was, in the RPD's words, "contentious". As well, his allegation that he was able to pass through various border security processes on his travel to Canada on a number of different occasions with a false passport without being asked any questions was unlikely. GROUNDS OF APPEAL [20] Subsection 110(1) of IRPA provides: 110(1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. (emphasis mine) [21] The memorandum of the appellant7 sets out a number of findings found in the RPD decision with which the appellant takes issue, without identifying whether these errors concern questions of law, fact or mixed law and fact. I will identify and describe briefly each of these topics in this section of my reasons, but will deal with them in more detail in the Analysis portion of this decision. I use the appellant's headings in the order that they are presented in the memorandum. A. Group Affiliation8 [22] The appellant makes reference to only part of the following passage from the RPD decision (the appellant's reference is the underlined portion): [10] The central issue before the panel was the claimant's credibility and the reliability of his testimony as there is reasonably little corroborative evidence to assist the panel. The claimant's testimony is presumed to be truthful, unless there are reasons to believe otherwise. The panel finds that on a balance of probabilities, the claimant's testimony is unreliable and therefore the presumption of truthfulness for the claimant's testimony has been rebutted in this claim. The panel notes that documents were submitted attesting to the claimant being Somali, but does take a negative inference that no group or group affiliation was noted in these documents.9 [23] The appellant submits that the RPD was not specific about what was the "negative inference". The appellant states that the inference presumably was not against the documents that illustrated that the appellant was Somali but, rather, his personal testimony that he is Tumaal. The appellant submits that there was no evidence before the RPD in support of the conclusion that the documents presented to the RPD should have made reference to the appellant's clan and that, therefore, drawing a negative inference by their lack was in error. [24] Further, the appellant submits that the presumption of credibility means that corroboration is not required, unless there is good reason to require it. The appellant cites authority for the proposition that a Board cannot take a negative inference from the fact that the claimant failed to produce any extrinsic document corroborating his allegations unless his credibility is put in doubt for other reasons. If the latter is the case, then a lack of evidence corroborating his allegations is a relevant consideration.10 The appellant submits also that where corroborative evidence is relevant, a claimant should be advised that he has to provide that evidence and that no such notice was given to the appellant in this case to do so.11 [25] The appellant also complains that the RPD made no finding regarding the absence of a reasonable explanation as to "the lack of corroborative evidence". In the memorandum, the appellant alleges that the claimant did have an explanation for this absence. [26] Finally, by way of corroboration concerning his clan affiliation, the appellant seeks to introduce new evidence by virtue of subsection 110(4) of IRPA; that evidence is the statement of a cousin of the appellant who the appellant had "recently located in Winnipeg" who states that the appellant is Tumaal.12 I will deal with the new evidence matter in the Analysis portion of these reasons. B. Characteristics13 [27] Again, in his memorandum the appellant makes reference to only a portion of a paragraph in the RPD reasons when identifying an alleged RPD error, the entirety of which paragraph is as follows (with the appellant's referenced portion underlined): [11] The claimant was asked questions at different times throughout the hearing in a variety of ways to gather the evidence required to reasonably establish his identity as a member of the Tumaal group. He could not reasonably provide answers on the identity or specific characteristics to the minority group in question. In testimony the claimant conflated two different groups the Migdan and Yibro in describing the Tumaal to the panel. The claimant also testified to what Somali persons say about minorities clans as a whole but could not with any detail speak to the specific issues of the Tumaal group. When confronted, the claimant reasoned that it is the general Somali population that mix up the minority groups all the time. I do not find that this is a reasonable explanation as to why his testimony in regards to his own identity would be reflective of the general attitudes rather than what a person of that group could describe. This is important to the claim, as the claimant's own identity is a central issue to the claimant's allegations. As the claimant was unable to reasonably testify to their basics of the clan he identified as his own, the panel finds that this seriously undermines his credibility in this regard.14 [28] The appellant complains that the RPD reasoning is unclear and incomplete. The appellant then makes a number of references as to what the claimant had allegedly stated in his testimony at the hearing. However, no specific reference to this testimony is referenced in the memorandum. This issue concerning generalized statements in the memorandum regarding what the testimony before the RPD might have been, without providing information as to where such testimony might be found in the RPD Record will be discussed more fully in my Analysis. C. Discrimination15 [29] The appellant again refers to but a portion of a paragraph from the RPD decision (The portion referenced is underlined. The large gap between the underlined portions is not included in the appellant's reference in the memorandum): [12] Further, the claimant's statements in regards to his past experiences as a member of this minority group do not reflect the objective evidence before the panel. The evidence before me is that traditionally, members of the Tumaal would not have been able to take part in the market economy, hold land or operate businesses. Further, that as this group is so small less 0.5% of the population that they require a patron clan, to provide protection and it is the language of the patron clan that the Tumaal speak in their particular area. The claimant testified that his father's family and his family have lived in the same area their entire lives. That they have purchased multiples houses, held multiple businesses and his father was able to work internationally and was highly educated. In the same testimony the claimant indicated that his minority group is highly discriminated against, but did not provide any further details. When confronted with the disparity between what his father and himself had established, the claimant responded that when Somalia had a stable government the people were scared of tribalism and people made sure that people were educated and treated equally. The panel prefers the objective evidence before it that states that although it mentions that Tumaal are traditionally blacksmiths and they have lost their monopoly, the panel notes the evidence indicates it remains difficult for these groups to find other work. The panel also notes that these groups since 2010 can only work in the most undesirable job and are traditionally forbidden from participating in local business and the market economy.16 Although the claimant indicates that his family was ale [sic] to somehow circumvent traditional Somali society and were able to own businesses and other properties, I prefer the objective evidence, that any conventional paths of upward social mobility are not open to those in these occupational minority groups.17 The panel prefers the documentary evidence to the claimant's testimony and finds that the claimant's credibility is undermined in light of the objective evidence contrary to the evidence presented.18 [30] Under this heading, the appellant raises questions about the RPD's conclusions with respect to what the RPD perceived to be a disparity between the relatively successful educational, business and real estate holding background of the appellant's father when compared to country documentation to the effect that members of the appellant's alleged clan are very poor, suffering much discrimination. In brief, the appellant found that it was unreasonable for the RPD to find that, because the appellant's father and the appellant had some success, they could therefore not be members of the Tumaal clan. D. Torture19 [31] The appellant notes that, while the RPD noted that the claimant testified that Al-Shabaab had burned his XXXX XXXX XXXX store in March 2010, the RPD makes no mention of the appellant being subjected to torture to the point that he lost consciousness at that time, was detained thereafter by Al Shabaab for three months, being tortured on a daily basis. [32] The appellant submits that the omission of that evidence from the RPD decision leads to the inference that it came to erroneous findings of fact, without regard to the evidence. E. Culture20 [33] With respect to the RPD's finding that the appellant's testimony regarding his relationship with a divorced woman from a larger clan was vague and undetailed, the appellant responds in his memorandum with references to an affidavit of the appellant sworn on October 31, 2013, filed in these RAD proceedings,21 which allegedly provides an explanation as to why the appellant did not provide details due to cultural inhibitions preventing him from being open about the topic. [34] Briefly stated, the affidavit notes that sexual relations between a man and woman outside of marriage are a shameful thing in Somali/Islamic society, are embarrassing and not mentioned in public. In this affidavit, the appellant submits that it was especially difficult to provide testimony in front of the interpreter who was a Somali woman, as well before the female RPD Member. He does not mention that his counsel before the RPD too was a woman. [35] I will comment later in this decision on the admissibility of the affidavit evidence which the appellant seeks to introduce into this appeal. [36] The appellant submits that, when assessing credibility, cultural differences must be taken into account. The appellant states that the RPD drew an adverse credibility inference about a "lack of detail of the relationship between the claimant and a divorced woman without taking cultural differences into account".22 F. Travel23 [37] The appellant takes issue with the RPD's conclusion that the appellant "randomly" met a friend of his father's in a coffee shop in Winnipeg. The appellant asserts that in his testimony the appellant stated that he knew the man was in Winnipeg and was able to find him through inquiries through the Somali community there. The appellant states that "the Board member was not paying attention to the testimony of the claimant" and that the RPD's finding of a lack of credibility on that aspect claim was the result of that inattention. G. Order Sought [38] RAD Rule 3(3) of the Refugee Appeal Division Rules (the "RAD Rules")24 provides that the Appellant's Record "must contain" a number of documents. One of these is the memorandum of the appellant, which, under RAD Rule (3)(3)(g) must include "full and detailed submissions" regarding a number of itemized matters. One of these matters, as is noted in RAD Rule 3(3)(g)(iv), is: 3(3)(g)(iv) the decision the appellant wants the Division to make. [39] The appellant did not provide such a statement. Presumably, the appellant wishes to have the RPD's negative determination set aside. The appellant has not indicated whether he seeks an order from the RAD to substitute a positive determination for that of the RPD or if he seeks an order for a redetermination of the claim before the RPD. [40] The appellant did comply with RAD Rule 3(3)(d)(i) and (ii) in that he did provide a written statement25 indicating that he relies on evidence referred to in subsection 110(4) of IRPA and that he requests a hearing before the RAD under subsection 110(6) of that Act. H. Standard of Review [41] The appellant has made no submissions as to the appropriate standard of review the RAD should employ in the circumstances of this appeal. [42] When considering such standards with regard to the judicial review of administrative tribunal determinations, the Supreme Court of Canada (the "SCC") in Dunsmuir26 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a specific issue before a review court is well settled by past jurisprudence, a reviewing court may adopt that standard of review. It is when that search proves fruitless that a reviewing court must undertake a consideration of factors comprising the standard of review analysis. [43] The RAD is a new appellate administrative tribunal about which, to the best of my knowledge, the Federal Court has yet to comment on the question of what standard of review the RAD should apply under various circumstances that might come before it. [44] However, some RAD decisions which, inter alia, set out detailed analysis establishing standards of review to be applied by the RAD, have now been made publicly available. [45] In my assessment, the issues raised by the appellant in this case concern issues of fact or of mixed fact and law. The RAD has previously determined that appeals based on such are to be assessed on a reasonableness standard.27 I agree with those conclusions and will apply that standard in this case. [46] In assessing reasonability, the Supreme Court of Canada in Dunsmuir28 noted in paragraph 47 of its decision: In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within range of possible, acceptable outcomes which are defensible in respect of the facts and law. [47] The SCC made clear that on judicial review a court should not lightly interfere with a decision, even when the decision may not have been the one which the reviewing court would have reached on its own. As the SCC noted further in its subsequent decision in Khosa:29 There may be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. ANALYSIS OF THE MERITS OF THE APPEAL Subsection 110(4) Application Regarding New Evidence and the "Group Affiliation" and "Characteristics" Grounds of Appeal [48] The appellant seeks to present what he terms a "statutory declaration" of the appellant's cousin. A Notary Public confirmed that the document was signed before him on October 28, 2013.30 However, while stated to be a statutory declaration, it does not contain an attestation clause. The cousin states that he has known the appellant since 1990 when the appellant and his father lived with him for two months. The cousin further notes that he lost touch with the appellant during the war, but was able to reconnect with him by telephone in 2005 when the cousin was in Djibouti. The cousin confirms that both he and the applicant are from the Tumaal clan. Importantly, the cousin states that he met the appellant in Winnipeg on August 9, 2013, at an Eid celebration at the Winnipeg Convention Center. [49] Subsection 110(4) of IRPA provides: 110(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [50] In the memorandum, the appellant states that he had "recently located" his cousin in Winnipeg who "he had not met since the war broke out in Somalia" and that he wished to present the cousin's statement as evidence in the appeal. The appellant alleges that the statement meets the test found in subsection 110(4) in that it is dated October 28, 2013, and therefore "arose after the rejection of the claim". The appellant also submits that, in the absence of notice for the need of such a declaration (i.e. corroboration of the appellant's clan identity), the appellant could not reasonably have been expected in the circumstances to have presented evidence from anyone about his membership in the Tumaal clan before the rejection.31 The appellant also discusses his "recent" reconnecting with his cousin in the October 31, 2013 affidavit referred to earlier and found in the Appellant's Record (AR).32 [51] For the reasons that follow, I find that the appellant has not met the requirements of subsection 110(4) of IRPA and the statement will not be accepted as evidence in this appeal. [52] In coming to this conclusion, it is necessary for me to discuss both the provisions of the subsection, as well as the appellant's broader assertion listed in his first ground of appeal that, without notice from the RPD of the need to do so, he could not be expected to provide corroboration of his clan background before the RPD. I will first discuss the provisions of 110(4) and, thereafter, the appellant's submissions with respect to whether or not he would have reasonably been expected to provide the evidence to the RPD. [53] While a Pre-Removal Risk Assessment (PRRA) differs from an appeal to the RAD, the wording of subsection 110(4) of IRPA is almost identical to section 113 of the Act which identifies what evidence is allowable in support of a PRRA application. Accordingly, I find that the Federal Court of Appeal and Federal Court jurisprudence regarding section 113 provides important guidance with respect to the interpretation of subsection 110(4). Section 113 of IRPA provides: 113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; [54] Given the near identical wording of subsection 110(4), I find that there is a legislative intent that the two provisions are to be interpreted alike and that jurisprudence concerning section 113 is helpful in interpreting 110(4). [55] A seminal authority with respect to the interpretation of section 113 is the 2007 Federal Court of Appeal decision in Raza.33 Relying on the guidance of this authority, the first step with regard to subsection 110(4) is to determine whether or not the proffered evidence was not available or could not have been provided to the RPD. If it could not have been, the RAD must then assess its credibility, relevance, newness and materiality. An applicant is required to state why the evidence constitutes new evidence and why it should be considered. The burden of proving both the newness and materiality of the evidence lies with the applicant. [56] The appellant submits that the mere fact that the cousin's declaration was created October 28, 2013 (with the RPD decision rejecting the claim being dated September 23, 2013) meets the test of being "evidence that arose after the rejection" and, on that basis alone, should be admitted as evidence before the RAD. I do not agree. [57] If credible, the appellant's membership in the Tumaal clan is a fact that existed prior to the RPD hearing. It is not a fact that arose after the RPD rejection. As the Federal Court of Appeal in Raza concluded, "the newness of documentary evidence cannot be tested solely by the date on which the document was created. What is important is the event or circumstances sought to be provided by the documentary evidence".34 [58] The Federal Court has subsequently concluded that, because a piece of evidence postdates the RPD decision, it does not automatically constitute new evidence.35 [59] In interpreting Raza, the Federal Court has held that it would be a misapplication of that authority to find that if any one of the Raza grounds were met, the evidence would be considered new evidence, regardless of the other grounds. The Federal Court in Mooketsi held that: [18] In my view, the Applicants have misapplied the Court of Appeal decision in Raza. I do not read the decision and, in particular paragraph 13, as a statement to the effect that, if any one of the questions posed can be answered in the positive, the evidence is "new". As noted in paragraph 15 of Raza decision, evidence must be considered "unless it is excluded on one of the grounds stated in paragraph [13] above". Thus, if the "new" evidence could have been presented at the RPD hearing, then s. 113(a) requires that such evidence be rejected, even if it contradicts a finding of fact by the RPD. This is reinforced by paragraph 13(5)(a) of the Raza decision.36 [60] Although the appellant states in its memorandum that he had "recently located" his cousin in Winnipeg, he does not provide a date as to when that happened. However, the cousin states that he met the appellant at a local community celebration in Winnipeg on August 9, 2013, weeks before the appellant's September 13, 2013 hearing before the RPD. No explanation is offered, other than the appellant's statement that he could not reasonably have been expected to have to provide such evidence, as to why the evidence of the cousin about his clan affiliation could not have been presented to the RPD. [61] Accordingly, I find that evidence concerning the appellant's membership in the Tumaal plan existed before the RPD rejection of his claim generally and that the evidence, had it been sought specifically from the cousin, was available. The remaining question is whether or not the appellant could not reasonably have been expected in the circumstances to have presented the clan affiliation evidence to the RPD. [62] The appellant submits that, had he been put on notice that he needed to corroborate his clan membership, he would have been able to do so. He states that no such notice was given and that, therefore, he could not have been reasonably expected to present evidence on that topic at the RPD. Again, I disagree. [63] At its most basic level, a refugee protection claimant bears the burden of providing credible and trustworthy evidence in support of his claim. This starts with his personal identity,37 extends to his nationality and, thereafter, regarding the essential factual elements upon which his claim is based. In this claim, the claimant established to the RPD's satisfaction that he was who he said he was and that he was a national of Somalia. [64] What the RPD did not find the appellant had successfully established was his affiliation to the Tumaal clan, an important element of the claim. [65] The appellant maintains that he can rely on the presumption of his credibility in his assertion that he is Tumaal without the need for corroboration and that, therefore, he did not need to anticipate that he should provide other evidence with regard to that affiliation. However, the appellant does acknowledge that, if a claimant's credibility is put in doubt for other reasons, then a lack of evidence corroborating his allegations is a relevant consideration. Further, when corroborative evidence is relevant, a claimant should be put on notice of the need to provide it, which notice was not given in this case.38 [66] Judging from the RPD reasons, the RPD clearly found there were "other reasons" to doubt the appellant's assertion that he was Tumaal, primary of which were the RPD findings that the appellant was not credible in providing information regarding the background, characteristics, attributes or social position of that particular clan. In the RPD's assessment, the appellant should have been more knowledgeable about his own clan and did not accept as reasonable his explanation as to why he was not. [67] Section 106 of IRPA provides: 106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. [68] RPD Rule 11 of the Refugee Protection Division Rules39 (formerly Rule 7) provides: 11. The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them. (RAD emphasis) [69] The appellant has submitted the statement of his cousin as "evidence" for the purposes of subsection 110(4) of the Act and then requests that a hearing be held under subsection 110(6) of IRPA. Subsection 110(6) provides for the possibility of a RAD hearing based on "documentary evidence". Thus, I find that the statement of the cousin is a "document" for the purposes of section 106 of the Act and RPD Rule 11. [70] In my assessment, "identity" not only refers to the individual name by which a person is officially known to others, but extends to other matters such as their status in a country of nationality, citizenship, race, ethnicity, linguistic background and political, religious or social affiliation. In this sense, the appellant's membership in the Tumaal clan is part of his identity and, in the context of this claim, importantly so. [71] Moreover, RPD Rule 11 clearly puts a claimant on notice that they should provide documents establishing other elements of their claim in addition to their personal identity. The RPD Member notes that: [11] The claimant was asked questions at different times throughout the hearing in a variety of ways to gather the evidence required to reasonably establish his identity as a member of the Tumaal group. He could not reasonably provide answers on the identity or specific characteristics to the minority group in question.40 [72] There is no indication in the material before me that, at any point in the hearing before the RPD, the appellant or his counsel sought an adjournment in order to provide evidence, such as a statement from the cousin on the question of his clan affiliation nor any explanation as to why he had not. [73] Moreover, it is clear from the evidence that was presented by the appellant at the RPD hearing that he was mindful that his mere assertion with respect to elements of his identity would be insufficient. The claimant did provide as part of RPD Exhibit 4, a declaration from an individual who allegedly met the appellant and his father in Somalia in 1983, as well as from a representative of the Somali Cultural Centre of Manitoba who declared that the appellant "is Somali person belongs one of the Somali tribes [sic]". That same Centre also provided a document confirming that the appellant was a Somali citizen by "origin, language and tradition".41 The RPD noted, quite reasonably in my view, that none of these statements commented on the appellant's alleged membership in the Tumaal clan. The documents do not require that an affiliation be mentioned, but it is certainly an opportunity for such information to be included, particularly with respect to the individual that noted that the appellant belonged to "one of the Somali tribes". The RPD is entitled to draw an adverse inference where a claimant fails to produce evidence that could reasonably be available and was an important and relevant piece of information.42 [74] Based on the above, I find that the appellant in all of the circumstances would reasonably be expected to provide corroborative evidence of his clan affiliation without the need of additional specific or special prior notice to do so. His clan affiliation was critical to much of his claim. The appellant's explanation that he simply did not believe he needed to do so is not a satisfactory response to the expectation, particularly when he had counsel. [75] Associated with the appellant's grounds of appeal, "group affiliation", is that of "characteristics". Both are associated with the appellant's allegation of his clan affiliation. In response to the RPD's conclusion that the appellant could not reasonably provide details about the Tumaal and confused them with other clans, the appellant disputes that conclusion submitting that the RPD finding is inaccurate in light of the evidence. It is in this regard, and also with respect to much of the remaining grounds of appeal, that I find the appellant submissions to be significantly flawed. [76] For example, in paragraphs 25, 26 and 28-30 of the memorandum under the heading "Characteristics", the appellant refers variously to the "statement of the claimant", "the claimant described at the hearing", "the claimant also indicated", "the testimony of the claimant", "the description by the claimant", "the claimant mentioned" and "the claimant talked about". In each and every one of these cases, the appellant provides no information whatsoever as to where in the Record one might find the alleged statements. For the most part, these references are not with regard to the specific words the appellant might have said, but to broader summations about the nature of his evidence. [77] Rule 3(3)(g)(ii) of the RAD Rules stipulates: 3(3) The appellant's record must contain the following documents, on consecutively numbered pages, in the following order: (g) a memorandum that includes full and detailed submissions regarding (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the refugee protection division hearing. (RAD emphasis) [78] A CD is provided to a claimant with every negative decision of the RPD at the time when either the RPD's written decision or a transcript of its oral decision is forwarded to the claimant. If an appellant wishes a transcript of the hearing, it is open to them to independently obtain one. The RAD is not otherwise provided a transcript in the ordinary course. In my assessment, if the appellant does obtain a transcript and wishes to illustrate how the RPD came into error by failing to appreciate testimony provided to that Division, it is incumbent under the Rule that the RAD's attention is drawn specifically to the appropriate passage in the transcript. If the appellant does not obtain a transcript, the Rule obliges him to provide details as to where on the time-code of the CD the particular testimony might be found. [79] In my opinion, the rationale for the Rule is clear and logical. First, a CD might have recorded a multi-hour hearing, which could often take longer to review (and take notes) than did the hearing itself. For the RAD to do this, unguided by the appellant, would require an inordinate amount of time spent by the RAD which could largely be eliminated by the appellant simply following the Rule. In my view, the Rule precludes any reasonable expectation, upon an appellant making a broad statement in his memorandum to the effect that "the appellant testified..." (and without providing any specific reference to where that testimony might be found in the Record), that the RAD Member would listen to the entire recording searching for something that might align with an often general statement about the testimony. In addition to the impractical aspect of such an expectation is the qualitative assessment that would have to be made by the Member as to what testimony probably did, clearly did not, or possibly could have related to the alleged synopsis of the testimony set out in the memorandum. That is a task for the appellant. [80] As was stated by Justice Letourneau on behalf of the Federal Court of Appeal in Remo Imports Inc.43 in a situation where it was presented with voluminous amounts of evidence: 20] I should add that, as an American appellate judge once said, judges are not ferrets: cited in Dow Agrosciences Canada Inc. v. Philom Bios Inc., 2007 ABCA 122, at paragraph 53. It cannot be expected that appeal judges will embark on a search of the record to find pieces of evidence which could support or particularize broad allegations made by a party to the appeal. [81] While the RAD is an appellate administrative body and not a court, in my assessment the same principle applies. Moreover, the RAD operates under legislatively mandated time limits within which it must make its decision.44 [82] It is axiomatic that it is for an appellant to provide the proper basis upon which his appeal might be allowed. Complying with the Rules is not just a technical matter. The burden an appellant must meet in order to succeed in their appeal depends upon the appellant providing the necessary evidentiary tools for the appellate body to come to a favourable conclusion. In this case, the appellant has engaged the services of a very experienced counsel, fully capable of complying with the Rules. If counsel fails to do so, with whatever attendant consequences that might entail, the RAD cannot be expected to do that which the Rule requires the appellant to do. I conclude that I need not, and should not, do it for him. [83] In light of the above, when reading the entirety of paragraphs 10 and 11 of the RPD decision and otherwise taking into account the submissions of the appellant, I conclude that the RPD's finding that the appellant's lack of familiarity or knowledge about his own alleged clan is reasonable, based on the evidence and, in the RPD's words, "seriously undermines his credibility in this regard". Discrimination [84] Under this category the appellant has alleged that the RPD erred with regard to the conclusions set out in paragraph 12 of the RPD decision. Once again, the appellant cites only a portion of that paragraph. That portion is underlined: [12] Further, the claimant's statements in regards to his past experiences as a member of this minority group do not reflect the objective evidence before the panel. The evidence before me is that traditionally, members of the Tumaal would not have been able to take part in the market economy, hold land or operate businesses. Further, that as this group is so small less 0.5% of the population that they require a patron clan, to provide protection and it is the language of the patron clan that the Tumaal speak in their particular area. The claimant testified that his father's family and his family have lived in the same area their entire lives. That they have purchased multiples houses, held multiple businesses and his father was able to work internationally and was highly educated. In the same testimony the claimant indicated that his minority group is highly discriminated against, but did not provide any further details. When confronted with the disparity between what his father and himself had established, the claimant responded that when Somalia had a stable government the people were scared of tribalism and people made sure that people were educated and treated equally. The panel prefers the objective evidence before it that states that although it mentions that Tumaal are traditionally blacksmiths and they have lost their monopoly, the panel notes the evidence indicates it remains difficult for these groups to find other work. The panel also notes that these groups since 2010 can only work in the most undesirable job and are traditionally forbidden from participating in local business and the market economy.[Footnote 3 in the RPD decision being "RPD Exhibit 3, National Documentation Package for Somalia, (May 3, 2013), item 13.1; item 13.3 pp3-4"] Although the claimant indicates that his family was ale [sic] to somehow circumvent traditional Somali society and were able to own businesses and other properties, I prefer the objective evidence, that any conventional paths of upward social mobility are not open to those in these occupational minority groups. [Footnote 4 in the RPD decision being "Ibbid, item 13.11, p.51] The panel prefers the documentary evidence to the claimant's testimony and finds that the claimant's credibility is undermined in light of the objective evidence contrary to the evidence presented. [85] The appellant submits that the Member appears to be reasoning that the disparity between the success of the father and the difficulties of the Tumaal are inconsistent with the evidence that the father and son are Tumaal by contrasting the country condition information with the appellant's evidence about his father. [86] However, having made this point, the memorandum goes on to refer a number of times to the affidavit of the applicant found earlier in the AR, wherein the appellant provides evidence about the father's background, the history of Somalia as its government once interacted with minority clans and then submits that it was unreasonable for the RPD to conclude that, because the father owned a business and had a university education, he could not be Tumaal. There is also another reference to the appellant's testimony before the RPD without any detailed reference to a transcript or the CD. [87] With regard to the affidavit filed by the appellant before the RAD, I find it appropriate to the extent that it provides an explanation as to why the statement of his cousin should be accepted as new evidence under subsection 110(4). However, such an affidavit is not appropriate as a vehicle to provide additional evidence which is not new and could have been presented to the RPD in the first place. An appeal to the RAD is not a re-litigation of the case. It is not an opportunity to back-fill holes in the appellant's evidence that could have, and should have, been presented to the RPD in the first place. The provisions of IRPA are quite specific as to what new evidence may be provided to the RAD and under what circumstances. Absent meeting those qualifications of admissibility, the evidence the appellant seeks to provide in his affidavit is not permitted. Accordingly, I will not consider such evidence on this appeal. [88] In my assessment, the appellant's basic complaint under this ground is that the RPD Member came to an inaccurate assessment of the factual situation in Somalia as it might apply to the father (or the appellant) being relatively successful when compared to more general country condition documents indicating that such success is inconsistent with being Tumaal. [89] In reviewing the reasons, I conclude that the RPD took note of the appellant's testimony about his family's background, considered the applicable country condition reports as noted in the RPD footnotes and came to a conclusion contrary to that preferred by the appellant. In my assessment, this is a fundamental process of the finding of facts to which the RPD is due deference and the standard of review of reasonability should be used by the RAD to assess those findings. [90] The question is not whether the RAD would have come to the same conclusion as the RPD. If the process and the outcome of the RPD's findings comply with principles of justification, transparency and intelligibility, it is not open to the RAD to substitute its own view of a preferable outcome. I find that, guided by the decision of the SCC in Dunsmuir, the decision of the RPD in this regard, falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law and is, thus, reasonable. Torture [91] The appellant correctly notes that in paragraph 14 of the RPD decision, the Member references the March 2010 attack by the Al-Shabaab on the applicant's video/movie store because it promoted activities they did not approve, but does not mention at all the appellant's allegation that during the attack he "was subjected to inhumane torture until the claimant lost consciousness". The appellant submits that being detained by Al- Shabaab for three months undergoing torture is important evidence.45 The appellant relies upon the authority of the Federal Court decision of Cepeda Gutierrez:46 ...the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact, without regard to the evidence. [92] I have found elsewhere in these reasons that the RPD's findings that the appellant failed to credibly establish his clan background and his relationship with the woman from the larger tribe were reasonable. That being so, the only direct targeted attack by Al- Shabab against the appellant was in March 2010, because that group disagreed with the nature of the appellant's business. [93] In this regard, in paragraph 14 of her decision, the Member noted the appellant's evidence, "The claimant testified that Al-Shabab had burned his XXXXstore on XXXX 2010. That he was repeatedly threatened, but remained in his hometown. The claimant opened a grocery store and continued to live without issue." In other words, the appellant ceased the activity that had attracted Al- Shabaab particularly to him, opened up a different business and stayed in his hometown continuing to live there "without issue". In his BOC, the appellant stated that, "When I finished my prison term, I went back to my wife and children. On XXXX XXXX XXXX 2012, I opened a small XXXX to provide for my children".47 [94] The specific alleged involvement of Al-Shabaab against the appellant after the store burning in 2010 was tied to the XXXX 2012 scenario concerning the raid on the house which resulted in the girlfriend being taken away and stoned to death. Retribution against the appellant for being involved with the woman is given by the appellant as the reason Al-Shabaab would seek him once again if he returns to Somalia. Likewise, looking forward, his involvement with the woman is also the reason that the appellant fears that he would be attacked by the woman's tribe members and/or that they would seek blood-money from him. These scenarios were not accepted as having been credibly established. [95] Not having credibly established his clan background or relationship with the woman, both of those reasons for his being sought by Al-Shabab have not been accepted. That being so, and given that he did not open once again the type of business that had attracted Al Shabab, they would have no reason to seek him out in particular upon a return for those reasons. Even if the RPD had concluded that he had been detained and mistreated for three months in 2010, the RPD noted that he returned home to live with his family until he left the country two-and-a-half years later. There is no apparent evidence that he attempted to leave the country until that time. [96] The RPD did record that the claimant testified that after he was allegedly released from custody by Al-Shabaab, "he was repeatedly threatened, but remained in his hometown". In this regard, and in light of the RPD's findings of a lack of credibility regarding essential elements of the claim, the RPD closed its reasons with the following: [19] Considering the claimant's testimony as a whole, I find that on a balance of probabilities, his testimony to be unreliable. There are multiple issues related to central issues before this panel that cannot be overlooked. As such, since the claimant's testimony cannot be relied upon and there is little left before this panel to consider, beyond that he is man from Somalia, from an unknown clan origin, without a nexus to the convention refugee definition, the remainder of the claim can only be assessed against section 97 of the Act. [20] Somalia on the whole is a country with considerable hardships and difficulties. Since the fall of the Barre government there has been little respect for human rights, security of person, and rule of law or effective governance. A person claiming for protection in Canada must demonstrate that they face a personal risk and it is not sufficient to rely solely on the country conditions of the country of reference. The claimant is a male from unknown clan. There is not sufficient evidence before me to conclude that this claimant would be treated any differently from other male members of the Somali population. The risk he would potentially face in returning to Somalia, is faced generally by others in Somalia and as such does not meet the test in paragraph 97 (b)(ii) of the Act. Therefore, I find that the claimant has not established that he faces a more than a mere possibility of persecution, nor is it more likely than not that he would face a risk to life, cruel or unusual treatment or punishment, nor a risk of torture should he return to Somalia. [97] In light of all of the above, in the context of the entire claim, I find that the RPD's failure to mention the three months incarceration and mistreatment in 2010 is not critical to the ultimate outcome of the claim and is not reflective of a lack of appreciation for the evidence that would justify setting aside the determination. Culture [98] With regard to the RPD's finding in paragraph 15 that the appellant's testimony about his relationship with the woman was vague and undetailed, the appellant submits that, due to cultural restraints about talking about sex and "shameful things", he was not able to express himself freely during his RPD hearing. Further, the appellant submits that, in the result, the RPD Member never took such cultural differences into account when making her credibility findings.48 [99] I find a number of problems with the submission. The first is the more minor observation that, while the appellant noted in his memorandum that both the interpreter and the RPD Member were women, he provides no explanation as to why he also had a woman, as his counsel. [100] More importantly, there is no indication that the appellant or his counsel provided any information to the RPD Member about the alleged cultural restraint that might affect his testimony, nor was there, apparently, any effort to have him deemed a "vulnerable" witness. In his BOC the appellant openly relates the story of his being with his "girlfriend", the alleged attack on them and the fact that she was stoned to death for adultery. It is very difficult to discern in what specific way his alleged cultural sensitivity inhibited his testimony nor are any specific examples provided. [101] The specifics of this cultural issue are not mentioned until being set out in the affidavit of the appellant included in the AR I referred to earlier.49 In my assessment, once again the appellant is attempting to present evidence at the RAD stage that, if considered important, could have and should have been made known to the RPD at, or before, that Division's hearing. I find no merit in this ground of appeal. Travel [102] Under this heading the appellant takes issue with the RPD statement in paragraph 18 of the reasons that he was able to meet a friend of his father's shortly after his arrival in Winnipeg "randomly" at a coffee shop. In his memorandum50 the appellant once again makes reference to the appellant's RPD testimony without reference to the Record. As well, the appellant's affidavit also provides evidence on this point.51 For the same reasons noted earlier, the appellant has failed to put this issue properly before the RAD. [103] In any event, the primary finding in that paragraph was not the randomness of that meeting but, rather, the evidence that the trip from Nairobi through Istanbul to Toronto and then by bus to Winnipeg in less than 48 hours was "contentious" and that the RPD found it less than likely that the appellant would have been able to pass through multiple border checkpoints in various countries, including Canada, on a false passport without being asked any questions. The RPD itself noted that the evidence relating to the appellant's travel was not a determinative credibility issue on its own, but contributed to the credibility of the appellant being undermined. Specifically, the appellant does not make clear the importance of how random the meeting with the father's friend might have been impacts the RPD's ultimate findings on credibility. [104] Taking all of the above into account, I find that the conclusions drawn by the RPD were reasonable as that word has been interpreted by the SCC in Dunsmuir. That being the case, I find that the RPD determination that the appellant is neither a Convention refugee nor a person in need of protection should be confirmed. CONCLUSION [105] For these reasons I confirm the determination of the RPD that XXXX XXXX XXXX is not a Convention refugee, nor is he a person in need of protection, within the meaning of sections 96 and section 97 of the Act and his appeal is dismissed. (signed) "Philip MacAulay" February 6, 2014 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Refugee Appeal Division (RAD) Exhibit 2, Appellant's Record (AR), p. 57. 3 RAD Exhibit 3, Refugee Appeal Division Record (RPDR). 4 RAD Exhibit 2, AR, pp. 2-10, RPD decision. 5 RAD Exhibit3, RPDR, p. 13-25. 6 RAD Exhibit 2, AR, pp. 4-6, RPD decision. 7 RAD Exhibit 2, AR, pp. 62-75. 8 RAD Exhibit 2, AR, pp. 62-67, paras 1-21. 9 RAD Exhibit 2, AR, p. 5. RPD decision. 10 RAD Exhibit 2, AR, p. 64, paras. 8-10. 11 RAD Exhibit 2, AR, pp. 65-66, paras 11-14. 12 RAD Exhibit 2, AR, p. 20. 13 RAD Exhibit 2, AR, pp. 67-69, paras.22-31. 14 RAD Exhibit 2, AR, p. 5, RPD decision. 15 RAD Exhibit 2, AR, pp. 69-71, paras. 31-41. 16 Exhibit 3: RPDR, Exhibit 3, National Documentation Package (NDP), Somalia , May 3, 2013,, Item 13.1 No Redress: Somalia's Forgotten Minorities , Minority Rights Group International, 2010; Item 13.3 Somalia: Vulnerability, Minority Groups, Weak Clans and Individuals at Risk, Norway. Landinfo: Country of Origin Information Centre, 21 July 2011, pp. 3-4. 17 Exhibit 3: RPDR, Exhibit 3, NDP, Somalia , May 3, 2013,, Item 13.11, Clan Structure in Somalia, Civil-Military Fusion Centre , August 2011; pp. 51. 18 RAD Exhibit 2, AR, p. 5-6, RPD decision. 19 RAD Exhibit 2, AR, pp. 71-72, paras. 42-45. 20 RAD Exhibit 2, AR, pp. 46-51, paras. 46-51. 21 RAD Exhibit 2, AR, pp. 13-19. 22 RAD Exhibit 2, AR, p. 73, para. 51. 23 RAD Exhibit 2, AR, pp 73-74, paras.52-55. 24 Refugee Appeal Division Rules, SOR/2012-257. 25 RAD Exhibit 2, AR, p. 10. 26 Dunsmuir v. New Brunswick 2008 SCC 9. 27 For example see X (Re), 2013 CanLII 82622 at para. 29 (IRB); X (Re), 2013 CanLII 67015 at para. 29 IRB): X (Re), 2013 CanLII 76397 at para. 18 (IRB); X (Re), 2013 CanLII 76473 at para. 28 (IRB); X (Re), 2013 CanLII 76390 at para. 27 (IRB). Decisions on CanLII are publicly available at <http://canlii.org>. 28 Dunsmuir v. New Brunswick 2008 SCC 9. 29 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para.59. 30 RAD Exhibit 2, AR, pp. 20-21. 31 RAD Exhibit 2, AR, pp. 66-67, paras.18-21. 32 RAD Exhibit 2, AR, pp. 13-19. 33Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R. 34 Raza, supra, at para 16. 35 Boulos Zaza v. Canada (Citizenship and Immigration)2010 FC 1122; See also Massudom v. Canada (Public Safety and Emergency Preparedness) 2010 FC 144 and Jessamy v. Canada (Citizenship and Immigration) 2010 FC 489. 36 Mooketsi v. Canada (Citizenship and Immigration) 2008 FC 1401. 37 Considered specifically in section 106 of IRPA. 38 RAD Exhibit 2, AR, pp. 64-66. 39Refugee Protection Division Rules, SOR/2012-256. 40 RAD Exhibit 2, AR, p.5, RPD decision. 41 RAD Exhibit 3, pp. 72-82, RPDR. 42 Toure v. Canada (Citizenship and Immigration) 2004 FC 1396. 43 Remo Imports Inc. v. Jaguar Cars Limited 2007 FCA 258. Reference is made to this passage in the immigration context by Justice Harrington in Mason v. Canada (Citizenship and Immigration) 2009 FC 963 at paragraph 9.. 44 Immigration and Refugee Protection Regulations, section 159.92. 45 RAD Exhibit 2, AR, pp. 71-72. 46 Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998. 47 RAD Exhibit 2, AR, p. 28, para. 5. 48 RAD Exhibit 2, AR, pp. 72-73, paras. 46-51. 49 RAD Exhibit 2, AR, pp. 1-19, paras. 17-19. 50 RAD Exhibit 2, AR, pp. 73-74, paras. 52-55. 51 RAD Exhibit 2, AR, p. 18-19, paras. 21-22. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB3-02589 RAD.25.02 (April 9, 2013)