VB5-00734

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : VB5-00734 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 (Also Known As XXXX XXXX XXXX) Appeal considered at Vancouver, BC Appel instruit à Date of decision August 25, 2015 Date de la décision Panel Gordon C. McRae Tribunal Counsel for the person(s) who is(are) David Matas Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Mandeep Randhawa Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, also known as XXXX XXXX XXXX (the "Appellant"), a citizen of Somalia appeals the decision of the Refugee Protection Division (the "RPD") issued on February 5, 2015 denying his claim for refugee protection. No new evidence has been submitted pursuant to section 110(4) of the Immigration and Refugee Protection Act (the "Act").1 The appellant does not seek a hearing pursuant to section 110(6) of the Act.2 [2] The appellant asks the Refugee Appeal Division (the "RAD") to set aside the determination of the RPD and direct that the matter be returned to the RPD for re-determination by a differently constituted Panel.3 [3] The Minister has intervened in this appeal.4 The Minister has not submitted any new evidence pursuant to section 110(3) and does not request a hearing pursuant to section 110(6). DETERMINATION [4] Pursuant to section 111(1)(a) of the Act the RAD confirms the decision of the RPD that the appellant is neither a Convention5 refugee nor a person in need of protection. The appeal is dismissed. BACKGROUND [5] The appellant is a Somali citizen. He lived in the city of Mogadishu with his family. They left Somalia for Kenya in XXXX 1991, to escape the civil war. They settled in XXXX XXXX, Kenya. The appellant was seven years old at the time. [6] The appellant travelled to South Africa in XXXX 2009 where he made a successful refugee claim. His wife and child joined him for a short time but due to the violence and potential harm to his family they returned to Kenya leaving the appellant in South Africa. [7] In August 2010, with the support of the Anglican Diocese XXXX XXXX XXXX he applied as a member of the Convention refugee abroad class or, in the alternative, as a member of the humanitarian protected person's abroad class, however, he did not obtain permanent residency in Canada. [8] On XXXX XXXX, 2011 he returned to Mogadishu with the hope of initiating a process to regain his family property lost during the civil war. [9] Shortly after his arrival in Mogadishu he was with his uncle, XXXX XXXX XXXX, when they were attacked by gunmen who claimed to be Al-Shabab. The appellant was able to escape but his uncle was captured. [10] The abductors demanded that his uncle bring the appellant back to them to face Sharia law for working for the "infidels". [11] The appellant went from village to village hiding. When it became apparent to his uncle's captors that the appellant was not going to report to them they killed his uncle. This was on XXXX XXXX, 2011. As soon as the appellant heard his uncle had been murdered he fled Mogadishu to XXXX and planed on going to XXXX, Somalia. [12] While in XXXX he heard, that on XXXX XXXX, 2011, two more of his uncles had been murdered by the group/tribe that had confiscated his family property. Upon hearing this news he feared that he too would be killed if he remained in Somalia. He returned to South Africa in XXXX 2011. [13] He operated a small shop in South Africa but the crime situation became so severe there that he left South Africa on XXXX XXXX, 2013, and flew to Brazil. He travelled through several countries and illegally entered the United States (U.S.) on XXXX XXXX, 2013. He was arrested by immigration officials. [14] On February 18, 2014 the appellant had a "Credible Fear" review before the U.S. Immigration Court in Los Angles California. The court ruled that the appellant had not "established a significant possibility that he would be persecuted" on a Convention ground. He was ordered removed from the U.S.6 [15] The appellant was released from U.S. custody on XXXX XXXX, 2014 and illegally entered Canada on XXXX XXXX, 2014 and was arrested by Canadian authorities. He was released from custody by the Immigration Division (the "ID") on XXXX XXXX, 2014.7 He made a claim for refugee protection on June 20, 2014. ISSUES [16] The appellant has identified the following issues in support of his application to have the RAD set aside the RPD decision.8 I have reworded the issue for clarity. * Did the RPD err in its negative credibility finding? NEW EVIDENCE [17] As stated above the appellant stated he did not intend to introduce any new evidence, however in a letter dated March 30, 2015 counsel sent a copy of the ID Order of Release for the appellant "for filing in the appeal.9" [18] This RAD does not take this submission to be a reconsideration on the part of the appellant to file new evidence but rather as a minor oversight on the part of counsel. The ID document attached to counsel's letter is already in evidence10 and this is simply duplication. RAD HEARING [19] Neither the appellant or the Minister has requested a hearing pursuant to section 110(6) of the Act. [20] There was no new evidence entered and hence there is no statutory authority to hold a hearing. [21] There will be no hearing ordered in this appeal. THE ROLE OF RAD [22] The appellant initially did not make submissions with respect to the standard of review the RAD should apply to the assessment of the RPD decision, however, the Minister did make submissions on what standard of review the RAD should apply when credibility is being examined as a basis of the appeal. The appellant responded to the Minister's submission. [23] The Minister submitted: The standard of review to be applied to alleged errors with respect to credibility is that of reasonableness. It is well established that significant deference is due to the findings of a tribunal, including the RPD, in matters of credibility. [24] In his reply11 the appellant disagrees with Minister's representative regarding affording the RPD significant deference and states that the jurisprudence directs the RAD to conduct an independent assessment of the claim. [25] I am not in total agreement with the Minister's representative nor the appellant on this issue. [26] While the Act sets out grounds for appeal, as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the RPD. The first Federal Court review of a RAD decision was in May 2014.12 Since that time there has been a number of Federal Court decisions rendered. It is fair to say that, to a large extent, the Court is not of one mind as to the standard of review that the RAD should apply. The majority of decisions have made one thing clear, however, and that is the RAD should not apply "reasonableness" as its standard of review. Until such time as the Federal Court of Appeal brings more clarity to the standard of review issue I take the Court's direction on this issue and do not apply the standard of reasonableness to this appeal, this includes issues of credibility. [27] I have examined the various Federal Court decisions regarding the role of the RAD and find that the process of a hybrid appeal proposed by Mr. Justice Phelan in Huruglica13 is consistent with the common thread found in the majority of the Federal Court decisions that state the RAD must comprehensively review the available relevant evidence when assessing the RPD's findings and come to an assessment of the appellant's refugee claim. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [28] Mr. Justice Phelan determined that, in conducting its assessment, the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error". [29] Although the Court did not define "recognize and respect" I do not take it to mean affording the RPD "significance deference" as suggested by Ministers counsel but rather determine that the Court was referring to something less than significant deference thereby mandating the RAD to examine and independently assess the analysis that led to the negative credibility finding and come to its own determination based on the evidence. [30] In the matter of Sow14 Mr. Justice Barnes agreed with the finding of his colleague in Huruglica stating that the standard of review is correctness and that applying the proper standard is of sufficient importance to the legal system, and to the equitable treatment of refugee claimants, that it does not permit any deviation from a uniform standard. [31] In keeping with the majority of the Federal Court's findings, I undertook to examine and review all the evidence in the RPD Record and conducted my own independent assessment of the evidence and came to my own conclusion, which included a conclusion on credibility, based on that evidence and applying the standard of correctness. ANALYSIS The Panel's Finding Regarding Credibility [32] The appellant states that variation between initial and subsequent versions of a claim is not always fatal to the credibility of a claim. The RPD must have regard to the circumstances of the case to determine whether the variations undermine the credibility of the appellant. [33] The appellant goes on to state that because of the short timelines he was required to submit his Basis of Claim Form (BOC) without all the relevant details. His amended BOC, with additional information, was received shortly after the original BOC was submitted. The appellant submits that the fact the additional information followed so quickly should have been considered by the RPD and in the opinion of the appellant should have overridden the RPD's negative credibility determination that was mainly based on the fact this information was missing from the original BOC. [34] I agree with the appellant that variations in evidence are not always fatal to the credibility of the claim and that the RPD must consider the entirety of the circumstances that led to the omission(s) and or inconsistencies. I do not agree, however, that the RPD's credibility finding should be overturned. My reasons are as follows. [35] In keeping with the Court's finding I take notice that the RAD can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion.15 I afford the RPD such recognition and respect regarding its finding regarding the credibility of the appellant in the matter before me. [36] It is the RPD that is in the best position to make a finding on credibility as it was the RPD who had the appellant before it and was able to observe the appellant and question him on credibility related issues.16 This is the only deference I afford the RPD regarding this appeal. [37] I conducted an independent review of all of the evidence and the Appellant's Record, evaluated the facts and the conclusions drawn by the RPD, including the reasoning the RPD employed in coming to its negative credibility finding, and made my own assessment of the appellant's credibility based on a thorough review of the RPD Record and Reasons. [38] The RPD correctly identified that when a claimant swears to the truthfulness of certain facts, there is the presumption that what he or she is saying is true unless there is reason to doubt it.17 [39] In assessing credibility the RPD is entitled to rely on its rationality and common sense.18 In this case the RPD found that there were contradictions, inconsistencies, and omissions in the appellant's evidence. The explanations he provided were not satisfactory in resolving these, causing the RPD to doubt his truthfulness and come to a negative credibility finding. [40] The RPD drew a negative inference from the fact the appellant submitted his original BOC and did not mention his alleged travel back to Somalia in 2011 and the attack he and his uncle allegedly suffered. The dates in the original Schedule A - Background Declaration form19 did not reflect his alleged return to Somalia. The RPD identified this concern to the appellant who stated the reason for the omission was that his brother was assisting him and had to go to work and although he told his brother about the 2011 trip to Somalia he was not focusing on the task at hand and omitted it. [41] This RAD notes that the appellant makes no mention of the omission being caused by the short time frame for submission of documents. According to the appellant the omission was caused by his brother rushing because he had to go to work [42] The RPD obviously considered this response when weighing the evidence and determined that his response was inadequate. It is within the RPD's purview to make this determination. The appellant stated that what allegedly happened to him in Somalia was the worst experience of his life. I too conclude that if this event, which the appellant testified was the worst thing that ever happened to him, actually occurred, it would more than likely be documented in his BOC which advises the appellant to include "EVERYTHING THAT IS IMPORTANT FOR YOU CLAIM". [emphasis in original] [43] It is acknowledged that the short time frame provided for in the legislation could affect the appellant obtaining records, etc. but I do not agree that it would affect whether or not the appellant documented an issue that is central to his claim. This information is with the appellant and simply required him to document it in his BOC. Notwithstanding this the appellant did not suggest the tight timelines played any part in the omission. This was an issue raised by his counsel. [44] The appellant takes exception to the RPD's reference to jurisprudence that states the first version of events given by the appellant is usually more reliable and can be considered more trustworthy, especially if it is prejudicial.20 The Court is not saying that this is fact and that the RPD need not go any further than the first version of an event when assessing credibility. What the court is saying is that it is one of many factors that can be considered in a credibility analysis. If this was the only reason that the RPD gave for discounting the appellant's reason for the omission then he would have a strong argument that the finding should be overturned. This, however, is not the case in this matter as the RPD had other reasons to discount the evidence, such as the appellant describing the alleged occurrences in Somalia in 2011 as being the worst thing that happened to him in his life yet not documenting it when other, much more innocuous events, were documented. [45] The RPD did not include in its analysis why it found his explanation for the omission to be inadequate, although an explanation would have been preferable, this does not mean the appellants evidence was not considered and certainly does not mean the RPD's finding was wrong. [46] I too find the appellants explanation to be inadequate. His brother had the time to include many other lesser details in the original BOC, such as his father telling the appellant about taking refuge in XXXX for a week before proceeding via the border town of XXXX to Kenya. In question 2(a) of his original BOC21 rather than documenting the alleged attack and murder of his uncle he tells about what the people occupying his house might think he was there for, and the general situation for young men like him in Somalia and in question 2(h) where he is asked to document anything he feels would be important to his claim he tells about his wife not feeling safe in South Africa and his relatives trying to get him a private sponsorship for Canada. [47] If his brother had time to put this much detail in the original BOC I do not find it believable that his brother would omit an important piece of evidence that the appellant allegedly told him about and which was central to his claim, simply because he was in a hurry. The evidence does not support the appellant's explanation. [48] The RAD also notes that the audio recording shows that the brother was waiting for the appellant outside of the hearing room.22 It was open to the appellant to call his brother as a witness to corroborate his evidence once this was identified as an issue at his hearing. [49] It is with this reasoning as a backdrop that this RAD considered the jurisprudence regarding the first account of events given by the appellant. I find the RPD was correct in placing little weight on the appellant's explanation, however, it should have explained why, in its otherwise very fulsome Reasons, it discounted his explanation. [50] The appellant dismisses the other credibility concerns raised by the RPD as subsidiary. I disagree. The inconsistencies and omissions listed in the RPD Reasons are all part of a cumulative analysis that led to the RPD's negative credibility finding and is expected in a proper credibility analysis. [51] The appellant also states that the RPD's analysis of the discrepancies in his testimony regarding the dates he and his uncle were allegedly attacked was microscopic and that the RPD did not take into account the small difference in dates and the passage of time since the alleged events. Although I agree that the RPD should avoid a microscopic analysis of the evidence when determining credibility, I disagree that is what occurred in this case. [52] There is no evidence to support the appellant's contention that the RPD did not take the passage of time and the relatively small difference in dates into consideration. The record shows that the RPD fully canvassed this issue during the hearing. When given an opportunity to explain the discrepancies the appellant did not testify that the passage of time affected his recall of the dates but rather testified that he had heard from people in the villages he hid in, what his uncle's captors had said to his uncle regarding the appellant turning himself in, and that he heard on the news about the murder of his uncle, and that it was not until he returned to Kenya that he "officially" heard his uncle had been murdered. All these elements contributed to the discrepancy in his testimony. [53] I find, on the balance of probabilities that it is unlikely that the appellant would be advised by random people what his uncles captors demanded of him. It is highly unlikely, in my mind, that his uncle's captors would communicate with random people in a village regarding what their demands were regarding the appellant. It is also not logical that the captors would demand the uncle orchestrate the appellant turning himself in while holding him in their custody. The uncle would have no way of forcing/pressuring the appellant to turn himself into the captors, even if he wanted to. His story is unbelievable and the RPD was correct to afford it little weight. [54] I find that the RPD conducted a full and fair hearing, clearly identifying to the appellant areas that could be determinative and gave him ample opportunity to respond. The negative credibility determination was based, cumulatively, on inconsistent and material evidence. [55] The RPD went on, properly in the opinion of this RAD, and assessed the danger to the appellant in his home country based on the evidence it did find credible. I agree with its analysis in this regard as well. [56] The appellant submits that the RPD erred when it found a contradiction in the appellant's evidence regarding whether members of the Hawiye clan were the agent of harm or if it was members of Al-Shabaab. When the RPD asked about this apparent discrepancy the appellant testified that these two groups were one of the same. Appellant's counsel submitted in his memorandum that this was not a contradiction because Al-Shabaab are Somali, and all Somali have a clan affiliation. I disagree. [57] In addition to the sound analysis regarding why the RPD did not accept that the appellant would know that his attackers were Al-Shabaab I also note the documentary evidence submitted at the RPD hearing that states: The representatives of an international agency, Mogadishu, agreed that the clan is no longer a main issue in Mogadishu. The need for clan protection is 'going down' and no one will ask you about your clan affiliation any longer. The only concern is whether you are affiliated with al-Shabbab or not. . . .23 [58] I conclude from this evidence that a person's clan and membership in Al-Shabaab are distinct and separate issues and hence the RPD was correct to draw a negative inference from the discrepancies in the appellant's evidence regarding the agent of harm. [59] It is not necessary for me to restate in different words what the RPD adequately explained in its decision.24 The RPD clearly set out what inconsistencies it was concerned with and, with the exception of the appellant's explanation as to why his first BOC contained no reference to the alleged attack in XXXX 2011, stated why it was not satisfied with the explanation offered by the appellant. Regarding the alleged incident in XXXX 2011, as part of its independent review, this RAD has stated why the appellant's explanation of his brother hurrying to work should be afforded little evidentiary weight. [60] I have reviewed the entire record and find the RPD decision to be logical, that it is solidly based on the evidence before it, is in keeping with applicable jurisprudence and is based on sound reasoning. In fact, having conducted my own review of the evidence, I am in agreement with the RPD's findings. The RPD did not err in coming to a negative credibility finding based on this evidence. DECISION [61] Pursuant to section 111(1)(a) of the Act, the RAD confirms 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) "Gordon C. McRae" Gordon C. McRae August 25, 2015 Date Judicial Review - Under section 72 of the Immigration and Refugee Protection Act, you may make an application to the Federal Court for judicial review of this decision, with leave of that Court. You may wish to get advice from counsel as soon as possible, since there are time limits 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 RAD Exhibit 3, Appellant's Record (AR), Written Statement, p. 19. 3 RAD Exhibit 3, AR, Appellant's Memorandum, pp. 112-113. 4 RAD Exhibit 3, Notice of Intervention, no page number. 5 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 6 RAD Exhibit1.1, p. 127. 7 RAD Exhibit 1.1. 8 RAD Exhibit 3, p. 105. 9 RAD Exhibit 3, no page number. 10 RAD Exhibit 1.1, p. 102. 11 RAD Exhibit 3, Reply of the Appellant, no page number. 12 Iyamuremye v. Canada (Citizenship and Immigration), 2014 FC 494. 13 Huruglica v Canada (Citizenship and Immigration), 2014 FC 799. 14 Djeneba Sow v. Canada (M.C.I.) 2015 FC 295 IMM-1011-14, March 9, 2015. 15 Huruglica v Canada (Citizenship and Immigration), 2014 FC 799. 16 Denbel v Canada (Citizenship and Immigration), 2015 FC 629; para 38. 17 Maldonado v. M.E.I., [1980] 2 F.C. 302, 31 N.R. 34 (C.A.). 18 Shahamati, Hasan v. M.E.I. (F.C.A., no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994. 19 RAD Exhibit 1.1 questions 8 & 12 20 Ishaku v Canada (Citizenship and Immigration), 2011 FC 44. 21 RAD Exhibit 1.1, p. 21 to 30. 22 RAD Exhibit 2, Audio Recording at 2:21:00 23 RAD Exhibit 1.2, p. 367, National Documentation Package, Somalia, March 14, 2014, Item 2.8 Security and Protection in Mogadishu and South-Central Somalia: Joint Report from the Danish Immigration Service's and the Norwegian Landinfo's Fact Finding Mission to Nairobi, Kenya and Mogadishu, Somalia, 16 April to 7 May 2013. Norway. Landinfo: Country of Origin Information Centre; Denmark. Danish Immigration Service. May 2013. 24 Denbel v Canada (Citizenship and Immigration), 2015 FC 629; and Dowansingh v. Canada (Citizenship and Immigration), 2015 FC 933. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB5-00734 RAD File No. / N° de dossier de la SAR : VB5-00734