TB7-15915

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 / Dossier de la SAR : TB7-15915 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision May 14, 2018 Date de la décision Panel Nadra Qadeer Tribunal Counsel for the person(s) who is(are) the subject of the appeal Odaro Omonuwa Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (the Appellant) alleges that she is citizen of Somalia. She appeals the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She is submitting new evidence in support of her appeal and is requesting a hearing. [2] The Appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either grant her claim for protection or refer the matter back to the RPD for redetermination. DETERMINATION [3] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),1 the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses the appeal. Background [4] The Appellant alleges that she lived in Mogadishu, Somalia and ran a XXXX shop. In May 2016 she was targeted by Al Shabaab who threatened her and ordered her to close her business. Soon after, two men came to her business and shot and killed her assistant when she was not present. Fearing for her life, she sold her XXXX shop and arrangements were made for her to flee the country with the assistance of a smuggler. She left Somalia on XXXX XXXX, 2016 and travelled to Canada, arriving XXXX XXXX, 2016. She made an inland claim for refugee protection on October 20, 2016. [5] Her claim was heard by the RPD over the course of two sittings, held December 16, 2016 and March 3, 2017. In a written decision the RPD rejected her claim on June 22, 2017. Role of the RAD [6] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.2 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, applies a standard of review of reasonableness.3 New evidence and request for a hearing [7] The Appellant submits new evidence in support of her appeal. Specifically, she submits: (a) A letter from the Somali Federal Republic Ministry XXXX XXXX XXXX XXXX, dated August 5, 2017.4 (b) A copy of the Appellant's Manitoba driver's license, issued XXXX XXXX, 2017.5 [8] The Appellant argues that both these pieces of new evidence should be accepted by the RAD as it post-dates the RPD hearing, and it is relevant and probative. [9] With respect to the letter from the Somali Federal Republic Ministry XXXX XXXX XXXX XXXX, I find this is not new in terms of subsection 110(4). While it is true that it post-dates the RPD hearing, the specific issue that it seeks to resolve is one of the primary issues before the RPD. [10] The RPD discusses the Appellant's Somali driver's license at the first sitting held December 16, 2016 and, again, at the second sitting held March 3, 2017. Furthermore, the RPD informed the Appellant that it was seeking the input of the Minister on this issue on March 7, 2017, pursuant to subsection 170(e) of the Immigration and Refugee Protection Act and Rule 29 of the RPD rules.6 [11] On May 26, 2017 both the Appellant and the RPD received a forensic analysis report on the driver's license.7 The Appellant was afforded the opportunity to make submissions on the report. [12] In my view the issue of the veracity of the license was a live issue during the Appellant's RPD hearings and post-hearing. The Appellant had sufficient time and notice to make attempts to resolve the concerns raised by the RPD and the Minister with respect to her license before the RPD's final decision, rendered June 22, 2017. The letter providing further clarification on the license is therefore not new in my view and is inadmissible. [13] With respect to the Manitoba driver's license, I find that it is new and meets the test under subsection 110(4). The second step in the analysis of new evidence is to apply the adapted Raza factors endorsed in Singh.8 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. While I find that this evidence is new, I find that it fails as it is not relevant to the Appellant's claim. The issuance of the Manitoba driver's license does not in itself establish the Appellant's nationality nor does it address the concerns the RPD had with the Appellant's evidence including her testimony. For this reason, I am rejecting the license. [14] As no new evidence is accepted, then the RAD has no jurisdiction to hold a hearing, as requested, under subsection 110(6). ANALYSIS OF THE APPEAL No errors in the RPD's findings related to the driver's license [15] The Appellant argues that the RPD erred in its findings related to the authenticity of her Somali Driver's License. The Appellant submits that the RPD made its finding that the Somali Driver's License submitted by the Appellant was fraudulent based upon the Document Analysis Report conducted by the Canada Border Services Agency (CBSA).9 [16] I have reviewed the evidence regarding the RPD's finding on the driver's license and see no error. The RPD asked the Appellant questions about this license over the course of two sittings. The RPD also had the meaningful advantage of examining the original license in the hearing room and made findings specific to the quality of the original.10 [17] The RPD asked the Appellant questions related to how she procured the license, and the RPD found the Appellant's testimony evolved. Furthermore, the RPD cited numerous anomalies with the license such as the word "barcode" written below the barcode on the license and the lack of security features. Notwithstanding the RPD's own concerns related to the license as well as the Appellant's testimony regarding how she obtained it, the report from the CBSA makes findings that seriously undermine the credibility of the document. [18] The Appellant takes issue with the findings made by the document examiner at CBSA, arguing that it failed to take into account "differences in country conditions and varying technological advances."11 The evidence is that the examination was conducted by a regional document analyst. In reviewing the summary of the examination, a number of concerns are raised with the document including: the lack of any security features, concerns with the print method used ("highly subject to illegitimate production"), and finding that the barcode does not carry any information on the bearer and contains the word "barcode" which "does not comply with generally accepted issuance standards."12 [19] Having reviewed the totality of the evidence on the issue of the driver's license, I find that the RPD made no error as alleged by the Appellant. The RPD based its findings on a number of areas including direct testimony, its own observation of the document, and a forensic analysis. I do not agree with the Appellant that the RPD erroneously made findings. The RPD relied on a number of sources and drew conclusions from this. Having reviewed the evidence myself, I agree with the findings made by the RPD that the document submitted to establish her identity is lacking in credibility, on a balance of probabilities. No errors in the RPD's analysis on the other evidence meant to establish identity [20] The Appellant argues that the RPD made errors in its findings related to the identity witness. The Appellant submits that the RPD dismissed the identity witness because the Appellant submitted false documents and therefore impugned her credibility. I cannot agree with this argument. The RPD, in its reasons, describes finding a few minor inconsistencies in the testimony between the Appellant and the witness and yet does not find it to be significant. What the RPD does find significant is the sufficiency of the witness. Not only did the RPD analyze the Appellant's overall credibility, but the RPD also considered that the witness and the Appellant last lived near each other in approximately 1992, approximately 26 years ago. This in my view is a significant period of time. Furthermore, the RPD indicated its concerns with the witness during the hearing and invited counsel to ask further questions of the Appellant and her witness "that might be more helpful in confirming the relationship they alleged" to have had.13 [21] Having reviewed the evidence in this appeal, I see no error made by the RPD and agree that the witness was insufficient to overcome the concerns in this claim. Other findings made by the RPD are not contested by the Appellant [22] The Appellant does not address the numerous other findings made by the RPD such as: (a) evidence regarding how she opened her business; this was not supported by the objective documentary, nor was the Appellant able to consistently testify as to whom she bought the business from. (b) inconsistencies in the precipitating incident, including testifying that her assistant was killed but then at the second sitting testifying that she had "two other employees" at the shop, employees whom she never referred to in her Basis of Claim (BOC) or testimony at the first sitting. (c) the contact she had with a shop owner whose shop was next to hers- her BOC indicated he called her to report her assistant had been shot; however, during oral testimony at the second sitting, she said he called her twice, once to report the killing and then called her a second time to provide more information. [23] I have conducted my own independent assessment of this evidence despite the lack of arguments made by the Appellant, and I also find that the Appellant was not credible with respect to the merits of the claim. [24] Having considered the entire evidentiary record in this case, I find that the Appellant's testimony did evolve over the course of two sittings. The single identity document submitted to establish her personal and national identity was deemed fraudulent, and her testimony about the precipitating incidents was inconsistent with her BOC. [25] I see no error in the RPD's analysis, nor do I find that the Appellant has credibly established her identity, on a balance of probabilities. For these reasons, her appeal is dismissed. CONCLUSION [26] The RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, as per paragraph 111(1)(a) of the IRPA. The appeal is dismissed. (signed) "Nadra Qadeer" Nadra Qadeer May 14, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 103. 3 Ibid., Huruglica, 2016 FCA 93, at paras. 69-74, and X (Re), 2017 CanLII 33034 (CA IRB). 4 Exhibit P-2, Appellant's Record, Exhibit "G", at p. 44. 5 Ibid., at p. 45. 6 Exhibit RPD-1, RPD Record, Exhibit 9, at p. 143. 7 Exhibit RPD-1, RPD Record, Exhibit 10, at p. 144. 8 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Singh, 2016 FCA 96, at para. 64. 9 Exhibit RPD-1, RPD Record, Exhibit 10, at p. 145. 10 Exhibit RPD-1, RPD Record, Reasons and Decision, at para. 8, at p. 6. 11 Exhibit P-2, Appellant's Record, Memorandum of Appeal, at p. 53. 12 Exhibit RPD-1, RPD Record, Exhibit 10, at p. 145. 13 Exhibit RPD-1, RPD Record, Reasons and Decision, at para. 16, at p. 11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-15915 7 RAD.25.02 (March 7, 2018) Disponible en français