TB7-23781

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 : TB7-23781 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 October 12, 2018 Date de la décision Panel T. Card Tribunal Counsel for the person(s) who is(are) the subject of the appeal Lina Anani 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 [1] XXXX XXXX XXXX (the "Appellant") alleges that he is a citizen of Somalia and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find he is a Convention refugee or a person in need of protection. RAD DETERMINATION [2] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection pursuant to s.111(1)(a) of the Immigration and Refugee Protection Act (IRPA).1 BACKGROUND [3] The Appellant alleges that he is a citizen of Somalia and is a member of the Marehan clan. The Appellant operated a shop which XXXX XXXX to police and government employees. Fighting broke out between the police and Al-Shabaab in the area. In March 2017, the Appellant received threats from Al-Shabaab for XXXX XXXX to government employees and the police, and was accused of being a spy for them. [4] On 21 March 2017, the Appellant's brother, who also worked at the Appellant's shop, was killed by members of Al-Shabaab. The Appellant and his wife then fled Somalia, travelling to Nairobi, Kenya on XXXX XXXX 2017. [5] The Appellant, using an agent, then fled to Canada, arriving on XXXX XXXX 2017 while his wife remained in Kenya. The Appellant made his refugee claim, which was refused by the RPD on the grounds that he had not established his identity, and that his account of what happened to him in Somalia was found not to be credible. ROLE OF THE RAD [6] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness in accordance with the Federal Court of Appeal's decision in Huruglica.2 In assessing findings involving the credibility of oral testimony, the RAD may apply the modified standard of reasonableness in situations where the RPD enjoys a meaningful advantage.3 Unless otherwise stated in the reasons, the RAD uses the correctness standard on all findings and will consider the overall refugee determination on a standard of correctness, even where the RAD has deferred on some or all findings. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [7] In support of this appeal, the Appellant proposed the admission of the following documents as new evidence: a. An affidavit by a new identity witness, XXXX XXXX XXXX (the New Witness), dated 23 December 2017, and accompanying ID documents and flight details of the New Witness's travel between Edmonton and Toronto;4 b. A letter from the Government of Garbahaaray District with translation dated 9 December 2017;5 and, c. A letter from XXXX XXXX XXXX XXXX XXXX dated 12 December 2017 with accompanying photos of the store and covering email.6 [8] S.110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected7 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of s.110(4) and how that evidence relates to the Appellant.8 [9] In addition, if the new evidence meets one of the explicit legislative factors in s.110(4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.9 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. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for s.110(6) and the request for an oral hearing.10 All documents rejected [10] All of the proposed documents are meant to address the issue of the Appellant's identity. The RAD accepts that all of the proposed documents were not reasonably available ahead of the RPD decision, and therefore meet the requirements of s.110(4) of the IRPA. [11] However, for reasons expanded upon below, the RAD finds that the determinative issue in this case is credibility, not identity, and therefore finds the documents do not pass the relevance factor of the Singh and Raza factors. All of the proposed documents are therefore rejected as new evidence. NO ORAL HEARING [12] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s.110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.11 [13] As no new evidence has been accepted by the RAD, the requirements of s.110(6) of the IRPA have not been met, and an oral hearing cannot be held. ISSUES IN APPEAL [14] The Appellant argues the following issues in his appeal: a. The RPD erred in its analysis of the Appellant's evidence regarding his identity, and in its conclusion that the Appellant has not established his personal identity. b. The RPD erred by continuing to assess the Appellant's claim once it found the Appellant had not established his identity. c. The RPD erred in its assessment of the Appellant's risk of persecution from Al-Shabaab if he were to be returned to Somalia. [15] The RAD finds that the determinative issues in this appeal is the Appellant's credibility and whether he would face a serious possibility of persecution if he were to be returned to Somalia. RAD ANALYSIS [16] The RAD has conducted an independent analysis of the evidence concerned, including reviewing the record of the RPD hearing, as well as considering the Appellant's Memorandum,12 the RPD Decision13 and the Appellant's Basis of Claim (BOC) Form.14 [17] In making this analysis, the RAD notes that the bulk of the focus by both the RPD and the Appellant in his Memorandum has been on identity, as is frequently the case in Somali claims. However, during the course of analysing this particular case, the RAD finds that even if the Appellant's identity were to be established, the Appellant would still not be found to be a refugee for the reasons set out below. As a result, the RAD chooses not to conduct an analysis of the identity issue for reasons of expediency as set out in legislation. RPD did not err by conducting further analysis [18] Firstly, the RAD notes that the Appellant argued the RPD erred by conducting an analysis of other elements of the Appellant's claim after it had found that the Appellant had not established his personal identity. [19] The RAD does not agree with this assertion. The well-established jurisprudence shows that the RPD simply does not need to continue with its analysis of a claimant's claim if it finds a claimant has not established his or her identity. It does not prevent the RPD from choosing to conduct an analysis in situations where personal identity has not been established. Appellant was not credible regarding threats from Al-Shabaab [20] The main reason for the Appellant's well-founded fear of persecution stems from a fear of Al-Shabaab, who he states want to harm him for selling goods to police and government workers, and as a result of such sales, accuse him of being a spy. [21] The RPD, in its analysis, found that the Appellant's evidence was not credible in establishing that such threats took place. Of particular note, the RPD found that the Appellant's allegation of events in his BOC narrative15 was inconsistent from that in his testimony. During his testimony, the Appellant stated that Al-Shabaab's order to the Appellant to close his shop only took place on 11 March, while the narrative stated this took place on both 11 and 21 March. When challenged with this discrepancy, the Appellant stated that the order to close his shop only took place on 11 March, and not on 21 March, and that someone had been assisting him in making his narrative, therefore implying the mistake was from that person. [22] The RAD notes that the RPD's decision refers to the threat to close the shop only being referred to in the narrative as on 21 March. The RAD finds the RPD erred as there was also a reference to this threat happening on 11 March. However, the RAD also notes that the Appellant in his testimony denied that such a threat was made on 21 March and only took place on 11 March, attributing the discrepancy to the person who helped him write the narrative. [23] The RAD finds that despite the slight error by the RPD identified, the fact remains that the Appellant was inconsistent between his testimony and his BOC narrative, and notes the observation made by the RPD that it was for the Appellant to make sure his BOC narrative was complete, true and correct. [24] The RAD also notes that the RPD observed that the Appellant's overall testimony was often vague and evasive. The RAD concurs with this, and concurs that this adversely affects the Appellant's overall credibility, including the credibility of his allegations of threats from Al-Shabaab. [25] The RAD also notes that the Appellant has not commented on this finding in his Memorandum, save for the argument that the RPD erred by analysing this at all, which has already been addressed by the RAD above. The RAD is mindful that this is an Appellant-driven process, and that in the absence of such comment, the Appellant is deemed to have accepted the RPD's findings on that element. [26] When taking all of this into account, and despite the slight error in analysis by the RPD, the RAD finds the RPD did not err in its overall finding that the Appellant was not credible about the allegations of being wanted by Al-Shabaab, and in its finding that on a balance of probabilities, the Appellant was not threatened by Al-Shabaab in the manner claimed. Appellant is not Sufi [27] The Appellant also alleged that he faces a serious possibility of persecution on account of his Sufi faith. The RPD found that the Appellant was vague when asked about his Sufi faith, and found him, on a balance of probabilities, not to be Sufi as claimed. [28] The RAD notes that this finding was not challenged by the Appellant in his Memorandum. The RPD finds no obvious error made by the RPD in its analysis, and therefore upholds the RPD's finding that the Appellant is not Sufi as claimed. Appellant does not face a serious possibility of persecution from being in the West [29] The Appellant did also argue that the RPD erred by failing to consider evidence that the Appellant would face a serious possibility of persecution from Al-Shabaab on account of his time spent in the West, and that he would be perceived as a spy by Al-Shabaab as a result. [30] The RAD notes firstly that there is nothing before it to indicate that Al-Shabaab would even know that the Appellant had been in the West. Secondly, the RAD notes that in the evidence provided by the Appellant, reference is made to Somalis returning to Somalia who had been gone for years. The risk in those circumstances comes from Somalis who were now not familiar with Somali life and would stick out as a result of long absences. [31] The RAD notes that the Appellant had been out of Somalia for less than a year, and it is important to remember that the relevant date in this analysis is the date of the RPD decision. As of that date, the Appellant had only been in Canada for five months, he had only been out of Somalia for six months, and therefore does not fit within the profile detailed in the evidence provided by the Appellant. [32] The evidence put forward by the Appellant also makes reference to returnees being at risk as a result of a lack of clan and family connections in Somalia. This is not a circumstance that exists for the Appellant. The Appellant, by his own admission, as well as the admission of his identity witness at his hearing, belongs to a majority, not a minority clan. The Appellant has also established that he had family and friends in Somalia to make connections with as a result of his business, and the RAD has already upheld the RPD's finding that the allegations of threats by Al-Shabaab in Somalia have been found not to be credible. [33] Accordingly, for the reasons given above, the RAD does not concur with the Appellant's argument that he would face a serious possibility of persecution from Al-Shabaab as a result of time spent in Western countries including Canada. CONCLUSION [34] After making these findings, it becomes clear that the Appellant therefore does not have any remaining grounds under s.96 or s.97 of the IRPA to establish a refugee claim or be considered a person in need of protection, even if his identity were to be established. [35] After conducting its own analysis of the entire record, the RAD finds that the RPD did not err in its overall credibility findings, or in its assessment of the documentary evidence. While the RAD has concerns over one element of the RPD's decision, it was not fatal to its final determination that the Appellant is neither a Convention refugee nor a person in need of protection. [36] Pursuant to s.111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "T. Card" T. Card October 12, 2018 Date 1 S.111(1)(a), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA]. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 X (Re), 2017 CanLII 33034 (CA IRB). 4 Exhibit P-2, Appellant's Record, Pages 19-25. 5 Ibid, Pages 26-28. 6 Ibid, Pages 29-35. 7 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 8 Rule 3(3)(g)(iii), Immigration and Refugee Board of Canada, Refugee Appeal Division Rules, SOR/2012-257. 9 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 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 10 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 11 S.110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA] 12 Exhibit P-2, Appellant's Record, Pages 37-57. 13 Ibid, Pages 3-16. 14 Exhibit RPD-1, RPD Record, Pages 16-29. 15 Ibid, Pages 25-26, Paragraphs 14-16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-23781 RAD.25.02 (September 18, 2018) Disponible en français 10 RAD.25.02 (September 18, 2018) Disponible en français