TB7-23037

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 : TB7-23037 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, Ontario Appel instruit à Date of decision August 17, 2018 Date de la décision Panel L. Gamble Tribunal Counsel for the person(s) who is(are)the subject of the appeal Satnam Singh Aujla Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The Appellant, XXXX XXXX XXXX, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant has not submitted new evidence in support of this appeal, and does not request an oral hearing before the Refugee Appeal Division (RAD). The Appellant asks the RAD to find him to be a Convention refugee or person in need of protection. In the alternative, the Appellant asks the RAD to refer the matter back to a different member of the RPD for redetermination. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), 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. Background [3] The Appellant alleges that he fears return to Somalia on the basis of being targeted by Al Shabaab. He states that Al Shabaab targeted his father and his uncle before the Appellant fled Somalia for Kenya in 2012. He states that he lived in Kenya and travelled to Uganda where he made a refugee claim in 2013 which was rejected,1 before returning to Kenya in August 2013 and being deported to Somalia by Kenyan authorities in February 2014. He states that following his return, Al Shabaab accused him of being a government spy due to the time he had spent outside of Somalia and threatened him with death. He fled Somalia for Uganda in XXXX 2014, where he stayed until March 2015 before leaving and transiting several countries, ultimately arriving in Finland in XXXX 2015 where he made an asylum claim which he states was also rejected.2 He travelled from Finland to Canada on XXXX XXXX, 2016, on what he claims was a non-genuine Finnish passport in the name XXXX XXXX XXXX, along with a Finnish Driver's License and Health Insurance Card in the same name. He made his refugee claim in Canada on arrival. [4] The Appellant's claim for refugee protection was heard on September 13, 2017. By a decision dated September 20, 2017, the RPD rejected the claim. The determinative issues were identity and credibility. The RPD found that the Appellant was not a credible witness and therefore did not establish, on a balance of probabilities, his identity or that he faces a serious possibility of persecution in Somalia on a Convention ground; or, on a balance of probabilities, that he would personally be subjected to a danger of torture, or face a risk to life, or a risk of cruel and unusual treatment or punishment if he were to return to Somalia. [5] On appeal to the RAD, the Appellant submits that the RPD erred in fact and in law in its assessment of the Appellant's identity and credibility.3 The RAD is not persuaded that the RPD erred. The RPD correctly cited multiple significant credibility concerns which were not reasonably explained by the Appellant, which underlined the RPD's finding that he was not a credible witness, and accordingly, that the Appellant lost the presumption of truthfulness with respect to his testimony.4 The RPD addressed with clear and cogent reasons the remaining evidence submitted by the Appellant, namely the testimony of an identity witness, and explained why it found that the Appellant's remaining evidence was insufficient to establish his identity on a balance of probabilities. After my own independent review of the record, including the Appellant's arguments in the present appeal, I agree with the RPD; as such, I find that the Appellant's identity has not been credibly established on a balance of probabilities, and confirm the decision of the RPD. ANALYSIS Role of the RAD [6] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness, as per Huruglica.5 In assessing issues involving credibility of oral testimony, the RAD applies the RAD modified standard of reasonableness where the RAD determines the RPD had a meaningful advantage in assessing oral testimony.6 Merits of the Appeal Credibility [7] The Appellant argues that the RPD erred in its assessment of his credibility by finding a material inconsistency between his Port of Entry statements and his Basis of Claim (BOC) and testimony about which of his uncles was killed in Somalia, and by disregarding the Appellant's explanation for this contradiction. The RPD found that the Appellant's testimony and statements in his BOC form, that his uncle (with whom the Appellant had been living for two years) named XXXX XXXX XXXX was killed in 2012 by Al Shabaab, were not credible in light of contradictory statements he made at the Port of Entry when he made his Canadian refugee claim. At that Port of Entry, the Appellant had the benefit of both a social worker (as he was a minor at the time) and a Somali interpreter, and he told the interviewing officer that his uncle, a man by the name of XXXX XXXX XXXX, had assisted him in coming to Canada. He stated that this uncle lived in Mogadishu and even provided the Port of Entry officer with XXXX XXXX XXXX's phone number. When this discrepancy was put to him at the hearing, the Appellant testified that it must have been an interpretation error, and that the name of the uncle who assisted him was XXXX - an uncle which the RPD noted had not been previously mentioned in testimony when the Appellant had confirmed that he had no family remaining in Somalia.7 The RPD drew a negative inference about the Appellant's credibility, which was one of several negative credibility determinations detailed in the RPD's Decision in support of the overall finding that the Appellant was not a credible witness. [8] The Appellant argues that the RPD erred in reaching this conclusion by disregarding his explanation that the discrepancy must be due to the interpreter's error; however, the Appellant's argument does not set out why he believes the RPD's assessment of his explanation to be in error. I have reviewed the Appellant's testimony which was provided at the hearing, and I agree with the RPD that the Appellant's assertion that his statements at the Port of Entry regarding the assistance from his uncle XXXX XXXX XXXX8 must be the result of interpreter error do not provide a reasonable explanation for this material inconsistency. Absent any specific argument from the Appellant, I cannot see how interpretation error would account for the Appellant's provision of an erroneous proper name: by its nature, interpretation between English to Somali would include a direct statement of any proper name (as opposed to a translation), and therefore, it is unclear how interpretation error could result in the provision of the name XXXX XXXX XXXX for the Appellant's uncle in the context of the Appellant being asked who assisted his transit, instead of the name "XXXX XXXX XXXX," as he presently alleges.9 Moreover, this explanation does nothing to ameliorate why the Appellant earlier affirmed to the RPD that he had no remaining family in Somalia, but then later indicated that XXXX was an uncle still in Somalia. Therefore, I cannot find that the RPD erred as alleged, and I agree with the RPD that this is a material inconsistency which undermines the Appellant's credibility. [9] Secondly, the Appellant argues that the RPD erred by making a negative credibility finding from the difficulty the Appellant had in explaining why he was allegedly forcibly returned to Somalia from Kenya in 2013, including why he was selected for return to Somalia or how he had come to the attention of the Kenyan authorities. The Appellant argues that the RPD erred by not considering his explanation that "all Somalis were repatriated in 2013."10 Given that I have found for the reasons herein that the Appellant was not a credible witness, and absent any objective documentary corroboration in support of the Appellant's explanation that "all Somalis were repatriated" from Kenya in 2013, I do not find this vague and unspecific explanation by the Appellant to be sufficient to explain why he was returned to Somalia from Kenya. Being detained by Kenyan authorities and ultimately deported would have been a significant event in the Appellant's life, given that he was being returned to Somalia, a country from which he alleges he fled due to fear of Al Shabaab, and it is therefore reasonable to expect that the Appellant would be able to answer questions about how and why he personally came into contact with Kenyan authorities resulting in his removal from that country beyond the unspecific statement that all Somalis were repatriated in 2013. In fact, the RPD asked the Appellant specifically, "Why were you returned to Somalia?" to which he replied, "I don't know, we were at home, and they took us."11 I would note that this explanation provided in testimony is not only vague, but it also does not explain why, according to the Appellant's BOC form, he was repatriated from Kenya in 201412 and not 2013 as presently alleged.13 I therefore agree with the RPD that the Appellant's vague and unspecific testimony about his removal from Kenya to Somalia gives rise to a credibility concern which was not reasonably explained by him, and therefore constitutes a credibility concern which contributed to the overall finding that the Appellant was not a credible witness and lost the benefit of the presumption of truthfulness with respect to his sworn testimony. I cannot find that the RPD erred as alleged by the Appellant. [10] Lastly with respect to the RPD's negative credibility findings, the Appellant argues that the RPD erred by misconstruing the evidence before it in finding a material discrepancy between his statements on his refugee intake forms that he had spent time detained in Uganda, whereas at the hearing, the Appellant failed to mention any period of detention in Uganda.14 The Appellant's present argument is that the RPD misconstrued the evidence, as he did not testify he was detained by Ugandan authorities, but rather that he attempted to register an asylum claim at a camp in Uganda and was unsuccessful, and was therefore required to leave the camp.15 However, the Appellant's argument fails to address the concern cited by the Member: that he made no mention in his testimony about being detained in Uganda, whereas his refugee claim documents clearly state that he was "detained in Uganda from Jan 2013 to Feb 2014 while his refugee claim was being processed."16 I note from a review of the Appellant's testimony at the hearing that he instead testified at length that he travelled to a refugee camp outside of Kampala, Uganda, to register with the UN and make a refugee claim, but that the registration line was long and by 5:00, he and the others in line were told that they had to go and return another day, and as such, he testified he did not register his claim.17 This is materially contradictory to his statement in his documents that he was "detained" for over a year "while his refugee claim was being processed."18 His argument on appeal recounting the testimony he did offer does not explain the difference between his testimony and his statements at the Port of Entry. Moreover, I would note from my review of the hearing that the Appellant was specifically asked, "Were you detained in Uganda?" And the Appellant replied, "No, I was not detained." The Appellant was then asked why he told Canadian authorities at the Port of Entry that he was detained in Uganda and his claim there was rejected, and he simply stated, "I don't recall that part."19 Therefore, I find the inconsistency between the Appellant's testimony and his statements at the Port of Entry remain materially inconsistent, and unreasonably explained. I agree with the RPD that the Appellant's inconsistent statements about his time in Uganda, including whether he was detained and whether he pursued a refugee claim in that country, gives rise to material credibility concerns which undercut his overall credibility with respect to his statements. [11] After listening to the testimony, I agree with RPD's finding that there were many credibility concerns which arose in the context of the hearing, and that the ones set out in the Decision are material credibility concerns which were not satisfactorily or reasonably explained by the Appellant. Moreover, I note that the Appellant has not attacked all of the credibility concerns set out in the RPD's reasons, but just the three noted above, which together led to the overall finding that he was not a credible witness and therefore was not to be afforded the presumption of truthfulness with respect to his testimony. Therefore, in the absence of any argument on the RPD's additional negative credibility findings, and given that I do not find the Appellant's arguments in respect of the above credibility concerns persuasive or determinative, and finally, after my own review of the evidence, I cannot find that the RPD erred with respect to its determination that the Appellant is not credible. Therefore, as the Appellant is no longer afforded the presumption of truthfulness with respect to his sworn statements, the question remains whether the Appellant has presented other sufficient credible and trustworthy evidence to establish his identity on a balance of probabilities. Identity [12] The Appellant argues that the RPD erred in law in its assessment of the Appellant's identity by stating that the Appellant appeared "westernized" in his appearance and mannerisms, "portraying someone who has not lived in Somalia his entire life." The Appellant argues that this constitutes an error in law as "there is no correlation between the two factors."20 I find, however, that this argument is not determinative, as the RPD based its finding that the Appellant had not established his identity on a balance of probabilities on (a) its overall finding that the Appellant was not a credible witness and therefore was not afforded the presumption of truthfulness with respect to his sworn statements, including his assertions about his identity; and (b) the lack of other credible and trustworthy evidence to support his identity claim. In my view, the RPD's comment that the Appellant appeared "westernized" and not as someone who had lived in Somalia his entire life, is more akin to an obiter comment than a specific finding, and therefore does not impact the ultimate decision in this case. [13] The Appellant also argues that the RPD erred in law by not taking "judicial review" (which the RAD interprets to mean judicial notice) of the fact that it is "impossible" to obtain identity documents from Somalia;21 given this impossibility, the Appellant appears to argue that greater weight ought to have been afforded to the testimony of his identity witness. However, I cannot agree. The Appellant's argument that the RPD ought to have recognized the "impossibility" of obtaining government-issued identity documents is not supported by his own evidence: at the Port of Entry, the Appellant told the officers specifically that he did previously have a Somali passport issued to him, but that it was lost at sea during his transit between countries.22 Therefore, the Appellant's argument on appeal is factually incorrect, and the RPD did not err in not taking judicial notice of the impossibility of the Appellant having or providing a government-issued identity document. [14] In any event, the RPD considered the Appellant's identity witness and his testimony, as well as the lack of any other identity documents that might have been available to the Appellant, including from his time in Finland during which time the RPD noted that objective evidence states that Finnish authorities were granting asylum to all Somali claimants,23 as well as the Appellant's lack of efforts to obtain any documents from Finland which could support his present identity claim.24 According to the record, the Appellant affirms that he went to school in Finland for over a year, was the recipient of social assistance during his time there, and made an asylum claim which he claims was ultimately refused;25 however, he gave no reasonable explanation for his admitted lack of effort to obtain any documents issued to him in Finland to corroborate his present identity claim. [15] At the hearing, the Appellant testified that he made no efforts to obtain any documents from Somalia or Finland. With respect to any documents he might be able to obtain from Finland, including his asylum claim documents which he says he left behind because his journey to Canada was "in a rush," he stated he made no attempts to seek to obtain such documentation because he did not know how he would get documents or how he would contact Finnish authorities. I agree with the RPD that the Appellant's lack of documentation to establish his identity, as well as his lack of efforts to seek to obtain them, constitutes a significant credibility concern. This is especially so where, as here, the Appellant travelled to Canada on a Finnish passport and was also in possession of a Finnish Driver's License and health insurance card in the same identity as his alleged non-genuine passport, having been in Finland during a time when Finnish authorities were granting asylum to Somali claimants simply on the basis of national origin.26 There is nothing besides the Appellant's own statements - which were rife with credibility concerns such that he was found not to be a credible witness - to indicate that the identity he used to travel to Canada is not his true identity, and therefore, there remains evidence on record which provides a basis to doubt the Appellant's present identity claim. After considering and weighing all the evidence on record, I agree with the RPD that in accordance with the Rules and the IRPA, 27 the Appellant has not discharged his burden to provide identity documents, or where they are not available, to provide a reasonable explanation for the lack of identity documents or to take reasonable steps to obtain such documentation. 28 I further find for all the reasons herein that the Appellant has not established his identity on a balance of probabilities. [16] Lastly, the Appellant argues that the identity witness testified that the Appellant is from Somalia, and therefore that the RPD's negative decision is an error in law.29 However, I agree with the RPD that, for the reasons above and as set out in the RPD's decision, the evidence provided by the identity witness is insufficient to credibly establish, on its own and in light of the credibility concerns with respect to the Appellant's testimony and the tenuous connection between the Appellant and his witness, the Appellant's personal and national identity on a balance of probabilities. [17] The RPD found that the Appellant and the witness had only a "tenuous connection," despite allegedly being cousins, as the witness stated he had met the Appellant once in Somalia when the Appellant was perhaps three years old, and the Appellant himself did not remember this interaction.30 Other than that meeting in approximately 2002, which was only recalled by the witness, the Appellant and witness indicated they had spoken a few times by phone between 2014 and the Appellant's arrival in Canada, on occasions where the Appellant called the witness to request money be sent to him. The witness indicated the Appellant called him in approximately 2011 for the purpose of reconnecting with family, whereas the Appellant stated that their first contact by phone was to request money from the witness, an inconsistency which was noted by the RPD in its Decision. The witness indicated they spoke by phone again in 2014, and once more in 2015, before the two reconnected here in Canada. The witness testified that he could not be sure where the Appellant was (or in which country) on any of the times when they spoke by phone because the Appellant called over the internet.31 The witness testified that what he knew about the Appellant's paternal side of the family was information he had learned from the Appellant himself, and stated that what he knew about why the Appellant could no longer live in Somalia was simply that, "life is hard, people are killing each other and fleeing from it." I agree with the RPD that the connection between the witness and Appellant is tenuous at best, and given that the witness knew very little of the Appellant's family, history, reasons for seeking protection in Canada or where and how he has spent his time since he alleges he left Somalia, I find the witness's testimony is insufficiently weighty to overcome the serious credibility concerns about who the Appellant says he is, such that the witness's testimony alone is insufficient to establish the Appellant's identity on a balance of probabilities. [18] The RPD found, on a balance of probabilities, that there was insufficient persuasive evidence to establish the Appellant's identity, particularly given the credibility concerns outlined in the Decision with respect to his claim. On the basis of the findings noted above and after my own assessment of all the evidence, including the Appellant's oral evidence at the RPD hearing and that of the identity witness, I agree with the finding of the RPD that the Appellant has not established his identity on a balance of probabilities. As identity is a threshold issue, I therefore find that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and for the same reasons, I find that the Appellant is not a person in need of protection under section 97 of the IRPA. CONCLUSION [19] 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 paragraph 111(1)(a) of the IRPA. (signed) "L. Gamble" L. Gamble August 17, 2018 Date 1 Exhibit RPD-1, RPD Record, p.42. 2 Ibid, pp.11-19, Basis of Claim form. 3 Exhibit P-2, Appellant's Record, p.11, paras.7-8. 4 Maldonado, Pedro Enrique Juarez v. M.E.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979; Reported: Maldonado v. M.E.I., [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 5 M.C.I. v. Huruglica, Bujar (F.C.A., no.A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 6 Ibid, paras. 69-74. Also see X (Re), 2017 CanLII 33034 (CA IRB). 7 Exhibit P-2, Appellant's Record, p.5, para.7. 8 Including that XXXX XXXX XXX gave him 500 Euros to travel from Finland to Canada, the provision of a phone number for XXXX XXXX XXX and the Appellant's statement that he presently lives in Mogadishu. See Exhibit RPD-1, RPD Record, p.53. 9 RPD Hearing, 13 September 2017, 01:40:00. 10 Exhibit P-2, Appellant's Record, p.14-15, paras.24-26. 11 RPD Hearing, 13 September 2017, 00:42:00-00:48:00. 12 Exhibit RPD-1, RPD Record, p.12. 13 Exhibit P-2, Appellant's Record, p.15, para.25. Also as per testimony - RPD Hearing, 13 September 2017, 01:22:55-01:23:03. 14 Exhibit P-2, Appellant's Record, p.15, paras.27-28. 15 Ibid. 16 Exhibit RPD-1, RPD Record, p.42. 17 RPD Hearing, 13 September 2017, 00:51:45 to 00:54:37. 18 Exhibit RPD-1, RPD Record, p.42. 19 RPD Hearing, 13 September 2017, 01:38:50. 20 Exhibit P-2, Appellant's Record, p.12, paras.11-12. 21 Ibid, p.13, para.14. 22 Exhibit RPD-1, RPD Record, p.51. 23 Exhibit RPD-1, RPD Record, p.7, RPD Decision, para.11. 24 Ibid, p.8, para.15. 25 Exhibit RPD-1, pp.54 and 69. 26 Exhibit RPD-1, RPD Record, p. 7, RPD Decision, para.11 citing Exhibit 3.2, National Documentation Package (NDP), Finland, May 31, 2017, Item 2.1. 27 Section 106, Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27; Rule 7, Immigration and Refugee Board, Refugee Protection Division Rules , SOR/2012-256. 28 A lack of an effort to obtain corroborative evidence may undermine a claim (Muthiyansa v Canada (Minister of Citizenship and Immigration), 2001 FCT 17 at paras 12-13). Corroborating evidence may be expected where it is reasonably available (Wokwera v Canada (Minister of Citizenship and Immigration), 2012 FC 132 at para 39). In evaluating the merit of a refugee claim, "[...] the Board [is] entitled to take into account the applicant's lack of effort to obtain corroborative evidence to establish [elements of his claim] and to draw a negative inference of his credibility based on this" (Samseen v Canada (Minister of Citizenship and Immigration), 2006 FC 542 at para 30). Jurisprudence concerning Rule 7 makes it clear that the Board can take into account an applicant's lack of efforts to obtain corroborative evidence where it should be available and that the presumption of truth is always reviewable: Nagy v Canada (Citizenship and Immigration), 2013 FC 640 at para 66; Samseen, above, at para 30. 29 Exhibit P-2, Appellant's Record, p.13, paras.15-16. 30 Exhibit RPD-1, RPD Record, p. 8-9, RPD Decision, para.17. 31 RPD Hearing, 13 September 2017, starting at 01:58:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-23037