TB6-05859

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 : TB6-05859 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 September 21, 2016 Date de la décision Panel Roslyn Ahara Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Barrister and Solicitor 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 [1] XXXX XXXX XXXX (the Appellant) is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal; however, he is not requesting that the Refugee Appeal Division conduct an oral hearing. The Appellant is, however, asking the RAD to allow the appeal. DETERMINATION [2] This appeal is allowed. Pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently constituted panel. Background [3] The Appellant is a 23-year old Somalian National who alleges to be from the Sheikhal clan. He grew up in Mogadishu and he alleges that his family was running a business trading foreign products. [4] The Appellant alleges that his family's business as attacked by Al-Shabaab, killing both his father and brother on XXXX XXXX, 2015. He also alleges that his family was targeted by Al-Shabaab because they were Sufi practitioners. The Appellant managed to flee to Kenya on XXXX XXXX, 2015, then to Canada on October 2, 2015 with the aid of a smuggler to facilitate his journey. ROLE OF THE RAD [5] Counsel for the Appellant concurs that the RAD should take guidance from the recent Federal Court of Appeal decision, in Huruglica.1 This decision provides us with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. The justices stated at paragraph 103: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. The RAD has applied the foregoing reasoning. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL Express statutory conditions [6] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The following new evidence has been submitted: * Documents from the Somali Immigrant Aid Organization (SIAO) website;2 * Law Society of Kenya online excerpt.3 [8] Counsel submits that the new evidence concerning the SIAO is credible and is verifiable from the website and it is relevant as it demonstrates the bona fides of the SIAO as well as demonstrates that the SIAO has provided assistance to Somali newcomers for many years. It is argued that it was not reasonably foreseeable that the RPD would impugn a reputable community organization and the bona fides of a Kenyan lawyer. [9] It is further argued that the Raza4 criteria of "credibility", "newness", and relevance" of the evidence has been met. [10] The RAD finds, with respect to the documentation from the Somali Immigration Aid Organization, that this is not new evidence. Our analysis follows with respect to this document which was before the RPD. Accordingly, the RAD declines to admit it. [11] However, with respect to the Law Society of Kenya online excerpt, the RAD accepts this document as the Appellant could not reasonably have expected that the lawyer's credentials would be challenged. Accordingly, the RAD admits this document. [12] Section 110(6) of the IRPA states: The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] The RAD finds that the new admissible evidence does not establish the Appellant's identity, which was the determinative issue of the Appellant's claim. SUBMISSIONS BY THE APPELLANT * Did the RPD err in its "identity" findings? First witness XXXX XXXX XXXX [14] It is argued that the RPD made an error of fact when it could not accept that the witness and the Appellant would not have known each other until 2010, if they had lived two houses apart. It is argued that the Appellant did not say that he lived two houses away from the witness; neither did the witness. It is submitted that the RPD speculated in part because of the proximity of the house, which is an error, and because of "the strong sense of community in Somalia."5 The answers provided by both the Appellant and the witness, it is submitted, are consistent. For example, they met at the mosque before 2010, and they played soccer after going to the mosque, the Appellant named the members of the witness' family including the witness' wife and stated that they had no children. The Appellant described the shop of the witness after 2014, when it became a sports good store. [15] The RAD concurs with the Appellant that it would not be uncommon or unusual for individuals who lived two doors apart, not to know each other until they met in certain circumstances, which appears to be the case in this claim. Moreover, the RAD finds that the conclusions reached by the RPD are speculative in nature as a result on this issue. As well, the comment about the "strong sense of community" in Somalia is pure conjecture as well. Second witness XXXX XXXX XXXX [16] The Appellant stated that this witness was a driver and picked up goods that were stored on the Appellant's father's business premises. The RPD erred in that it was microscopic to find that this witness was not credible because he said the father's truck was a red Isuzu at the second sitting and the Appellant had said that the truck was a Fiat at the first sitting. The Appellant testified that his family business had had one truck before and then they got another truck (first sitting). It was never put to the Appellant which truck he was referring to when he referred to the Fiat. It is submitted that the second witness should not be impugned because of the fact that the witness said that the truck was an Isuzu, which is microscopic and also because the evidence is that there was one truck that was sold before the Appellant met the second witness and the Appellant may have been referring to the first truck when he said that truck was a Fiat. [17] The RPD pointed out that the witness and the Appellant differed as to whether they had met at the Tim Horton's. [18] The RAD finds that this issue was never put to the Appellant and given the fact that one truck was sold before the Appellant met this second witness, the finding by the RPD is unsustainable. Other discrepancies [19] It is submitted that the finding by the RPD that the appellant had embellished his evidence with respect to discrimination at the hands of majority tribes, when he had not referred to such discrimination at the first sitting, is unreasonable. It is argued that this is not relevant to the determination issue which is identity. [20] It is argued that the RPD impugned the Appellant's evidence because he did not mention in his Basis of Claim (BOC) problems with Al-Shabaab in October 2009 and April 2010. It is submitted by the Appellant that these incidents were minor and were not related to the June 2015 incident and were five to six years prior to that incident. Moreover, it is argued that when asked about further incidents, the Appellant elaborated, but that did not mean that he would necessarily have added these incidents to his BOC. It is argued that the RPD's point of view that it was important to refer to the incidents in 2009 and 2010 in his BOC is unreasonable. [21] Furthermore, it is submitted by the Appellant that the RPD erred in finding that the letter from the SIAO could not be given weight because it had no credentials. Had notice been given, the Appellant could have referred to the information on their website at http://www.siao.ca. [22] Furthermore, it is submitted that the RPD discusses the affidavit from his mother but assigns no weight because it is a copy. Moreover, the advocate who swore the affidavit is listed online. With respect to the affidavit of the grandfather, in the absence of proof of the notary and no identity documents for the signatories, the RPD assigned no weight. However, it is argued that this was not raised at the hearing and, therefore, is a breach of fairness. [23] The RAD finds that the RPD ought to have given weight to the letter from the SIAO as it is an official organization. The advocate who wrote the affidavit from the Appellant's mother is listed online, and the RAD has accepted this as new evidence. The RAD further notes that the affidavit of the grandfather, and the doubts with respect to its authenticity were never put to the Appellant. [24] The RAD finds that the foregoing are errors in law and are, therefore, unsustainable. [25] It is submitted that the RPD accepted that identity documents have not been issued in Somalia since 1991. The Appellant submits that the RAD must then have regard to the totality of alternative forms of evidence produced by him in order to establish his identity. RAD'S CONCLUSION [26] The RAD finds that it cannot conduct an analysis with respect to the merits of the claim. To do so would require hearing evidence which was already before the RPD. The RAD has already declined an oral hearing, as the new evidence does not meet the criteria pursuant to ss. 110(6) of the IRPA. Accordingly, the RAD remits the matter to a newly constituted panel of the RPD for re-determination with respect to both the issue of identity and the merits of the claim. [27] This appeal is allowed. Pursuant to sections 111(1)(c) and 111(2) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently constituted panel. (signed) "Roslyn Ahara" Roslyn Ahara September 21, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellant's Record, pp. 11-13. 3 Ibid., p. 10. 4 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 5 Exhibit RPD-1, RPD's Record, RPD's Reasons, para. 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-05859