TB8-15599

RAD File / Dossier de la SAR : TB8-15599 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 8, 2020 Date de la décision Panel I. Singh Tribunal Counsel for the person who is the subject of the appeal Lina Anani Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Appellant), a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD), dated May 9, 2018, rejecting his claim for refugee protection. DECISION [2] The appeal is dismissed. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant alleged before the RPD that he fears Al-Shabaab in Somalia as he escaped from them after being detained and sentenced to death for XXXX XXXX for a XXXX which were critical of Al-Shabaab. [4] The Appellant's application for refugee protection was heard on April 30, 2018. By a decision of May 9, 2018, the RPD rejected the claim. The RPD found that the determinative issues were identity and credibility. [5] The Appellant submits that the RPD erred in its assessment of the Appellant's identity and credibility by failing to consider relevant evidence, making erroneous credibility and plausibility findings, misapprehending the evidence, and that it erred in its assessment of the sur place claim. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [6] My role is to look at all the evidence and decide if the RPD made the correct decision.1 ANALYSIS The RPD did not err in its assessment of the Appellant's identity and credibility The Appellant's identity witness [7] The RPD placed little weight on the witness' testimony. The RPD found the witness' testimony was not probative or reliable because the nature of the evidence was superficial and contained details that could have been discussed with the Appellant prior to the hearing. The RPD also found that the Appellant's random encounter with the witness in Canada was unlikely. [8] The Appellant argues the RPD's reasoning is erroneous as the sworn testimonies of the Appellant and the witness were consistent, by its nature the information is superficial, and there is no requirement that the witness must have known the Appellant at a deep, personal level. He also argues that the RPD provided no reasons for disbelieving that the Appellant and witness ran into each other at a coffee shop in Toronto. He argues the RPD erred by making an implausibility finding as it failed to consider that the Somali population resides in certain neighbourhoods within the city and their meeting was plausible. [9] I am persuaded that the RPD erred in aspects of its analysis regarding the witness; however, I agree with its conclusion that the witness' testimony is only deserving of little weight. From listening to the audio recording, I note that the RPD did not ask any questions of the witness. The RPD had the opportunity to question the relationship between the Appellant and the witness further, beyond "superficial information," but it did not choose to do so. In my assessment the testimonies were consistent. I am also persuaded that the RPD erred in its implausibility finding with regard to how the Appellant and the witness met in Canada. Their story is remarkable, but not implausible. [10] I note that the witness last saw the Appellant in Somalia in 2013. They then lost contact until they met in Toronto, in 2017. Therefore, the witness cannot account for the Appellant's whereabouts for a period of about four years. As such, I find the witness' testimony is deserving of some weight in terms of establishing the Appellant's identity, but cannot, on its own, establish the Appellant's identity, on a balance of probabilities. Letter from XXXX XXXX XXXX [11] The RPD placed some weight on the letter from XXXX XXXX XXXX XXXX XXXX XXXX however, found that the Appellant's answers to the questions asked by the organization, such as about the Somali language, geography, and clan structures, did not necessarily mean he is Somali. [12] The Appellant argues the RPD erred by looking at each component of this claim separately and apart, whereas the evidence should have been evaluated in its entirety. He argues that the Federal Court has held that acceptable means of establishing identity include knowledge of the home country and the language spoken by the claimant, which was ignored by the RPD. He also argues the RPD went to extremes to reject the identity of the Appellant and was intent to find fault with the Appellant's evidence rather than take a fair and reasonable view of the material provided. Lastly, the Appellant quoted from Oranye, in which the Court discusses decision-makers assigning little weight to documents without making explicit findings as to their authenticity. I do not find this to be relevant as there was no issue about the authenticity of the letter from XXXX; therefore, I have not addressed this argument. [13] I find the RPD did not err. First, though the RPD did appear to look at each component of the claim separately, it expressly considered that the objective lack of government documents from Somalia was a mitigating factor, and then considered the evidence in its totality. I find that by doing so, the RPD did evaluate the evidence in its entirety. [14] I find the RPD's assessment of the letter from XXXX was correct. The letter corroborates the Appellant's knowledge of Somalia and the language, and the RPD gave the letter some weight; hence, the RPD did not ignore these factors. The Appellant relies on Lin2 in arguing that his knowledge of Somalia and the fact that he speaks Somali are acceptable means of establishing his identity. I find the Appellant's case is distinguishable from Lin. In Lin, the Applicant provided several identity documents for herself and her child, and one document was found to be counterfeit. The Court did not say that knowledge of the home country and the language spoken are acceptable means of establishing identity, rather, the Court stated: I note that the board's reasons are silent with respect to the fairly extensive evidence provided by Ms. Lin at the hearing. She responded to numerous questions relative to her background and the area where she claimed to have lived in China. That evidence, in my opinion, ought to have at least been considered by the RPD in its assessment as to whether she had established her identity. It seems to me that the board had no regard to it at all.3 [15] The Appellant did not provide identity documents and the RPD did consider, in its assessment of the letter from XXXX, that the Appellant had knowledge about Somalia and spoke Somali. [16] I further find the RPD's attribution of some weight to the letter from XXXX is correct. The author of the letter states the Appellant was "extensively interviewed" and "we believe there is a compelling and very strong likelihood XXXX XXXX XXXX XXXX XXXX is a citizen of Somalia." The author further states the Appellant speaks "Standard Somali" and that his "physical features were also consistent with those of the majority of ethnic Somalis, including members of the Biyomaal clan."4 [17] I do not find the conclusions drawn by XXXX about the Appellant's citizenship to be persuasive or conclusive. I have no means of ascertaining that the Appellant's knowledge of Somalia is first-hand knowledge. Even so, I do not agree that speaking Somali, looking Somali, and knowing about Somalia's geography, landmarks, traditions, and clans would definitively mean that one is a national of Somalia. There are many Somali individuals who are nationals of countries other than Somalia. Despite this, I find that they may look Somali, and they would be able to speak Somali and answer the same questions put to the Appellant by the individual who interviewed him. Therefore, I do not believe that XXXX is able to determine, even on a balance of probabilities, that the Appellant is a national of Somalia. The only thing I believe that XXXX is able to determine is that the Appellant is ethnically a Somali and this is not the same as determining his identity or nationality. As such, I agree with the RPD that the letter from XXXX is only deserving of some weight in establishing the Appellant's identity. [18] I am also not persuaded by the Appellant's argument that the RPD went to extremes to reject the Appellant's identity, and was intent to find fault with the Appellant's evidence rather than take a fair and reasonable view of the material provided. The Appellant relies on Husian,5 which is distinguishable from the Appellant's case because in that case the Appellant had provided two affidavits as new evidence, which were accepted by the RAD but then given little weight in establishing identity. The Appellant has not submitted new evidence and I do not find that giving less weight to one letter constitutes going to "extremes" to reject his identity. The Appellant's United States of America (USA) asylum claim [19] The Appellant argues the RPD erred by not considering that the authorities in the USA accepted the identity of the Appellant. He relies on Mahdi6 in arguing that the USA decision is a credible basis for a finding in his favour. [20] I am persuaded that the RPD erred by not considering the USA asylum claim documents in assessing the Appellant's identity. However, I find the documents are insufficient at establishing the Appellant's identity, on a balance of probabilities. [21] I find the facts in Mahdi7 are distinct from those in the Appellant's claim, such that the decision is of no assistance to the Appellant. Namely, in Mahdi, the claimant submitted documents to USA authorities, upon which they were able to establish his identity. The claimant submitted those same documents to the RPD and the RPD found he failed to produce sufficient credible evidence of his identity, then went on to hold that there was no credible basis for the claim (which the Court found was unreasonable). [22] In the Appellant's case, though there are documents within the USA asylum claim documents that refer to his Somali citizenship, there is minimal indication that the Appellant submitted documents to the USA authorities to establish his identity as a national of Somalia, as the claimant did in Mahdi, and the one document that was submitted, was not provided with an identity document, nor was the affiant called as a witness for the RPD hearing. The document submitted is an affidavit from a family friend, XXXX XXXX XXXX XXXX XXXX XXXX.8 She swears that the Appellant was born in Somalia and for that reason he is a Somali national. Though being born in a country is a strong indication that one is a citizen of that country, it is not sufficient to establish one's nationality, on a balance of probabilities. [23] Therefore, I find the USA asylum claim documents are insufficient at establishing the Appellant's identity, on a balance of probabilities. The Appellant's work as a XXXX [24] The RPD did not find it credible that the Appellant, an alleged XXXX, was unable to produce any evidence of his work, which included approximately XXXX XXXX. The RPD did not find it credible that all of the XXXX were destroyed and that they were done so by the Appellant's sister when he could have done so himself. The RPD found the Appellant's testimony about the contacts his sister and brother-in-law had with the XXXX XXXX was evolving and inconsistent. The RPD found there would have been no purpose in destroying the XXXX since Al-Shabaab already knew about them. The RPD also found it unlikely that the Appellant was unable to contact his American lawyer who would likely have the two XXXX which were used as evidence in the USA asylum claim. The RPD found, on a balance of probabilities, that there were no XXXX and the Appellant was not targeted by Al-Shabaab. The RPD drew a negative inference against the claim. [25] The Appellant argues the RPD erred in assessing the merits of the Appellant's claim as the Court has instructed that once identity is rejected, the assessment must stop, therefore the RPD's findings with regard to the merits of the claim are null and void. The Appellant also argues that the RPD erred in its analysis about the destruction of the XXXX as their existence could have unleashed further violence from Al-Shabaab or influenced others; as such the RPD should not have ascribed logic to Al-Shabaab or speculated as to their acts. [26] Although there are areas within the RPD's assessment in which I find the RPD erred, overall, I agree with the RPD's conclusion. [27] I turn first to the Appellant's argument that "once identity is rejected, the assessment must stop." I find this is an incorrect interpretation of Yang. In that case, the Court states "where identity is not established it is unnecessary to further analyze the evidence and the claims."9 Therefore, it was not necessary for the RPD to assess the merits of the Appellant's claim, but it did not err in doing so. [28] I am persuaded that the RPD erred in a part of its analysis, specifically that the RPD "should not have ascribed logic to Al-Shabaab or speculated as to their acts," as argued by the Appellant. The RPD erred by speculating that there would have been no purpose served in destroying the XXXX. However, I agree with the remaining elements of the RPD's analysis, which are unchallenged by the Appellant. My analysis on these elements follows. [29] There are two main credibility concerns that arose from the Appellant's testimony and that are addressed by the RPD in its reasons. First, that the Appellant's testimony was evolving and inconsistent with regard to the connections his sister and brother-in-law had with the XXXX XXXX that employed the Appellant. Second, that the Appellant was unable to produce any evidence of his work as a XXXX. [30] On the first point, throughout the hearing the Appellant testified that his sister was the reason he obtained the job with the XXXX, she had links with the XXXX, and she was the one to call to get the XXXX removed because she was the one who made the connection for him to work there. When asked what her relationship to the XXXX was, the Appellant changed his testimony to state his sister's husband had some connection to a man at the XXXX. When asked to explain the inconsistency, he testified his sister knew the person at the XXXX because he was friends with her husband. I do not find this explanation reasonable. His testimony changed when he was asked for specifics about the connection his sister had with the individual employed at the XXXX and at no other point had he mentioned any link between his brother-in-law and the XXXX. Therefore, I find the RPD did not err in finding the Appellant's testimony on this point was evolving and inconsistent. This warrants a negative inference against the claim. [31] On the second point, I also do not find it credible that the Appellant could not produce a single XXXXheXXXX XXXX for his claim. I also find the Appellant failed to make efforts to obtain such evidence from his USA asylum claim file and/or his former lawyer. The Appellant has had at least two lawyers in Canada and has not submitted any evidence of his alleged efforts to contact his lawyer in the USA requesting the two XXXX XXXX which were allegedly used as evidence in his USA asylum claim. Moreover, I find these XXXX could have been probative at establishing both, his identity and his credibility. As a result, I find the RPD did not err in its analysis and I agree with a negative inference against the claim. Conclusion on Identity [32] I reiterate section 106 of the Immigration and Refugee Protection Act (IRPA) quoted by the RPD. I also note section 11 of the Refugee Protection Division Rules (RPD Rules), which reads: The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.10 [33] As noted by the Federal Court in Su, "The onus is on the claimant to produce acceptable documentation establishing his or her identity."11 [34] The Federal Court in Duale noted that "it is up to the claimant to establish his identity and he must make a genuine, substantive effort to do so."12 [35] The burden rests on the Appellant to establish, with credible or trustworthy evidence, on a balance of probabilities, that he is who he says he is, and that he is a national of Somalia. [36] Based on all of the above findings, the totality of the evidence, and the weighing of evidence that support the Appellant's identity and evidence that detracts from his credibility, I find, that the Appellant has failed to establish his identity, on a balance of probabilities. While there is some evidence that supports his identity, I do not find it is enough, even cumulatively, to overcome the negative findings. Sur place claim [37] The RPD found it was speculative that the Appellant would be targeted by Al-Shabaab for having been in North America for only three years. [38] The Appellant argues the RPD erred in its sur place assessment as it failed to consider contradictory evidence, misapprehended key facts, and came to an erroneous decision. [39] I find this issue is not determinative as I have found the Appellant failed to establish his identity. CONCLUSION [40] For the above reasons and after conducting its own analysis of the record, including the audio recording, the RAD finds that the RPD did not err in rejecting the Appellant's claim. The RAD finds that the Appellant has not established his identity on a balance of probabilities. As a result, the RAD finds that he has not established that he faces more than a mere possibility of persecution as per section 96, or that he faces harm, on a balance of probabilities, under section 97 of the IRPA. Therefore, the RPD's final determination that the Appellant is not a Convention refugee nor a person in need of protection is correct, and this appeal is dismissed. [41] 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 section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) Inderpreet K. Singh I. Singh September 8, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Lin v. Canada (Minister of Citizenship and Immigration), 2006 FC 84, at para. 13. 3 Ibid. 4 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 86. 5 Husian v. Canada (Citizenship and Immigration), 2016 FC 462, at para. 25. 6 Mahdi, Hilbil Hassan v. M.C.I. (F.C., no. IMM-2664-15), Phelan, February 17, 2016, 2016 FC 218. 7 Mahdi, Hilbil Hassan v. M.C.I. (F.C., no. IMM-2664-15), Phelan, February 17, 2016, 2016 FC 218. 8 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 96. 9 Yang v. Canada (MCI), 2009 FC 681, at para. 6. 10 Refugee Protection Division Rules (SOR/2012-256), Rule 11. 11 Su, Sai v. M.C.I. (F.C., no. IMM-4632-11), Snider, June 14, 2012, 2012 FC 743 at para. 4. 12 Duale, Mohamed Aden v. M.C.I. (F.C., no. IMM-6712-02), Dawson, January 30, 2004, 2004 FC 150 at para. 3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-15599 RAD.25.02 (April 04, 2019) Disponible en français 2 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.25.02 (April 04, 2019) Disponible en français