TB8-09395

RAD File / Dossier de la SAR : TB8-09395 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 February 11, 2021 Date de la décision Panel Devika Ratnayake Tribunal Counsel for the person who is the subject of the appeal Adam Sadinsky Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Brandon Goncalves Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is the appeal of XXXX XXXX XXXX ("Appellant"), who alleges to be a citizen of Somalia. He is appealing the decision of the Refugee Protection Division ("RPD"), dated March 21, 2018, rejecting his claim for refugee protection. He fears mistreatment by the majority clans in Somalia. [2] The Minister of Citizenship and Immigration ("Minister") intervened in person at the RPD and submitted evidence including a Kenyan passport copy, XXXX containing a photograph of the Appellant issued to XXXX XXXX XXXX XXXX XXXX ("Kenyan passport") which indicated the Appellant is likely a Kenyan national named XXXX XXXX XXXX XXXX XXXX XXXX who entered Canada on a study permit. The Minister requested that the RPD find the Appellant's claim is manifestly unfounded under Section 107.1 of the Immigration and Refugee Protection Act ("IRPA") on the basis of his ongoing misrepresentation to Canadian authorities of his identity until the Minister intervened and because he had not established his identity. The RPD rejected his claim on the basis that he had not established his identity, on a balance of probabilities, and that he lacked credibility. [3] The Minister intervened at the Refugee Appeal Division (RAD) on the same basis as it did at the RPD and asked that the RAD dismiss the Appeal. The Appellant replied requesting an order from the RAD that the copy of the Kenyan passport the Minister submitted be validated and requesting to submit evidence pursuant to subsection 110(5). I find that the determinative issues in this appeal are identity and credibility, and I agree with the RPD that the Appellant has not established his identity with sufficient credible and trustworthy evidence and that the Appellant and his allegations lack overall credibility. DECISION [4] After considering his arguments and the totality of the evidence, I dismiss the appeal and confirm 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. BACKGROUND [5] The Appellant alleged before the RPD that he belongs to the minority Bajuni clan in Somalia and fears mistreatment by majority clans in Somalia. He alleges that, after his father's death in 2003, when the Appellant was approximately five years old, he was forced to flee Somalia, and he went to Kenya with his family. Since then, the Appellant has lived in Kenya until Somali nationals were targeted and faced arrest and deportation. He alleges that, with the assistance of his family and an agent, the Appellant travelled to Canada. [6] The Appellant made an inland refugee claim in Canada, with legal representation, based on the above-noted allegations in his Basis of Claim ("BOC") form, dated XXXX XXXX XXXX 2017, and in which he stated that he arrived in Canada on XXXX XXXX XXXX 2017. [7] On or about XXXX XXXX XXXX 2017 an Immigration Officer at the Etobicoke office presented the Appellant a copy of the Kenyan passport which he used to enter Canada on XXXX XXXX XXXX 2017 and instructed the Appellant to bring the Kenyan passport the following day. When questioned about the Kenyan passport, the Appellant stated he needed to speak to his legal counsel. The Appellant did not return to the IRCC office the following day with the Kenyan passport as instructed. Instead, on XXXX XXXX XXXX 2017, the Appellant provided a statutory declaration affirming that he never had a passport and never handled the passport. He did not provide any explanation regarding the discrepancies including his date of entry to Canada. The Appellant never provided the original hard copy of the Kenyan passport, stating that it is with the agent. [8] In January 2018, the Minister provided a Notice of Intervention to the RPD. The Minister submitted a copy of the Appellant's study permit application made to the Canadian High Commission in Nairobi in the name of XXXX XXXX XXXX XXXX XXXX; a copy of the Kenyan passport which the Appellant used to enter Canada on XXXX XXXX XXXX 2017 and not XXXX XXXX XXXX 2017 as he claimed; and social media posts with the Appellant's photographs suggesting that the Appellant is not whom he says he is on his BOC. [9] In XXXX 2018, after the Minister intervened, the Appellant amended his BOC, which included an admission that he arrived in Canada in late XXXX, although he stated that he could not recall the actual date and that he had lied about his arrival information because his agent specifically instructed him not to disclose his date of arrival in Canada. [10] The following background after the Appellant filed his appeal record with the RAD is also of relevance: (a) the Appellant's Rule 29 Application seeking to submit proposed new evidence, namely a letter from the Kenyan Immigration Department in Kenya; (b) the Minister's submissions and additional evidence in support of the intervention; (c) the Appellant's reply submission, statutory declaration and a written application, pursuant to Rule 37 of the Refugee Appeal Division Rules (the "Rules")1 seeking an order to validate the authenticity of the Kenyan passport the Minister submitted; and (d) the Minister's response to the Appellant's Reply. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [11] While the IRPA contains restrictions on the nature of evidence submitted to the RAD by a person who is the subject of an appeal, no such restrictions apply to the Minister, nor do they apply to the Appellant's evidence submitted in reply to the Minister's evidence. [12] The Minister submitted the following documents to the RAD: the Appellant's Kenyan Medicals related to his Application for a Canadian study permit; a photocopy of the Appellant's Kenyan Passport; the Appellant's photo Comparison Chart; an article on "Kenya - 2009 Kenya Population and Housing Census Kenya National Bureau of Statistics (KNBS)"; and an excerpt from the IRCC website "Study permit: Prepare for arrival. Pursuant to subsection 110(3) of IRPA, the above-noted evidence submitted by the Minister is admissible. [13] The Appellant submitted a statutory declaration in support of his reply to the Minister's evidence submitted to the RAD. In addition, he resubmits documents he previously submitted pursuant to a Rule 29 Application in XXXX 2018, namely a letter from the Kenyan Immigration Department in Kenya, dated XXXX XXXX XXXX 2018, a letter from his legal counsel's law firm to the Kenyan Immigration Department in Kenya, dated XXXX XXXX XXXX 2018, and his statutory declaration, dated XXXX XXXX XXXX 2018, in support of his Rule 29 application (hereafter collectively "Kenyan Immigration documents"). He submits that the above-noted documents should be admitted, pursuant to subsection 110(5). After reviewing the parties' evidence, I find the Appellant's documents, including the Kenyan Immigration documents, are admissible pursuant to subsection 110(5). Rule 37 Application The Appellant's Position [14] The Appellant requests: (a) That the RAD exercise its jurisdiction to pursue an Acquisition of Information in order to contact the Government of Kenya to verify whether the photocopy of the Kenyan passport presented by the Minister is valid and was genuinely issued (the Appellant never surrendered the original Kenyan passport stating that it is with the agent); or (b) In the alternative, that the RAD direct the Minister to make such inquiries; or (c) In the further alternative, that the RAD grant the Appellant an extension of 90 days to make such inquiries and respond to the Minister's intervention. [15] Further, the Appellant submits that RAD's decision to grant his Application should include a preliminary determination as to whether the new evidence could be admitted. He submits that for the purpose of this application, it should be pointed out that subsection 110(5) of the IRPA eliminates the requirements of subsection 110(4) when new evidence is presented to counter the Minister's evidence. The Minister's Position [16] The Minister did not consent to the Appellant's request. [17] Further, the Minister filed a response to the Appellant's reply opposing the Appellant's Rule 37 Application. The Minister submits it is outside the RAD's scope to grant the Application because RAD Rule 5(2)(d) states that the content of the reply to the Minister's intervention should only pertain to the grounds raised by the Minister. The Minister argues that the Appellant's alternate Kenyan identity and his attempt to conceal it have been issues before the Immigration and Refugee Board (IRB) since the Appellant's initial refugee eligibility interview in XXXX 2017. [18] Additionally, the Minister submits that while they have the ability to verify the authenticity of an identity document through the Canada Border Service Agency's (CBSA's) Document Analysis Unit, the Appellant failed to surrender the Kenyan passport which he used to enter Canada. Further, the Minister submits they are not privy to the Kenyan High Commission's ability to verify the authenticity of a document based simply on a photocopy or a passport number. RAD's Assessment [19] RAD Rule 37(3) states: "Unless these Rules provide otherwise, in a written application, the party must: (a) state the decision the party wants the Division to make; (b) give reasons why the Division should make that decision; and (c) if there is another party and the views of that party are known, state whether the other party agrees to the application." [20] I have carefully considered the Appellant's request, however, find the Appellant has provided insufficient reasons to justify granting the Application. From the outset in XXXX 2017, over three years ago, the Appellant was aware that his Kenyan passport was one of the central issues in his refugee claim pertaining to his identity. The Minister intervened at the RPD and provided a copy of the Kenyan passport. The Minister's position was always that the Appellant and the Kenyan passport holder are one and the same individual. The Appellant made no attempts to have the Kenyan passport authenticated. [21] The Appellant asserts that he could not have reasonably sought this evidence sooner but does not explain why he could not have done so. I am not persuaded by his argument that making an inquiry from the Kenyan Immigration Department regarding his claimed identity is a sufficient or reasonable explanation for not seeking to make inquiries, regarding the identity in the Appellant's Kenyan passport, which he now seeks to do, which the Minister maintained from the outset of his intervention at the RPD, was one and the same person as the Appellant. The Appeal process is not an opportunity to address evidentiary deficiencies or retry the Appellant's failed refugee claim. [22] With regard to the issue of authentication of the Kenyan passport, since the Appellant never surrendered the actual original Kenyan passport that he used to enter Canada because he claims the agent has it, it is reasonable that it would not be possible to authenticate a photocopy of the Kenyan passport. [23] While Section 165 of the IRPA grants every member of the RAD "the powers and authorities of a commissioner appointed under Part I of the Inquiries Act" and sets out that members "may do any other thing they consider necessary to provide a full and proper hearing," for the reasons already articulated, I do not consider granting the Appellant's application in this instance is necessary to provide a full and proper hearing nor that it breaches procedural fairness as the Appellant argues. [24] For all the foregoing reasons, the Appellant's Rule 37 Application for (a), (b) and (c) noted in paragraph 14 is denied. [25] Since the Appellant's Application was denied for the reasons outlined above, it is unnecessary for me address the issue of the RAD's jurisdiction raised by the Minister. [26] Finally, regarding the Appellant's submission that the RAD's decision whether to allow the Rule 37 Application should also include a preliminary determination of whether their anticipated new evidence from the Kenyan High Commission could be admitted, I note that there is no new evidence before the RAD at this stage for me to make any preliminary determination as to its admissibility. ORAL HEARING [27] In the Appellant's Memorandum, he stated that he is not requesting a hearing, pursuant to subsection 110(6) of the IRPA. However, he also stated that, if a hearing is held, the Appellant requires an interpreter in the Bajuni language.2 [28] According to subsection 110(6) of the IRPA, I may only hold an oral hearing where the accepted new evidence: (a) raises a serious issue with respect to the credibility of the person who is the subject of the appeal; and (b) is central to the decision of the claim; and (c) if accepted, justifies allowing or rejecting the claim. If the new evidence meets each requirement, I must decide whether to hold a hearing. [29] It is unclear from the Appellant's Memorandum whether the Appellant is requesting a hearing or not. Be that as it may, neither the Minister nor the Appellant has requested an oral hearing in their submissions related to the Minister's intervention at the RAD. Holding an oral hearing would only be to deal with the issue of the Appellant's identity, and this alone would not be determinative of the claim. Therefore, convening an oral hearing would not justify allowing or rejecting the Appellant's claim. Therefore, I am exercising my discretion under subsection 110(6) of the IRPA not to convene an oral hearing. ANALYSIS Knowledge of Information in the Kenyan Passport [30] The RPD did not accept as credible the Appellant's testimony that he had no knowledge of the biographic information contained in the Kenyan passport, including the name and his photograph. The RPD reasoned that in a hyper security conscious world, if the Appellant had been questioned by any airline agent or Immigration official during his journey and he was unable to confirm basic information in the passport, it would have raised red flags not only regarding the Appellant but also the agent. The RPD noted that in a post 9-11 world where security concerns are paramount, airlines and ticket staff are on alert to fraudulent documents and the agent would have reasonably wanted to avoid detection for fear of criminal charges and prosecution. Additionally, that it is reasonable that the agent would have wanted to ensure the smooth travel of the claimant across international borders. [31] The Appellant did not contest this finding. After conducting an independent assessment, I have reached the same conclusion as the RPD and agree that the RPD was correct in finding that the Appellant's testimony that he had no knowledge of the biographic information in the Kenyan passport is not credible and that it seriously undermines his credibility. Canada Border Service Agents' Port of Entry Inquiry [32] Further, the RPD did not accept as credible the Appellant's testimony that, upon arrival in Canada, the CBSA officer spoke only to his agent and did not ask the Appellant any questions regarding the study permit that was on his passport or that the Appellant did not understand the communication between the CBSA officer and his agent. The RPD reasoned that, since the Appellant was entering Canada for the purpose of studies, it is unlikely that CBSA would not have questioned him directly. As well, the RPD noted that, since the Appellant was coming from Kenya, where English is one of the official languages, he would likely have understood the communication between his agent and the CBSA officer. The Appellant did not dispute this finding in his Memorandum in the appeal record. After conducting an independent assessment, I have reached the same conclusion as the RPD and agree that the RPD was correct in finding the Appellant's testimony was not credible and that it seriously undermines his credibility. [33] In the Appellant's reply submissions to the Minister's intervention at the RAD, specifically regarding the Minister's position that another indicator that the Appellant was a Kenyan national was that the CBSA agent who conducted the examination was satisfied that the appellant was a Kenyan national, the Appellant argues that the RPD explicitly mentioned in its reasons that the Appellant may have had to present false document upon entry to Canada. [34] I have reviewed the RPD's reasons and find that the RPD's reference to fraudulent documents was made in the context of its acceptance that refugee claimants cannot be faulted or their credibility impugned because of fraudulent activities they may have engaged in outside Canada in order to flee persecution. Further, the RPD's finding that the Appellant's Kenyan passport was likely genuine was not based solely on the fact that the CBSA officer was satisfied that the Kenyan passport was genuine. The RPD's reasons in this regard are discussed in greater detail further below in these reasons. [35] The Kenyan passport and the information contained in it is one of the central issues in this appeal as it pertains to the credibility of the Appellant's claimed identity. The Appellant's testimony that he had no knowledge of the information contained in the passport and that he was not questioned by the CBSA agent at the POE are not credible. The Ongoing Misrepresentation and the Kenyan Passport [36] The Appellant submits that the RPD erred in drawing a negative credibility inference from his failure to address the discrepancy in his arrival date because his explanation that it was due to his agent's strict instructions not to do so was reasonable. He argues that the RPD did not properly consider that he was an uneducated, vulnerable and desperate person who thought he had to follow the agent's instructions. Notwithstanding, he argues that the Federal Court has held that such an issue is only peripheral to a refugee claim. [37] I find the Appellant's reliance on the cited jurisprudence unhelpful since they stand for the general proposition that where a claimant travels on false documents, destroys it or lies about it upon arrival following an agent's instructions, it is peripheral and of limited value to a determination of general credibility. The cases cited by the Appellant are distinguishable because, in those cases, the claimants': adherence to the agent's instructions occurred immediately upon arrival at the port of entry, often out of fear of imminent deportation;3 voluntarily and readily admitted to the misrepresentation at the first available opportunity;4 provided numerous documents issued by a competent foreign public authority to establish identity;5 and/or identity was not a central issue.6 [38] In the Appellant's specific circumstances, I am not persuaded that his continued failure to acknowledge, up until the Minister intervened, the correct details of his arrival to Canada or his subsequent explanation that such failure was due to the agent's instructions to him, was based on his desire to follow his agent's instructions. The Appellant's Record also indicates that, if indeed the agent provided such instructions, the Appellant chose to follow only selective portions of the agent's alleged instructions. Although the Appellant testified that the agent did not want him to disclose the agent's name, the Appellant nevertheless disclosed it in his BOC and refugee claim forms.7 [39] It may well be that a claimant, who does not have the benefit of legal counsel or does not know the refugee process or is otherwise vulnerable, may choose to follow an agent's instructions at a port of entry ("POE") out of fear of being deported. The Appellant's situation was different. He did not make a claim at a POE immediately upon arrival. At the time he filed his in-land refugee claim, he had been in Canada for nearly two months and had the benefit of a legal counsel. There is no evidence that the agent communicated with the Appellant after his arrival in Canada or that there was coercion. [40] After the Appellant made his in-land claim, an immigration officer put the issue of the Kenyan passport and the discrepancy of his arrival date to the Appellant in XXXX 2017. At that time, the Appellant evaded, if not denied, the issue stating he needed to consult his lawyer. He did not disclose to the immigration officer that his agent gave him instructions not to provide information regarding his arrival details. Seven days later, after consulting with his Counsel, he provided a statutory declaration which again failed to correct the details of his arrival in Canada or mention that the reason he misrepresented his arrival details in the XXXX 2017 claim was because the agent instructed him not to disclose it. I am not persuaded by his argument that simply stating in the declaration that the Kenyan passport that was in Canadian Immigration authorities' possession may have been used to enter Canada absolves him of his responsibility to be forthright, at the first available opportunity. [41] The credibility issue in this case is as much about the reason for the Appellant's misrepresentation as it is about the timing of when he acknowledged it. It was not until the Appellant was forced to acknowledge his travel information, after the Minister intervened, that he admitted the truth. Furthermore, I find this is not a peripheral issue in this case because the lack of any other government-issued identification makes the document the Appellant used to gain entry into Canada and his date of arrival intrinsically linked to the determination of his identity. [42] The Appellant also argues that the RPD's finding that the Kenyan passport was genuine simply because a Canadian visa was issued is speculative. He argues that it contradicts the RPD's finding that the Appellant may have had to submit false documents to obtain the visa. He submits that it is incoherent and unreasonable because the RPD is aware that many refugee claimants use false passports to get visas. [43] The RPD's finding regarding the likely genuineness of the Kenyan passport was based on multiple factors. It included the fact that the passport was inspected by multiple Immigration officials in Nairobi, Amsterdam and Canada. The Canadian High Commission in Nairobi also handled the passport and issued the Appellant a TRV. All of these factors reinforce its authenticity. Of course, it is possible, that multiple officials may have been deceived, and the question of authenticity cannot be determined absolutely without seeing the physical document. However, the RPD is not required to make findings based on proof beyond a reasonable doubt. Based on the available evidence, I find that the RPD did not err in finding that the Appellant's passport must have been authentic because it passed so many checkpoints. Based on my independent assessment, I too have reached the same conclusion as the RPD. The Appellant's Medical Assessment in Nairobi [44] In the Minister's intervention at RAD, the Minister submitted a medical examination the Appellant completed in Nairobi, Kenya on XXXX XXXX XXXX 2017 using his Kenyan passport and his photograph. The Minister argues that this directly contradicts the Appellant's assertion that he never held the passport he used to travel to Canada on, as he would be required to show proof of identity during his medical assessment. [45] The Appellant states in his statutory declaration that he went to the medical examination with his brother-in-law, who must have given the same false Kenyan passport to the doctor. Further, he argues that the Minister's evidence that the Appellant attended a medical examination on XXXX XXXX XXXX 2017 is not determinative of whether or not the Appellant has established his identity. [46] While I find that the medical examination is not determinative of the Appellant's identity, the Appellant's omission of this information in his refugee claim further undermines his overall credibility. [47] The Minister also argued that this goes to the Appellants' allegations of persecution because of the timing of the medical examination. However, since it is the Appellant's identity that is at issue and the merits of the Appellant's claim is not subject to this Appeal, I find it unnecessary to address the parties' submissions that pertain to the issue of persecution. The Kenyan Immigration Document [48] The Appellant submitted a document dated XXXX XXXX XXXX 2018 on a Department of Immigration Services letterhead addressed to the attention of XXXX XXXX which stated "I refer to your letter dated XXXX XXXX 2018, forwarding the citizenship confirmation in respect of the above named CANADIAN refugee. We hereby confirm as per that XXXX is not a Kenyan Citizen and we do not know him. He does not exist in our records." [49] In submitting the evidence, the Appellant stated that it was not until the rejection of his claim that he realized that he needed more identity evidence. Further, he had not thought of getting confirmation from the Kenyan Immigration Department until he spoke to his neighbours in Kenya. Apparently, the neighbours contacted the Kenyan Immigration Department, who advised them that such a request should be formally made by the Appellant's lawyer. [50] The Minister submits that it is logical that Kenyan authorities would have no record of the name XXXX XXXX XXXX, as evidence suggests the appellant's true name is XXXX XXXX XXXX XXXX XXXX XXXX XXXX a citizen of Kenya. [51] I have reviewed and considered the information contained in the Kenyan Immigration documents, including the letter from the Appellant's legal counsel addressed to the Kenyan Immigration Department. Neither documents contain any biographical information of the Appellant. I give the Kenyan Immigration Department document little probative weight as the document does not contain any biographical information of the Appellant. RPD Rule 11 and Section 106 of the IRPA [52] The Appellant takes issue with paragraph 13 in the Minister's intervention record regarding the above noted provisions and argues that the provisions do not create an absolute requirement for documentary evidence of identity. [53] I am cognizant that claimants may not always have government issued documentary evidence of their identity and that this is particularly so in the case of Somalis resulting from the Somali Civil War. The RPD acknowledged this in its reasons. I have not drawn an adverse inference from the Appellant's lack of Somali government-issued identity documents. Documentary Evidence in Support of the Appellant's Identity [54] The Statutory Declaration of XXXX XXXX XXXXand XXXX XXXX XXXX:8 is a document from the Appellant's neighbours in Kenya attesting to their role in assisting the Appellant obtain false documents to leave Kenya. Based on the Appellant's testimony that he had not sent his original Ontario ID but had only sent a photograph taken from his cellphone to the Notary Public, the RPD found the value of the sworn testimony was diminished because the individual who claimed to be a Notary attested to seeing the original ID when he did not. [55] The Appellant argues that a lawyer stamping a document as a true copy of the original without actually seeing the original document is a minor issue and is insufficient to discredit the document because there was no discrepancy between the copy and the original, which was present at the hearing. He argues that the RPD did not address any of the contents or the rest of the formatting of the document, which is highly credible. [56] The issue is not necessarily about any discrepancy or lack thereof between the original and the copy of the document. Rather, it is about the willingness of someone who holds himself out as an Advocate and Notary Public to attest to having seen an original document when he had not. This brings into question the credibility of the entire document. Under such circumstances, I agree with the RPD that the value of the sworn testimony is diminished. [57] Also, I do not agree that a lawyer stamping a document as a true copy without actually seeing the original is a "minor" issue. If it were so, the purpose of having a lawyer or Notary certify documents as true copies will be defeated. The essence of a certified copy is for a lawyer or Notary to closely compare the original document and the copy and be satisfied that the copy is a true copy of the original document. [58] Finally, the Appellant submits that the RPD erred in dismissing six supporting letters because of who wrote them, not because of their content. He argues that the letters are consistent with the Appellant's claim that he is a Bajuni from Somalia whose family fled to Kenya due to conflict in Chula, Somalia and also confirm that they had to live in not just difficulty but also fear in Kenya, as they did not have status there. [59] The Letter from XXXX XXXX XXXX:9 is from a co-worker who worked with the Appellant in Kenya and states that the Appellant was unable to be formally employed because he did not have legal documents. The author has no knowledge of the Appellant's alleged ties to Somalia. I find it lacks probative value in establishing the Appellant's identity and any ties he may have to Somalia. [60] The Affidavit from XXXX XXXX XXXX:10 is from a neighbour in Kenya simply stating that the Appellant had been a neighbour for 14 years after he fled with his mother from Chula, Somalia. The Notary Public who swore this document is the same Notary Public who improperly attested to having seen the Appellant's original Ontario ID when he had not. As such, I find it is both unreliable and of limited probative value in establishing the Appellant's identity. [61] The Letter from XXXX XXXX XXXX:11 is from the Appellant's tutor in Kenya and simply states that he was the Appellant's private tutor and Appellant was unable to sit for national exams because of lack of national documents.12 The author has no knowledge of the Appellant's alleged ties to Somalia and I find it is of limited probative value in establishing his identity. [62] The Letter from XXXX XXXX XXXX:13 is from the Appellant's religious teacher in Kenya and states that the Appellant was a student at the XXXX school from XXXX 2005 to XXXX 2012. Further, the Appellant and his mother hail from Chula, Somalia and are currently residing in Mombasa as Somali refugees. While it establishes that the Appellant attended a XXXX school, the letter does not indicate how the author knew the Appellant's mother hails from Somalia. There is no evidence that the author lived in Somalia or knew the Appellant while he (and/or his mother) was living in Somalia as the Appellant alleges. I find it is insufficient to overcome the credibility concerns regarding the Appellants identity and nationality. [63] The Letter from XXXX XXXX XXXX:14 is from the Appellant's brother-in-law, who lives in Kenya and states that he assisted the Appellant in securing an agent and that the Appellant is a Bajuni from Chula, Somalia. While the letter states that the neighbours' information was used to obtain the Canadian visa, it provides no information on how the alleged fake passport was obtained, who obtained it or what information was used to obtain it. The photocopy of the Appellant's Kenyan passport contains the name "XXXX XXXX XXXX XXXX XXXX",15 which is not part of the neighbours' name whose information was allegedly used to obtain the fake documents. As such, I find it is insufficient to overcome the credibility concerns identified regarding the Appellant's identity or nationality. [64] The Letter from XXXX XXXX XXXX:16 is from the Appellant's mother, living in Kenya. It is very similar to the letter from the Appellant's brother-in-law. The Appellant testified that, because his mother and brother-in-law live in the same house, it is likely that his brother-in-law assisted his mother in writing the letter. The letter states they are from Somalia and went to Kenya in 2003 after her husband was killed, and she and her son-in-law made travel arrangements for him to leave Kenya. The Appellant's initial BOC states that "XXXX [his brother-in-law] and XXXX [his sister] dealt with the agent."17 While this detail is not fatal to the letter, I find this letter and the other letters are insufficient to overcome the numerous credibility concerns identified in this case regarding the Appellant's identity and nationality. [65] The Letter from XXXX Community Services:18 concluded that the Appellant is a citizen of Somalia. This was based on an interview with the Appellant in the Bajuni language and with someone with claimed knowledge of the Appellant's family in Somalia, who was also a proposed witness at the hearing but was not called upon as a witness because of his limited and dated knowledge of the Appellant. The letter indicated that the Appellant spoke Bajuni, knew the history, ceremonies and other pertinent aspects of the Bajuni culture. The RPD found that it is not uncommon for people to speak languages that are native to other countries while being citizens elsewhere and that having knowledge of a culture does not establish the person's identity. The Appellant did not dispute this finding. Based on my independent assessment, I find the RPD did not err, and I have reached the same conclusion. [66] Based on the foregoing, I am not satisfied that these letters, even cumulatively, are sufficient to establish the Appellant's identity as a Somali national or are capable of overcoming the numerous credibility concerns identified regarding the Appellant's personal and national identity. Witness Evidence [67] The Appellant's Kenyan neighbour, XXXX XXXX XXXX, who assisted the Appellant in securing the false Canadian visa, attended as a witness by phone during the Appellant's refugee hearing. Based on discrepancies in the witness's testimony, the RPD was not satisfied that the person who testified was who she said she is. Notwithstanding, the RPD noted that her testimony did not overcome the many credibility concerns that had arisen in the claim. [68] The Appellant argues it was unreasonable for the RPD to doubt the witness's testimony based on her stating the incorrect year of birth because she immediately corrected it without prompting and said it was because someone was knocking on her door. He also submits there was no contradiction about the witness's address, since the Appellant testified that they had multiple residences, and the witness confirmed the same. [69] I agree that the witness's explanation for the discrepancy about her year of birth which she promptly corrected was reasonable and plausible. Additionally, the RPD found that the sender's address on the DHL envelope differed from the witness's stated address. Additionally, although the Appellant and the witness both stated they had been neighbours, the witness stated her primary residence was in XXXX Street which differed from the Appellant's testimony that it was XXXX XXXX Road. [70] I find that the witness's ownership of two houses has nothing to do with her explanation that the address on the DHL envelope was the address from where the envelope was mailed. Based on my review of the DHL envelope, it is clear that it was the sender's, i.e. the witness's information that was noted on the envelope.19 Based on my independent assessment, I find the RPD was correct because the sender's information states that it is from XXXX XXXX XXXX, and the address "XXXX Road" on the DHL envelope refers to the sender's (witness's) address which is different from the witness's stated address. Based on the foregoing, I give less weight to the witness's testimony. Facebook Post ("FB") [71] The Appellant submits that the issue of the striking resemblance between the Appellant to the person who posted the photos of them together on FB is not only quite speculative; it was never put to the Appellant. As well, he submits that, since the Appellant never stated that he did not speak to anyone about the FB post, the RPD's finding that its removal from FB after it was discovered was highly coincidental, if the Appellant did not speak about them to the person who posted it is erroneous. Finally, he argues that it would be an odd thing to note someone who is your actual brother as "brothers for life" in a FB post because it is biologically obvious and redundant and that it makes more sense that it was made in a colloquial sense. [72] My review of the audio recording of the RPD's hearing confirms that the issue of the striking resemblance was not put to the Appellant. I agree with the Appellant that it should have been put to the Appellant for his comment. While I find the RPD erred, I find it is not fatal to the claim since it was not a determinative issue in the RPD's decision. With regard to the highly coincidental nature of the FB posting's removal after it was discovered by the Minister, in my view, the issue is not whether the Appellant directly told the person who posted it or may have told someone else other than the person who posted it, as he suggests. It remains that the removal of the specific social media post, after it was identified as an issue, brings into question why this specific posting was removed while other postings continued to be maintained. If, in fact, the FB posting was made in the colloquial sense of two friends posing as "brothers for life" as the Appellant argues, there was no reason to remove the particular post. While not determinative, I find the removal of the posting undermines the Appellant's evidence that the person in the photograph is his friend and not his brother. Appellant's Knowledge of English [73] The Appellant took issue with the RPD's finding that the Appellant knew more English than he let on, stating it was unclear what the RPD's issue with this was. He argues that, contrary to the RPD's finding that the Appellant did not use an interpreter to complete the BOC form, the form indicates an interpreter was in fact used. [74] Based on my review of the Appellant's Record, I find that there is an interpreter's signature on the Appellant's BOC form. The RPD erred in finding otherwise. However, I find this is not determinative, and the RPD's overall findings in this case are correct. [75] In conclusion, I find that the Appellant did not provide sufficiently reliable and trustworthy evidence to establish his claimed identity as XXXX XXXX XXXX from Somalia. CONCLUSION [76] 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) Devika Ratnayake Devika Ratnayake February 11, 2021 Date 1 Refugee Appeal Division Rules, SOR/2012-257. 2 Exhibit P-2, Appellant's Record, at p. 16. 3 Rasheed, Sohail v. M.C.I. (F.C., no. IMM-1956-03), Martineau, April 21, 2004, 2004 FC 587; Takhar, Sukhjeevan v. M.C.I. (F.C.T.D., no. IMM-1961-98), Evans, February 19, 1999; 1999 CanLII 7544 (FC); and Ameir, Ameir (Makame) v. M.C.I. (F.C., no. IMM-9426-04), Blanchard, June 20, 2005, 2005 FC 876. 4 Ibid., Takhar. 5 Supra footnote 3, Rasheed. 6 Supra footnote 3, Takhar. 7 Exhibit RPD-1, RPD Record, part 2, at p. 47. 8 Exhibit RPD-1, RPD Record, part 2, at pp. 224-225. 9 Exhibit RPD-1, RPD Record, part 2, at p. 105. 10 Exhibit RPD-1, RPD Record, part 2, at p. 102. 11 Exhibit RPD-1, RPD Record, part 2, at p. 107. 12 Exhibit RPD-1, RPD Record, part 2, at p. 107. 13 Exhibit RPD-1, RPD Record, part 2, at p. 108. 14 Exhibit RPD-1, RPD Record, part 2, at p. 233. 15 Exhibit RPD-1, RPD Record, part 2, at p. 74. 16 Exhibit RPD-1, RPD Record, part 2, at pp. 236-237. 17 Exhibit RPD-1, RPD Record, part 2, at p. 27, para 10. 18 Exhibit RPD-1, RPD Record, part 2, at p. 110. 19 Exhibit RPD-1, RPD Record, at p. 240. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-09395 RAD.25.02 (April 04, 2019) Disponible en français 3 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