TB6-08677

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 : TB6-08677 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 October 19, 2016 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Douglas Lehrer 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) appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal and requests an oral hearing if the new evidence raises an issue as to his credibility. The Appellant asks the Refugee Appeal Division (RAD) to order that the RPD reconsider his claim with directions the RAD considers appropriate. DETERMINATION OF THE APPEAL [2] This appeal is allowed. Pursuant to subsection 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that, upon return to Somalia, he (a minority clan member) will be harmed by members of the majority clans who have been persecuting his clan members. He also alleged that he will be harmed by members of al-Shabaab due to his religion as a Sufi Muslim and because he has been in western countries. [4] The Appellant's claim for refugee protection was heard on May 27, 2016. By a decision of June 7, 2016, the RPD rejected the claim finding that the Appellant had not established his identity. [5] The Appellant submits that the RPD was wrong to conclude that he had not established his identity. ANALYSIS Role of the RAD [6] The Appellant refers to the decision of the Federal Court of Appeal in Huruglica1 and submits that the RAD should: review all aspects of the RPD's decision; conduct its own assessment of his identity based on the record and the arguments in his Memorandum; and having done so and taking into account the totalitiy of the evidence, conduct an independent assessment of whether he is a Convention refugee or person in need of protection. [7] The Court in Huruglica indicated that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law; and this translates into an application of the correctness standard of review.2 The Court held that, with respect to findings of fact (and mixed fact and law), which raises no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. It went on to indicate that after carefully considering the RPD decision, the RAD is to carry out its own analysis of the record to determine whether the RPD erred. The Court also stated that having done the above, 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.3 [8] Considering the recent jurisprudence, the RAD will conduct its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Where no issue of credibility of oral evidence was raised, the RAD will apply a standard of correctness when assessing RPD findings of fact or of mixed fact and law. Where the credibility of oral evidence was raised, the RAD will defer to certain findings of the RPD where the RPD enjoyed an advantage over the RAD in assessing the oral evidence of witnesses who appeared before it. The extent of this deference will be assessed on a case-by-case basis dependent upon the particular circumstances of the matter and in conjunction with the RAD's own analysis of the record as a whole. In addition, the standard of correctness will be used for any error of law including a breach of natural justice or procedural fairness found in the RPD decision on appeal to the RAD. Admissibility of evidence submitted on appeal [9] Subsection 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in his Memorandum of Argument about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to him.4 [10] Where a document meets the test in subsection 110(4), the RAD will conduct a further assessment of that evidence. In Singh,5 the Federal Court of Appeal held that there is no valid reason the RAD cannot apply the criteria set out in Raza6 to the assessment of new evidence. While Raza predates the introduction of subsection 110(4) of the IRPA, it is based on nearly identical wording of subsection 113(a). In Raza, the Federal Court of Appeal held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.7 In Singh, the Court found that three of the criteria from Raza are necessarily implied in the wording of subsection 110(4).8 The Court has also found materiality to be redundant, as it is also found in subsection 110(6) of the IRPA, which describes when the RAD may hold an oral hearing.9 [11] For these reasons, the RAD will apply the following factors to considering the Appellant's proposed new evidence. It will first consider whether the evidence passes the test in subsection 110(4). If not, the RAD has no discretion to admit the evidence. If the evidence meets the requirements of subsection 110(4), the RAD will apply the Raza factors, minus the "materiality" factor, as this is to be assessed in light of subsection 110(6) only. [12] The Appellant tendered two documents as proposed new evidence in support of his appeal. The documents are as follows. a) United States Conference of Catholic Bishops (usccb.org) Refugee Resettlement document (2016);10 and b) Map of Somalia and map of Lower and Middle Juba Region.11 Item (a) [13] The Appellant submits that item (a) is evidence that he could not reasonably have been expected to have provided before the RPD rejected his claim. He argues that, without the benefit of the RPD's reasons, he could not have known that the RPD would assign low probative value to a document on which he relied to establish his identity because it misunderstood its purpose. [14] The RAD notes that the RPD gave little weight to the United States Conference of Catholic Bishops - Migration and Refugee Services Affidavit of Relationship (AOR)12 in support of the Appellant's identity. It noted that the affidavit was not made to the U.S. Department of Homeland Security, there was little to indicate what the purpose of the affidavit was, and the affidavit was a photocopy. The RAD finds that item (a) clarifies the purpose of the AOR and the Appellant could not reasonably have been expected to have presented it prior to the rejection of his claim as he could not have known that the RPD would not have realized the purpose of the AOR and assign it little weight. Since it meets the statutory requirements of subsection 110(4), item (a), will be accepted as new evidence in this appeal. [15] The RAD finds that item (a) also satisfies the Raza factors noted above. It is credible evidence from a trustworthy source; and it is relevant to the case at hand as it pertains to a finding of the RPD in relation to the Appellant's identity. Item (b) [16] The Appellant submits that item (b) is evidence that he could not reasonably have been expected to have provided before the RPD rejected his claim. He argues that, without the benefit of the RPD's reasons, he could not have known that the RPD would mistake the fact that he was talking about towns and villages near to where he lived, whereas his identity witness was referring to the province in which these towns were located; and item (b) is evidence about this distinction. [17] The RPD made findings with respect to inconsistencies between the Appellant's testimony and the testimony of his witness in relation to the location where the Appellant was living from 1993 to 2002. The RAD notes that the maps contained in the National Documentation Package for Somalia do not contain a level of detail that would assist in determining if the RPD was wrong to find inconsistencies in the evidence regarding place names. The RAD finds that item (b) provides place name details that assist in assessing the witnesses' testimonies in this case. The RAD also finds that the Appellant could not reasonably have been expected to have presented it prior to the rejection of his claim as he could not have known that the RPD would make findings with respect to place names. Since it meets the statutory requirements of subsection 110(4), item (b), will be accepted as new evidence in this appeal. [18] The RAD finds that item (b) also satisfies the Raza factors noted above. It is credible evidence from a trustworthy source; and it is relevant to the case at hand as it pertains to a credibility finding of the RPD. Request for oral hearing [19] The Appellant requests an oral hearing pursuant to subsection 110(6) of the IRPA if the new evidence raises an issue as to his credibility.13 [20] When read together, subsections 110(3), (4), and (6) of the IRPA establish that the RAD must not hold a hearing in an appeal such as this unless there is new 110(4) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [21] Items (a) and (b) above have been accepted as new evidence in this appeal. However, for the reasons noted below, their acceptance does not justify allowing or rejecting the Appellant's refugee protection claim. Therefore, the RAD must proceed without a hearing. MERITS OF THE APPEAL Identity [22] The RPD indicated in the reasons for its decision that the Appellant had not established his identity. It gave little weight to a letter from Dejinta Beesha; to an affidavit from the Appellant's brother; to an affidavit from the Appellant's half-sister; and to the Appellant's U.S. refugee claim documents. It found that the Appellant's marriage certificate did not prove that the Appellant was born in Somalia or that he is a citizen of Somalia. It found that the Appellant was vague and evasive in his responses to certain questions. It noted an inconsistency between the evidence provided by the Appellant and that of his witness in relation to where the Appellant resided from 1993 to 2002. It found it unlikely that the witness immediately recognized the Appellant in Canada after not seeing him for 14 years. It found the Appellant and his witness to be not credible. [23] As noted above, the Appellant submits that the RPD was wrong to conclude that he had not established his identity. Letter from Dejinta Beesha [24] The Appellant submits that the RPD was unreasonable in assigning little weight to the assessment of Dejinta Beesha. He argues that the credibility of the organization is established by the fact that it has over 22 years of experience working with the Somali community; and it is unreasonable for the RPD to assume that its members would not know how to identify Somalis, or that because its methodology was not revealed, the organization's assessment is of lesser value. The Appellant submits that the fact that the assessment was signed by the executive director of the organization lends the findings institutional approval and it was unreasonable for the RPD to conclude that the assessment is lacking simply because a senior member of the organization reviewed the work of a junior member, and signed off on it. The Appellant notes that the Federal Court in Husain found that the Board had made a reviewable error for dismissing a settlement worker's assessment merely because he had not revealed his methodology.14 [25] The RPD noted that the letter from Dejinta Beesha did not state on what basis an interview and questionnaire could establish a person's citizenship. It also had a concern that the author of the letter was not the one who interviewed the Appellant. The RPD indicated that all that can be concluded from the letter is that the Appellant speaks Somali and was able to answer unspecified questions of a Somali settlement counsellor. It noted that there are many Somali speakers who do not come from Somalia nor hold Somali citizenship. The RPD gave the letter little weight. [26] In the RAD's view, the RPD was not wrong to give the letter from Dejinta Beesha some, albeit little, weight. It is indicated in the letter from Dejinta Beesha that it is an organization that has been delivering settlement services to mainly undocumented refugee claimants from Somalia for the past 22 years.15 This suggests that the organization has considerable experience dealing with individuals from Somalia. It would be reasonable to conclude that the organization has established a method of verifying the origins of its clients. It is even indicated in the letter that the organization has established a verification assessment policy and programme to establish the nationality and citizenship of refugees from the horn of Africa. However, the RAD finds that the letter from Dejinta Beesha merely establishes that the Appellant is of Somali origin. There is no indication in the letter that any of the individuals at Dejinta Beesha who assessed the Appellant personally knew him before he sought a letter from them. Therefore, Dejinta Beesha can offer an opinion on the Appellant's origin, but cannot categorically confirm that the Appellant is a citizen of Somalia or that he is who he says he is. Based on the above, the RAD gives the letter from Dejinta Beesha some weight in establishing the Appellant's identity. Appellant's marriage certificate [27] The RPD noted that it viewed the Appellant's original marriage certificate. It accepted that the Appellant was married to XXXX XXXX XXXX on XXXX XXXX, 2014 in Kenya. The RPD found that the document did not prove that the Appellant was born in Somalia or is a Somali citizen as alleged. [28] The Appellant makes no argument with respect to the RPD's assessment of his marriage certificate. The RAD concurs with the RPD's assessment. There is no information contained in the certificate regarding the Appellant's birthplace or citizenship. It does contain the Appellant's name and his spouse's name that is consistent with the information in the Appellant's BoC and other forms. Considering this, the RAD gives the marriage certificate some weight in establishing the Appellant's identity. Affidavit of Appellant's brother [29] The Appellant notes that the RPD recognized that the copy of his brother's identity card states that he is Somali, however it placed little weight on the card because it had not been certified as a true copy. He submits that the RPD's assignment of little weight to the card is unreasonable. The Appellant cites section 162(2) of the IRPA that indicates that each Division of the Board shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. He refers to Chairperson's Guideline 7 that indicates that administrative tribunals operate less formally and more expeditiously than courts of law. The Appellant notes that the RPD regularly accepts simple photocopies of all kinds of documentary evidence, relying on their contents to make determinations. He submits that it is an error to dismiss the probative value of a document merely because it is not a certified true copy considering the expeditious nature of the RPD proceedings and its legislative mandate. [30] In the RAD's view, the Appellant's argument has merit. The RPD found the affidavit to be extremely vague and consistent with the Appellant's testimony in only the most basic sense. The RPD noted that the affidavit did not state who or what the source of persecution was, nor why such danger would still exist; and gave it little weight. The RAD finds that the RPD was wrong to draw a negative inference from what the affidavit of the Appellant's brother does not say. XXXX XXXX XXXX indicates in his affidavit that he was born in Kismayo, Somalia; that he is the Appellant's brother; and that he and his family, including the Appellant, fled to Kenya in 2002.16 The information contained in the affidavit is consistent with the Appellant's evidence. The Federal Court has consistently warned that a negative inference should not be drawn based upon what a document does not say, even though what the document does say is consistent with the Appellant's evidence.17 [31] The RPD was also wrong to draw a negative inference from the fact that the identification card attached to the affidavit was not a certified true copy. The Republic of Kenya Refugee ID Card for the Appellant's brother indicates that he is a Somali national born in Somalia.18 The RPD noted no irregularities with the document or the manner in which it was obtained that would suggest it was not a true copy. [32] Considering that there is no government in Somalia from which to obtain official identity documents, and considering that the affidavit and identity card of the Appellant's brother contain information regarding the Appellant's identity, including his nationality, the affidavit and identity card must be given probative value. The RPD raised no valid concerns regarding either of these documents that would diminish their value. The RAD gives the affidavit and identity card of the Appellant's brother significant weight in establishing the Appellant's identity. Appellant's U.S. asylum claim documents [33] The RPD noted that the Appellant's U.S. asylum claim documents showed consistency in the claim the Appellant made in the U.S. and the claim he made in Canada, however gave them little evidentiary weight in relation to the issue of the Appellant's identity. The Appellant makes no argument with respect to the RPD's assessment of his U.S. Asylum claim documents. The RAD has reviewed the documents and concurs with the RPD's assessment of them. Affidavit of Relationship (AOR) [34] The Appellant points out that he submitted an affidavit of relationship, sworn by his half-sister to the United States Conference of Catholic Bishops (USCCB) - Migration and Refugee Services. He also points out that his half-sister is Somali, and the affidavit identifies him as her brother. [35] The Appellant submits that the RPD's finding that there was little evidence to indicate what the purpose of the affidavit was is disingenuous. He argues that a review of its contents clearly indicates that it is for the purpose of sponsoring a relative abroad for settlement in the United States. The Appellant also points out that he stated in his Basis of Claim Form (BoC) that his half-sister "had gone to the United States and received status there" and that his half-sister "tried to sponsor us to come to the USA". He maintains that it is plainly obvious that the affidavit of relationship is part of that sponsorship application. [36] The Appellant submits that the RPD's concern that the affidavit was not sworn to the U.S. Department of Homeland Security is misplaced and its finding that there is no reference to the immigration and naturalization service or the Department of Homeland Security is an error. He points out that the last page of the affidavit indicates that the information will be shared with the U.S. Department of Homeland Security and he had indicated at his hearing that his half-sister submitted documents to a sponsorship organization and she had submitted an application to sponsor him. The Appellant argues that the only reasonable conclusion from the totality of the evidence was that the USCCB is the refugee resettlement organization through which his half-sister attempted to sponsor him to come to the United States; that her affidavit if for immigration purposes; and that it has the same weight as if sworn before the U.S. Government. [37] The Appellant points out that the affidavit identifies his relationship to a Somali refugee recognized by the United States. He also notes that it was prepared by the affiant independent of, and long before his RPD proceedings were contemplated. He submits that this increases its probative value. [38] The Appellant's argument has merit in the RAD's view. It is clear that the affidavit of relationship was prepared for an immigration application to the U.S. immigration authorities. It is clearly indicated in the affidavit that its purpose was for determining the eligibility of family members for access to and eligibility for the U.S. Refugee Program.19 Furthermore, the Appellant indicated in his BoC that his sister had made an immigration application in the U.S. for him and his family members.20 The affiant lists the Appellant as her brother who was born in Kismayo, Somalia on XXXX XXXX, 1987;21 information consistent with the Appellant's other evidence. The RAD agrees with the Appellant that the fact that the affidavit was prepared many years before the Appellant's refugee claim was contemplated, the fact that the Appellant's half-sister was accepted by the U.S. as a refugee from Somalia, and the fact that the Appellant's half-sister listed the Appellant as her Somali-born brother increases the affidavit's probative value. The RAD assigns significant weight to the affidavit of relationship in establishing the Appellant's identity. Appellant - credibility [39] The Appellant submits that the RPD erred in concluding that he and his witness stated they lived in different areas; he stated he lived in an area called XXXX - the closest villages were XXXX XXXX, XXXX and XXXX, whereas his witness stated that they lived in Lower Jubba - the closest city being XXXX. The Appellant maintains that both he and his witness lived in Lower Jubba and the villages he mentioned are within Lower Jubba, which is a province. He submits that the RPD erroneously concluded that they were talking about different areas. [40] The RPD found that the only consistency between the location that the Appellant indicated he was living from 1993 to 2002 and the location his witness said they were living in that same time period was that they both stated the area was pastoral. It is unclear from the testimonies of the Appellant and his witness, even when considering the maps the Appellant provided as new evidence,22 if there was an inconsistency in their evidence regarding the location where they resided from 1993 to 2002. However, the maps reveal that it would be possible to reside in Lower Jubba and have the closest town or village being XXXX and the closest regional capital being XXXX. Therefore it is possible that the Appellant and his witness were consistent in their evidence regarding the location of where they lived. The fact that the Appellant named the closest villages to where he was residing whereas his witness named the province and the closest city to where he resided confused the matter. Based on the above, the RAD finds that the RPD was wrong to find that there was an inconsistency between the Appellant's testimony and the testimony of his witness regarding where they resided from 1993 to 2002. [41] The RPD was not wrong to note vague and evasive responses to certain questions. The Appellant's responses to questions with respect to obtaining refugee status in Kenya can be seen as vague and contradictory. His responses to questions about meeting his wife could be seen as vague and evasive. The RPD found the Appellant's knowledge of Somalia was information that was widely available and not so specific that only a citizen of Somalia could know it. The RAD notes that the Appellant has been away from Somalia since 2002, when he was 15 years old; therefore his knowledge of Somalia must be assessed with that in mind. [42] The RPD indicated that, overall, it found the Appellant to be not credible. As noted above, the RPD was wrong to make certain findings. Since those findings were the basis for the overall finding, the RPD was wrong in its overall finding. Testimony of witness [43] The RPD found it unlikely, and not credible, that the witness instantly recognized the Appellant upon seeing him at a restaurant in Toronto, after not having seen him in 14 years and not expecting to see him in Canada. The RPD also referred to the inconsistency between the Appellant's testimony and that of his witness regarding where they lived in Somalia and found on a balance of probabilities that the Appellant and his witness did not know each other in Somalia as alleged. It also found the witness to be not credible overall. [44] As noted above, the RAD has found that the RPD was wrong to find that there was an inconsistency between the Appellant's testimony and the testimony of his witness regarding where they resided from 1993 to 2002. Since the erroneous finding was used to draw conclusions on the witness' credibility, the RPD's conclusions on the witness' credibility are also wrong. Disposition [45] Considering the prevalence of credible evidence noted above that the RAD has assigned weight to, the RAD finds that Appellant has satisfied on a balance of probabilities that he is the person who he claims to be and a citizen of Somalia. Therefore, the RAD finds that the RPD erred in its assessment of the evidence presented by the Appellant with respect to his identity. [46] The RAD considered all the evidence that was before the RPD. The RAD finds that the RPD's errors in its assessment of the evidence impact upon all the identity/credibility findings the RPD made and a new hearing by the RPD would be necessary in order to address all of the issues that arise from the establishment of the Appellant's identity. The RAD is not in a position to hold a hearing because the scheme of the IRPA suggests that the RAD is not to hold a hearing for the purposes of going over the evidence taken at the RPD hearing. [47] The Appellant has asked the RAD to order that the RPD reconsider his claim with directions the RAD considers appropriate. The RAD concurs with this remedy. Subsection 111(2) indicates that the RAD may refer a matter back to the RPD only if it is of the opinion that the decision of the RPD is wrong in law, in fact or in mixed law and fact; and it cannot make a decision to confirm the determination of the RPD, or set aside the determination and substitute a determination that, in its opinion, should have been made without hearing evidence that was presented to the RPD. The RAD finds that this case meets the criteria of subsection 111(2). CONCLUSION [48] Pursuant to subsection 111(1)(c) of the Immigration and Refugee Protection Act, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. This appeal is therefore allowed. (signed) "M. Pettinella" M. Pettinella October 19, 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 M.C.I. v. Huruglica, para. 78. 3 M.C.I. v. Huruglica, para. 103. 4 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 5 M.C.I. v. Singh, Parminder (F.C.A., No. A-512-14), Nadon, Gauthier, De Montigny, March 29, 2016; 2016 FCA 96. (F.C., No. IMM-6711-13), Gagné, October 28, 2014; 2014 FC 1022. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385. 7 Raza, 2007 FCA 385, paras. 13-15. 8 Singh, 2016 FCA 96, para. 64. 9 Singh, 2016 FCA 96, para. 48. 10 Exhibit P-2, Appellant's Record, at pp. 15-16. 11 Exhibit P-4, Appellant's Record, at pp. 18-19. 12 Exhibit RPD-1, RPD Record, at pp. 85-89. 13 Exhibit P-2, Appellant's Record, at p. 10. 14 Husian, Ahmednoor Farah v. M.C.I. (F.C., no. IMM-4451-15), Tremblay-Lamer, April 22, 2016; 2016 FC 462, at para. 20. 15 Exhibit RPD-1, RPD Record, at p. 526. 16 Exhibit RPD-1, RPD Record, at p. 529. 17Arslan, Yasar v. M.C.I. (F.C., no. IMM-4854-12), Russell, March 8, 2013, 2013 FC 252, at para. 88. 18 Exhibit RPD-1, RPD Record, at p. 530. 19 Exhibit RPD-1, RPD Record, at p. 89. 20 Exhibit RPD-1, RPD Record, at p. 14, para. 12. 21 Exhibit RPD-1, RPD Record, at p. 85. 22 Exhibit P-2, Appellant's Record, at pp. 18-19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-08677