TC2-26160

RAD File / Dossier de la SAR : TC2-26160 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision April 4, 2023 Date de la décision Panel M. Oh Tribunal Counsel for the person who is the subject of the appeal Ali Esnaashari 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] The Appellant claims to be a Somali citizen by the name of XXXX XXXX XXXX. He alleges that he fled Somalia due to his fear of persecution from Al-Shabaab, who wished to forcibly recruit him. The Refugee Protection Division ("RPD") rejected his claim, due to his failure to establish his identity and his lack of credibility. I do not agree with every aspect of the RPD's analysis, but after independently assessing the evidence, I have reached the same conclusions about the Appellant's failure to establish his identity. The Refugee Appeal Division ("RAD") confirms the RPD's negative decision. The appeal is dismissed, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA").1 BACKGROUND [2] The Appellant claims that he lived in the village of XXXX, outside the town of XXXX, in Somalia's Lower Juba region. He alleges that he and his family members were XXXX XXXX. In 2010, Al-Shabaab demanded that the Appellant and his brothers join them. The Appellant refused to join. As a result, the Al-Shabaab members beat the Appellant and his brothers. Their father agreed to pay Al-Shabaab a hefty tax in cash XXXX XXXX on a regular basis, in order to allow them to continue XXXX XXXX. [3] This situation persisted until XXXX 2017, when Al-Shabaab returned with demands for the Appellant and his brothers to join them. The Appellant and his brothers were again beaten, and this time their father offered a large sum of money XXXX XXXX XXXX to spare their lives. The Appellant's father agreed to have them join Al-Shabaab, promising that they would be ready to go with them in a week's time. The Appellant's family used that time to sell XXXX XXXX to raise funds for the Appellant and his brothers to escape to Kenya. While in Kenya, Al-Shabaab returned to the Appellant's home. Upon realizing that the Appellant and his brothers had escaped, they killed their father and took the family's XXXX. They told the Appellant's mother that the Appellant and his brothers would suffer the consequences when they were found, and that if they were not found, they would return and kill the rest of the family. This led the Appellant's mother and three sisters to also flee to Kenya. [4] In Kenya, the Appellant paid a smuggler $2000 USD, which was supposedly enough for a false passport and visa, as well as a flight to XXXX. The Appellant traveled to XXXX, and then made his way towards the United States ("US"), where he arrived in XXXX 2018. He abandoned his asylum claim in the US, believing his chances would be better in Canada. He crossed the border irregularly, arriving in Manitoba in XXXX 2018 to make his refugee claim. The Minister's intervention and proceedings at the RPD [5] The Minister of Citizenship and Immigration ("the Minister") intervened in the claim, due to information that came to light from the Appellant's driver's licence application in Ontario, which was filed in January 2019. In that application, the Appellant declared having possessed a driver's licence in Kenya since 2014. He provided a copy of a Kenyan driver's licence that was issued in XXXX 2014 as well as a letter from the Kenya Revenue Authority, confirming the issuance of a driver's licence to the Appellant in Kenya as a XXXX XXXX XXXX XXXX. The Minister submitted that this evidence undermined the Appellant's credibility. [6] The RPD heard the Appellant's claim over the course of multiple sittings that took place between May 2021 and July 2022. A written decision was rendered on August 22, 2022, rejecting the claim. The Appellant insisted that the documents in the Minister's intervention were genuine. He explained that he lived with a relative in XXXX (near the Kenyan border) for a few months in order to obtain a driver's licence in Kenya, so that he could supplement his family's income. He stayed in XXXX for the duration of his driving course, regularly traveling across the border to Kenya to attend the course and obtaining a Kenyan driver's licence without possessing any identity documents. He had no explanation for the date of issuance on the Kenya Revenue Authority letter, which was somehow issued while the Appellant was being detained in the US and before any need for it arose. The RPD determined that the Kenyan driver's licence and Kenya Revenue Authority letter were likely fraudulent. The panel also relied on the Appellant's testimony about his period of residence in XXXX, finding that his frequent returns to Somalia from Kenya and his decision to then return to his village in XXXX undermined his credibility in relation to his fear of persecution from Al-Shabaab. The RPD further found that the Appellant's testimony about his family's displacement from the village in 2014 during his time in XXXX was unreasonably omitted from the Basis of Claim ("BOC") form and narrative. The RPD also doubted the Appellant's description of his journey to the US, as he could not credibly explain how his family managed to fund his payment to his smuggler. [7] The RPD considered the Appellant's supporting documents and the testimony of an identity witness. However, the panel noted various discrepancies in the evidence, as well as the absence of evidence that should have been reasonably available. The RPD concluded that the evidence was insufficient to establish the Appellant's claimed identity. Role of the Refugee Appeal Division [8] The RAD is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing the evidence.2 In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at independent findings based on the evidence before me. Admissibility of new evidence and request for an oral hearing [9] The Appellant submitted the following documents on appeal, which he describes as being new evidence: i. A written statement from one of the Appellant's relatives in Canada, along with a copy of the author's Canadian passport and Ontario driver's licence;3 ii. A paper by Hilary Evans Cameron on omissions in credibility assessments, entitled "Sin of Omission: Exploring a Key Credibility Inference in Canadian Refugee Status Rejections";4 and iii. A paper by Hilary Evans Cameron entitled, "Risk and the Reasonable Refugee: Exploring a Key Credibility Inference in Canadian Refugee Status Rejections".5 [10] Item (i) is inadmissible, but I have reviewed and considered items (ii) and (iii) in reaching a decision on this appeal. I find that items (ii) and (iii) are not subject to the restrictions under subsection 110(4) of the IRPA. [11] Subsection 110(4) of the IRPA states that, on appeal, the person who is the subject of the appeal may only present evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the claim's rejection. If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must then consider factors around the credibility, relevance, and newness of the evidence.6 Item (i): Statement from Somali relative in Canada [12] The author of the written statement in item (i) states that he and the Appellant are related, as their grandmothers are sisters. He met the Appellant for the first time in XXXX 2006 in XXXX village. The author was traveling from Mogadishu to Kenya, and he stayed at the Appellant's mother's home while on his way there. The author stayed with the Appellant and his family for about a month before continuing on his journey. They then reconnected after the Appellant arrived in the US. When the Appellant reached Canada in XXXX 2018, the author provided him with a place to stay, and the two lived together until XXXX 2019. [13] The Appellant argues that item (i) is admissible because the author could not provide his evidence before the RPD rendered its decision, due to his international travel as a XXXX XXXX XXXX XXXX XXXX. I find this explanation inadequate. The Appellant arrived in Canada in XXXX 2018, and he and the author were already in contact at that point. They lived together for several months. The Appellant was aware of the importance of establishing his identity. The RPD did not render its decision until August 2022 - nearly four years after the Appellant's arrival. The author's statement is less than two pages long. I do not understand how being a XXXX XXXX XXXX XXXX XXXX prevented the author from completing a relatively short statement for almost four years. Nor do I understand what suddenly changed in the window of time between the issuance of the RPD's decision and the perfection of this appeal that has now permitted him to do this. I am not satisfied that the documents in item (i) meet any of the statutory criteria under subsection 110(4) of the IRPA. Item (i) will not be admitted. Items (ii) and (iii): Papers by Hilary Evans Cameron [14] The papers from Hilary Evans Cameron discuss difficulties in assessing credibility in the context of refugee status determination. The first paper addresses credibility findings based on omissions, and the second paper talks about credibility findings that rely on judgments about refugee claimants' responses to risk. In my view, these documents are not the kind of new evidence contemplated under subsection 110(4) of the IRPA. They are not being relied upon to corroborate certain facts, such as whether an incident occurred, nor are they being relied upon to set out the country conditions. The Appellant merely borrows from the reasoning set out in the papers. The restrictions under subsection 110(4) do not apply to these documents. I have therefore considered the papers, and in fact agree that this is one such case where the RPD wrongly held the Appellant to a general and idealized standard of risk response. I have not relied on the RPD's reavailment findings, nor have I relied on the findings about the omissions from the BOC narrative. Request for an oral hearing [15] The Appellant requested that a hearing be held in the event that there are any credibility concerns regarding the evidence on record. There are credibility issues, but these were already canvassed by the RPD. And, as no new evidence has been admitted, the RAD is unable to hold an oral hearing. ANALYSIS [16] The determinative issue in this appeal is the Appellant's identity. There is merit to some of the Appellant's arguments about errors in the RPD's decision, and for greater clarity, I have only relied on the findings discussed below that I have specifically endorsed. However, after carefully considering the evidence, I agree with the RPD's conclusion that the Appellant has not established his identity on a balance of probabilities. The Appellant's burden to establish his identity [17] Identity is a threshold issue in refugee claims. The jurisprudence confirms that there is no obligation for the decision-maker to further assess the merits of the claim if the claimant's identity has not been established.7 Section 106 of the IRPA provides that the RPD must take into account, with respect to the credibility of a claimant, whether they possess acceptable documentation establishing their identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or taken reasonable steps to obtain the documentation. A similar provision is contained under Rule 11 of the Refugee Protection Division Rules ("RPD Rules"). [18] The RPD correctly acknowledged the difficulties faced by many Somali refugee claimants in establishing their identities. Most records were destroyed during the civil war, and many parts of Somalia still lack competent civil authorities to issue documents such as passports, identity cards, and other civil status documents. As of 2018, most of Somalia's population still did not possess any kind of identification.8 Under these circumstances, it is frequently necessary to consider alternative sources of identity evidence, such as identity witnesses, affidavits from family members and others who may be positioned to speak to the claimant's personal and national identity, in conjunction with the claimant's sworn testimony. Errors in the RPD's decision regarding relocation to XXXX [19] The evidence in the Minister's intervention raised questions about the Appellant's residence history and his possible use of fraudulent documents. The Appellant never claimed any period of residence in Kenya prior to 2017, nor did he indicate that he lived anywhere else in Somalia apart from in his village in XXXX with his family. Still, the Appellant insisted that the Kenyan driver's licence and Kenya Revenue Authority letter were genuine documents. He alleged that he relocated to XXXX in 2014 for a few months, in order to obtain a Kenyan driver's licence and to seek work opportunities. He claimed that during that time, his family moved to another location, not far from where they were before. [20] The RPD drew adverse inferences from this. The panel doubted that the Appellant had relocated to XXXX. The RPD believed that the Appellant would have had to drive a significant distance into Kenya, some eight hours, to reach the driving school, which would not have been feasible. Moreover, the information about his relocation to XXXX was omitted from his BOC form. The RPD did not find it likely that the Appellant would risk going by land to the Kenyan border, given the evidence about the road conditions and the risk from Al-Shabaab, especially when driver's licences were available within Somalia. The RPD also did not think it believable that if there was a risk from Al-Shabaab in Somalia, the Appellant would then return to the country and also return to the same village where the threats were present. Finally, the RPD found that the Appellant had unreasonably omitted the fact of his family's displacement from their village. [21] I am persuaded by several of the Appellant's arguments on these findings. The RPD misapprehended the Appellant's testimony about the location of the driving school. When asked where he took the driving course, the Appellant responded that the school was called "XXXX", and that it was on the Kenyan side of the border. The RPD took this to mean that the school was in the town of XXXX, which is outside of Nairobi and an 8-hour drive from the Somali border. The RPD's finding was not supported by the evidence. [22] I also find that the Appellant's stay in XXXX for a couple of months was not a material fact to mention in the BOC narrative. The RPD attempted to characterize the Appellant's stay as a response to his fear from Al-Shabaab, but again this is unsupported by the testimony. The Appellant instead explained that the purpose of his stay in XXXX was primarily economic. He testified that his family had less access to water, that they needed additional income, and that obtaining a driver's licence and learning how to drive was a way to make more income for the family. The RPD questioned this decision due to the safety conditions on the roads, especially from Al-Shabaab. But the Appellant reasonably explained that around this time, his family's situation with Al-Shabaab was relatively stable because his father was paying them. He described that apart from this, the risk from Al-Shabaab was ever present. From the RPD's perspective, this risk might have seemed an unreasonable one to take, but I find that there is little that is implausible about this situation. There was no imminent danger from Al-Shabaab in 2014, and the risks from them had become a familiar hazard that was unavoidable for those living there.9 The events that caused the Appellant to leave Somalia did not occur until XXXX 2017. For these reasons, I do not rely on any of the RPD's findings in this regard. [23] As for the omission about the displacement of the Appellant's family during his time in XXXX, I again disagree with the RPD. The Appellant explained in his testimony that his family was worried that Al-Shabaab might find out that he had left, and that they moved to another area as they normally did as nomadic XXXX, but nothing ever happened and so the Appellant did not think it was worth mentioning. As the RPD noted, the Appellant's family did not go very far - only about 30 minutes away on foot. I do not see why such a minor and precautionary move should have been included, especially if nothing ever came of it. Kenyan driver's licence and Kenya Revenue Authority letter [24] However, the RPD correctly concluded that the Appellant did not truly attend a driving course in Kenya, and that both the Kenyan driver's licence and confirmation letter were fraudulent. The Appellant was not a credible witness in this respect, and his reliance on fraudulent documents seriously undermines his overall credibility. [25] Apart from the findings discussed above, the RPD also doubted the Appellant's story about the Kenyan driver's licence because: * The Appellant claimed that he went through an official border crossing from Somalia to Kenya, and each time did so successfully without any identity documents in his possession; * He claimed that he attended the driving course and passed the exam for XXXX XXXX XXXX without knowing the language of instruction, which was Swahili, nor the language of examination, due to the presence of a Swahili-Somali interpreter who was present; and * The Appellant could not credibly explain how he successfully obtained a Kenyan driver's licence despite having no official identity documents to submit to the driving school, the approved police examiner, or the office that issued driver's licences in Kenya. [26] The RPD also examined the copy of the Kenyan driver's licence and the accompanying confirmation letter, but noted the following problems: * The driver's licence was unsigned, and it did not have information that was supposed to be contained in it, such as the Appellant's address and the expiration date of the document; and * The confirmation letter from the Kenya Revenue Authority was issued on XXXX XXXX, 2018, but the Appellant was in detention in the US at that time and he did not even seek the letter until his arrival in Canada in 2019. [27] As there was no reasonable explanation for these discrepancies, the RPD determined that the documents were fraudulent. [28] The Appellant has not identified any error in these particular findings, and I agree entirely with the RPD on them. The Appellant testified that he crossed the border into Kenya sometimes on a bus, sometimes with his relative, and sometimes with his relative's friend. According to the country conditions evidence, much of Somalia's border with Kenya is porous, such that it is possible to travel across without documentation.10 However, the Appellant's testimony was that he crossed at an official border crossing each time. At international borders with border control points, an individual's documentation would be checked in offices located on either side of the border.11 [29] Even if I could accept that the Appellant's relative somehow made arrangements to exempt the Appellant from identity checks, there remains no credible explanation for the Appellant's ability to take and pass a driving test with an approved police examiner and obtain a Kenyan driver's licence, without ever having to show any kind of identification. The documentary evidence indicates that in Kenya, people are asked to prove their identity in a multitude of settings, and that requests to show identification are "inescapable". There were certain situations where producing an official identity document was a legal requirement, such as to obtain a driver's licence. In other situations, such as to enter certain buildings, it was a standard expectation.12 The Appellant claimed that his relative took care of everything, but under these circumstances, the RPD was correct to expect more information. The Appellant was in contact with this relative, who even provided an affidavit in support of his refugee claim, but the relative did not explain what arrangements were made that allowed the Appellant to cross the Kenyan border regularly, attend driving school in Kenya, take a driving exam there, and obtain a Kenyan driver's licence, all without any identification. [30] There also remains no reasonable explanation for the contents of the driver's licence and the accompanying confirmation letter. The RPD cited a document from the most recent National Documentation Package for Somalia that was available at the time of the last hearing. That document indicated that prior to the introduction of the smart driver's licence in 2018, the Kenyan driver's licence was a red booklet, containing the licensee's residential address, signature, and an expiration date, among other information.13 The Appellant's driver's licence had none of these three things.14 In addition, the RPD was correct to reject the Appellant's explanation for the date on the confirmation letter. He suggested that the office made a mistake when issuing the letter, but this was not likely, given that it was both dated by hand and also typed on.15 At the time of the document's issuance, the Appellant would have been detained in the US, and moreover, he testified that he only asked his relative to obtain this document for him in 2019, in order to apply for his Ontario driver's licence. [31] Given the many unresolved issues that arose with the documents themselves and the circumstances surrounding the issuance of the driver's licence in 2014, I determine that both the driver's licence and the confirmation letter are inauthentic. The Appellant attempts to downplay the significance of these issues, but I find that they are highly material to the assessment of the Appellant's identity. Being inauthentic documents, they do not necessarily place the Appellant outside of Somalia in 2014. However, in a case such as this, where establishing his identity depends so greatly on the credibility of his own testimony, the Appellant's resort to using fraudulent documents in Canada is very damaging to his overall credibility. The Appellant has demonstrated that he is willing to obtain and present false documents to authorities as it suits him. Evidence in support of the Appellant's declared identity [32] The Minister argued that if the RPD were to determine that the Kenyan documents were fraudulent, there would be no logical way that it could place weight on any other documents presented by the Appellant.16 The Appellant submits that the Minister's intervention indeed commanded the RPD's assessment and that it treated it as dispositive of the entire claim. I do not agree with that characterization. Rather than simply dismissing the rest of the evidence outright, the RPD correctly proceeded to address each remaining piece of evidence individually to examine the credibility and probative value of the documents, as well as the testimony from the Appellant's witness. I am not persuaded that the RPD took a siloed approach or that it failed to see how each piece of evidence fit a larger picture that established the Appellant's identity in the end. [33] The Appellant relied on the following evidence in support of his identity: * An affidavit from the Appellant's mother, sworn in Nairobi, along with evidence about a Somali witness who accompanied her;17 * An affidavit and oral testimony from a witness, who claimed to have met the Appellant on several occasions in 2013 and 2015 while buying XXXX from the Appellant's family;18 * A notarized letter from the Appellant's cousin in the US;19 * An affidavit from the Appellant's relative in XXXX, along with a copy of the author's Somali passport;20 * A sworn declaration from the Appellant's paternal aunt in Kismayo, along with a copy of her Somali passport;21 and * A letter from XXXX XXXX XXXX.22 [34] The RPD considered this evidence, but as the panel noted in its decision, some of the evidence was deficient in several ways, and the Appellant did not take reasonable steps to establish his identity. There was much stronger evidence that the Appellant could have produced in support of his declared identity, but he chose not to present it to the RPD. Ultimately, the evidence that was presented was insufficient to credibly establish the Appellant's identity. Evidence from the Appellant's mother [35] The affidavit purporting to be from the Appellant's mother indicated that she is the Appellant's biological mother and that he was born on XXXX XXXX, 1983 in XXXX village in Somalia. She confirms the Appellant's citizenship, clan membership, religion, his being the eldest of XXXX children, as well as the circumstances around his departure from Somalia. The Appellant's mother is undocumented, and so she had someone to accompany her to swear the affidavit, who vouched for her identity. Direct evidence from the Appellant's closest family members, who knew him for his entire life and who could easily speak to his identity and background, could only have had very high probative value. [36] In this case, however, the RPD was not willing to simply accept the contents of this affidavit without testing its credibility. The RPD noted that the witness who vouched for the mother's identity possessed an identity document - a Somali passport - which was not signed.23 The RPD also commented on how the affidavit was silent on other issues, such as the Appellant's stay in XXXX in 2014 and the family's movements around that time. The Appellant argues that the RPD was overly critical of his evidence, and dismissed it due to technicalities, such as the lack of signature and the lack of information about specific events. [37] I disagree with the Appellant. The onus rested with the Appellant to establish his identity, but the evidence from those best positioned to speak to his identity was insufficient. The Appellant's mother and several of his siblings, including an adult brother, were living in Nairobi. They owned a smartphone and used WhatsApp to communicate with the Appellant. When asked why his mother did not appear as a witness for his hearing, which was held virtually, the Appellant responded that his mother's capability was low. He also stated that his brother was not called as a witness because as a person from the countryside, he was not comfortable. The RPD correctly found that this was not a reasonable explanation. Despite her supposedly low capability, the Appellant's mother was able to swear an affidavit with a notary and witness in Nairobi. The brother's comfort level also does not reasonably explain why he could not have acted as a witness. The mother's affidavit did not address the credibility issues that arose in the claim, such as whether the family was living nomadically or semi-nomadically as XXXX XXXX. Given this context, the affidavit was incapable of overcoming the credibility issues in the Appellant's claim. [38] I am also not persuaded that the RPD fixated on minor technicalities. The RPD questioned the reliability of the mother's statement, given that there were doubts around her own identity witness' identification. The lack of a signature in the witness' Somali passport was not an isolated issue. This was a pattern in the evidence. It was unusual that none of the Somali passports from any of the sources supporting the Appellant's identity were signed. The Appellant's Kenyan driver's licence was also unsigned. Even an affidavit that was supposedly sworn by the Appellant's aunt in Kismayo at a district court was somehow completed without any signature from her. This raised questions not just about the legal validity of the documents, but also about their authenticity. The RPD was correct to doubt the reliability of the mother's affidavit, due to the lack of reliable means to confirm her identity and the Appellant's failure to call either her or his adult brother as a witness. Oral testimony and affidavit from the Appellant's identity witness [39] Rather than presenting witnesses who were best positioned to speak to his identity, the Appellant chose to present a single identity witness during the proceedings, who was someone with far less familiarity with his life and background. The identity witness was not from the Appellant's village, but he stated that he and his father traveled to the Appellant's village on several occasions between 2013 and 2015 to buy XXXX XXXX XXXX from the Appellant's family. He stated that their fathers were very good friends, and that they were from the same clan. The Appellant and his identity witness reconnected in 2019 when they met at a Somali organization in Toronto.24 [40] The RPD found that the witness' testimony was not consistent with the Appellant's evidence. The two claimed that they knew each other because of their business relationship buying and sellingXXXX XXXX, but the RPD found that there were discrepancies around this, as they did not give consistent testimony about how much the XXXX cost, and the witness denied that the Appellant's family was nomadic. The Appellant submits that there was no material inconsistency. He argues that the RPD misapprehended his evidence, and that the inconsistency in the price of XXXX is attributable to his witness' lack of knowledge. [41] I have reviewed the evidence and I conclude that the witness did not know the Appellant in Somalia. The RPD did not misapprehend the evidence. The Appellant now attempts to describe his family as "semi-nomadic", but that was not his testimony at the RPD. In explaining his family's movements during his time in XXXX, the Appellant testified that they were moving from place to place, not necessarily because of problems with Al-Shabaab, but because his family was nomadic. The RPD attempted to understand how the Appellant knew where to return to find his family when he returned from XXXX. In response to this, the Appellant described that, as with other nomadic families, there was a system of locating, such that when you returned to town, you could ask for your family, and they would tell you where they had relocated. He stated that moving was normal to them, and that he did not even think to mention his family's movements during his time in XXXX because they were constantly moving so that XXXX XXXX XXXX XXXX XXXX XXXX XXXX, as was their lifestyle. By contrast, the identity witness stated that the Appellant's family were simply XXXX XXXX, and that they only stayed in one area, and did not move to any other places. And so, he explained, there was only one place that he would ever meet them, and he knew where to go and find them. The Appellant has not been able to reconcile this inconsistency. [42] The RPD also correctly found that the Appellant and his witness gave very different testimony about the prices of XXXX. The Appellant testified that he sold XXXX for about 2 million Somali shillings. The identity witness stated that a XXXX would cost him 800,000 shillings, and that the most he ever paid was 1.1 million shillings. When this inconsistency was put to the Appellant, he blamed his witness' ignorance, and claimed that he knew XXXX better than his witness. He stated that his price for XXXX could go down to 1.8 or 1.5 million shillings. The identity witness did indicate that he was merely approximating in his answers, and he did clarify that his father was the primary broker for the family, but the difference here is considerable. There are 400,000 Somali shillings between the lowest end of the Appellant's range, and the highest end of his witness' range, which amounts to roughly $1000 CAD. That is a significant sum by Somali standards, where estimates for GDP per capita range between $284 and $500 USD and where about 70% of the population lived on under $1.90 USD per day.25 The witness stated that his father was an XXXX XXXX, whose business it was to purchase XXXX and then sell at higher prices. The family made their money from the difference in those prices, and so one would reasonably expect that knowledge of prices would have been very important. The witness stated that he was not in partnership with his father, but that as the firstborn son in the family, he was most definitely involved in the business and understood the day-to-day of his father's business very well. [43] The inconsistencies in the testimony are not reasonably explained, and they significantly undermine the Appellant's allegations about how he knew his witness. I conclude that the Appellant and his witness likely did not know each other in Somalia as alleged, and I find that this further undermines the Appellant's credibility with respect to his identity, especially given that this was the only identity witness that was presented at any of the RPD hearings. Notarized letter from the Appellant's cousin in the US [44] The Appellant provided a notarized letter from someone in the US who claimed to be his cousin on his father's side. The author of the letter states that the Appellant came to stay with him in the US after his release from detention in XXXX 2018.26 The RPD gave this document some weight, but it was unclear how the author had confirmed the Appellant's personal and national identity. The RPD again noted that the author was not presented as a witness, and therefore there were aspects of his evidence that could not be tested, and there was no opportunity to address gaps in the affidavit, such as how the Appellant arrived in the US and the author's knowledge of the Appellant's possible status elsewhere. [45] I see no error in the RPD's treatment of this document. The RPD did not dismiss this evidence outright simply because it was one piece of a larger evidentiary picture, nor did the RPD reject it based on technicalities. The RPD correctly assessed the document's probative value. The author may have facilitated the Appellant's release from detention in the US, but he did not say how he was able to ascertain the Appellant's identity. There is no information about whether the two knew each other in Somalia, nor how they were put in contact with each other. Even in conjunction with the other evidence, the document is insufficient to establish the Appellant's identity. Affidavit from the Appellant's relative in XXXX [46] The RPD placed little weight on the affidavit from the Appellant's relative, who swore an affidavit in Nairobi in support of his refugee claim. This was the same relative with whom the Appellant stayed in XXXX. The RPD noted that the relative's Somali passport was unsigned, and therefore it was invalid. This made the RPD doubt the reliability of the affidavit, and the panel also found the contents of the affidavit to be vague and insufficient. [47] I agree with the RPD. The author of the affidavit states that he is the uncle of the Appellant's mother. He confirms that he is a Somali citizen and a businessman who resides in XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He states that he often travels between Somalia and Kenya. Though it was this relative who supposedly arranged for the Appellant to obtain a Kenyan driver's licence, and also sent the driver's licence and confirmation letter to the Appellant, the affidavit mentions nothing about how these arrangements were made. The author merely states that he offered to assist the Appellant "in any way" to get a driver's licence.27 It is unusual that despite his regular travel between Somalia and Kenya, the author's Somali passport is unsigned, like all the other copies of Somali passports that were disclosed. I also find that the author's credibility is directly impugned, given that it is this individual who assisted the Appellant in obtaining fraudulent Kenyan documents to facilitate the Appellant's application for a driver's licence in Ontario. I place no weight on his affidavit and the photocopy of his passport. Sworn declaration from the Appellant's paternal aunt in Kismayo [48] The RPD also placed little weight on the affidavit supposedly sworn by the Appellant's paternal aunt in Kismayo. The document was printed on letterhead from the Kismayo District Court, but it was unclear who completed the document with the affiant, as the name of the individual who signed it did not indicate whether they were a commissioner, a notary, or someone else authorized by the court to complete affidavits. In addition, the affidavit contained no signature, nor any thumbprint from the affiant. The affiant claimed that she made annual visits to see the Appellant's family in XXXX, and that she stopped visiting in 2016, but there was little detail about how she was able to complete these visits in the context of the physical dangers on the roads in this part of Somalia. In addition, the affiant stated that the Appellant left Somalia in XXXX 2018, but the Appellant's evidence was that he left in XXXX 2017. There were also other gaps in her statement, such as information about the risks faced by the Appellant and his family. [49] I place no weight on the aunt's affidavit and passport copy. The Appellant argues that commissioning errors go to weight, and do not automatically invalidate the contents of a statement, but as mentioned, the issues mentioned by the RPD are not just about the legal validity of the affidavit. The issues clearly bear on the authenticity of the documents. When questioned about how he obtained the affidavit from his aunt, the Appellant described that she and her son were able to find a notary to complete the document. He explained that his aunt's son was an educated person and that his aunt was a businesswoman, and that they had the means to pay for an affidavit. However, as pointed out by the RPD, there is no information in the affidavit to indicate that it was completed by a notary. It was printed on the letterhead of a district court, but it is unclear whether it was completed by a notary, a commissioner, a judge, or some other member of the court's staff. It strikes me as unlikely that such a document would be completed in a court without ever being signed by the affiant. And, again, it is unusual that the affiant's passport, like the others, is still unsigned despite being issued two years before the affidavit was completed. I am not satisfied that the affidavit and passport copy are genuine documents. Letter from XXXX XXXX XXXX [50] Finally, the Appellant provided a support letter from XXXX XXXX XXXX, a settlement organization in Toronto. The organization interviewed the Appellant and his identity witness. They confirmed that the Appellant speaks Somali fluently, that he was able to accurately characterize the geography of his place of origin, and that he could identify the province in which his hometown was located. The organization found that the Appellant's dialect was consistent with Standard Somali and that his physical features were like those of the majority of ethnic Somalis, including members of his clan. They believed that, due to this, there was a very strong likelihood that the Appellant is a Somali citizen. [51] The RPD disagreed with the organization's conclusions. It found that these factors did not establish the Appellant's nationality as a Somali. The letter did not include details about the kinds of questions asked, which would have been helpful in assessing whether they were truly probative of the Appellant's origins in Somalia. The organization also did not adequately explain how they were able to verify the Appellant's personal identity. [52] The Appellant disputes the RPD's treatment of this evidence, citing the Federal Court's decision in Warsame.28 He submits that the RPD should have considered the evidence as a whole, rather than dismissing the XXXX letter simply because it was one part of a larger picture. According to the Appellant, even though the letter may not have been particularly probative of the Appellant's personal identity, it did support his national identity. The Appellant also says that it was unfair for the RPD to take issue with the lack of detail in the letter about the organization's assessment methods. The Appellant says that by not giving him the opportunity to address this issue, the RPD denied him a fair chance to respond to a credibility concern. [53] I disagree with the Appellant. The letter attempted to address both the Appellant's national and personal identity, by referring to an interview with an identity witness, who claimed to be able to confirm the Appellant's personal identity, as well as factors that supported his national identity. However, the letter had little probative value in establishing either aspect of the Appellant's identity. The organization was not acquainted with the Appellant prior to his arrival in Canada, and the identity witness that they interviewed was the very same individual who testified at the RPD, whom the RPD found was not a credible witness. [54] In addition, factors such as the Appellant's language abilities and his knowledge of Somali culture and history are clearly factors that establish his ethnicity as Somali, but they are not determinative of his nationality. As the Minister noted in their intervention, there is a significant population of ethnic Somalis living in Kenya who are Kenyan citizens, rather than citizens of Somalia.29 I note that there are also significant populations of ethnic Somalis in Ethiopia, Djibouti, and elsewhere, who do not possess Somali citizenship.30 The documentary evidence indicates that the traditional Somali ethnic homeland crosses nation-state borders, and the Somali diaspora population was one of the largest proportional diaspora populations in the world.31 It is possible for ethnic Somalis who are citizens of other countries to speak Somali fluently, to have knowledge about Somali culture, history, clan lineage, and even a basic knowledge of Somali geography. [55] The RPD was correct to discount the evidence because of the lack of detail regarding the organization's assessment methods. This was not a credibility issue that had to be put to the Appellant for an explanation, as a matter of procedural fairness. The RPD never doubted whether XXXX truly interviewed the Appellant. The issue here is around the probative value of the letter. The RPD was merely assessing the capacity of the evidence to establish the fact of which it was offered in proof.32 It should not have come as any surprise to the Appellant that the RPD would examine the evidence and weigh it. The RPD correctly considered that, without more information about the questions that were asked of the Appellant, it could not reach the same conclusions as the organization on the Appellant's origins in Somalia. A depth of knowledge about the village of XXXX and the surrounding area could have been probative in establishing his origins there, but the letter gave almost no details about what was asked. In my view, the Appellant's ability to identify XXXX as a village in the Lower Juba region is not particularly compelling evidence of his origins. Without more, I also place little weight on this letter in establishing the Appellant's national identity, and I give it no weight in establishing his personal identity. Sufficiency of evidence [56] After considering the entirety of the evidence, I am not satisfied that the Appellant has established his national or personal identity on a balance of probabilities. The Appellant was not a credible witness, and he demonstrated that he was willing to obtain and use fraudulent documents at his convenience. The Appellant had an abundance of time to corroborate his declared identity, but he did not present evidence that was reasonably available to him, such as witness testimony from his mother or his brother from Nairobi. This would have been relatively simple to do, given their access to a mobile phone and the internet, in proceedings that were taking place virtually through Microsoft Teams. The only identity witness that was presented was from someone who claimed to have befriended the Appellant in Somalia between 2013 and 2015, but his testimony was not credible. There were issues with the credibility, reliability, and probative value of much of the other evidence. Under these circumstances, I find that the RPD was correct to conclude that the Appellant had not provided sufficient credible evidence to establish his identity. CONCLUSION [57] Therefore, although I do not agree with all of the RPD's findings, I have reached the same conclusion about the Appellant's failure to establish his identity. This issue is dispositive of the Appellant's refugee claim. I confirm the RPD's negative decision. I am unable to find that the Appellant is either a Convention refugee or a person in need of protection. The appeal is dismissed, pursuant to paragraph 111(1)(a) of the IRPA. (signed) Matthew Oh Matthew Oh April 4, 2023 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 3 Appellant's Record, at pp. 156-161. 4 Ibid., at pp. 163-219. 5 Ibid., at pp. 220-273. 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 7 Elmi v. Canada (Citizenship and Immigration), 2008 FC 773, at para. 4; Jin v. Canada (Minister of Citizenship and Immigration), 2006 FC 126, at paras. 13 and 26; see also Liu v. Canada (Citizenship and Immigration), 2007 FC 831 at para. 18. 8 RPD Record, Exhibit 3, National Documentation Package ("NDP") for Somalia (April 16, 2021), item 3.4, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) SOM200235.E. 9 Appellant's Record, at p. 229. 10 RPD Record, Exhibit 3, NDP for Somalia (April 16, 2021), item 14.18, RIR SOM200233.E. 11 Ibid. 12 Ibid., item 3.15, Norwegian Refugee Council, International Human Rights Clinic at Harvard Law School, at p. 21. 13 NDP for Somalia (April 29, 2022), item 3.31, RIR KEN200601.E. 14 RPD Record, Exhibit 5, at p. 153. 15 Ibid., at p. 154. 16 RPD Record, Exhibit 5, at p. 143. 17 RPD Record, Exhibit 7, at pp. 106-109. 18 Ibid., Exhibit 6, at pp. 101-104. 19 Ibid., Exhibit 8, at p. 112. 20 Ibid., Exhibit 9, at pp. 120-121. 21 Ibid., Exhibit 9, at pp. 116-118. 22 Ibid., Exhibit 8, at p. 113. 23 RPD Record, Exhibit 7, at p. 108. 24 RPD Record, Exhibit 6, at p. 101. 25 RPD Record, Exhibit 3, NDP for Somalia (April 16, 2021), item 1.8, European Asylum Support Office; item 1.24, Bertelsmann Stiftung; item 3.18, World Bank Group; item 7.11. Asylum Research Centre. 26 RPD Record, Exhibit 8, at p. 112. 27 RPD Record, Exhibit 9, at p. 120. 28 Warsame v. Canada (Immigration, Refugees and Citizenship), 2019 FC 118. 29 RPD Record, Exhibit 5, at pp. 182-187. 30 Ibid., Exhibit 3, NDP for Somalia (April 16, 2021), item 3.15, Norwegian Refugee Council; International Human Rights Clinic at Harvard Law School; item 3.17, IRB, RIR SOM106079.E; and item 3.18, World Bank Group. 31 Ibid., item 3.18, World Bank Group, at p. 45. 32 Magonza v. Canada (Citizenship and Immigration), 2019 FC 14 at para. 21. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC2-26160 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français