TB4-08127

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 : TB4-08127 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 December 1, 2014 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal David P Yerzy Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor 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) alleges to be a citizen of Somalia. She appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant has submitted no new evidence in support of her appeal nor has she asked for an oral hearing. She asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to either find her to be a protected person or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. BACKGROUND [3] The Appellant alleged before the RPD that, upon return to Somalia, she will be harmed by members of Al Shabaab or others because she is a displaced woman who is a member of a minority clan. [4] The Appellant's application for refugee protection was heard on August 15, 2014. By a decision of August 26, 2014, the RPD rejected the claim, finding that the Appellant had not established her identity with credible evidence. [5] The Appellant submits that the RPD erred in its assessment of her identity and credibility. Role of the RAD [6] What is the role of the RAD in considering an appeal against a decision of the RPD? [7] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [8] Although the RAD is a relatively new body, it now has the benefit of some Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [9] In Iyamuremye, the Court found itself: ...entirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law and by applying a reasonableness standard to those involving questions of mixed fact and law....1 [10] The Court went on to hold that the RAD must review the evidence that was before the RPD and conduct its own, independent assessment of that evidence to determine whether the lower tribunal had properly considered the evidence and "reasonably justified its conclusion".2 [11] In the subsequent case of Alvarez, the Court clarified the role of the RAD in relation to the RPD.3 It held that the RAD is not to undertake a process of judicial review, but rather it must perform its own assessments of the facts in order to determine whether the RPD made an error of law or mis-assessed the facts to the point of making a "palpable and overriding error."4 In the Court's view, the lower tribunal's ability to hear evidence viva voce makes it better situated than the RAD to make findings of fact, and therefore the appeal tribunal should show deference to the RPD's findings of fact and mixed fact and law. In contrast to its ruling in Iyamuremye, here the Court found that the RAD erred by assessing the decision of the RPD against a standard of reasonableness-but then required the use of a higher standard. [12] In Malhotra,5 issued after Alvarez and Eng, the Federal Court considered another decision of the RAD, in which the tribunal applied a standard of reasonableness to the RPD's decision under appeal. Although the Court did not specifically address the RAD's selection of the standard of review, it observed that the RAD had applied a standard of reasonableness and concluded that the RAD's decision did not contain any error which justified the intervention of the Court. [13] Most recently, the Court, in Huruglica, considered the appropriate relationship between the RAD and the RPD.6 It found that the RAD erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.7 [14] While the Court had endorsed the standard of reasonableness in Iyamuremye, and accepted it in Malhotra, it found in Huruglica that the application of such standard was in error. In contrast to Alvarez and Eng, the Court held that the RAD is not restricted to intervening only in the event of a palpable and overriding error. In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal". The RAD will therefore review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. ANALYSIS Identity [15] The RAD focused on the following in assessing this appeal: Did the RPD err in its findings with respect to the identity of the Appellant and is there sufficient credible evidence to establish the Appellant's identity? [16] The Federal Court has found on numerous occasions that the issue of identity is at the very core of the RPD's expertise.8 The Court's jurisprudence clearly shows that a failure by a refugee claimant to establish his or her identity is fatal to a claim. In situations where an applicant has not established identity, a negative conclusion as to credibility will almost inevitably be drawn, and can, in and of itself, be dispositive of a claim.9 [17] Section 106 of IRPA provides that: The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. [18] Section 11 of the RPD Rules provides that: The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them. [19] The Basis of Claim (BOC) form, which was completed by Appellant, directs refugee claimants to: Attach two copies of any documents you have to support your claim, such as travel documents (including your passport) and identity, medical, psychological or police documents..... A copy of any other document in support of your claim that you get after submitting your BOC form must be received by the IRB and by the Minister, if the Minister is a party, at least 10 days before your hearing.10 [20] The Appendix to the Basis of Claim form gives the following instructions under the heading "Documents": You must show the IRB evidence of who you are by giving the IRB official documents with your name and date of birth on them. For example, you can give a passport, national identity card, birth certificate, school certificate, driver's licence, military document, professional or religious membership card. If you do not have documents like this with you, you need to do everything you can to get them immediately. If you still cannot get these documents, you will need to explain the reason for this at your hearing and show that you did everything you could to get them. Attach two copies of all documents (identity, travel or other documents) that you have with you now to support your claim for refugee protection, including documents that are not genuine, documents that you got in an irregular or illegal way or by giving information that is not true, and documents you used that do not really belong to you. In addition to the documents listed above, you can include proof of membership in political organizations, medical or psychological reports, police documents, business records, news clippings, visas, and airplane, train or bus tickets. Include certified translations in English or French for all documents if they are in a language other than English or French. Translations are certified when they include the translator's name, the language and dialect, if any, and a statement that the translation is accurate, signed by the translator. You must pay for these translations yourself. You must bring the originals to your hearing (or give them to the IRB sooner if the IRB asks for them), unless the documents have been seized by Citizenship and Immigration Canada (CIC) or Canada Border Services Agency (CBSA). Please see the Claimant's Guide for more information. If you get more identity or travel documents that support your claim after you have provided your BOC Form, give two copies to the IRB without delay. If you get more documents, other than identity or travel documents, that support your claim after you have provided your BOC Form, give one copy to the IRB and a copy to the Minister, if the Minister is a party, at least 10 days before your hearing. [21] The RPD found that the Appellant had not provided sufficient credible or trustworthy documentary evidence in support of her personal or national identity. The RPD also found that the Appellant's evidence, as it related to her personal and national identity, was neither trustworthy nor credible. [22] The Appellant argues that the RPD engaged in an overzealous search for inconsistencies between the evidence of the Appellant and the witness. It was submitted that the RPD erred in its determination that the Appellant made insufficient efforts to obtain identity documents. It was also submitted that the RPD erred in its assessment of the Appellant's credibility and imposed its own subjective values on the Appellant. [23] In assessing the Appellant's personal identity and nationality, the RAD considered the totality of the evidence, including the Appellant's oral testimony, the testimony and document provided by her witness, and the documentary evidence on the file. The assessment of the Appellant's personal identity and nationality is inextricably linked to the credibility of the Appellant as a witness. All aspects of the RPD decision were reviewed keeping in mind the issues the Appellant argues in her memorandum. Witness' Testimony [24] The RPD found that the testimony of the witness did not assist in establishing the Appellant's personal or national identity due to an implausibility identified in the Appellant's evidence and several inconsistencies between the evidence presented by the Appellant and the evidence presented by the witness. [25] The RPD found it implausible that the Appellant's family would allow their young daughter to visit the witness' home in Mogadishu without knowing something about the witness' family or the location of the witness' home. The RPD noted that the Appellant was unable to provide any information about the witness' family in Somalia or where she lived. [26] The RPD noted several inconsistencies between the Appellant's evidence and the witness' evidence with respect to the frequency the witness would visit her home, the frequency the Appellant's daughter would visit the witness' home and the timing of the visits. The RPD also noted inconsistencies between the Appellant's evidence and the witness' evidence with respect to details about the witness and the Appellant's daughter taking the bus to and from school. [27] The Appellant submits that the RPD's credibility findings with respect to the witness focus on minor inconsistencies and do not take into consideration that certain memories may differ with the passage of time. The Appellant argues that the RPD failed to consider that she did not have a close relationship with the witness as the witness was a close friend of her daughter some 30 years prior. [28] The Appellant testified that the witness would frequently drop in to her house before or after school. She indicated that the witness would drop by and the girls would go to school together. The Appellant also indicated that her daughter and the witness took the bus to school together all the time. However, according to the witness, she would not visit the Appellant's daughter en route from school, but she would go straight home. Furthermore, the witness testified that she took the bus to school, but not with the claimant's daughter. [29] The Appellant testified that the witness would visit her home more frequently and her daughter did not visit the witness at her home very often. However, the witness testified that she and the Appellant's daughter would visit each other's homes with about the same frequency; sometimes one would visit more often but the following month the other might visit more often. The Appellant indicated that the witness visited her home approximately every two days, whereas the witness testified that she would visit approximately three or four times a month. [30] It would be reasonable to expect the Appellant's evidence about her daughter's interaction with the witness to be consistent with the witness' evidence about her interaction with the Appellant's daughter. Even though the witness alleges that she went to school with the Appellant's daughter and visited her home over 20 years ago, one would expect the Appellant and the witness' recollection of their interaction to be similar. However, in this case, the Appellant's recollection of the witness' interaction with her daughter was not even close to that of the witness. [31] The length of time the witness alleges to have attended school with the Appellant's daughter was not a brief period. The witness states in her declaration that she attended school with the Appellant's daughter for several years. One would expect a witness who attended school with an individual for several years to recall the details of their interaction with the individual with at least some consistency with the individual's mother who was aware of their interaction. The Appellant testified that she was a housewife in Somalia and never worked outside of the home. This suggests that she spent a good deal of time in the home. It also suggests that the Appellant would be well aware of her daughter's visitors and her daughter's outings. Considering the above, it would be reasonable to expect the Appellant's evidence about her daughter's interaction with the witness to be somewhat consistent with the witness'. [32] The witness' alleged interaction with the Appellant and her daughter in Somalia is a significant aspect of the Appellant's evidence to establish her identity. It would be reasonable to expect the Appellant and her witness to provide somewhat consistent information about this interaction even considering the passage of time. Their inability to do so seriously damages the Appellant's credibility. The RAD concurs with the RPD and also finds that the inconsistencies in the Appellant and witness' testimony noted above undermine the Appellant's credibility. [33] The RPD found that it was implausible that the Appellant's family would allow their young daughter to visit a friend's house in Mogadishu without knowing something about the friend's family or the location of the friend's house. The RAD finds that the RPD's implausibility finding is supported by the evidence. The Appellant and witness allege that the witness went to school with the Appellant's daughter and visited the Appellant's home for several years. The witness knew that the Appellant's spouse was a XXXX. The witness even alleges that she went to visit the Appellant after the Appellant's daughter left Somalia for Saudi Arabia. One would expect the Appellant to know information about her daughter's friend and her family just as the witness knew information of the Appellant's family. The fact that she does not know further detracts from the Appellant's credibility. [34] The Appellant relies heavily on the witness to establish her identity. Given the concerns with the Appellant and witness' evidence and testimony outlined above and given the lack of credible or trustworthy independent evidence to establish the Appellant's personal identity or nationality, the RAD concurs with the RPD's finding that little weight can be provided to the testimony of the witness to establish the Appellant's personal identity and nationality. Lack of Documents [35] The RPD found that the Appellant had not supplied acceptable evidence to establish her identity and had not provided a reasonable explanation for her failure to do so. The RPD noted that refugee claimants are expected to make reasonable efforts to obtain any documents available to them to substantiate their identity and other aspects of their claims. [36] The Appellant submits that it was patently unreasonable for the RPD to find that she had not supplied acceptable evidence to establish her identity and she had not provided a reasonable explanation for her failure to do so when the RPD admitted that it was difficult, if not impossible, to obtain official identity documents from the current government in Somalia. The Appellant argues that she was expected to do the impossible. [37] The RAD notes that the Appellant did not provide any identity documents in support of her personal identity, her nationality, travel to Ethiopia or her stay in Ethiopia. The Appellant indicated that she did not have any documents when she left Ethiopia for Canada. The Appellant explained that she did not have any documents regarding her telephone conversations with her daughter in Saudi Arabia or with her brother in the United Arab Emirates. She indicated that she took their calls at the homes of others as she did not have a telephone. The Appellant testified that she survived in Ethiopia with money her brother and daughter sent her through a money transfer service known as Hawala. She also indicated that she received $XXXX XXXX XXXX from her daughter, transferred through Hawala, to pay the smuggler to take her to Canada. The Appellant explained that she had no records of the money transactions and had not requested them from her brother or daughter. She indicated that she could not request the records as the transactions occurred, "a long time ago". [38] The Appellant alleges that she lived in Ethiopia, illegally, for over seven years - from XXXX 2007 until she departed for Canada in XXXX 2014. She indicated that she met a Somali woman when she arrived in Ethiopia and stayed with her for approximately one month. She also indicated that she then rented a small room from a woman who owned a house. The Appellant alleges that she rented the room from the same woman for over seven years. She alleges she never saw a doctor in Ethiopia but would get pills from the pharmacy when she had a headache. The Appellant alleges that her daughter sent her the $XXXX XXXX XXXX she paid the smuggler to take her to Canada but had no record of the money transfer. [39] Although it may have been difficult for the Appellant to obtain official documents to establish her identity there were other things that perhaps she could have provided. If the Appellant had lived in Ethiopia for over seven years as she alleges, it would have been reasonable for her to attempt to obtain documents to reflect this stay. It would have been reasonable for the Appellant to perhaps approach the Somali woman whom she initially befriended and stayed with in Ethiopia and who helped her find a room to rent. It would have been reasonable to expect the Appellant to perhaps contact her former landlord in Ethiopia; the woman who rented her a small room where she stayed for over seven years. It would have been reasonable for the Appellant to perhaps contact others she met in the seven years she allegedly lived in Ethiopia who could attest to her stay in that country. The Appellant indicated before the RPD that she had not kept in contact with anyone in Ethiopia. When asked why she had not, she indicated that she was an old person who stayed in her room and that she was a refugee who ran away. [40] It would be reasonable to expect the Appellant to have asked her daughter in Saudi Arabia and her brother in the United Arab Emirates to provide confirmation of the money transfers they made to the Appellant between 2007 and 2014. The claimant indicated that she made no attempt to contact anyone to obtain confirmation of her allegations that she left Somalia in 2007 and resided illegally in Ethiopia for over seven years. The Appellant's explanation that she did not approach her brother or daughter for confirmation of the money transfers because the transactions occurred a long time ago is absurd. The last money transfer allegedly made by the claimant's daughter for $XXXX XXXX XXXX was made in or about early 2014, mere weeks or months before the Appellant made her claim for refugee protection in Canada. It would be reasonable to assume that records of many of the money transfers the Appellant alleges were made by her daughter and brother would still be available. As such, the RAD finds that the Appellant's explanations for not having documents regarding her stay in Ethiopia were not reasonable. [41] The RAD assigns a significant negative credibility inference to the Appellant's failure to make any attempts to obtain any documents in support of her personal identity and nationality. In failing to provide or obtain documents, the Appellant relied on her oral testimony and her witness to establish her personal identity and nationality. As outlined above, the Appellant was found not to be credible. As such, the RAD finds that the Appellant has failed to comply with her duty under section 106 of the IRPA to provide acceptable documentation establishing identity or to provide a reasonable explanation for the lack of documentation, or to have taken steps to obtain the documentation. [42] The RAD considered the fact that the Appellant testified in the Somali language. The ability to speak a language does not establish a person's personal identity nor can it establish a person's citizenship. This is especially relevant for individuals who speak Somali, given that this language is spoken in countries such as Somalia, Kenya, and Ethiopia.11 It is important to note that the Appellant alleges to have resided in Ethiopia for seven years, a country where Somali is spoken. As such, the RAD concurs with the RPD in assigning little weight to the fact that the Appellant can speak and understand Somali. [43] The RAD also considered the Appellant's testimony regarding her background in Somalia and her ethnic identity as a member of the Madhiban clan. The RPD notes that, while the Appellant was able to describe various areas of Mogadishu and a variety of clans that reside there, it was found that this establishes neither the claimant's personal identity nor her current nationality or nationalities, on a balance of probabilities. Considering the general and limited information given by the Appellant regarding Somalia and her ethnicity and the credibility findings noted above and below, the RAD concurs with the RPD that little weight should be given to this evidence. Travel to Canada [44] The RPD found that the Appellant's inability to provide information surrounding her trip to Canada from Ethiopia, as well as the lack of credible documentation substantiating either her identity or a seven year stay in Ethiopia was not credible. The Appellant was not aware of the colour or the country of issuance of her passport. She was unable to name either airline of the two planes she took to come to Canada. The Appellant was unable to name the country where she changed planes, the name of the transit airport, or the language spoken in the transit airport. The Appellant testified that she was not asked any questions by immigration authorities about the purpose of her visit or the length of her stay, indicating that the smuggler did all the talking. [45] The Appellant submits that she is an illiterate 75 year old woman who speaks no English and had never travelled abroad. It is further submitted that she was accompanied by a smuggler who XXXX XXXX XXXX XXXX XXXX and answered all questions on her behalf. The Appellant maintains that it is not implausible that such an unsophisticated person, with an agent to guide her, might be sufficiently disoriented to be unaware of the details of her trip. [46] The Appellant alleges that she made her way to Ethiopia, alone, in XXXX2007 after her husband was murdered. She alleges that she found accommodation in XXXX XXXX, Ethiopia and remained there, alone, for over seven years. The Appellant alleges that she supported herself in Ethiopia from funds sent to her from her daughter who resided in Saudi Arabia and from her brother who resided in the United Arab Emirates. She alleges that she made arrangements with a smuggler to take her out of Ethiopia and her daughter sent her the money to pay the smuggler. [47] The RAD notes that the Appellant had the wherewithal to travel to Ethiopia alone, find accommodation in Ethiopia, support herself in Ethiopia for over seven years with funds sent to her from her daughter and brother, locate and make arrangements with a smuggler to take her out of Ethiopia, secure the funds to pay the smuggler and then make her way to Canada with the assistance of a smuggler. The Appellant had the wherewithal to settle in Canada alone and make a refugee claim. The activities noted above suggest that the Appellant is not unsophisticated. She allegedly managed to travel to Ethiopia and lived a life with no apparent difficulties for over seven years. Considering the Appellant's alleged activities in the seven years prior to arriving in Canada, it would be reasonable to expect her to know some of the details of her travel to Canada. The Appellant maintains that she was oblivious of the details of her travel. It is not what is expected of an individual who alleges she settled in a foreign country alone for many years. The Appellant indicated that she had not chosen Canada but that the smuggler told her he was taking her here. She also indicated that she had not asked any questions during her travel but, when she and the smuggler arrived, the smuggler told her she was in Canada. The RAD concurs with the RPD that the Appellant's inability to provide information surrounding her trip to Canada from Ethiopia undermines her credibility. In Sung, Wei Hao v. M.C.I.,12 the Federal Court stated: The other observation which might be made is that in the realm of a claimant's credibility, contradictions are not the exclusive factual source on which the presumption of truth in the claimant's evidence, as so ruled by the Federal Court of Appeal, may be rebutted. A tribunal may also conclude that a claimant's evidence is implausible, or improbable, or dubious, or untenable, or unreliable, or absurd, or unconvincing. SUMMARY [48] The RAD finds that the RPD considered the totality of the evidence before it and found that the Appellant had not provided sufficient credible and trustworthy evidence to establish her personal identity and her nationality as a citizen of Somalia. The Appellant was found not to be credible. The Appellant did not provide sufficient credible or trustworthy evidence to attest to her lengthy stay in Ethiopia before arriving in Canada. The Appellant did not make any efforts to obtain any credible documents from any sources in Ethiopia or Somalia or elsewhere to attest to her personal identity and nationality. [49] The RAD concurs with the finding of the RPD that the Appellant has failed to provide sufficient credible or trustworthy evidence to establish her personal identity and nationality. The RAD concurs with the RPD and also finds that the Appellant was found not to be a credible witness. The jurisprudence sets out that, where identity is not established, it is unnecessary to further analyze the evidence and the claim.13 DISPOSITION [50] Based on a review of the totality of the evidence, and pursuant to section 111(1)(a) of IRPA, the RAD confirms the determination of the RPD. The Appellant has not established her personal identity or nationality as a citizen of Somalia, and she is therefore not a Convention refugee or a person in need of protection. [51] The appeal is therefore dismissed. (signed) "M. Pettinella" M. Pettinella December 1, 2014 Date 1 Iyamuremye, Oscar v. M.C.I. (F.C., no. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494 para. 2 2 Iyamuremye, para. 3. 3 Alvarez, Ismael Garcia v. M.C.I. (F.C., no. IMM-7218-13), Shore, July 17, 2014; 2014 FC 702; the same reasons are given in Eng, Sengloem v. M.C.I. (F.C., no. IMM-7281-13), Shore, July 17, 2014; 2014 FC 711. 4 Alvarez, para. 33. 5 Malhotra, Sunil et al. v. M.C.I. (F.C., no. IMM-6899-13) Bédard, August 1, 2014; 2014 FC 768. 6 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 7 Huruglica, para. 45. 8 Lama, Barry v. M.C.I. (F.C., no. IMM-2086-13), Shore, January 7, 2014; 2014 FC 8. 9 Ibid. 10 RPD's Record, p. 15, Basis of Claim Form, Question 2. 11 Exhibit RPD-1, National Documentation Package, Somalia, at p. 43, item 3.5. 12 Sun, Wei Hao v. M.C.I., (F.C.T.D.,no. T-3070-92), Joyal, February 6, 1996 as reported in X (Re), 2005 CanLII 77801 (IRB) 13 Li, Lina v. M.C.I. (F.C., no. IMM-2342-05), Phelan, March 7, 2006; FC 296, [2006] F.C.J. No. 369 (QL), at para 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-08127