TB6-17199

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 : TB6-17199 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 June 15, 2017 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Barrister and Solicitor 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), a citizen of Somalia, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submits no new evidence in support of his appeal; he does not request an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] This appeal is allowed. Pursuant to section 111(1) (b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. Background [3] The Appellant alleges that he is a member of the minority XXXX clan. The Appellant practises the Sufi faith. [4] The Appellant's father was beaten by members of the Habr Gedir who sometimes refused to pay him for his work. On XXXX XXXX XXXX 2004, the Appellant's father was killed by members of the Habr Gedir militia. In 2004, while working shining shoes, the Appellant was beaten by members of the Habr Gedir clan when he asked to be paid for work he had done. [5] On XXXX XXXX, 2005, the Appellant travelled to Nairobi, Kenya with the financial assistance of his uncle. Shortly after arriving in Nairobi, the Appellant learned that his brother, his uncle and his uncle's son, had been killed by Habr Gidir militia. [6] In 2010 the Appellant left Kenya. He arrived in the United States on XXXX XXXX XXXX 2010. He made a claim for asylum which was subsequently rejected. After his release from detention, the Appellant was able to contact a relative in Kismayo. The Appellant's relative informed him that two of his brothers had been killed by members of Al Shabaab because of their Sufi faith. [7] The Appellant fears that he will be harmed by members of Al Shabaab or members of majority clans. [8] The Appellant arrived in Canada on XXXX XXXX XXXX 2015 and made a claim for refugee protection on May 11, 2015. [9] The Appellant had a refugee determination hearing on October 14, 2016 and in a written decision issued on November 4, 2016, the RPD rejected the claim. The RPD found that the Appellant had not established his identity. However, the RPD found that the Appellant had established his Somali origins. The RPD found that the Appellant was not a credible witness. [10] Appeal pleadings were received on December 16, 2016. The Appellant argues that the RPD erred in its credibility findings and in its assessment of his documents. ROLE OF THE RAD [11] As the Appellant submits, the recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. [12] The RAD concludes from its statutory analysis that, with respect to findings of fact (and mixed fact and law), the RAD is to review RPD's decisions applying the correctness standard. Thus, after carefully considering the RPD's decision, the RAD is to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. ANALYSIS OF THE EVIDENCE The Appellant's Personal and National Identity Somali Nationality [13] The RPD found on a balance of probabilities that the Appellant is not a citizen of Somalia, he is not a member of the XXXX clan, and he is not the person he says he is. However, the RPD gave weight to a letter from the Dejinta Beesha organization in establishing that the Appellant was born in Somalia. [14] The Appellant submits that if the RPD accepted him as a citizen of Somalia then the RPD has to assess his claim against Somalia. The Appellant depends upon the jurisprudence in Husain2 to support this submission. [15] The RAD finds that the Appellant's submission have merit. [16] According to information in the National Documentation Package (NDP) for Somalia, Law No. 28 of 22 December 1962 - Somali Citizenship provides the following information: 3 Article 2. Acquisition of Citizenship by Operation of Law Any person: a) whose father is a Somali citizen; ... Article 3. Definition of "Somali" For the purpose of this law, any person who by origin, language or tradition belongs to the Somali Nation, shall be considered a "Somali". [17] The Appellant states in his Basis of Claim (BOC) form that his father's citizenship is Somali.4 The RPD found that the Appellant was born in Somalia. The RAD finds it reasonable to infer that as a result of the Appellant's origin, he belongs to the Somali Nation. The RAD, thus, finds that the Appellant's identity is, on a balance of probabilities, that of a citizen of Somalia. Birth Certificate [18] The RPD found that the birth certificate, 5 registered in Mogadishu on XXXX XXXX, 1988, did not contribute to an understanding of the Appellant's nationality or his clan identity. The RPD based its finding on the fact that much of the information contained in the certificate, such as the name of the child whose birth was registered and the child's mother's name, was not legible. The RPD acknowledged that the date of the birth of the child, XXXX XXXX, 1987, corresponded to the date of birth provided by the Appellant. [19] The Appellant submits that a copy of the birth certificate was accepted by the US authorities. The Appellant submits that the copy at the hearing before the RPD was as legible as the original copy. The Appellant submits that the copy is neither easily legible nor illegible. [20] For the following reasons, the RAD finds that the Appellant's submissions have merit. [21] The RAD has carefully read the documents6 from the US authorities regarding the Appellant's claim for asylum in the US and can find no reference to the Appellant's Somali birth certificate. The RAD has listened to the recording of the Appellant's hearing and finds that there was no reference to the use of his Somali birth certificate by US authorities. However, the RAD has examined the copy of the birth certificate in evidence for his appeal to the RAD. While faint, the RAD is able to read both the name of the child whose birth was registered and the name of child's mother. The name of the child registered on the certificate is the name provided by the Appellant as his name at the port of entry (POE)7 and in his Basis of Claim (BOC)8. Similarly, the name of the mother of the child on the birth certificate9 is the same as the name the Appellant provided for his mother in his BOC.10 [22] The RAD, thus, assigns significant weight to the birth certificate as evidence of the Appellant's personal and nationality identity. Identity documents issued by US authorities [23] The RPD found that the Appellant's US Social Service Card11 did not assist in establishing the identity of the Appellant. The RPD based its finding on the misspelling of the Appellant's first name and the fact that although the Appellant testified he called US authorities regarding the error, his new card contained the same error in spelling. [24] The Appellant submits that the RPD should have considered the other documents he provided from US authorities, including his Nebraska Driver's Licence,12 an Employment Authorization Card,13 and the documentation from US immigration authorities, all of which had the correct spelling of his name. [25] The RAD acknowledges the deference it should show to the RPD's finding, but nonetheless finds it cannot recognize and respect it. [26] US authorities, in issuing valid identity cards in the form of a driver's licence and an Employment Authorization Card, obviously accepted the Appellant's identity as a Somali citizen with the name and birth date XXXX XXXX XXXX 1987 he provided which is consistent with information the Appellant provided to Canadian officials. [27] Regarding the US Social Service Card, the RAD finds it is possible that US authorities inadvertently misspelled the Appellant's first name especially when his name is not a common name in the US. The RAD also finds it possible that US authorities did not correct the spelling error of the Appellant's name. The RAD is using its specialized knowledge in these particular findings. [28] While the RAD is not bound to accept decisions made by foreign authorities, the RAD assigns some weight to the identity cards issued to the Appellant in the US in establishing his personal and national identity. Affidavit of XXXX XXXX XXXX [29] The Appellant provided an affidavit,14 dated June 12, 2015, from XXXX XXXX XXXX, an American citizen born in Somali on XXXX XXXX XXXX 1984, as evidence of his personal and national identity. The affiant states that she is a family friend and has known the Appellant all of her life. [30] The RPD made no mention of this documents in its decision. [31] The Appellant submits that the affidavit was provided to US authorities to establish his identity and there is no reason to believe that his identity was rejected by the American authorities. The Appellant submits further that the RAD ought to give weight to this sworn document. [32] For the following reasons, the RAD agrees with the Appellant's submissions. [33] The information regarding the Appellant's identity is provided in a document sworn before a Notary Public in Minnesota, US. There is nothing on the face of the document to make the RAD doubt the authenticity of the document. [34] The date of the issue of the affidavit coincides with the time at which the Appellant was dealing with US authorities. [35] The RAD, thus, assigns significant weight to the document. Affidavit of XXXX XXXX [36] The RPD in its decision acknowledged that XXXX XXXX was available to testify on the original date set for the Appellant's hearing, September 20, 2016 but was unable to do so when the date was postponed, due to the absence of an RPD member, because he had gained employment before the hearing in October 2016. The RPD assigned a "modicum of weight" and found the affidavit15 to be insufficient to address "the lacunae" in the Appellant's testimony. The RPD based its finding on the fact that while the affidavit is written in English it does not indicate whether the affiant is able to read and understand English and the affiant was not available to question at the hearing. [37] The Appellant submits that the RPD rejected the affidavit not the witness. The Appellant submits further that if the witness was credible then the Appellant's identity as a Somali national and a member of the XXXX clan was established. [38] The RAD acknowledges the deference it should show to the RPD's finding but nonetheless finds it cannot recognize and respect it. [39] The RPD provided no reason for doubting the affiant's understand of the English language and, thus, the RAD infers, the affiant's understanding of the contents of the affidavit. The fact that the affiant was not available for questioning is not a reason to doubt a sworn affidavit. [40] The RAD, therefore, assigns weight to the affidavit in establishing the Appellant's personal and national identity as well as his identity as a member of the XXXX clan. The Appellant's membership in the XXXX clan [41] The RPD found that the Appellant failed to establish on a balance of probabilities his membership in the minority XXXX clan. The RPD based this finding on the Appellant's failure to mention during his oral testimony that the XXXX are descendants of Arabs or that besides residing in Kismayo they live predominately on the islands off the Kismayo coast. The RPD also noted that while the Appellant correctly testified that the XXXX typical occupation is that of fishers, his testimony that they were farmers was not supported by the independent documentary evidence. [42] The Appellant submits that RPD failed to consider his explanation that the Seraji means Arabs. The Appellant submits further that the RPD did not consider that he was born and raised in Mogadishu and knows only what he was told by his family about the XXXX clan. The Appellant submits that he testified that the majority of XXXX were fishermen and the RPD provided no basis to doubt that some XXXX could be farmers. [43] For the following reasons, the RAD finds that some of the Appellant's submissions have merit. [44] According to the recording of the hearing, when asked, the Appellant testified that the XXXX are descended from the XXXX (phonetic) and XXXX (phonetic). The RPD then referred the Appellant to the independent documentary evidence which indicates that the XXXX are, in particular, descended from Arabs. The Appellant responded by testifying that the XXXX are Arabs. The RAD has conducted a Google search and found "XXXX" referred to as an Arabic name and an Arabic tribe.16 In making such a search, the RAD is guided by the jurisprudence which has found that a Google search is not extrinsic evidence.17 [45] According to the recording of the hearing, the Appellant testified that he lived all of his live in Mogadishu before he left Somalia. Mogadishu is approximately 500 kilometres from Kismayo,18 the area in which the XXXX traditionally live. Having listened to the recording of the over two hour hearing, the RAD finds that the Appellant's testimony was such as to indicate that he learned about his XXXX clan from his family. The RAD, thus, finds it not unreasonable that the Appellant would not have a detailed knowledge of the XXXX clan. [46] The RAD also finds it not unreasonable that some XXXX could be occupied in farming. Summary of the Appellant's identity [47] As a result of the above analysis, the RAD finds on a balance of probabilities that the Appellant has established his personal and national identity as well as his membership in the minority XXXX clan. Subjective Fear [48] The Appellant submits that he fears persecution from the Habr Gedir clan because of his membership in the minority XXXX clan. The Appellant submits that he also fears he would be persecuted by Al Shabaab because he would perceived as a collaborator of the government because he lived in the US between 2010 and 2015 and in Canada since 2015. Objective Evidence [49] The RAD has considered the independent documentary evidence with respect to the Appellant's subjective fears. [50] According to information from a 2015 report from the United Kingdom (UK) Home Office19 several sources state that minorities are particularly vulnerable in Somalia. The same report provides the following information: Somalia is one of the countries: '... in which minorities are most at risk. During outbreaks of fighting, it is the minorities who suffer most. They fall outside the clan structure, and therefore outside its umbrella of protection. They are also vulnerable to increased risk of rape, attack, abduction and having their property seized by criminals in an increased atmosphere of lawlessness.'20 Hate speech against minority communities, focused on their appearance and different customs, has enhanced their vulnerability to attacks and other forms of discrimination.'21 People returning to Somalia from overseas are extremely vulnerable unless they have strong clan and family connections, as well as the economic means to establish a life. Somalis that have left, particularly those that have been in western countries, tend to be viewed as foreigners, and may be perceived to have western agendas. This in itself puts them at an increased risk of persecution.22 [51] The Department of State (DOS) report23 indicates that major human rights abuses include abuse of and discrimination against minority clans. The DOS report also provides the following information: Minority groups, often lacking armed militias, continued to be disproportionately subjected to killings, torture, rape, kidnapping for ransom, and looting of land and property with impunity by faction militias and majority clan members, often with the acquiescence of federal and local authorities. Many minority communities continued to live in deep poverty and to suffer from numerous forms of discrimination and exclusion.24 [52] A recent report from Minority Rights Group International25 indicates that exclusion from the dominant clan structure, or membership in a weaker clan, leaves minority groups more vulnerable to property grabbing, physical attacks, killings and general discrimination. [53] According to information from a 2014 report from the UK Home Office, through regular attacks in Mogadishu and other cities in Somalia, as well as attacks in Kenya and Uganda, Al-Shaabab has demonstrated that it is still a regional security threat. Al-Shabaab continues to target many groups including members of minority clans.26 [54] According to another report from the UK Home Office, despite the withdrawal in early August, 2011 of Al-Shabaab conventional forces from at least most of Mogadishu, there remains in general a real risk of harm for the majority of those returning to that city after a significant period of time abroad.27 [55] The UK report also provides the following information: Al-Shabaab's reasons for imposing its requirements and restrictions, such as regarding manner of dress and spending of leisure time are religious and those who transgress are regarded as demonstrating that they remain in a state of kufr (apostasy). The same is true of those returnees who are identified as returning from the West. Accordingly, those at real risk of Article 3 ill-treatment from Al-Shabaab will in general be refugees, since the persecutory harm is likely to be inflicted on the basis of imputed religious opinion.28 [56] According to the recording of the hearing, counsel in his oral submissions, referred to an updated report from the UNHCR, provided by the Appellant, regarding the position of the UNHCR on returns to southern and central Somalia. The report, issued May 2016, provides the following information: 29 The general security situation in Mogadishu and regions of southern and central Somalia remains Volatile. Different conflict dynamics are playing out, involving Al Shabaab, clan militias and inter-clan disputes. Al Shabaab reportedly continues to pose a major threat to peace and security, fighting against the Somali National Armed Forces (SNAF) and the African Union Mission in Somalia (AMISOM). In response to continued military operations conducted by SNAF, AMISOM, and allies, ... Al Shabaab has reportedly enhanced its ability to engage in asymmetric warfare with "increasing efficiency and lethality", which disproportionally affects the civilian population. Al Shabaab has reportedly been increasingly focused on eradicating what it perceives as espionage for or collaboration with the Federal Government of Somalia (FGS), with civilians accused of engaging in such acts reportedly being executed. While Al Shabaab has reportedly lost control of many of the cities and towns in the regions of central and southern Somalia, they still control some smaller towns and most rural areas thereby limiting overall access of the FGS and other actors even to the urban centres under government control. Furthermore, even in those cities that have been recovered by SMISOM/SNAF, the presences of Al Shabaab is reported to remain significant at the urban periphery and in some parts of the cities. [57] The RAD finds that the independent documentary evidence supports the Appellant's subjective fear as a member of the XXXX minority clan and as a person who would be targeted by Al Shabaab as a person returning from the West. DISPOSITION [58] After carefully carrying out its own analysis from the hearing before the RPD and of the record, the RAD determines that the Appellant has established his personal, national and ethnic identity. Based on its own analysis of the record, the RAD finds that the Appellant has established, with credible evidence, a well-founded fear of persecution in Somalia. CONCLUSION [59] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. This appeal is allowed. (signed) "Lesley Mason" Lesley Mason June 15, 2017 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 Husian, Ahmednoor Farah v. M.C.I. (F.C., no. IMM-4551-15), Tremblay-Lamer, April 22, 2016,2016 FC 462. 3 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Somalia (April 29, 2016), item 3.1. 4 Exhibit RPD-1, RPD's Record, p. 20, question 5(a). 5 Exhibit RPD-1, RPD's Record, p. 31. 6 Ibid., pp. 268-283. 7 Ibid., p. 33, question 1. 8 Ibid., pp. 14-26, questions 1(a) and 1(b) 9 Exhibit RPD-1, RPD's Record, p. 31. 10 Ibid., p. 20, question 5(c). 11 Ibid., p. 49. 12 Ibid., p. 48. 13 Ibid., p. 47. 14 Exhibit RPD-1, RPD's Record, p. 286. 15 Exhibit RPD-1, RPD's Record, pp. 317-319. 16 www.urbandictionary.com/define.php?term=XXXXX; https://books.google.ca/books?id=kyE_AQAAMAAJ 17 Pizarro Gutierrez, Luis Alvaro v. M.C.I. (F.C., no. IMM-6416-12), de Montigny, June 10, 2013, 2013 FC 623, para. 46. 18 Exhibit RPD-1, RPD's Record, NDP for Somalia (April 29, 2016), item 1.1. 19 Ibid., item 1.18. 20 Exhibit RPD-1, RPD's Record, NDP for Somalia (April 29, 2016), item 1.18, section 2.5.13. 21 Ibid., section 2.6.6. 22 Ibid., section 2.2.5. 23 Exhibit RPD-1, RPD's Record, NDP for Somalia (April 29, 2016), item 2.1. 24 Ibid., p. 39. 25 Exhibit RPD-1, RPD's Record, NDP for Somalia (April 29, 2016), item 13.8, p. 2/4. 26 Ibid., item 1.12, section 2.3.14. 27 Exhibit RPD-1, RPD's Record, NDP for Somalia (April 29, 2016), item 1.7, section 2.4. 28 Ibid., section 2.4.6. 29 Exhibit RPD-1, RPD's Record, pp. 292-304. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-17199