TB6-09873

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 : TB6-09873 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 November 16, 2016 Date de la décision Panel Pasquale Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A Kaminker 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] The Appellant, XXXX XXXX XXXX, is a citizen of Somalia and appeals a decision of the Refugee Protection Division (RPD) dated June 30, 2016 rejecting his claim for refugee protection. The Appellant is not submitting new evidence and is not requesting an oral hearing. The Appellant is requesting that the Refugee Appeal Divison (RAD) set aside the decision of the RPD and refer the matter back to the RPD, or that the RAD substitute a determination that the Appellant is a Convention refugee or a person in need of protection. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant has failed to establish his identity as a Somalia citizen and is not a Convention refugee nor a person in need of protection. Background [3] The Appellant fears returning to Somalia on account of clan rivalry. He alleges that he belongs to the XXXX clan and was attacked by the Hawiye clan, who allegedly also killed his brother. The Appellant fled Somalia in 2005 and arrived in South Africa in 2006. He alleges that he was accepted as a refugee claimant in South Africa. However, the Appellant alleges that his status was temporary. He left South Africa in 2015. ROLE OF THE RAD [4] The RAD finds that 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. The Court stated at paragraphs 103 and 106: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [106] In light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD's findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. [5] Accordingly, the RAD will conduct its own analysis of the Record to determine if the RPD erred. ANALYSIS ON THE MERITS OF THE APPEAL [6] The RPD concluded that the Appellant had failed to establish his identity as a citizen of Somalia. The Appellant argues that the RPD erred in its assessment of the Appellant's identity. Identity [7] In assessing the authenticity of the claimant's documents, the panel is guided by the Federal Court decision in Sertkaya,2 which asserts that it is open for the Board to consider the authenticity of documentary evidence, and the ability of the claimant to obtain and use fraudulent documents. [8] The panel is further guided by the Federal Court decision in Kazadi,3 which states that if there are significant irregularities on the face of the claimant's key identity documents, the Board is not obliged to seek an expert assessment of those documents before determining their probative value. The panel is also mindful of the Federal Court decision in Rasheed,4 which asserts that the basic rule in Canadian law is that foreign documents (whether they establish the identity or not of a claimant) purporting to be issued by a competent foreign public official should be accepted as evidence of their contents unless the Board has some valid reason to doubt their authenticity. [9] In the analysis of the issue of the claimant's identity, the panel is guided by section 106 of the IRPA which states: 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. [10] Section 106 of the Immigration and Refugee Protection Act imposes a duty on the claimant to provide acceptable documents establishing the claimant's identity, including documents the claimant does not possess but can reasonably obtain. In assessing the claimant's credibility, the Board must consider the lack of such documents and any reasonable explanation given for not providing them, as well as the steps taken to obtain them. Documents that are not genuine, that have been altered, or that are otherwise improper are generally not acceptable proof of identity. [11] Furthermore, Rule 11 of the Refugee Protection Division Rules5 states: The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. [12] The RAD is cognizant of the fact that the Appellant is a Somalian citizen and that the Board's own documentation does indicate that citizens of that country have a difficult time in obtaining government documents due to the lack of a secure government.6 [13] The RPD concluded that the documentation submitted by the Appellant did not establish his identity. In particular the RPD did not find the following trustworthy: a) a South African temporary permit, b) a letter from the Somali Association XXXX XXXX XXXX XXXX XXXX XXXX c) a letter written by XXXX XXXX in support of the Appellant's identity, d) letter from XXXX Community Services e) the letter from the Appellant's currant wife, f) the testimony of XXXX XXXX XXXX. [14] The RPD also made a credibility finding with respect to the fact that the Appellant had failed to produce his: a) children's birth certificates b) marriage and divorce documents from South Africa South African temporary permit [15] The Appellant submitted to the RPD a copy of a South African temporary permit which he was required to renew every three months. The RPD rejected this document on three grounds: a) the Appellant's explanation with respect to where the original of the permit was located b) the fact that the Appellant had alleged that he had been accepted as a refugee in South Africa c) internal inconsistencies of the document The original copy of the permit [16] The Appellant testified that he only had a copy of the permit which he had left with a friend in South Africa. The document which he presented to the RPD was a copy of the copy in South Africa. When asked by the RPD as to why he did not have the original permit, the Appellant stated that the original permit, along with other documents, had been stolen when his store in South Africa was burned by racist individuals. In his oral testimony he stated that after being threatened by racist individuals, he had fled the store, and contents were later stolen and the store was burned down. [17] The RPD rejected this explanation provided by the Appellant because, although he had mentioned that he had been threatened by racist individuals, he had failed to mention in his Basis of Claim (BOC) that he had fled the store, that the contents of the store had been stolen, and that the store had been burned. The Appellant submits that the Appellant's story as to the threats and burning of the store by racists individuals is consistent with the documentary evidence.7 [18] The RAD cannot accept this submission. The issue for the RAD is whether the Appellant mentioned these facts in his BOC. Although the Appellant does mention in his BOC that racist individuals had threatened to burn his store, he does not mention that they had actually carried out the threat and that he had lost all of his documents. It is reasonable to expect that the Appellant, after mentioning the threat, would also have provided details of the fact that the threat had been carried out. [19] The new information in his oral testimony amounts to omissions regarding significant aspects that go directly to the heart of the Appellant's claim.8 It is reasonable to expect the Appellant to have remembered these facts when writing his narrative in the BOC. As the Federal Court has stated: ... the contradictions in the applicant's evidence were not peripheral, but were directed to important aspects of the applicant's narrative. It is common and completely proper for the Board to compare a claimant's evidence from the Port of Entry, PIF, and oral testimony.9 [20] The RAD finds that the Appellant's store in South Africa was not burned and that he did not lose his documents. The Board has been upheld when rejecting major evidence which has been omitted from the BOC.10 The Appellant alleged that he had been accepted as a refugee in South Africa [21] In his Port of Entry (POE) notes and in BOC the Appellant had stated that he had been granted refugee status in South Africa. The document presented to the RPD indicates that the Appellant made a refugee claim. When presented by the RPD with this discrepancy, the Appellant replied that he did not understand the document as it was in English. The RPD rejected this explanation. [22] The Appellant submits that the document was issued to the Appellant pursuant to s. 22 of the South African Refugee Act which states that, upon making an application, a permit will be issued allowing the applicant to remain in South Africa. Therefore, the RAD should accept the explanation of the Appellant as being accepted to remain in South Africa pending the outcome of his refugee claim.11 [23] The RAD cannot accept this submission. The Appellant stated in his written testimony that he had been accepted as a refugee claimant which contradicts the document in question since it states that the Appellant had filed a refugee claim. There is a difference between remaining in South Africa because one has been granted refugee status and remaining in South Africa because one's refugee claim is pending. The RAD agrees with the RPD in not accepting the explanation provided by the Appellant. [24] What is more troubling to the RAD is the internal inconsistencies of the documents. The RPD pointed out to the Appellant that the document does not indicate his address in South Africa. The Appellant replied that he had not paid any attention to the document. The RPD rejected this explanation. [25] The Appellant did not challenge this particular credibility finding of the RPD. The RAD notes that it is reasonable to expect that, an official government document, issued by an authorized government department, would indicate material information such as the address of the Appellant. As the Appellant himself has submitted, the document had to be periodically renewed.12 It is reasonable to expect that the Appellant would have noticed the missing address from the document and notified the authorities of the omission. All that the Appellant could say was that he did not pay attention to the document. In his submissions he did not provide any explanation as to why his address was missing from the document. The RAD agrees with the RPD in rejecting the Appellant's explanation. [26] Given all of the credibility concerns outlined above, the RAD gives no evidentiary weight to the permit from South Africa. Letter from the Somali Association XXXX XXXX XXXX XXXX XXXX XXXX [27] The Appellant submitted to the RPD a letter from XXXX authored by a MrXXXX XXXX XXXX XXXX XXXX XXXX. The RPD asked the Appellant who Mr. XXXX was and he replied that he had no knowledge of who Mr. XXXX was. However, later in his oral testimony, the Appellant stated that in fact he had gotten to know Mr. XXXX when the Appellant had attended at the offices of XXXX. The RPD asked the Appellant why he had not provided that answer when first asked if he knew Mr. XXXX and he replied that he thought the RPD member was asking about someone in Canada. The RPD rejected this explanation. [28] The Appellant submits that the explanation provided by the Appellant is perfectly reasonable. The RAD cannot agree with this submission. The RAD has had an opportunity to listen to the recording of the RPD hearing. The RPD asked the Appellant on several occasions if he had contact with Somali Associations in Canada or outside of Canada. For nearly five minutes of the recording, the Appellant insisted that he had attended just at two different Somali associations in Canada (recording 1:00-1:04), In fact the RPD asked the Appellant if he had contacted any Somali Association outside of Canada and he replied that he had not (recording 1:05:40). The RPD then asked the Appellant as to how the letter from XXXX had come into his possession and he replied that he thought that the RPD had asked him if he had contacted any Canadian Somali associations. However, the recording of the RPD is clear that the RPD member asked the Appellant on numerous occasions if he had contacted any Somali associations outside of Canada and he always replied that he had contacted only Somali associations in Canada. The RAD cannot accept the submission of the Appellant that his explanation is reasonable. Given this credibility concern, the RAD gives little evidentiary weight to the letter of support from XXXX. Letter written by XXXX XXXX and the letter from XXXX Community Services [29] The RPD found that these letters had been provided in good faith. However, the RPD rejected these letters because the authors of both letters reached the conclusion that the Appellant is a native of Somalia on the information provided by the Appellant himself. The RPD made its credibility findings based on the testimony of the Appellant and the internal content of the letters. The Appellant does not challenge the credibility finding of the RPD with respect to these two letters. There is no explanation provided by the Appellant to the RAD as to why the RPD erred in its conclusion. The RAD therefore agrees with the RPD in giving these letters no probative value. Letter Appellant's current wife [30] The Appellant submitted a letter to the RPD allegedly written by his current wife.13 The letter explains that the Appellant's current wife and children had been threatened to being burned alive and were forced to flee South Africa in 2015. The RPD pointed out to the Appellant that in his oral testimony he had stated that his current wife had been assaulted in front of his store while he was still leaving in South Africa. The RPD pointed out to the Appellant that he had not mentioned that his wife had also been threatened with being burned. He replied that he was concentrating on his own story. The RPD rejected this explanation and gave the letter no probative value. The Appellant submits that since South Africa was not a country of reference in his claim, there was no need for him to describe these events. [31] The question for the RAD is not whether the Appellant's wife confirms the incidents of assault in South Africa but whether she can confirm his identity as a Somali citizen. The RAD has read the Appellant's wife's letter and there is no information in that document which would assist the RAD in determining the identity of the Appellant as a Somali citizen. The RAD therefore gives that document no evidentiary weight. Letter from the Appellant's mother [32] The RPD concluded that the letter from the mother was not sufficient to support the Appellant's identity as a citizen of Somalia. The Appellant does not challenge this finding of the RPD but submits that, given the many errors of the RPD, the RAD should accept this document. The RAD cannot accept this submission. The document in question provides no information, such as place of birth, which would assist the RAD in determining that the Appellant is a citizen of Somalia. It is reasonable to accept that a mother would remember where her son was born. The RAD agrees with the RPD in giving this document little evidentiary weight. Identity Witness Mr. XXXX [33] The Appellant produced at the RPD as a witness to his identity Mr. XXXX XXXX XXXX XXXX XXXX XXXX The RPD questioned both the Appellant and XXXX and concluded that XXXX was not a credible witness. The RPD reached its credibility finding as a result of the discrepancies between the oral testimony of the Appellant and oral testimony of XXXX with respect to: a) XXXX clan membership, b) XXXX attendance at the XXXX mosque, c) XXXX wife and children, d) XXXX employment in Canada, e) their meetings in Somalia in 2005 XXXX clan membership [34] The Appellant stated that he and XXXX had known each other in Somalia and that in XXXX of 2016, they happened to meet at the XXXX mosque in Toronto. XXXX testified at the RPD that he belongs to the XXXX clan and that his sub-clan is the XXXX. When the Appellant was asked what clan was XXXX belonged to, he stated that it was the XXXX clan, but then changed his answer and said that XXXX actually belongs to the XXXX clan and that his sub clan is XXXX. The RPD pointed out to the Appellant the inconsistency between his testimony and that of XXXX with respect to XXXX clan membership and then the Appellant changed his answer again and stated that XXXX belongs to the XXXX clan and his sub clan is XXXX. The RPD rejected the Appellant's explanation on the grounds that he was simply repeating the answer given by XXXX and, in fact, the Appellant had not provided an explanation for his discrepancy. [35] The RAD agrees with the RPD's conclusion. Given the importance that clan membership has in Somali culture, it is reasonable to expect that the Appellant would have remembered the clan membership of the XXXX, someone with whom he alleges to have had a close friendship. The fact that the Appellant provided inaccurate information as to XXXX clan membership and that he changed his answers several times is indicative to the RAD that the Appellant was not aware of XXXX clan membership. XXXX wife and children and his employment in Canada [36] The Appellant testified that he was not sure where XXXX wife and children were living and that XXXX is employed in Canada but is not sure of where he is working. XXXX testified that his wife and children are in Somalia and that he has not worked in Canada and that he is a student. The RPD put this discrepancy to the Appellant and he replied that he just assumed that XXXX was working. The RPD did not accept this explanation. [37] The RAD had an opportunity to listen to the recording of the RPD session. The RAD notes that XXXX testified that, after he and the Appellant met at the Mosque, they stayed in touch by visiting each other, by telephone and by text messages. It is reasonable to expect that two individuals, who were friends before coming to Canada and who allegedly have not seen each other for over ten years, as part of their "catching up", would provide information with respect to their families and their work experience. It is reasonable, in this case, that XXXX would have informed the Appellant, a friend whom he had not seen in over ten years, of how many children he now had, where the children and his wife were living, and whether he was working in Canada. It is also reasonable to expect that the Appellant would have remembered this information when he provided his testimony to the RPD. The RAD does acknowledge that this particular information is not vital to the identity of the Appellant, the Appellant's inability to provide a reasonable explanation as to these discrepancies does affect his overall credibility. Their meetings in Somalia in 2005 [38] Both the Appellant and XXXX testified that they had last seen each other in 2005 in Somalia. However XXXX stated that, the last time they had met, he had finished school the previous year, in 2004, and had not yet begun to work. He did find employment in 2006 as a teacher. The Appellant however testified that XXXX would visit him in 2005 on Thursdays and Fridays, the days that he was off from school, thus indicating that XXXX was still a student. The RPD put this discrepancy to the Appellant and he replied that he remembered the witness as a student. The RPD rejected this explanation. The RAD accepts the conclusion reached by the RPD. If it is true that the Appellant and XXXX would meet on a regular basis in 2005, it is reasonable to expect that the Appellant would have remembered that XXXX was not a student at that time and that he was not employed. [39] The Appellant does not challenge the above credibility findings of the RPD. In his submissions the Appellant does not provide any reason as to why the RAD should accept the explanations given by the Appellant in his attempt to explain the discrepancies between his testimony and that of XXXX. The Appellant submits that the RAD should accept the testimony of XXXX given that the Appellant and XXXX did provide consistent information.14 The RAD cannot accept this submission. The question for the RAD is whether the Appellant and XXXX knew each other before coming to Canada, as they both allege. The discrepancies in their testimonies with respect to XXXX clan membership and whether XXXX was a student in 2005 go the heart of this issue. The RAD would have expected that the Appellant, given his allegation that he and XXXX were close friends and have known each other since at least 2005, would have remembered whether XXXX was a student or was employed in 2005 and would also have had no difficulty in remembering XXXX clan membership. [40] Given all of the credibility concerns outlined above, the RAD agrees with the RPD that the testimony of XXXX is not reliable. [41] Given all of the credibility concerns with respect to the documentation provided by the Appellant in support of his identity, and the testimony of XXXX, the RAD will not deal with any other argument in this appeal. CONCLUSION [42] The RAD finds that the Appellant has failed to provide sufficient reliable documents and credible evidence to establish his identity as required by section 106 of the IRPA and Rule 11 of the Refugee Protection Division Rules.15 The burden of establishing identity must be satisfied before the RAD considers the merits of the claim, and whether the Appellant face a serious possibility of being persecuted or is a person in need of protection. The RAD finds on the basis of the totality of the oral and documentary evidence, that the Appellant has not established his identity. DECISION [43] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the determination of the Refugee Protection Division that the Appellant has failed to establish his identity as a Somalia citizen and is not a Convention refugee nor a person in need of protection. [44] The Appeal is dismissed. (signed) "Pasquale Fiorino" Pasquale Fiorino November 16, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Sertkaya, Ismail v. M.C.I. (F.C., no. IMM-9058-03), Layden-Stevenson, May 21, 2004, 2004 FC 734. 3 Kabunda Kazadi, Christian v. M.C.I. (F.C., no. IMM-4740-04), De Montigny, February 24, 2005, 2005 FC 292. 4 Rasheed, Sohail v. M.C.I. (F.C., no. IMM-1956-03), Martineau, April 21, 2004, 2004 FC 587. 5 Refugee Protection Division (RPD) Rules, SOR/2002-228, Rule 11. 6 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Somalia (July 17, 2015), item 3.2. 7 Exhibit P-2, Appellant's Record, at p. 104. 8 Kroka, Miroslav v. M.C.I. (F.C., no. IMM-6199-11), Boivin, June 11, 2012, 2012 FC 728, at para.17. 9 Napolean vs. M.C.I. 2011 FC 822, at para. 30. 10 Gebetas, Ergun v. M.C.I. (F.C., no. IMM-11313-12), Shore, December 10, 2013, 2013 FC 1241; Jin, Hai Long v. M.C.I. (F.C., no. IMM-6988-11), Pinard, May 24, 2012, 2012 FC 595; Wei, Kai Bin v. M.C.I. (F.C., no. IMM-8613-11), Russell, July 19, 2012, 2012 FC 911. 11 Exhibit P-2, Appellant's Record, at p. 103. 12 Exhibit P-2, Appellant's Record, at p. 104, para. 14. 13 Exhibit P-2, Appellant's Record, at p. 85. 14 Exhibit P-2, Appellant's Record, at pp. 110-111. 15 Refugee Protection Division (RPD) Rules, SOR/2002-22, Rule 11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-09873