TB9-17097

RAD File / Dossier de la SAR : TB9-17097 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision June 10, 2020 Date de la décision Panel Ron Liberman Tribunal Counsel for the person who is the subject of the appeal Rodney L. Woolf Barrister and Solicitor 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] XXXX XXXX XXXX (Appellant) appeals a decision of the Refugee Protection Division (RPD) dated June 12, 2019, rejecting her claim for refugee protection on the grounds of identity and credibility as it relates to identity. In making my decision, I have considered the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.1 I have concluded, after an exhaustive evaluation of all the evidence before me, that this matter must be returned to the RPD for re-determination because I find the RPD erred in its credibility findings that relate to the issue of whether or not the Appellant has established her identity. I find the Appellant is a citizen of Somalia, but am unable to make a final determination of her claim specifically with regard to the Appellant's allegation that she was targeted by Al-Shabaab for forced marriage to one of its members, without re-hearing evidence that was presented to the RPD. The Refugee Appeal Division (RAD) therefore refers the matter to the RPD for re-determination by a differently constituted Panel. BACKGROUND [2] The Appellant alleges in her Basis of Claim (BOC) form and her testimony that she is a citizen of Somalia, an orphan, and that she was raised by her uncle. The Appellant completed the Nikah religious ceremony in XXXX 2015, and her husband left for Mogadishu shortly thereafter for employment. The marriage was not consummated, but the couple planned to live together as husband and wife once the husband had earned some money. In XXXX 2016, the Appellant's uncle was approached by Al-Shabaab, who wanted her to marry another man. Her uncle refused, explaining that the Appellant was already married. The uncle arranged for the Appellant to escape from Somalia. The Appellant arrived in XXXX in XXXX 2016. She was detained at the border for XXXX months. After her release, she learned that her uncle had been killed by Al-Shabaab. She went to Uganda and remained there until she travelled to XXXX in XXXX 2018. In XXXX 2018, the Appellant traveled to Canada on a fraudulent XXXX passport and claimed refugee protection upon arrival. ROLE OF THE RAD [3] After conducting an independent assessment of the evidence before me, I have applied the correctness standard to review the decision of the RPD.2 RPD FINDINGS [4] The RPD found the Appellant had not met the burden, on a balance of probabilities, of establishing either her personal identity or her identity as a Somali citizen. The RPD found various credibility issues with the Appellant's testimony, and gave little weight to the affidavit of a witness and to a letter of support. APPELLANT'S ARGUMENTS [5] Counsel for the Appellant argued on appeal that new evidence, in the form of the Appellant's passport, established her identity, and that the RPD's credibility findings were flawed, that the RPD erred by ascribing a too-high level of sophistication to the Appellant, and by dismissing the testimony of the Appellant's witness. Counsel also asserts in his Memorandum that the Appellant is at risk on return to Somalia because she is a member of the minority Sheikal clan and has no family support. NEW EVIDENCE [6] Counsel has requested new evidence to be admitted, in the form of an affidavit with accompanying identity documents from a permanent resident of Canada who claims to know the Appellant. To decide whether to do so, I must consider section 110(4) of the Immigration and Refugee Protection Act (IRPA)3 to determine whether this is evidence that arose after the rejection of the claim, or was not reasonably available when the claim was rejected, or is it evidence which the Appellants could not reasonably have been expected to present prior to the RPD decision. If I find that the evidence meets the test in section 110(4), in order to admit it, I must also determine that the evidence meets the factors of credibility, relevance and newness as explained in Raza and modified in Singh.4 [7] Counsel states in his Memorandum that this evidence was not available at the time of the RPD hearing because the affiant was out of the country until after the hearing. After examining the stamps in the Appellant's travel document, I agree that the Appellant could not reasonably have been expected to provide this evidence prior to the hearing, because it appears he was out of the country between XXXX XXXX, 2019 and XXXX XXXX, 2019, and based on his affidavit he only met the Appellant for the first time after his return. Consequently, I find the requirements of section 110(4) of the IRPA are met. I also find this document is from credible sources; being an affidavit sworn in Canada and copies of pages from a travel document issued by government authorities, that it is relevant to this matter because it relates directly to the issue of the Appellant's identity, and that it adds new information to the appeal. Accordingly, I admit it. ORAL HEARING [8] I note that the Appellant has not requested an oral hearing in the circumstance where I have admitted the new evidence. Under section 110(6) of IRPA,5 the RAD may decide to hold an oral hearing if new evidence has been admitted that (a) raises a serious question with respect to the credibility of a person who is the subject of the appeal, (b) that is central to the decision with respect to the refugee protection claim and, (c) that, if accepted, would justify allowing or rejecting the refugee claim. [9] I find that the conditions in section 110(6)(a) and section 110(6)(b) of the IRPA are met in this case, but that the new evidence, if accepted, would not justify allowing or rejecting the refugee claim, because the evidence relates only to the identity of the Appellant. In order to establish a valid claim, she would also need to show she faces a serious possibility of persecution by Al-Shabaab as provided for by section 96 of IRPA,6 or alternatively on the basis that she is at risk under section 97(1) of IRPA.7 [10] Accordingly, the RAD has decided not to hold an oral hearing in this instance. ANALYSIS Is the Appellant a citizen of Somalia? [11] The RPD made various credibility findings related to the identity of the Appellant and her personal identity as a married woman, and I deal with these issues below. [12] The RPD considered the testimony from a Canadian citizen, Mr. XXXX XXXX XXXX, and found that although the witness testified he knew the Appellant's father, he did not know her personally because he had left Somalia before the Appellant was born, and that it was unlikely that the Appellant had located Mr. XXXX by asking questions of an employee at a restaurant in Canada. Counsel responds that Mr. XXXX is an Imam, and that therefore there is "nothing remarkable"8 about the Appellant enquiring after him at a restauarant and finding him. Furthermore, Counsel submits that because Mr. XXXX knew the Appellant's family well, and therefore Mr. XXXX "could clearly determine whether the Appellant is who she claims to be."9 [13] The RPD also found the letter from XXXX XXXX XXXX (XXXX) is insufficient to establish that the Appellant is a citizen of Somalia. The Appellant has not challenged this finding. [14] I find the testimony from Mr. XXXX to be credible. Although the RPD found it implausible that the Appellant located Mr. XXXX by asking questions at a restaurant, the finding is not made in the clearest of cases, because there is evidence that this witness is an Imam and could reasonably be thought to be well-known in the Somali community. Although Mr. XXXX testified he only knew the Appellant's family and he did not know her personally prior to her coming to Canada, I give his testimony some weight. [15] I also find XXXX made reasonable efforts to confirm that the Appellant is from Somalia. Although I note the RPD pointed out that the author of the letter from XXXX also did not know the Appellant prior to her coming to Canada, and did not take other measure (such as interviewing her relatives) to establish the Appellant's identity, she was interviewed extensively, was found to be able to speak Somali fluently, had knowledge pertaining to Somalia and the area where she lived, and was able to identify her clan. I give the letter from XXXX some weight. [16] I find the new evidence that has been admitted, in the form of an affidavit sworn in Canada by XXXX XXXX, who states his aunt was a neighbour of the Appellant, and that he met her several times in Somalia, and who confirms she is a citizen of Somalia, is credible on the face of it. Although I have not had the opportunity to examine this witness, and his affidavit does not state the basis on which he concluded that the Appellant has Somali nationality, I give his affidavit some weight. [17] The RPD considered that, in the context of a long-standing civil war in Somalia and the absence of a centralized government, it was acceptable for the Appellant not to produce government-issued documntation, but that the onus was on the Appellant to provide "other reliable and credible evidence of her identity". I agree. [18] I find that, collectively, the evidence I have identified is sufficient to establish the identity of the Appellant as a citizen of Somalia. [19] Counsel, in paragraph 7 of the Memorandum, puts forward an alternate basis for the Appellant being at risk in Somalia, namely that she is a member of the minority Sheikal clan. This is the first time the Appellant has raised this ground for protection. It is not appropriate for an Appellant to raise a new issue which is not a sur place claim before the RAD, as an appeal before the RAD is not de novo. There, is also insufficient evidence before me to conclude that Appellant is a member of the clan concerned, or that if she is that she would be at risk in Somalia. I am therefore unable to allow her claim on this basis. Was the Appellant threatened with forced marriage? [20] The RPD found the Appellant was not credible as to her marriage because, although she corrected herself, she twice stated an incorrect date for her marriage, being XXXX XXXX, 2015, rather than XXXX XXXX, 2015. Counsel has submitted that the RPD assumed too high a level of sophistication on the part of the Appellant, and that the objective evidence points to cultural differences in Somali culture relating to time and the management of time, and that both the Islamic and the Gregorian calendar are used. [21] On examining the section of the National Documentation Package (NDP) referenced by Counsel,10 I find the cultural differences recounted relate mostly to a person's date of birth. However, I do agree that both Islamic and Gregorian calendars are in use in Somalia. [22] This finding of the RPD (that the Appellant is not married because she twice gave an incorrect month when testifying as to the date of her marriage) was described by Counsel as amounting to applying Western cultural standards. The inconsistency can reasonably, in my view, be explained by temporary confusion resulting from the use of two differing calendar systems in Somalia. I also note the Appellant on one occasion in her testimony gave a date of marriage that is consistent with her documentary evidence in the RPD Record, namely XXXX XXXX, 2015. For these reasons, I do not count the Appellant's conflicting answers against the credibility of her testimony that she is in fact married. I note, however, there is evidence that the Appellant has not been in consistent contact with her husband and that she has not consummated her marriage. There is no evidence before me as to whether the mariage is likely to be consummated if she were returned to Somalia. If the marriage were to be consummated, then it seems reasonable that Al-Shabaab may regard her status as a married woman differently, and desist in trying to force her into marriage with another man. [23] In consequence, I find there is insufficient evidence before me to make a determination as to whether there is a serious possibility the Appellant will be forced by Al-Shabaab, on her return to Somalia, into a different marriage that is not of her choosing, or whether there is a serious possibility that she will be faced with threats on her return because Al-Shabaab is likely to perceive her as having disobeyed them. [24] Since I have found the RPD's credibility findings in relation to this issue were in error, and because there is insufficient evidence before me to make a determination on these issues, this matter must be returned to the RPD for re-determination by a differently constituted Panel. CONCLUSION [25] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act, the RAD allows the appeal and refers the matter to the RPD for re-determination by a differently constituted Panel. (signed) "Ron Liberman" Ron Liberman June 10, 2020 Date 1 Immigration and Refugee Board of Canada, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act: Guideline 4 - Women Refugee Claimants Fearing Gender-Related Persecution, Effective date: 13 November 1996. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, s. 110(4). 4 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 5 IRPA, section 110(6). 6 IRPA, section 96. 7 IRPA, section 97(1). 8 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 32. 9 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at para. 33. 10 National Documentation Package for Somalia (April 30, 2019), item 3.2: Documents in Somalia and Sudan, Norway. Norwegian Country of Origin Information Centre, Landinfo., 5 January 2009, at para. 2.2. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-17097 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français