TB8-21354

RAD File / Dossier de la SAR : TB8-21354 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 Toronto, ON Appel instruit / entendu à Date of decision November 23, 2020 Date de la décision Panel Cheryl Braden Tribunal Counsel for the person who is the subject of the appeal David Matas 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] I dismiss this appeal. [2] XXXX XXXX XXXX (Appellant) alleges to be a citizen of Somalia. He alleges that he was born in Afmadow, Somalia and lived there all his life until XXXX 2014. [3] The Appellant alleges that he was threatened in Somalia by Al-Shabaab due to his employment with a company that was associated with the government. He further alleges that Al-Shabaab threatened his father due to his father's position as a clan chief in Afmadow and made threats to his eldest brother due to his employment as a XXXX XXXX. [4] It is alleged that in June 2014, Al-Shabaab shot and killed the Appellant's father and brother, and as a result the Appellant fled to Kenya while his wife, mother and siblings fled separately to unknown locations. The Appellant alleges that he remained in Kenya for approximately eight months and then proceeded to South Africa. He alleges that after several months in South Africa, he flew to Brazil and then proceeded by land through Central America and Mexico to the United States (US). [5] The Appellant arrived in the US on XXXX XXXX XXXX 2015 and made a claim for asylum. He was initially detained by US authorities and then released on XXXX XXXX XXXX 2015 while his claim was pending. On XXXX XXXX, 2017, with his US asylum claim still pending, he made his way to Canada and made a claim for refugee protection in Canada. His claim was heard before the Refugee Protection Division (RPD) on April 3, 2018 and May 2, 2018. In reasons dated June 28, 2018, the RPD rejected his claim on the grounds that he was not credible and had failed to establish his identity. DECISION [6] The appeal is dismissed. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS [7] In order to establish his identity, the Appellant provided identity documents that were issued to him in the US and a letter from a Somali community organization in Canada, and also sought to rely on his own testimony and the corroborative evidence of witnesses. While the RPD accepted that officially issued identity documents from Somalia are difficult to impossible to obtain, the panel found that the evidence provided was insufficient to establish the Appellant's identity on a balance of probabilities. [8] The RPD found that the Appellant gave contradictory, inconsistent and evolving testimony in a number of areas which undermined his credibility overall. The panel also found that the Appellant's testimony that his family in Somalia are currently hiding from Al-Shabaab in rural areas outside of Afmadow was not credible as it is inconsistent with objective evidence indicating that Al-Shabaab is in control of those rural areas but does not have control of Afmadow town. [9] The RPD also found that the testimony of the Appellant's witnesses contained material inconsistencies and was therefore not reliable for the purpose of establishing the Appellant's identity. Finally, the panel found that the US identity documents and letter from a Somali community organization in Canada are insufficient to establish his identity in view of the broad credibility issues identified with the Appellant. [10] The Appellant argues on appeal that the RPD erred by basing its credibility determination on irrelevant considerations, engaging in a microscopic examination of the evidence, and failing to apply the presumption of credibility. The Appellant further argues that the RPD failed to adequately consider issues arising from interpretation and technological issues at the hearing, as well as the Appellant's difficulties remembering what happened in childhood due to the passage of time. [11] I do not find the Appellant's arguments to be persuasive. Having reviewed the record, transcripts and arguments carefully, I agree with the RPD that the Appellant is not a credible witness. He was unable to consistently testify about his personal history, his family, and events central to his allegations, and he was unable to explain the significant inconsistencies in his testimony which casts doubt over his claim to be from Afmadow, Somalia, and undermines his credibility overall. [12] I also agree with the RPD that the evidence given by both witnesses had significant inconsistencies that render it unreliable and insufficient to establish the Appellant's identity, and that the US identity documents and letter from the Somali community organization are insufficient to establish his identity in light of the credibility issues identified. [13] For those reasons, I find that the Appellant has not established his identity on a balance of probabilities, which is determinative of his claim for refugee protection. The RPD correctly found that the Appellant's testimony about his schooling in Somalia was inconsistent [14] The RPD found that the Appellant provided inconsistent evidence with respect to matters that go to the heart of his claim, including his alleged personal history and family history which are highly relevant to the establishment of his identity. [15] With respect to his educational background, the Appellant declared in his Canadian immigration application that he attended 12 years of school at XXXXPrimary/Secondary School in Kismayo, Somalia1. Kismayo is approximately 150 kilometres from the Appellant's alleged hometown of Afmadow2. [16] At the first sitting of the RPD hearing, the Appellant was asked how often he had gone to Kismayo and he initially said he never went to Kismayo at all. When the panel pointed out that he declared in his application that he had attended school in Kismayo, he amended his answer to say that he did go to school in Kismayo, for six years at XXXX XXXX XXXX. However, he was unable to explain how far Kismayo is from Afmadow, how he got to school, or whether or not he travelled to school daily or stayed overnight in Kismayo. Further, when the panel pointed out that he declared his school in his application as the XXXX School, he agreed that XXXX was the correct name but could not explain why he initially testified that it was XXXX XXXX School3. [17] The RPD further pointed out that the Appellant had declared in his US application that he only attended 5 years of schooling in total, at XXXX XXXX XXXX in Afmadow. The Appellant explained that he had been very tired when he arrived at the US border4. However, as pointed out by the RPD, the form is dated November 17, 2015, approximately four months after he arrived in the US. The Appellant then testified that he could not remember. [18] Finally, at the second sitting of the RPD hearing approximately a month later, during examination by his counsel, the Appellant testified that he had only gone to Kismayo once5. The panel questioned him about this statement6, pointing out that it was not consistent with his previous testimony, and he responded by confirming that he had only gone to Kismayo once, to see whether he could go to school there, but had been unable to register. The Appellant did not offer an explanation for his evolving testimony and simply confirmed that he had only studied in Afmadow and not in Kismayo. [19] The RPD drew an adverse credibility inference, finding that the Appellant's inability to consistently testify about straightforward facts about his education demonstrated a lack of credibility regarding his alleged personal history and whether he had actually lived in Afmadow or in Somalia. [20] The Appellant argues on appeal that the issue of the Appellant's schooling is not relevant to the claim and thus is an improper foundation for an adverse credibility determination. I disagree. The Appellant's inability to consistently testify about his own personal history is relevant to his credibility and to the establishment of his identity through credible testimony in the absence of identity documents or other reliable independent corroborative evidence. He has not reasonably explained why his testimony about his schooling in Somalia was evolving and inconsistent with his statements in his Canadian and US immigration history forms. [21] The Appellant further argues that the RPD erred by failing to consider whether interpretation could explain the inconsistencies with the Appellant's testimony. I find that the RPD did consider this issue, and I agree with and adopt its analysis and findings in this regard7. Having reviewed the transcripts from both RPD sittings, I further note that the Appellant confirmed at the outset of each of the RPD sittings that he understood the interpreters8 and did not raise any concerns to the RPD with respect to the quality of interpretation during the hearing. [22] The Appellant did testify at the first RPD sitting that the reason the information in the US forms about his schooling was different from his testimony is because he could not fully understand the interpreter provided by the US officials. However, he also confirmed to the RPD that the rest of the information in those forms was accurate9. Those forms contain a significant amount of detailed information, and since the interpreter was able to accurately translate the majority of the Appellant's personal background and allegations, I do not find it plausible that the discrepancy in the evidence of the Appellant's school history as to whether he attended school in Afmadow or Kismayo was caused by the US interpreter. Moreover, the Appellant subsequently changed his testimony at the second RPD sitting to say that he only attended school in Afmadow10, which is then consistent with the information in the US forms, but inconsistent with his previous testimony and his statements in his Canadian forms. [23] The Appellant also argues that the RPD erred by failing to consider the issue of potential distortion of communication due to the interpreter being present in a different location than the Appellant during the hearing. The RPD member and interpreter were located in Vancouver, connected to the Appellant and his counsel in Winnipeg via videoconference. However, the Appellant has failed to point to any specific errors or portions of the recording which are distorted, only citing one example of the interpreter speaking quietly such that the Appellant asked the interpreter to speak more loudly11. I have listened to the portion of the audio recording cited by the Appellant and it is clear and of good quality, and I do not find evidence of distortion of communication during the hearing. Moreover, I note that while the Appellant was represented by counsel before the RPD, who was present in the same location as the Appellant, no concerns were raised about the quality of the connection or their ability to hear or understand the proceedings. Thus, I do not find that this argument has merit. [24] Finally, the Appellant argues that the RPD erred by failing to consider the effect of the passage of time on the Appellant's memory in questioning him about events that occurred decades before the claim. I disagree. The RPD correctly found that details such as what city the Appellant went to school in, whether he went to day school or stayed overnight, and the name of the school and the number of years that he attended are straightforward facts about his personal history that should be easy for him to consistently recall and recount. Moreover, the Appellant was approximately 28 years old at the time of the RPD hearing and alleged to have attended school until he was 20 years old, so these are not events that occurred decades ago. I do not find that the passage of time is a reasonable explanation for his inconsistent and evolving evidence in this area. [25] I find that the Appellant's evolving and inconsistent evidence with respect to his alleged educational and personal history in Somalia undermines his credibility, both generally as well as specifically with respect to his alleged personal history of living in Somalia, and I draw an adverse inference on that basis. The RPD correctly found that the Appellant's testimony about his family contained unexplained inconsistencies [26] The RPD also found that the Appellant's evidence about his family involved contradictions and inconsistencies. The Appellant initially testified that his eldest brother XXXX, who was alleged to have been killed by Al-Shabaab, was a full brother. When the panel pointed out that XXXX was only a few years younger than the Appellant's mother, he changed his answer and said that XXXX was a half-brother from his father's side. [27] The Appellant argues that the RPD erred in finding the Appellant's testimony to be inconsistent as it is not clear from the transcript that the Appellant understood the question posed by the RPD and understood the meaning of "full" siblings. [28] I do not find this argument to be persuasive. The transcript reflects the exchange as follows12: MEMBER: Okay. So how many brothers and sisters do you have? CLAIMANT: Three brothers and two sisters. MEMBER: How many are older than you and how many younger? CLAIMANT: Two brothers older than me; one brother is younger than me. MEMBER: And you said two sisters? CLAIMANT: Two sisters, yeah, younger than me. MEMBER: And who - who's - are they all full brothers and sisters, or are some - do some have one parent different? CLAIMANT: Full brother and sisters, full. [29] I do not find that the RPD erred in finding that the Appellant's testimony was inconsistent about whether XXXX was a half-brother. I find that the question posed to the Appellant was clear and provided enough information for him to understand the meaning of full brothers and sisters. When he subsequently changed his answer to say that XXXX is a half-brother, his explanation was not that he did not understand the panel's question or the meaning of the term "full", rather he said it was because he had had a lot of questions13. [30] Moreover, this was not the sole concern with respect to the Appellant's testimony about his family. The RPD also noted numerous other inconsistences and contradictions in his testimony about: a. Whether there are twins in his family, which the Appellant initially denied in testimony until confronted with his declaration in his Basis of Claim form (BOC) of two siblings with the same date of birth14; b. Whether he saw his sister XXXX while he was in the US, which he initially denied and then changed his answer to say he visited her once for a few days, but was unable to explain why he declared his address in his US application as XXXX address in Arizona, while he maintained that he lived only in California and Colorado15; c. The timing and circumstances under which XXXX left Somalia and went to the US, which the Appellant testified that he could not explain because he did not have the chance to ask her, despite his initial testimony that they grew up together in Somalia and lived together until she left16; d. Whether XXXX was in touch with his family while she was in a refugee camp in Kenya, which he said she did by calling the grocery store next door to the family home, while XXXX testified that she did not ever contact the family from Kenya17; e. Whether the Appellant was in touch with XXXX prior to his arrival in the US, which he initially testified he was not, then later testified that he did call her once from Brazil; while XXXX testified that the first time she heard from the Appellant was when he was in detention in the US18; and f. When the Appellant learned about his wife's death, which he testified that he learned about when he spoke to his brother over the phone in September 2015, however he could not explain why his US immigration forms signed in November 2015 indicated that he did not know the whereabouts of his wife19. [31] The RPD found that the Appellant's testimony about these issues contained inconsistencies and contradictions that were not reasonably explained, as described in detail by the panel in its reasons20. The Appellant has not disputed these findings on appeal and following my independent analysis of the findings and the evidence on record, I agree with the RPD's findings and I find that the many unexplained inconsistencies greatly undermine the Appellant's credibility. The RPD did not err in its credibility determination and correctly concluded that the Appellant is not a credible witness [32] The Appellant submits broadly that that RPD erred in finding that the Appellant was not credible by engaging in a microscopic examination of the evidence he gave, in what the Appellant characterizes as the panel's treasure hunt for errors. I reject this submission entirely. I agree with the RPD that there were numerous material inconsistencies in the Appellant's testimony that lead to a conclusion that he is not credible. The RPD did not hunt for errors, rather, the Appellant's evidence was clearly contradictory in a number of areas, and he failed to offer reasonable explanations for his evolving testimony. As aptly put by the RPD21, while the Appellant was able to repeat the basic allegations from his BOC, when he was asked for further details his testimony broke down, and when inconsistencies were pointed out to him, he changed his answers but could not explain why he initially gave different answers. [33] Further, I reject the Appellant's argument that the RPD erred by failing to apply the presumption of credibility to his sworn testimony. The presumption is rebuttable where there are reasons to doubt the truthfulness of the testimony given, and given the lack of consistency of the Appellant's testimony, I find that the presumption was effectively rebutted in this case and I find that the RPD correctly concluded that the Appellant is not a credible witness. [34] While the RPD made additional credibility findings that I have not addressed, I do not find it necessary to review these findings that are not directly related to the Appellant's identity, because even if I found that they are wrong, that finding would not restore the Appellant's credibility or establish his identity. However, it is still necessary to consider whether there is independent corroborative evidence that establishes his identity. The RPD correctly found that the corroborative documents and witnesses' testimony are not sufficient to establish the Appellant's identity [35] The Appellant also sought to rely on the corroborative evidence of two witnesses to establish his identity, as well as US identity documents and a letter from a Somali community organization in Canada22. The RPD found that the testimony of each of the witnesses was unreliable due to material inconsistencies with evidence given by the Appellant, which are outlined in detail in the RPD decision23. The panel further noted that the letter from the Somali community association concludes that the Appellant is a citizen of Somalia based on statements of the Appellant and one of his identity witnesses, who were both found to lack credibility by the RPD, thus the panel found the letter to be unreliable as well. Finally, the RPD gave no weight to the US identity documents since they were issued based on information provided by the Appellant that was not independently verified, and the panel had found the Appellant to be generally lacking in credibility. The Appellant has not disputed these findings. [36] With respect to the letter from the Somali association, I note that the identity witness who appeared before the RPD was XXXX XXXX XXXX24 while the author of the letter indicates that his conclusions are based on interviews with the Appellant and "Mr. XXXX XXXX who is a member of the XXXX XXXX XXXX who knows Mr. XXXX and his family background"25. Thus, it does not appear that it was the same identity witness who appeared before the Somali association and the RPD. Notwithstanding, in the absence of any information about XXXX XXXX or the source or depth of his knowledge of the Appellant, I do not give much weight to the letter which is based in part on his statements, and I conclude that the letter is not sufficient to establish the Appellant's identity. [37] I have reviewed the remaining findings outlined above and I agree with them for the reasons given by the RPD. As such I find that the corroborative evidence provided is insufficient to establish the Appellant's identity, on a balance of probabilities. The Appellant's identity is not established on a balance of probabilities [38] As outlined above, I have found the Appellant generally lacking in credibility and I do not accept his testimony as credible evidence of his identity. I further find that the independent corroborative evidence presented is not sufficient to establish his identity. The Federal Court has confirmed that a refugee claim must be rejected as soon as it is determined that the claimant's identity has not been established26. CONCLUSION [39] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Cheryl Braden Cheryl Braden November 23, 2020 Date 1 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 65. 2 Transcript of April 3, 2018, RPD Hearing, at p. 14; National Documentation Package for Somalia (October 30, 2020), item 1.1: ?Somalia. United Nations. Cartographic Section, December 2011. 3 Transcript of April 3, 2018, RPD Hearing, at pp. 10-14. 4 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 99; Transcript of April 3, 2018, RPD Hearing, at pp. 17-18. 5 Transcript of May 2, 2018, RPD Hearing, at p. 11. 6 Ibid., at pp. 27-29. 7 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 16, para. 30. 8 Transcript of April 3, 2018, RPD Hearing, at p. 2; Transcript of May 2, 2018, RPD Hearing, at p. 1. 9 Transcript of April 3, 2018, RPD Hearing, at pp. 15-17; Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 108-118. 10 Transcript of May 2, 2018, RPD Hearing, at pp. 11, 27-29. 11 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 23, para. 8. 12 Transcript of April 3, 2018, RPD Hearing, at p. 19. 13 Ibid., at p. 20. 14 Ibid., at p. 23. 15 Ibid., at pp. 39-42; Transcript of May 2, 2018, RPD Hearing, at pp. 39-40; Exhibit RPD-1, RPD Record, Exhibit 1, at p. 108; Exhibit RPD-1, RPD Record, Exhibit 1, at p. 136. 16 Transcript of April 3, 2018, RPD Hearing, at pp. 24-25. 17 Ibid., at pp. 25-26; Transcript of May 2, 2018, RPD Hearing, at pp. 46-47. 18 Transcript of April 3, 2018, RPD Hearing, at pp. 28-29; Transcript of May 2, 2018, RPD Hearing, at pp. 37-39, 50. 19 Transcript of April 3, 2018, RPD Hearing, at pp. 39-41; Exhibit RPD-1, RPD Record, Exhibit 1, at p. 112. 20 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 9-14, paras. 16-20, 22-25. 21 Ibid., at pp. 16-17, para. 31. 22 Exhibit RPD-1, RPD Record, Exhibit 1, at pp. 84-93; Exhibit RPD-1, RPD Record, Exhibit 5, at p. 137. 23 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 13-16, paras. 24-25, 28. 24 Exhibit RPD-1, RPD Record, Exhibit 5, at p. 134. 25 Ibid., at p. 137. 26 Ipala v. Canada (Minister of Citizenship and Immigration), 2005 FC 472 (CanLII), para. 33. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-21354 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