TB8-26585

RAD File / Dossier de la SAR : TB8-26585 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 10, 2020 Date de la décision Panel Cheryl Braden Tribunal Counsel for the person who is the subject of the appeal Tina Hlimi 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 Mogadishu and lived there up until XXXX 2006, when he relocated to Khartoum, Sudan to attend university, where he lived until 2012. He alleges that he subsequently obtained a fraudulent passport in Kenya in 2012 which he used to get a work permit from South Sudan, where he lived and worked under a false identity until January 2015. [3] The Appellant alleges that in XXXX 2015, he returned to Mogadishu and opened a XXXX. He alleges that in March 2017, his school was attacked by Al-Shabaab for teaching secular subjects and promoting Western ideologies; two teachers were killed and the Appellant was condemned to death. As a result, he fled with his wife and children to stay with family in another district of Mogadishu. [4] The Appellant alleges that he and his family subsequently travelled to Kenya where he applied for and obtained a visa for the United States (US) using his fraudulent Kenyan passport. He alleges that he returned to Mogadishu and travelled from there to the US on XXXX XXXX XXXX 2017. He made his way to Canada and made a claim for refugee protection on XXXX XXXX, 2017. [5] The Appellant's claim was heard before the Refugee Protection Division (RPD) on May 10, 2018 and July 11, 2018 and dismissed on September 6, 2018. The RPD found that the determinative issues in the claim were identity and credibility, and concluded that the Appellant was not a credible witness and did not provide sufficient reliable and trustworthy evidence to establish his identity on a balance of probabilities. DECISION [6] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE [7] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that could not reasonably have been expected in the circumstances to be brought to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.2 The new evidence in the Appellant's Record [9] In his Appellant's Record, the Appellant provided an affidavit sworn October 28, 20183, with exhibits A4, B5 and C6. The affidavit is largely a reiteration of evidence given before the RPD and includes a point by point explanation and rebuttal of the RPD's findings. The Appellant submits that the affidavit is intended to clarify some points of misunderstanding at the RPD hearing, "[g]iven the Panel's intimidating manner of questioning and my nervousness at the hearing, I was unable to fully clarify some points in which she found issues with"7. [10] I accept that the Appellant may have felt nervous or intimidated in the hearing room environment, which can be a stressful experience for claimants. At the same time, I note that he was represented by counsel throughout the course of the two sittings before the RPD, and thus had ample opportunity to put forward his evidence and testimony. He has not made any allegations of misconduct on the part of the panel, and having reviewed the record thoroughly, I do not find that the panel's questioning was conducted in an inappropriate manner. [11] It is well established that the purpose of new evidence at the Refugee Appeal Division (RAD) appeal stage is not to provide an appellant with an opportunity to supplement a deficient record8. In my view, the Appellant's affidavit is an attempt to do exactly that. I find that the affidavit is not admissible as new evidence. [12] Exhibit A of the affidavit is a copy of the Appellant's Basis of Claim (BOC) form and narrative that was before the RPD. This is part of the record and is not new evidence. Exhibit B contains a copy of the identity documents that were submitted before the RPD9, which again are part of the record and not new evidence. [13] Also included in Exhibit B is a letter from the Embassy of the Republic of the Sudan, Ottawa, dated May 2, 2018, prior to the RPD decision. The Appellant has not provided any submissions as to why the document could not have been brought before the RPD, and in fact argues elsewhere in his memorandum10 that the document was before the RPD and that the RPD erred by ignoring it. However, the Embassy letter is not contained in the RPD Record. I find that the Appellant has not established that the document was not reasonably available or could not reasonably have been expected to be produced before the RPD; as such it is inadmissible as new evidence. [14] Exhibit C is the original expired Somali passport of XXXX XXXX XXXX (purported to be the Appellant's wife), along with the courier waybill and envelope showing that it was couriered by Ms. XXXX from Somalia on November 21, 2018. A copy of this passport was presented to the RPD along with an affidavit which was signed by Ms. XXXX and a number of other people. The Appellant submits that this document is submitted in response to the RPD's finding that the copy of the passport provided to the RPD was unreliable, which in turn undermined the reliability of the affidavit. He further submits that he could not have reasonably been expected to present the original copy of someone else's passport at his hearing, or to anticipate the need to do so. [15] The waybill and envelope establish the origin and timing of the shipment of Ms. XXXX passport, which is evidence that it was unavailable to the Appellant for production before the RPD, as required by subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). I accept the Appellant's explanation and find the passport to be admissible under s.110(4) of IRPA. I further find that the Appellant has established that the passport is new and relevant evidence, and I find it to be sufficiently credible for the purpose of the jurisprudential criteria. I therefore admit it as new evidence in the appeal. The Rule 29 Application [16] On March 7, 2019, the Appellant sent correspondence to the RAD requesting that copies of documents which were intercepted by the Canada Border Services Agency (CBSA) enroute to the Appellant from Somalia be added to his RAD appeal11. On March 26, 2019, the Minister's representative provided two copies of these intercepted documents to the RAD Registry12. The RAD Registry then forwarded a copy of the documents to the Appellant on April 8, 201913, consisting of: a) CBSA Notice of Seizure of Travel and/or Identity Documents dated November 27, 2018 b) 'Transferred Shipments' shipping declaration dated November 19, 2018 c) Certified Copy of a Somali identity card for XXXX XXXX XXXX d) Certified Copy of an expired Somali passport for XXXX XXXX XXXX, passport number XXXX e) Shipping declaration of XXXX XXXX XXXX dated November 19, 2018, with attached copy of passport biographical page (biopage), passport number XXXX f) Letter from XXXX XXXX XXXX XXXX XXXX dated November 18, 2018 [17] On July 23, 2020, the Appellant made an application to submit additional evidence pursuant to RAD Rule 2914, consisting of items a, b, c, and d above. The Appellant submits that he did not submit these identity documents to the RPD because they are expired, and he believed that the copy of Ms. XXXX valid, non-expired passport that he provided to the RPD would be sufficient. He further notes that the CBSA found these documents to be genuine, and requests that they be accepted "[g]iven the importance of these two documents towards establishing the Appellant's identity"15. [18] The Refugee Appeal Division Rules (RAD Rules) at Rule 2916 provides that in considering an application to submit additional documents after the appeal is perfected, the RAD must consider any relevant factors, including the documents' relevance and probative value, any new evidence the document brings to the appeal, and whether the appellant could have provided the document with the Appellant's record. [19] I note that this package of documents was sent at the same time, but in a different envelope than Ms. XXXX passport above, which was received by the Appellant in time to be submitted with the Appellant's Record. The late submission of these documents is due to their seizure by the CBSA, a factor which was outside of the Appellant's control. [20] While the Appellant has not made clear submissions as to the relevance and probative value of these documents, I find that they are admissible under Rule 29 and s.110(4) based on the same rationale as Ms. XXXX passport discussed above, as Ms. XXXX was also an affiant in the affidavit that was before the RPD, to which the panel gave little weight due in part to the unreliability of the copies of the identity documents of the affiants. I find that the shipping and seizure documents establish the origin and timing of the shipment. I therefore accept items a) to d) as new evidence. The additional new evidence in response to the RAD's new issue notice [21] Still outstanding is the matter of documents e) and f), the shipping declaration of XXXX XXXX XXXX and the letter from XXXX XXXX XXXX XXXX XXXX. Having reviewed these documents which were forwarded to the RAD by the Minister's representative at the request of the Appellant, the RAD noted that while they were not included in the Appellant's Rule 29 application, they are relevant to issues in the appeal. Thus, the RAD communicated a direction to the Appellant on September 28, 202017 to advise him that these documents would be considered in the appeal, and further identified the following new credibility issues in the appeal: i) The Appellant has alleged that XXXX XXXX XXXX is his wife, while the shipping authorization document signed by her on November 19, 2018 identifies her as the Appellant's cousin. Further, the passport of XXXX XXXX XXXX indicates that XXXX XXXX XXXX is her mother (RPD Record, p.139), while the affidavit signed by XXXX XXXX XXXX identifies her as the Appellant's aunt (RPD Record, pp. 131-133) ii) The Appellant alleged in his narrative that he is a member of the Murusad clan and that "there is no protection available to me in Somalia because I am of a minority clan" (RPD Record, p.30-33). However, the letter provided by Midaynta Community Services (RPD Record, p. 102-103) indicates that the Appellant "identifies his clan as Hawiye, subclan Murusade, which he correctly asserted as a majority clan". Item 13.2 of the NDP for Somalia dated March 31, 2020 confirms that Murusade is a sub-clan of Hawiye, and item 1.10 of the NDP indicates that the Hawiye clan is dominant in Mogadishu and that the Somali national army mostly consists of members of the Hawiye clan. [22] On October 6, 2020, the Appellant responded and submitted a new affidavit, sworn by him on October 5, 202018. Since this new evidence is submitted in response to the RAD's new issue notice, the Appellant is not required to submit an application in accordance with RAD Rule 29, however, the evidence is still subject to the requirements of s.110(4) of IRPA. [23] Given that the evidence responds to new issues raised by the RAD, it was clearly not available to present to the RPD. When I consider the jurisprudential requirements for admissibility of new evidence however, I find that the affidavit is not credible and therefore not admissible as new evidence, for the reasons that follow. [24] The Appellant's new affidavit first addresses the issue of his relationship with XXXX XXXX XXXX. He first indicates that Ms. XXXX is illiterate, that she did not complete or sign the shipping authorization form and that it does not refer to her as a cousin. Here, the Appellant specifically cites the shipping authorization that was submitted in his Appellant's Record19, rather than the shipping authorization that was signed by Ms. XXXX which is referred to by the RAD in its direction. It is not clear why, as the RAD's direction included a copy of the relevant shipping authorization document. The document attached to the RAD's direction identifies Ms. XXXX as the sender and the relationship of the receiver as "cousin", is signed with a signature that is similar to the signature that appears on Ms. XXXX passport and is accompanied by a copy of Ms. XXXX passport biopage. [25] The Appellant further states that he and Ms. XXXX are in fact first cousins as well as spouses, as Ms. XXXX mother XXXX XXXX XXXX is the half-sibling of the Appellant's father. However, I note that the Appellant was asked in the RPD hearing how he met his wife, and he testified that she was his sister's classmate in high school in Mogadishu20. [26] While I accept that it is possible that Ms. XXXX is both the Appellant's cousin as well as a former classmate of his sister's, I find it highly improbable given that the Appellant did not provide that information in his initial testimony before the RPD. I note that the Appellant made a solemn affirmation before the RPD to tell the truth, the whole truth and nothing but the truth in his testimony. I find that the whole truth about the Appellant's family relationship with his wife is particularly relevant and important given that the determinative issue before the RPD was the Appellant's identity. [27] Similarly, I find that even if Ms. XXXX was both the Appellant's wife and cousin, it is unlikely that she would identify herself as the Appellant's cousin and not his wife when asked to describe her relationship with the Appellant, as she did in the shipping authorization document. [28] On a balance of probabilities, I find that the Appellant's new affidavit is not credible as it relates to his relationship with Ms. XXXX and rather is an attempt to explain the new evidence which suggests that the Appellant's true relationship with Ms. XXXX is not what he portrayed to the RPD. [29] The second part of the affidavit addresses the issue of the Appellant's clan membership. In his affidavit, he attempts to explain the discrepancy between the support letter from Midaynta Community Services which states that the Appellant "identifies his clan as Hawiye, sub-clan Murusade, which he correctly asserted as a majority clan"21, and his narrative in which he identified as a member of the Murusade clan and alleged that "there is no protection available to me in Somalia because I am of a minority clan"22. [30] In his new affidavit, the Appellant states that his "clan lineage is Hawiye (major), Murusad (major), Ibrahim Sabti (minor). Because I belong to the minor Ibrahim Sabti sub-clan, I identify myself as belonging to a minor clan. Members of the Ibrahim Sabti sub-clan are discriminated against in Somalia"23. [31] I find that the Appellant's sworn testimony about his clan membership has been inconsistent and evolving. While the Appellant's counsel points out in the submissions annexed to his most recent affidavit that his claim is based upon fear of Al-Shabaab and not clan membership, his clan membership is at the same time material to his identity. Clan membership is a very important part of Somali culture and society. It is reasonable to expect the Appellant to accurately and consistently testify to his clan membership, particularly when he is alleging that it is an additional risk factor for him. [32] Moreover, the Appellant signed his BOC indicating that it was complete, true and correct and it did not mention the Ibrahim-Sabti sub-clan. He was asked directly in testimony before the RPD about his clan membership and he did not mention the Ibrahim-Sabti sub-clan. I find that if his membership in the Ibrahim-Sabti sub-clan is a factor that put him at additional risk, it is reasonable to expect that this would be disclosed before the RPD, and indeed is required by the BOC instructions and by his affirmation to tell the truth, the whole truth and nothing but the truth in his testimony. [33] I am mindful of the jurisprudence indicating that it is an error to find new evidence to lack credibility simply because it originates from an Appellant who has been found to lack credibility24, however, in this case it is not simply that the Appellant is broadly lacking in credibility, but that the newly sworn evidence he has provided is directly contradictory to other sworn testimony that he previously provided. [34] On the basis of the above analysis, I find that on a balance of probabilities, the Appellant's affidavit dated October 5, 2020 is not credible and thus is not admissible as new evidence in this appeal. No oral hearing will be held [35] The Appellant has not requested an oral hearing. Subsection 110(6) of the IRPA provides that the RAD may hold an oral hearing if new evidence is accepted that raises a serious credibility issue with respect to the Appellant, is central to the decision with respect to the refugee claim, and if accepted, would justify allowing or rejecting the claim. [36] The new evidence that was accepted is limited to the identity documents of affiants to the affidavit that was before the RPD in support of the Appellant's identity. These documents are relevant to the credibility of that affidavit and do not raise a serious issue with respect to the credibility of the Appellant. I do not find that the requirements of s.110(6) are met and thus no oral hearing will be held. THE RPD DECISION [37] The RPD found that the Appellant was generally lacking in credibility on the basis of numerous adverse credibility findings. First, the RPD found that the Appellant's past use of different identities undermined his purported identity before the panel, noting that his documents from Sudan reflected a different surname, as well as his admitted use of a fraudulent Kenyan passport and identity starting in 2012 and continuing up to and including his time in the US in 2017. [38] The RPD gave no weight to the identity documents submitted by the Appellant, finding that some of the Somali documents are fraudulent and others are unreliable, and finding that the Sudanese documents are unreliable in light of the additional surname contained in the documents and the evidence that the Appellant had access to other fraudulent identity documents. The panel also drew an adverse inference on the basis of the inconsistency with respect to the name of the Appellant's high school in Somalia, which was different in his intake forms than on the school leaving certificate he later presented as corroborative evidence. [39] The RPD further found that the affidavit purportedly signed by several friends and family members was unreliable and that the support letter from a Somali community service organization was insufficient to overcome the panel's credibility concerns, and gave these documents no weight in establishing the Appellant's identity and nationality. [40] The RPD further noted that there was inconsistent evidence presented with respect to when the Appellant obtained the fraudulent Kenyan passport and moved to South Sudan, as well as a lack of corroborative evidence of the Appellant's time in South Sudan. The panel found the alleged circumstances of obtaining the fraudulent passport to be suspect and noted that the Appellant's testimony as to the timing of obtaining this document did not align with the documentary evidence in the record. The panel also identified inconsistencies in the evidence with respect to who made the application for the Appellant's US visa and with what passport, and the circumstances of his travel to the US and Canada including the current whereabouts of the passport he travelled with. The panel further noted that while the Appellant maintained that it was a fraudulent passport based on a false identity, he referred to the document as "my passport" a number of times in testimony. [41] The RPD also had concerns about the credibility of a last minute amendment to the Appellant's BOC concerning the whereabouts of the Appellant's family, and found that the Appellant's inability to recall the major drought which occurred in Somalia in 2016 and 2017, which was a national disaster affecting millions, cast doubt on his allegation that he was in Somalia during that period. [42] Finally, the RPD drew an adverse inference on the basis of the Appellant's return to Somalia in April 2017 despite his alleged fear of Al-Shabaab at that time, as well as on the basis of his family's purported return to Somalia despite their alleged fear of harm at the hands of Al-Shabaab. THE APPELLANT'S ARGUMENTS ON APPEAL [43] The Appellant argues that the RPD erred in its analysis of the Appellant's identity, by placing undue reliance on the fact that the Appellant was in possession of a fraudulent Kenyan passport to find him not credible, and failing to properly examine his identity documents on that basis. He submits that the panel erred by ignoring a letter from the Sudanese embassy which corroborated his testimony, and requests that the RAD undertake its own analysis of his identity documents and corroborative evidence. [44] The Appellant argues that both his use of a different surname in Sudan and his use of a fraudulent Kenyan passport and identity in South Sudan were reasonably explained. He further submits that his testimony about how he obtained the fraudulent passport was consistent and reasonable, and that the RPD erred by drawing an adverse inference on the basis of the references to "my passport" which he submits was likely an interpretation issue. [45] The Appellant also argues that the RPD erred by rejecting the Appellant's affidavit evidence from Somalia, and submits that the panel committed a breach of procedural fairness by drawing an adverse inference based on the Appellant's failure to submit the DHL courier envelope into evidence to prove that the affidavit was sent from Somalia. [46] The Appellant further submits that the RPD erred by drawing an adverse inference on the basis of the Appellant's testimony about the whereabouts of the Kenyan passport he used to travel to the US, which he submits was reasonable and consistent, and peripheral to the determination of whether or not the Appellant is a refugee in any event. [47] Finally, the Appellant submits that the RPD also erred by failing to accept the Appellant's explanation for the discrepancies in the evidence regarding the name of his high school in Somalia, and in faulting him for not knowing about the drought in Somalia in 2016, which was based on an overbroad question and is peripheral to the issue of his identity. ANALYSIS [48] My role is to look at all the evidence and decide if the RPD made the correct decision25. [49] Following my independent review and analysis of the record and the arguments made by the Appellant, I find that the RPD correctly concluded that the Appellant is not a credible witness, and that the corroborative evidence provided is not reliable and is not sufficient to establish the Appellant's identity. I further find that there was no breach of procedural fairness by the RPD as alleged. The Appellant's additional surname is not credibly explained [50] The RPD asked the Appellant at the hearing if he had ever used any name other than "XXXX XXXX XXXX". He responded only that he had used "XXXX XXXX XXXX", which was the name that appeared on his fraudulent Kenyan passport. The RPD pointed out that the Appellant's school documents from Sudan were in the name "XXXX XXXX XXXX XXXX", and the Appellant responded that this was a name given to him at birth, however he usually only goes by "XXXX XXXX XXXX". The RPD did not accept this explanation, noting that "XXXX" was also not disclosed in his BOC or narrative and also did not appear on the Appellant's Somali identity documents that were submitted into evidence including his birth certificate, marriage certificate and passport. [51] The Appellant argues that the RPD erred by placing undue reliance on the port-of-entry (POE) notes, citing case law that establishes that it is an error to make adverse credibility findings on the basis of a lack of details in information provided in the POE interview. I reject this argument. The RPD's finding is not based on the POE notes, which are the notes taken by the interviewing officer on entry. Rather, the RPD's finding is based on the complete omission of any reference to the name "XXXX" anywhere in the Appellant's application, including his BOC and narrative which were completed and submitted with the assistance of counsel on August 18, 2017, a few weeks after he entered Canada. The instructions in the BOC are clear that all information and details that are important to the claim should be included, and this certainly includes information relevant to the Appellant's identity which is a central issue in his claim. If that important information was missed when the Appellant's forms were completed initially, he had the opportunity and obligation to make a correction prior to the hearing. I note that he did make other amendments to his forms, and that he attested at the outset of the hearing that his BOC was translated to him and was complete, true and correct26. [52] The Appellant further argues that the RPD was wrong to reject his explanation that he only uses three names on his identity documents because the objective evidence confirms that using three names is standard for Somalis. He further submits that since his father's name is "XXXX XXXX XXXX", it is established that "XXXX" or "XXXX" is his fourth name, per Somali naming tradition. However, the objective evidence only mentions that it is standard for Somalis to use three names and does not mention any naming traditions including fourth names. [53] I note that the Appellant testified that his first Somali passport issued in 2005 included the name XXXX, which was the passport he used to attend school in Sudan. However, he also testified that he attended at an office in the Bakara Market in 2005 with his father to obtain this passport, and that he also obtained other identification documents from the same office at the same time, including his birth certificate and an identity certificate27. He testified that all of these documents were issued on the basis of his father's statements and not based on any other documents. The birth certificate and identity certificate, produced in evidence, do not include the name "XXXX". I find that if "XXXX" was his name given at birth, it is reasonable to expect it to be on his birth certificate, and also that if "XXXX" appeared on his passport issued in 2005, it is reasonable to expect that "XXXX" would also appear on his other identity documents that were issued at the same time. [54] For the above reasons, I agree with the RPD that the Appellant has not reasonably explained the omission of the name "Kulmie" from his application and the appearance of the surname "XXXX" on some of his educational documents, and I make an adverse credibility finding on that basis. The RPD correctly found that the Somali birth certificate, identity certificate and marriage certificate are fraudulent [55] The above issue is intertwined with the issue of the assessment of the Appellant's Somali documentary evidence. The RPD found that the Appellant's explanation for how he obtained his Somali identity documents in 2005 led to a reasonable conclusion that they were purchased on the black market and not obtained legitimately from a government office. The Appellant argues that the panel erred in drawing an adverse inference with respect to the Appellant's explanation, because he was not with his father when his father obtained the documents for him, thus he did not know the particulars of how they were obtained. He further submits that the objective evidence confirms that there was no central government in place in Mogadishu in 2005, so documents were not issued by the government in a uniform manner, so the panel should have given the Appellant the benefit of the doubt with regard to his evidence. [56] I reject this submission entirely. The RPD's synopsis of the Appellant's testimony28 is consistent with the transcript of the RPD hearing. The Appellant testified at length about the circumstances of obtaining his identity documents in 2005, and he very clearly testified that he was present with his father when they were issued29. I agree with the RPD's conclusion that these documents were not legitimately obtained, on a balance of probabilities. [57] Further, as noted by the RPD, the government stamps on the documents state they are from the "Somali Democratic Republic" while the objective evidence indicates that Somalia has not been referred to by that name since the change in government in 1991, when the official name changed to "Federal Republic of Somalia"30. The panel concluded that the documents are fraudulent, and that the Appellant knew they were fraudulent when he provided them to the RPD and drew an adverse inference against the Appellant on that basis. This finding applies to the Appellant's documents issued in 2005 as well as his Somali marriage certificate issued in 2012. [58] The Appellant argues, without citation, that given the lack of centralized government each office has the discretion to use the stamp that they prefer, and that many genuine documents from Somalia continue to have a stamp of "Somalia Democratic Republic" rather than "Federal Republic of Somalia". [59] I do not accept this argument, which is speculative at best. There is no evidence in the record to suggest that genuine government documents continued to be issued under the stamp and seal of the former government after its collapse in 1991. I find it unlikely that a government issued document from Somalia would be attributed to a state that had not been in existence for 14 or 21 years (as of the date on the stamps) and I find that this undermines the credibility of the documents. In addition, I note that "Foreign" is misspelled as "Forian" in "Minister of Forian Affairs" on the stamp on the identity certificate, and as "Foraign" on the stamp on the marriage certificate. Finally, I note that the Appellant's purported wife's birthdate is listed as July 1, 1994 on the marriage certificate while it is cited as March 12, 1994 in her passport and in the Appellant's application forms31. [60] In light of the above analysis, I agree with the RPD that these documents are fraudulent and that the Appellant knowingly submitted fraudulent documents in support of his claim, and I find that this strongly undermines his overall credibility. The Appellant's 2010 Somali passport is not reliable evidence [61] The Appellant also submitted a copy of the biopage of his Somali passport issued in 2010. He testified before the RPD that he obtained the document by calling his friend who worked at the Somali embassy in Kenya, who in turn issued him the passport without any requirement to produce any supporting identity documents. The RPD found that the manner in which he purportedly obtained the passport undermined its reliability, as did the absence of the original document or a copy of the entire passport, and gave the copy of the passport biopage no weight in establishing the Appellant's identity. [62] The Appellant argues that the RPD's finding is unreasonable because the Appellant's friend who worked at the embassy knew him from Somalia and was therefore able to verify his identity on that basis, similar to how Somali refugee claimants in Canada rely on witnesses to verify their identity. [63] I agree with the RPD's assessment of the 2010 passport. There is no evidence to suggest that the Somali embassy issues passports on the basis of witness statements rather than requiring identity documents. There is, however, objective evidence confirming that it is possible to obtain a passport through connections at the Somali embassy in Kenya if one has enough money, and that fraudulent Somali passports are also widely available at markets in Kenya32. [64] Further, the RAD, like the RPD, is hampered in its evaluation of the document presented given that it is only a copy of the biopage, and not a copy of the entire document nor the original document itself. In view of that, and of my findings that the Appellant has submitted other fraudulent identity documents in support of his claim, I find that the copy of the biopage is not reliable evidence and I give it no weight in establishing the Appellant's identity. The Appellant's Sudanese documents are fraudulent [65] The RPD did not undertake an in-depth review of the Appellant's Sudanese educational documents given its concerns with the inclusion of the name "XXXX" in those documents, its finding that the Appellant's Somali documents were fraudulent, and the Appellant's demonstrated ability to obtain a fraudulent Kenyan passport. On that basis, the RPD found the Sudanese documents to be unreliable and gave them no weight. The Appellant submits that the RPD erred by failing to examine the Sudanese documents, and argues that they are genuine and there is nothing on the face of the documents to show that they are fraudulent. [66] I do not find that the RPD erred in giving these documents no weight in light of its stated concerns. However, I have conducted a careful review of these documents as requested by the Appellant. I find that in fact, there are significant concerns with them that lead me to conclude that these documents are also fraudulent. The letter purported to be from the International University of Africa, Faculty of Sharia and Islamic Studies33 contains an error in the letterhead in which "Africa" is spelled "Afirca". The next page in the record is a letter purported to be from the Dean of Students of the same institution. The letter contains an official stamp that misspells the word "University" as "Unversity"34. The transcript and official diploma certificate from Al Neelain University, which purport to be the original documents issued by the university and not translated documents, both contain a spelling error in the title of the "Academic Secretary" who is listed as the "Acadimic Secretary"35. [67] While I am mindful of the jurisprudence that cautions against imposing Western standards on documents issued in developing countries, I cannot accept that these documents would contain these kinds of errors if they were legitimately issued by a university. As a result, I conclude that these documents are fraudulent, on a balance of probabilities. The RPD did not err by ignoring evidence of his attendance at university in Sudan [68] The Appellant also argues that the RPD erred by failing to acknowledge a letter from the Sudanese consulate in Ottawa which confirms that he was a student in Sudan. As I noted in my analysis of the proposed new evidence above, this letter is not contained in the RPD record. I have also carefully reviewed the transcript from the RPD hearing and I note that although the Appellant's counsel at the RPD reviewed each item of the Appellant's documentary evidence in his submissions, there is no mention of a letter from the Sudanese consulate or embassy. As such, I conclude that the document was not before the panel and I do not find that the RPD erred by failing to consider it. The Appellant's Somali school leaving certificate is fraudulent [69] The Appellant further argues that the RPD erred by drawing an adverse inference with respect to the discrepancy in the name of the school he attended in Somalia, which was listed in his application form as "XXXX XXXX" but identified as "XXXX XXXX XXXX" in the school leaving certificate he submitted into evidence36. The RPD did not accept the Appellant's explanation that the school changed its name to XXXX XXXX after he had already graduated. The Appellant submits on appeal that the RPD erred by relying on his POE notes, which have many errors in them, and further argues, somewhat remarkably in my view, that the Appellant is an educated individual who could have obtained a fraudulent certificate if he wanted to mislead the panel. [70] I reject the Appellant's argument that the RPD erred in relying on his application forms because they have many errors in them, which ignores the obvious fact that the Appellant was the source of the information contained in his forms and attested that it was true. [71] Furthermore, I note that the bundle of the Appellant's documents that was intercepted by the CBSA and subsequently forwarded to the RAD at the request of the Appellant included a letter from XXXX XXXX XXXX XXXX37. While the Appellant did not seek to rely on this document or enter it into evidence, the RAD gave him notice that it intended to consider this letter and provided him with the opportunity to make submissions38. No submissions were provided in this regard. [72] The letter is under the letterhead of the XXXX XXXX XXXX XXXX XXXX and is dated November 18, 2018. It indicates that XXXX XXXX XXXX XXXX XXXX was formerly called "XXXX XXXX XXXX" and that the Appellant was one of its students who graduated in XXXX. This is in contrast to the school leaving certificate submitted by the Appellant which names the school as "XXXX XXXX XXXX". I further note that the letter contains many grammatical errors and also refers to the author as the "principle" of the school. [73] It was open to the Appellant to provide evidence or submissions to explain this document, and he failed to do so. I find that this document, which was not submitted into evidence by the Appellant but was apparently obtained by his purported wife for use in his refugee claim, casts additional doubt over the credibility of his testimony about the school that he alleged to have attended in Somalia. [74] While the issue of where the Appellant went to school is not central to the claim, it is relevant to establishing his allegation of being a Somali citizen who grew up in Mogadishu; moreover the submission of fraudulent documents to the RPD is relevant to the assessment of his overall credibility. In consideration of the evidence before me, I find that the RPD did not err in finding the Appellant's school leaving certificate unreliable and giving it no weight. I further find that the school leaving certificate is fraudulent on a balance of probabilities, and that its submission further undermines the Appellant's overall credibility. The Appellant's previous adoption of a false identity undermines his credibility [75] The RPD drew an adverse inference against the Appellant on the basis that he adopted a false identity in 2012, obtaining a Kenyan passport with a different name and date of birth that he used to work in South Sudan. The Appellant argues that the RPD erred in drawing this inference, as the objective evidence confirms his explanation that he could not work in South Sudan or be issued a work permit with a Somali passport. [76] I accept that the Appellant may have been unable to obtain a work permit in South Sudan with a Somali passport, however I do not find that the mere desire to work in another country is a compelling circumstance that justifies the adoption of a false identity. While it is established that no adverse inference should be made when a refugee who is fleeing for their life uses false documents39, that is not the case here. The Appellant was not at risk in Somalia at the time that he voluntarily obtained a false passport in Kenya, which by his own statement he obtained in order to get a work permit that he otherwise would not have been entitled to. I agree with the RPD that the identity fraud perpetrated by the Appellant is not justifiable in the circumstances, and I find that his willingness to adopt a fraudulent identity for personal gain is a significant factor that undermines his credibility in the present proceedings. The allegations regarding the circumstances of obtaining the Kenyan passport are not credible [77] The Appellant declared in his application form that he was in South Sudan from XXXX 2012 to XXXX 201540, while his narrative indicated that he received the job offer to work in South Sudan in September 2012. He testified before the RPD that he went to Kenya at the end of 2012 to obtain a false passport in order to take the job in South Sudan41. When confronted with the discrepancy in his evidence, he testified that the information in his form was an error, and confirmed that he obtained the Kenyan passport at the end of 2012, that it was the only Kenyan passport he had ever had, and that it was valid for 10 years until 202242. [78] The RPD pointed out that the US visa application43, which was done with the same Kenyan passport, reflected an expiry date of June 2023, suggesting an issue date of June 2013. The Appellant responded that maybe he was wrong about the date when he obtained the passport, but that he had only ever had one Kenyan passport. [79] The RPD did not accept the Appellant's explanation and drew an adverse inference. The Appellant argues on appeal that the date was only off slightly, and the RPD erred by performing a microscopic analysis of an issue that is peripheral to the Appellant's identity. [80] I do not find that this issue is peripheral to the matter of the Appellant's identity. The consistency and credibility of the Appellant's overall testimony is relevant to the assessment of his credibility, which in turn underpins the assessment of his identity. Moreover, it is established through the US immigration records that the Appellant was the holder of a Kenyan passport in the name XXXX XXXX XXXX. The Appellant's fingerprints are connected with this visa application, thus it is established that he attended a visa interview with this passport and subsequently entered the US with it44. A passport is generally accepted as evidence of one's identity. The Appellant has alleged that this was a fraudulent document and that he is not the person named in the document, and has testified to the circumstances of obtaining and using this document. I find that it is appropriate for the panel to consider the credibility of that testimony. [81] Clearly, if the Appellant only ever had one Kenyan passport which was valid for 10 years, and that passport expired in June 2023, then that passport was not issued until June 2013. However, the Appellant testified at length about the circumstances of going to Kenya and South Sudan, stating multiple times that he obtained the passport in late 2012, and also testified that he was sure it was late 2012. Also, when asked later in the hearing about his employment status at the time of his purported marriage in October 2012, he testified that he was not working but already had the job offer from South Sudan45. [82] I do not find the Appellant's explanation that he may be mistaken to adequately explain the inconsistencies between the testimony and the documentary evidence as to when he obtained the Kenyan passport. He attested at the outset of the hearing that the narrative was true and gave testimony before the RPD under solemn affirmation. He did not say he was unsure of the dates or could not remember until confronted with the contradictory information in the US visa application. [83] I further note that the Appellant testified that his wife came to visit him while he was living in South Sudan, that she only came once, and she used her Somali passport46. The passport of the Appellant's purported wife XXXX XXXX XXXX was submitted into evidence before the RAD47 and contains a visa to South Sudan issued on March 31, 2013 with an exit stamp from South Sudan dated May 26, 2013. This does not align with the alternate explanation that the Appellant did not obtain the passport and move to South Sudan until XXXX 2013. [84] I agree with the RPD that the inconsistent evidence regarding the timing and circumstances of the Appellant obtaining the Kenyan passport are not credibly explained and I find that this undermines the Appellant's credibility. The Appellant is generally lacking in credibility [85] In view of my findings that the Appellant has submitted numerous fraudulent documents in support of his claim, as well as his contradictory sworn testimony about his clan membership and his relationship with XXXX XXXX XXXX discussed at the outset of this decision, his demonstrated willingness to adopt a fraudulent identity for personal gain and his non-credible testimony about the circumstances of obtaining that passport, I find that the Appellant is generally lacking in credibility and I give no weight to his testimony in establishing his personal identity or nationality. [86] While the RPD made additional credibility findings that I have not addressed, some of which have been disputed by the Appellant, 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. [87] However, notwithstanding that I have found the Appellant to be generally lacking in credibility, it is still necessary for me to consider whether there is any other credible evidence before me that establishes his identity. The supporting affidavit from family and friends is not reliable evidence of the Appellant's identity, and there was no breach of procedural fairness by the RPD in its analysis of this issue [88] The Appellant submitted two pieces of independent corroborative evidence that have not yet been addressed. First is an affidavit sworn by several affiants who are alleged to be his friends and family members from Somalia. The RPD found that the affidavit was not reliable for a number of reasons. [89] First, the RPD was concerned that the original affidavit did not have copies of the identity documents of the affiants attached to it, while the faxed copy previously provided did have copies attached. The Appellant testified that the copies of the identity documents were emailed to him, however the panel examined the copies and found no indication that they were emailed to the Appellant and concluded that this undermined the reliability of the identity documents and therefore also the affidavit. [90] The Appellant argues that the RPD erred by drawing an adverse inference based on the Appellant's testimony that he obtained the affiant's identity documents by email, as the panel did not ask the Appellant for proof that they were emailed but then drew an adverse inference based on the lack of evidence that they were emailed. Moreover, he has now submitted as new evidence in the appeal the original passports of two of the affiants, XXXX XXXX XXXX XXXX XXXX XXXX XXXX, which he argues rebuts the adverse finding of the RPD with respect to the copies of the identity documents previously provided. [91] While I accept the newly tendered identity documents as genuine, and I find that the submission of genuine identity documents for these affiants serves to alleviate the RPD's concern that the Appellant presented fraudulent identity documents with the affidavit, at the same time it is not dispositive of some of the panel's other important concerns with the affidavit, which I share. [92] The presentation of genuine identity documents for these affiants now does not establish that the notary who swore the affidavit verified the identities of the affiants at the time that the affidavit was sworn. It also does not establish that the affiants have the alleged relationship with the Appellant or that they are credible witnesses. [93] I do not find that it is established on a balance of probabilities that XXXX XXXX XXXX is the Appellant's wife, given the fraudulent marriage certificate in evidence and the conflicting evidence seized by the CBSA which suggests that she is his cousin, which is addressed at the outset of these reasons. Further, I do not find that it is established on a balance of probabilities that XXXX XXXX XXXX is the Appellant's mother, given that all of the documentary evidence submitted to establish this fact has also been found to be fraudulent or unreliable. [94] The Appellant also argues on appeal that since the passport of his purported mother Ms. XXXX shows that she is a national of Somalia, the Appellant's identity as a national of Somalia can be reasonably established on that basis. Even if I accepted that XXXX XXXX XXXX is the Appellant's mother, which I do not, the objective evidence indicates that Somali citizenship laws do not provide for the acquisition of citizenship by virtue of being born to a Somali mother48. [95] Importantly, the RPD found that the affidavit does not state where and when the Appellant was born, which undermines its reliability. Further, while the affidavit was signed by four family members and three friends, when the RPD asked the Appellant who signed the affidavit, he was not able to recall the names of all of the affiants. The RPD found his inability to accurately recall who signed the affidavit to further undermine its reliability in establishing his identity. [96] The Appellant has not made arguments with respect to these particular findings, but simply reiterates that the affidavit was sworn in front of a lawyer in Mogadishu. While the fact that the affidavit was sworn before a lawyer gives it more weight than an unsworn statement, it is not a determinative factor of its credibility and probative value, which is also informed by an analysis of the source of the evidence and its reliability. [97] I find that the above noted concerns of the RPD are well-founded concerns that undermine the reliability of the affidavit. The affidavit does not specify the Appellant's place or date of birth, and only asserts that the Appellant "is a member of our family or friend and he is a Somalia (sic)", which greatly diminishes its reliability and probative value in my view. The scant detail provided is compounded by the panel's inability to cross-examine any of the affiants. [98] I also agree with the RPD that it is significant that the Appellant was unable to recall who signed the affidavit in support of his identity when initially asked by the RPD, despite his subsequent testimony that he is close friends with these individuals and that he spoke to each of them to ask them to sign the affidavit, and again after the affidavit was signed49. I find that this casts doubt as to the relationship between these affiants and the Appellant, which impacts on the degree of reliability of the statements of the affiants. [99] The RPD also noted that the Appellant did not tender the courier envelope that the affidavit came in into evidence, thus the panel was unable to ascertain whether the affidavit originated in Mogadishu, where it was purportedly sworn. The Appellant argues that the RPD erred by drawing an adverse inference in this regard, submitting that if the panel knew the envelope had been brought to the hearing, it should have asked to view the envelope instead of ignoring it and then making a finding based on its non-disclosure, which he submits was a breach of procedural fairness. I reject this argument, as it is clear in the transcript that the RPD asked the Appellant's counsel three times if he was going to tender the envelope into evidence, to which he finally responded "not at this point"50. [100] Finally, the RPD also questioned why the affidavit was not signed by the Appellant's uncle, who he alleged to have resided with prior to fleeing Somalia, and did not accept the Appellant's explanation that his uncle did not sign the affidavit because he did not have any identity documents which are required to swear an affidavit. I do find that this is a reasonable explanation and I do not find that the fact that the Appellant's uncle did not sign the document impacts adversely on its credibility. However, the RPD's error in this regard is not determinative. [101] Based on the significant outstanding concerns with the affidavit as outlined above, I find that the affidavit is unreliable, and I give it no weight in establishing the Appellant's identity or nationality. The letter from the Somali community organization is insufficient to establish the Appellant's identity [102] The Appellant also submitted a support letter from Midaynta Community Services, a Somali-Canadian community service organization. The author did not know the Appellant prior to his arrival in Canada, and describes that he conducted an interview with the Appellant and believes that based on his answers, there is a "compelling and very strong likelihood" that the Appellant is a citizen of Somalia. The RPD found that the letter was insufficient to overcome its concerns and gave it no weight in establishing the Appellant's identity and nationality. [103] The Appellant has not disputed the RPD's finding with respect to the letter. I agree with the RPD's analysis as outlined in its decision51, and I find that the letter does not establish the Appellant's identity on a balance of probabilities. The Appellant's identity is not established on a balance of probabilities [104] 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 established52. CONCLUSION [105] 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 10, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, at s. 110(4). 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FC 385 (CanLII). 3 Exhibit P-2, Appellant's Record, at pp. 27-41. 4 Ibid., at pp. 42-55. 5 Ibid., at pp. 56-90. 6 Ibid., at pp. 91-116. 7 Ibid., at p. 5. 8 Singh, supra, footnote 2, at para. 54. 9 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 92-111. 10 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 114, para. 55. 11 Exhibit P-3, Multiple Purpose Document Request Form, Requesting CBSA Seized Documents Sent from Somalia, March 7, 2019. 12 Exhibit M-1, Notice of Seizure of Travel and/or Identity Documents from Minister's Representative, March 26, 2019. 13 Exhibit RAD-1, Notice of Seizure of Travel and/or Identity Documents from Minister's Representative sent to Appellant, April 8, 2019. 14 Exhibit P-4, Rule 29, July 23, 2020, also see Exhibit P-5, Clear Copies of the Evidence in Rule 29 (July 23, 2020), July 29, 2020. 15 Ibid., at p. 4. 16 Refugee Appeal Division Rules, SOR/2012-257, at Rule 29. 17 Exhibit RAD-2, Member's Directions, September 28, 2020. 18 Exhibit P-6, Response to Member's Directions, October 6, 2020. 19 Exhibit P-2, Appellant's Record, at p. 93. 20 Transcript of May 10, 2018, RPD Hearing, at p. 62. 21 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 102-103. 22 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 33. 23 Exhibit P-6, Response to Member's Directions, October 6, 2020, at p. 8. 24 Abdi v. Canada (Citizenship and Immigration), 2015 FC 906 (CanLII). 25Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 26 Transcript of May 10, 2018, RPD Hearing, at p. 9. 27 Ibid., at pp. 22-25, 35. 28 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 12-13, para. 29. 29 Transcript of May 10, 2018, RPD Hearing, at p. 21; Transcript of July 11, 2018, RPD Hearing, at pp. 22-23. 30 Exhibit RPD-1, RPD Record, RPD Reasons, at pp. 13-14, para. 31. 31 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 106, 108-9; Exhibit RPD-1, RPD Record, Exhibit 9, at p. 139; Exhibit RPD-1, RPD Record, Exhibit 2, at p. 28. 32 Exhibit PRD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Somalia (April 30, 2018), item 3.6: Possibility for people outside the country without identity documents to establish their Somali nationality, in particular, those who have left Somalia since 1991; fraudulent identity documents (2012-July 2013), Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) SOM104487.E, 15 July 2013. 33 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 100. 34 Ibid., at p. 101. 35 Ibid., at pp. 97-98. 36 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 99. 37 Exhibit M-1, Notice of Seizure of Travel and/or Identity Documents from Minister's Representative, March 26, 2019; Exhibit RAD-1, Notice of Seizure of Travel and/or Identity Documents from Minister's Representative sent to Appellant, April 8, 2019. 38 Exhibit RAD-2, Member's Directions, September 28, 2020. 39 Rasheed v. Canada (Minister of Citizenship and Immigration), 2004 FC 587 (CanLII). 40 Exhibit RPD-1, RPD Record, Exhibit 1, at p. 52. 41 Transcript of May 10, 2018, RPD Hearing, at p. 17. 42 Ibid., at p. 46. 43 Exhibit RPD-1, RPD Record, Exhibit 4, at pp. 78-83. 44 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 86-90. 45 Transcript of July 11, 2018, RPD Hearing, at pp. 21-22. 46 Transcript of May 10, 2018, RPD Hearing, at pp. 41-42. 47 Exhibit P-2, Appellant's Record, at pp. 95-96. 48 NDP for Somalia (April 30, 2018), item 3.1: Law No. 28 of 22 December 1962, Somali Citizenship, Somalia, 1963. 49 Transcript of July 11, 2018, RPD Hearing, at pp. 6, 16-19. 50 Ibid., at pp. 7-9. 51 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 18, paras. 46-49. 52 Ipala v. Canada (Minister of Citizenship and Immigration), 2005 FC 472 (CanLII), para. 33. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-26585 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