TB9-17541

RAD File / Dossier de la SAR : TB9-17541 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 September 15, 2020 Date de la décision Panel Kim Polowek Tribunal Counsel for the person who is the subject of the appeal Paul Dineen Barrister and Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Richard Long Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal. XXXX XXXX XXXX (Appellant), alleges that he is a citizen of Somalia. His claim for refugee protection was denied by the Refugee Protection Division (RPD) on May 30, 2019 on the basis of identity and credibility. [2] The Appellant alleges that he belongs to a minority clan in Somalia that has faced ongoing discrimination, persecution and harm by the Al-Shabaab. In XXXX 2013, members of a majority clan killed his two brothers as they were angered that one of them had married and impregnated an Al-Shabaab girl. In XXXX 2018, the Appellant along with other neighborhood boys were abducted by the Al-Shabaab. The Appellant alleges that he was beaten and threatened with death if he did not join the Al-Shabaab. He was informed that one of the other abducted boys had been killed. The Appellant managed to escape. The family fled to Kenya, and with the assistance of a smuggler, the Appellant fled for Canada in XXXX 2018. He fears returning to Somalia as he believes the Al-Shabaab will kill him for his refusal to join them. He is opposed to joining as their conduct is against his Muslim-Sunni beliefs. [3] The Minister intervened at the RPD and has also intervened at the Refugee Appeal Division (RAD) by submitting new evidence relevant to the identity and credibility of the Appellant. The Appellant, while notified, did not reply to the new evidence submitted by the Minister for this Appeal. [4] On appeal, the Appellant submits that the RPD made a number of errors in its credibility and identity analysis. He maintains that he established his identity and ought to be determined to be a protected person or Convention1 refugee. [5] On the determinative issue for this appeal, which is identity, I have found that the Appellant's identity has not been established, on a balance of probabilities. The decision of the RPD is confirmed and the appeal is dismissed. DECISION [6] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither Convention refugees nor a person in need of protection. NEW EVIDENCE (Appellant) [7] I have accepted only some of the new evidence presented by the Appellant. [8] The Appellant sought to enter the following as new evidence: 1) Affidavit of Appellant dated October 20, 2019; 2) a letter dated XXXX XXXX XXXX 2018 from Service Canada providing the Appellant's Social lnsurance Number and a letter dated September 13, 2018 from the RPD, which confirm that the Appellant did communicate his corrected address/change of address to Immigration, Refugees and Citizenship Canada (IRCC); 3) documents issued by the Ministry of Transportation Ontario including the Appellant's Class G2 licence, G1 Temporary Driver's Licence, G2 Temporary Driver's Licence and the Appellant's Application for an Ontario Driver's Licence; 4) an article published online in February 2015 by the Canadian Council for Refugees titled "Somalis and Canadian lmmigration Policy"; 5) excerpts from a 2001 article by Par Sharryn J. Aiken in the Quebec Journal of lnternational Law titled "Of Gods and Monsters: National Security and Canadian Refugee Policy" 6) Immigration and Refugee Board of Canada (IRB) response to information request dated February 4, 2014: "Somalia: The Hawrarsame clan, including its current situation and relationship with other clans"; 7) excerpts from an undated article by Enbal Singer and Caroline Stacey from the University of Toronto's lnternational Human Rights Program titled "Canada brings refugees, Ontario limits their ability to work", IHRP; 8) an article published online in March 2016 by the Ontario Council of Agencies Serving lmmigrants titled "Somali Refugee Resettlement in Canada"; 9) excerpts from a May 2000 document by Guy S. Goodwin-Gill titled "Opinion on the 1951 Convention relating to the Status of Refugees and the Obligations of States under Articles 25,27 and 28, with particular reference to refugees without identity or travel documents"; 10) excerpts from a March 2006 article by Rahma Abdulkadir for a graduate thesis submitted to Carleton University, Ottawa titled "Undocumented Convention Refugee in Canada: the lmplications of & Rationale behind Canada's ldentity Document Requirement from Convention Refugees within its Borders". [9] According to the law,2 I can only accept evidence that: i. arose after the RPD decision; ii. was not reasonably available at the time of the decision; or, iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [10] 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.3 [11] First, I find that the Appellant's memorandum is insufficient in addressing how or why the new evidence submitted on Appeal meets the requirements of the Act I have outlined above. [12] I have accepted items 1 through 3 as I find that this evidence could not have reasonably been expected by the Appellant to bring to the RPD given that it relates to his driver's licence which he likely would have not anticipated to have been among the concerns raised at the RPD. [13] Regarding items 4 to 10, I reject entering any of this documentation as new evidence as I find that given these publications and articles pre-date the RPD decision, it was open to the Appellant to provide this material to the RPD. The issue of identity is a concern in all refugee cases and particularly so in Somalian cases given challenges with presenting credible identity documents. As I have no specific argument before me as to why these materials could not have been presented to the RPD and given that identity is always an issue in refugee claims, I find that all of these documents were available and could have been provided to the RPD. I also find that these documents are of little relevance in this appeal given that the Minister's new evidence, which has not been rebutted by the Appellant, raises significant identity and credibility concerns. NEW EVIDENCE (Minister) [14] The Minister has submitted the following new evidence: 1) Global Case Management System (GCMS) application record for Canada, Student Visa Application XXXX; 2) documentation included with Canada Student Visa Application XXXX; 3) photo comparison of XXXX XXXX XXXXand XXXX XXXX XXXX; 4) Integrated Customs Enforcement System (ICES) Record Of Entry To Canada for individuals presenting themselves to same border services officer immediately before and after XXXX XXXX XXXX; and 5) IRCC documentation on study permit preparation for arrival. [15] The Minister concludes that the evidence seriously undermines the foundation of the Appellant's claim. Specifically, this evidence establishes details on the identity of the Appellant, the documentation that that Appellant used to travel to and enter Canada, salient details regarding the Appellant's travel to and arrival in Canada, and the timeline of the Appellant's travel to Canada that contradict the declarations of the Appellant and his alleged events of persecution. Admissibility of evidence presented on appeal [16] New evidence provided by the Minister is not subject to the statutory requirements of section 110(4),4 the language of which makes it clear that this subsection applies to "the person" and refers only to "the rejection of their claim." [17] Therefore, I find that pursuant to subsection 110(3) of the IRPA,5 the Minister may present documentary evidence on appeal and is not subject to the conditions imposed by subsection 110(4). Furthermore, pursuant to paragraph 171(a.2) of the IRPA,6 the RAD is not bound by any legal or technical rules of evidence. Moreover, paragraph 171(a.3) of IRPA7 allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. I consider the evidence of the Minister to be credible and I have accepted it as new evidence. The Appellant's response to the Minister's new evidence for this appeal [18] The Appellant, while notified of the Minister's new evidence for this Appeal, did not submit any written arguments to the RAD in response to this new evidence. ANALYSIS [19] My role is to look at all the evidence and decide if the RPD made the correct decision.8 Identity of the Appellant [20] The determinative issue in this appeal is whether the RPD was correct when it found that the Appellant did not meet his burden of providing sufficient credible evidence to establish his identity, on a balance of probabilities. I find that on the central issue of identity, the RPD was correct to find that it had not been established, on a balance of probabilities. [21] I note that in assessing this case, I have reviewed and considered all evidence, including the written transcript from the Appellant's RPD hearing. As noted earlier, the Minister submitted new evidence for this Appeal which I have accepted and the Appellant submitted no response. [22] In the analysis of the issue of the Appellant's identity, I am guided by section 106 of the IRPA which states:9 The Refugee Protection Division must take into account, with respect to the credibility of an appellant, whether the appellant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. [23] Furthermore, RPD Rule 11 of the Refugee Protection Division Rules states: "The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them."10 [24] Importantly, the legislation and RPD Rules establish clearly that it is a Claimant's burden to establish his or her identity before the Immigration and Refugee Board. The Federal Court has stated in Su, "[t]he onus is on the claimant to produce acceptable documentation establishing his or her identity. This is a high burden, as it should be."11 Ontario Driver's Licence [25] At the RPD hearing, the Appellant testified that he attended driving school, passed the driver's test and received an Ontario driver's licence. His testimony was that he was not sure if it was a G1 or a G2 licence that he was in possession of. When asked where his licence was, he testified that it was at home. He further testified that the only identification document that he showed to get his licence was his refugee claimant document issued by the Government of Canada which had his photo on it.12 Information was subsequently provided by the Minister which confirmed that the Appellant was in possession of a G2 licence and in order to qualify for a G2 level in Ontario's graduated licensing system, this requires that the Appellant would have had to present evidence of at least 12 months of driving experience in Canada or elsewhere. The Appellant's testimony at the RPD was that he had no prior driving experience in any other country other than Canada13 which left significant questions regarding how the Appellant was able to acquire a G2 licence in Canada when his evidence was that he had entered Canada on XXXX XXXX, 2018 and would not have had the requisite one year of driving experience necessary to acquire a G2 licence. [26] The credibility and identity concerns for the RPD arose for if the Appellant was truthful about his arrival in Canada on XXXX XXXX, 2018, this would mean that he would have had to acquire his driving experience prior to coming to Canada. The RPD found that this put the Appellant's residential history in doubt as well as his sworn statements as to his nationality, given that he would have had to present a foreign driver's licence in order to get credit for previous driving experience and obtain his G2 licence in under a year since being in Canada. [27] Given the existence of the Ontario G2 licence, and absent any explanation from the Appellant as to how he was able to acquire this licence, the RPD found it was left with serious doubts as to which country's driver's licence he would have presented to demonstrate his driving experience, what his immigration status would have been in that foreign country, and when exactly he arrived in Canada. The RPD found that it was likely that some other identification existed for the Appellant that formed the basis of the Appellant being able to apply for and obtain the G2 driver's licence with less than 12 months of driving experience in Canada and drew a negative credibility inference from the Appellant not presenting this identification to the RPD. And, at paragraph 24 the RPD states as follows:14 If the claimant was not truthful about his arrival date to Canada, and he has been here longer and obtained that 12 months of driving experience in Canada, then this seriously undermines his tra vel route to Canada, residence history and the other core allegations in his claim, specifically that he was targeted by Al-Shabaab on XXXX XXXX, 2018 and captured for forced recruitment. The panel finds that in either possibility, the claimant having been in Canada longer than he has claimed, or in his having a different and unknown past residence history in other countries, or his having had a Somali driver's licence which he has not presented to the Board and he denied having in his testimony, the claimant's credibility is seriously impugned and his nationality as a Somali citizen has not been demonstrated, on a balance of probabilities. [28] On Appeal it is submitted that the RPD erred in the weight given to the G2 licence and its credibility and identity analysis, and that the licence is not remotely relevant to the substance of the Appellant's claim. The Appellant's memorandum at paragraph 31 acknowledges his use of a fraudulent document to obtain his G2 licence but submits that "vehement concern with this runs contrary to IRCC's own policy guidance."15 [29] My own independent assessment of the evidence finds that the RPD was correct in its treatment and analysis of the Appellant's evidence regarding the G2 driver's licence and that this represents persuasive evidence that undermines the credibility of the Appellant and casts significant doubt on his identity. First, I note that the Appellant does not dispute that he is possession of an Ontario driver's licence. The Appellant's new evidence indicates that he secured his G1 licence in XXXX 2018,16 followed by his G2 licence in XXXX 2019. Further, in the Affidavit that I have accepted as new evidence, the Appellant states: "I purchased a fraudulent Kenyan driver's licence and letter of authentication, so I could apply for the licence sooner".17 I note that the Appellant did not disclose this information to the RPD, and in fact testified to the RPD that the only identification document that he showed to get his licence was his refugee claimant document issued by the Government of Canada which had his photo on it.18 While the Appellant has provided documents related to his application for his Ontario Driver's licence, the Appellant did not provide a copy of the Kenyan driver's licence or letter of authentication for my review. [30] As I see it, given this evidence, there is no doubt that the Appellant was not truthful to the RPD about how he acquired his G2 driver's licence and moreover, the Appellant now reveals that he used a Kenyan driver's licence for purposes of securing his Ontario G2 driver's licence in Canada. As the Kenyan documentation is not before me, I am unable to comment on whether this documentation is genuine or not. However, what is clear is that the Appellant did not present this Kenyan identity documentation to the RPD nor did he disclose its existence to the RPD. Further, given the Appellant's evidence that he used Kenyan identity documentation to acquire his G2 driver's licence in Canada, it is now evident that there exists other identity documentation for the Appellant from Kenya which I find casts significant doubt on the Appellant's allegation that he is a citizen of Somalia and no other country. The existence of this Kenyan documentation and the fact that the Appellant made no effort to disclose it until confronted with the concerns of the RPD certainly casts significant doubt on the Appellant's personal identity, citizenship and general credibility about his identity. [31] Importantly, I have also considered the Minister's new evidence which I find establishes, on a balance of probabilities, that the Appellant's real identity is that of a Kenyan national by the name of XXXX XXXX XXXX. I will address this new evidence later in reasons. Travel to Canada [32] When identity is an issue, I find that how one travels to Canada is a relevant consideration. Identity documents are required to travel abroad. Therefore, identity is tied to the travel. In this case, the Appellant testified that he entered Canada at Lester B. Pearson International Airport on XXXX XXXX XXXX 2018 via Turkish Airlines, that he used an improperly obtained Norwegian passport and was in the company of a female smuggler named XXXX XXXX who spoke for him. He further testified that the Norwegian passport identified him with the family name "XXXX". The Appellant did not present the Norwegian passport he allegedly travelled to Canada with to the RPD. When asked about this passport at the RPD, the Appellant testified that he did not have it and "She had it (the smuggler), so she never gave it to me".19 The Minister's evidence was that there was no record of a person by the name of "XXXX" with a Norwegian passport coming through the Toronto airport on XXXX XXXX. [33] On Appeal it is submitted that the Minister's evidence regarding their ICES and GCMS information are neither obviously relevant to the Appellant's claim for refugee protection, nor are they particularly reliable. The Appellant argues that it is unclear whether (and to what extent) this evidence played in a role in the RPD decision but that the Appellant did not have an adequate opportunity to address this evidence when it was first adduced. [34] I find that the Appellant had an opportunity to respond to the Minister's evidence as this was squarely raised with him. At the RPD, Minister's Counsel confronted the Appellant with the fact that their search on ICES of all the flights that came in from XXXX XXXXto XXXX XXXX revealed no one for the last name XXXX,20 the Appellant's name (XXXX XXXX XXXX), the name of the female smuggler (XXXX XXXX) or anyone with a Norwegian or a Swedish passport coming through the Toronto airport on XXXX XXXX. In response the Appellant testified, "I'm not really sure because I was just following her and she told me that my name is XXXX, anyone ask and when we entered, she was the one who was answering questions and she was responding to questions."21 [35] The Appellant has presented no corroborative evidence which would assist in substantiating his version of events, such as luggage tags or an airline ticket or the fraudulent passport. I have no good reason to doubt the reliability of the Minister's evidence and absent any credible corroborating documentation from the Appellant regarding the circumstances by which he entered into Canada, I find that the Appellant has not been truthful regarding the means by which he travelled to and entered Canada, and this further undermines the Appellant's credibility and the credibility of his alleged identity. The Minister's new evidence represents a fatal blow to the Appellant's credibility. The Minister's new evidence [36] The Minister has submitted the following new evidence: 1) GCMS application record for Canada, Student Visa Application XXXX; 2) documentation included with Canada Student Visa application XXXX; 3) photo comparison of XXXX XXXX XXXX and XXXX XXXX XXXX; 4) ICES Record of Entry to Canada for individuals presenting themselves to same border services officer immediately before and after XXXX XXXX XXXX; and 5) IRCC documentation on study permit preparation for arrival. [37] Following my independent review of this evidence, and absent any rebuttal from the Appellant regarding this new evidence, I find that this evidence is credible and persuasive and establishes, on a balance of probabilities, that the Appellant's identity is that of a Kenyan national by the name of XXXX XXXX XXXX. [38] I agree and adopt the submissions of the Minister22 that when considering this new evidence, that the Appellant misrepresented significant facts regarding his identity and documentation he used to come to Canada, as well as the timing and circumstances of his arrival. This evidence also indicates that the Appellant was in Nairobi, Kenya when he was allegedly kidnapped in Somalia and that he had applied and been approved for a Canadian student visa (in Nairobi) before the alleged kidnapping even occurred. CONCLUSION [39] For all the reasons above, I find that it was correct for the RPD to find, on a balance of probabilities, that the Appellant had failed to establish his identity. Having reviewed and assessed the evidence, and in particular the new evidence submitted by the Minister, I find the same. [40] As the Appellant has not established his identity, neither the Appellant's refugee claim nor this appeal can succeed. [41] 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) Kim Polowek September 15, 2020 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 4 IRPA, section 110(4). 5 IRPA, section 110(3). 6 IRPA, at para. 171(a.2). 7 IRPA, at para. 171(a.3). 8 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 9 IRPA, section 106. 10 Refugee Protection Division Rules, SOR/2012-256, Rule 11: Documents Establishing Identity and Other Elements of the Claim. 11 Su v. Canada (Citizenship and Immigration), 2012 FC 743, at para. 4. 12 Transcript of RPD Hearing on April 16, 2019, at p. 44. 13 Transcript of RPD Hearing on April 16, 2019, at p. 41. 14 Exhibit RPD-1, RPD Record, RPD Reasons, at p. 10, para. 24. 15 Exhibit P-2, Appellant's Record, at p. 203, para. 31. 16 Exhibit P-2, Appellant's Record, at p. 101. 17 Exhibit P-2, Appellant's Record, Affidavit, at p. 97, para. 6. 18 Transcript of RPD Hearing on April 16, 2019, at p. 44. 19 Transcript of RPD Hearing on April 16, 2019, at p. 37. 20 Exhibit RPD-1, RPD Record, Statutory Declaration - ICES Report, at pp. 90-91. 21 Transcript of RPD Hearing on April 16, 2019, at p. 40. 22 Exhibit M-1, Minister's New Evidence Memorandum, at pp. 39-43. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-17541 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