TB9-13474

RAD File / Dossier de la SAR : TB9-13474 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 Calgary, AB Appel instruit / entendu à Date of decision September 30, 2020 Date de la décision Panel Rita Aggarwala Tribunal Counsel for the person who is the subject of the appeal Samuel T Loeb Barrister and Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] Mr. XXXX XXXX XXXX is citizen of Somalia. On May 10, 2019, the Refugee Protection Division (RPD) denied him Convention1 refugee protection and found that he is not a person in need of protection. He is appealing that decision to the Refugee Appeal Division (RAD). [2] For the following reasons, the appeal is allowed. [3] The main issue to be addressed is whether the RPD erred in concluding Mr. XXXX has not established his identity as a citizen of Somalia, on a balance of probabilities. In my view, Mr. XXXX provided sufficient credible evidence to establish his identity, on a balance of probabilities. Moreover, he has proven that he is a member of a minority clan, and that he faces a serious possibility of persecution from a rival clan family or from the extremist group Al-Shabaab if he returns to Somalia. Accordingly, the appeal is allowed. Mr. XXXX is a Convention refugee. [4] My role is to look at all of the evidence and decide if the RPD made the correct decision. I have accordingly reviewed all of the evidence and submissions and listened to the oral recording of the RPD hearing. These reasons are based on my independent assessment of the evidence. BACKGROUND [5] The following is a summary of the claims made by Mr. XXXX. These are not my findings of fact, rather a background of the allegations put forward by Mr. XXXX. [6] Mr. XXXX claims that he is a citizen of Somalia and no other country. He was born in 1993 and raised in XXXX XXXX, in the Middle Shabelle region of Somalia. He is a member of the XXXX clan, which is considered a low-caste occupational group in Somalia. His father was a herder before his death and his mother had a XXXX XXXX XXXX before she became ill in 2013. [7] Mr. XXXX left Somalia in 2009 because of a family conflict with another minority clan over land ownership, in which his cousin killed two people in the rival clan. The rival clan is called XXXX XXXX and the family is XXXX XXXX. The rival family killed his cousin and sought further revenge, targeting Mr. XXXX. Mr. XXXX fled to Kenya, where he lived in the Dhadaab refugee camp for a few years. He moved to Nairobi in 2012, where he lived in the streets. He met and married his wife in Nairobi. She is also from Somalia and is a member of the majority XXXX clan. Her family did not approve of the marriage, and Mr. XXXX has neither seen nor communicated with his wife since 2013. [8] Mr. XXXX returned to Somalia in 2013 when his mother was ill. During that time, his home was attacked by the rival clan, whose members are represented in the government and in Al-Shabaab. He returned to Dhadaab for about XXXX months, then moved to Nairobi and arranged to go to Denmark through smugglers. He applied for and received temporary refugee status in Denmark. His status was revoked in 2016, as part of a widespread action by Denmark to revoke the status of Somali refugees. He appealed the decision but was told his chances of success were slim and decided to come to Canada before the appeal was heard. His Danish appeal was ultimately unsuccessful. [9] Mr. XXXX came to Canada on a false passport and gave incorrect identity information to immigration officials in Canada when he first arrived. When he did finally provide his name, he explained to the border officials that he was instructed by the smugglers from Denmark not to provide his real identity information when he reached Canada. He does not have a Somali passport or any Somali identification documents, but he provided various identification documents issued by Danish authorities during his stay there. He claims to fear the rival clan in Somalia, as well as Al-Shabaab, who control much of Middle Shabelle and who target those who have lived abroad and returned to Somalia. NEW EVIDENCE: CERTAIN NEW EVIDENCE IS ADMISSIBLE [10] Mr. XXXX has provided several pieces of new evidence for the RAD to consider, including: a. an affidavit which augments his testimony at the RPD;2 b. a letter from his previous counsel describing the efforts that were made to obtain identity documents;3 c. money transfer receipts between Canada and Somalia;4 d. A copy of the language testing results obtained from Mr. XXXX Danish Asylum file;5 e. a letter from XXXX XXXX XXXX XXXX XXXX XXXX indicating it is unable to provide funds to translate Mr. XXXX full Danish asylum file, which is over XXXX pages;6 and, f. an opinion letter from a Canadian-Somali organization about Mr. XXXX ethnicity and citizenship.7 [11] For the following reasons, I admit portions of Mr. XXXX affidavit evidence, and all of the additional documentation attached as exhibits to that affidavit. [12] According to the law,8 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 Mr. XXXX could not reasonably have been expected in the circumstances to have presented to the RPD at the time of the decision. [13] 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.9 [14] In his affidavit, Mr. XXXX describes the new documentary evidence that he is submitting. He also provides the following historical information which was not in front of the RPD: a. Mr. XXXX corrects his testimony regarding the death of his father. In his Basis of Claim (BOC) narrative, Mr. XXXX stated that his father died in 2013 during the attack on his home by rival clan members. During the RPD hearing, he stated, and confirmed following questioning, that his father died of illness in 2012, and his uncle was killed in the 2013 attack. In his affidavit on appeal, he states that when asked about the inconsistency, he panicked, perhaps because of the unfamiliar surrounding he found himself in, and that his father, not his uncle, died in in attack in 2013.10 b. Mr. XXXX states that the reason he has no documentation about his marriage is that he was only married in a religious ceremony, not a legal one. The RPD member did not ask him about the reason he had no marriage documentation, so he did not provide the information at the RPD.11 c. Mr. XXXX states that he failed to mention a serious assault on his mother in Somalia because he was stressed out, and the question came at the end of the hearing.12 [15] The above information does not meet the explicit criteria for new evidence in subsection 110(4) of the IRPA. It is not information that arose after the RPD decision, as it pertains to events that happened during or before the RPD hearing. It was reasonably available at the time of the RPD decision, as it was information in Mr. XXXX knowledge. Finally, it could reasonably have been brought to the RPD member's attention before the RPD member provided his reasons. The RPD member did not provide a decision until a few weeks following the hearing, and specifically invited Mr. XXXX to provide further evidence if he had any. Additionally, Mr. XXXX lawyer made written submissions to the RPD because of time constraints at the hearing.13 This information could reasonably have been provided with those written submissions. I therefore reject these portions of Mr. XXXX affidavit on appeal. [16] The remaining new evidence provided by Mr. XXXX meets the explicit and implicit criteria for new evidence under subsection 110(4) of IRPA. The letter from his previous counsel was not reasonably available at the time of the RPD decision, as it is not ethically advisable for counsel to provide evidence while still acting as counsel. The money transfer receipts and the letter from legal aid regarding funding for translation arose following the RPD decision. The opinion letter from the Somali-Canadian organization could not reasonably have been expected to have been provided to the RPD, given the amount of identity evidence which was already in front of the RPD, including a different opinion from another Somali-Canadian organization regarding his identity.14 The Danish language test results were not reasonably available at the time of the RPD decision. I agree with Mr. XXXX that reasonable efforts were made, both by his previous lawyer and by the Minister of Immigration, Refugees and Citizenship Canada, to obtain Mr. XXXX Danish asylum documents and these efforts were unsuccessful. Therefore, the documents were not reasonably available at the time of the RPD decision. [17] Additionally, the remaining new evidence is new, credible and reliable. The documents are credible as to their source, as they appear to be from credible organizations or individuals, do not appear to be fabricated, and appear to be reliable. They are relevant, as they speak to Mr. XXXX identity, his ties to Somalia, and efforts made to confirm his identity, which is an essential component of any refugee claim. They are also new in that they are capable of contradicting a finding of fact made by the RPD, namely the finding the Mr. XXXX did not establish his identity at the RPD hearing. All of the documents were submitted to address this crucial finding. [18] I therefore admit the new evidence, apart from the portions of Mr. XXXX affidavit testimony discussed above. [19] Mr. XXXX has requested an oral hearing in respect of the new evidence. An oral hearing may be held where the new evidence raises a serious issue with respect to the credibility of Mr. XXXX; is central to my decision; and, if accepted, would justify allowing or rejecting the claim.15 In this case, the new evidence is not central to my decision, as I do not require it to make my decision. It simply bolsters the decision I would have made even in its absence, namely that Mr. XXXX has established his identity as a Somali citizen. I therefore deny Mr. XXXX request for an oral hearing. LATE SUBMISSIONS ARE ADMISSIBLE [20] Mr. XXXX provided legal submissions following the filing of his appeal record, and has made an application requesting that the RAD consider these late submissions.16 These submissions are subject to Rules 29 and 37 of the Refugee Appeal Division Rules.17 Mr. XXXX has provided commentary regarding a Federal Court decision which was released one week prior to the submission of his appeal record. The decision deals with a fact scenario that is similar to Mr. XXXX story and could therefore be informative to the RAD.18 His counsel was not aware of the decision at the time the appeal record was filed, and provided the submissions shortly after becoming aware of the decision. [21] Mr. XXXX Rule 29 application does not include any new evidence, only new submissions. Therefore, I must consider the relevant factor provided in subsection 4 of Rule 29, namely whether Mr. XXXX could have provided the submissions, with reasonable effort, with his appeal record. I find it is not unreasonable that the submissions were not provided with Mr. XXXX appeal record, given the proximity of the release of the reasons to the finalization of the appeal record. I therefore accept the late submissions. Mr. XXXX is not excluded from protection by virtue of his previous status in Denmark [22] At the RPD, the Minister was given notice of possible exclusion of Mr. XXXX, based on Article 1E of the Convention. Article 1E of the Convention states that the Convention "does not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of nationality of that country."19 The Article is codified into Canadian law by section 98 of IRPA, which states, "A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or person in need of protection."20 The question to be asked for Mr. XXXX is whether his former status in Denmark excludes him from consideration for protection in Canada. The Minister chose not to intervene on this issue at the RPD, although he did intervene on a different issue. The RPD did not address the exclusion issue, perhaps because it found Mr. XXXX had not established his identity. [23] For the reasons that follow, I find the exclusion provided for in Article 1E does not apply to Mr. XXXX. [24] The test for determining whether Article 1E of the Convention applies to a refugee claimant is given in the Federal Court of Appeal case Zeng:21 Considering all relevant facts to the date of the hearing, does [Mr. XXXX] have status, substantially similar to that of its nationals, in [Denmark]? If the answer is yes, [Mr. XXXX] is excluded. If the answer is no, the next question is whether [Mr. XXXX] previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E... [25] The evidence in this case establishes, and I find, that Mr. XXXX did not previously have status in Denmark which was substantially similar to that of its nationals, nor did he have access to such status. Mr. XXXX did not previously have status in Denmark which was substantially similar to that of its nationals [26] The Danish authorities confirmed in emails with the Minister that Mr. XXXX held a temporary residence permit for refugees while in Denmark, which status has since been revoked, with an unsuccessful appeal by Mr. XXXX.22 Status which is temporary is not considered to be status that is substantially similar to that of a country's nationals. However, the label given to the status is not necessarily determinative of whether it is truly temporary in nature and each case must be evaluated based on its particular circumstances. [27] The court in Shamlou23 enumerates basic rights that normally amount to status that is substantially similar to that of a country's nationals. They are: the right to return to Denmark, the right to work freely without restrictions, the right to study, and full access to social services in Denmark. In this case, Mr. XXXX was provided travel documents, access to medical care, was able to work freely, and attended school in Denmark. It appears he enjoyed the basic rights enumerated in Shamlou. However, Shamlou also explains that temporary status that must be renewed, and which could be cancelled, falls outside of Article 1E, i.e. the right to reside must be for an unlimited period of time. Rrotaj24 explains that absolute protection from deportation is not, however, required. What is required in order to fall outside of Article 1E is that the status is vulnerable, conditional or temporary. Rrotaj suggests that where "it remain[s] within the control of the applicants to abide by the conditions of their status,"25 Article 1E will apply. [28] Mr. XXXX, although protected from refoulement in principle by being given temporary residence status as a refugee in Denmark, was required to renew his status every two years. His status could be revoked, through no malfeasance of his own, if Danish authorities determined it was safe for him to return to Somalia.26 This is, in fact, what happened in this case to Mr. XXXX and hundreds of Somali refugees who held temporary residence permits in Denmark after Danish authorities determined that general conditions in Somalia had become safer.27 Mr. XXXX status was not within his control. His status was therefore vulnerable. In my view, even given that absolute protection from deportation is not required in order for Article 1E to be engaged, this condition on residency, inspired by article 1C(5) of the Convention,28 is not compatible with status that is substantially similar to that of a country's nationals. [29] Rothstein J. as he was then considered the application of Article 1E in a situation where a Somali citizen was granted a "Foreigner's Permit of Stay" in Italy, which allowed the applicant to remain in Italy during the Somali war and until conditions in Somalia returned to normal.29 Justice Rothstein, after considering the potential issue of refoulment that arose in that case, held that "An Italian national obviously would not be forced to leave Italy and return to Somalia after the war." He also noted:30 While I am not prepared to say that s. E of Article 1 of the Convention means that a person such as the respondent must have rights that are identical in every respect to those of a national of the country in which he or she resides, it does, in my view, mean that an important right such as the right to remain (in the absence of unusual circumstances such as a criminal conviction) must be afforded... [30] Similarly here, Mr. XXXX did not have the right to remain in Denmark absent a circumstance of his own making such as a criminal conviction. The evidence in front of me is that the Danish authorities considered the situation to have generally improved in Somalia, and therefore made the decision to revoke refugee status to many Somalians residing in Denmark on temporary resident permits, including Mr. XXXX. In my view, regardless of whether the Danish authorities were correct in their assessment of the situation in Somalia or whether they were at risk of refoulment, the status that Mr. XXXX held was not akin to permanent residence such that Article 1E applies. If Denmark had decided at the outset that Mr. XXXX was not a Convention refugee and never provided him with temporary residency, he would not be subject to exclusion under article 1E. Similarly, if Denmark could decide, as it did, after a period of time that Mr. XXXX was no longer a Convention refugee and as a result revoke his temporary residency, he was not subject to exclusion under Article 1E. In my view, an individual who is subject to the possibility of cessation of refugee status under Article 1C(5) faces an ongoing possibility of losing their residence status through no action of their own. Such a person is not akin to a 'permanent resident' who is afforded the rights and obligations attached to nationality referred to in Article 1E. I find Mr. XXXX did not at any time have the rights and obligations attached to nationals of Denmark. Mr. XXXX did not have access to status in Denmark which was substantially similar to that of its nationals [31] Finally, Mr. XXXX did not have access to status which was substantially similar to that of Denmark's nationals. Danish immigration law provides that temporary residents may apply for permanent status after living in Denmark for five years.31 Mr. XXXX did not live in Denmark for five years, and therefore did not have access to apply for permanent status. Article 1E does not apply in this case. The RPD Decision [32] The RPD found that Mr. XXXX had not established his identity as a Somali citizen. The RPD found that although he presented identity documentation issued by Denmark, he did not present the evidence he had provided to Denmark in seeking to establish his identity there, including his asylum claim documents. He ought to have presented those documents. The RPD found that Mr. XXXX explanation, that his identity documents were discarded by his roommate after he left Somalia, along with his failure to call this roommate, who lived in Canada at the time of the hearing, as a witness at the RPD hearing, was unreasonable. The RPD found that Mr. XXXX evidence that he was required to attend at an office in Denmark to obtain his asylum documents ought to have been corroborated. Additionally, the RPD found Mr. XXXX lack of knowledge about his Danish lawyer to be incredible. It further found that the money transfer remittances presented by Mr. XXXX did not provide evidence that anyone in Somalia had actually received his money. Furthermore, there was an extra "l" included in his last name as spelled on the money transfer remittances, which made the receipts suspect, according to the RPD. Finally, the RPD found that the opinion from the XXXX XXXX in Canada regarding Mr. XXXX nationality and minority clan status was insufficient to establish Mr. XXXX identity. Mr. XXXX appeal arguments [33] Mr. XXXX argues that his Danish identity documents were not given proper weight by the RPD member. He argues that the fact that he established his identity to Danish authorities, such that he was issued identity documents in Denmark, ought to be given considerable weight. He argues further that the RPD member erred by not considering the copy of his mother's Somali passport that he provided, and that the letter he provided from his Somali friend who lived with him in Denmark is further evidence of his identity as a Somali citizen. Overall, he argues, the RPD member did not consider the totality of the identification evidence, and it erred in setting too high a standard to prove identity. The RPD erred in its decision on identity [34] I agree with Mr. XXXX that he provided sufficient credible evidence to the RPD, in the circumstances, in order to establish his identity as a Somali citizen. In addition, he has established, on a balance of probabilities, that he is who he claims to be, and that he is a member of the minority XXXX clan. Although the RPD found certain portions of Mr. XXXX factual narrative to be incredible, such as whether his mother was assaulted, these findings were not such that they ought to have impugned Mr. XXXX identity evidence. Specifically, the fact that the RPD did not believe the contents of his mother's letter did not justify the RPD ignoring the copy of her passport that was attached to the letter. The identity evidence Mr. XXXX presented, taken in totality, is sufficient in the circumstances to establish that Mr. XXXX is who he claims to be, and in particular, a Somali citizen and a member of the minority XXXX clan. [35] Mr. XXXX provided three valid Danish identity documents: a residence permit,32 a health card33 and an alien's passport,34 two of which state that his place of birth is Somalia. There is no reason to doubt the authenticity of these documents, and indeed the Danish authorities confirmed in emails with the Minister that Mr. XXXX held a temporary residence permit for refugees while in Denmark, that his application for extension was rejected, and that his appeal to Danish authorities was unsuccessful.35 [36] Mr. XXXX testified that he obtained the three Danish identity documents after undergoing language testing in Denmark. He testified that the results of his language testing confirmed that he is from Somalia. At the RAD, he provided paper copies of the language testing results. He underwent similar testing in Canada, once before the RPD hearing and once after the RPD hearing, which concluded with opinions that he is a Somali national of the XXXX minority clan. He also provided a written and affirmed confirmation from a Somali friend with whom he lived in Denmark,36 confirming that Mr. XXXX refugee status was taken away from him in Denmark, and that his documentation was discarded. In addition, he provided evidence of money transfers between Canada and Somalia,37 from both before and after the RPD hearing. He testified that these transfers of money were made to his mother, with the help of a neighbour in Somalia. Finally, he provided a copy of a passport issued to his mother, which indicates it was issued by the Somali government.38 [37] The National Documentation Package (NDP) for Somalia explains that identification documents in Somalia are inherently unreliable and that very few citizens have such documents.39 A 2016 Research Information Request by the Immigration and Refugee Board of Canada indicates that passports have been issued in Mogadishu since 2013, and cost US $83.40 The passport provided by Mr. XXXX mother appears to match the sample passport provided in that document. However, the NDP document goes on to indicate that Canada does not consider Somali passports reliable, and that they cannot be used for entry into Canada. They are not recognized by Canada because of the lack of integrity of the seed documents used to obtain them. Overall I accept, on a balance of probabilities, the that the passport, a copy of which was provided by Mr. XXXX, was obtained by his mother from Somali authorities, although she may not be able to use it to enter western countries. [38] In considering this NDP information and his mother's Somali passport, alongside the remaining evidence in its totality, I find Mr. XXXX has established his identity, on a balance of probabilities. He obtained identification documents in Denmark, identifying him as a Somali citizen, and the Minister communicated with Denmark regarding his status there. His Danish identity documents were provided to him following detailed language testing which opined on his origin. In conjunction with ethnicity assessments he has undergone in Canada, and along with the written testimony of his friend, which I find does not need to be corroborated with live testimony, I find there is sufficient credible evidence on the record to determine that Mr. XXXX is who he claims to be, specifically, a Somali citizen from the XXXX minority clan, and that the RPD erred in not considering Mr. XXXX identity evidence as a whole and in context. Mr. XXXX is a Convention refugee [39] In order to establish that he is a Convention refugee, Mr. XXXX must prove that he has a well-founded fear of persecution. This means that he must prove that he has a subjective fear of persecution, and that his fear of persecution has an objective basis based on what is known about his situation and the conditions in Somalia, such that he faces a serious possibility of persecution based on a Convention refugee ground, throughout all of Somalia. [40] I found Mr. XXXX to be a generally credible witness. He has very little education, and his testimony was provided through an interpreter. Despite these limitations, he appeared to be sincere in his attempts to answer what he was asked, and provided additional background information when it was relevant. I generally accept his testimony as true, and will discuss below portions of his testimony that were problematic. Agents of persecution and nexus to Convention [41] Mr. XXXX testified that he has been targeted by a rival clan in Somalia over land ownership, because of his clan status. He testified that he would also be targeted by Al-Shabaab if he returns to Somalia, because he would a be returning as a Somali who has been influenced by the West. [42] In determining whether the first of these threats gives rise to a Convention nexus, I must determine whether the threat arises because of Mr. XXXX ethnicity or race, or because of an on-going family dispute over land. If the former, there is a nexus to the Convention. If the latter, there is not. The question is whether Mr. XXXX is targeted because of what his family members have done in the past, or because of what he is.41 Mr. XXXX evidence is that he was personally targeted by the rival clan because his cousin killed two of XXXX XXXX family members. Additionally, he testified that both he and various members of his clan, including his mother, have been attacked by XXXX XXXX because of their clan status in the ongoing hostility between the clans. Therefore, it appears that he is targeted both because of what his family members have done in the past and because of his clan status - that is, his clan status contributes to his being targeted by XXXX XXXX. Such a mixed motive gives rise to a Convention nexus, namely race.42 [43] Mr. XXXX fear of persecution by Al-Shabaab forms the second basis for Mr. XXXX fears. The alleged threat from Al-Shabaab arises because of imputed political and religious opinion which would be applied to Mr. XXXX by Al-Shabaab as someone returning from the West. This also constitutes a Convention nexus. Therefore, Ms. XXXX has at least one nexus to the Convention. Mr. XXXX has a subjective fear of persecution [44] Mr. XXXX testified that he left Somalia in 2009, at the age of 16, because of threats from the rival clan family XXXX XXXX. He returned in 2013 and the rival clan tried to kill him. [45] The RPD found Mr. XXXX evidence regarding his father's death, as well as the evidence regarding his mother being assaulted by the rival clan, to be incredible. Mr. XXXX testified variously that his father was killed during the 2013 attack by the rival clan, and that his father died of illness in 2012. When asked about the discrepancy, he said it was his uncle who was killed in the 2013 attack, and that there must have been a mistake with the translation when he was filling out his BOC. The RPD found this explanation to be unreasonable, and found as a result that Mr. XXXX evidence with respect to events from 2013 was incredible. These events include Mr. XXXX return to Somalia in 2013, and the 2013 attack by the rival clan. [46] I disagree with the RPD that all of Mr. XXXX testimony with respect to events from 2013 ought to be rejected based on his inconsistent testimony regarding his father's death. As mentioned above, I found Mr. XXXX to be sincere in his attempts to accurately relay the events leading to his refugee claim. The inconsistency with respect to his father's death is not sufficient to reject in entirety his testimony that he returned to Somalia in 2013, or that an attack happened at all. I find that, based on his generally credible testimony, Mr. XXXX did return to Somalia in 2013 to visit his sick mother, and that there was an attack on his home while he was there. I find that a family member of his was killed during the attack. I note here that in my view, the 2013 return to Somalia does not constitute re-availment. It is understandable that Mr. XXXX would return to see his sick mother. In any case, given the attack that occurred during his 2013 return, any subjective fear that he may have lost was renewed. [47] With respect to his mother's alleged assault, Mr. XXXX testified during the RPD hearing that she faced problems with the rival clan such as theft and discrimination, because of her clan status. His mother provided a letter which stated that she had been beaten severely by the rival clan. Mr. XXXX did not mention this beating in his oral or written testimony. When questioned about the omission by the RPD member, Mr. XXXX said he forgot about the assault but that the letter from his mother was correct. The RPD member found that this omission was unreasonable and found that the letter was fabricated. [48] I agree with the RPD that the fact that Mr. XXXX did not mention such a serious assault in his testimony until prompted puts the fact of the assault in question. However, I do not agree that as a result, the letter from his mother is fabricated, on a balance of probabilities. I find that the contents of the letter are, more likely than not, exaggerated. The claim in the letter that the rival tribe "recently beat me up and left me for dead after I became unconscious"43 is the portion of the letter that is missing from Mr. XXXX testimony. The remainder of the letter describes events consistently with Mr. XXXX testimony, but in different terms. For example, the description of the rival clan in Mr. XXXX mother's letter is more fulsome than Mr. XXXX description, with a slightly different spelling for the rival family. I do not believe that the letter was fabricated by Mr. XXXX to bolster his claim. I believe that it was written by his mother and that other than the portion about an assault described above, it is credible evidence. I accept Mr. XXXX testimony that he speaks to his mother often, and that she has been harassed and discriminated against by the rival clan. I also accept that there is a long-standing rivalry between the two clans, and that Mr. XXXX fears that he will be the target of the rival clan's violence if he returns to Somalia. [49] Mr. XXXX also testified that he fears the extremist group Al-Shabaab. He testified that Al-Shabaab is active in the Middle Shabelle region, and that he fears that he will be forcefully recruited by the group or that he will be killed, as he will be seen as an infidel and someone who has been corrupted by the West. He testified further that there are members of XXXX XXXX clan that belong to Al-Shabaab. This exacerbates the threat from Al-Shabaab. [50] Based on his credible testimony, I find Mr. XXXX has established, on a balance of probabilities, that he has a subjective fear of persecution from the rival clan and from Al-Shabaab, including those rival clan members associated with Al-Shabaab, if he is made to return to Somalia. Mr. XXXX fear has an objective basis [51] The NDP explains that the XXXX clan is considered to be a low-status group in Somalia. It is an "occupational group," and therefore one of the most segregated and discriminated-against minorities.44 Such groups are subject to daily violence, persecution, hate speech, a denial of basic human rights, and limited access to justice where they have been victims of abuse. They are not afforded state protection or other legal recourse,45 and they are more likely as returnees to encounter issues with land ownership than other groups.46 [52] The NDP also notes that there is no functioning system of land ownership in Somalia,47 and that clan-based land disputes are common in Somalia,48 including in the Middle Shabelle region.49 Land disputes contribute to the tenuous security situation in Somalia.50 [53] It is also noted in the NDP that Al-Shabaab has staged violent attacks against minorities in south-central Somalia, and that it controls large portions of the region.51 Furthermore, "Somalis who have spent periods in western countries for education, employment or migration reasons ... can be at risk of violence from Al-Shabaab."52 In addition, it is noted that Al-Shabaab has made threats against returnees to Somalia, stating that they will be killed and treated like members of the Somali government.53 Al-Shabaab targets members of Somalia's government as political opponents.54 In Mr. XXXX case, rival clan members who are affiliated with Al-Shabaab have already targeted his family. [54] Based on this evidence, I find that there is an objective basis for Mr. XXXX fear. Furthermore, based on all of the evidence before me, I find Mr. XXXX faces a serious possibility of persecution, either arising from the ongoing dispute between his clan and XXXX XXXX clan, or from being targeted by Al-Shabaab as someone who has been influenced by the west. This persecution arises because of his race (clan status), or because of his imputed political or religious belief. There is no state protection or Internal Flight Alternative (IFA) for Mr. XXXX [55] As explained above, minority groups in Somalia are not afforded state protection. As explained in the NDP, the state does "not have the ability to provide effective protection for the majority of the community," that "corruption is widespread in Somalia, with very limited access to avenues of redress," and that "much of south-central Somalia is under the control of Al-Shabaab and the police and [Somali National Army] have little influence in these areas."55 Generally, the army and police are "ineffective, ill-trained and highly susceptible to corruption."56 Indeed, in Mr. XXXX case, his clan and family members have not been provided with state protection following the harassment and attacks that they have faced. As such, I find Mr. XXXX would not have access to adequate state protection if returned to Somalia. [56] Finally, I find that Mr. XXXX does not have an IFA in Somalia, because it would be unreasonable in the circumstances for him to relocate within Somalia. The NDP explains that returnees from marginalized clans suffer discrimination,57 and that it is important, even vital, for returnees to have clan connections and support when returning.58 Mr. XXXX testified that he lived and traveled in a small region of Somalia when he lived there. He has not lived there since he was 16 years old, more than 10 years ago. Based on this evidence, I find that Mr. XXXX is likely to experience more severe discrimination outside of his home region than he did in his home region while living there. Furthermore, given his formerly small travel radius and the fact that he is from a minority clan which makes up a small percentage of the population of Nigeria, I find he is unlikely to have clan members in areas outside of his home region to vouch for and support him. Considering also the unstable security situation in Somalia and the prevalence of Al-Shabaab in large portions of the country, I find Mr. XXXX does not have an IFA in Somalia. CONCLUSION [57] I allow Mr. XXXX appeal. Mr. XXXX XXXX XXXX is a Convention refugee. (signed) Rita Aggarwala Rita Aggarwala September 30, 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 Exhibit P-2, Appellant's Record, Affidavit of XXXX XXXX XXXX, at pp. 1-6. 3 Ibid., Exhibit A, at p. 8. 4 Ibid., Exhibit B, at p. 10. 5 Ibid., Exhibit C, at pp. 12-37. 6 Ibid., Exhibit D, at p. 39. 7 Ibid., Exhibit E, at p. 41. 8 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, Subection 110(4). 9 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 10 Supra, at endnote 2, para. 4. 11 Supra, at endnote 2, para. 10. 12 Supra, at endnote 2, para. 11. 13 Exhibit RPD-1, RPD Record, at p. 379. 14 Exhbiti RPD-1, RPD Record, at p. 274. 15 IRPA, Subsection 110(6). 16 Exhibit P-3, Update to Appeal Record - New and Relevant Jurisprudence. 17 Refugee Appeal Division Rules, SOR/2012-257, Rule 29: Documents or Written Submissions not Previously Provided; and Rule 37: How to Make an Application. 18 Exhibit P-3, Update to Appeal Record - New and Relevant Jurisprudence, being Warsame v. Canada (Citizenship and Immigration), 2019 FC 920. 19 Supra, at endnote 1. 20 IRPA, section 98. 21 Canada (Minister of Citizenship and Immigration) v. Zeng, 2010 FCA 118. 22 Exhibit RPD-1, RPD Record, at p. 262. 23 Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.). 24 Rrotaj v. Canada (Citizenship and Immigration), 2016 FC 152. 25 Ibid. 26 Exhibit RPD-1, RPD Record, Danish Aliens Act, s. 19, pp. 179-182. 27 Exhibit RPD-1, RPD Record, at p. 359. 28 Supra, at endnote 1: "The Convention shall cease to apply to any person ... if ... He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality...". 29 M.C.I. v. Mohamud (1995), 98 F.T.R. 83 (T.D.). 30 Ibid. 31 Supra, at endnote 27, s. 11, p. 173. 32 Exhibit RPD-1, RPD Record, at pp. 131 and 267. 33 Exhibit RPD-1, RPD Record, at p. 132. 34 Exhibit RPD-1, RPD Record, at p. 265. 35 Exhibit RPD-1, RPD Record, at p. 262. 36 Exhibit RPD-1, RPD Record, at p. 269 37 Exhibit RPD-1, RPD Record, at p. 380. 38 Exhibit RPD-1, RPD Record, at p. 273. 39 National Documentation Package (NDP) for Somalia (March 31, 2020), item 1.13: ?DFAT Country Information Report: Somalia. Australia. Department of Foreign Affairs and Trade, June 13, 2017. 40 NDP for Somalia (March 31, 2020), item 3.11: ?Identification documents, including national identity cards, passports, driver's licenses, and any other document required to access government services; information on the issuing agencies and the requirements to obtain documents (2013-July 2015). Immigration and Refugee Board of Canada, March 17, 2016. 41 Zefi v. Canada (M.C.I.), 2003 FCT 636. 42 Canada (Citizenship and Immigration) v. B344, 2013 FC 447. 43 Exhibit RPD-1, RPD Record, at p. 271. 44 NDP for Somalia (March 31, 2020), item 13.1: No redress: Somalia's forgotten minorities?, Minority Rights Group International. Martin Hill. November 2010. 45 NDP for Somalia (March 31, 2020), item 13.13: ?The Gabooye (Midgan) people, including the location of their traditional homeland, affiliated clans, and risks they face from other clans,. Immigration and Refugee Board of Canada. December 4, 2012. 46 NDP for Somalia (March 31, 2020), item 14.3: ?Dadaab Returnee Conflict Assessment, Danish Demining Group. Ken Menkhaus. August 2017. 47 NDP for Somalia (March 31, 2020), item 1.7: ?Situation in South and Central Somalia (including Mogadishu), . Asylum Research Consultancy. January 25, 2018. 48 NDP for Somalia (March 31, 2020), item 1.23: Somalia: Fact-finding Mission to Mogadishu and Nairobi, January 2018, . Finnish Immigration Service et al.m October 5, 2018; Supra, at endnote 40. 49 Supra, at endnote 47. 50 NDP for Somalia (March 31, 2020), item 1.8: ?EASO Country of Origin Information Report. Somalia: Security Situation. European Union. European Asylum Support Office. December 2017. 51 Supra, at endnote 45. 52 Supra, at endnote 40, p. 12. 53 NDP for Somalia (March 31, 2020), item 14.4: Frequency of members of the diaspora returning to live in the country, and particularly in Mogadishu; availability of housing and employment to diaspora returnees, including difficulties related to clan membership and economic opportunities (2012-2015), . Immigration and Refugee Board of Canada. March 13, 2015. 54 Supra, at endnote 40. 55 Ibid. 56 Ibid. 57 NDP for Somalia (March 31, 2020), item 1.12: Country Policy and Information Note. Somalia (South and Central): Security and humanitarian situation. Version 4.0. United Kingdom. Home Office. September 2018. 58 Supra, at endnote 49. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-13474 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