TB8-15831

RAD File / Dossier de la SAR : TB8-15831 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 September 8, 2020 Date de la décision Panel I. Singh Tribunal Counsel for the person who is the subject of the appeal Lani Gozlan Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (Appellant), a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD), dated June 8, 2018, rejecting his claim for refugee protection. DECISION [2] The appeal is dismissed. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant alleged before the RPD that he fears returning to Somalia because he secretly married a woman named XXXX who is from a different/rival clan, which resulted in her family attacking him, causing him to flee to the United States of America (USA), then Canada. [4] The Appellant's application for refugee protection was heard on May 4, 2018. By a decision of June 8, 2018, the RPD rejected the claim. The RPD found that the determinative issues were identity and credibility. [5] The Appellant submits that the RPD erred in its assessment of the Appellant's identity and credibility by misapprehending the evidence and failing to consider relevant evidence. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [6] My role is to look at all the evidence and decide if the RPD made the correct decision.1 ANALYSIS New evidence accepted [7] According to the law,2 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 you could not reasonably have been expected in the circumstances to bring 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.3 [9] The Appellant provided the following as new evidence: a. A DNA test that confirms he is related to his uncle, XXXX XXXX XXXX; and b. A printout of a page from the Mogadishu airport's website showing that the airport is named after the first President of Somalia. [10] I find that the Appellant could not reasonably have been expected to provide both of these pieces of evidence prior to the RPD decision as he could not have known that the RPD would have rejected his testimony about his relationship with his uncle and about the name of the airport in Mogadishu. [11] I find the evidence is new, credible, and relevant, as both documents purport to contradict the RPD's findings, and they both appear credible on their face. Therefore, I find that the Appellant's new evidence is admissible. [12] The Appellant requests an oral hearing. I find the new evidence admitted is not determinative of the claim before the RAD, pursuant to the requirements of section 110(6) of the IRPA.4 Accordingly, the request for an oral hearing is denied. [13] The Appellant's Memorandum also references a new Affidavit of the Appellant. Although the Appellant's Affidavit references the new evidence submitted, it also appears to repeat his oral testimony and other evidence, elaborate and clarify his oral testimony, and criticize the reasoning of the RPD. The Immigration Refugee Protection Act (IRPA) expressly limits admissible evidence to new evidence or evidence that was not reasonably available or obtainable at the time the claim was rejected. I am not considering the Appellant's explanations of his evidence presented at the RPD and his comments on the RPD's reasoning. All of those parts of his affidavit are inadmissible, either because they are not new evidence, or they are simply arguments that belong in the Appellant's Memorandum, or they are not credible because they are inconsistent with his testimony at the hearing. Only the arguments made in his memorandum will be considered. The RPD did not err in its assessment of the Appellant's identity and credibility The Appellant's witness, XXXX XXXX XXXX [14] The RPD found the Appellant's uncle, XXXX XXXX XXXX, did not establish the Appellant's identity, on a balance of probabilities. The RPD did not give any weight to Mr. XXXX testimony due to a number of concerns. Mr. XXXX (born in 1939) is purportedly the older brother of the Appellant's mother (born in 1972) and there is an age gap of approximately 33 years between them. Mr. XXXX testified he lived with his sister before he reached 18, and when the RPD pointed out that this was not possible considering their age difference, he stated there must be a mistake and that he was only older by 6 years. The RPD found this was inconsistent with the evidence provided by the Appellant, as he had indicated his mother's date of birth to be in 1972 in his Basis of Claim (BOC) and testimony. The RPD found Mr. XXXX provided contradictory testimony, for which he did not provide a reasonable explanation. On that basis, the RPD found he was not reliable nor trustworthy and that he was presented to mislead the RPD. The RPD found the appellant's credibility was seriously undermined. The RPD went on to find that even if Mr. XXXX was connected to the Appellant's mother, he had never met or seen the Appellant in Somalia, and had not seen the Appellant's mother for some 15 or 16 years prior to the Appellant's birth. On this basis, the RPD found he could not establish the Appellant's identity, on a balance of probabilities. [15] The Appellant argues the new evidence of the DNA test shows the Appellant and Mr. XXXX are genuinely related. He argues the RPD drew an implausibility finding due to the age difference between Mr. XXXX and the Appellant's mother, and explains that after the hearing, Mr. XXXX told him an error was made on the date of birth that was listed in his sponsorship application to Canada, which he did not notice until his permanent residence was already issued to him. The Appellant submits it is reasonable his uncle, who suffers from health issues, was nervous at the hearing and did not explain this. He further argues that although they did not meet in Somalia, Mr. XXXX kept in contact with the Appellant's mother throughout the years and sent them money. After the Appellant's arrival to Canada, he and Mr. XXXX spoke to the Appellant's mother and she confirmed his identity. He argues the RPD erred in its conclusion that Mr. XXXX testimony does not establish the Appellant's personal and national identity even if their relationship was accepted, due to the fact that they did not know each other prior to meeting in Canada. [16] I am persuaded by the Appellant's arguments and new evidence. I find the Appellant has established he is related to Mr. XXXX, on a balance of probabilities. However, I do not find that the new evidence resolves the problems in Mr. XXXX testimony. Though the Appellant argues Mr. XXXX told him after about the wrong date of birth in his documents and that he was nervous and suffering from health issues, the Appellant has not provided new evidence from Mr. XXXX to corroborate these statements, nor has he requested the presence of Mr. XXXX at an oral hearing to allow Mr. XXXX to testify to these statements. During the hearing, Mr. XXXX did not provide the explanations about the mistake in his documents and his health issues. I do not find this credible. Nevertheless, as I have found they are related, I find Mr. XXXX evidence merits some weight. Therefore, though Mr. XXXX evidence merits some weight in establishing the Appellant's personal identity, in light of the credibility problems, I do not find that it, on its own, can establish the Appellant's citizenship, on a balance of probabilities. Therefore, I afford Mr. XXXX evidence some weight in my overall assessment. The Appellant's witness, XXXX XXXX [17] The RPD found the testimony of XXXX XXXX was insufficient to establish the identity of the Appellant, on a balance of probabilities. The RPD noted Ms. XXXX is the cousin of the Appellant's mother, she left Somalia before the Appellant was born, she had never met the Appellant in person prior to his arrival in Canada, she only heard about his birth through word of mouth, she has no firsthand knowledge of him, and she could not recall when she last spoke to the Appellant's mother. [18] The Appellant argues the RPD erred in concluding that Ms. XXXX did not establish the Appellant's identity because they did not know each other in Somalia. He states that Ms. XXXX testified she was aware of his birth through other family members, including his mother, and she confirmed his identity through a mutual relative, XXXX XXXX. [19] I find the RPD did not err; however, I find that the testimony of Ms. XXXX merits some weight. Ms. XXXX testified that she was aware the Appellant was born in Somalia. While being born in a country is a strong indication that one is a citizen of that country, it is not sufficient to establish one's nationality, on a balance of probabilities. Ms. XXXX could not recall when she last spoke to the Appellant's mother and she has no direct knowledge about where the Appellant was living prior to meeting him in Canada or what countries he may be a citizen of. Therefore, her evidence, on its own, cannot establish the Appellant's citizenship, on a balance of probabilities, but I afford it some weight in my overall assessment. Affidavit of XXXX XXXX [20] The RPD found the affidavit of XXXX XXXX, a cousin of the Appellant's mother, did not establish the Appellant's identity and citizenship, on a balance of probabilities, as it does not contain sufficient information explaining how she is aware that the Appellant was born in Somalia and is a citizen of only Somalia. [21] The Appellant argues the RPD erred in drawing a negative inference from details that are not in the affidavit, instead of providing weight to the information that it provided, that the Appellant was born in and lived in Somalia, which was affirmed before a Commissioner of oaths, and there is no reason to doubt her statement. [22] I am persuaded by the Appellant's argument and find the RPD erred, though I have my own concerns with Ms. XXXX affidavit. The RPD ought to have assessed the document for its contents, in accordance with the case law.5 However, I note that Ms. XXXX statement is actually silent about the Appellant's citizenship. Ms. XXXX states the Appellant was born in and lived in Somalia, for which I assign her affidavit some weight. However, while her statements may be true and while being born in a country is a strong indication that one is a citizen of that country, these statements are not sufficient to establish the Appellant's nationality, on a balance of probabilities. Therefore, her evidence, on its own, cannot establish the Appellant's identity, on a balance of probabilities, but I afford it some weight in my overall assessment. The Appellant's birth certificate [23] The RPD noted that there is prevalence of fraudulent documents in Somalia and that the Appellant could not attest to the provenance of his birth certificate. Though the RPD did not make clear findings about the birth certificate, it is clear that the RPD did not find it established the Appellant's identity. [24] The Appellant argues the RPD erred in determining the birth certificate is fraudulent in the absence of any irregularities on the face of the document and in the absence of an objective sample to compare it against. [25] If I am to find, as the Appellant argues, that the RPD found the birth certificate fraudulent, then I find the RPD did not err. Alternatively, if the RPD did not make this finding, I independently find that the birth certificate is fraudulent, on a balance of probabilities. [26] I concur with the RPD that the Appellant's inability to attest to the provenance of the birth certificate undermines its credibility. I also note that the document bears the title "Brith certificate," with birth misspelled. I do not find that an error in the title of the document is reasonable. I note that in Digaf, the RAD was upheld by the Federal Court in finding that it was unreasonable for there to be a misspelling of the name of the administrative department that stamped the document in the stamp itself, and this rendered the document unreliable. The Court found the errors were substantive and reasonably supported the conclusion that the document was unreliable. The Court stated the errors identified, "...were in the formal name of the administrative department and in the official stamp affixed to the birth certificate."6 [27] Though the error in the Appellant's document is not in a stamp, I find similar reasoning applies. The error is present in the formal name of the document; a document for which the entire purpose is to establish the Appellant's birth. Therefore, contrary to the Appellant's argument, there is an irregularity on the face of the document. [28] For these reasons, I find, on a balance of probabilities, that the Appellant's birth certificate is fraudulent and deserving of no weight. I also draw a negative inference as to the Appellant's credibility. Pictures [29] The Appellant did not challenge the RPD's finding that the pictures he provided are of no probative value as there is no way to determine where or when they were taken. I also find, as the RPD did, that the pictures provided are of no probative value. Tomal clan membership [30] The RPD noted that both the Appellant and his witness/uncle, Mr. XXXX, alleged they were part of the Tumal and Madhiban clans, respectively, that both of these subclans are of the majority Hawiye tribe, and that they originated from the Hawiye tribe. The RPD found the evidence does not support that the Tumal and Madhiban are subclans of any of the majority clans or that they originated from Hawiye. [31] The Appellant argues he provided oral evidence regarding his clan and country that was consistent with the knowledge expected from a citizen of Somalia and a member of his clan. He argues what he and his uncle meant in their testimony was, "that the Tumal, due to its vulnerable position in society, attached itself to the large Hawiye clan for protection at times. However, they are not part of the same clan." He argues the RPD ought to have considered that he is unsophisticated and suffers from mental health issues in assessing his testimony and the manner in which he answered questions. [32] Although I find the RPD erred in not explicitly considering that the Appellant is unsophisticated and suffers from mental health issues, I do not find that the RPD erred in its conclusions. I acknowledge that the Appellant has limited education and suffers from mental health issues; however, I do not find that these are reasonable explanations for why he provided testimony that was inconsistent with the objective evidence. I also do not accept his argument that he "meant" that the Tumal get protection from the Hawiye. The Appellant declared his BOC was complete, true, and correct both when he signed it and again at the hearing. If he did not mean that the "Tumaal are a Clan of the Hawiya tribe," then he ought not to have stated that in his BOC and in his testimony. With regard to his mental health issues, I note that the medical report provided states the following: Interestingly, Mr. XXXX states that these symptoms have mostly resolved since arriving in Canada ... He has regained his ability to function independently ... He continues to have some difficulty with memory, particularly around recalling traumatic events, but otherwise states that he feels "normal" ... I do believe that his mental health has improved, perhaps remarkably so, since his time in the United States ... [His] illness can be said to be in remission due to the improvement within Canada; while minimal symptoms are still present, they do not cause functional impairment at the current time ... I do not recommend any medical or psychotherapy treatment at the current time.7 [33] Based on this report, I do not find that the Appellant's testimony about his clan was affected by his mental health condition, which is said to be in remission. [34] I also note that the objective evidence shows the importance and relevance of clan structure in Somalia cannot be overstated. "Somalia is a clan-based society..."8 "'The clan-system is the most important constituent social factor among the nomadic-pastoralist Somalis' and this 'segmentary lineage system can be differentiated into categories of clan-family, clan, sub-clan, primary lineage and mag-paying group as divisions of varying size.' [footnote omitted]"9 Somali clan genealogies... [have] importance in ordering and influencing daily life, politics, and violent struggles in Somalia... In the absence of long traditions of state-making and strong or even successful central government, the social and political-economic uses of such a genealogical ideology for the local people are obvious.10 [35] Given what I find, on a balance of probabilities, is the deep importance of clan structure in Somalia, I do not accept as reasonable that the Appellant and his uncle identified the Tumal and Madhiban subclans as part of and originating from the Hawiye clan, especially since they alleged they were born and raised in Somalia, and I do not find that the Appellant's mental health and lack of education/sophistication are reasonable explanations. [36] Therefore, I find the RPD did not err, and that the Appellant did not provide evidence that was consistent with the knowledge expected from a citizen of Somalia and a member of his clan. Therefore, I draw a negative inference as to the Appellant's credibility. The Appellant's travel to the USA [37] The RPD stated the following regarding the Appellant's travel from Somalia to the USA: a. The Appellant initially testified that he left Somalia on his own using a fraudulently obtained Somali passport in his own name which was later stolen in Brazil; b. When asked if he had the ticket he used to travel from Somalia to Ethiopia, he testified that he was using a fake passport and an agent was with him; and when it was pointed out that he had testified he travelled alone, he stated the agent helped him; c. The Appellant testified the name of the airport he left from was Aden Abdullah Osman, but it is actually named Aden Adde International Airport; d. The Appellant made no effort to obtain documentation to establish his travel to Ethiopia, which there would be record of given that he travelled on a passport in his own name; e. The RPD rejected the Appellant's explanation that he was afraid as he is safely in Canada, for why he did not make efforts to obtain documentation from the countries he travelled through on route to the USA. [38] Other than the Appellant's arguments about the new evidence about the name of the airport,11 the Appellant's Memorandum does not seem to address the RPD's points directly. It appears as though paragraphs 31 and 32 of the Memorandum are relevant. The Appellant argues it is an error to use the lack of corroborating evidence as a basis to disbelieve the Appellant's allegations. He also argues the RPD failed to consider the difficulty of obtaining even basic identity documents in Somalia. I also note the new evidence from the website of the airport purports to refute the RPD's comments about the Appellant stating the wrong name for the airport. [39] I find the RPD did not err. First to the Appellant's points, the RPD did consider the difficulty of obtaining identity documents in Somalia in paragraph 6 of its reasons. Additionally, with regard to the lack of corroborating evidence, the RPD did not use the lack of corroborating evidence to disbelieve the Appellant's allegations; it found the Appellant failed to establish his identity, which is different and has a high burden.12 [40] With regard to the name of the airport, I do not find that the Appellant's new evidence resolves the credibility concern of him naming the airport incorrectly. In the hearing he was asked the name of the airport he left from in Mogadishu. In response, he named Aden Abdullah Osman. Although the new evidence establishes the airport was named after this individual, that is not the name of the airport. Although the Appellant argues there is a sign in the airport with the full name of the former President, he has not provided evidence of this; even so, that is not the name of the airport. He also argues there is a sign in the airport where the full name 'Aden Abdulle Airport' is written; however, I do not accept this as credible as that is not the name of the airport. The Appellant initially testified he was travelling alone, in which case I would expect him to know the name of the airport. He later changed his testimony to indicate he travelled with an agent, which, in itself, is not credible. [41] Based on my own independent assessment, I fully concur with the RPD's reasons. Considering the Appellant alleges he travelled from Somalia to Ethiopia using a passport in his own name, it is not credible that he made no efforts to obtain evidence of this, whether he had an agent or not. During the hearing, the RPD asked the Appellant that he could have requested a ticket or proof that he travelled, and the Appellant responded, "I could have but it wasn't my job. It was an agent who did all this stuff."13 The RPD also provided the Appellant and his counsel time post-hearing for this very evidence to be obtained, but it was not. I find this significantly impacts the Appellant's credibility as there is evidence that potentially exists that would corroborate his identity and his travel out of Somalia, yet he made no efforts to obtain it. [42] Similarly, the Appellant made no efforts to obtain documentation from the countries he travelled through on route to the USA. He testified he was given a letter from each country, which were taken from him by the USA, and he did not try to get these documents from the USA because he was afraid. I, too, reject this explanation. The Appellant has had the assistance of lawyers in Canada and it does not make sense that he did not attempt to obtain these documents from the USA. [43] For these reasons, I find the RPD did not err and I find the Appellant's credibility is severely undermined. USA Asylum claim documents [44] The RPD did not accept the Appellant's identity on the basis of his USA asylum documents. The Appellant argues the RPD erred in its conclusion. He argues his consistency with his USA claim lends further credibility to his identity, particularly when viewed cumulatively with his other evidence. [45] I find the RPD did not err. Although I do find some weight can be given owing to the fact that the Appellant was consistent with his USA claim, I do not have any evidence to establish on what basis the USA determined his nationality. [46] I note the case of Mahdi,14 in which the claimant submitted documents to the USA authorities, upon which they were able to establish his identity. The claimant submitted those same documents to the RPD and the RPD found he failed to produce sufficient credible evidence of his identity, then went on to hold there was no credible basis for the claim (which the Court found was unreasonable). [47] In the Appellant's case, though there are documents within the USA asylum claim documents that refer to his Somali citizenship, there is no indication that the Appellant submitted documents to the USA authorities to establish his identity as a national of Somalia, as the claimant did in Mahdi. [48] Therefore, I find the USA asylum claim documents are insufficient at establishing the Appellant's identity, on a balance of probabilities. Medical assessment [49] The RPD gave minimal weight to the medical report from Dr. Michael C. Stephenson and found that it did not address the credibility concerns that arose in the claim. The RPD did not dispute the doctor's medical diagnosis or his experience, but found he went beyond his scope in advocating for the Appellant to remain in Canada and relied entirely on the self-reporting of the Appellant. [50] The Appellant argues it is an error to expect that a psychological report will not be based to some degree on 'hearsay' or 'self-reporting,' as described by the RPD, as he was the only one in the position to provide information about himself to a mental health professional. He further argues that the RPD erred in failing to assess what effect his mental health state had on the manner in which he testified, and the RPD erred by providing only minimal weight to the report. [51] Although I find the RPD erred in certain aspects of its analysis with regard to the medical report, I do not find the RPD erred in its conclusion to give the report minimal weight. I am persuaded by the Appellant that because he was the only one in the position to provide information to his doctor, it is an error to discount the report on that basis. I also find the RPD erred by not assessing what effect, if any, the Appellant's mental health had on his testimony. I agree with the RPD that the doctor's diagnosis and experience are not disputed. I note that the Appellant has not challenged the RPD's finding that the doctor went beyond his scope of practice in advocating for the Appellant to remain in Canada. [52] Based on my assessment of the evidence, I do not find that the Appellant's mental health impacted his testimony, nor do I find his mental health impacted his testimony in a way that would explain the credibility concerns in this claim. I refer to paragraphs 31 to 34 above, where I found the Appellant's testimony was not affected by his mental health condition. His doctor stated his illness is in remission, his minimal symptoms do not cause functional impairment, no treatment is recommended, and the only area in which he has some difficulty is with memory. The adverse findings made by the RPD and myself are not related to the Appellant's difficulties with memory. Therefore, I do not find the Appellant's mental health impacted his testimony. For that reason, I find the medical report is only entitled to minimal weight and the RPD did not err in this regard. Conclusion on identity [53] Based on all of the above findings, the totality of the evidence, and the weighing of evidence that support the Appellant's identity and evidence that detracts from his credibility, I find, that the Appellant has failed to establish his identity, on a balance of probabilities. While there is some evidence that supports his identity, I do not find it is enough, even cumulatively, to overcome the negative findings. [54] Therefore, as the Appellant's identity has not been established, I do not need to continue to assess his risk in Somalia. CONCLUSION [55] For the above reasons and after conducting its own analysis of the record, including the audio recording, the RAD finds that the RPD did not err in rejecting the Appellant's claim. The RAD finds that the Appellant has not established his identity on a balance of probabilities. As a result, the RAD finds that he has not established that he faces more than a mere possibility of persecution as per section 96, or that he faces harm, on a balance of probabilities, under section 97 of the IRPA. Therefore, the RPD's final determination that the Appellant is not a Convention refugee, nor a person in need of protection is correct, and this appeal is dismissed. [56] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) Inderpreet K. Singh I. Singh September 8, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, ss. 110 (4). 3 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 4 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 5 Teganya v. Canada (Minister of Citizenship and Immigration), [2012] FC 42, at paras. 24-25; Mahmud v. Canada (MCI), 167 FTR 309 [1999] FCJ No. 729, at para. 11. 6 Digaf v. Canada (Citizenship and Immigration), 2019 FC 1255, at paras. 46 and 49. 7 Exhibit RPD-1, RPD Record, Exhibit 9, at pp. 159-161. 8 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Somalia, 31 March 2020, item 13.3, Sweden Centre for Country of Origin Information and Analysis Lifos, 5 March 2013, at p. 5. 9 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Somalia, 31 March 2020, item 13.10, Austrian Red Cross; Austrian Centre for Country of Origin and Asylum Research and Documentation, December 2009, at pp. 7-8. 10 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Somalia, 31 March 2020, item 13.9, Leiden University African Studies Centre, 18 December 2009, at p. 3. 11 Exhibit P-1, Appellant's Record, Appellant's Memorandum, at pp. 98-99, paras. 11-12. 12 Sai Su et al v. Canada (MCI), 2012 FC 743, at para. 4. 13 Transcript of May 4, 2018, RPD hearing, at p. 23, line 20. 14 Mahdi, Hilbil Hassan v. M.C.I. (F.C., no. IMM-2664-15), Phelan, February 17, 2016, 2016 FC 218. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-15831 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