TB8-09254

RAD File / Dossier de la SAR : TB8-09254 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 August 8, 2019 Date de la décision Panel M. Lee Tribunal Counsel for the person who is the subject of the appeal Cemone Morlese 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), citizen of Somalia, appealed a decision of the Refugee Protection Division (RPD), dated March 12, 2018, rejecting their claim for refugee protection. DETERMINATION [2] In accordance with paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA),1 the Refugee Appeal Division (RAD) allows the appeal and sends the decision back to the RPD for re-determination. BACKGROUND [3] The Appellant alleges to be a citizen of Somalia and alleges persecution due to his perceived political opinion as a supporter of Western culture through his XXXX XXXX, his ethnicity due to his minority Asharaf clan status, as well as his religious affiliation as a Sufi Muslim. [4] The Appellant fled to Kenya in XXXX 2014 after he became a person of interest to the Al-Shabaab terrorist group. With the assistance of a smuggler, the Appellant left Kenya and traveled to the United States, using a fraudulently obtained passport, on XXXX XXXX, 2016. He remained in the United States without status until XXXX XXXX, 2017. The Appellant eventually crossed the Canadian border on foot and made his claim for refugee protection. [5] The Minister's Representative from Immigration, Refugees and Citizenship Canada (herein referred to as "the Minister") intervened through documents on the issues of credibility and program integrity, alleging that the Appellant is genuinely a Kenyan citizen.2 The RPD heard the Appellant's claim on January 30, 2018 and again on February 22, 2018. The RPD denied the refugee claim on the issue of identity on March 12, 2018.3 The Appellant alleges that the RPD erred in its identity assessment. The RAD carefully considered the Appellant's arguments and submissions in its decision. Role of the RAD [6] According to the Federal Court of Appeal's ruling in Huruglica,4 the RAD will review decisions of the RPD on a standard of correctness after conducting an independent analysis of the evidence. [7] The RAD will defer to certain findings of the RPD where the RPD enjoys a meaningful advantage in assessing the oral evidence at the hearing. ANALYSIS [8] The Appellant is not making an application under section 110(4) of the IRPA and is also not requesting an oral hearing under section 110(6) of the IRPA.5 The RPD failed to properly assess wife's affidavit, XXXX XXXX letter and mother's affidavit [9] The RAD agrees with the Appellant, and finds that the RPD failed to properly assess some key documents in its analysis of the Appellant's identity. In summary, the RPD rejected the Appellant on the determinative issue of identity with little to no assessment of the Appellant's wife's marriage affidavit, the letter from XXXX XXXX, and the mother's affidavit. [10] The Appellant submits that the RPD was required to assess the affidavit from the Appellant's wife and failed to do so.6 The Appellant further submits that the RPD erred by giving the letter from XXXX XXXX no weight without conducting any analysis, based on the existing identity concerns.7 The Appellant also submits that the RPD erred by dismissing the mother's affidavit for the same reason as the photographs.8 [11] After reviewing the RPD's decision, the RAD finds that the RPD failed to conduct a fulsome analysis of the aforementioned documents, which are significant to the determination of the Appellant's identity. In its decision, the RPD briefly mentioned that it rejected these documents, but did not clearly state the reasons why it rejected them. Reasons given for rejecting a part of a claimant's allegations must be clear and intelligible. [12] However, the RAD finds that there is insufficient evidence on record to conduct its own independent analysis. No questions were asked at the hearing about the Appellant's interview at the XXXX XXXX.9 No questions were asked about the undated wife's marriage affidavit10 or how the Appellant obtained this document in Canada, or whether the Appellant continues to have contact with his wife who presently resides in the United States. Given that this relates to the Appellant's spouse, this could be significant evidence to the identity assessment. [13] The RAD also considers the mother's affidavit in its analysis.11 No questions were asked at either of the two hearings regarding the contents of the affidavit or how the Appellant received it in Canada. [14] Each of the aforementioned documents could potentially affect the strength of the Appellant's evidence regarding his personal and national identity. The RAD does not have sufficient evidence to conduct a complete independent analysis of these documents. The RPD did not properly assess the witness evidence [15] The RAD finds that the RPD did not properly assess the witness testimony. The RAD agrees with the Appellant that the RPD did not provide reasons for rejecting the witness evidence. The RPD's analysis contained four sentences, merely indicating that the witness lacked knowledge in "specific areas", and that the witness provided "contradictory testimony with regard to the Mosque where they prayed".12 No elaboration was provided on what this contradictory testimony contained or in which specific areas the witness lacked knowledge. [16] The RAD considered the witness oral testimony and his affidavit.13 The RAD considered this evidence in the context of the Minister's intervention.14 The Minister is alleging that the Appellant may be a Kenyan citizen, traveling on his genuine passport, with the same name and date of birth as he alleges in his refugee claim documents. Therefore, even if the Appellant is ethnically Somali with the name "XXXX XXXX XXXX" and the date of birth, "XXXX XXXX, 1989", the Minister is alleging that the Appellant obtained Kenyan citizenship at some point before arriving in Canada.15 [17] However, at the RPD hearing, no questions were posed to the witness regarding whether he was aware of the Appellant's travels, living circumstances, or citizenship. These could be potentially important areas to explore in an identity analysis where the Appellant's nationality is in question. The RAD does not have evidence on this issue in order to conduct a complete independent analysis. The RPD did not properly analyze the biometrics regarding the Appellant's alleged Kenyan passport [18] The RAD agrees with the Appellant, in that the RPD relied on speculation in dismissing the Kenyan passport as a fraudulent document based on the expiry date.16 The RPD concluded that the Kenyan passport must be fraudulent, because the Appellant's passport expired in XXXX XXXX, 2022.17 Therefore, since Kenyan passports are issued in five and ten year increments, the passport had to be issued in 2017 or 2012. [19] The RAD has carefully reviewed the Minister's submissions, the oral evidence, and the articles on bribery, corruption and fraud from the Appellant's counsel at the RPD hearing. The RAD agrees that the RPD cannot speculate on the mindset of a smuggler, and whether or not the passport would have a false issuance date. This is an error. Also, the RPD does not cite any documentary evidence regarding why it believed that Kenyan passports had a 5 to 10 year validity period. At the hearing, the RPD Member indicated on record that they were uncertain of the exact validity period.18 However, in its decision, the RPD cites this uncertainty, which forms a significant part of its negative identity analysis.19 The RAD also finds this to be an error, as some objective evidence should be cited to verify this statement. [20] In assessing the Appellant's allegations that this passport was possibly fraudulently created or fraudulently obtained, the RAD also finds that there is insufficient evidence on record to conduct a complete independent analysis. In the biometric evidence, there is a record of the Appellant having used a Kenyan passport in XXXX 2015.20 However, the Appellant alleges that he was issued a United States visa after a second interview using the same passport given to him by the smuggler.21 There is no record that a visa was ever issued in the biometrics.22 The RAD finds this concerning. No oral explanation was provided by the Appellant on how or why this could be the case. The RAD has insufficient evidence to determine whether the Appellant is a Convention Refugee or Person in Need of Protection [21] The RAD finds that there is insufficient evidence on record to render a positive decision for the Appellant. The RAD has concerns regarding the issue of identity. [22] The Appellant alleges he lived in two different countries over a period of four years. More evidence is required on the Appellant's activities during the two years he spent in Kenya. The RAD also has concerns with the Appellant's failure to claim in the United States. No findings were made on this issue, and the RAD finds that more evidence needs to be elicited on the two years that the Appellant spent in the United States. The RAD finds that the whereabouts of the Appellant during this four year period could impact the assessment of the Appellant's nationality as well as the credibility of whether he is truly a Somali national without status in any other country. [23] As the RAD cannot have a de novo hearing, it is up to the RPD to explore these remaining issues in order to render a fair and proper determination for the Appellant. CONCLUSION [24] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. (signed) "M. Lee" M. Lee August 8, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit RPD-1, RPD Record, Exhibit 5, at pages 106-119. 3 Exhibit RPD-1, RPD Record, RPD Reasons and Decision. 4 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, para. 78. 5 Exhibit P-2, Appellant's Record, Written Statement, at page 10. 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 21, paragraph 28. 7 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pages 21-22, paragraphs 30-31. 8 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 24, paragraph 43. 9 Exhibit RPD-1, RPD Record, Exhibit 4, at page 73. 10 Exhibit RPD-1, RPD Record, Exhibit 4, at pages 81-82. 11 Exhibit RPD-1, RPD Record, Exhibit 4, at pages 84-85. 12 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 7, paragraph 14. 13 Exhibit RPD-1, RPD Record, Exhibit 4, at pages 69-70. 14 Exhibit RPD-1, RPD Record, Exhibit 5, at pages 113-114. 15 Ibid. 16 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at page 31, paragraphs 70-74. 17 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 5-6, paragraph 9. 18 Transcript of February 22, 2018 RPD Hearing, at page 28, lines 37-40. 19 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 5-6, paragraph 9. 20 Exhibit RPD-1, RPD Record, Exhibit 5, at pages 113-114. 21 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim narrative, at page 23, paragraph 10. 22 Exhibit RPD-1, RPD Record, Exhibit 5, at pages 113-114. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-09254 RAD.25.02 (April 04, 2019) Disponible en français 7 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 (April 04, 2019) Disponible en français