TB7-23779

RAD File / Dossier de la SAR : TB7-23779 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 1, 2019 Date de la décision Panel M. Oh Tribunal Counsel for the person(s) who is(are) the subject of the appeal Lina Anani Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX ("the appellant") appeals a decision of the Refugee Protection Division ("RPD"), rejecting his claim for refugee protection. The RPD found that the appellant, who claims to be a citizen of Somalia, failed to establish his identity. The appellant argues that the RPD erred in its assessment of his identity. [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"), the appeal is dismissed. After conducting an independent assessment of the evidence, I agree with most of the RPD's reasons and find that the appellant has failed to establish his identity on a balance of probabilities. BACKGROUND [3] The appellant alleges that he is a citizen of Somalia, and member of the XXXX XXXX. He claims to fear persecution from XXXX XXXX XXXX. In XXXX 2007, the appellant's father received a letter from XXXX XXXX XXXX, threatening to kill the appellant and his family if the appellant and his brother did not attend the XXXX, where a new XXXX was seeking to recruit XXXX into XXXX XXXX XXXX XXXX The appellant fled to Kenya. After living there for a few years, he made his way to South Africa in XXXX 2011, where he claims to have obtained refugee status. As a result of xenophobic violence, the appellant chose to leave South Africa in order to make a refugee claim in the United States. He arrived in the United States in XXXX 2016, and made an asylum claim. Fearing deportation, the appellant chose to abandon his U.S. asylum claim and crossed into Canada in November 2016 and initiated another refugee claim. Role of the Refugee Appeal Division [4] The jurisprudence establishes that the Refugee Appeal Division ("RAD") is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.1 [5] In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at my own independent findings based on the evidence before me. Admissibility of New Evidence [6] The appellant has submitted several pieces of new evidence on appeal. These include: i. An affidavit from XXXX XXXX XXXX, who claims to have known the appellant from Somalia, along with her refugee protection claimant document and a copy of a positive RPD notice of decision2 ii. Immigration forms concerning XXXX XXXX XXXX sponsorship application3 iii. Photographs depicting XXXX XXXX XXXX and the appellant together4 [7] The IRPA limits the ability of appellants to present new evidence on appeal to the RAD. Subsection 110(4) of the IRPA states that, on appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the claim's rejection. [8] If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must then consider factors around the credibility, relevance, and newness of the evidence.5 Evidence from XXXX XXXX XXXX [9] The affidavit and documents from Ms. XXXX are admitted on appeal. [10] The appellant argues that Ms. XXXX affidavit is admissible because her evidence was not reasonably available when his claim was before the RPD. The affidavit explains that although the appellant and Ms. XXXX kept in touch for a number of years, they lost communication in 2014. The affidavit explains that by mere coincidence, the two happened to reunite on XXXX XXXX, 2017 - nine days after the appellant's claim was rejected, when the appellant happened to see Ms. XXXX at a XXXX XXXX in Winnipeg, during a trip there. As their reunion occurred only after the RPD rejected the claim, the appellant submits that the criteria of s. 110(4) of the IRPA are met. The appellant also submits that the affidavit is probative, relevant, and material. [11] It is an incredible coincidence that the appellant reunited with Ms. XXXX just nine days after his RPD claim was rejected and prior to the deadline for perfection of his appeal, however I will not question the plausibility of the circumstances of their reunion. I acknowledge that as the two lost communication in 2014, Ms. XXXX evidence was not reasonably available to the appellant until their reunion. The affidavit meets the criteria for credibility, relevance, and newness of evidence. Sponsorship application and photographs from XXXX XXXX XXXX [12] The sponsorship application and photographs from Mr. XXXX are also admitted as new evidence. [13] Mr. XXXX had intended to testify as an identity witness by teleconference for the appellant's RPD hearing, however he did not respond to telephone calls during the hearing. In advance of the hearing, the RPD requested a copy of Mr. XXXX permanent residence application ("sponsorship application"), in order to verify whether the two provided a consistent residential history. [14] The sponsorship application was requested by the RPD on October 2, 2017, just seventeen days prior to the appellant's hearing. The appellant explained at his hearing that Mr. XXXX is a XXXX XXXX who spends a significant time away in the United States. As such, he did not have sufficient time to locate his sponsorship application. It was only after the RPD's rejection that Mr. XXXX was able to locate his application. In addition, the appellant explains that Mr. XXXX happened to find photographs of them together while locating his sponsorship application. [15] The RPD rejected the appellant's claim on November 1, 2017. It was understandably difficult for the appellant to adduce evidence of his witness' sponsorship application when that evidence is outside of his control and in the possession of an individual who spends a considerable amount of time outside of Canada. I note as well that the sponsorship application forms were signed in 2007 - ten years prior to the appellant's hearing. Under the circumstances, I am satisfied that this evidence was not reasonably available to the appellant when his claim was before the RPD. [16] The absence of the sponsorship application formed the basis for one of the RPD's findings, where it drew a negative inference from the appellant's lack of efforts to obtain a copy of the application. Given the RPD's finding, the sponsorship application has relevance to the issues on appeal. There are no concerns as to the authenticity of the forms, and it is clearly new in the sense that such evidence was not put before the RPD. The photographs are relevant to the appellant's relationship with Mr. XXXX and therefore the strength of Mr. XXXX identity evidence. I am satisfied that the sponsorship application and photographs meet the thresholds for relevance, credibility, and newness. Request for an Oral Hearing [17] The appellant requests that an oral hearing be held, however counsel's submissions are somewhat unclear as to why one should be held. Counsel submits that an oral hearing would enable the appellant and "any witnesses" to provide further evidence on any issues of concern to the RAD. Counsel also submits that if the RAD reaches further credibility findings, an oral hearing would be required in order to give the appellant an opportunity to make submissions on those issues. [18] Subsection 110(6) of the IRPA establishes that the RAD may hold a hearing if there is new evidence that raises a serious issue with respect to the appellant's credibility, that is central to the decision with respect to the refugee protection claim, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [19] Mr. XXXX sponsorship application and photographs have little probative value, as explained further below, and do not warrant convoking an oral hearing. [20] In regard to Ms. XXXX evidence, it is unclear whether the appellant wishes to call Ms. XXXX as a witness. The appellant's memorandum does not specifically speak to this possibility, and Ms. XXXX affidavit mentions nothing of her willingness to act as a witness. [21] In any event, even if the RAD were to cross-examine Ms. XXXX on the contents of her affidavit, the probative value of this evidence would not overcome the other issues. I note that Ms. XXXX was born on XXXX XXXX XXXX 1993. She claims to have met the appellant in Somalia in 2002, when she was nine years old. She describes that she last saw the appellant in Somalia in early 2007, when she would have been only about 14 years old. She did not have a close relationship with the appellant in Somalia, but rather describes that he used to XXXX XXXX with her brother a few times a month, and that they frequently came home for refreshments. Ms. XXXX affidavit contains no other evidence to corroborate her former residence in XXXX, where she claims the appellant would go to visit her home. No documents or evidence from her own refugee claim, such as her Basis of Claim Form and immigration forms, was provided that would at least allow the RAD to determine whether the two have a consistent history of residence in the XXXX district. [22] Under these circumstances, and for reasons that will be provided in greater detail below, Ms. XXXX evidence is not determinative of the issue of identity, and is not dispositive of the claim. The request for an oral hearing is therefore denied. MERITS OF THE APPEAL [23] There are two main issues argued on appeal. First is whether the RPD's conduct during the hearing resulted in a breach of natural justice. Second is whether the RPD erred in its identity findings and in its treatment of the supporting evidence. a) Breach of Natural Justice [24] The appellant submits that there was a breach of procedural fairness because of the RPD's behaviour during the hearing. The appellant claims that the RPD was aggressive, spoke to him in abrupt terms, and used a loud voice. This supposedly caused the appellant to feel so intimidated and nervous that it affected his ability to focus and respond fully to the RPD's questions. I do not agree that a breach of natural justice arises from the RPD's conduct. [25] There are a number of difficulties with this argument. [26] First, the appellant fails to actually identify any specific examples from the hearing record of the RPD's supposedly poor conduct. Having reviewed the hearing record, I do not share the appellant's characterization of the RPD's conduct. There were aspects of the hearing that were certainly challenging. In particular, an issue arose during the hearing about the status of the appellant's asylum proceedings in the United States. When the RPD questioned the appellant about this, the appellant gave confusing testimony that was ultimately not responsive to the RPD's questions. The RPD repeated and rephrased its questions in an attempt to clarify matters for the appellant. When the appellant failed to answer the RPD's questions even after multiple attempts to clarify the issue, the RPD took a break. The RPD's questions were aimed at assisting the appellant in understanding the issue. Throughout the hearing, the RPD was forced to confront the appellant's discrepancies and inconsistencies. When the appellant seemed to become emotional, the RPD offered to give the appellant time for him to compose himself. I have not identified any instances of poor conduct by the RPD, especially under the circumstances that arose during the hearing. [27] Second, it is important to consider that the appellant's counsel at the RPD did not raise any issue of natural justice or procedural fairness at the hearing. There was no objection at any point in the hearing regarding the RPD's conduct. This is significant, as breaches of procedural fairness must be raised at the earliest possible opportunity.6 If the RPD's conduct was as poor as the appellant alleges, it is not reasonable that this issue has only arisen on appeal, after the appellant's claim had already been rejected. [28] In my own assessment of the hearing record, I find that the RPD's conduct did not give rise to a breach of procedural fairness or natural justice. b) RPD's assessment of the appellant's identity [29] The appellant argues that the RPD erred in various ways in its assessment of his identity. The issues may be described as follows: i. Whether the RPD erred by drawing negative credibility findings from a correction that had to be made to the appellant's Basis of Claim (BOC) Form in regard to the status of his asylum claim in the United States; ii. Whether the RPD erred in drawing a negative inference from an inconsistency in the appellant's date of birth; iii. Whether the RPD erred in drawing a negative inference from perceived inconsistencies in the appellant's clan lineage; iv. Whether the RPD erred in its treatment of the evidence from Mr. XXXX, who had intended to act as the appellant's identity witness; v. Whether the RPD erred in its treatment of the affidavit from XXXX XXXX XXXX simply because the two did not know each other in Somalia; vi. Whether the RPD misapprehended the purpose of the notarized letter from XXXX XXXX, and erred in discounting it simply because the author was not available for cross-examination; and vii. Whether the RPD erred in its treatment of letters from local Somali community organizations. [30] The appellant's arguments will be addressed below. i) Inconsistent evidence regarding the status of asylum proceedings in the United States [31] The appellant provided inconsistent information about the status of his asylum proceedings in the United States. This caused the RPD to draw a negative inference and to conclude that the appellant's U.S. asylum claim had in fact been denied, as originally alleged. I agree with the RPD's finding. [32] Initially, the appellant wrote in his BOC Form that his asylum claim was denied in the United States. However, after the RPD requested an audio recording of the proceedings, the appellant changed his BOC Form to say instead that he abandoned his claim. This caused the RPD to draw a negative inference. The RPD went further to conclude that the appellant's U.S. asylum claim had in fact been denied, and that the appellant was attempting to withhold unfavourable information about the reasons for the denial. The RPD gave no weight to the appellant's birth certificate, as the original document was still in the possession of U.S. authorities, and as only a photocopy had been presented to the RPD. [33] The appellant argues that his U.S. asylum claim was not a significant event for his Canadian claim, and that in any event, he corrected the information in his form. He relies on jurisprudence on BOC Form omissions to argue that the RPD erred in drawing a negative inference. The appellant submits that there is no way to prove that his claim was abandoned and not denied, since he simply left the U.S. without completing his claim. The appellant also argues that the RPD erred by giving no weight to the fact that his identity had been accepted by authorities in the United States, and by ignoring the U.S. claim documents that provide a consistent account of the appellant's narrative, travel route, and identity. [34] I do not agree with the appellant's arguments. The jurisprudence relied upon by the appellant is entirely distinguishable, as it relates to the omission of elaborative details from a refugee claimant's narrative. The omission of a Christian convert's date of baptism, for instance, might not be material under some circumstances, and it may well be difficult for claimants to anticipate what might be considered material by the RPD. However, in the present case, the Basis of Claim Form specifically asks claimants to disclose whether they have made previous asylum claims, and to disclose the results of those claims. [35] Here, the appellant did not simply omit a detail from his forms, but he provided false information. I agree with the RPD that this was not an innocent error, given the repetition of the error, the timing of its correction, and the appellant's evolving testimony around the issue during the hearing. [36] The appellant completed his Basis of Claim Form with the assistance of an experienced refugee lawyer as well as a Somali interpreter. The appellant signed the form, declaring it to be complete, true, and correct, and declaring that the entire contents had been interpreted to him. The Somali interpreter too signed a declaration, indicating that he had accurately interpreted the entire form and attached documents to the appellant, and that the appellant had assured him that he understood the entire contents as interpreted. Despite this, question 4 of the Basis of Claim Form indicates that the appellant's U.S. asylum claim was denied.7 The written narrative also states: I was able to find an agent to assist me in travelling to the USA. I made a refugee claim there after arriving on XXXX XXXX, 2016. My claim was denied and I later crossed into Canada on foot and made an inland refugee claim in Manitoba.8 [37] In addition, the appellant's Schedule A Form states: I made previous claim in USA. I was ordered to be deported to Somalia.9 [38] The Schedule 12 Form indicates that the appellant's Schedule A Form was completed with the assistance of a volunteer in Winnipeg. The Schedule A Form was signed by the appellant on November 21, 2016, where he declared that the contents were truthful, complete, and correct. [39] Despite the supposed error in these forms, the appellant did not submit an amendment to the Basis of Claim Form until October 16, 2017, many months after the forms were completed, and only after the RPD requested an audio recording of the appellant's U.S. immigration court decision. [40] In addition, having reviewed the RPD hearing record, I agree that the appellant provided evolving and contradictory testimony on this issue. Initially the appellant testified that he did not have a hearing in the United States, and that he departed after learning from his U.S. lawyer that he was expected to obtain a Somali passport in order to facilitate his departure in the event of a negative result. When the RPD confronted him with the information in his initial Basis of Claim Form about having been denied refugee status in the U.S., the appellant denied having written this. He even denied having had interpretation for his Basis of Claim Form, only changing his testimony after the interpreter's declaration was shown to him. He then blamed the discrepancy in the Basis of Claim Form on possible mistakes in his U.S. release papers. He proceeded to contradict his earlier testimony, saying that he actually did receive a deportation order in the United States. When this contradiction was put to the appellant, he backtracked on his answer. He ultimately gave the explanation that he had failed to amend his Basis of Claim Form earlier because he had a knee injury. [41] Adding to this confusion is the appellant's explanation for supposedly abandoning his U.S. asylum claim. According to his testimony, the appellant decided to abandon his U.S. claim because his lawyer instructed him to obtain a passport, which would facilitate his departure to Somalia in the event of a negative decision. Despite clarifying this matter with his lawyer - that he could only be removed in the event of a negative decision - the appellant feared that he might be caught at any time and removed to Somalia. The RPD was skeptical of this explanation, and rejected it as it found that the appellant's fear of deportation lacked any objective support. The RPD considered that the United States has a functioning inland asylum system and that there is no evidence to indicate that claimants are being deported from the United States before receiving a determination on their claims. I agree with the RPD that this explanation is difficult to understand. The appellant left South Africa with the intention of making an asylum claim in the United States. He was represented by a lawyer in the United States, who did not actually advise him that he could be deported prior to a determination on his claim. He had already initiated a claim and his only government-issued identity document, his birth certificate, was in the possession of U.S. asylum authorities. I find it difficult to appreciate why the appellant would abandon his plans in the United States for an unfamiliar asylum process in Canada based on unsupported fears, and leaving behind his only official identity document, especially when his fears were not at all supported by legal advice from his own lawyer. [42] I have considered the above factors, namely the inconsistent information in the appellant's forms, the timing of the amendment to his Basis of Claim Form, his evolving testimony, and his nonsensical explanation for his decision to supposedly abandon his asylum claim. I agree with the RPD that the appellant's original statement - that his claim was denied - is the most likely scenario. I too determine that the appellant merely changed this information in an effort to withhold information about the proceedings that took place in the United States. The withholding of this information caused the RPD to place no weight on the appellant's birth certificate photocopy, and I agree with the weight assigned to this document, especially given that the RPD did not have the opportunity to examine the original and as the appellant did not demonstrate any efforts to attempt to regain possession of the document. [43] In regard to the U.S. asylum documents and what weight they carry, I do not agree with the appellant's argument. [44] The appellant completed a credible fear interview in the United States. His allegations there were the same as alleged here. It appears that an asylum officer in the United States concluded through the credible fear interview that the appellant's identity had been determined within a reasonable degree of certainty. However, to be clear, the determination indicates that the appellant had no government-issued identification, and that the determination was reached on the basis of the appellant's statements and some unspecified other documents. It indicates that the appellant referred to having some documents issued in South Africa containing some of his personal information, but it is unclear as to what documents these were and whether they were presented to U.S. asylum authorities.10 [45] Regardless of whether the RPD was wrong in failing to mention this information, where, as here, there is so little information and evidence to support the U.S. identity determination, and where the appellant has been withholding information about his U.S. asylum proceedings, I would not place significant weight on the identity determination that was made at the credible fear interview. ii) Inconsistent evidence about appellant's date of birth [46] The RPD also drew a negative inference in relation to the appellant's identity because of an inconsistency in his date of birth. Although he testifies that he was born on XXXX XXXX, 1990, his BOC Form indicates that he was born on XXXX XXXX, 1990. I agree with the RPD's finding. [47] The appellant argues that the finding is in error, as the difference in the dates is clearly due to a typographical error in the BOC Form. [48] The difference in the dates is relatively small and I might have been able to accept the difference as an innocent typographical error, were it not for the fact that it is repeated throughout many of the appellant's forms and even in the appellant's U.S. asylum forms. The appellant's BOC Form11, his Generic Application Form12, his Schedule A Form13, and his Schedule 12 form14 all identify the appellant's date of birth as XXXX XXXX, 1990. [49] This is despite the fact that the photocopy of the appellant's birth certificate indicates that he was born on XXXX XXXX, 1990, and despite the fact that the appellant apparently committed the very same error in the United States. In the U.S. form, he initially listed his date of birth as XXXX XXXX, 1990, and amended it to XXXX XXXX, 1990, in conformity with his birth certificate. The U.S. form indicates that the date of birth was changed after the appellant explained that the error was due to misinterpretation.15 [50] Where the appellant had already committed this error in the past, and had to amend his date of birth during his U.S. proceedings, I too find it difficult to accept that the appellant simply again happened to provide the wrong date of birth in his Canadian forms due to typographical errors. I agree with the RPD that this casts doubt on the appellant's true date of birth. iii) Appellant's testimony regarding clan lineage [51] The RPD drew a negative inference on identity as the appellant did not describe a clan lineage that was consistent with the documentation in the National Documentation Package ("NDP") for Somalia. On this particular issue, I find that the RPD erred. [52] The appellant claims to belong to the XXXX, a subclan of the XXXX XXXX. The major issue in the testimony, in the RPD's eyes, was the fact that the appellant's description of his lineage did not precisely match the clan lines described in one of the documents in the NDP for Somalia. In particular, the appellant failed to identify the XXXX subclan as part of his lineage. The RPD noted that the clan system is integral to Somali identity and daily life, and that despite the appellant's low level of education, he should still have been able to provide a description of his lineage that would match with the document in the Somalia NDP. [53] I agree with the appellant that the differences between his description of his clan lineage in comparison to one of the documents in the Somalia NDP should not have warranted a negative identity finding. The very document upon which the RPD relied begins with a preface, explaining that the paper's outline of genealogy does not purport to be an accurate historical tree at any specific point in time. The paper explains the difficulties in mapping out an accurate genealogy, due to the multiple assimilations of groups to genealogical lines and even the manipulation of lines. The paper specifically states the following: Surely, due to the fusion of narrative and fact, the idea that there will ever be an undisputed total genealogy is a chimera: the very basis of genealogical tracing in Somali culture is its flexibility as an idiom of social and political positioning of people: within the broad outlines of the major clan-families, alternative reckonings, reclassification and 'manipulation' of descent and lineages are the very game of Somali life.16 [54] As such, I disagree with the RPD's characterization of the clan tables as "comprehensive". It is possible that the appellant's understanding of his clan lineage, and his own family's understanding of their placement within the genealogy are not exactly consistent with the documentation in the NDP. I therefore find that the RPD erred on this issue, and I have not relied on it in my own assessment of the appellant's identity. iv) RPD's treatment of the affidavit from XXXX XXXX [55] The RPD gave no weight to an affidavit from the appellant's intended identity witness, and drew negative inferences from some of the information contained within it. I agree with the RPD's reasons for giving the document no weight. [56] The appellant intended to call Mr. XXXX XXXX as a witness by teleconference during his hearing. Despite multiple attempts to reach Mr. XXXX by telephone, he did not answer. The RPD was therefore unable to cross-examine the witness about the contents of his affidavit. In this case, this was significant as there was an inconsistency in the affidavit, in that Mr. XXXX indicated that the appellant lived in Kismayo, rather than in the XXXX district. [57] The appellant argues that the RPD erred in its treatment of Mr. XXXX affidavit, as it was an error to discount it simply because the witness was not available for cross-examination. The appellant also submits that it was an error for the RPD to reject the affidavit and simultaneously rely on it to impeach the appellant's credibility. [58] I agree with the appellant that it was an error for the RPD to both give the document no weight and simultaneously use its contents to impugn the appellant's residence history. However, with that said, the RPD's reasons for giving the affidavit no weight are entirely valid. On my own review of the hearing record, the appellant's testimony is inconsistent with the contents of Mr. XXXX affidavit. When questioned about his place of residence in Somalia, the appellant explained that he lived in XXXX, a village located in the XXXX district. He described that his village was a mere ten-minute walk away from XXXX, which is a major town in the XXXX XXXX region. By contrast, the appellant indicated that Kismayo was much further away, about one or two hours' drive. However, the affidavit from Mr. XXXX indicates that the appellant's family moved to Kismayo when they were young, and that they lived in Kismayo and grew up there together, in a village called XXXX.17 [59] Given the different description of XXXX location given by the appellant in comparison to his witness' affidavit, the RPD expressed concern. When confronted with this discrepancy, the appellant merely answered that XXXX is not too far from Kismayo, and not far from XXXX. This inconsistency was sufficient for the RPD to discount the affidavit. [60] The RPD did not discount the affidavit solely because it was unable to cross-examine the affiant. Importantly, it noted a discrepancy in the appellant's residence as described in the affidavit and found that it could not put this concern to the affiant or seek any clarification on this issue from him. Under the circumstances, the RPD did not err in discounting the affidavit. The RPD could not have considered the affidavit to be trustworthy if it contradicted the appellant's testimony about his place of residence. [61] In my own independent assessment, I have considered Ms. XXXX affidavit but find that its contents do not overcome the inconsistency in Mr. XXXX affidavit. Ms. XXXX describes XXXX village as on the "outskirts" of Kismayo.18 This falls somewhat closer to the appellant's testimony that it was one or two hours away from Kismayo, but does not cure the inconsistency. Mr. XXXX affidavit clearly states that the appellant moved to and lived in Kismayo. Even if Mr. XXXX had intended to refer to the district of Kismayo, this remains an entirely different district from the XXXX district, where the appellant claims to have lived. [62] I have also considered Mr. XXXX sponsorship forms and photographs in my own assessment of the weight to be given to Mr. XXXX affidavit. However, I find that they have very little probative value. Although the RPD also discounted the affidavit because of the absence of the affiant's immigration sponsorship forms, in my view the absence of these forms is inconsequential. The RPD merely requested these documents in an effort to ascertain whether the appellant and his witness had provided a consistent account of their residential history in the XXXX district. The sponsorship forms submitted on appeal do not assist in verifying this information. The application is incomplete. Only the sponsor forms were submitted, and all of the applicant's forms are missing. Mr. XXXX residential history is not set out in any of the forms. Though the appellant argues that this is due to the fact that sponsorship forms are different from refugee forms, I am not at all persuaded by this. It is inconceivable that a background information form would not have been submitted by Mr. XXXX in his immigration application, as he would have needed to be screened for his admissibility to Canada. Surely, his personal and residential history would have been included as part of that screening. Given the lack of any residential history in the sponsorship forms, the forms have no probative value in establishing that the affiant and the appellant resided in the same area in Somalia. [63] Lastly, the appellant submits photographs depicting him and Mr. XXXX together. These photographs have very little probative value. Contrary to the appellant's arguments, they do not establish that the appellant and his witness knew each other in Somalia. They merely depict the appellant and his witness together. There is no indication as to when or where these photographs were taken. [64] In view of the inconsistent evidence in Mr. XXXX affidavit about the appellant's place of residence in Somalia, I too give it no weight. The appellant's new evidence does not influence the evidence in a way that would cause the RAD to place any significant weight on Mr. XXXX affidavit. v) Treatment of the letter from XXXX XXXX [65] One piece of identity evidence provided by the appellant was a notarized letter from XXXX XXXX, who claims to be the appellant's cousin19. The RPD gave no weight to this letter, and I agree with the RPD's treatment of this document. [66] The appellant argues that the RPD misapprehended the purpose of this document, as the RPD considered that it was not responsive to the issue of whether the appellant's U.S. asylum claim had been denied. That was not the purpose of the letter, and as such the appellant believes that the RPD failed to consider the contents of the letter for its intended purpose, which was to attest to the appellant's identity. In addition, the appellant submits that the RPD erred in its assessment by relying on the fact that the author of the letter was not made available for cross-examination. [67] I find that the RPD did not err in its treatment of this document. The RPD considered whether this letter was capable of speaking to the issue of whether or not the appellant's U.S. asylum claim had been denied. It found that it was not responsive to that issue, but that it merely noted that the author had hosted the appellant at her home after he was released from detention. Importantly, the RPD noted that the letter was vague and that the author was not made available to be called as a witness by teleconference. Indeed, the purpose of the letter is not clear. If it was meant to speak to the appellant's identity, it does a rather poor job of this. It merely states the author's name, the appellant's name, and that their mothers are first cousins. It does not indicate anything about the author's knowledge of whether the appellant is even a citizen of Somalia, where the appellant has lived or whether he ever lived in Somalia, whether the two ever saw each other in Somalia, nor does it mention any of their mutual family members' names. [68] In addition, I note that no original copy of this notarized letter was even presented to the RPD. During the hearing, counsel states that this letter was sent by email. This is not reasonable. Rule 42 of the Refugee Protection Division Rules specifically requires claimants to provide original documents at least by the outset of their hearing. No reasonable explanation was presented for the absence of the original notarized letter, even though its author resides in the United States. [69] The RPD cites the fact that the author of the letter was not called as a witness by teleconference, but this was not an error. The onus rests on the appellant to establish his identity. The fact remains that a detailed affidavit, with its author available for cross-examination, carries far greater weight than one that is lacking in detail and where its author's credibility cannot be tested. Where, as here, the letter has very little detail, where no original has been provided, and where the contents of the letter could not be tested, it was not an error for the RPD to discount the evidence. In my own assessment, the cousin's letter carries only little weight. vi) Treatment of affidavit from XXXX XXXX XXXX [70] Another piece of evidence was an affidavit from XXXX XXXX XXXX, who claims to have met the appellant in South Africa in 2012. The RPD assigned low weight to this document, and I agree with this assessment. [71] The appellant argues that the RPD erred in giving this affidavit little weight. He argues that since the affiant is also Somali, he would be uniquely positioned to judge whether the appellant is Somali, through an assessment of his language skills, his geographic knowledge, and his cultural knowledge. The appellant also submits that the RPD failed to take into account the fact that the appellant had been accepted as a refugee in South Africa and that the South African government had accepted his identity. [72] I disagree with the appellant's argument. The affidavit does not indicate that the affiant is in a position to reliably assess the appellant's nationality. In addition, contrary to the appellant's arguments, the affidavit says nothing of the affiant's assessment of the appellant's knowledge of Somali geography, culture, or language skills. Even so, it is important to consider that there are significant populations of ethnic Somalis in many parts of east Africa, including Ethiopia, Kenya, and Djibouti. An individual's knowledge of Somali culture and language may be reliable indicators of ethnicity, but as to the appellant's nationality, they are not determinative. [73] The affiant states that the appellant is a citizen of Somalia with no citizenship in any other country, however it is difficult to understand how the affiant could attest to these facts if he only met the appellant in South Africa in 2012. He cannot speak to whether or when or where the appellant lived in Somalia. The RPD's reasons for discounting this evidence are valid. I too give this affidavit little weight. [74] Although the appellant also argues that his acceptance as a refugee in South Africa should count for something, I am not persuaded by this argument. There is no evidence to establish that the South African government accepted his identity. Despite supposedly being granted temporary refugee status in South Africa, which he was forced to renew on a regular basis, the appellant has not provided any status documents from South Africa that corroborate his allegation that he was accepted as a refugee there. Absent any corroboration, the RPD was not obliged to accept that the appellant had been accepted as a refugee in South Africa. The argument is without merit. vii) Treatment of support letters from Somali community organizations [75] Finally, the appellant disputes the RPD's treatment of his support letters from XXXX XXXX20 and XXXX21, two Somali community organizations in Canada. For the reasons that follow, I too give these letters little weight. [76] The appellant submits that these organizations are experienced in assessing Somali identity, and that after extensive interviews, both organizations reached the conclusion that the appellant is a Somali national. The appellant submits that the RPD erred in casually dismissing these letters. [77] On my own independent assessment of these letters, I agree that the letters should be given only little weight. Although the RPD's analysis focused mainly on the issue of clan lineage, the greater issue is around the lack of reliability of these assessments. [78] In my view, there is no question as to whether the appellant is an ethnic Somali. He speaks the Somali language fluently, has some knowledge of his clan lineage, and seems to have convinced other Somalis that he is knowledgeable about Somali culture and traditions. Ethnicity, however, is not determinative of nationality. As explained, there are significant populations of ethnic Somalis in other countries who are not Somali nationals. It would not be unusual for ethnic Somalis to have fluency in the Somali language, to be familiar with Somali culture and history, to be knowledgeable about their clan lineage, and to even have some degree of geographical knowledge about Somalia. [79] With this context, it would be important to see what specific questions were asked of the appellant, in order to determine what value the questions had in assisting the determination of the appellant's nationality, rather than merely his ethnicity. The XXXX XXXX letter vaguely states that the community verification assessment involves questions around background, history, heritage, geography, "sociopolitical", clan lineage, and culture, all conducted in the Somali language.22 Without further detail, it is difficult to ascertain the depth of the appellant's knowledge and what relevance these questions had in determining his nationality. [80] The XXXX letter is somewhat more detailed. It describes the appellant's statements about his residence in Somalia. The appellant stated that he was raised in XXXX, a city in the XXXX XXXX, which he described as a rural area. He correctly identified the Juba River as a landmark.23 However, this very basic description does not warrant giving this assessment anything more than little weight. [81] Finally, I also consider that these organizations were only acquainted with the appellant in Canada for the purposes of his refugee claim. They cannot provide any probative evidence concerning the appellant's personal identity, such as his name, date of birth, or family information. [82] I therefore agree that the community organization letters carry little weight in establishing the appellant's nationality and personal identity. Determination on Identity [83] As explained above, I agree with the vast majority of the RPD's findings. There are valid reasons to doubt the appellant's credibility as well as his identity. I also agree with the weight given to the appellant's supporting documents. [84] The remaining question is what influence the affidavit from Ms. XXXX has on the overall determination on the appellant's identity. In the RAD's view, to date, this is the strongest evidence provided by the appellant of his identity. If believed, this affidavit might be capable of actually placing the appellant in Somalia during a particular period of time. [85] The key problem here is around the sufficiency of evidence. Where, as here, the RPD drew a number of valid negative inferences and went on to correctly gave little to no weight to the appellant's identity evidence, an affidavit from Ms. XXXX will not be sufficient to tip the balance of evidence. As noted above, the reliability of this evidence is in question given Ms. XXXX age when she last saw the appellant in Somalia, their relatively loose association with each other in Somalia, and the lack of other evidence to corroborate their intersecting residential history in the same geographical area. Affidavit evidence from an individual who was only 14 years old when she last saw the appellant in Somalia is not sufficient to establish the appellant's national and personal identity. [86] The onus rests with the appellant to establish his identity on a balance of probabilities. I am not satisfied that he has met that onus in this case. I am unwilling to accept the appellant's identity on the basis of the evidence presented. CONCLUSION [87] Having considered the appellant's arguments and having conducted an independent assessment, I agree with most of the RPD's findings. I find that the appellant's identity has not been established. As such, I confirm the RPD's negative determination. [88] The appeal is dismissed, pursuant to paragraph 111(1)(a) of the IRPA. (signed) "M. Oh" M. Oh March 1, 2019 Date 1M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; see also Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-18), Diner, November 14, 2018; 2018 FC 1145. 2 Exhibit P-2, Appellant's Record, pp. 23-26. 3 Exhibit P-2, Appellant's Record, pp. 27-36. 4 Exhibit P-2, Appellant's Record, p. 37. 5M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para 54. 6 Wijekoon v. Canada (Minister of Citizenship and Immigration), 2002 FCT 758 at paras 30-32; see also McCurvie v. Canada (Citizenship and Immigration), 2013 FC 681 at paras 64-65. 7 Exhibit RPD-1, RPD Record, Exhibit 2, p. 31. 8 Exhibit RPD-1, RPD Record, Exhibit 2, p. 25. 9 Exhibit RPD-1, RPD Record, Exhibit 1, p. 51. 10 Exhibit RPD-2, RPD Record, Exhibit 8. Pp. 292-319. 11 Exhibit RPD-1, RPD Record, Exhibit 2, p. 22. 12 Exhibit RPD-1, RPD Record, Exhibit 1, p. 37. 13 Exhibit RPD-1, RPD Record, Exhibit 1, p. 51. 14 Exhibit RPD-1, RPD Record, Exhibit 1, p. 55. 15 Exhibit RPD-2, RPD Record, Exhibit 8, p. 296. 16 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Somalia (31 May 2017), item 13.9. Leiden University. African Studies Centre. 18 December 2009. 17 Exhibit RPD-2, RPD Record, Exhibit 9, p. 321. 18 Exhibit P-2, Appellant's Record, p. 23. 19 Exhibit RPD-1, RPD Record, Exhibit 15, p. 487. 20 Exhibit RPD-1, RPD Record, Exhibit 13, p. 463. 21 Exhibit RPD-1, RPD Record, Exhibit 16, pp. 492-493. 22 Exhibit RPD-2, RPD Record, Exhibit 13, p. 463. 23 Exhibit RPD-2, RPD Record, Exhibit 16, p. 492-493. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-23779 RAD.25.02 (September 18, 2018) Disponible en français 21 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 (September 18, 2018) Disponible en français