TB8-13031

RAD File / Dossier de la SAR : TB8-13031 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision 16 October 2020 Date de la décision Panel S. Thompson 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] The Appellant, XXXX XXXX XXXX, is appealing a decision of the Refugee Protection Division (RPD), dated May 4, 2018, rejecting his claim for refugee protection. [2] For the following reasons, I dismiss his appeal. BACKGROUND OF APPEAL The Appellant's claim, the RPD's decision, and the Appellant's arguments before the Refugee Appeal Division (RAD) [3] In his original Basis of Claim (BOC) narrative, the Appellant alleged he faced a forward-looking risk of persecution in Somalia from the terrorist group Al Shabab because of his profession and business as a XXXX, which entailed taking XXXX of private clients in a manner that was not in accordance with the group's dictates. The Appellant stated in his BOC narrative that he fled Somalia after Al Shabab threatened to kill him for refusing to desist in XXXX XXXX. [4] The Minister of Immigration, Refugees and Citizenship (IRCC) intervened in the Appellant's RPD claim, and disclosed information showing the Appellant was granted refugee status in the United States of America (USA) on XXXX XXXX XXXX 2001. After the Minister's intervention, the Appellant acknowledged that he had been granted asylum in the USA. His evidence was that he failed to regularize his status in that country due to his addiction and mental health issues. [5] The RPD refused the Appellant's claim on the grounds of credibility and identity. The RPD found the Appellant was not excluded under article 1E of the Refugee Convention, as there was no evidence that he had any rights in the USA similar to those of a national in that country. The RPD found the Appellant's credibility was fatally undermined by his failure to disclose his asylum claim in the USA until the Minister's intervention, and from the Appellant's admission that he coached his identity witness to lie about his age in support of his claim. The RPD also found the Appellant's testimony about Somalia was insufficient to establish his identity as a national of Somalia. [6] In his RAD appeal, the Appellant submits the RPD erred in its credibility findings and the consideration of the evidence before it. The Appellant also argues that his RPD claim was negatively impacted by then-undiagnosed mental health issues that had an impact on his testimony and evidence and, consequently, on the RPD's assessment of his credibility and reliability as a witness concerning his identity and all other aspects of his claim. NEW EVIDENCE AND REQUEST FOR ORAL HEARING [7] The Appellant has asked that I admit a letter dated XXXX XXXX XXXX 2018 from a psychiatric consultant confirming that he is being treated "for a XXXX XXXX"1 as new evidence in this appeal in accordance with subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). [8] The Appellant has also disclosed a second letter dated XXXX XXXX XXXX 2018 from the same psychiatric consultant, which purports to be "a report requested by [the Appellant's counsel] for immigration purpose[s]".2 This letter is part of a Rule 29 application submitted to the RAD on January 30, 2019. [9] By law,3 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. [10] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.4 Decision on the application to admit letters as new evidence [11] The XXXX XXXX XXXX 2018 letter satisfies the explicit requirements of subsection 110(4) as it post-dates the RPD's refusal of the Appellant's claim by a little over three weeks. I consider that the information it contains about the Appellant's ongoing treatment for psychiatric illness is prima facie credible; is novel, in that it states he currently takes medication on a daily basis to manage his illness; and is relevant to my assessment of the Appellant's submissions in this appeal. I therefore admit the letter as new evidence. [12] The XXXX XXXX XXXX 2018 letter is part of a Rule 29 application. Under RAD Rule 29(3), the subject of the appeal "must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the [IRPA] and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister."5 [13] In his Rule 29 affidavit, the Appellant states that "although I have been suffering from XXXX XXXXand XXXX even prior to my arrival in Canada" he could not provide confirmation of his specific psychiatric illness to the RPD because he "was only diagnosed with XXXX at the end of 2015 after [his] RPD hearing."6 [14] In written submissions in support of his Rule 29 application, the Appellant submits that the XXXX 2018 letter "establishes that the appellant suffered from XXXX XXXX XXXX XXXX XXXXbefore being diagnosed with XXXX."7 He submits further that "he was unable to provide it earlier, as it is based on further meetings with his psychiatrist."8 Based on the foregoing, it is my independent assessment that the Appellant's Rule 29 application meets the requirements of Rule 29(3). [15] Regarding the requirements of subsection 110(4) of the IRPA, I find the XXXX XXXX XXXX 2018 letter satisfies the statutory requirements of the subsection, as it post-dates the RPD's refusal of the Appellant's claim. I also find the letter is prima facie credible, is novel in that it contains detailed information that updates the information given in the XXXX 2018 letter, and that it is relevant to my assessment of arguments in the Appellant's appeal memorandum. I therefore admit the letter as new evidence. Decision on Appellant's request for an oral hearing under subsection 110(6) of the IRPA [16] The Appellant has also asked me to hold an oral hearing of his appeal in accordance with subsection 110(6) of the IRPA. Where there is new evidence in a RAD appeal, the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the appellant, is central to the RPD decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim.9 [17] In my independent assessment, the new evidence does not raise a serious issue with respect to the Appellant's credibility. I therefore decline to hold an oral hearing in this appeal. ANALYSIS [18] My role is to look at all the evidence and decide if the RPD made the correct decision.10 I will apply the correctness standard of review after independently assessing the record in order to determine whether the RPD erred. I will only show deference to the RPD's credibility assessment and/or to its weighing of the oral evidence in situations where the RPD enjoys a particular advantage. If I find the RPD had a particular advantage, my reasons will explain why. [19] My determination is based on my independent assessment of the evidence before me. This includes: the records prepared by the RPD and the Appellant; written transcripts and audio recordings of both sittings of the Appellant's RPD hearings on November 18, 2014 and April 9, 2015; and documents contained in the current compilation of the National Documentation Package (NDP) for Somalia. The RPD's assessment of the Appellant's credibility [20] The Appellant submits the RPD erred in its determination that he was not credible, and in rejecting his explanation for lacking documents from Somalia to establish his identity.11 [21] The RPD found the Appellant "lacking in credibility generally and [found] this lack of credibility extends to all of the claimant's relevant testimony."12 The RPD's Reasons note the Appellant failed to disclose "the evidence he presented to establish his identity for his asylum claim"13 in the USA and testified he had "lost any documents that he had had in the U.S.A. regarding his identity."14 [22] In my independent assessment, the RPD did not err in finding the Appellant lacked credibility. Before the RPD, the Appellant admitted that he fabricated the risk allegations in his BOC form. He tried to explain his attempt to mislead the RPD by saying he was counseled to do so by members of the Somali community in Canada who told him he would be deported if he disclosed the outcome of his asylum claim in the USA.15 [23] Later on, however, the Appellant admitted that he accepted their advice to give false statements about the risk he faced in Somalia that varied completely from the truthful narrative he had given to immigration authorities in the USA, and that he believed, based on what he was told by these people, that "it will be very difficult for [...] the Canadian immigration to find out [his] fingerprints from the United States after ten years' time span."16 In other words, the Appellant was willing to advance the fictive account in his BOC narrative up until the Minister disclosed that he had been granted asylum in the USA. [24] In light of this admission, the Appellant's explanation was inadequate justification for his decision to wait until the eleventh hour to tell the RPD that he fabricated his claim and had been granted asylum in another country. In my independent assessment, it was open to the RPD to find that the Appellant's credibility was severely undermined, the RPD did not err in drawing a negative inference from the Appellant's admission that his claim was fabricated, as his testimony failed to adequately explain why he did not correct his account until the Minister's intervention. [25] The Appellant further submits that the RPD erred when it gave no weight to the testimony of his identity witness.17 The RPD's Reasons for Decision note the Appellant "admitted to having asked his identity witness to testify and lie about his name and age."18 The Appellant submits that the witness's testimony nonetheless merits some weight because his testimony about his own personal identity "was corroborated"19 by her testimony to some extent. [26] In my independent assessment, however, the RPD's finding on this point is once again supported by the transcript of the Appellant's testimony before the RPD. The Appellant testified in the hearing that the identity witness knew him and the whole XXXX family in Somalia, but also admitted she knowingly gave false information to the RPD about how old he was after he asked her to lie about his age.20 [27] According to his written submissions, "[b]oth the witness and [the Appellant] provided testimony that was for the most part, consistent."21 The Appellant testified that he did in fact go swimming with the witness's brother, XXXX, as she had told the RPD. Apart from this, his submissions fail to specify in what other respects her testimony corroborated his own testimony about his personal and national identity. [28] Given the Appellant's admission that the identity witness knowingly made false statements to the RPD panel at his urging, I find it was open to the RPD to assign no weight to that witness's testimony. In my independent assessment, the RPD did not err in drawing a negative inference about the credibility of the Appellant's professed personal and national identity based on the testimony of his identity witness. [29] The Appellant further submits the RPD also erred in finding he failed to establish his claim, as the fact that authorities in the USA granted him asylum in XXXX 2001 "was persuasive in establishing his identity and the fact that he is a person in need of protection as he was previously found to be so."22 [30] The RPD noted, however, that it did not have a chance to see "the evidence he presented" to immigration authorities in the USA "to establish his identity for his asylum claim."23 [31] Having independently assessed the Minster's evidence and the disclosures from the Board's Special Information and Research Unit,24 I believe it was open to the RPD, as the first-instance trier of fact, to find the bare information that the USA had granted the Appellant's asylum claim was not an adequate basis to find the Appellant had established his identity, given his admission that the identity he used to advance his Canadian claim was fabricated.25 [32] In my independent assessment, the fact that he obtained asylum in the USA, using an identity entirely different narrative from the false one he used to claim refugee status in Canada,26 is of no weight in assessing whether he established his personal and national identity with acceptable evidence for the purpose of advancing his Canadian refugee claim. The RPD has the jurisdiction to determine refugee status within Canada and is not required to adopt the findings of a decision-maker in a foreign country in rendering its decisions. [33] In light of the foregoing, I reject paragraph 25 of the Appellant's written submissions, as the evidence disclosed by the Minister is sufficient to establish only that the Appellant claimed asylum in the USA using a different name and identity from the one he used to claim refugee status in Canada. I find the RPD did not err in determining that he failed to establish his personal identity or the bona fides of his claim based on the evidence before it. The Appellant's new evidence [34] The Appellant submits that the new evidence he has submitted establishes that he faces a serious forward-looking risk of persecution in Somalia. This new evidence, in the form of two letters dated XXXX XXXX XXXX 2018 and XXXX XXXX XXXX 2018, respectively, confirm the Appellant suffers from XXXX. The Appellant submits he suffered from this mental illness at the time of his RPD hearing and that he "was undiagnosed and was not on medications to treat his illness", and submits further that he abused alcohol and the substance khat "as part of his 'coping' strategy."27 [35] I have read both letters and I accept the diagnosis of XXXX given by the Appellant's psychiatristXXXX XXXX XXXX XXXX XXXX who is registered with the College of Physicians and Surgeons of Ontario.28 I note, however, that both letters are vague about when the Appellant began treatment with XXXX XXXX XXXX; the XXXX XXXX letter states only that the Appellant has "been under [XXXX XXXX XXXX] care" and has "been treated by medications and provided with case management service"29, while the XXXX XXXX letter states the Appellant "was referred to XXXX XXXX, and started treatment with me"30 without specifying when. [36] Thus, it is not clear to me that XXXX XXXX XXXX is in a position to confirm the Appellant was suffering from XXXX or any other mental illness during the sitting of his RPD hearings, as the letters fail to confirm XXXX XXXX XXXX was actually treating the Appellant at the time his claim was being heard by the RPD. At best, the XXXX XXXX letter implies the Appellant has been stable for the year prior to the date of the letter, from which I infer only that his treatment began at some unspecified time prior to that, likely well after the second sitting of his RPD hearing. [37] Even if I were to accept the Appellant was suffering from XXXX at the time of his RPD hearing, his written submission that his mental illness "affected his ability to testify at his hearing"31 does not explain how it affected his testimony. My review of the transcript of the second sitting of the Appellant's RPD hearing on April 9, 2015 indicates that the Appellant testified clearly and coherently on that occasion, responding directly to the RPD panel's questions. Nothing indicates that his ability to testify on that occasion was adversely impacted by any mental health issues he may have been suffering from. [38] As well, I reject the Appellant's submission that the RPD's determination of his claim would have been different had it been aware of his mental illness.32 This submission is an invitation for me to speculate about the kind of information the RPD might have received about the Appellant's substance abuse. Such speculation is not an adequate evidentiary basis for a finding about the Appellant's mental health status before the RPD, and is not a proper basis for me to review the correctness of the RPD's credibility assessment which was based on the information that was before it. [39] Finally, the Appellant further submits that his diagnosis of mental illness "is a new situation in the sense that [...] he was suffering from a mental illness that if [it] goes untreated can result in behaviour that will result in his being targeted by others in Somalia who will recognize his disability."33 [40] As stated at paragraphs 32 and 33 of these reasons, I am not prepared to rely on the scant information about the Appellant's successful asylum claim in the USA as establishing his identity as a citizen of Somalia for the purposes of his refugee claim in Canada. In my independent assessment, however, the evidence before me - including the new evidence - fails to establish the Appellant's personal identity or his identity as a national of Somalia. [41] At paragraph three of Su v Canada (Minister of Citizenship and Immigration), Madam Justice Snider of the Federal Court of Canada articulated the proper approach to the issue of identity: Proof of identity is a pre-requisite for a person claiming refugee protection as without it there can "be no sound basis for testing or verifying the claims of persecution or, indeed for determining the Applicant's true nationality" (Jin v Canada (Minister of Citizenship and Immigration), 2006 FC 126 (CanLII) at para 26, [2006] FCJ No 181 (QL); see also Liu v Canada (Minister of Citizenship and Immigration), 2007 FC 831 (CanLII) at para 18, [2007] FCJ No 1101 (QL)).34 [42] The Court's finding on this issue draws its authority from section 106 of the IRPA, which states: Claimant Without Identification Credibility 106 The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.35 [43] Additionally, Rule 11 of the Refugee Protection Division Rules provides as follows: Documents Establishing Identity and Other Elements of the Claim Documents 11 The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.36 [44] In Kante, the Federal Court affirmed, in accordance with Rule 11, that a refugee claimant must come to a hearing of their claim with all of the evidence that they are able to offer and believe is necessary to prove their claim.37 In Yip, the Court held that refugee claimants bear the onus of establishing their identities on a balance of probabilities.38 In Behary, the Court held that identity is a critical, threshold issue.39 In Husein, the Court held that once an RPD decision maker has concluded that the identity of a refugee claimant has not been established, the decision maker need not analyze the evidence any further.40 [45] In light of the foregoing, I find the Appellant's other evidence, including his own testimony and the testimony of his identity witness, are insufficient to establish his identity. I therefore decline to proceed to an assessment of the merits of the basis of his claim. [46] The Appellant's appeal is refused. CONCLUSION [47] 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 paragraph 111(1)(a) of the IRPA. (signed) S. Thompson S. Thompson 16 October 2020 Date 1 Exhibit P-2, Appellant's Record, p. 109. 2 Exhibit P-3, Rule 29 Application, Received 30 January 2019, Letter from XXXX XXXX XXXX to Appellant's counsel Lani Gozlan, dated XXXX XXXX, 2018, pp. 5-6. 3 Subsection 110(4), Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended . 4 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, 2007 FC 385. 5 Rule 29(3), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 6 Exhibit P-3, Rule 29 Application, Received 30 January 2019, Appellant's Affidavit, p. 2 at para. 3. 7 Exhibit P-3, Rule 29 Application, Received 30 January 2019, Appellant's Written Submissions, p. 9 at para. 4. 8 Exhibit P-3, Rule 29 Application, Received 30 January 2019, Appellant's Written Submissions, p. 11 at para. 9. 9 See Malambu v Canada (Citizenship and Immigration), 2015 FC 763, paras. 28-36 and 59. 10 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 11 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 122-123 at para. 21. 12 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7 at para. 16. 13 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7 at para. 17. 14 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7 at para. 14. 15 Transcript of hearing in RPD file no. TB4-09083 on April 9, 2015, pp. 4 (lines 8-50) to 6 (lines 5-48), p. 11 (lines 5-36) 16 Transcript of hearing in RPD file no. TB4-09083 on April 9, 2015, pp. 21 (lines 34-48) to 22 (lines 5-23). 17 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 124 at para. 24. 18 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6 at para. 9. 19 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 123 at para. 21. 20 Transcript of hearing in RPD file no. TB4-09083 on April 9, 2015, pp. 15 (lines 27-49) to 16 (lines 5-49). 21 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 124 at para. 24. 22 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 124 at para. 25. 23 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7 at para. 17. 24 Exhibit RPD-1, RPD Record, Exhibits 7 and 8, pp. 129-141, and Exhibit PH-1, 143-146. 25 Transcript of hearing in RPD file no. TB4-09083 on April 9, 2015, pp. 4 (lines 11-50), 6 (lines 46-49). 26 Transcript of hearing in RPD file no. TB4-09083 on April 9, 2015, pp. 7 (lines 5-50) to 8 (lines 6-16). 27 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 117 at para. 7. 28 See XXXX. 29 Exhibit P-2, Appellant's Record, p. 109. 30 Exhibit P-3, Rule 29 Application, Received 30 January 2019, p. 5. 31 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 116 at para. 6. 32 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 120-121 at para. 17. 33 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 119 at para. 13. 34 Su, Sai v. M.C.I. (F.C., no. IMM-4632-11), Snider, June 14, 2012, 2012 FC 743, para. 3. 35 Section 106, IRPA, S.C. 2001, c. 27, as amended. 36 Rule 11, Immigration and Refugee Board, Refugee Protection Division Rules, SOR/2012-256. 37 Kante, Abdoulaye v. M.E.I. (F.C.T.D., no. IMM-2585-93), Nadon J, March 23, 1994. 38 Yip, Fu On v. M.E.I. (F.C.T.D., no. A-921-92), Nadon J, October 27, 1993. 39 Behary, Majeed v. M.C.I. (F.C., no. IMM-2833-14), Strickland J, June 25, 2015, 2015 FC 794. 40 Husein, Anab Ali v. M.C.I. (F.C.T.D., no. IMM-2044-97), Joyal, May 27, 1998. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-13031 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