TB7-21885

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 File No. / N° de dossier de la SAR : TB7-21885 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, Ontario Appel instruit à Date of decision September 14, 2018 Date de la décision Panel T. Card Tribunal Counsel for the person(s) who is(are)the subject of the appeal Eve Sehatzadeh Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the "Appellant") alleges that she is a citizen of Somalia and is appealing a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find she is a Convention refugee or a person in need of protection. RAD DETERMINATION [2] 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 s.111(1)(a) of the Immigration and Refugee Protection Act (IRPA).1 BACKGROUND [3] The Appellant alleges that she is a citizen of Somalia. In XXXX2015, members of XXXX XXXX XXXX XXXX came to the Appellant's home and demanded that the Appellant's brother join their cause. The Appellant's brother refused and his was killed by XXXX XXXX XXXX as a result. [4] The Appellant was told that her and her sister would be forced to marry XXXX XXXX XXXX soldiers. The Appellant stated she was also fearful of XXXX XXXX XXXX as she had not undergone Female Genital Mutilation (FGM). The Appellant and her family fled to Ethiopia. [5] After spending several months in Ethiopia, the Appellant obtained the help of an agent, and flew with the agent to Canada using a fraudulent Italian passport. The Appellant made her refugee claim, but was refused by the RPD on the grounds that she had not established her personal identity. ROLE OF THE RAD [6] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness in accordance with the Federal Court of Appeal's decision in Huruglica.2 In assessing findings involving the credibility of oral testimony, the RAD may apply the modified standard of reasonableness in situations where the RPD enjoys a meaningful advantage.3 Unless otherwise stated in the reasons, the RAD uses the correctness standard on all findings and will consider the overall refugee determination on a standard of correctness, even where the RAD has deferred on some or all findings. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [7] In support of this appeal, the Appellant proposed the admission of the following documents as new evidence: a. An affidavit by the Appellant dated 28 November 2017;4 b. An affidavit by the Appellant's father, XXXX XXXX XXXX (the Father) dated 24 November 2017;5 c. An untranslated email from the Appellant's aunt, XXXX XXXX XXXX (the Aunt) dated 28 November 2017;6 and, d. A copy of the Father's Somali Registration identity card from Somali Community in Ethiopia.7 [8] S.110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected8 in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of s.110(4) and how that evidence relates to the Appellant.9 [9] In addition, if the new evidence meets one of the explicit legislative factors in s.110 (4), then the second step of the analysis is for the RAD to apply the adapted Raza factors endorsed in Singh.10 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. The RAD is not to consider the fourth Raza factor of materiality to the admission of new evidence, which is a consideration for s.110 (6) and the request for an oral hearing.11 Appellant's Affidavit rejected [10] The Appellant's affidavit12 is little more than a restatement of the information contained in the Memorandum and does not contain any new evidence in of itself. The RAD, therefore finds the document does not meet the requirements of s.110 (4) and is rejected. Father's affidavit rejected [11] The Appellant has argued that she could not get an affidavit from her father13 before the RPD decision as her father, who is in Ethiopia, did not have legal status in Ethiopia and thought she could not get an affidavit as a result. The Appellant after the RPD hearing then investigated further along with her father and found she could get an affidavit. [12] The RAD does not accept that the Appellant could not have obtained a statement from her father, be it a sworn affidavit or simply a signed and dated letter, ahead of the RPD decision. The RAD is mindful that the Appellant had the benefit of paid Counsel at the RPD hearing, and would know that she needed to make all reasonable efforts to get identity documentation, particularly given the difficulties in getting such evidence in Somali cases. [13] The RAD also notes that the information contained in the affidavit does not pertain to any events that took place after the RPD Decision. Accordingly, the RAD finds the affidavit does not meet the requirements of s.110(4) of the IRPA and is rejected. Aunt's Email rejected [14] The Appellant also submitted an untranslated email from her Aunt.14 The RAD notes that under Rule 28(1) of the RAD Rules, all documents provided must be in English or French, and that this document does not meet that requirement, and is grounds in of itself to reject the document. [15] The RAD does note that in the Appellant's Memorandum15 that the email apparently is meant to address the RPD's concern about how the Appellant received evidence from her Aunt at the RPD hearing. The Appellant had testified she received it by email, but did not have a copy of that email. [16] The RAD finds the email does not pertain to evidence arising after the RPD Determination. Additionally, the Appellant argued that although the issue was raised, the email was not requested, and as a result, it was not reasonably foreseeable that she needed to present the document. The RAD does not accept this explanation, and therefore also finds the email does not meet the requirements of s.110(4) of the IRPA. [17] Furthermore, even if the RAD did accept the explanation, the email showing where the Aunt's evidence came from does almost nothing to address the central issue of identity, and therefore would not meet the Singh and Raza factor of relevance. [18] For all of these reasons, the RAD rejects the Aunt's email. Father's ID card [19] The RAD notes that the Appellant submitted the original card as part of her Rule 29 Application. However as that is just the original of the copy already provided, both the copy and the original will be assessed under s.110(4). [20] In relation to the Father's ID card16, the RAD notes that the card was issued XXXX XXXX 2017, ahead of both the RPD Hearing (29 September 2017) and the RPD decision (20 October 2017) and not after the RPD decision as argued in the Memorandum.17 [21] The RAD notes that beyond tangential arguments about the Father's affidavit which have already been addressed, the Appellant made no other submissions as to how the ID Card meets the requirements of s.110(4) of the IRPA. Rule 3(3)(g)(iii) of the RAD Rules and the case of Ilias v. Canada,18 confirm that such submissions are needed. There is otherwise nothing obvious before the RAD as to how the document meets the requirements of s.110(4). [22] The RAD therefore rejects the Father's ID card as new evidence. RULE 29 APPLICATION [23] Also in support of this appeal, the Appellant proposed the Father's original birth certificate, along with the enclosing courier envelope;19 as new evidence under Rule 29 of the RAD Rules. [24] Rule 29 allows the Appellant to make an application to provide a document not previously provided. Such an application must include an explanation of how the document meets the requirements of s.110(4) of the IRPA and how that evidence relates to the Appellant.20 In determining the application, the RAD must consider any relevant factors, including: the relevance and probative value of the document, any new evidence the document brings to the appeal, and whether the Appellant could have, with reasonable effort, provided the document with the Appellant's Record. Father's birth certificate rejected [25] The Appellant states that the Father applied to the Somali Embassy in Addis Ababa, Ethiopia on XXXX XXXX 2017 and received it on XXXX XXXX 2017. The RAD notes that the date of perfection of this appeal was on 29 November 2017. The RAD therefore finds the birth certificate meets the requirements of s.110(4) of the IRPA. [26] However, the RAD has several issues with the credibility of the document itself. Firstly, the RAD notes that under the crest at the top of the document, it states Permanent Representative to the African Union, with the word African spelled "Afrcian". The RAD finds it dubious that an official document would make such a mistake. [27] Furthermore, the RAD notes that in giving the personal details, it specifies the Country as "Somali" and the Nationality as "Somalia", rather than vice versa. Again, the RAD finds it dubious that an official document would mix these terms up. [28] The RAD is also mindful of the Landinfo Report on Somali Documentation21 when assessing this document. The Report states firstly that in relation to language, Somali is the only official written language, and that English only appeared on documents up to 1973.22 This being a document allegedly produced by the Somali government in 2017 and written predominantly in English rather than Somali places serious doubt on the authenticity of this document. [29] Furthermore, the Report also states that "...no Somali authorities register births or issue official birth certificates..."23 and that only hospitals in some cases issue birth certificates. This places further doubt on the authenticity of this document. [30] When taking all of these factors into account, the RAD finds on a balance of probabilities that the birth certificate is not genuine, and therefore does not meet the Singh and Raza factor of credibility. The document is therefore rejected. NO ORAL HEARING [31] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in s.110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.24 [32] As no new evidence has been accepted by the RAD, the requirements of s.110(6) of the IRPA have not been met, and an oral hearing cannot be held. ISSUES IN APPEAL [33] The Appellant argues the following issues in her appeal: a. The RPD erred in its analysis of the Appellant's Somali municipal identity card25 and its decision to give it no weight. b. The RPD erred in its assessment of the Appellant's account of how she travelled from Ethiopia to Canada and its subsequent negative credibility finding. The RPD also erred by using this assessment in drawing a negative inference against the Appellant's establishment of her identity. c. The RPD erred in its assessment of XXXX XXXX XXXX (the Witness) evidence as identity witness and not placing sufficient weight on her evidence making its overall findings regarding the Appellant's identity. d. The RPD erred in its assessment of the letter from XXXX XXXX26 and awarding no weight to the letter when assessing the Appellant's identity. e. The RPD erred in its assessment of the Aunt's evidence27 and placing no weight on this evidence when assessing the Appellant's identity. [34] The RAD finds that the determinative issue in this appeal is whether the Appellant has established her identity as a Somali citizen. RAD ANALYSIS [35] The RAD has conducted an independent analysis of the evidence concerned, including reviewing the record of the RPD hearing, as well as considering the Appellant's Memorandum,28 the RPD Decision29 and the Appellant's Basis of Claim (BOC) Form.30 [36] The RAD also notes that a representative of the Minister of Immigration, Refugees and Citizenship (the Minister) intervened at the RPD stage. The Minister's intervention documents31 have also been including in the RAD's independent analysis. RPD did not err in assessment of Municipal ID Card [37] The RPD gave no weight to the Appellant's Municipal ID Card32 for several reasons. Firstly, the document provided was only a copy, while the original was still in Somalia. The Appellant was asked if she made any efforts to get the original and the Appellant said she had not. [38] Secondly, the RPD felt that the Appellant could not provide any details about how the document was obtained, which further undermined the value of the document. [39] Finally, the RPD noted that from the Appellant's testimony, the Appellant told the authorities she was a student in 2013, even though she had not been a student since 2006. The Appellant stated that this was because it was cheaper to get a student card. The RPD drew a negative credibility inference that false and inaccurate information was given and that the document was improperly obtained. [40] The Appellant argued that the RPD's analysis was flawed on the basis that there was a lack of a rational connection between the RPD's reasons and its conclusion. The Appellant also stated that the inaccurate information about the Appellant being a student in 2013 did not lead to the conclusion the document was fake and that the Appellant intended to mislead the RPD. [41] The Appellant also argued that the RPD erred in its analysis by placing no weight on the document as the original wasn't available since the National Documentation Package indicates the difficulties in getting documents from Somalia and the family was now in Ethiopia. [42] The RAD notes that by her own admission, the Appellant had provided false information about her identity (that being the occupation of being a student) to the Somali authorities and that the card was issued with information provided by the Appellant. This makes the card inherently unreliable, as it shows no checks about the Appellant's actual identity were made. [43] It follows that if the Appellant was prepared to lie about her occupation to the authorities to get an identity document, then what else was she prepared to lie about and may have lied about. The RAD finds the RPD did not err in finding that the admission of this lie taints the rest of the document and makes it inherently unreliable. [44] Accordingly, the RAD upholds the RPD's finding in placing no weight on the municipal identity card. RPD did not err in negative credibility finding regarding travel to Canada [45] The RPD also drew a negative credibility inference against the Appellant due to problems and inconsistencies in her evidence regarding her travel from Ethiopia to Canada. The Appellant could not produce documentation about this trip and doubted the reasons given for the lack of producing such documentation. [46] The Appellant argued that the RPD erred as a lack of corroborating evidence cannot impugn credibility, and that boarding pass and flight information would not have established the Appellant's citizenship. [47] The RPD also noted the Minister's intervention and that a check of the Integrated Customs Enforcement System (ICES) did not reveal the false name of XXXX XXXX XXXX being used with an Italian passport on XXXX XXXX 2016. [48] The Appellant argued, citing the case of Abu Taleb,33 that the ICES system was not reliable and that the lack of the Appellant's travel data on the system should not result in a negative credibility inference. [49] The RAD notes that in its reasons, the RPD took particular care to note that individual inconsistencies and a lack of evidence surrounding the Appellant's journey to Canada would not in of themselves undermine the Appellant's overall credibility, but that instead it was taking these factors along with other credibility findings that led the RPD to conclude that the Appellant was not credible about her account in coming to Canada. [50] Having reviewed the evidence, the RAD concurs with the RPD's analysis. The RAD is mindful that it is for the Appellant to prove her case, and that in relation to her journey to Canada, the Appellant has provided almost nothing, beyond her oral testimony, that establishes that she made this trip. This is compounded by the lack of data found in the ICES system about the Appellant's trip. [51] The RAD has considered the Appellant's argument that the ICES system is unreliable, based on the case of Abu Taleb. However, the RAD finds the case to be limited in its usefulness for several reasons. Firstly, the facts in that case date back to 2007, and it is not clear if the apparent deficiencies identified in the system then would apply now. Secondly, in the Abu Taleb citation provided34 Mr. Abu-Taleb had evidence which countered the information in the ICES system, thus establishing there were problems in his case. We have no such countering evidence in this appeal. [52] Again, it is in considering the totality of the evidence and not just the ICES results, and bearing in mind that it is the Appellant's burden to prove her case, not for the Board to disprove it, the RAD concurs with the RPD that on a balance of probabilities the Appellant did not make her journey to Canada in the manner claimed. [53] On the issue of identity, the RAD does recognise the Appellant's argument that proving her journey would not prove her identity. However, credibility is a factor that permeates throughout the entire case, including identity. The RAD finds that the RPD did not err by making a negative credibility finding, and that it forms part of the overall credibility picture. Witness not reliable [54] The Appellant also argued that the RPD erred in placing little weight on the Witness's evidence, noting that the Witness and Appellant's evidence about each other was inconsistent. [55] The RAD does not concur with the Appellant's assertion that the RPD erred in the sense of placing little weight on the Witness's evidence. Having reviewed the RPD hearing record, the RAD notes that the Witness knew very little about the Appellant, with a 24-year gap intervening, and the fact that the Appellant would have been seven years old at the time. [56] Given the amount of physical maturing the Appellant would have gone through since being seven years old, and the amount of time that intervened, the RAD does not accept the Witness's explanation given at the RPD that she recognised the Appellant due to a small scar on the Appellant's face, and no other reason. [57] The RAD finds that the RPD did err in the respect of finding the Witness's evidence as to the identity of the Appellant to be credible. The RAD finds that the Witness's evidence about the Appellant herself was too vague to be reliable and does not accept the Witness's explanation about how she would recognise the Appellant as being the same person as the girl she saw 24 years beforehand. Taking this into account, the RAD finds on a balance of probabilities that the Witness did not know the Appellant in Somalia as claimed, and substitutes this finding over that of the RPD's finding that the Witness was credible about the Appellant's identity. XXXX XXXX letter has no weight [58] The Appellant also argued that the RPD erred by placing no weight on the letter from the XXXX XXXX Somali Multi-Service Centre.35 [59] The RPD noted that the Appellant stated she was interviewed for 20 minutes by XXXX XXXX and that the brevity of that discussion meant that it placed little weight on that report. The RPD also noted that a 20 minute test did not constitute a "rigorous" process as alleged by XXXX XXXX XXXX [60] Further to this, the RAD finds that just because someone can speak Somali and have knowledge about Somalia does not mean that the person has Somali citizenship or ever lived there. [61] The RAD therefore upholds the RPD's finding to place no weight on the XXXX XXXX letter. RPD did not err in assessment of Aunt's letter [62] The RPD also gave no weight to the Aunt's letter36 on the grounds that no identity of the affiant was provided to the Notary Public in front of which the letter was sworn, and the lack of evidence about the Appellant's identity. [63] The Appellant argued that the RPD's analysis and findings on the Aunt's letter were incorrect. [64] Having reviewed the Aunt's letter, the RAD finds that even if the Aunt's identity had been provided to the notary public, the main issue is still the lack of detail within the letter itself. The letter is very brief, with very basic details that are little more than a restatement of the Appellant's claim. [65] This lack of detail means that while the RPD erred in placing no weight on the document, only little weight should be place on the document, and this weight is insufficient to outweigh the credibility issues already identified. CONCLUSION [66] The RAD finds that the RPD did not err in its overall finding that the Appellant had not established her personal identity, and upholds this finding. [67] After conducting its own analysis of the entire record, the RAD finds that the RPD did not err in its overall credibility findings, or its assessment of the documentary evidence. While the RAD has concerns over some elements of the RPD's decision, they were not fatal to its final determination that the Appellant has not established her identity and is neither a Convention refugee nor a person in need of protection. [68] Pursuant to s.111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. (signed) "T. Card" T. Card September 14, 2018 Date 1 S.111(1)(a), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA]. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 X (Re), 2017 CanLII 33034 (CA IRB). 4 Exhibit P-2, Appellant's Record, Pages 11-13. 5 Ibid, Page 15. 6 Ibid, Page 16. 7 Ibid, Page 18-19. 8 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, Paragraph 51. 9 Rule 3(3)(g)(iii), Immigration and Refugee Board of Canada, Refugee Appeal Division Rules, SOR/2012-257. 10 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 11 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, Paragraph 64. 12 Exhibit P-2, Appellant's Record, Pages 11-13. 13 Ibid, Page 15. 14 Ibid, Page 16. 15 Ibid, Page 42, Paragraphs 72-73. 16 Ibid, Pages 18-19. 17 Ibid, Pages 41-42, Paragraph 69. 18 Ilias v. Canada (Citizenship and Immigration) 2018 FC 661. 19 Exhibit P-3, Rule 29 Application, Page 5. 20 Rule 29(3), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 21 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Somalia, 31 May 2017, Item 3.2, Documents in Somalia and Sudan, Norway, 5 January 2009. 22 Ibid, Section 2.3. 23 Ibid, Section 2.4. 24 S.110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA] 25 Exhibit RPD-1, RPD Record, Pages 59-61. 26 Ibid, Page 194. 27 Ibid, Pages 195-196. 28 Exhibit P-2, Appellant's Record, Pages 25-43. 29 Ibid, Pages 2-9. 30 Exhibit RPD-1, RPD Record, Pages 12-23. 31 Ibid, Pages 45-57. 32 Ibid, Pages 59-61. 33 Abu-Taleb v Canada (Citizenship and Immigration), 2015 FC 1389. 34 Exhibit P-2, Appellant's Record, Page 32, Paragraph 29. 35 Exhibit RPD-1, RPD Record, Page 194. 36 Ibid, Pages 195-196. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-21885