TB8-17007

RAD File / Dossier de la SAR : TB8-17007 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 14, 2020 Date de la décision Panel D. Goff Tribunal Counsel for the person who is the subject of the appeal Micheal Crane 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, allegedly a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The appellant asks the Refugee Appeal Division (RAD) to set aside the negative determination of the RPD and either grant her claim for protection or, refer the matter back to the RPD with the direction that the appellant's identity be accepted. She has presented new evidence in support of her appeal. She has requested an oral hearing. BACKGROUND [2] In October 2017, the appellant initiated an inland claim for refugee protection alleging a fear of persecution by the Al-Shabaab group in Somalia. She alleged she was born and raised in Agfoye, Somalia and is a member of the minority Sheikhal clan. She alleged she had been abducted and raped by Al-Shabaab. She alleged her sister was stoned to death, but that she was able to escape [3] It is unclear when and how the appellant entered Canada, as she did not have a valid visa and there is no record of her entry into the country. She allegedly travelled to Canada by airplane via Turkey and Somalia using a Norwegian passport under an unknown name. [4] The appellant's claim before the RPD took place on May 28, 2018. By a decision dated June 26, 2018, the RPD rejected the claim finding the appellant had not established her identity. [5] The appellant argues the RPD erred in its analysis and findings by conducting a microscopic assessment of the evidence; breaching rules of procedural fairness; by failing to assess the totality of the situation; and, by failing to provide her the benefit of the doubt. DETERMINATION [6] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (the "Act"),1 the RAD refers the matter back to the RPD for redetermination by a differently-constituted panel. The appeal is allowed. ANALYSIS [7] Pursuant to the Federal Court of Appeal's (FCA) decision in Huruglica,2 the RAD is to review RPD findings of law, fact (and mixed fact and law), which raised no issue of credibility of oral evidence, applying the correctness standard. Rule 29 - Application to Provide Further Documents [8] Subsection 110(4) of the Act provides the appellant may present only evidence that arose after the rejection of her claim or that was not reasonably available, or that she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection of her claim. The RAD must also consider any relevant factors, including: the documents' relevance and probative value; any new evidence the documents bring to the appeal; and whether the appellant, with reasonable effort, could have provided the document or written submissions with the Appellant's Record.3 [9] The appellant has applied to provide late disclosure to corroborate her identity, specifically an affidavit from XXXX XXXX XXXX XXXX as well as copies of his travel itinerary and receipts for his travel to and from Somalia in 2015 and 2016. [10] In reviewing the proposed documents, the panel notes Mr. XXXX was the appellant's identity witness before the RPD. The RPD nonetheless gave no weight to Mr. XXXX evidence because he failed to provide proof of his travel to Somalia. The RPD specifically determined: The panel notes that the witness' affidavit asserted he went to Somalia in 2015 and 2016. In oral testimony he stated he went to Mogadishu in XXXX 2016. The witness could provide no objective evidence of his entry to Somalia in XXXX 2015 or XXXX 2016. Reasonably, if he did go to Somalia, using his Canadian passport, there would be evidence of that travel. The panel finds that the testimony of the witness is neither reliable nor trustworthy. The panel finds that it is more likely than not, this alleged visit was fabricated to bolster evidence to establish the claimant's identity. The panel finds that this seriously undermines the credibility of the clamant. The panel gives no weight to the testimony of this witness.4 [11] The appellant argues she could not have reasonably been expected in her particular circumstances to obtain and present these documents to the RPD. The appellant further submits that during the hearing she had volunteered to provide corroborating information about Mr. XXXX travel to the presiding member, but that the member did not respond to her. She thus argues the RPD breached procedural fairness in failing to raise a concern regarding the lack of corroboration before her claim was rejected.5 She submits the proposed evidence is relevant because it demonstrates the witness was telling the truth regarding his travel to Somalia (contrary to the RPD's finding). She submits the evidence is credible because the evidence comes from businesses that are engaged in travel. [12] The panel accepts the proposed documents as new evidence for the purposes of this appeal. The documents are relevant to the determinative issues of identity and credibility, as the RPD specifically cited the lack of travel documents as the rationale for giving no weight to the evidence provided by the identity witness. In this regard, the RAD also accepts the appellant's explanation as to why she could not have reasonably been expected to present these documents to the RPD before the rejection of her claim. The RAD further finds the new evidence meets the requirements as established in the Raza6 decision. Oral Hearing [13] The panel has considered holding an oral hearing in an effort to provide a final determination of this claim. However, the panel finds it is unable to do so because the appellant's new evidence is not determinative of the claim before the RAD, as the RPD failed to make any findings/determination about the merits of the appellant's claim for refugee protection. The request for hearing is therefore dismissed. RPD's Assessment of Witness Testimony, Failure to Consider Other Evidence [14] Having independently reviewed the evidence, the panel finds the RPD erred in giving no weight to the testimony of the witness based merely upon its erroneous finding about the lack of proof of travel to Somalia. [15] Moreover, the RPD erred in extending its erroneous finding about the witness to undermine the appellant's other evidence. For example, the RPD concluded that its negative finding about the travel history of the witness "seriously undermines the credibility of the claimant" and also that "it diminishes the weight given to the letter from XXXX Community Services". The RPD erred in doing so. [16] The panel finds the RPD's errors to be fatal to its assessment of the appellant's identity. In this regard, the RPD failed to independently assess the appellant's evidence (including the appellant's sworn testimony and letter from XXXX Community Services) and provide adequate reasons why it did not consider it relevant or trustworthy, or why it chose to disregard it7 in establishing the appellant's identity - outside of its erroneous finding about the travel history of the witness. [17] The RAD notes the RPD is not required to refer to each and every piece of documentary evidence. However, the more important the evidence not specifically mentioned and analyzed in the Board's reasons, the more willing the Federal Court is to find that the RPD made an erroneous finding of fact without regard to the evidence,8 and the same reasoning is applicable to the RAD's review of the RPD's reasons. CONCLUSION [18] Upon its own review of the record, the RAD has its own concerns with credibility of the appellant, including with her identity and allegations of persecution. However, without the benefit of hearing oral evidence on the central elements of the claim and without any of the originals of the appellant's personal documents, the RAD is of the opinion that it cannot provide a final determination of this claim. [19] Pursuant to paragraph 111(1)(c) of the Act, the RAD sets aside the determination of the RPD and refers this matter back to the RPD for redetermination by a differently-constituted panel. [20] This appeal is allowed. (signed) "D. Goff" D. Goff January 14, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 3 Rule 29(4), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 4 Exhibit RPD-1, RPD Record, at pp. 6-7. 5 Exhibit P-3, Rule 29 Application, at p.16, paras 6-7. 6 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (CanLII). 7 Nasufi, Udi v. M.C.I. (F.C., no. IMM-5925-10), Scott, May 19, 2011, 2011 FC 586; Khan Mostafa v. M.C.I. (F.C, no. IMM-5685-02), Tremblay-Lamer, September 17, 2003, 2003 FC 1076; Cepeda-Gutierrez, Carlos Arturo v. M.C.I. (F.C.T.D., no. IMM-596-98), Evans, October 6, 1998. 8 Dessie v. Canada (Citizenship and Immigration), 2011 FC 1497 (CanLII), at paras. 7-8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-17007 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français