TB7-17190

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 : TB7-17190 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 July 19, 2018 Date de la décision Panel T. Card Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lina Anani 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 he is a citizen of Somalia and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find he 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 he is a citizen of Somalia and is a member of the minority Shanshi clan. He alleges to have lived in Mogadishu. [4] In 2010, members of the Hawiye clan attacked the Appellant's family. Between 2011, and the Appellant's departure in September 2014, the Appellant's family, and then the Appellant himself, faced a number of threats and attacks from the militant group Al-Shabaab. [5] The Appellant left Somalia on XXXX XXXX XXXX using a smuggler, and travelled via Kenya, Brazil, through South and Central America, making his way to the United States (US). The Appellant arrived in the US on XXXX XXXX XXXX and made a refugee claim which was denied. The Appellant then travelled to Canada and arrived on XXXX XXXX XXXX. He then made a refugee claim in Canada which was denied by the RPD. 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 27 September 2017;4 and, b. Articles about Al-Shabaab dated 4 July 2017 to 13 August 2017.5 [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 expected6 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.7 [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.8 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.9 Affidavit rejected [10] In relation to the Affidavit, much of the content of the Affidavit is simply a rebuttal to the RPD decision, and does not contain any new evidence per se. The one exception to this is Paragraph 9 of the Affidavit, in which the Appellant found out from his mother that she had heard her two brothers were in Nairobi, Kenya, and that she was attempting to locate them. The Appellant also states that he is trying to get affidavits from them, but had not been able to do so. [11] In relation to Paragraph 9, the information of a rumour that the Appellant's uncles were now in Nairobi arose after the date of rejection, and so would meet the requirements of s.110(4) of the IRPA. The rest of the contents of the Affidavit do not have information or evidence arising after the date of rejection, and so do not meet the requirements of s.110(4). [12] In relation to Paragraph 9, the RAD finds that rumours that the Appellant's uncles are in Nairobi, and that he is trying to get affidavits from them, are not sufficiently relevant, in the sense that the information is not capable of disproving on its own the negative identity findings made by the RPD. Accordingly, the RAD finds that Paragraph 9 does not meet all of the requisite Singh and Raza factors. [13] The entire Affidavit is therefore rejected. Articles rejected [14] In total, four articles were submitted in relation to Al-Shabaab's activities in Somalia. The first article10 was dated 4 July 2017, and predates the RPD decision. There is nothing before the RAD to indicate that the article was not reasonably available before the RPD rejection, nor that the Appellant could not reasonably have been expected to have produced the article ahead of the date of rejection. This article therefore does not meet the requirements of s.110(4) of the IRPA and it is rejected. [15] In relation to the remaining articles, these relate to activities of Al-Shabaab that took place after the date of rejection and therefore meet the requirements of s.110(4). [16] However, as the determinative issue in this case is identity, the RAD finds these articles are not sufficiently relevant to address the determinative issue, and therefore do not meet the Singh and Raza factor of relevance. [17] The remaining articles are therefore also rejected. NO ORAL HEARING [18] 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.11 [19] 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 [20] The Appellant argues the following issues in his appeal: a. The RPD erred in drawing a negative inference against the Appellant as his original identity witness failed to appear at the hearing, and that the issue around this was not put to the Appellant at the hearing, thus breaching natural justice and procedural fairness; b. The RPD erred in its assessment of the Second Identity Witness's evidence and in its conclusion that the Second Identity Witness was not credible; c. The RPD erred in its assessment of the Third Identity Witness's evidence and in its conclusion that the Third Identity Witness was not credible; d. The RPD erred in its assessment of the Appellant's mother's affidavit12 and in its decision to award no weight to the affidavit; e. The RPD erred in its assessment of the letter from XXXX XXXX;13 and, f. The RPD erred by not considering the risk to the Appellant from Al-Shabaab. [21] The RAD finds that the determinative issue in this appeal is whether the Appellant has established his personal identity as a Somali and as a member of the minority Shanshi clan. RAD ANALYSIS First Witness - XXXX XXXX XXXX [22] The Appellant argued that the RPD erred by drawing a negative inference from the lack of appearance by the proposed witness, XXXX XXXX XXXX (the First Witness). [23] 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,14 the RPD Decision15 and the Appellant's Basis of Claim (BOC) Form and narrative.16 [24] In examining the RPD's decision, the RAD finds that the RPD, in fact, did not draw a negative inference from the non-appearance of the First Witness. The Appellant makes reference in his Memorandum17 to the RPD's decision at Paragraph 20 as the basis of its ground of appeal. However, an examination of this paragraph shows that while the RPD made reference to the lack of appearance of the First Witness, the only other information contained is a brief statement of who the Appellant was bringing; nothing else was provided, no indication the First Witness would appear and no explanation about why a substitution to XXXX XXXX XXXX (the Second Witness) was being made without notifying the RPD. There is no reference to a negative inference. [25] Accordingly, the RAD finds the RPD did not err in this element of the case, and did not breach natural justice or procedural fairness on this element. Second Witness - XXXX XXXX XXXX [26] The Appellant argued that the RPD focused on some minor inconsistencies in the testimonies of the Appellant and the Second Witness, ignored other points of corroboration in its analysis, and therefore erred as a result. The Appellant also argued that the RPD erred by expecting the Second Witness to provide evidence he was living in the XXXX district of Mogadishu, the same district as the Appellant, at the relevant time. [27] Having reviewed the RPD record, the RAD finds that the RPD did not focus on minor inconsistencies, and that throughout the testimonies of both the Appellant and the Second Witness, both gave inconsistent details and at times were evasive. The RAD notes that the Appellant described having a "close"18 relationship with the Second Witness in Somalia, but that he couldn't answer basic questions, such as whether the Second Witness was married, whether he had children, or anything about the Second Witness's work. [28] In terms of evasiveness, the Appellant was asked the simple question by the RPD Panel of what age he was when he first met the Second Witness19 several times. The Appellant first said he didn't understand the question, then said he didn't remember twice, then finally said that between 2012 and 2014 they became good friends. The RAD finds that the Appellant was evasive in his answers and would be expected to give a straightforward answer to this simple question. [29] The RAD finds that the corroboration referred to by the Appellant only relates to the most basic details, and that for an alleged close relationship, neither the Appellant nor the Second Witness could answer more in-depth questions satisfactorily. [30] In relation to the Appellant's argument that the RPD panel should have asked the Second Witness to provide documentation showing that he lived in the XXXX area of Mogadishu, the RAD notes that it is for the Appellant to put forward the best evidence available, and not for the RPD to tell an Appellant what evidence to provide. The RAD notes that the Appellant had the benefit of paid counsel, and that counsel ought to know that identity was a major issue. Furthermore, counsel knew that the issue about the Second Witness's location existed as questions were asked during the hearing, and counsel had an opportunity to provide further documents before the RPD rejection. The RAD finds the RPD did not err in this element of the case. [31] In relation to the argument that because the Second Witness had been accepted as a Convention Refugee in Canada that his testimony was credible, the RAD notes that all that has been established is that the Second Witness was accepted as credible about his own case, and that as part of that, he has been accepted as being from Somalia. This does not establish that the Second Witness knew the Appellant in Somalia, and just because the Second Witness was found credible about his own case, does not preclude a finding that he is not credible about the Appellant's case. The RAD finds the RPD did not err in this element of its decision. [32] The Appellant also argued that the RPD erred by placing an extra burden on the Second Witness requiring a statement or an affidavit prior to testifying. The Rules governing the admission of a witness can be found in Rule 44 of the RPD Rules.20 [33] The RAD notes that none of the requirements of Rule 44 in relation to the Second Witness were met. This includes Rule 44(1)(b) which requires "a brief statement of the purpose and substance of the witness's testimony...." This is the statement the RPD was referring to, and is not an extra burden. The Appellant also states that documentation was provided, but the RAD's search of the evidence provided does not reveal this, and the Appellant did not footnote its Memorandum to indicate where it found the alleged documents. Furthermore, in reviewing the audio record, the RAD notes that even counsel himself, after initially insisting that he filed the necessary documents, realised that he had in fact only filed documents in relation to the First Witness and not the Second Witness.21 Further listening revealed that while the Appellant stated he gave documents to his RPD counsel, the RPD counsel stated he did not have such documents. [34] The RPD in fact could have refused the Second Witness altogether for non-compliance with Rule 44, but chose not to, and exercised its discretion under Rule 70 of the RPD Rules to allow the Second Witness to testify. The RPD did not impose additional requirements on the Second Witness, and the RAD finds the RPD did not err in this element of the case. [35] After having reviewed the evidence available, the RAD finds the RPD did not err in its analysis of the Appellant and Second Witness's evidence, and upholds the RPD's finding that the Appellant and Second Witness did not know each other in Somalia as claimed. The RAD also upholds the RPD's finding that the alleged relationship between the Appellant and Second Witness is not credible. Third Witness - XXXX XXXX XXXX [36] The Appellant also argued that the RPD erred in its analysis of the testimonies of the Appellant and Third Witness in relation to how they knew each other. The Appellant argued firstly that the RPD erred by requiring the Third Witness to provide corroborating evidence about where he lived and worked in Mogadishu. [37] The RAD notes that while corroboration documents are not required, the onus still lies with the Appellant to prove his case. In this case, the evidence from the Third Witness was not sufficient to outweigh the adverse credibility findings made earlier. [38] The Appellant also argued that as the Third Witness has been accepted as a refugee in Canada, and found credible, this means his testimony should be accepted. Again, as was the case with the Second Witness, all that has been established is that the Third Witness was accepted as credible about his own case, and that as part of that, he has been accepted as being from Somalia. This does not establish that the Third Witness knew the Appellant in Somalia, and just because the Third Witness was found credible about his own case, does not preclude a finding that he is not credible about the Appellant's case. The RAD finds the RPD did not err in this element of its decision. [39] The Appellant also argued that the RPD's finding that it did not believe the account of how the Appellant and Third Witness encountered each other at a large mosque during Eid was also made in error, and that its rejection was not sufficiently explained. [40] The RAD does note that the RPD's rejection on the basis of a "serendipitous"22 meeting is somewhat tenuous. However, having reviewed the RPD hearing record, the RAD notes that the knowledge the Appellant and Third Witness have about each other is rather basic. Furthermore, the RAD notes that when questioned, the Third Witness stated that despite living in the same building as the Appellant for a month, the two never visited each other's residence, and instead spoke on the phone or met at Tim Hortons. The reason given was that they were both busy.23 The RAD finds that this upholds the RPD's finding that the relationship between the Appellant and Third Witness was not credible, as it would surely be easier to visit each other than to go through the trouble of meeting at a Tim Hortons away from their apartment building. [41] Overall, the RAD finds that the RPD did not err in its treatment of the evidence from the Appellant and Third Witness about each other and upholds its findings that the alleged relationship was not credible, and that they did not know each other in Somalia as claimed. RPD did not err in treatment of mother's affidavit [42] The Appellant also argued that the RPD erred in rejecting his mother's affidavit.24 The RPD rejected the letter on the basis of the other credibility issues raised, having not seen an original of the affidavit and the lack of provenance of the letter. [43] Given the other credibility issues upheld, the provenance issues correctly identified by the RPD, and the brevity of the affidavit, the RAD finds the RPD did not err in its assessment of the affidavit. The RAD upholds the RPD's finding in giving no weight to the document. RPD did not err in relation to XXXX XXXX letter [44] The Appellant also argued that the RPD erred in its assessment of the letter from the XXXX XXXX Somali Multi-Service Centre.25 The RPD rejected the letter on the basis that its assessment of the Appellant's identity was based on his ability to speak Somali and knowledge of Somali language, customs and geography. [45] The RAD finds the RPD did not err in its assessment of the letter, and concurs with its finding that all the letter does is confirm that the Appellant can speak Somali and has knowledge about Somalia, and cannot determine the Appellant's nationality. The RAD upholds the RPD's findings about this document. RPD not required to assess risk from Al-Shabaab [46] The Appellant also argued that the RPD erred by not carrying out an analysis of the risk to the Appellant from Al-Shabaab. [47] As the RPD has found that the Appellant had not established his personal identity, it was not required to conduct any further analysis. The RAD finds the RPD did not err by not conducting such a risk analysis. CONCLUSION [48] The RAD finds that the RPD did not err in its overall finding that the Appellant had not established his personal identity, and upholds this finding. [49] After conducting its own analysis of the entire record, the RAD finds that the RPD did not err in its overall credibility findings, its assessment of the documentary evidence or commit a breach of natural justice or breach of procedural fairness. While the RAD has concerns over one of the RPD's findings, it is not fatal to its final determination that the Appellant has not established his identity and is neither a Convention refugee nor a person in need of protection. [50] 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 July 19, 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 13-15. 5 Ibid, Pages 17-25. 6 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. 7 Rule 3(3)(g)(iii), Immigration and Refugee Board of Canada, Refugee Appeal Division Rules, SOR/2012-257. 8 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. 9 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. 10 Exhibit P-2, Appellant's Record, Page 17. 11 S.110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA] 12 Exhibit RPD-1, RPD Record, Page 112. 13 Ibid, Page 103. 14 Exhibit P-2, Appellant's Record, Pages 27-43. 15 Ibid, Pages 4-12. 16 Exhibit RPD-1, RPD Record, Pages 14-30. 17 Exhibit P-2, Appellant's Record, Pages 35-36, Paragraphs 40-42. 18 RPD Hearing Recording, 19 June 2017, 1:43:15-1:43:57. 19 RPD Hearing Recording, 19 June 2017, 1:27:41-1:29:17. 20 Rule 44, Immigration and Refugee Board, Refugee Protection Division Rules, SOR/2012-256. 21 RPD Hearing Recording, 19 June 2017, 1:09:39-1:15:00. 22 Exhibit P-2, Appellant's Record, Page 10, Paragraph 29. 23 RPD Hearing Recording, 17 July 2017, 0:59:49-1:00:50. 24 Exhibit RPD-1, RPD Record, Page 112. 25 Ibid, Page 103. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-17190