TB7-25549

RAD File / Dossier de la SAR : TB7-25549 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 January 29, 2019 Date de la décision Panel Angus Grant Tribunal Counsel for the person(s) who is(are) the subject of the appeal Hart A. Kaminker Barrister and Solicitor 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 asserts that he is a citizen of Somalia and that he faces a well-founded fear of persecution in that country. He appeals from a decision of the Refugee Protection Division (RPD), which rejected his claim for refugee protection. On appeal, Mr. XXXX has submitted new evidence and requests an oral hearing. DETERMINATION [2] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter to the RPD for redetermination by a differently constituted panel. APPEAL SUMMARY Background Facts [3] As mentioned, the Appellant asserts that he is a citizen of Somalia. He claims to be a member of the XXXX, a small sub-clan of the XXXX, and to have been born and raised in the XXXX district of Mogadishu. [4] The Appellant further claims that his father was a XXXX XXXX and was targeted by the Al Shabaab militant group on the suspicion that he was a government informer. In XXXX XXXX 2009, the Appellant's father was killed by Al Shabaab, and the Appellant was injured in the attack. On his own, he fled Mogadishu and, indeed, Somalia, and ended up in Nairobi, Kenya where he was recognized as a prima facie refugee by the United Nations High Commissioner for Refugees (UNHCR). This did not provide the Appellant with permanent status in Kenya, and, in any event, he claimed to receive threatening phone calls from Al Shabaab in both 2010 and 2015. [5] As a result, the Appellant left Kenya and travelled to the United States where he initiated a claim for asylum. While he was found to have a credible fear of persecution in Somalia, the Appellant became concerned about the political atmosphere in the United States and decided to continue on to Canada, where he initiated his claim for refugee protection in November, 2016. [6] Further details of the Appellant's story may be found in the RPD's Record. I shall refer to such details as necessary throughout these reasons. RPD's Decision [7] In oral reasons provided at the conclusion of the Appellant's hearing, the RPD member found that the determinative issue in the case was identity and concluded that the Appellant had failed to provide sufficient credible and trustworthy evidence to establish his identity. [8] The RPD member also provided language touching on the merits of the Appellant's claim, indicating that the Appellant had not established that there is a serious possibility that he would be persecuted in Somalia or that he would be personally subjected to the risks set out at section 97 of the IRPA. Admissibility of New Evidence Legal Principles [9] Pursuant to subsection 110(4) of the IRPA, new evidence will only be admitted where that evidence: 1) arose after the rejection of the claim by the RPD; 2) was not reasonably available; or 3) the appellant could not reasonably have been expected in the circumstances to have presented the evidence, at the time of the rejection. The RAD has no discretion to admit new evidence unless it falls under one of these three statutory categories.1 According to the jurisprudence, meeting these categories is not, in itself, sufficient, as an appellant must also establish that the new evidence is also credible, relevant, and new.2 New Evidence Submitted on Appeal [10] As noted above, the RPD found that the Appellant had failed to establish his identity with sufficiently reliable evidence. In addressing this finding on appeal, the Appellant has submitted the following new documents with his appeal record: (i) an excerpt of an undated Master's Thesis entitled: "The protection of Prima Facie Refugees under International Law: A Case study of Kenya"; (ii) an affidavit of the Appellant, sworn January 18, 2018; (iii) an affidavit of XXXX XXXX XXXX, sworn January 18, 2018; and (iv) an affidavit of XXXX XXXX, sworn January 18, 2018. [11] I will admit the first three of the above documents, but for reasons that I will set out below, I will not admit the final document. [12] As the first of the above documents is not dated, I have no basis on which to conclude that it arose after the date of the RPD's decision. It is not, therefore, new in this sense. However, for reasons that will become clear below, I do find that the document responds to one of the RPD's findings. As I have concluded that the Appellant could not reasonably have anticipated this particular finding, I further conclude that the Appellant could not, in the circumstances, have been expected to have presented this evidence earlier. As this evidence is also credible, relevant and new in the Singh sense of those terms, I find that it is admissible. [13] The affidavit of the Appellant is new because it explains the actions that he took subsequent to the RPD's decision to try and locate further acquaintances or family members who could assist in addressing the issue of his identity. The events outlined in the affidavit are new in that they post-date the RPD hearing. I also accept the credibility, relevance and newness of this affidavit and therefore admit it on appeal. [14] The affidavit of XXXX XXXX XXXX explains that he is a relative of the Appellant. The information contained in the affidavit is clearly not new, as it documents longstanding familial relationships. However, as the affidavit further explains, the Appellant does not appear to have known of Mr. XXXX's presence in Canada until after the RPD's decision. It may be that the Appellant could have gone to greater lengths to find family members in Canada prior to the RPD's decision. However, given that he had already identified a witness who he personally knew, I conclude in the circumstances that he could not reasonably have been expected to have sought out unknown and distant relatives such as Mr. XXXX at an earlier stage. I will admit his affidavit. [15] The same cannot, however, be said for the final piece of new evidence, that being the affidavit of XXXX XXXX. Unlike XXXX XXXX XXXX, the Appellant did know of Mr. XXXX's presence in Canada; in fact, the XXXX affidavit states that they have seen each other every two to three weeks since the Appellant arrived in Canada. Given that it was clear that identity would form an important part of the Appellant's claim for refugee protection, I find on the facts that this affidavit does not meet the statutory criteria of subsection 110(4) and is therefore inadmissible. Oral Hearing [16] The Appellant also requests that an oral hearing be conducted in respect of this appeal. For reasons that will become clear below, I find that, while the admitted new evidence does help to confirm the Appellant's identity, it would not justify allowing or rejecting his refugee claim, as it does not speak to the issue of risk. As such, I do not find that the criteria for an oral hearing under subsection 110(6) of the IRPA have been met. ISSUES [17] Of the various findings contained in the RPD's determination, the Appellant alleges two errors: (i) the RPD erred in its analysis of the Appellant's lineage; and (ii) the RPD erred in its assessment of the Appellant's UNHCR refugee status document. [18] I agree that the above issues give rise to concerns with the RPD's decision. However, on my own review of the Record, I find that there are further concerns that I will outline below. ROLE OF THE RAD [19] The Appellant has a statutory right of appeal to the RAD from a decision of the RPD on questions of law, fact or mixed law and fact.3 Generally, the RAD is to review the decisions that come before it on the correctness standard.4 In defining this standard, the Federal Court of Appeal in Huruglica held that the legislative purpose of the RAD is to serve as a "safety net" that would catch all mistakes made by the RPD.5 This requires the RAD to carry out its own independent analysis of the RPD's Record to determine whether, as submitted by the Appellant, the RPD erred.6 The RAD, as a true specialized appeal tribunal, must come to its own conclusions based on a fresh review of the evidence.7 Furthermore, the role of the RAD is distinct from and must not duplicate the role of the courts sitting on judicial review of refugee determination decisions.8 ANALYSIS The Appellant's knowledge of Mogadishu geography [20] The RPD devoted considerable time in its questioning and its determination to evaluating the Appellant's identity through his knowledge of the geography of Mogadishu. As noted above, the Appellant claims to be from the XXXX district of Mogadishu and, in reviewing the RPD proceedings, I observe that he was able to provide detailed, consistent and, at times, subtle testimony about this district and its landmarks. He noted that the district was home XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He stated that he lived near "XXXX XXXX XXXX" and properly noted that the XXXX XXXX was close to his house and east of this road. While not entirely clear from the map contained in the National Documentation Package (NDP), it appears that the Appellant was also correct in stating that the XXXX XXXX was close to XXXX XXXX.9 Later in his testimony, the Appellant also correctly referred to the presence of a XXXX XXXX XXXX XXXX. [21] All of the above testimony was consistent with the information contained in the NDP, and yet none of it was referenced in the RPD's decision. [22] This is not to say that the Appellant's testimony in this regard was free from problems. In fact, the Appellant was consistently incorrect in providing information situating XXXX in relation to the larger environs of Mogadishu. He incorrectly stated that his home was east of the XXXX XXXX and that this XXXX was also in XXXX; he provided an incorrect district for his witness's neighbourhood, and he was not entirely able to list the districts that border XXXX. When asked about these inaccuracies in his testimony, the Appellant replied that he had limited education, that there were no real maps in Mogadishu when he lived there, and that he frequently, even in Canada, confused his directions. The RPD did not accept these explanations and appeared to place significant weight on the mistakes made by the Appellant in its assessment of his identity. [23] It was not wrong for the RPD to ask the Appellant the questions that it did. However, I conclude that it erred in attributing the weight that it did to the Appellant's mistakes, without considering (aside from a single passing comment) the consistent testimony that the Appellant and his witness provided. I also find that the RPD did not adequately consider: i) that the Appellant was a young and relatively uneducated man when he left Mogadishu; ii) that, according to his testimony, he had not resided there for over eight years at the time of his hearing; and iii) that the Appellant provided consistent testimony over the course of his Credible Fear interview with United States asylum officials.10 [24] I also find that the RPD's evaluation of the Appellant's geographical knowledge was based on certain assumptions that were not rooted in the evidence. For example, the RPD member clearly found it significant that the Appellant did not know that the XXXX XXXX, which was close to his house, was technically located in the district that is adjacent to XXXX, rather than XXXX itself. [25] First, I note that the Appellant's witness also made this mistake, which at least raises the question as to the accuracy of the map. As the Appellant testified, the XXXX XXXX is very large, and it is certainly conceivable that it spans more than one district. Second, this finding is based on the assumption that a credible individual would have knowledge of the specific boundaries that demarcate one city district from another. In the context of this case, I do not think that it was open to the RPD member to make this assumption. I explain why by way of a comparison. [26] Off the top of my head, I do not know which district of Toronto contains the St. Lawrence Market. I also do not know which specific streets separate the district in which I live from other districts. This information is not at my fingertips because it is irrelevant to my daily existence in this city. I do not need this information to find my way around the city or for any other day-to-day reason. This does not, on its own, mean that I am not a credible individual with respect to where I live. I find that this same logic applies to the situation of the Appellant. [27] Furthermore, as the Appellant tried to impress upon the RPD member, there are few formal street signs in Mogadishu and nor, at least while he lived there, was there widespread availability of city maps. Given that Mogadishu was, and remains, the war-torn capital of a country with no functioning government, the Appellant's explanation appears, to me, entirely plausible. As a result of the above, I find that the Appellant's testimony with respect to where he lived in Mogadishu, while certainly flawed, did not provide a sufficient basis on which to conclude that he had not actually lived there. The Appellant's clan lineage [28] As noted above, the Appellant claims to come from a small sub-clan - the XXXX - of the larger XXXX clan. This aspect of the Appellant's identity was corroborated by the witness who appeared at the RPD hearing, by a cousin of the Appellant who provided a witness statement,11 and by the Somali organization known as XXXX XXXX.12 The Appellant also mentioned his XXXX sub-clan in his interview with United States asylum authorities.13 [29] The RPD found that the Appellant was not credible in respect of his clan lineage because the line of descent recited by the Appellant did not match a report on Somali clan genealogy found in the National Documentation Package.14 On its face, it is certainly true that the Appellant's testimony was inconsistent with the information contained in the report. However, I accept the Appellant's argument that, in drawing a negative inference from this apparent inconsistency, the RPD member failed to have adequate regard to the clear limitations of the report in question. [30] For example, the introduction to the report acknowledges claims that Somali genealogy is based on information that is "highly doubtful" and that some Somalis view the exercise of making an authoritative Somali genealogy to be "futile."15 More pointedly, the report specifically states that it "does not purport to be an accurate historical tree at any specific point in time" and that an accurate tree would, in reality, "be impossible to obtain."16 [31] In taking these disclaimers into consideration, together with the Appellant's emphatic insistence that he had properly listed his genealogy, I find that the RPD erred in its conclusions with respect to the Appellant's lineage. [32] In any event, the Appellant's refugee claim is not based on his clan membership, and I can see no particular benefit to him in lying about this aspect of his claim. The Appellant testified at his refugee hearing in Somali, and so it would appear clear that he has some Somali lineage. As such, if the Appellant were to lie about his clan lineage, one would imagine that he would have assumed membership in a clan that is subject to persecution in Somalia. The RPD's Treatment of the Supporting Documentation [33] I further conclude that the RPD erred in respect of its treatment of the supporting documentation. I note at the outset of this part of my analysis that, prior to coming to Canada, the Appellant had participated in two refugee determination processes - one through the UNHCR in Kenya and the other in the United States. In both of those processes, the Appellant was found to have adequately established his identity and was further found to have at least a credible fear of persecution should he return to Somalia. [34] The RPD made no mention of the Appellant's asylum application in the United States, despite having documentation before it indicating that American officials had specifically found that the Appellant had credibly established his identity.17 Of course, the findings of American asylum officials are neither binding nor determinative of Canadian refugee claims. They are, however, relevant to the RPD's task, and they should at the very least be weighed in its analysis. [35] With respect to the UNHCR documentation,18 the Appellant testified that there was a process undertaken in Kenya to confirm his identity as a Somali national. The Appellant further testified that he had provided a witness in support of that process. This is confirmed in the report on prima facie refugee determination provided by the Appellant on appeal.19 I would not describe the Kenyan process as definitive, but it is clear that the UNHCR needs to be satisfied of an individual's national identity prior to conferring prima facie status on a particular individual. [36] This is highly probative information, and I find the RPD erred in attributing it no weight, simply because it was based on the Appellant's statements. The UNHCR's determination may indeed have been based on the statements of the Appellant and his witness, but this is not why it has probative value. The probative value lies not in the Appellant's statements but in the fact that the UNHCR (just like its American counterparts) accepted the credibility of those statements. Once again, the UNHCR's determination need not have prevailed at the RPD, but to attribute it no weight was an error. REMEDY and INDEPENDENT ANALYSIS [37] In light of the above analysis, I find that the RPD's decision cannot be sustained. On my own assessment of the Record, including the evidence that I have admitted on appeal, I note that the Appellant has, over the course of his three refugee determination proceedings (in Kenya, the United States and Canada) produced four separate witnesses who have confirmed his identity as a national of Somalia. His identity was, at least, tentatively accepted in two jurisdictions prior to coming to Canada. These facts are strongly corroborative of the Appellant's identity and should be properly considered. [38] However, I find that I cannot substitute my own determination that the Appellant is in need of refugee protection or, alternatively, confirm the RPD's decision on other grounds. The RPD's questioning of the Appellant with respect to the merits of his claim was minimal, and it stated in its reasons that identity was the determinative factor in its decision. [39] Despite this statement, the RPD did touch upon the merits of the Appellant's claim in its discussion of an affidavit sworn by the Appellant's mother. As the RPD correctly noted, this affidavit was inconsistent with, and directly contradicted, information contained in the Appellant's BOC. Beyond this affidavit, however, the RPD did not engage in an analysis of the substance of the Appellant's claim. This deprives the RAD of an adequate foundation on which to engage in its own assessment of the Appellant's claim on appeal. [40] The affidavit of the Appellant's mother is of concern, and the inconsistencies that it contains prevent me from substituting a determination that the Appellant is a Convention refugee. However, in the absence of any further questioning by the RPD, I also conclude that the affidavit does not, on its own, provide an adequate basis on which to determine that the Appellant's claim is not credible. [41] As a result, the only option for the RAD is to allow this appeal and remit the matter for redetermination by the RPD. CONCLUSION [42] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. (signed) "Angus Grant" Angus Grant January 29, 2019 Date 1 M.C.I. v. Singh, 2016 FCA 96 (CanLII), paras. 34-35, 74. 2 Ibid., Singh, paras. 38-49, 74. 3 Sections 110 and 111 of the Immigration and Refugee Protection Act. 4 M.C.I. v. Huruglica, Bujar, 2016 FCA 93, at para 103. 5 Ibid., Huruglica, 2016 FCA 93, at para 98. 6 Ibid., Huruglica, 2016 FCA 93, at para 103; Rodriguez Marin, Juan Andres v. M.C.I., 2016 FC 847, at para. 32; Bersie, Gedion Mesfin v. M.C.I., 2016 FC 900, at para. 17. 7 Rodriguez Marin, ibid.; Bersie, ibid. 8 Rozas Del Solar, Paola v. M.C.I., 2018 FC 1145, at para. 131. 9 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Somalia (May 31 2017), item 2.12, European Union, European Asylum Support Office, "EASO Country of Origin Information Report, Somalia Security Situation", February 2016, at p. 50. 10 Exhibit RPD-1, RPD's Record, at p. 73, Exhibit 1. 11 Exhibit RPD-1, RPD's Record, at p. 108, Exhibit 6. 12 Exhibit RPD-1, RPD's Record, at p. 105, Exhibit 6. 13 Exhibit RPD-1, RPD's Record, at p. 73, Exhibit 1. 14 Exhibit RPD-1, RPD's Record, Exhibit 4, NDP for Somalia (May 31, 2017), item 13.9, Leiden University, African Studies Centre, "The Total Somali Clan Genealogy (second edition)", December 18, 2009, at p. 18. 15 Ibid., NDP for Somalia (May 31, 2017), item 13.9, at p. 1. 16 Ibid., NDP for Somalia (May 31, 2017), item 13.9, at p. 2. 17 Exhibit RPD-1, RPD's Record, at p. 68, Exhibit 1. 18 Exhibit RPD-1, RPD's Record, at p. 106, Exhibit 6. 19 Exhibit P-2, Appellant's Record, at p. 107. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-25549 RAD.25.02 (September 18, 2018) 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 (September 18, 2018) Disponible en français