TB8-14347

RAD File / Dossier de la SAR : TB8-14347 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 17 August 2020 Date de la décision Panel S. Thompson Tribunal Counsel for the person who is the subject of the appeal Lina Anani 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, claims to be a citizen of Somalia. He is appealing a decision of the Refugee Protection Division (RPD), dated January 30, 2018, rejecting his claim for refugee protection. [2] For the following reasons, I allow this appeal. The Appellant's claim is referred back to the Refugee Protection Division for redetermination by a differently constituted panel. BACKGROUND OF APPEAL The Appellant's allegations, the RPD's decision, and the Appellant's arguments before the Refugee Appeal Division (RAD) [3] The Appellant, who identifies as a Sunni Muslim and a follower of "the Sufi rites," alleged he was born in Mogadishu, Somalia into the XXXX clan. He alleged that he and his brother were targeted and repeatedly threatened by Al-Shabab after his brother found employment with the XXXX XXXX in XXXX 2014. The Appellant alleged that on XXXX XXXX XXXX 2014 he and his mother and sister were attacked by Al-Shabab in their home, who abducted and murdered his brother. [4] The following day, the Appellant and his sister and mother went into hiding at his paternal uncle's house in Mogadishu. He left for Ethiopia on XXXX XXXX XXXX 2014 and stayed there for three months before travelling through South and Central America and arriving in the United States of America (US) on XXXX XXXX XXXX 2015. The Appellant claimed asylum in the US. On XXXX XXXX XXXX 2015, his claim was refused. The Appellant remained in the US until he entered Canada on April 11, 2016 and claimed refugee status. [5] The RPD refused the Appellant's claim on the grounds of identity and credibility. The RPD found the Appellant's "key evidence was neither reliable nor trustworthy"1 and that "even if [it] accepted the [Appellant's] alleged personal identity [it would still have] significant credibility concerns [...] such that [his] claim [was] not credible or trustworthy."2 [6] Before the RAD, the Appellant submits the RPD erred in its assessment of his identity and credibility. He submits also the RPD committed a breach of natural justice by refusing his then-counsel's request for an extension of time to submit written representations and a request to admit post-hearing evidence. NEW EVIDENCE & REQUEST FOR ORAL HEARING [7] The Appellant asks that I admit an affidavit sworn by XXXX XXXX XXXX sworn on XXXX XXXX XXXX 2018 into this appeal as new evidence in accordance with subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). He also asks that I convene an oral hearing of this appeal in accordance with subsection 110(6) of the IRPA. According to the law3 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. [8] 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 new evidence [9] The XXXX Affidavit5 was sworn on XXXX XXXX XXXX 2018 and satisfies the statutory criteria at subsection 110(4) of the IRPA as it post-dates the RPD's decision of January 30, 2018. [10] I have considered the Appellant's submissions6 about the affidavit's newness, relevancy and credibility. In my independent assessment the affidavit is credible, as it appears to have been properly commissioned. While the information at paragraphs two to seven of the affidavit pre-dates the RPD's decision, I consider it relevant to my assessment of certain issues in this appeal. I therefore admit the document into evidence. Decision on appellant's request for an oral hearing [11] According to subsections 110(3), (4), and (6) of the IRPA, the RAD must not hold a hearing in an appeal unless there is new evidence, in which case 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.7 [12] In my independent assessment the new evidence does not raise any serious issues with the Appellant's credibility. I therefore decline to hold an oral hearing in this matter. ANALYSIS [13] My role is to look at all the evidence and decide if the RPD made the correct decision.8 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. [14] My determination is based on my independent assessment of the evidence before me. This includes the records prepared by the RPD and the Appellants, an audio recording of the Appellant's RPD hearing on January 19, 2018, and documents contained in the current compilation of the National Documentation Package (NDP) for Somalia. Alleged breach of procedural fairness [15] The Appellant submits the RPD erred when it refused his request for an extension of time to submit post-hearing evidence, namely an affidavit from a witness about his identity, both personally and as a national of Somalia. He submits: his application conformed to RPD Rules 43 and 50, which address the admission of documents post-hearing and the form of written applications9; the RPD failed to consider the factors stated in RPD Rule 43(3)10; and that the RPD rushed its decision because it was so "focused on form and not substance" it was "blinded to the core of this claim".11 [16] The RPD refused the Appellant's extension of time request. It found that the 10 days between the hearing date (January 19) and the due date for written submissions (January 29) "enabled time for consideration to be given as to the proposed affiant's schedule and availability (and to make timely efforts or applications in this regard)".12 [17] I refer first to the XXXX Affidavit, which states in part: Since coming to Canada, I usually attended the mosque in my neighbourhood. In XXXX 2018, I went to a Somali community organization and afterwards I went to the mosque near there to pray. I usually try to go to mosque every day to carry out my prayers. I sat down on the floor waiting for the prayer to begin and suddenly I heard someone call my name. When I turned I immediately recognized XXXX [RAD Note: the Appellant]. I was so happy to see him and so surprised that he was in Canada. We greeted each other and after the prayer we went to a nearby coffee shop to have some tea and catch up. I explained to XXXX that l was waiting for my refugee hearing and I did not have status. He told me that his hearing was in a few weeks. He asked me to be a witness but I told him that since I don't have any status that I could not be a witness.13 [18] Even if I accept the RPD breached the Appellant's right to natural justice as he submits, it appears that any such breach has been addressed at least in part by the admission of the XXXX Affidavit in this appeal. This is because paragraphs two to five of the affidavit appear to disclose the information the Appellant hoped to place before the RPD when he requested an extension of time to make post-hearing submissions, information that appears relevant to my independent assessment of the Appellant's identity. [19] The Appellant also submits, however, the RPD "was in such a rush to decide [the extension of time application] that it did not allow submissions or even respond to the request for an extension of time"14 - in other words, that the RPD's refusal to allow the extension of time breached his right to natural justice not only because he was unable to submit an affidavit, but also because his counsel was unable to place post-hearing submissions before the RPD panel. [20] The RPD refused the Appellant's extension of time request, in part because it found the letter was "not a proper application pursuant to the Refugee Protection Division Rules regarding the filing of post-hearing evidence and/or disclosure" and that there was "insufficient persuasive evidence and/or a reasonable explanation as to why submissions could not have been provided within the 10-day timeline given".15 [21] Towards the end of the hearing the RPD and the Appellant's then counsel had the following exchange concerning submissions: RPD MEMBER: [To the Appellant] So, I have no further questions for you right now. Your counsel's finished with his questions. So, the next stage in the hearing would be, um, uh, for your counsel to make the submissions on your behalf. Um, so, counsel, I'm going to, uh, put it in your hands so you can decide whether you'd prefer to do the submissions now orally, or do you prefer to do them in writing. APPELLANT'S COUNSEL: I do have a hearing at one o'clock. I need a little bit of time to clear my head and prepare for that one. RPD MEMBER: So - APPELLANT'S COUNSEL: It's not the same country and it's ... RPD MEMBER: Not a problem. It's entirely up to you. So, we're the nineteenth today, we'll add ten days to that - that brings us to January the twenty-ninth. APPELLANT'S COUNSEL: Which is - RPD MEMBER: Uh, Monday, January twenty-ninth. APPELLANT: [Inaudible in Somali] INTERPRETER: You need something from me, or... RPD MEMBER: I'll explain it to you now. Uh, I have finished my questions for you and so has your counsel. Normally, at this stage of the hearing, either your counsel would make submissions on your behalf orally, or he will do it in writing. We've gone past the hearing time, we're twenty-five minutes past the hearing time. So your counsel's going to prepare submissions in writing and he's going to submit them to the Board on your behalf. Do you understand? APPELLANT: Yes. RPD MEMBER: Okay. All right. We don't have further questions for the witness either, so unless there's something that I've just explained to you that you don't understand, we're going to conclude the hearing now. Do you have any questions for me right now? APPELLANT: No, I understand.16 [22] In my independent assessment, the audio recording of the RPD hearing makes it clear the Appellant's then counsel did not take issue with the ten-day timeline for submissions set by the RPD panel at the end of the hearing. [23] As the Appellant's extension of time request is not part of the RPD Record, I cannot assess the degree to which it may or may not have complied with Rules 43 and 50 of the RPD Rules. Nor can I assess the adequacy of any explanation that may have been given by the Appellant's then counsel in the request. Therefore, I am not prepared to find that the RPD breached the Appellant's right to natural justice in refusing the request for an extension of time. Use of a non-genuine passport, prevalence of fraudulent documents in Somalia [24] I agree with the Appellant that the RPD erred in "making a negative credibility finding because the Appellant used a false passport."17 The RPD found the Appellant's use of the passport to travel from Ethiopia to the U.S. "displayed a tendency to deceive and/or mislead immigration and security officials and to misrepresent the truth and assume a false identity [by] providing false information and documentation."18 [25] In my independent assessment the RPD's panel's approach on this issue is one that has been criticized by the Federal Court of Canada, which recently affirmed that "in the context of a refugee claim, travelling to Canada on a false passport is of little significance when determining credibility".19 [26] For this reason, I find the RPD erred in making not only the credibility finding mentioned above, but also in drawing a negative inference from the Appellant's failure to disclose the false passport he used to travel to the U.S.20 [27] I also agree with the Appellant that the RPD erred in making a negative credibility finding based on the wide availability of false and fraudulent documents in Somalia. The RPD found due to "the prevalence of fraudulent documents in and pertaining to Somalia, and the propensity of the [Appellant] to acquire and use false documents" that his additional evidence failed to "overcome [the RPD panel's] central credibility concerns".21 [28] This not only repeats the panel's earlier error in drawing a negative credibility inference from the Appellant's use of a false passport, it also uses an approach the Federal Court has described as "generalizations about the 'easy availability of fraudulent documents' [...] as though [it] constitute[s] incontrovertible evidence of fraud."22 [29] In my independent assessment, it was particularly egregious of the RPD to adopt this approach when, as the Appellant correctly submits, he "did not submit any documents from Somalia"23, fraudulent or otherwise. I find the RPD's negative credibility finding on this point was made in error and is therefore without merit. The testimony of the Appellant's witness XXXX XXXX XXXX [30] XXXX XXXX XXXX testified at the RPD hearing in support of the Appellant's identity. The Appellant submits the RPD failed to consider explanations given by the Appellant for inconsistencies between his own testimony and XXXX XXXX XXXX testimony, and instead dismissed points of consistency between their respective testimonies without assessing them.24 The Appellant submits also the RPD "engaged in pure speculation when it concluded that the witness and Appellant had rehearsed their testimony simply because they were consistent."25 [31] The RPD noted inconsistencies in the Appellant's and witness's testimonies "with respect to the witness's late uncle and when he died, and the neighbourhood that they allegedly lived in", finding it "lack[ed] an air of reality" and "undermin[ed] the [Appellant's] credibility and the basis for [his] claim."26 The RPD found the evidence of the Appellant and his witness "confusing and inconsistent", lacking in specificity, and that the Appellant "rehearsed and/or memorized his testimony to mirror statements found in the [Appellant's] evidence."27 The RPD found the witness's testimony failed to rehabilitate the Appellant's credibility.28 [32] I have considered the explanations offered by the Appellant for inconsistencies between his testimony and that of the witness.29 When questioned by his own counsel, the Appellant confirmed that he had seen the witness's uncle in 2014, five years after the year in which, according to the witness, his uncle died. The Appellant reiterated this even when his counsel pointed out the inconsistency between his account and that of the witness.30 [33] When his counsel asked the Appellant if he understood the difference between the two accounts, the Appellant responded that he understood that there was a big difference, and testified further that if there was a mistake he couldn't understand because since being hit in the head he couldn't remember very well.31 [34] In my independent assessment, the explanation is inadequate to explain the inconsistency between the respective testimonies of the Appellant and the witness, particularly in the absence of a medical note or psychological assessment report to support the Appellant's testimony about the cause of his memory problems. [35] However, I do agree with the Appellant that the RPD erred in drawing a negative inference from the fact that his testimony agreed with the witness's testimony on several points. Having listened to the audio recording of the RPD hearing, in my independent assessment there was no basis for the RPD's finding the witness's testimony was memorized. This RPD finding was entirely speculative. The letter from XXXX XXXX XXXX [36] The Appellant did disclose a supporting letter from the XXXX XXXX XXXX organization, which is located in Toronto. He submits the RPD erred in giving little weight to this document because it was "intent to find fault with whatever was presented rather than to take a fair and reasonable view of the material provided."32 [37] The RPD considered the letter in light of "credibility concerns that arose in [the] claim" and also its review of the letter, which in its estimation "provides little detail of the alleged interviews that took place or the steps taken" to verify the Appellant' personal and national identity. It gave the letter "little weight", finding it "was not subject to rigorous forms of validation".33 [38] I have read the letter, which states in part: In the case of XXXX XXXX XXXX born and raised in Mogadishu, Somalia on XXXX XXXX XXXX1996 our agency did the following to establish his identity as Somali national: XXXX interviewed XXXX XXXX XXXX XXXX XXXX on XXXX XXXX 2018. In addition to our interview with XXXX XXXX XXXX we interviewed XXXX XXXX XXXX XXXX XXXX who accompanied him. XXXX XXXX XXXX XXXX XXXX confirmed that XXXX XXXX XXXX XXXX XXXX is from Somali[a] and from no other country. He also confirms that XXXX XXXX XXXX belongs to the XXXX clan and is Sunni Muslim following the Sufi rites. XXXX XXXX XXXX dialect is consistent and he speaks Standard Somali. His physical features were also consistent with those of the majority of ethnic Somalis.34 [39] The Federal Court of Canada advises "that evidence purporting to establish the identity of a claimant should provide sufficient information about the author and the criteria on which that identity was determined in order to allow decision-makers and reviewing Courts to assess the reasonableness of the evidence and to assign it proper weight."35 [40] With this in mind I have independently assessed the XXXX XXXX XXXX letter in light of an August 2018 Response to Information Request (RIR) in the current NDP for Somalia about various Somali-Canadian associations in Canada. The RIR lists practices commonly used by similar organizations to help refugee claimants establish their Somali nationality, including (but not limited to): - Assessing the claimant's accent or Somali language dialect; - Asking the claimant questions about Somalia, or asking them to complete a questionnaire, to get details such as (but not limited to) the claimant's name, their parents' names, their date and place of birth, their places of residence, their clan and sub-clan, their region of origin, and Somali geography, language and culture generally; - Requiring the claimant to provide contact information for two witnesses to confirm the claimant's identity and corroborate their town of origin. Some organizations require the witnesses to be known Somali community members who are either citizens or permanent residents of Canada, and to have been known to the claimant either in Somalia or in Canada; - Reaching out to contacts from other regions in Somalia to corroborate the claimant's account of their identity with people from their region or clan in Somalia; and - Helping the claimant to find and contact relatives and acquaintances who knew them in Somalia. Some of the organizations canvassed in the RIR issue letters stating that the claimant's identity was corroborated by two witnesses.36 [41] According to the letter, XXXX XXXX XXXX followed some of the practices used by the organizations canvassed in the RIR: it interviewed the Appellant, interviewed XXXX XXXX XXXX XXXX XXXX who accompanied him, and assessed the dialect of the Appellant's spoken Somali. [42] In my independent assessment, however, the letter does not "provide sufficient information about [...] the criteria on which [the Appellant's] identity was determined". I do not know what questions were put to the Appellant during the interview. Nor does the letter disclose details of the information given by the Appellant or XXXX XXXX XXXX during their interview. Contrary to the Appellant's submission37, there is no evidence the XXXX XXXX XXXX subjected the Appellant to a written test. [43] In short, there is insufficient information in the letter about the specific criteria the XXXX XXXX XXXX used to verify the Appellant's personal and national identity. For this reason, I find the letter warrants little weight in my assessment of the Appellant's identity, and I find the RPD did not err in its weighing of this document. The RPD's treatment of the Appellant's claim in the U.S.; Appellant's sur place claim [44] The Appellant submits the RPD erred by failing to consider that the U.S. authorities accepted the Appellant's professed identity as a national of Somalia.38 The case the Appellant relies on, however, is one in which the Appellant presented documents to the U.S. authorities to establish his identity. I have examined the U.S. documents in the RPD record, and none of them support a finding that the Appellant disclosed identity-related documents to the U.S. authorities. [45] Nor do any of the documents make any explicit findings that the Appellant is a national of Somalia. Rather, the order of the U.S. immigration judge notes that "[t]estimony was [...] taken regarding the background of the [Appellant]" and the next paragraph states that he did failed to establish a credible fear of persecution.39 [46] In my independent assessment, the Appellant's submission on this point is without merit because the documents on record do not explicitly support a finding that the U.S. authorities accepted the Appellant's claim to be a national of Somalia. Specifically, I have no insight into the information that was before the U.S. immigration judge who determined the Appellant's asylum claim in that country. [47] Finally, the Appellant submits the RPD erred in proceeding to an assessment of the merits of his claim after finding he failed to establish his identity.40 The RPD found the Appellant had failed to establish a sur place claim, extending its adverse credibility findings from its assessment of the Appellant's evidence "to his time in Canada".41 [48] In my independent assessment, however, most of the RPD's adverse credibility findings were not supported by the evidence. These flawed findings are errors of mixed law and fact that tainted the RPD's assessment of the evidence the Appellant disclosed to establish his identity on a balance of probabilities. As a result, the RPD's assessment of the Appellant's identity is itself tainted. [49] As I am of the opinion that I cannot dispose of the Appellant's claim without hearing evidence that was before the RPD, the appropriate remedy is to allow the appeal and remit this matter to the RPD for redetermination. CONCLUSION [50] The appeal is allowed. Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), I refer this matter to the RPD for redetermination by a differently constituted panel. (signed) S. Thompson S. Thompson 17 August 2020 Date 1 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6 at para. 13. 2 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 6 at para. 14. 3 Subsection 110(4) of the IRPA. 4 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 5 Exhibit P-2, Appellant's Record, pp. 18-21. 6 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 27-31 at paras. 24-39. 7 See Malambu v Canada (Citizenship and Immigration), 2015 FC 763 at paras. 28-36 and 59. 8Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 9 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 31-33 at paras. 40-45. 10 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 33-34 at paras. 46-47. 11 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 34 at paras. 48-49. 12 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 4 at paras. 2-4. 13 Exhibit P-2, Appellant's Record, pp. 18-19. 14 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 34 at para. 49. 15 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 4 at paras. 2-4. 16 Audio recording of hearing in RPD file no. TB6-05178 on January 19, 2018 at timestamps 03:01:12 to 03:04:43. 17 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 39 at paras. 73-75, especially para. 74. 18 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 9 at para. 27. 19 Theivendram v Canada (Public Safety and Emergency Preparedness), 2020 FC 419 at para. 25 (Mosley J.). See also Lubana v Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at para. 11 (Martineau J.): "[...] In particular, where a claimant travels on false documents, destroys travel documents or lies about them upon arrival following an agent's instructions, it has been held to be peripheral and of very limited value to a determination of general credibility [...]." 20 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 10 at paras. 29-31. 21 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 11 at para. 35. 22 Oranye v Canada (Citizenship and Immigration), 2018 FC 390 at para. 29 (Ahmed J.). 23 Exhibit P-2, Appellant's Record, Appellant's Memorandum, pp. 39-40 at para. 76. 24 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 36 at paras. 60-61. 25 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 36 at para. 63. 26 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 11 at para. 34. 27 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 12 at paras. 38-39. 28 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 8 at para. 21. 29 Audio recording of hearing in RPD file no. TB6-05178 on January 19, 2018 at timestamps 02:54:04 to 02:58:17. 30 Audio recording of hearing in RPD file no. TB6-05178 on January 19, 2018 at timestamps 2:54:04 to 2:57:19. 31 Audio recording of hearing in RPD file no. TB6-05178 on January 19, 2018 at timestamps 2:57:39 to 2:58:17. 32 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 38 at para. 68. 33 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 8 at para. 23. 34 Exhibit RPD-1, RPD Record, Exhibit 4, p. 135. 35 Aziz v Canada (Citizenship and Immigration), 2008 FC 914 at para. 13 (Lagacé J.). 36 NDP for Somalia, March 31, 2020. item 3.5, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) ZZZ106153.E. August 13, 2018. 37 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 37 at para. 66. 38 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 40 at paras. 77-78. 39 Exhibit RPD-1, RPD Record, Exhibit 1, p. 127. 40 Exhibit P-2, Appellant's Record, Appellant's Memorandum, p. 40, at para. 78. 41 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 13 at paras. 41-43. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-14347 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