TB8-19894

RAD File / Dossier de la SAR : TB8-19894 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 25, 2020 Date de la décision Panel I. Singh Tribunal Counsel for the person who is the subject of the appeal Aurina Arnab Chatterji 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] XXXX XXXX XXXX (Appellant), citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD), dated July 27, 2018, rejecting his claim for refugee protection. DECISION [2] The appeal is allowed. I send this matter back to the RPD to be redetermined. BACKGROUND [3] The Appellant alleged before the RPD that, upon return to Somalia, he fears harm from Al-Shabaab, as he was previously attacked by them because he worked as an XXXX XXXX for the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and was perceived to be a supporter of the government. [4] The Appellant's application for refugee protection was heard on May 14, 2018 and July 10, 2018. By a decision of July 27, 2018, the RPD rejected the claim. The RPD found the determinative issue was identity. [5] The Appellant submits that the RPD erred by breaching procedural fairness, and in its assessment of the Appellant's documents and identity. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [6] My role is to look at all the evidence and decide if the RPD made the correct decision.1 ANALYSIS New evidence application [7] According to the law,2 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.3 [9] The Appellant provided an affidavit from XXXX XXXX XXXX, dated XXXX XXXX XXXX 2018,4 as well as a copy of her Canadian passport and a family tree diagram showing how they are related. [10] I find that these documents are admissible as new evidence. The documents meet the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). I have carefully reviewed the documents and accept the Appellant's submissions in finding these documents and the need for them arose after the RPD decision, they were not reasonably available at the time of the decision, and the Appellant could not reasonably have been expected, in his circumstances, to obtain and provide the documents prior to the RPD decision. [11] I also find the documents are new as they provide information to confirm the Appellant's identity that was not previously before the RPD. I also find the documents are credible on their face. I also find the documents are relevant to the claim, and specifically with regard to the assessment of the Appellant's identity. Therefore, I find the affidavit and related documents are admissible as new evidence. Request for oral hearing [12] I have considered holding an oral hearing to provide a final determination of this claim. However, I find I am unable to do so because the Appellant's new evidence is not determinative of the claim before the RAD, as the RPD failed to assess the Appellant's allegations of persecution and the merits of his claim for protection. The request for an oral hearing is therefore dismissed. The RPD's findings on identity [13] The RPD determined the Appellant was not credible and failed to establish his identity. [14] The Appellant argues that the RPD made several errors, including by breaching procedural fairness by requiring him to testify in English, by failing to give adequate weight to his evidence, and by erring in its identity and credibility findings. [15] I am persuaded by some of the Appellant's arguments, as follows. [16] The RPD did not find the Appellant's XXXX documents reliable as they referred to XXXX as the XXXX XXXX XXXX XXXX XXXX, instead of XXXX XXXX [emphasis added]. The Appellant argues that the organization uses the names interchangeably, requiring specific evidence from XXXX is unreasonable, and that the RPD should have assessed this evidence in a more fulsome manner. I agree with the Appellant and find that the RPD's findings in this respect were microscopic. The Appellant provided several articles in which XXXX is referred to as the XXXX XXXX XXXX XXXX XXXX XXXX and these appear to be from objective and credible sources. Therefore, I find the RPD erred in its assessment of the documents from XXXX. [17] The RPD made a number of findings about the Appellant's National Identity Card, one of which was that the Appellant's testimony about how he obtained the card was not credible as he failed to testify that he had to give fingerprints. The Appellant argues the RPD breached procedural fairness by requiring him to testify in English, as he had worked as an XXXX XXXX in Somalia. I am persuaded by the Appellant that there was a breach of procedural fairness. Having review the audio recording of the hearing, and as stated by the RPD, the Appellant was reluctant to testify in English and he did appear to have some difficulty. The RPD found that, the Appellant failing to mention the need for fingerprints was unrelated to his understanding of English; however, I disagree. The Appellant argues he felt pressured to answer in English as he did not want the RPD to make an adverse credibility finding. I find this persuasive as there is no way to know whether the pressure affected the credibility of his testimony and having an interpreter on standby would not have been helpful in this context. Therefore, I find the RPD erred by requiring the Appellant to testify in English and subsequently finding credibility concerns within that testimony. [18] The RPD also had concerns with the identity card when it was compared to samples from Keesings, finding that it lacked certain security features. The Appellant argues the samples are from Jubaland, whereas the Appellant's identity card is from Mogadishu, and therefore should not have been compared. The samples also pre-date the Appellant's card. The Appellant also argues the RPD speculated about the security features that should have been on his card, as this was not based on any objective evidence. I am persuaded by the Appellant's arguments, particularly his argument about health cards from different Canadian provinces and if they were compared to find that a person was not Canadian. I also find the RPD speculated as to what security features should have been on the Appellant's identity card when it was issued in 2015 as there is no objective comparable sample. Therefore, I find the RPD erred in its analysis of the Appellant's identity card. [19] The RPD had credibility concerns with a copy of the Appellant's Somali passport, particularly about how it was obtained. The copy of the passport was verified as genuine by the Somali embassy in the United States of America and a letter was provided. The Appellant argues the RPD erroneously dismissed the letter from the embassy, to which the presumption of validity should attach, and erred by questioning the integrity of a foreign embassy. The Appellant argues the letter should have been given more weight and deference. I agree with the Appellant that the letter from the embassy should have been given more weight in the RPD's overall analysis. However, I do not agree with the Appellant that it is incontrovertible evidence that the Appellant is a Somali citizen, as this argument fails to address the RPD's finding that the Appellant may be ethnically Somali, but this does not preclude him from having obtained another nationality. [20] The RPD found that the letter from the Dejinta Beesha, a Somali Multi-Service Centre in Toronto, did not establish the Appellant's personal or national identity, on a balance of probabilities, in part because it did not provide details of how the author came to his conclusions or how he confirmed or verified the information provided by the Appellant. The Appellant argues the RPD erred by unreasonably expecting these details. He relies on Belek: "The RAD fails to explain why it would be reasonable to expect these further details to have been provided, such that a negative inference can be drawn from their absence [footnote omitted]... Absent such justification, the RAD's treatment of this document is unreasonable."5 I am persuaded by the Appellant and find the RPD erred in unreasonably requiring further details, without which, the document appeared to provide minimal value. [21] I find the RPD's errors to be fatal to the RPD's determination on identity, which was the determinative issue in dismissing this claim. [22] Upon its own review of the record, the RAD has its own concerns with the credibility of the Appellant. Nevertheless, as the RPD failed to independently assess the merits of the claim for protection, the RAD is of the opinion that it cannot provide a final determination of this claim. The matter is therefore referred back to the RPD for redetermination. CONCLUSION [23] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. (signed) Inderpreet K. Singh I. Singh September 25, 2020 Date 1 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, at s. 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (CanLII). 4 Exhibit P-2, Appellant's Record, at pp. 12-16. 5 Belek v. Canada (Citizenship and Immigration), 2016 FC 205 (CanLII), at para. 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-19894 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français