TB8-05714

RAD File / Dossier de la SAR : TB8-05714 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 XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 31, 2019 Date de la décision Panel T. Card 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 [1] XXXX XXXX XXXX XXXXthe "Appellant") is alleging to be a citizen of Somalia and is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. DETERMINATION [2] The Appeal is dismissed. BACKGROUND AND ALLEGATIONS [3] The Appellant alleges that he is a citizen of Somalia and a member of the majority Hawiye clan. The Appellant also alleges to be a Sunni Sufi Muslim and that he lived in Galcad, Somalia. [4] In January 2015, members of Al-Shabaab attempted to recruit the Appellant. After his refusal the first time, the Appellant was approached a second time by Al-Shabaab members, kidnapped and beaten. The Appellant then told his captors he would agree to join them and was released. [5] The Appellant then left Galcad and went to stay with his uncle (the Uncle) in Mogadishu. A smuggler helped the Appellant leave Mogadishu. He arrived in Brazil and made his way through South and Central America to the United States (US). The Appellant made a refugee claim in the US, but was refused. [6] The Appellant then travelled through to Canada, arriving in Manitoba on XXXX XXXX 2015. The Appellant made a refugee claim in Canada, but was refused by the RPD on the basis he had not satisfactorily established his identity. NO NEW EVIDENCE OR ORAL HEARING [7] The Appellant did not submit any new evidence to be considered under s.110(4) of the Immigration and Refugee Protection Act (IRPA).1 No analysis of new evidence is therefore required. [8] As an oral hearing can only be held where there is new evidence that has been admitted under s.110(4), and since there is no new evidence in this case, no oral hearing is required. ISSUES IN APPEAL [9] The Appellant argued the following issues in his appeal: (a) The RPD erred in its assessment of the Appellant's evidence regarding his identity and its conclusion that the Appellant has not established his identity. (b) The RPD erred by requiring the Appellant to prove his identity to a standard of beyond reasonable doubt. [10] I find that the determinative issue in this case is identity. ANALYSIS [11] I have conducted an independent analysis of the evidence concerned, including reviewing the RPD hearing, as well as considering the Appellant's Memorandum,2 the RPD Decision,3 and the Appellant's Basis of Claim (BOC) form,4 amongst other documents. [12] I also note that as the Appellant points out, in listening to the audio of the first setting there was static on the recording. However, I was able to mute Channel 2 on the recording which eliminated the static. RPD erred regarding Somali passport [13] One of the reasons that the RPD found that the Appellant had not made reasonable efforts to get identity documents was his failure to get a Somali passport to attempt to establish his identity. The Appellant argued that given his lack of education, and the fact that prior to his departure with the assistance of the smuggler, he should not have been expected to have a Somali passport. [14] In conducting my independent analysis, I note that Canada in fact does not recognise Somali passports as a valid identity document due to the prevalence of fraudulent passports.5 A check of the most recent National Documentation Package (NDP) does not show any change in policy since the RPD Hearing. [15] I find it perverse for the RPD to require the Appellant to attempt to obtain a document that Canada does not recognise as valid. I therefore find the RPD erred in drawing a negative credibility inference against the Appellant for not attempting to get a Somali passport. RPD's decision did not err in introductory section [16] The Appellant has argued that the RPD erred by "casting a nebulous cloud on credibility without particulars"6 and referring to Page 3, Lines 30-40 of the RPD Decision. [17] In reviewing this section of the decision, it is clear that what the RPD Member is doing is putting the general conclusion about her findings on credibility in adherence with the point-first decision writing technique championed by Justice Laskin. One needs to go on to read the rest of the RPD decision before jumping to a conclusion about a decision's clarity or lack thereof. [18] In this case, I find that the Appellant's argument about this isolated section of the RPD decision lacking in clarity is not well founded in light of the elaboration on why the RPD Member made its findings later in the decision. RPD's decision did consider the evidence together [19] The Appellant has also argued that the RPD did not consider all of the evidence together and instead treated each piece of evidence in isolation with the aim that one piece needs to prove identity by itself. [20] In reviewing the RPD Decision I disagree with the Appellant's characterisation of the RPD Member's analysis. The RPD Member weighed each piece of evidence and gave reasons for the appropriate weight being given, but never indicates that a single piece of evidence must prove identity themselves. I find that the RPD Member did combine the appropriate weight together and came to a conclusion that the total weight was insufficient to establish identity. Some RPD findings were microscopic [21] The Appellant also made submissions that the discrepancies regarding the Appellant's date of birth and slight differences in his name between his Canadian forms and the US biometrics report7 and over which the RPD drew negative credibility inferences should not in fact result in such negative credibility inferences. The Appellant argued that the RPD failed to take into account the Appellant's lack of literacy, education, and the fact that he had someone who was not a professional assisting the Appellant on certain forms including his Schedule A form.8 [22] I accept the Appellant's arguments in this case, and also find, making my independent analysis, that the RPD's analysis on these particular issues was too microscopic to reject the entire claim. That said, it does not then follow that the Appellant then has discharged his burden in establishing his identity. US affidavit worth little weight [23] The Appellant has also argued that the RPD erred by giving no weight to his US cousin's affidavit9 due to issues regarding the cousin's name, and use of his nickname "XXXX". [24] In reviewing this evidence, I take into account the Appellant's submission, citing Item 3.2 of the NDP that nicknames can be used in an official context, and that this is what has happened in this case. [25] In taking the affidavit at face value, and as being accompanied by the US permanent residence card, I find on a balance of probabilities that the affiant is the same person to whom the permanent residence card belongs to. I therefore also find that the RPD erred by giving the affidavit no weight. [26] However, in also reviewing the content of the affidavit itself, I note that the affiant says he confirms that the Appellant is Somali, and that the Appellant stayed with the affiant upon release from detention in the US. The affidavit also states that they are cousins. [27] However, I find that the affidavit is particularly brief and provides insufficient information to establish that the affiant is related to the Appellant in the manner stated. There is nothing in the affidavit about how they got in contact, the first time they met, and whether they ever met in Somalia, for example. I also note that the affiant was not presented as a witness at the RPD hearing, and there is no indication that there was ever any intent to do so. This means that the affiant's testimony cannot be tested at the hearing. [28] Accordingly, while I find the RPD erred in giving no weight to the affidavit, I substitute a finding that the affidavit be given little weight. Witness not credible [29] The Appellant has also argued that the RPD erred by drawing a negative inference from the first identity witness's inability to attend the RPD hearing, and its subsequent finding that it was too coincidental that a second witness could be found in such short order. [30] In reviewing the evidence surrounding these events, I am more disturbed by the submission that "A first witness could not attend, so a replacement was found." This conjures an image that that the Appellant was shopping for witnesses like one shops for a product in a store. He couldn't find one in the first store, so he found one in the second. [31] It is true that the first witness's inability to attend the first RPD sitting was not the Appellant's fault. It is important to remember that the first witness could not give testimony at the first sitting because of an emergency. What is concerning is firstly that even with the presence of the second witness, there is no indication that the Appellant tried to apply for an adjournment to give the first witness a chance to testify on a different day. [32] This includes a lack of effort to get the first witness to testify at the second RPD sitting. This demonstrates a lack of reasonable efforts to establish identity, and I find that while the RPD erred in drawing a negative inference from a coincidence in finding a second witness, I find on a balance of probabilities that a negative inference be drawn for the Appellant's lack of efforts in getting the first witness to offer testimony on a different date from that of the first RPD sitting. [33] In relation to the witness who did testify, I firstly take issue with the Appellant's contention that "consistency is a badge of credibility".10 Just because inconsistent testimony is a badge of lack of credibility does not then lead to a corollary that consistent testimony is therefore credible. [34] In this case, the witness stated that he "knew" the Appellant was a Somali born in Galcad because the Appellant told him. This is not independent knowledge that has been acquired by the witness. The "consistency" only comes from the fact the witness remembered what the Appellant told him, and generates no evidence of any weight establishing the Appellant's personal identity including his nationality. [35] I find that the RPD did not err in its assessment of the Appellant and Witness's testimony about each other, and in finding that their testimonies on this issue carry no weight. Dejinta Beesha letter carries little weight [36] The Appellant also stated that the RPD Member erred by placing insufficient weight on the Dejinta Beesha letter.11 The Appellant makes reference to the Ibrahim12 case that it is unreasonable to give no weight to letters from organizations like Dejinta Beesha due to a lack of information about the verification process. [37] In this case, I find that the Appellant has mischaracterised the RPD's findings about the Dejinta Beesha letter. Firstly, the RPD Member did not place no weight on the letter as was the case in Ibrahim, but instead placed little weight on the letter. [38] Secondly, the Appellant has argued that given other evidence available, more weight should be given to the Dejinta Beesha letter. However, I have not found that RPD has erred in the amount of weight given. I concur with the RPD's findings that knowledge of the Somali language, and about Somalia does not automatically equate to Somali citizenship. I also concur with the RPD's finding that Dejinta Beesha have not established that they made attempts to contact, much less be successful in contacting, any of the Appellant's relatives to confirm his identity. I find that the RPD did not err in its assessment of the Dejinta Beesha letter and uphold its findings accordingly. Insufficient efforts to get evidence from Somalia [39] The Appellant has also argued that he was unable to get a letter from his uncle in Mogadishu who had helped him escape from Somalia. This is due to difficulties in the area from an explosion in the city and that the uncle's movement was restricted. The Appellant argued that the RPD failed to take this into account after drawing a negative inference against the Appellant for failing to get such evidence. [40] Having conducted my independent analysis of the evidence surrounding the uncle, I note that while it may have been difficult to get a letter from the uncle, there was no attempt by the Appellant to either ask for an adjournment to get more time to get the letter, in the event that the situation after the explosion would become more normalised, or an attempt to get the uncle to testify by phone. If the Appellant had been able to talk to his uncle on the phone as alleged in order to get the letter, it stands to reason he then could have presented the uncle as a witness by telephone. He did not do so. [41] I have taken into account the Appellant's argument that his lack of education is an impediment, but I do not accept this as a catch-all reason for his failure to make efforts to get testimony from his uncle in Somalia or his cousin in the US. This is particularly given the fact the Appellant had assistance from paid counsel. [42] It also stands to reason that other Somali claimants with similar educational backgrounds as the Appellant have made reasonable efforts to establish their identities in their claims and been successful accordingly. This makes the Appellant's argument about his lack of education a weak one. [43] I also reject the Appellant's argument that the RPD imposed a higher standard of proof in establishing his identity, and find that the RPD was correct in its application of standard of proof and its conclusion that the Appellant has not met that standard. CONCLUSION [44] After conducting my independent analysis of the entire record, I find that the RPD did not err in its overall finding that the Appellant has not established his identity, or its assessment of the Appellant's evidence. The Appellant has not made sufficient efforts to get necessary identity evidence, and has not discharged his burden of proof in establishing his identity. [45] Pursuant to s.111(1)(a) of the IRPA, I confirm 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 October 31, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Exhibit P-2, Appellant's Record, Pages 13-36. 3 Ibid., Pages 2-12. 4 Exhibit RPD-1, RPD Record, Exhibit 2, Pages 15-27. 5 Ibid., Exhibit 3, National Documentation Package (NDP) for Somalia, 31 May 2017, Item 3.11, Response to Information Request (RIR) SOM105248.E, Immigration and Refugee Board of Canada, 17 March 2016. 6 Exhibit P-2, Appellant's Record, Page 17, Paragraph 36. 7 Exhibit RPD-1, RPD Record, Exhibit 6, Pages 78-84. 8 Ibid., Exhibit 1, Pages 39-42. 9 Ibid., Exhibit 7, Pages 86-87. 10 Exhibit P-2, Appellant's Record, Page 25, Paragraph 80. 11 Exhibit RPD-1, RPD Record, Exhibit 4, Page 74. 12 Ibrahim v M.C.I. 2016 FC 11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-05714 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