TB7-13269

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 : TB7-13269 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(a.k.aXXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 20, 2018 Date de la décision Panel T. Card Tribunal Counsel for the person(s) who is(are)the subject of the appeal Tina Hlimi 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") 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, is a member of the Ogaden clan and is a Sufi Muslim. The Appellant alleges to have been born in Mogadishu, Somalia on XXXX XXXX XXXX XXXX but moved with his family to a United Nations High Commissioner for Refugees (UNHCR) refugee camp in Kenya. [4] The Appellant went back to Somalia in January 2014 and lived in Kismayo. While there, he played football with others who were associated with Al-Shabaab and tried to recruit him. The Appellant refused. Threats were then made against the Appellant who went back to the refugee camp in Kenya. [5] The Appellant then travelled from Kenya in February 2014 to the United States (US) via South and Central America. He arrived in the US on XXXX XXXX XXXX and made a refugee claim there, but was refused. He then entered Canada on XXXX XXXX XXXX from the US and made a refugee claim. He was refused by the RPD on the grounds that he had not established his personal identity, including his nationality as a Somali citizen. 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. A psychotherapy report from XXXX XXXX;4 and, b. Documents regarding XXXX XXXX XXXX (the Witness), including his US refugee claim documents and Canadian Basis of Claim (BOC) form.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 Psychotherapy Report rejected [10] The Appellant's memorandum states that Counsel for the Appellant did not understand that the Appellant was suffering from concentration issues until Counsel asked the Appellant post-hearing.10 The RAD notes that in fact there were three sittings for the RPD hearing on 7 February, 10 March and 27 April 2017, so firstly, it is not clear after which sitting Counsel for the Appellant became aware of these concentration issues. [11] Secondly, even if the Appellant told Counsel about his concentration problems after the third sitting, it is clear from reviewing the hearing records that inconsistencies in the Appellant's answers were an issue, and there was still two months between the last sitting (27 April) and the date of decision (27 June) for the Appellant to at least advise the RPD that they would be getting a psychotherapy report, if not actually provide it. [12] Accordingly, the RAD is not satisfied that the evidence in the report arose after the rejection of the claim, was not reasonably available at the time of rejection, or that the Appellant could not reasonably have been expected in the circumstances to have presented the report at the time of rejection. The report therefore does not meet the requirements of s.110(4) of the IRPA. Witness Documents rejected [13] In relation to the Witness documents, firstly, the documents existed before the RPD rejection and so do not meet that eligibility criterion of s.110(4). [14] Secondly, the RAD notes that no argument was made by the Appellant as to why the documents were not reasonably available at the time of the RPD rejection. The Appellant has only argued that he could not reasonably have been expected in the circumstances to have presented the documents at the time of rejection, but failed to explain why as set out in Rule 3(3)(g) of the RAD Rules.11 [15] Accordingly, the RAD finds that the Witness documents do not meet the requirements of s.110(4) of the IRPA and are rejected. NO ORAL HEARING [16] 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.12 [17] 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 [18] The Appellant argues the following issues in his appeal: a. The RPD erred in its assessment of the Appellant's evidence proving his personal identity including his Somali nationality; b. The RPD erred in its assessment of the Witness's evidence and in its finding that the Witness was not credible; c. The RPD exhibited bias in some of its questions to the Witness and in relation to the Appellant's evidence about his practice of Sufism; d. The RPD did not take into account the Appellant's cultural background when assessing the Appellant's evidence; e. The RPD erred in its assessment of the Appellant's ancestral background; and, f. The RPD erred in rejecting an affidavit from the Appellant's mother during the course of the three hearing sittings. [19] The RAD finds that the determinative issue in this appeal is whether the Appellant has established his personal identity as a Somali. RAD ANALYSIS Parents' birthplace inconsistencies [20] One of the major reasons that the RPD found the Appellant had not proved his personal identity was in relation to inconsistencies in his personal testimony. [21] 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,13 the RPD Decision14 and the Appellant's Basis of Claim (BOC) Form and narrative.15 [22] In relation to the birthplaces of his parents, the Appellant was asked where his mother was born; the Appellant replied spontaneously in the first instance "Ethiopia" rather than giving the city name, and specifically stated that this was what his mother told him. In later testimony, the Appellant then tried to explain that he was confused between the settlements of Wardhiigely, Somalia, where he then alleged his mother was born, and Wardheer, Ethiopia. He further attempted to explain the discrepancy by saying that he actually didn't know where his mother was born. [23] The Appellant has argued that due to stress, and due to a failure to take into account the Appellant's education and cultural background, that the later explanation about where his mother was born is credible and that the RPD erred in drawing an adverse credibility inference. [24] The RAD does not agree with this argument. The Appellant spontaneously stated "Ethiopia" as the birthplace for his mother; the later explanations do not explain why he gave this initial answer and do not sufficiently account for the inconsistencies in his testimony. The RAD finds the RPD did not err in drawing an adverse credibility finding on this point. [25] In relation to his father, the Appellant referred to him as being a Somali from Ethiopia who was born in Ethiopia. Birth Certificates [26] The Appellant also submitted a Somali language and an English language birth certificate.16 The English language certificate purports to have been issued in Mogadishu on 26 May 1990. The RPD asked the Appellant why he had an English language certificate, and the Appellant stated that they used to issue English and Somali birth certificates in Somalia. The RPD did not accept that explanation. The RAD concurs with this analysis and notes from the Response to Information Request (RIR) on the languages used on Somali documents,17 that documents before 1973 included English and Italian, but after 1973, Somali and Arabic became the official languages and did not indicate that English language documents were issued. [27] The RPD also noted that the English language document had a host of problems, including failure to name the Appellant's father, listing under profession and marital status "child," and giving the wrong name of the mayor of Mogadishu. The Appellant has not disputed this, but instead argues that as he did not intentionally obtain a fraudulent document, the RPD erred in drawing a negative credibility finding against him. [28] The RAD does not agree with the Appellant's argument. The issue is not whether the Appellant intended to obtain a fraudulent document, but rather whether he intended to present a fraudulent document to the Immigration and Refugee Board (IRB) and pass it off as genuine. The RAD notes that the Appellant is XXXX XXXX old and has the benefit of Counsel, and would know that he is not supposed to present fraudulent documents in support of his claim. As he has done so, and as this is not the sole basis for finding the Appellant not credible, the RPD did not err in drawing a negative credibility finding against the Appellant and the RAD upholds this finding. [29] The RAD also upholds the RPD's finding that the presence of the fraudulent English language certificate also casts doubt on the Somali language certificate and that therefore, this document is also fraudulent. Mother's Identity Card not reliable [30] The Appellant also submitted a copy of his mother's Kenyan identity card18 which lists the mother as having been born in Somalia. The RPD found the document to be unreliable, as firstly it was only a copy, and secondly, the Appellant was inconsistent on how he received the copy, alternating between saying he had it at the US border and that it was confiscated by a border guard upon entry, and receiving the document after he was in US detention from Kenya. [31] The Appellant has argued that the document should still be considered as genuine in light of a letter from UNHCR and other UNHCR documents.19 [32] However, the RAD also notes that as part of their registration, the family of the Appellant provided the birth certificates of the Appellant which have been found to be fraudulent. It is not known on what basis the UNHCR decided to issue documents stating the Appellant and his family are Somali citizens. The RPD and RAD can only make an assessment based on the documents before it. The RAD concurs with the RPD's assessment of the evidence and upholds the RPD's finding that the UNHCR documents should be given little weight. [33] Given the evolving testimony as to how the Appellant obtained the mother's birth certificate, the Kenyan identity document for the mother should also be considered as unreliable, and the UNHCR documents, for the reasons stated above, do not alter that conclusion. The RAD upholds the RPD's finding in this regard. Relationship between Appellant and Witness not credible [34] The RPD also found that the evidence regarding the relationship between the Appellant and the Witness on how they met in Kismayo at a football tournament was not credible. The RPD noted that in relation to the Witness, it found his evidence to have been vague and hesitant, while the Appellant disagrees with this characterisation. The Appellant also argued that the Witness was testifying in English which was not his native language [35] The RAD has reviewed the hearing record as part of its independent analysis. On the issue of language, the RAD notes that the RPD Member actually gave the witness a choice of which language to testify in, and the Witness chose to testify in English. Therefore, the Appellant's argument that the fact that the Witness testified in English should be considered a reason for the hesitancy and vagueness is not accepted. [36] In relation to the manner in which the Witness gave his testimony, the RAD disagrees with the RPD's characterisation that the Witness gave his testimony with hesitation. The RAD does note that the level of interaction according to the Witness was confined to the one week in January 2014 in Kismayo and they did not meet at any other time in Somalia. The RAD also notes that the Witness had some basic knowledge of the Appellant's alleged circumstances regarding his uncle in Kismayo (who the Witness never met) and that the Appellant was just visiting from the refugee camp in Kenya. [37] The bigger issue that arises is that in reviewing the Appellant's testimony about his interactions with the Witness, the Appellant described themselves as good friends and that they saw each other a lot, which doesn't correspond with the evidence provided by the Witness. [38] Furthermore, the RAD concurs with the RPD's assessment that the Appellant was evasive and vague when asked about where the Witness was staying in Kismayo, and that accordingly, the RPD did not err in concluding that the two met in Kismayo at this tournament in January 2014. The level of detail provided by the Witness indicates that he was in Kismayo at the time, but the combination of very surface level detail provided by the Witness about meeting the Appellant, combined with the vagueness and evasiveness by the Appellant, means that the RAD upholds the RPD's finding that, on a balance of probabilities, the two did not meet in Somalia as claimed. US Refugee Documents [39] In relation to the US refugee documents,20 the RAD notes that the information entered regarding nationality is self-reporting, just as the Appellant's Canadian refugee documents would be, and thus carry little weight of evidence of nationality on their own. [40] The Appellant has also argued that as part of his credible fear interview, the Appellant was determined with a reasonable degree of certainty to be a national of Somalia.21 However, the RAD also notes the finding of the US Immigration Judge, as upheld on appeal, who found that the Appellant did not testify in a credible manner. [41] The RAD is not bound by the findings of a foreign jurisdiction, and finds that the credibility issues already identified, combined with the US system's overall finding that the Appellant was not credible, outweighs the finding in the Credible Fear Interview. XXXX XXXX Letter [42] In relation to the letter from XXXX XXXX,22 the RAD notes that the organisation concluded the Appellant was Somali after an interview on the Somali language, background, geography, history, heritage, and culture amongst other items. [43] However, the allegation by the Appellant is that for the vast majority of his life, he has been living at a refugee camp in Kenya surrounded by Somalis and not in Somalia. On that basis, all of his knowledge about Somalia would come from what he has been taught by others, and not from personal experience in living in Somalia. Therefore, the conclusion that he must be a Somali citizen because he has this knowledge is unsustainable. The RAD therefore upholds the RPD's finding that little weight can be placed on the XXXX XXXX letter. Other Documents insufficient to overturn adverse credibility findings [44] Given the number of significant credibility issues already identified, the RAD finds that the remaining documents not explicitly discussed, such as the NDP documents about the Ogaden clan23 and the affidavits by XXXX XXXX XXXX and XXXX XXXX XXXX,24 are insufficient to overturn the adverse credibility findings about the Appellant and his personal identity already made. Allegation of bias not founded [45] The Appellant also stated that in relation to some of the questioning of the Appellant, the RPD Member exhibited bias. Having reviewed the hearing record which involved three different sittings, and noting that the RPD Member consistently explained her position, and accommodated his request through Counsel to audit the Interpreter at the second sitting, the RAD concludes that there is insufficient evidence to show the RPD member exhibited behaviour that would lead a reasonably informed person to perceive bias at any point during the entire hearing process. [46] In regards to the interpreter audit, the Appellant argued that the audit did say that there was room for improvement in English, and surmised that "perhaps the interpreter was unable to accurately capture the Appellant's words."25 The RAD finds that this is unsubstantiated speculation, and having reviewed the record, combined with the overall audit finding that the interpretation was accurate, the RAD upholds the RPD's finding that the issues arising from this testimony stems squarely from the Appellant's lack of credibility, and not interpretation issues. CONCLUSION [47] Overall, the RAD finds that the RPD did not err in its overall finding that the Appellant has not established his personal identity, and upholds this finding. [48] 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. 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 that he is neither a Convention refugee nor a person in need of protection. [49] 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 April 20, 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 246-248. 5 Ibid, Pages 249-262. 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), 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 266. 11 Exhibit P-2, Appellant's Record, Page 266. 12 S.110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. [IRPA] 13 Exhibit P-2, Appellants' Record, Pages 264-283. 14 Ibid, Pages 8-23. 15 Exhibit RPD-1, RPD Record, Pages 19-31. 16 Ibid, Pages 89, 190. 17 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Somalia (31 March 2017), Item 3.4, Response to Information Request (RIR) SOM104445.E, Immigration and Refugee Board of Canada (14 June 2013). 18 Exhibit RPD-1, RPD Record, Pages 177-178. 19 Ibid, Pages 179, 233. 20 Ibid, Pages 76-77, 110-161. 21 Exhibit P-2, Appellant's Record, Page 269. 22 Exhibit RPD-1, RPD Record, Page 171. 23 See Exhibit P-2, Appellant's Record, Memorandum, p. 273 referencing National Documentation Package (NDP) for Somalia (31 March 2017), Item 1.2, United States. Central Intelligence Agency (2002). 24 Exhibit RPD-1, RPD Record, Pages 172-174. 25 Exhibit P-2, Appellant's Record, Page 265. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-13269