TB5-03612

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 : TB5-03612 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 4, 2015 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lani Gozlan 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), alleges that she is a citizen of Somalia. The Appellant is appealing the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant is requesting, pursuant to section 111(1)(b) of the IRPA, that the Refugee Appeal Division (RAD) set aside and substitute the negative determination of the RPD with a positive determination of its own, or in the alternative, pursuant to section 111(1)(c) of the IRPA, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submitted no new evidence in support of her appeal and she has not requested an oral hearing pursuant to subsection 110(6) of the IRPA. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection and dismisses the appeal. Background [3] The Appellant alleges that that she was born and raised in Mogadishu and she is a member of the minority XXXX clan. [4] In 2001, four members of the Hawiye clan militia came to the Appellant's home and attempted to rape the Appellant's two older sisters. The Appellant's father was beaten when he tried to protect her two sisters. One sister was killed by gun fire and the Appellant's mother was shot through the leg. The Appellant, her mother and her younger sisters escaped to the home of a neighbour. The Appellant's father went missing and his whereabouts remains unknown. [5] When the Appellant was fourteen years of age, her mother sent her to live in Nairobi, Kenya accompanied by her mother's friend, XXXX XXXX. When Ms. XXXX died in 2005, the Appellant found work with a Somali family in the Eastleigh district of Nairobi. [6] The Appellant met and married her husband XXXX XXXX XXXX in 2012. The Appellant's husband is a Somali and also a member of the XXXX clan. The Appellant's husband made arrangements for her to travel to Canada when the deportation of Somali's from Kenya began and when she learned she was pregnant. [7] The Appellant arrived in Canada on XXXX XXXX, 2014 and made a claim for refugee protection on December 2, 2014. [8] The Appellant's hearing for refugee protection was held on February 17, 2015. In a written decision of March 26, 2015 the RPD denied the claim. The RPD found the determinative issues to be identity and credibility. [9] The Appellant's appeal was received at the Board on May 6, 2015. The Appellant pleads that the RPD erred in its credibility findings. ROLE OF THE RAD [10] The recent Federal Court decision in Huruglica1 has provided the RAD with guidance with respect to the role of the RAD. In this decision, Justice Phelan states: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [11] Accordingly, the RAD has applied the reasoning as set out in Huruglica2 in its decision. ANALYSIS OF THE EVIDENCE Did the RPD err in its analysis of the Appellant's credibility and identity? Lack of documentary evidence to establish identity [12] The RPD drew a negative inference with regards to the Appellant's general credibility because of her testimony regarding the lack of documentary evidence from people known to the Appellant in Kenya. [13] In her argument, the Appellant refers to the independent documentary evidence regarding the difficulty of obtaining official documents from Somalia, and submits that the RPD's negative inference regarding her lack of documentation from Somalia is unreasonable and erroneous. [14] The RAD does not agree with the Appellant's submission in this instance. The RPD, in its written decision, acknowledged the lack of issuance of identity documents by the Somali government since the outset of the war in 19913 and the RPD drew no negative inference against the Appellant in this regard. [15] The Appellant also argues that she provided a reasonable explanation during her hearing before the RPD as to the difficulties she had in obtaining documents from Kenya. The Appellant submits that the RPD's negative inference regarding her lack of documentation from Kenya is unreasonable and erroneous. [16] The RAD concurs with the RPD's finding of a lack of credibility of the Appellant as a result of the lack of documentary evidence from Kenya to establish her identity. The RAD's reasons follow. [17] According to the recording of the hearing, the Appellant testified that before she married in 2012 she worked for a Somali family in Eastleigh, Nairobi for seven years. During the hearing the Appellant was asked if she had asked her husband to obtain a letter from her employers in Nairobi as evidence for her hearing. The Appellant responded in the affirmative and then testified that the telephone connection with her husband was not good, that he did not understand her request and he sent their marriage certificate. When the Appellant was asked if she had requested her husband to provide a letter for her hearing she testified that she had done so but that the telephone connection was not good and she believed her husband did not understand her request. While the RAD appreciates that international telephone calls may be problematic at times, the RAD finds these explanations unsatisfactory. The RAD finds the Appellant's testimony to be reactive and manufactured. The Appellant testified earlier in the hearing that she spoke with her husband by telephone two or three times each week. At a later time in the hearing, when the Appellant was asked to explain who had sent the marriage certificate, she testified that the person who mailed the document was a man her husband had engaged to do so. When asked how she knew this, the Appellant testified that during a telephone conversation with her husband she had asked about the sender and he had provided an explanation. Given the number of telephone calls between the Appellant and her husband and that information had been clearly received, the RAD finds, on a balance of probabilities, that the Appellant made no requests for documentary evidence from her husband or former employer. The Marriage Certificate [18] The Appellant provided a Certificate of Marriage, registered XXXX XXXX, 2014, as evidence for her hearing before the RPD.4 The RPD gave little weight to the certificate in establishing the Appellant's personal identity or identity as a Somali national. The RPD noted that the certificate provides no reference to nationality of the Appellant or her husband and that their place of residence is listed on the certificate as Nairobi, Kenya. The RPD had difficulty accepting that the certificate was issued in 2014 when the Appellant testified she was married in 2012. The RPD also found it unreasonable that persons living illegally in Kenya would risk registering their marriage. The RPD also questioned why the Appellant did not request letters from those who attended her wedding, such as witnesses and her guardian, listed on the certificate, to corroborate knowledge of the Appellant and her husband. [19] The Appellant argues that she explained during her oral hearing that the registration of a marriage is culturally not as important as the oral solemnization by a Muslim cleric. The Appellant argues further that it was after she arrived in Canada that she asked her husband to obtain a certificate of marriage as proof of her identity. The Appellant pleads that her husband did not approach the Kenyan government directly, but had the Imam register the marriage on their behalf. [20] The RAD concurs with the RPD's assigning of little weight to the certificate of marriage for the following reasons. [21] With regard to the document not establishing the Appellant's identity: a) There is no date of birth of the Appellant on the certificate. b) The certificate provides no information regarding the nationality of the Appellant or her husband. c) The document was issued after the Appellant arrived in Canada. [22] With regard to the Appellant's lack of credibility, the document has a seal of the Khadis Court, Nairobi, Republic of Kenya and it was "Certified that this is a true Certificate of Marriage as in the Register",5 thus, undermining the Appellant's allegation that she and her husband feared Kenyan authorities as a result of their illegal status. Even if, as the Appellant testified, an Imam registered the marriage, the Appellant's name and that of her husband, as well as the names of two witnesses and the guardian of the Appellant, would be known to authorities as a result of the registration. The recording of the hearing indicate that the Appellant testified that her husband was reluctant to mail the certificate of marriage and engaged someone to do so. As the RPD found in its decision, the reluctance of the Appellant's husband to mail a letter from Kenya through a private courier causes the RAD to question why their marriage was registered with Kenyan authorities. The Envelope [23] The Appellant provided the envelope in which the certificate of marriage was sent. The envelope is addressed to XXXX XXXX XXXX.6 (RAD's emphasis) The Appellant provided her name at the port-of-entry (POE) and in her Basis of Claim (BOC) form as XXXX XXXX XXXX.7 (RAD's emphasis) [24] The RPD found the different variation of the Appellant's name on the envelope detracted further from her ability to establish her identity. [25] The Appellant argues that she explained during her hearing before the RPD that 'XXXX is written in Somali on the envelope, while she chose to spell her name phonetically as 'XXXX in English. The Appellant submits that the RPD's negative inference was made in error because it is not unusual for persons to spell names that are not written in English in a phonetic way. [26] The RAD appreciates that an Arabic name, when translated to English, may have different spellings when spelled phonetically. However, other than the Appellant's allegation, there is no documentary evidence to establish that 'XXXX and 'XXXX represent the same Somali name when spelled phonetically. The RAD, thus, concurs with the RPD's finding in this regard. The Appellant's address in Nairobi [27] The RPD drew a negative inference as related to the Appellant's general credibility because of the Appellant's testimony with regards to where she lived in Nairobi from the time she left Somalia in 2002 until she left Kenya in 2014. [28] The Appellant argues that she testified before the RPD that buildings are not numbered in the suburb of Eastleigh and that a person would ask for directions once they had located a particular street. The Appellant submits that the RPD's negative inference was erroneous because it is not unusual in different parts of the world not to number buildings. [29] The RAD agrees with the Appellant's argument that in some parts of the world buildings may not be numbered. However, the RAD concurs with the RPD for the following reasons. [30] The RAD first notes that the RPD's finding was based on more than the Appellant's testimony regarding the lack of numbers on buildings. According to the recording of the hearing, the Appellant testified that she lived in the suburb of Eastleigh with her mother's friend XXXX from 2002 until XXXX died in 2005 and then moved next door to work for a woman named XXXX until the Appellant married in 2012. When asked where she lived, the Appellant testified that there was no particular address; when asked the street name the Appellant did not answer the question but testified that it was an area of Eastleigh. The Appellant testified further that she moved to a different area of Eastleigh when she married her husband in 2012. The RPD then pointed out to the Appellant that at the port-of-entry (POE)8 she stated that she lived at XXXX XXXX XXXX Eastleigh from XXXX 2002 until XXXX 2012 at which time she left Kenya. The Appellant asked if the RPD had said XXXX XXXX. When the RPD rephrased the question, the Appellant did not explain the contradiction between the information in the POE notes and her earlier testimony. She chose to state that there are street names in the neighbourhood but that the buildings do not have numbers. The RAD finds the Appellant's credibility undermined for the lack of any satisfactory explanation for the serious contradiction of her addresses in Nairobi. [31] In its decision the RPD noted that the Appellant had been asked at length about the area where she lived in Eastleigh. The RPD found that at times the Appellant's testimony was vague and evasive. The RAD finds that as a result of listening to the recording of the hearing, the RAD agrees with the RPD's finding in this regard. For example, the Appellant testified that there was no address where she lived. When asked to describe the neighbours on either side of the residence where she lived with XXXX, the Appellant mentioned only the building next door where she eventually moved to work for XXXX and where the witness also lived. When asked about the building where XXXX lived, the Appellant first testified that the witness lived downstairs and XXXX lived upstairs and then changed her testimony to indicate that XXXX lived on the ground floor and the witness upstairs. When asked to provide a description of shops in the area and what the Appellant would have seen when she walked from her building, the Appellant's testimony was not provided in a forthright manner or with any degree of detail. The RAD finds her testimony is not commensurate with that of a person who claims to have lived in the same area of Eastleigh for ten years. The RAD finds the Appellant's credibility is further undermined as a result of this testimony. [32] The RAD, thus, finds, on a balance of probabilities, that the Appellant did not reside in the Nairobi suburb of Eastleigh where the majority of the population is Somali. How the Appellant met her husband [33] In its decision the RPD was troubled as to how the Appellant met her husband on the street in Eastleigh when she had testified that she had no friends because her employers did not allow her out of the house. [34] The Appellant argues that at her hearing before the RPD she testified that she met her husband when he was working as a XXXX XXXX; in her affidavit she states that she did the grocery shopping for her employers and she would see her husband along the way and they began to talk to one another. The Appellant argues further that she testified at her hearing that she was not allowed to bring her husband to her employers' home and that it is plausible and reasonable that she met her husband on the street. [35] The RAD concurs with the RPD for the following reasons. [36] According to the recording of the hearing, when the Appellant was asked if her husband had met her employers she answered in the negative and explained that her employers did not allow her to date or leave the house. At another point in the hearing, when the Appellant was asked if she had friends, she testified that her employers did not allow her out or to have any contacts. When the RPD reminded that Appellant that she married in 2012, the Appellant testified that she became a stay at home housewife and provided no explanation as to how she was able to marry given the restrictions of her employers. When asked about the conditions of her employment, the Appellant testified that she cleaned her employers' home and looked after their children; she made no mention of shopping for groceries. [37] The RAD finds, on a balance of probabilities, that the Appellant did not meet her husband in the manner she alleges. The RAD finds this to be another attempt on the Appellant's part to associate herself with the Eastleigh area of Nairobi, where the majority of residents are Somali. Subjective Fear [38] The RPD found it unreasonable that the Appellant made no inquiries into normalizing her status in Kenya given that she resided in Kenya for over ten years. The RPD did not find the Appellant's explanation, that she was young and living with her employers, to be reasonable or consistent with a person who has genuine fear of persecution. The RPD referred to jurisprudence which states that the failure to immediately seek protection can impugn the claimant's subjective fear. [39] The Appellant argues that she testified before the RPD that she was a minor when she arrived in Kenya and was unaware of any process whereby she could legalize her status. She further argues that she testified that many Somalian people reside illegally in Kenya and have never seen a United Nations officer. She pleads that her employers were very controlling and she did not have contact with government offices or administration. [40] The RAD concurs with the RPD for the following reasons. [41] According to the POE notes the Appellant completed eight years of formal education.9 While the Appellant may not be a sophisticated person, the RAD believes she is capable of making inquiries. She made her way to Canada and navigated the refugee protection system. According to her testimony before the RPD, the Appellant's employers in Kenya for almost five years were Somali nationals who had gained legal status in Kenya. The RAD finds that the Appellant could have at least made inquiries through her employers. Her failure to do so undermines her subjective fear and, thus, her credibility. The Appellant's boarding pass and luggage tags [42] According to the recording of the hearing, the Appellant testified that after she arrived in Canada in the company of the smuggler, the smuggler retrieved the passport she had used to travel to Canada as well as her boarding pass. When asked, she testified that she had no baggage tags because she carried only hand luggage. [43] The RPD found that it accepted to some degree the need for the smuggler to recoup the passport the Appellant used to travel to Canada. However, the RPD found that it could not say the same about a boarding pass or baggage tags. The RPD had credibility concerns because it found that the Appellant's failure to provide the boarding pass or baggage tags furthered its suspicions that the Appellant was trying to mislead the RPD on her identity and travel route to Canada. [44] The Appellant argues that it is plausible that the smuggler took all of the documents containing the name in the fraudulent passport used by the Appellant in order to avoid having any document traced back to him. She pleads that at the time she travelled, she was six and a half months pregnant and not feeling her best. She pleads further that it is, thus, reasonable that it would not have occurred to her to retain a boarding pass or luggage tags from her flight. [45] The RAD finds that the Appellant's argument has merit and, thus, draws no negative inference from the lack of such travel documents as a boarding pass or luggage tags. While the RPD may have made an error in this particular finding, the RAD finds that it is not fatal to the RPD's overall finding of credibility. The witness [46] The RPD found that the testimony of the witness contradicted that of the Appellant with regards to the children of the Appellant's employers. The RPD had serious doubts about the genuineness of the relationship of the Appellant and witness and placed little weight on the witness' testimony. [47] The Appellant pleads that the witness' testimony was credible for the most part and that the witness provided a reasonable explanation for not remembering the details of the children of the Appellant's employer. [48] The RAD agrees with the RPD and gives little weight to the testimony of the witness for the following reasons. [49] According to the recording of the hearing, the witness testified that she knew the Appellant in Eastleigh when the Appellant lived next door with a woman named XXXX. The witness testified that the Appellant moved to the residence where she lived after XXXX died in 2003. When asked, the witness testified that she resided in the same building as the Appellant until she moved to Canada in 2010. The witness testified that she and her family were the only residents on the main floor of the building and that the only residents on the floor above were the Appellant and the family for whom the Appellant worked. Upon being asked, the witness testified that she visited with the Appellant once or twice each week in the Appellant's residence. Given the alleged length of time the witness knew the Appellant and resided in the same residence as the Appellant, the RAD found the witness' testimony about the area in which they lived to be vague and of the residents in the building to be lacking in detail. Examples follow. [50] When asked, the witness testified that there were two floors in the building in which she and the Appellant resided. This agreed with earlier testimony given by the Appellant. However, when the RPD referred the witness to her affidavit10 in which she stated there were three floors to the building in which she resided, the witness changed her testimony and stated that the ground floor was not inhabited. She then stated that she had troubles with floor numbers and finally settled on there having been two floors in the building. The witness was asked again why she had stated in her affidavit that there were three floors. She testified that it was possibly a misinterpretation. The RAD does not find this explanation satisfactory. The RAD notes that while the witness used the assistance of an interpreter during the hearing, she often spoke in the English language. Her affidavit is in the English language with no interpreter having been employed. Thus, the RAD finds the witness' testimony to be untrustworthy. [51] According to the recording of the hearing, when asked, the witness testified that the family for whom the Appellant worked had two boys. When asked the question a short time later, the witness testified that the family had two girls and one boy. When asked the ages of the children, with some hesitation, the witness testified that there ages ranged from one to three years of age. The Appellant had earlier testified that her employers had three boys and one girl and that the eldest child was seven years of age. When these discrepancies were put to the witness, she testified that when she visited the Appellant the children were often outside. The RAD finds this explanation unsatisfactory. According to the witness, she resided in the same building as the family of the Appellant's employer for over seven years and they were the only two families in the building. She also testified that she visited the home of the family of the Appellant's employers once or twice each week for seven years. It is, thus, unreasonable that the witness was not aware of the number and gender and approximate ages of the children who lived upstairs from her. [52] The RAD found that when the witness was asked to provide information about the area in which she and the Appellant lived, her testimony was decidedly vague. For example, when asked about stores, she testified that there were small stores but she recalled no names. When asked about the surname of Appellant's female employer, XXXX, who lived upstairs from her, she testified she did not know. She testified that she did not know the name of the XXXX husband. While the witness knew the colour of the building in which she resided in Eastleigh and the colour of the building of the residence in which the Appellant had lived with XXXX, she could provide no information about any other buildings in the area even though at another juncture of the hearing she testified that all the neighbourhood got to know each other by meeting at the stores. When asked about the neighbours she knew, the witness testified that she knew no other neighbours besides the Appellant and XXXX. [53] The RAD appreciates that the witness provided testimony consistent with that of the Appellant with regards to events that caused the Appellant to leave Somalia. However, the RAD finds that this information could have been learned to bolster the Appellant's claim. Given that the witness was unable to provide credible testimony regarding the time she and the Appellant allegedly socialized with one another in Kenya, the RAD finds, on a balance of probabilities, that the witness and the Appellant were not acquainted in Kenya. Even if the witness had provided credible evidence, which the RAD does not concede, the RAD finds that such evidence could only establish that the witness knew the Appellant and Kenya; such evidence could not establish the Appellant's nationality. Summary [54] Based on a review of the totality of the evidence, the Appellant has not provided sufficient credible or trustworthy evidence in support of her claim. DISPOSITION [55] Based on the analysis above, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection, as per s. 111(1)(a) of the IRPA. [56] The appeal is, thus, dismissed. (signed) "Lesley Mason" Lesley Mason July 24, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Ibid. 3 Exhibit RPD-1, RPD's Record, RPD's Reasons, p. 5, para 9 4 Exhibit RPD-1, RPD's Record, Exhibit 4, Claimant's Disclosure, p. 65 5 Ibid. 6 Ibid., p. 66 7 RPD-1,RPD's Record, Exhibit 2, Basis of Claim Form, p. 15; RPD-1, RPD's Record, Exhibit 1, Port of Entry Notes, pp. 29, 35 8 Ibid., p. 41, question 12 9 Ibid., p. 40, question 7 10 Exhibit RPD-1, RPD's Record, Exhibit 4, Claimant's Disclosure, p. 62, para. 2 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03612