TB7-12730

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 / Dossier de la SAR : TB7-12730 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.a. XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered at Toronto, ON Appel instruit à Date of decision March 16, 2018 Date de la décision Panel G. Erauw Tribunal Counsel for the person(s) who is(are) the subject of the appeal Rodney L Woolf Conseil(s) (de la/des) personne(s) 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 (the "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. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside the RPD's negative determination and find that he is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests the RAD refer the matter back to the RPD for redetermination by a differently constituted panel. The Appellant has requested to submit new evidence and has requested an oral hearing. DETERMINATION OF THE APPEAL [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 paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).1 Background [3] The Appellant alleges that he is a member of the Hawrarsame, which is a sub-clan of the Darod clan. He alleges he was frequently robbed and threatened when he was a bus driver in Somalia by members of the Marehan sub-clan, which is also a sub-clan of the Darod clan. In January 2012, he alleges that these individuals attempted to steal his bus and beat him severely. As a result, he claims he was no longer able to work and unable to fulfill his marital duties, and this led to him divorcing his wife. He fled to Kenya, where he worked as a shopkeeper for a year and a half, before leaving to make a claim in the U.S. After his asylum claim in the U.S. was rejected, he made his way to Canada and made a claim for refugee protection. Further details are provided in his Basis of Claim (BOC) Form and his testimony at the RPD hearing.2 The RPD's Decision [4] The Appellant had a refugee determination hearing on May 10, 2017. In a written decision issued on June 12, 2017, the RPD rejected the claim. The RPD panel found the Appellant was not a credible witness and failed to establish his identity. Therefore, the RPD concluded that the Appellant does not have a well-founded fear of persecution on a Convention ground, or that he would not personally be subjected to a risk to life or a risk of cruel and unusual treatment or a danger of torture upon return to Somalia. [5] The Appellant argues that the RPD erred in its identity finding, failed to consider relevant documents, and failed to assess his risk profile as a returnee from a Western country. 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.3 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.4 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 his appeal, the Appellant proposes one document as new evidence: 1) Affidavit of XXXX XXXX XXXX, dated 18 July 2017.5 [8] Evidence from the person who is the subject of the appeal is only admissible on appeal if it meets one of the statutory conditions set out in subsection 110(4) of the IRPA, namely, that it arose after, or was not reasonably available, or could not reasonably have been expected in the circumstances to have presented the evidence at the time the claim was rejected. If one of these conditions is met, the RAD will then consider if the evidence is credible, relevant, and new as endorsed by the Federal Court of Appeal in Singh.6 Admissibility of XXXX XXXX XXXX Affidavit The Appellant's Argument [9] The affidavit states that the affiant knew the Appellant in Somalia and that the affiant did not know the Appellant was in Toronto, until they both went to the same mosque for Eid in June 2017. The Appellant submits that he did not know that the affiant was in Canada at the time of his claim and could not have known to bring him as a witness at the time his claim was rejected because they met in late June 2017. The Appellant argues that the affidavit is extremely probative, as it addresses not only the Appellant's identity, which is the determinative issue, but corroborates the location of events. He submits that the affiant was found to be credible before the RPD, and his claim was accepted; identity is the determinative issue, and the affidavit meets the test for 110(4), and it is admissible as credible and trustworthy in the circumstances.7 The RAD's Assessment [10] I find the affidavit is admissible only in part. I reject the portions of the affidavit that speak about the Appellant's identity, because similar evidence is already in the record. However, I accept as admissible part of paragraph 6 of Mr. XXXX's affidavit, which refers to the Appellant telling him about being beaten. [11] Identity: the Appellant provided a similar affidavit for the purposes of establishing his identity at the RPD. This affidavit was from a friend who lived in Edmonton and alleged to have known him in Somalia. Although that friend was unable to testify in person at the RPD hearing, the Appellant made no effort or request to have him testify as a witness at his hearing by way of teleconference. The RPD drew a negative inference from his failure to call him or make a request to have him as a witness over the phone. Given that similar identity witness evidence is already in the RPD's record, and it is the Appellant's own failure to call his first witness that contributed to the RPD's finding against his identity, Mr. XXXX's affidavit does not satisfy the "newness" requirements under subsection 110(4) and Singh. Essentially, the Appellant is attempting to repair his deficient record and get a second "kick at the can" with his new evidence. Therefore, I find the affidavit of Mr. XXXX concerning the issue of his identity does not meet the newness criteria, and it is inadmissible as new evidence. [12] Allegations of Risk: Notwithstanding the above, I find the following portion of Mr. XXXX's affidavit is admissible as new evidence. In particular, in paragraph 6, Mr. XXXX states: "before he left he told me that he had been targeted by majority clan members while driving his bus. He was badly beaten and scared that they were going to find him again. XXXX is a member of the Hawrarsame clan and he was targeted by the Marehan clan." This evidence could not have been provided at the time of rejection because the affiant and the Appellant did not know each other were in Canada. In addition, the statement above appears to be credible on its face, as it is in the form of a sworn affidavit, and it is relevant to credibility findings made by the RPD with respect to the Appellant being a credible witness. For these reasons, I find that part of paragraph 6 of the affidavit meets the requirements of 110(4) and the Singh factors, and is admissible as new evidence. Request for an Oral Hearing [13] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) 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.8 [14] In this case, the only admissible evidence is a portion of Mr. XXXX's affidavit in relation to the Appellant's allegations of risk. However, for reasons discussed below, this passage warrants little weight to establishing the Appellant's allegations. Furthermore, identity is the determinative issue in this appeal. Therefore, I find that the admissible evidence is not central to the decision with respect to the refugee protection claim and, if accepted, would justify allowing or rejecting the refugee protection claims. As a result, the RAD cannot hold a hearing and the request is denied. ISSUES IN APPEAL [15] The Appellant argues the following issues in his appeal: 1) The RPD erred in finding he failed to establish his identity due to lack of credibility;9 2) The RPD erred by failing to consider reliable documents corroborating the claim;10 and 3) The RPD erred by failing to assess his risk profile as a returnee from a Western country.11 [16] The Appellant argues three issues in this appeal. However, the issue with respect to the Appellant's identity is determinative. ANALYSIS Identity Documents The Appellant's Argument Affidavit of Mr. XXXX [17] The Appellant argues that the RPD was overly harsh in its treatment of the affidavit of XXXX XXXX XXXX, which prevented him from fairly addressing the determinative issue of his identity. In particular, he submits that the RPD erred by giving the affidavit no weight simply because it was unable to cross-examine the affiant, which is inconsistent with the case law. He also submits that the RAD has returned cases for redetermination based solely on the RPD's similar treatment of an identity witness' affidavit. The Appellant further argues that he cannot be responsible for compelling an out-of-town witness to remain in Toronto, and he cannot be expected to compel a witness to miss work in order to be available for cross-examination. In this regard, he points out that the witness' return ticket to Edmonton, pre-dates the hearing. He argues that the RPD's treatment of the affidavit and his efforts to get the witness to testify is indicative of the RPD applying Canadian paradigms when assessing the evidence involving other cultures, and it was an error for the RPD to make assumptions and speculate about whether he made enough effort in preparing his refugee case.12 Declaration of Mr. XXXX [18] The Appellant also submits that the RPD ignored a statement from XXXX XXXX XXXX which was provided to U.S. authorities and confirms that the Appellant is from Kismayo, Somalia. He claims this was an error.13 The RAD's Assessment Affidavit of Mr. XXXX [19] I agree that it was an error for the RPD to give the affidavit no weight, simply because it was unable to cross-examine the affiant. However, I find this is insufficient to return this case to the RPD for redetermination on this basis. In this case, the RPD also made a negative inference with respect to the Appellant's credibility because he did not request or attempt to make arrangements to have Mr. XXXX testify via telephone. The RPD noted that the date of the hearing was known to the Appellant and counsel two months before the hearing. The RPD also noted that the original hearing date was scheduled for a year prior. Contrary to the Appellant's submission, the RPD is permitted to assess the "efforts" the Appellant has made to gather evidence in support of his claim. It was open to the RPD to make such a finding and is not indicative of a Canadian paradigm. This is not an error, as the Appellant has the onus to gather evidence and establish his refugee claim. [20] I see no reasoning in the RPD's decision to indicate that the RPD was "compelling" the witness to remain in Toronto and miss work in order to testify at the hearing. Even if the Appellant's witness had to work the day of the hearing, this does not prevent the Appellant from requesting to question him over the phone and making arrangements so that he can testify. The Appellant was aware two months before the hearing of the new hearing date, and the original hearing was scheduled for a year prior in May 2016. He had ample time to prepare for his hearing, including making a request and arrangements so that his identity witness could testify on his behalf by telephone. The Appellant has also been represented by experienced counsel since he completed his Basis of Claim (BOC) form on April 4, 2016 who could have advised him of this possibility. As an aside, the Appellant notes that he provided evidence of the witness' "return ticket to Edmonton predating the date of the hearing". However, I observe that the ticket is not a return ticket to Edmonton, but is the witness' boarding pass for his flight from Edmonton to Toronto on XXXX XXXX XXXX XXXX XXXX There is no evidence in the record to corroborate the witness' statement that he returned to Edmonton on XXXX XXXX XXXX XXXX. [21] Having reviewed the record, including the audio recording of the hearing, I find that the witness' affidavit of Mr. XXXX deserves little weight in establishing his personal and national identity as a Somali citizen. This is due to the fact that the Appellant failed to request or make arrangements to have his witness testify at his hearing. Declaration of MrXXXX XXXX [22] With respect to the declaration of Mr. XXXX XXXX I agree with the Appellant that the RPD erred by not considering this evidence in assessing his identity. However, after reviewing Mr. XXXXs declaration, I find it warrants little weight in establishing his personal and national identity. [23] Specifically, I note that the affidavit is vague about Mr. XXXX's level of knowledge of the Appellant. The declaration simply states "I know XXXX XXXX XXXX because his family and my family were neighbours". However, I am unable to place much probative value on this statement because it is unclear that Mr. XXXX has first-hand knowledge of the Appellant himself being in Kismayo, Somalia. Instead, it vaguely refers to their families as neighbours. The declaration also provides no information about when Mr. XXXX was in Kismayo and when their "families" were neighbours. Finally, I note that the declaration is not sworn before a commissioner of oaths or a notary public. This too impacts the weight that can be given to such a declaration. For the above reasons, I find the declaration of Mr. XXXX warrants little weight in establishing the Appellant's personal and national identity as a Somali citizen. Statement from Mr. XXXX [24] I note that the Appellant takes no issue with the RPD's finding on the statement from XXXX XXXX XXXX. The RPD found that the statement from Mr. XXXX was of minimal probative value and insufficient to establish his identity, on a balance of probabilities. This is because Mr. XXXX did not indicate how he knew the Appellant is Somali or a member of the Hawrarsame sub-clan. The RPD found that the information relied on in the statement appeared to be told to him by the Appellant himself. Given the Appellant takes no issue with this finding, I see no error requiring my intervention. The RPD's finding is correct and based on the evidence in the record. Credibility The Appellant's Argument BOC Omissions [25] The Appellant argues that the RPD erred in finding that it was a significant omission to not specifically mention in his BOC that the assaults were due to his lower clan status as a member of the Hawrarsame clan. The Appellant submits that it is implied in paragraph 9 of his BOC where he identifies that he and his boss were from the Hawrarsame clan, and at paragraph 28, where he identifies that, as a minority clan, he fears the Marehan. Considering the BOC statements in their entirety, he argues it was clear that his fear of the Marehan is due to his clan situation, as well he claims some allowance must be given for his communication skills due to educational and cultural factors. On this issue, the Appellant alleges that the RPD was overzealous in building a case against the Appellant and that, from a cultural context, it may be taken for granted that others have knowledge of such clan conflicts.14 The RAD's Assessment BOC Omissions [26] I reject the Appellant's argument and find the RPD did not err. Having reviewed the Appellant's BOC, it is not clear to me that the Appellant and his bus were being targeted because he is a member of the Hawrarsame clan. I note that both the Marehan and Hawrarsame are both sub-clans of the same clan, the non-minority Darod. In addition, while the Appellant mentions in his BOC that his employer was Hawrarsame, he failed to mention that his co-workers were also Hawrarsame, and they were targeted as well. Nor did he mention that other buses operated by non-Hawrarsame companies were not targeted by the Marehan. In this context, it is not clear upon reading the Appellant's BOC that he was targeted because he was Hawrarsame, and that the Marehan considered him to be a minority. I also note that, elsewhere in his immigration documents, he states that his fear if returned to Somalia is because of a "local kingpin and henchmen", without reference to clan affiliation.15 In this context, I agree with the RPD that it appears on the face of the BOC that he was simply a victim of a criminal activity and was not targeted due to his clan affiliation. This was a significant omission, since it relates to the nexus of his claim. The Appellant had experienced counsel to assist him in the preparation of his BOC, and he swore that the BOC was complete, true, accurate, and fully interpreted to him. Therefore, I find the Appellant's omission that he was targeted by the Marehan because he was Hawrarsame to negatively impact his credibility. The Appellant's Marriage and the Appellant's Sojourn in Kenya [27] I note that the Appellant takes no issue with the RPD's credibility findings about the risk from his marriage, and his sojourn in Kenya. In particular, the RPD found that the Appellant attempted to bolster his claim, by testifying at the hearing that he was at risk due to his former marriage to a member of the Marehan sub-clan. The RPD observed that he failed to mention in his BOC any alleged risk due to his marriage to his former wife. The RPD rejected his explanation that his interpreter was to blame for the omission. The RPD also found that he lacked credibility for stating he could not get documents from Somalia because he said his family was no longer in Somalia, considering his immigration documents indicated that he did have family still in Somalia who could have assisted him. The RPD also did not find it reasonable that he was unable to get any documents from Kenya (other than a statement from his former employer), since he resided and worked in Kenya for a year and a half. Given the Appellant takes no issue with these findings, I see no reason to interfere with them. The RPD's credibility findings are correct and based on the evidence in the record. Admissible Evidence from Mr. XXXX [28] I give little weight to the passage from Mr. XXXX's affidavit about the Appellant's allegations. They do not overcome the RPD's credibility findings with respect to his allegations and that he is not a credible witness. Mainly, I find that the information in the affidavit, related to his central allegations of harm, were reported to the affiant by the Appellant, and not directly observed by Mr. XXXX XXXX The passage is also unclear whether Mr. XXXX was in Somalia at the time he learned of the alleged incident, or that he has first-hand knowledge of the incident, or that he directly observed the Appellant's injuries. It is for these reasons I find that the admissible portion of Mr. XXXX's affidavit deserves little weight in establishing his allegations of risk as credible. [29] Having considered the totality of the evidence, and in light of the identity and credibility findings above, I concur with the RPD that the Appellant is not a credible or trustworthy witness, and that he has failed to establish his personal and national identity, on a balance of probabilities. Since he is unable to establish his identity, there is no obligation to address the other issues raised in this appeal. CONCLUSION [30] After conducting its own analysis of the entire record, the RAD finds that the RPD did err in some of its identity findings and by failing to assess some of the documentary evidence. Although the RAD has concerns over a couple of these findings, they are not fatal to its final determination that the Appellant is not a Convention refugee or a person in need of protection. The RAD was able to sustain the RPD's final determination based on its independent assessment of the record, and in light of the findings with respect to identity and credibility that were uncontested. These findings were sufficient to conclude that the Appellant has failed to establish his identity, on a balance of probabilities, and, therefore, the appeal must be rejected. Disposition [31] Pursuant to paragraph 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. This appeal is dismissed. (signed) "G. Erauw" G. Erauw March 16, 2018 Date 1 S.C. 2001, c.27. [IRPA]. 2 Exhibit RPD-1, RPD's Record, Appellant's BOC, at pp. 11-24; and Exhibit RPD-1, RPD's Record, Audio Recording. 3 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 4 X (Re), 2017 CanLII 33034 (CA IRB). 5 Exhibit P-2, Appellant's Record, Affidavit of Hussen Siad Muse, at pp. 12-14. 6 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 7 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 17-18, at paras. 15-17. 8 Subsection 110(6), Immigration and Refugee Protection Act, S.C. 2001, c.27. 9 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 18-20, at paras. 18-31. 10 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 19-21, at paras. 27-37. 11 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 21, at paras. 38-40. 12 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 18-19, at paras. 18-26. 13 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 19-20, at paras. 27-31. 14 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 20, at paras. 32-35. 15 Exhibit RPD-1, RPD's Record, Declaration from Canada Border Services Agency (CBSA), at p. 51. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 11 RAD.25.02 (September 11, 2014) Disponible en français RAD File / Dossier de la SAR : TB7-12730