TB5-05402

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 : TB5-05402 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 August 14, 2015 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane 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), who claims to be a citizen of Somalia, appeals the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to set aside the RPD's decision and replace it with a determination that the Appellant is a Convention refugee or person in need of protection or in the alternative, pursuant to s. 111(1)(c) of the Immigration and Refugee Protection Act (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 the appeal nor has he requested an oral hearing under subsection 110(6) of the IRPA. DETERMINATION [2] This appeal is allowed. Pursuant to section 111(1) (b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. Background [3] The Appellant alleges that he is a member of the minority XXXX clan. [4] In 2013 he took over his father's XXXX XXXX XXXX in Mogadishu and converted the XXXX to a XXXX XXXX XXXX XXXX XXXX XXXX XXXX. On XXXX XXXX, 2014, while the Appellant's wife was at a local XXXX XXXX, members of Al-Shabaab entered his business. They voiced their displeasure with the business and made accusations of westernizing local boys and girls. When the Appellant's father tried to reason with the Al-Shabaab members, he, the Appellant's two brothers and his wife's sister were shot and killed. The Appellant, who had been at the back of the XXXX during the confrontation, escaped through the back door and fled to the home of his uncle. [5] The Appellant's mother advised him and his wife to flee in order to avoid further problems with Al-Shabaab. The Appellant and his wife travelled by XXXX to Kenya. Shortly thereafter, the Appellant engaged a smuggler to assist him in his travels to Canada. [6] The Appellant arrived in Canada on XXXX XXXX, 2014 and made a claim for protection on November 16, 2014. [7] The Appellant's refugee determination hearing was conducted on April 24, 2015. In a written decision issued on May 8, 2015, the RPD rejected the claim. The RPD member found that the determinative issues were credibility, the well-foundedness of the fear of persecution, and generalized risk. [8] The Appellant's appeal was received on June 19, 2015. In his appeal the Appellant pleads that in many instances the RPD erred in its findings. ROLE OF THE RAD [9] As summited by counsel for the Appellant, the 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." [10] 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? Lack of documentary evidence [11] The RPD drew a negative inference as it relates to the Appellant's general credibility because the Appellant did not provide documentary evidence of a money transfer from his uncle in Somalia to an uncle in Kenya, money which was subsequently used to finance the Appellant's journey to Canada. In its reasons, the RPD referred to a Response to Information Request (RIR) found in the independent documentary evidence which states that there are certain documentary requirements with Hawala (money) transfers which include establishing the identity of the sender, the providing of receipts and contact information for the intended recipient.3 The RPD concluded that, on a balance of probabilities, it was false of the Appellant to say that there were no documents involved in the sale of the family business for $XXXX XXXX XXXX or the transfer of said funds. [12] The Appellant argues that the RPD erred in its interpretation of the independent documentary evidence with regards to Hawala transfers. The Appellant noted that the same RIR referred to by the RPD indicates that because most Somalis do not have identity documents they can claim a remittance by providing a code.4 [13] The RAD agrees with the Appellant for the following reasons: 1) In its reasons, the RPD acknowledged that the independent documentary evidence indicates that the Somali government has not issued identity documents since the outset of war in 19915 and found that the Appellant's lack of government issued identity documents is, in and of itself not grounds for a negative inference or a negative finding on identity.6 The RIR contained in the National Documentation Package (NDP), referred to in the previous paragraphs, indicates that a Somali claiming a remittance does not have to provide identity documents. 2) The recording of the hearing indicates that the Appellant testified that while he was in XXXX, his uncle in XXXX wired $XXXX XXXX XXXXto him to finance his travels to Canada. This testimony is consistent with information the Appellant provided in his Basis of Claim (BOC) Form.7 The RAD notes that the RPD made no findings of contradictions between the Appellant's oral testimony and information found in the Appellant's BOC in this instance or in any other instance. As a result of listening to the recording of the hearing, the RAD also found no serious contradictions between the Appellant's oral testimony and information contained in his BOC. According to well-known jurisprudence, the sworn testimony of the claimant is presumed to be truthful, unless there is valid reason to doubt its truthfulness.8 The RAD does not find that the lack of documentation of the money transfer to be a valid reason to doubt the truthfulness of the Appellant's testimony. According to the jurisprudence it is where a claimant's story has been found to be implausible or otherwise lacking in credibility9 that a lack of documentary corroboration, or a lack of effort to obtain the documentation,10 can be a valid consideration for purposes of assessing credibility. [14] Although not mentioned in his appeal, the RAD notes that according to the recording of the hearing, the Appellant testified that he has kept in contact with his mother and uncle who reside in XXXX, Somalia and with his wife who resides in XXXX, Kenya. The RPD drew a negative inference as it relates to the Appellant's general credibility and the credibility of his allegations because the Appellant provided no documents, such as letters or affidavits, from his family members in either Somalia or Kenya. The RAD finds that the RPD's credibility findings as being such that the RAD cannot recognize and respect and are not supportable, despite the RPD's advantage of having heard the appellant's testimony in the hearing room. As stated in the previous paragraph, the lack of documentary evidence, on its own, is not valid reason to doubt the Appellant's credibility. [15] The RPD had concerns over the Appellant's inability to provide any evidence of his travel route to Canada. The RPD, in its reasons, indicated that the Appellant had testified that he did not recall what happened to his boarding pass or baggage tags. The RPD believed that a person disembarking from an international flight without checked baggage, as the Appellant testified he had done, would draw the scrutiny of customs and immigration officers. [16] The Appellant argues that during the hearing he testified that he travelled with a smuggler who posed as his wife; he testified that the smuggler had checked one piece of luggage. The Appellant argues further that the RPD speculated that it would be somehow suspicious that he had no checked luggage; the Appellant argues that he and the smuggler would be viewed as a couple sharing one piece of checked luggage. The Appellant pleads that it was his first time travelling by airplane and he followed the instructions of the smuggler. [17] The RAD agrees with the Appellant for the following reasons. Firstly, the RAD finds reasonable the Appellant's argument, that he and the smuggler would appear as a couple with one piece of checked luggage and not raise suspicions. Secondly, in following the instructions of the smuggler, the Appellant may not have been advised to retain his boarding pass or, for that matter, thought to retain his boarding pass. Lastly, as stated above, the lack of documentary evidence, on its own, is not valid reason to doubt the Appellant's credibility. Family in Somalia and Kenya [18] In its reasons, the RPD had difficulty accepting that the Appellant's mother and uncle remained behind in XXXX, Somalia, given that they are part of a clan that the Appellant testified had been mistreated and discriminated against. The RPD also had difficulty accepting that money from the sale of the family business was given to the Appellant to travel to Canada while his mother and uncle remained in Somalia and his wife remained in Kenya. [19] The Appellant argues that the RPD erred in finding that there is any negative implication to the fact that family members remained in Somalia. The Appellant argues that a dangerous journey to Kenya is not something that reasonable people are always going to select when there is some kind of security in XXXX, even if Mogadishu is also risky. The Appellant depends upon the Valtchev decision in which the Honourable Mr. Justice J. Muldoon found the following. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu.11 [20] The Appellant argues further that for his wife to have remained in Kenya is implausible only if you use Canadian standards. [21] The RAD agrees with the Appellant for the following reasons. [22] According to information in the NDP, people who have fled their homes in Somalia to seek refuge elsewhere face a real risk of becoming victims of robberies, violence, extortion and sometimes sexual violence including rape, while making their journey.12 The RAD, thus, infers that choosing to leave XXXX is done with considerable concern for one's safety. [23] According to the Appellant's testimony before the RPD, he and his wife were advised by his mother to leave XXXXbecause of possible reprisals by Al Shabaab. The RAD is mindful that it was the Appellant and his wife who, along with the Appellant's brothers, decided to open the XXXX XXXX XXXX XXXX XXXX XXXX XXXX which brought the ire of Al Shabaab. The RAD, therefore, finds it reasonable that it was the Appellant and his wife who chose to flee from possible harm from Al Shabaab. The RAD notes that according to the Appellant's testimony, his uncle, who remains in XXXX, lives in a different area of the city than did the Appellant and his uncle has an established business in XXXXmarket as a XXXX XXXX XXXX. [24] According to information in the Appellant's BOC and his oral testimony his uncle wired $XXXX XXXX XXXXto him in Kenya and the cost of the smuggler was $XXXX XXXX XXXX. According to the recording of the hearing, when asked about keeping contact with his wife, the Appellant testified that his wife lost her cell phone and there was not enough money for her to buy another. The RAD, thus, infers that the Appellant and his wife did not have the funds to cover the cost of a smuggler for both of them to leave Kenya. [25] The RAD, therefore, draws no negative inference that the Appellant's family members remain in Somalia and Kenya. Credibility [26] As argued by the Appellant in his appeal, the RPD made no credibility findings with regards to contradictions or demeanor regarding his oral testimony. [27] Having considered all of the evidence and, in particular, the recording of the hearing before the RPD, the RAD found no obvious contradictions between the Appellant's oral testimony and information contained in his BOC or port-of-entry (POE) notes. [28] The RAD thus, concludes that the Appellant is a credible witness. The RAD notes that the RPD found, on a balance of probabilities, the Appellant established his identity. The RAD concurs. Objective Evidence [29] The RAD has considered the independent documentary evidence with regards to people with a profile of the Appellant. [30] The Appellant left Somalia one year ago. According to information provided by the Operational Guidance Note from the United Kingdom (UK) Home Office, despite the withdrawal in early August 2011 of Al-Shabaab conventional forces from at least most of Mogadishu, there remains in general a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad.13 Additionally, although having family in the Al-Shabaab area of return may alleviate the risk, the rotating nature of Al-Shabab leadership and the fact that punishments are meted out in apparent disregard of local sensibilities mean that, in general, it cannot be said that the presence of family is likely to mean the risk ceases to be a real one.14 [31] Not only would the Appellant be returning from the west, but he has a history of having insulted the beliefs of Al-Shabaab. The UK Home Office report also states that Al-Shaba's reasons for imposing its requirements and restrictions regarding manner of dress and spending of leisure time, are religious and those who transgress are regarded as demonstrating that they remain in a state of kufr (apostasy). The same is true of those returnees who are identified as returning from the West. Accordingly, those at real risk of such Article 3 ill-treatment from Al-Shabaab will in general be refugees, since the persecutory harm is likely to be inflicted on the basis of imputed religious opinion.15 According to one RIR, returnees will be killed and fought against in the same manner that Al Shabaab fights against the Somali government.16 [32] The Appellant is a member of the XXXX minority clan. The UK Home Office report provides the following information regarding members of minority clans: Male and female members of minority clans from the south will, in general, be at risk of breaches of their Article 3 rights, and will be refugees, in the absence of evidence that they have a clan or personal patron and the means to access that area of safety without a real risk.17 Minority groups, often lacking armed militias, continued to be disproportionately subject to killings, torture, rape, kidnapping for ransom, and looting of land and property with impunity by faction militias and majority clan members. Many minority communities continued to live in deep poverty and suffer from numerous forms of discrimination and exclusion.18 Minority Rights Group research has shown that "minority communities in Somalia fall outside the traditional clan structure and also therefore the protection afforded by such systems. Because of social segregation, economic deprivation and political manipulation, minorities are more vulnerable to rape, attack, abduction, property seizure and the consequences of drought". Furthermore, UNHCR Somalia explained in February 2012 that "today there is no guarantee of clan protection in Somalia, in particular members of minority clans and ethnic minority groups are vulnerable. The authority of the clan elders have been undermined in many locations by warlords, Al-Shabaab and criminals, and as a consequence the clan conflict resolution mechanisms have been weakened.19 [33] Another report from the UK Home Office provides the following information with regards to minority clans: Minority groups, often lacking armed militias, continued to be disproportionately subjected to killings, torture, rape, kidnapping for ransom, and looting of land and property with impunity by faction militias and majority clan members. Many minority communities continued to live in deep poverty and to suffer from numerous forms of discrimination and exclusion.20 [34] A further report from the UK Home Office indicates that Al Shabaab continues to attack Mogadishu and continues to conscript children and young men.21 [35] The RAD appreciates that there are some conflicting reports, including one referred to in the decision of the RPD,22 which indicate that the situation is less volatile in Mogadishu than in the past. Nevertheless, RAD finds that the objective evidence supports the Appellant's subjective fears. [36] The issue of internal flight alternative (IFA) was not raised at the hearing before the RPD. In considering this issue, the RAD finds that an IFA is not a viable alternative given the situation for minorities discussed above. [37] The RAD, therefore, finds that there is more than a mere possibility that the Appellant would be persecuted if he were to return to Somalia. DETERMINATION [38] The Appellant is entitled to the presumption of truthfulness. The RAD finds that the Appellant has established, with credible evidence, a well-founded fear of persecution in Somalia. CONCLUSION [39] Pursuant to Section 111(1)(b) of IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee, as he has a well-founded fear of persecution on the basis of his political opinion. This appeal is allowed. (signed) "Lesley Mason" Lesley Mason August 14, 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, Exhibit 3, National Documentation Package (NDP) for Somalia (31 March 2015), item 1.15 4 Ibid. 5 Exhibit RPD-1, RPD's Record, p. 5, para. 7 6 Ibid, para 10 7 Exhibit RPD-1, RPD's Record, Exhibit 1, p. 19, question 2(g) 8 Maldonado, Pedro Enrique Juarez v. M.C.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19,. 1979. Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.) 9 Syed, Naqeeb-Ur-Rehman v. M.C.I. (F.C.T.D., no. IMM-1613-97), MacKay, March 13, 1998. 10 Rocha Quichindo, Esperanca v. M.C.I. (F.C.T.D., no. IMM-3225-01), Lemieux, March 28, 2002. 11 Valtchev, Rousko v. M.C.I. (F.C.T.D., no. IMM-4497-99), Muldoon, July 6, 2001 12 Exhibit RPD-1, RPD's Record, NDP for Somalia (31 March 2015), item 1.7, s. 2.3.7 13 Ibid., item 1.7, s. 2.4 14 Ibid. 15 Ibid. 16 Ibid., item 14.4 17 Ibid., item 1.7, s. 2.4 18 Ibid., s. 3.11.3 19 Ibid., s. 3.11.4 20 Ibid., item 1.18 21 Ibid., item 1.7 22 Ibid., item 1.7, s. 3.11.6. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05402