MB5-06131

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 : MB5-06131 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision April 4, 2016 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the person who is the subject of the appeal Me David Matas Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] Mr. XXXX XXXX XXXX XXXX, who is a XXXX-year-old citizen of Somalia, is appealing a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant has presented new evidence and has not requested an oral hearing. DETERMINATION OF THE APPEAL [2] In this claim, for a number of reasons, the RPD did not believe that the Appellant was at risk of persecution or at risk for an Immigration and Refugee Protection Act (IRPA) section 97 reason because it concluded that the Appellant did not meet his burden of establishing that he would face a serious risk of persecution or face danger as understood in s. 97 if he were to return to Somalia. I am in agreement with this assessment and pursuant to ss. 111(1)(a) of IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that Mr. XXXX XXXX XXXX XXXX is neither a "Convention Refugee" pursuant to s. 96 of IRPA nor a "person in need of protection" pursuant to s. 97 of IRPA. BACKGROUND [3] The Appellant sets out he was born in Afmadow, Afmadow District, of the Lower Juba Region of Somalia. The Appellant fears being killed by Al-Shabaab because, allegedly, his father was viewed by Al-Shabaab as a government supporter in the village of Diif and Al-Shabaab is alleged to have publically vowed to kill the Appellant's father and all of his family. The Appellant also alleges that while visiting an aunt in Afmadow, he was allegedly at risk of being kidnapped and forcibly recruited to fight for Al-Shabaab. [4] The Appellant alleges that he was originally forced from Somalia in 2007 because of tribal conflict. The Appellant was recognized by the UNHCR as a refugee and lived in the UNHCR Hagadera Refugee Camp (population greater than 100,000) near Dadaab, Kenya, from 2007 to 2014. The Appellant alleges that in 2014, there was a crisis at the camp and the food ran out and to avoid starvation he was forced to return to Somalia. [5] The Appellant alleges that after entering Somalia he realized that conditions had not improved and he alleges that he became a target of Al-Shabaab. The Appellant alleges that because he returned to Somalia, he can no longer return to the UNHCR camp in Kenya because he would be suspected of being somehow associated with Al-Shabaab. As a result, the Appellant traveled through numerous countries by clandestine means to reach the US. Upon irregular entry into the US, the Appellant was placed in expedited removal but lodged an asylum claim by 'expressing a fear of return' to Somalia. The Appellant was given a credible fear hearing by an USCIS asylum officer and was found not to have a 'credible fear'. The adverse credible fear determination was reviewed by an Immigration Judge and allowed to stand (RPD Record, pp. 74-75). [6] The Appellant was paroled from detention in preparation for removal from the US and entered Canada in July 2015 by clandestine means and lodged a refugee claim. RPD heard his claim and in a decision dated September 16, 2015, denied the claim concluding that the claimant would be safe to return to Somalia. This decision was appealed by submitting a Notice of Appeal, which was received by the RAD on October 13, 2015. SUBMISSIONS [7] The Appellant argues that the RPD erred in its analysis of the Appellant's claim because the Appellant argues that the RPD incorrectly applied a 'plausibility test' in the process of analyzing the Appellant's allegations. The Appellant also argues that the RPD misunderstood elements of the Appellant's allegations and erred with respect to Somalia country conditions. [8] In terms of an outcome from this appeal, the Appellant seeks to be recognized as a convention refugee. In the alternative, the Appellant seeks to have the RPD decision 'returned' to the RPD for a redetermination by a different member. ROLE AND FUNCTION OF THE RAD [9] With respect to the role and function of the RAD, in a recent Federal Court of Appeal decision related to jurisprudence on this issue, the conclusion is that the RAD must apply the correctness standard in its review of RPD decisions.1 NEW EVIDENCE AND REQUEST FOR AN ORAL HEARING [10] New evidence has been introduced in this appeal but the Appellant argues that this evidence should not be assessed based on s. 110(4) because it is 'country condition information'. The argument is that because jurisprudence can be identified which would find that an 'officer' can 'consult and refer' to such information "without advising the applicant" (Appellant's Memorandum, paragraph 42), it must also be the case that the Appellant can disclose and refer to country condition material in order to support their appeal. [11] I conclude that this understanding of the acceptance of new evidence is not consistent with a reading of the legislative provision s. 110(3) which sets out that the RAD must reach a decision based on the RPD Record.2 In s. 110(4), the criteria for accepting new evidence is set out and it relates to, for example, evidence that arose after the RPD decision. In this case the Appellant is not arguing that this material could not have been presented earlier or some other s. 110(4) factor. [12] Even if I were to entertain the logic of the Appellant, it is not even clear to me that this material is relevant such that it advances a better understanding of the Appellant's situation. A first problem is to be certain that the XXXX the Appellant is referring to is the same XXXX as set out in this document. This is to say, it is not clear that during questioning, the Appellant was effectively situated in Somalia by perhaps using Google maps to specifically identify where his father's family lives/lived. This assumes, of course, that the XXXX referred to by the Appellant can be found on a map. At the same time I recognize that all regions and districts of Somalia, as with many developing areas, have been extensively investigated with authoritative and detailed maps by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) and for example, Google maps and Wikimapia are relatively effective in mapping, and in some cases providing aerial imaging of places. [13] According to the Appellant, the utility of this new evidence is related to an argument that the RPD erred with respect to XXXX, because the RPD estimated the population at "40 inhabitants" (RPD Decision, paragraph 9). In reviewing the evidence, I would agree that the source for this number of 40 set out by the RPD is not clear to me. I note, however, that the Appellant himself testifies that the population of XXXX is between "50 and 70 people" (Oral hearing at minute 55). [14] I note that using area maps including Google maps, it is not difficult to locate a very small city in Kenya with an airstrip called 'XXXX near the Kenya-Somalia border. This city is also consistent in distance with the Appellant's testimony that XXXX is approximately 120 kilometers from Afmadow near the border and on the way to the Hagadera camp (Oral hearing at minute 21). Based on all the evidence, I have reviewed it is possible that the Somalia XXXX identified as the home of the Appellant's father, is just across the border from Kenya XXXX and if this is the case, then the Appellant's XXXX is very small indeed. Again, it is possible to see villages in this area using Google 'satellite' in relative detail, however, knowing which village is the right village is problematical. I note that in the new evidence provided by the Appellant, it speaks of XXXX as a 'city' and identifies 3 "settlements" which comprise numerous (e.g., 55 for Lanbu settlement) 'households' (Appellant's Record, p. 43). It is not clear to me, therefore, that the village XXXX and these settlements are closely grouped. It may even be the case that while clearly Afmadow and Dhobley are in Somalia, it is possible that the XXXX referred to in this study is the Kenya XXXX(which has an air strip) which can easily be found on maps. If this is the case, then there is a possibility that the settlements referred to as urban poor or IDP in Somalia are on the other side of the border. What it clear is that this area on the other side of the border from Kenya XXXX is very sparsely populated and is in fact a wilderness area. [15] As for the logic advanced by the Appellant that the real population of XXXX is 7,145, I find that this is speculative even if this evidence were accepted and it is, in any case, inconsistent with the Appellant's testimony. [16] I conclude that this documentary evidence (Shelter Cluster Somalia Mapping Exercise, December 2014 - Appellant's Record, pp. 40-49) does not meet the provisions of s. 110(4) both because it is not new and because it requires additional research to clarify if this material is relevant and I do not see this task undertaken by the Appellant in the Memorandum. Therefore this evidence is not accepted into the file. ANALYSIS OF THE MERITS OF THE APPEAL Core Issue: Has the RPD erred in its Credibility Assessment? [17] The Appellant begins by arguing that the RPD was applying a 'plausibility' test in its credibility assessment. According to the Appellant, "The primary reason the claim was rejected was that the Refugee Protection Division found the testimony not plausible. In doing so, the Division member used a legally incorrect plausibility test" (Appellant's Memorandum, paragraph 5). [18] In the RPD's credibility assessment I note that the word 'implausible' is never used. The approach of the RPD is to examine the documentary evidence, which is not found consistent with the allegations, along with a review of the Appellant's testimony in terms of clarity, consistency and detail to reach an overall adverse credibility conclusion on a balance of probability. The RPD also identifies omissions in the record. [19] Based on the evidence, the RPD concludes that this story is not true, on a balance of probability. I would add that it is simply the case that the standard of proof for assessing credibility is a balance of probability and in its analysis I conclude that the RPD did not err in its analytical approach. Specifically, I cannot conclude that the RPD's credibility assessment can in some way be interpreted as restricted to or excessively based on what amounts to an analysis of implausibility. [20] The individual credibility elements identified by the RPD begin with reference to the documentary evidence which is not consistent with the allegations in that the areas where the Appellant alleges Al-Shabaab is active, the documentary evidence sets out that government and AMISOM forces are in control (RPD Decision, paragraph 8). I note that the Appellant has not provided documentary evidence which would contradict this basic point that while Al-Shabaab is still dangerous, its capacity and range is now much diminished, and Afmadow and XXXX are outside of the area controlled by Al-Shabaab. [21] I note that the Appellant does identify documentary evidence which might be interpreted as creating the possibility that the Appellant is telling the truth. In the area of forced recruitment, the Appellant notes that one source states that there are 'fewer reports of forced recruitment' which must be understood to mean that, in fact, there is 'forced recruitment' (Appellant's Memorandum, paragraph 47). This sources goes on to state, however, that 'in areas that the group still controls' there is forced recruitment. [22] I conclude that the Appellant's argument does not address the problem set out by the RPD. The Appellant, in testimony, is alleging that Al-Shabaab orchestrated a 'round up' of people, which is to say forced recruitment, in an area (Afmadow) that Al-Shabaab does not control. There is also the question of the Appellant's age and disinterest in being recruited for which there is conflicting evidence as to the need and willingness of Al-Shabaab to resort to forcing captured people to fight for them. [23] An added problem facing the Appellant's allegations, is that Afmadow is not a village but a small city and it is the regional capital of the Afmadow District. While I recognize that the Appellant has identified a concern that the areas controlled by Al-Shabaab might not be 'sharply demarcated' (Appellant's Memorandum, paragraph 50), if Al-Shabaab had actually led an incursion against Afmadow the RPD might expect the documentation to reflect such a situation or that the Appellant would be capable of providing evidence that such an attack had occurred. I would add to this the absence of corroborative evidence that there was a crisis at the huge Hagadera Refugee Camp near Dadaab, which, according to the allegations, required the Appellant to return to Somalia in the first place (Oral hearing at minute 49). [24] I conclude the RPD did not err with respect to its conclusion that the Appellant did not meet his burden to show that he had been at risk of being forcibly recruited into Al-Shabaab when he was in Afmadow because the city was attacked (RPD Decision, paragraph 13) and I would agree with this conclusion. [25] Next, there is the issue of the RPD's analysis of the Appellant's credibility with respect to his trip to XXXX and the alleged information related to the disposition of his family in XXXX. I must conclude that while the RPD's reference to '40' inhabitants is perhaps on the low side of the inhabitant numbers of the particular village of XXXX that the Appellant has identified, the RPD did not err in its credibility concern that given the size of the village the Appellant's father should not be hard to find if Al-Shabaab were actually looking for him (RPD Decision, paragraph 9). [26] At the same time I would conclude that this is not an important element of the RPD's decision which identifies numerous credibility concerns related to the logic of the allegations. For example, there is the question of why Al-Shabaab would have any interest in the Appellant's father in the first place, which is viewed as not well answered, and the anomalous timing of the attack on XXXX(RPD Decision, paragraph 8). I would add that these concerns of the RPD are part of a larger concern about the omission of details with respect to the recording of the details of his father's family in XXXX(RPD Decision, paragraph 10) and a contradiction between where the Appellant locates his family members early in the hearing compared to the Appellant's allegation later in the hearing when he states that he did not know where they were (RPD Decision, paragraph 11). [27] Overall, I conclude that the RPD did not err in its determinative adverse credibility conclusion that the Appellant, who alleges he is a target of Al-Shabaab through connection to his father, or that he is a target of Al-Shabaab recruitment in Afmadow, would face less than a serious possibility of persecution or a risk as understood in s. 97 of IRPA if he were to return to live in Afmadow, for example. I am in agreement with this conclusion. CONCLUSION [28] For all these reasons, I confirm the determination of the RPD, namely, that Mr. XXXX XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection". [29] Therefore, the appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher April 4, 2016 Date /cos 1 M.C.I. v. Huruglica (2016) FCA 93, paragraph 103. 2 M.C.I. v. Singh (2016) FCA 96, paragraph 35. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR: MB5-06131 9