TB4-03087

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 : TB4-03087 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 15, 2014 Date de la décision Panel Luis F. Agostinho 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 Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), who claims to be a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has not submitted any new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to substitute its own determination that she is a Convention refugee or a person in need of protection, or to refer the matter back to the RPD for redetermination by a differently-constituted panel. Application for an Oral Hearing [2] The Appellant did not request that an oral hearing be held, pursuant to Section 110(6) of IRPA. Determination [3] Pursuant to Section 111(1) (a) of the Immigration and Refugee Protection Act (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. Background [4] The Appellant alleged before the RPD that she is a citizen of Somalia and cannot return there because she fears persecution at the hands of the majority clan, based on her tribal affiliation. She also fears that she will be killed by the terrorist Al-Shabaab group, who killed most of her family, including her husband, children, etc. [5] The Appellant's application for refugee protection was heard on September 30, 2013. By a decision of March 14, 2014, the RPD rejected the claim. It noted that the Appellant had difficulty in providing details about her clan and subclans in various aspects, despite having allegedly lived in that country since her birth in 1948, and producing an identity witness which the RPD did not find credible. In light of these concerns, and the lack of documentary evidence to substantiate her allegations, the RPD found that the Appellant had not established her identity, and did not find her to be credible. Analysis Standard of Review [6] The Appellant argues that the RPD erred in its credibility findings and the consideration of the evidence before it, and this appeal therefore raises questions of fact. [7] The Appellant does not put forth an argument on the Standard of Review. [8] Although IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard of review to be applied by the RAD. [9] The Federal Court in Iyamuremye1 addressed the question of the proper standard of review to be applied by the RAD in reviewing RPD findings and confirmed that the appropriate standard of review for questions of fact and mixed fact and law is reasonableness, and the appropriate standard of review for questions of law is correctness. The reasonableness standard is concerned with the "existence of justification, transparency and intelligibility in the decision-making process" and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law as per Dunsmuir.2 The correctness standard is applicable to questions of law and issues of general legal importance. [10] The appropriate standard of review in this appeal is one of reasonableness. Reasonableness is concerned mostly with the existence of justification, transparency, and intelligibility within the RPD's decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.3 [11] Given the analysis above, the RAD therefore has afforded a considerable level of deference to RPD findings on questions of fact in this claim and considered whether the findings meet the reasonableness test. [12] For these reasons, the RAD concludes that, in considering this appeal, it must show deference to the factual and credibility findings of the RPD. The notion of deference to administrative tribunal decision-making requires a respectful attention to the reasons offered or which could be offered in support of the decision made. Even if the reasons given do not seem wholly adequate to support the decision, the RAD must first seek to supplement them before it substitutes its own decision.4 The RPD's Findings [13] The RPD found that the Appellant had not established her identity. It did not base its conclusion on the inability of the Appellant to provide government documents, which it acknowledged that the documentary evidence shows is very difficult to do;5 instead, the RPD turned its mind to asking questions about the Appellant's knowledge of her clan and subclans, and its examination of the identity witness, and on its rejection of the Appellant's explanation for her lack of knowledge in clan affiliation and the credibility of her identity witness. [14] The Appellant argues that the RPD erred in its identity finding by disregarding relevant evidence when it drew a negative credibility finding because the Appellant's knowledge about her clan should have been greater than what she showed at her hearing.6 [15] The RAD disagrees. It is clear from the RPD's reasons that the identity witness was one of the key elements, if not one of the central parts of its negative identity finding. The panel rejected the Appellant's identity witness due to numerous inconsistencies in her testimony, which the RPD found the witness to be not credible.7 [16] Refugee claimants have an obligation to establish their identity, on a balance of probabilities.8 Section 106 of the Immigration and Refugee Protection Act states that: The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.9 [17] Similarly, Rule 11 of the Refugee Protection Division Rules requires that: The claimant must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them.10 [18] The Basis of Claim (BoC) form advises that the refugee claimant is "responsible for obtaining and providing to the IRB any documents that may support your claim."11 [19] The Appellant was represented by counsel before the RPD, who is very familiar with claims from Somalia. The Appellant could reasonably have been expected to know that identity was an issue, given the references to the issue in the Act, the Rules, and the BoC form. Despite this, no identity documents were provided to the RPD at any time. The Appellant did bring a witness, but the witness was found not to be credible due to inconsistencies between her testimony and that of the Appellant. [20] The Appellant was asked if she had any identity or any documents which could assist with her identity. The Appellant testified the she had left the country in a hurry and therefore had left them behind. The RPD did not accept this explanation and clearly cited in its reasons why it did not find this explanation to be reasonable.12 The RAD has reviewed the evidence in this area, and finds that the documentary evidence supports the RPD findings and therefore its reasonable that, although the country has been without an administration since 1991, the Appellant, who is in her mid-sixties, was not able to bring one shred of documentation to substantiate her identity. Documentation indicates that prior to 1991 the Somalia government issued documentation such as birth certificates, marriage certificates, land titles, etc. [21] The Appellant alleges that her family was murdered in XXXX 2013; she entered Canada on XXXX XXXX, 2013. The time lapse suggests that she would have had time to take whatever documentation she needed to travel with, since she did not leave Somalia until sometime in late XXXX 2013. [22] The RAD finds the RPD finding in this area of the evidence to be reasonable. [23] In regards to the "clan identity", the RPD cited, in its reasons, that both Appellant and her identity witness gave inconsistent answers to the same questions relating to their clan.13 The RPD had asked both Appellant and the identity witness (identified in the Reasons as FYI) to explain the terms "Gabooye and Midgan." The RPD noted that the Appellant was not able to explain how the Madhiban, the tribe which she professes to be a member of, got its name, nor did she have basic knowledge of its structure. The Appellant argues that she only has limited education. The RPD cited in its reasons that it looks upon a person that is able to sustain a business for a long period of time and is able to send her children to private schools, to have been reasonably informed of her clan structure, especially in a country such as Somalia where the foundations are fundamental to its clan system. The RAD, upon reviewing this portion of the evidence, finds the RPD decision reasonable, considering that a person, who is able to perform the functions as described in the RPD decision, would be expected to have some knowledge of her tribe/clan structure. [24] The Appellant testified that the name "Gabooye" is a derogatory word to describe the Madhiban, and similarly the "Midgan".14 [25] The RPD made reference to documentary evidence that states that the majority of the clans use the term 'Midgan' as an unflattering way to describe the 'Gabooye'.15 [26] The RAD further reviewed the documentary evidence found at item 13.13, where it clearly indicates: In a telephone interview with the Research Directorate, the Secretary of the Gabooye Minority Organisation for Europe and North America (Gabooye Organisation), a UK-based NGO that monitors the social, economic and political situation of the Gabooye in East Africa (11 June 2012), explained that the "clan" refers to itself as Gabooye, while other clans use the "rude" term Midgan (6 Nov. 2012). Similarly, Minority Rights Group International (MRG) indicates that, in Somaliland, "Gabooye" is a preferred and non-insulting term replacing the historically pejorative associations of 'Midgan' as used by majority clans" (MRG Oct. 2010, 12, 34, note 49). MRG also states that the "commonly accepted term" in Somalia is "Madhiban" (ibid. 30). [27] The RAD notes that the identity witness, in her response, testified that Madhiban and Midgan means "looking down on you" and the Gabooye was also an insult. However, when asked to clarify her response by the RPD, the identity witness testified that the Midgan and the Gabooye are tribes. The RAD finds the RPD finding of this portion of the evidence to be reasonable as the clarification of the identity witness was vague and circuitous, as such it was the only reasonable finding that the RPD could arrive at. [28] The RPD finding that the Appellant had not established her identity rests, in part, on its assumption that she was unable to answer questions about the customs and traditions of the Madhiban clan of which she claims to be a member. [29] Central to the Appellant's refugee claim is the allegation that she is of the Madhiban minority. Central to the RPD's decision is the conclusion that the Appellant's inability to answer questions about its customs and traditions, and the identity witness gives rise to doubt her identity. The RAD finds the RPD findings in this area of the evidence to be reasonable based on the evidence before it, as it was the only reasonable conclusion that the RPD could arrive at. [30] The RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record.16 However, there is no evidence which is contrary to its decision; the RPD analyzed that evidence and provided reasons why it found the Appellant's evidence not to be trustworthy. In this case, the RPD did review and comment on the evidence relating to the customs and traditions of the Madhiban in its reasons, and this finding was reasonable. [31] The RPD's identity finding was based on its analysis of the Appellant's knowledge of her clan and subclans, mainly its customs and traditions, credibility findings and the identity witness that was present at the hearing. The panel reasonably concluded that a woman of some 65 years of age should have known some basic knowledge of her clan. [32] The Appellant points to numerous examples of credibility findings17 by the RPD and submits, in response to those findings, that the tragedy of the death of family greatly affects her emotionally and psychologically.18 The Appellant further submits that the recounting of the incidents of persecution and threats by Al-Shabaab affected her ability to testify; she was confused when forced to remember terrible things that happened to her and her family at the hands of Al-Shabaab. [33] In regards to the identity findings made by the RPD, the RAD finds that the RPD has made reasonable findings, and, as such, the RAD will not deal with the other credibility issues raised by the Appellant as they are moot due to the RPD's findings that the appellant had not established her identity are reasonable. [34] As a result of these findings, the RAD will not have to list every credibility finding nor address the Appellant's argument that the Appellant will face gender persecution as an unaccompanied female and a member of the minority Madigan clan. [35] The RAD notes that the Appellant was represented by competent counsel who is very familiar with refugee claims against Somalia. Yet, when reviewing the evidence of the hearing, the RAD does not find any objections by counsel or the Appellant at the hearing. No objections or comments were made to the member. No requests for accommodation or considerations were requested in advance or at the hearing for the Appellant to testify. Further, there is no psychological report or any other medical evidence submitted to the RPD to address these issues. The RAD, when listening to the recording, did not detect any difficulties with the Appellant when answering questions from the RPD panel or from her own counsel. As such and for the reasons outlined, the RAD finds there is no persuasive evidence submitted by the Appellant to support this argument. [36] The RAD recognizes the difficulty faced by the RPD in determining the identity of refugee claimants who claim to be from Somalia.19 Here, however, the RPD's treatment of the Appellant's identity does fall within a range of possible, acceptable outcomes that are defensible with respect to the facts and the law. CONCLUSION [37] Pursuant to Section 111(1) (a) of 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 therefore dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho July 15, 2014 Date 1 Iyamuremye c. Canada (Citoyenneté et Immigration), 2014 CF 494 - 2014-05-26 [ French ] 2 Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paragraph 47. 3 Dunsmuir, paragraph 47; in Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, paragraph 4, the "range of reasonable outcomes." 4 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (December 15, 2011) paragraph 12 5 RPD Record page 4, Reasons for Decision, paragraph 10 6 Appellant's record, page 48, paragraph 4 7 RPD Record, pages 7-8, Reasons for Decision, paragraphs 20-23 8 Yip, Fu On v. M.E.I. (F.C.T.D., no-A921-92), Nadon, October 27, 1993. 9 Immigration and Refugee Protection Act, Section 106. 10 Refugee Protection Division (RPD) Rules, SOR/2012-256. 11 Appellants' Record, p. 17, Basis of Claim Form, p. 1 of 12. 12 RPD Record pages 4-5, Reasons for Decision paragraphs 10-17 13 RPD Record, page 8, Reasons for Decision, paragraphs 24-27 14 Appellant's Record, page 11, Reasons for Decision, paragraph 24-25 15 National Documentation Package, item 13.13, Response to Information Request SOM104239.E, Somalia: The Gabooye (Midgan) people, including the location of their traditional homeland, affiliated clans, and risks they face from other clans, 4 December 2012 16 Hassan v Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946. 17 Appellant's Record, pages 48-51 18 Appellant's Record, page 49, paragraph 5 19 The Federal Court has also noted that section 106 of IRPA recognizes the difficulty in proving national identity with the usual documentation from countries with unstable civil administration, such as is the case in Somalia; see Elmi v. Canada (Citizenship and Immigration) (2008), 2008 FC 773, para. 22, and Shafi v. Canada (Minister of Citizenship and Immigration), [2006] 1 F.C.R. 129 (F.C.), 2005 FC 714 at para. 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) RAD File No. / N° de dossier de la SAR : TB4-03087