TB6-07223

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 : TB6-07223 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 (a.k.a. XXXX XXXX XXXX XXXX) Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 9, 2016 Date de la décision Panel S.S. Kular Tribunal Counsel for the person(s) who is(are)the subject of the appeal Deryck Ramcharitar Barrister and Solicitor 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 XXXX (the Appellant) alleges to be a citizen of Somalia. The Appellant appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant asks the Refugee Appeal Division (RAD) to allow the appeal and grant him refugee status. In the alternative, the Appellant asks the RAD to refer the matter back to the RPD for redetermination by a differently constituted panel. [3] Although the Appellant wrote that he is not relying on new evidence,1 the RAD notes that the Appellant has submitted new evidence2 pursuant to section 110(4) of the Immigration and Refugee Protection Act (IRPA or Act).3 The Appellant is requesting an oral hearing pursuant to section 110(6) of the IRPA.4 [4] The Minister is not intervening in this appeal. DETERMINATION [5] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND/ALLEGATIONS [6] The Appellant alleges that he is a citizen of Somalia from Baidoa and a member of the minority XXXX (also known as XXXX) clan. Al-Shabab called members of the XXXX clan non-believers. [7] Al-Shabab attempted to recruit the Appellant and his brothers. In XXXX 2014, Al-Shabab killed the Appellant's brother. Thereafter, Al-Shabab recruiters went to the Appellant's house to recruit him and his brother XXXX. Since the Appellant's brother XXXX was sick with malaria at the time, Al-Shabab recruiters asked the Appellant's father about the Appellant's whereabouts. The Appellant's father told them that he had not seen the Appellant for days. Al-Shabab men threatened the Appellant's father with harm if they could not find the Appellant the next time. Out of fear, the Appellant went into hiding. On XXXX XXXX, 2015, Al-Shabab returned to the house and killed the Appellant's father and mother. A week later, the Appellant and his brother XXXX left Somalia and went to Ethiopia. At the end of XXXX, the Appellant left for Kenya. On XXXX XXXX, 2015, the Appellant came to Canada and filed his claim for refugee protection. The Appellant's brother continues to reside in Ethiopia. The Appellant fears forcible recruitment by Al-Shabab upon return to Somalia. [8] The Appellant's application for refugee protection was heard on March 18, 2016. In the decision dated May 11, 2016, the RPD rejected the claim. The RPD found the Appellant not to be credible, and found that the Appellant, on a balance of probabilities, has not established his identity. [9] The Appellant submits that the RPD erred in its determination. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [10] As provided for in section 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the refugee claimant. Section 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [11] The Appellant submitted new evidence pursuant to section 110(4) of the IRPA. [12] Regarding the admissibility of new evidence, the RAD is guided by the Federal Court of Appeal decision in Singh.5 In addition to the statutory requirements, further analysis of the evidence is required before the RAD can accept the proposed new evidence. In that regard, the RAD is guided by the analysis as set out in Raza6 and modified by the FCA in Singh. [13] The RAD's analysis of the admissibility of the proposed new evidence begins with the test set out in section 110(4) of the IRPA. If the proposed new evidence meets the tests set out in the statutory requirements, and the factors in Raza, the evidence will be admitted as evidence in the RAD appeal. The materiality of the evidence will be considered in the context of the assessment of the evidence made under section 110(6) of the IRPA. [14] The Appellant submitted the following documents as his alleged new evidence with the appeal record which was received at the Board on June 24, 2016. * Appellant's affidavit7 * Telephone records8 * Letter of XXXX XXXX XXXX and other documents9 * Letter from the Appellant's brother10 * Letter from roommate of the Appellant's brother11 [15] The RAD Rule 3(3)(g)(iii) directs applicants to include an explanation of how the Appellant's documentary evidence submitted to the RAD meets the requirements of section 110(4) of the IRPA. The Appellant has provided an explanation for why his alleged new evidence should be admitted.12 The RAD assesses the Appellant's evidence pursuant to section 110(4) of the IRPA and as per the factors in Raza. [16] The RAD finds the Appellant's new evidence is substantially from Ethiopia. The evidence is not new; the content of the letters from his brother and his brother's roommate mentions events that predate the rejection of the Appellant's RPD claim. The Appellant has not explained, and thus has failed to establish, on a balance of probabilities, why he could not obtain his alleged new evidence, i.e., letter from his brother and letter from his brother's roommate, at the rejection of his claim. Based on the evidence in this case, the RAD finds that the Appellant's alleged new evidence was reasonably available to him at the rejection of his claim. Further, in consideration of the Appellant's identity being an issue at the RPD because the Appellant had submitted no passport, no birth certificate, and no other identity documents at the RPD, the RAD finds that the Appellant could reasonably have been expected in the circumstances to have presented this alleged new evidence at the time of the rejection of his claim. Moreover, the Appellant was represented by competent counsel at the RPD. Based on the above, the RAD finds that the Appellant's alleged new evidence does not meet the requirements set out in section 110(4) of the IRPA. Therefore, the RAD rejects the Appellant's new evidence. APPLICATION FOR ORAL HEARING AT THE RAD [17] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person who is the subject of the appeal may, pursuant to Section 110(4), present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. When read together, however, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal unless there is new evidence (section 110(4)), in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim (section 110(6)). The Appellant has provided new evidence as per Section 110(4) of the IRPA; the RAD has not admitted the Appellant's new evidence. [18] Even if the Appellant's alleged new evidence were to have been admitted, the RAD finds that the Appellant's alleged new evidence is not material to the claim, and in and of itself would not have justified allowing or rejecting the Appellant's refugee protection claim (section 110(6)). Therefore, the Appellant's request for a hearing at the RAD is denied. ROLE OF THE RAD [19] The Canadian jurisprudence provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of the RPD, a first-level administrative tribunal. [20] On March 29, 2016, the Federal Court of Appeal (FCA) in Huruglica13 provided guidance on how the RAD is to properly approach its review of the RPD's findings of fact or of mixed fact and law which involve no issue of credibility of oral evidence. The Court held that the task of the RAD is to determine whether or not the RPD was wrong in law, fact or in mixed fact and law, and in the context of the legislation. "Wrong" means "not true", "incorrect" or "mistaken", all of which "definitively points to the standard of correctness." [21] In closing, Justice Gauthier wrote: I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.14 [22] Regarding the credibility of the oral evidence heard by the RPD, Justice Gauthier stated that the provisions of the IRPA, particularly with respect to paragraph 111(2)(b) concerning the question of when the RAD may refer a matter back to the RPD for redetermination, does acknowledge the fact that: "[In] some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD."15 [23] Further, in a conclusion that may be obiter in the circumstances of Huruglica where the credibility of oral evidence was not an issue, the FCA found: This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.16 [24] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the RPD erred in its determination. The RAD will determine the appeal either by confirming the RPD's decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD, the matter will be referred back to the RPD for redetermination. The RAD will afford deference to the credibility findings of the RPD or to other findings only where the RPD has a particular advantage in reaching its conclusions. The extent of this deference will be assessed on a case-by-case basis, and that being dependent upon the particular circumstances of the matter and in conjunction with the RAD's own analysis of the record as a whole. [25] In conducting its own independent assessment and making the determination in this appeal, the RAD considered the entirety of the evidence submitted/adduced in this case, including the recording of the RPD's proceeding, and the Appellant's Appeal Record, including the Appellant's submissions. RPD'S FINDINGS AND THE RAD'S ASSESSMENT [26] The RPD found that the Appellant lacked credibility, and thus failed to establish his identity as to he is who he says he is and that he is a citizen of Somalia. [27] The Appellant raises several issues. In a nutshell, the Appellant submits that the RPD erred in its assessment of his overall credibility; more specifically relating to his identity and a lack of evidence from Somalia. The Appellant also submits that he would face a risk of harm upon return to Somalia because of his profile as a member of the minority clan XXXX and because he would be returning from the West.17 [28] The RAD finds that the crux of the RPD's negative credibility findings focused on the Appellant's failure to establish his identity as a national of Somalia. The RPD found the Appellant not to be credible, and found that the Appellant, on a balance of probabilities, has not established his identity in that he is who he says he is and that he is a citizen of Somalia. [29] In reviewing the totality of the evidence in this case, the RAD finds that the Appellant provided no passport, no birth certificate, and no other identity documents to establish that he is who he says he is and that he is a citizen of Somalia. The RAD is aware of the country documents in evidence showing that it is difficult to obtain official documents in Somalia. It is noted, however, that the Appellant was represented by a competent counsel at the RPD. Considering that the Appellant had been resourceful enough to make arrangements to flee his alleged country of persecution, transit through Ethiopia and Kenya without any undue difficulty, and then hire a smuggler to bring him to Canada to seek refugee protection, the RAD finds it reasonable for him to forward some reliable and satisfactory probative evidence to show that he is who he says he is and that he is a citizen of Somalia. The Appellant had submitted no reliable and satisfactory probative documents relating to his identity. Moreover, the RAD finds it reasonable for the Appellant to have shown that he had made a reasonable and diligent effort to obtain documents to establish his identity. The RAD finds that the evidence in this case shows that the Appellant has not provided sufficient reliable and satisfactory probative evidence to establish, on a balance of probabilities, that he is who he says he is and that he is a citizen of Somalia. The RAD also finds that the evidence does not establish that the Appellant had made a reasonable and diligent effort to obtain reliable and satisfactory probative evidence to establish his identity. Section 106 of the IRPA states: 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. [30] Section 11 of the RPD 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. [31] Further, instructions accompanying the Basis of Claim (BoC) state: You must show the IRB evidence of who you are by giving the IRB official documents with your name and date of birth on them. For example, you can give a passport, national identity card, birth certificate, school certificate, driver's licence, military document, professional or religious membership card. If you do not have documents like this with you, you need to do everything you can to get them immediately. If you still cannot get these documents, you will need to explain the reason for this at your hearing and show that you did everything you could to get them. Attach two copies of all documents (identity, travel or other documents) that you have with you now to support your claim for refugee protection, including documents that are not genuine, documents that you got in an irregular or illegal way or by giving information that is not true, and documents you used that do not really belong to you. In addition to the documents listed above, you can include proof of membership in political organizations, medical or psychological reports, police documents, business records, news clippings, visas, and airplane, train or bus tickets. [32] The claimant has the fundamental obligation to establish his or her identity on a balance of probabilities. The Court held that "[T]he onus is on the claimant to produce acceptable documentation establishing his or her identity. This is a high burden, as it should be;"18 and that, "[I]t is up to the claimant to establish his identity and he must make a genuine, substantive effort to do so."19 [33] In reviewing the totality of the evidence in this case, the RAD finds that the Appellant failed to provide any reliable and satisfactory probative documents to establish that he was born in Somalia, had resided in Somalia all his life until his alleged departure in XXXX 2015, had worked in Somalia and got paid for his work electronically, or that his family lived in Somalia and owned land in Somalia. [34] The Appellant, however, did bring in a witness at the RPD who provided evidence in support of the Appellant's identity. In reviewing the recording of the RPD proceedings, the RAD notes that the Appellant and the witness both testified that they lived in the same neighbourhood in Baidoa, in Somalia. Although the Appellant testified to have known the witness while both of them were allegedly living in Somalia in close proximity to each other; it is noted that the Appellant only provided a general account of having seen the witness around. The evidence shows that the only reference to their mutual association was that they played 'Jar', a Somali game involving digging little holes and gathering stones in them. [35] The Appellant testified that he had not visited the witness' house and the witness had not visited his house; however, the witness testified that he had visited the Appellant's house and that the Appellant had visited his house. The witness testified that they used to play 'Tag' and 'Jar' when they were little; the Appellant testified that they used to play 'Jar'. Although both of them testified that the last time they saw each other in Somalia was in 2011, the Appellant testified that they met while they were on their way to go hunting; the witness was unable to specify the circumstances around their last encounter in Somalia. In reviewing the recording of the RPD proceedings, the RAD notes the above-mentioned inconsistencies in their evidence. Due to these inconsistencies between the Appellant's and the witness' testimonies, the RPD gave the witness' testimony little weight in establishing the Appellant's identity. The RAD concurs with the RPD because the RAD finds that the two of them lived only 500 metres apart and had allegedly known each other for years, yet they were unable to provide consistent evidence relating to what they themselves found to be the salient facts defining their association/relationship. [36] Despite the above inconsistencies in their evidence, the RAD notes that most of the content relating to the witness testimony was general and non-specific; the only specific reference to their mutual association was that they played 'Jar' when they were little. The RAD notes that the Appellant is forty-six years old and the witness is forty-nine years old. In reviewing the recording of the RPD's proceedings, the RAD finds that the witness did not provide any substantive evidence that places the Appellant in Somalia as alleged. [37] The Appellant submits that the RPD did not consider the witness' testimony as a whole; the RAD respectfully disagrees because the RAD finds that the RPD's findings are evidentiary-based, and moreover, the RPD provided transparent reasons for all of its credibility findings. Regardless, the RAD conducts its own independent assessment of the totality of the evidence in this case. [38] Based on the above analysis, the RAD discounts the witness' testimony in establishing the Appellant's identity as a citizen of Somalia. Moreover, in consideration of all of the Appellant's evidence from Somalia, or a lack thereof, the RAD finds that the evidence of the identity witness does not overcome the Appellant's failure to make a reasonable and diligent effort to obtain sufficient reliable and satisfactory probative evidence from Somalia to establish his identity. [39] The RAD considered that the Appellant spoke the Maay Maay dialect and requested a Somali interpreter. Relating to this, as pointed out by the RPD, the RAD finds that the documentary evidence shows that Maay Maay is also spoken by clans other than XXXX in South and Central Somalia, including by some members of the Rahanweyn clan who are found in Ethiopia and Kenya, the two countries the Appellant, according to his own evidence, has also been to prior to coming to Canada. Therefore, the RAD finds that the fact that the Appellant spoke the Maay Maay dialect does not in and of itself establish that the Appellant is a citizen of Somalia. [40] Further, the RAD finds that the RPD's negative findings relating to the Appellant's failure to provide documentation corroborating his alleged ties to Somalia and his travel from Somalia to Ethiopia are reasonable. The RAD finds it reasonable to expect the Appellant to have provided some documentation, relating to his identity as a citizen of Somalia, from people he knew in Somalia and/or in Ethiopia. The Appellant submits that he could not produce documents because they were not available and/or they had been destroyed due to safety precautions. The RAD repeats, the Appellant is forty-six years old, has gone to school, has worked, and travelled to and lived outside his alleged country of nationality. The RAD also repeats that the Appellant is a resourceful person; he was able to engage someone to sell his family property, bring him the proceeds from sale in cash, and thereafter engage a smuggler to bring him to Canada. Therefore, the RAD finds the Appellant's failure to submit reliable and satisfactory probative documents in support of his identity undermine his credibility relating to his identity in that he is who he says he is and that he is a citizen of Somalia. [41] The RAD is aware that the Appellant had submitted telephone records at the RPD showing telephone calls that he had allegedly made to his brother in Ethiopia from Canada. The RPD found that the telephone records only tie the Appellant to someone in Ethiopia; and that these telephone records do not establish his identity, nor place him in Somalia as alleged. Therefore, the RPD gave the telephone records no weight in establishing the Appellant's identity as a citizen of Somalia. In this respect, the RAD concurs with the RPD's finding because the RAD finds that these telephone records do not lend any support to place the Appellant in Somalia as alleged. The RAD finds that these telephone records do not provide any support in establishing the Appellant's identity as a citizen of Somalia. [42] The RAD considered all of the Appellant's submissions.20 [43] In reviewing the totality of the evidence in this case, the RAD does not accept all of the RPD's negative credibility findings. In particular, the RAD finds the RPD's analysis to be flawed on a couple of points because the RAD finds that the evidence adduced does not support the findings contained therein. For example, the RPD made a negative credibility finding because the Appellant received the proceeds from the alleged sale of the family property in cash, which was delivered by a man unknown to the Appellant, rather than receiving the money electronically. In reviewing the recording of the RPD proceedings, the RAD finds that the RPD did not pursue this issue with the Appellant to the point that the RPD could, on a balance of probabilities, establish that the Appellant had the option to receive the alleged money electronically. In the same vein, the RAD does not concur with the RPD in that the Appellant's evidence showed that there were no checkpoints while he was en route to Ethiopia. In reviewing the recording of the RPD proceedings, the RAD finds that the evidence shows that the Appellant did not run into any problems at any of the checkpoints; the RAD finds that the evidence does not show that the Appellant mentioned that there were no checkpoints along the route. The RAD does not accept the RPD's negative credibility findings relating to the above-mentioned segments of the evidence adduced at the RPD. The RAD finds that the RPD's findings in the above instances are unsustainable. [44] Despite the above-mentioned problems with the RPD's reasons and negative credibility findings, based on an independent assessment of all of the evidence in this case, the RAD finds that the Appellant did not establish, on a balance of probabilities, his personal identity, or that he is a citizen of Somalia. The RAD concurs with the RPD's determination in this case. [45] The Appellant also made submissions that he would face persecution at the hands of majority clans and Al-Shabab because he belongs to a minority clan, XXXX. The Appellant also submits that returnees from the West face persecution at the hands of Al-Shabab because Al-Shabab targets and threatens to harm returnees from the West. The RAD has determined that the Appellant has not established that he is a member of the XXXX minority clan and/or that he is who he says he is and that he is a citizen of Somalia. Where the Appellant's identity cannot be proven, their refugee claim must fail. Therefore, the RAD is not required to proceed with analyzing the Appellant's other evidence relating to the alleged merits of his claim. [46] The RAD confirms the RPD's determination that the Appellant is neither a Convention refugee nor a person in need of protection. DISPOSITION [47] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the RPD's determination of the Appellant's claim. [48] This appeal is dismissed. (signed) "S.S. Kular" S.S. Kular September 9, 2016 Date 1 Exhibit P-2, Appellant's Record, item 3, Written Statement of new evidence, at p. 12. 2 Exhibit P-2, Appellant's Record, item 4(c), at pp. 172-195. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27, last amended on February 6, 2014. 4 Exhibit P-2, Appellant's Record, item 3, Written Statement of new evidence, at p. 12. 5 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 7 Exhibit P-2, Appellant's Record, item 4(c), Appellant's affidavit, at pp. 172-175. 8 Exhibit P-2, Appellant's Record, item 4(c), Telephone records, at pp. 185-186. 9 Exhibit P-2, Appellant's Record, item 4(c), Letter from XXX XXX XXX, at pp. 188-189; and accompanying documents, at pp. 178-181 and at p. 183. 10 Exhibit P-2, Appellant's Record, item 4(c), Letter from the Appellant's brother, at pp. 191-192. 11 Exhibit P-2, Appellant's Record, item 4(c), Letter from roommate of the Appellant's brother, at pp. 194-195. 12 Exhibit P-2, Appellant's Record, item 6, Appellant's Memorandum of Law and Argument, at paras. 31-43, pp. 212-215; and Appellant's affidavit, at paras. 8-11, pp. 173-174. 13 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 14 Ibid., at para. 103. 15 Ibid., at para. 69. 16 Ibid., at para. 70. 17 Exhibit P-2, Appellant's Record, item 6, Appellant's Memorandum of Law and Argument, at para. 7, p. 198. 18 Su v. Canada (Citizenship and Immigration), 2012 FC 743, June 14, 2012, at para. 4. 19 Duale v. Canada (Minister of Citizenship and Immigration), 2004 FC 150, January 30, 2004, at para. 19(3). 20 Exhibit P-2, Appellant's Record, item 6, Appellant's Memorandum of Law and Argument, at pp. 197-218. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-07223