TB5-09532

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 : TB5-09532 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 December 8, 2015 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane 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 (the Appellant), who claims to be a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either find him to be a Convention refugee or refer the matter back to the RPD for redetermination. DETERMINATION [2] 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 [3] The Appellant alleged before the RPD that he is a citizen of Somalia and faces persecution there as a member of a minority clan. He alleged that he worked as a XXXX XXXX transporting goods for non-governmental organizations (NGOs) and as a result was threatened by extremist group Al-Shabab, who killed the Appellant's employer and his cousin. [4] The Appellant's application for refugee protection was heard on August 24, 2015. By a decision of September 2, 2015, the RPD rejected the claim, finding that the Appellant had not established his identity. [5] The Appellant submits on appeal that the RPD erred in its consideration of his identity. ANALYSIS What is the Role of the RAD? [6] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [7] The Appellant submits that the RAD ought to independently evaluate his refugee claim, not assess the reasonableness of the RPD's findings. [8] In another decision, this panel considered at some length the legislation and jurisprudence concerning the role of the RAD.1 It assessed the nature of a RAD appeal and addressed the scope and degree of deference to be shown to findings of the RPD. The panel reached the following conclusions, which it finds to also be applicable here, about the approach to be taken in a RAD appeal. The RAD's Approach [9] The RAD will take the following approach in considering an appeal against a decision of the RPD. It will assess all of the evidence, both that in the RPD's record and any admissible new evidence. It will consider questions of law, fact, and mixed law and fact raised by the Appellant and, where applicable, the Respondent. [10] Where the proceeding is a true appeal-that is, where there is no admissible new evidence, as is the case here-the RAD will consider the decision of the RPD, the submissions in respect of that decision, and determine whether the RPD's determination is wrong. As a true appeal is founded on the record, the RAD must conduct an independent assessment of the evidence in that record in order to determine the appeal. [11] Where an appeal includes admissible new evidence that speaks to an error in the RPD's decision, it is a hybrid appeal, where the RAD must consider the RPD's reasons in light of the new evidence, which may establish that the decision of the RPD is wrong.2 [12] Where an appeal presents admissible new evidence which establishes a new, changed, or heightened risk, or otherwise changes the overall nature of the claim, this will result in a limited de novo appeal. In some such cases, the decision of the RPD may be less relevant in light of the new evidence-that is, the new evidence establishes a risk or degree of risk, or other potentially determinative matter not considered by the RPD. Unlike a true de novo proceeding, however, the RAD will not ignore the RPD's record or the findings of the lower tribunal, as these may remain relevant to the appeal. [13] The RAD will recognize and respect findings which the RPD was in an advantageous position to make, which will normally include credibility findings and other findings of fact. Where such deference is to be shown, the RAD will not intervene unless the RPD's reasoning process is not comprehensible or the outcome of that process is not based on and supported by the evidence. [14] Where the RPD's determination is entirely based on findings which warrant deference-such as an overall lack of credibility, based on oral testimony-the RAD will, having conducted its own assessment of the evidence, consider whether the RPD's reasoning process is comprehensible and whether the determination is based on and supported by the evidence. [15] On matters where the RPD has no advantage, the RAD will show no deference and will apply a standard of correctness, engaging in its own analysis of the evidence and reaching its own conclusion to determine if the RPD was wrong. Where the RAD finds that its conclusion does not agree with that of the RPD, the RAD will substitute its own finding and determination or, if it is unable to substitute, will refer the matter back to the RPD for redetermination. The Appellant's Identity [16] The Appellant argues that the RPD made various errors in finding that he had not established his identity. [17] Lack of contradictory evidence: The Appellant argues that he gave testimony about his life in Somalia, and the nature and history of his clan there. He submits that there was no contradictory evidence and therefore no reason for the RPD to doubt his credibility. [18] The RAD recognizes that it can be difficult for citizens of Somalia to obtain identity documents. It also notes that, even in the absence of documents, identity can be established by credible testimony.3 Here, however, there was a significant problem with the Appellant's evidence before the RPD. [19] The Appellant called a witness to testify before the RPD with respect to the Appellant's identity. Prior to the hearing, the Appellant's counsel wrote to the RPD that the Appellant's father and the witness "were very close friends and the witness' daughter and the claimant were classmates in Somalia. Mr. XXXX knew that [the witness] was in Canada. Mr. XXXX went to the Somali XXXX XXXX Organization to get help with his work permit and while he was there he met the witness who was there attending a XXXX Student Program. They recognized each other right away."4 [20] The witness testified before the RPD, but his testimony did not assist the Appellant. Although he claimed to be a close friend of the Appellant's father, and to have visited the Appellant's home, he could not describe the street, and in fact provided details that were not consistent with the Appellant's own evidence. The Appellant had testified that there was a XXXX XXXX building in the area; the witness could not recall the type of building, but after a break in the hearing he returned to testify and then said the building was the XXXX XXXX; this sudden recollection suggests that he may have discussed his evidence with the Appellant during the break. Although the Appellant allegedly went to school with the witness' daughter, the witness provided the name of a different school than the one named by the Appellant. [21] The Appellant told the RPD that he believed his witness to be confused. The Appellant does not challenge the RPD's negative findings with respect to the witness.5 [22] In the RAD's view, the witness' testimony affects the Appellant's credibility. He brought a witness whom he claimed was a close friend of his father, whose daughter had attended school with the Appellant, and who had immediately recognized him in Canada. When that witness testified, there was little in his evidence to suggest that he knew the Appellant or his family, and much to suggest that he did not. While the Appellant readily concedes that the witness' testimony was confused and unreliable, this does not, in the RAD's view, insulate the Appellant from the impact of that testimony. The witness was brought by the Appellant to speak specifically to his identity. His inability to do so, and the inconsistency between his testimony and that of the Appellant, negatively affects the Appellant's credibility as well. [23] The Appellant was entitled to the presumption of truthfulness before the RPD. Had that presumption stood, unrebutted, he might have been able to establish his identity with only his credible oral evidence. However, the testimony of his own witness raised significant credibility concerns. The RAD finds that such concerns were sufficient to prevent the Appellant from establishing his identity on the basis of his oral testimony alone. [24] Lack of driver's licence: The RPD noted that the Appellant was employed as a XXXX XXXX for international organizations, and that objective evidence indicates that driver's licences exist in Somalia. The RPD found it difficult to believe that the Appellant did not have such a document. [25] The Appellant argues on appeal that there is no evidence that NGOs in Somalia require driver's licences. The broker who employed him was killed by Al-Shabab and thus could not speak to the matter. The fact that it is possible to obtain a driver's licence in Somalia does not mean that the Appellant was required to have one. [26] The RAD agrees that there is nothing unbelievable about the Appellant's lack of a driver's licence. It is well known, and established in objective evidence, that the Somali government is largely non-functional, as are the police. It is hard to imagine why a XXXX XXXX would need to get a driver's licence, unless this was required by the NGOs involved, but there is no evidence to establish that this was the case. [27] It was an error for the RPD to expect the Appellant to have a driver's licence. However, this is not fatal to the RPD's decision. The fact remains that the Appellant does not have documents to establish his identity, and cannot establish that identity on the basis of his own evidence alone, as that evidence suffers from a significant credibility problem. While the Appellant has provided a reasonable explanation for the lack of a driver's licence, this does not establish his identity. [28] Other documents: The RPD considered a letter from the Somali XXXX XXXX Organization (XXXX) which states that the Appellant is familiar with the Somali language and culture. The RAD has reviewed that letter.6 A settlement worker with the organization determined that the Appellant is a citizen of Somalia because he is familiar with the Somali language and culture, because of his features and his interactions with other members of the community. The RAD agrees that this letter does little, if anything to establish his identity. It cannot establish the Appellant's personal identity, because the XXXX letter does not speak to his name or date of birth. The other material discussed in the letter-such as language, culture, and geography-simply does not establish that the Appellant is a Somali national. He might have lived or worked in Somalia; he might have family members there; he might have studied the language and culture; or he might come from a Somali community in a nearby country. It was not an error for the RPD to find that the XXXX letter does not establish the Appellant's identity; having reviewed the letter, the RAD reaches the same conclusion. [29] The Appellant also challenges the RPD's treatment of his wife's affidavit. The RPD found that the document could not establish his identity; it was printed from an email, included no identity documents, and the RPD could not establish if the affiant was indeed the Appellant's wife. [30] The Appellant concedes that "the RPD's points are legitimate" but argues that the panel was nevertheless unreasonable in rejecting the document and in "putting fetters on acceptable evidence."7 The RAD disagrees. The affidavit was only a copy, and no original was presented for the panel to examine. More significantly, there is simply nothing that ties the affidavit to the Appellant. That is, even if the affidavit is true, and relates to a Mr. XXXX XXXX XXXX, it provides nothing to establish that the Appellant is indeed Mr. XXXX. It does not include pictures, or identity documents, or even provide his date of birth. Further, the Appellant brought a witness to the RPD hearing who allegedly was a close family friend, but upon examination turned out to have little knowledge of the Appellant. In all of these circumstances, an affidavit from someone in Kenya, who cannot be questioned, deserves no weight.8 [31] The Appellant also argues that the RPD erred by failing to consider a letter from his uncle, which was also relevant to identity.9 The RPD is presumed to have considered all the evidence; the RAD has also independently reviewed the letter. The document does not speak to the Appellant's identity; rather, it confirms that the author "sold the XXXX that was owned by XXXX XXXX XXXX" and sent the money to Mr. XXXX in Kenya. This certainly does not help the Appellant to establish that he is a national of Somalia. [32] Having reviewed the evidence, the RAD has reached the same conclusion as did the RPD. The Appellant's oral evidence before the RPD was problematic because of the inconsistency between his own testimony and that of the witness. As such, he cannot establish his identity with only his testimony. He was also not able to establish his identity with the documents he provided. [33] The Appellant has not established his identity, and his refugee claim must therefore fail. CONCLUSION [34] Pursuant to Section 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) "Edward Bosveld" Edward Bosveld December 8, 2015 Date 1 X (Re), 2015 CanLII 19235 (CA IRB). 2 Reference to this type of evidence is made in Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para. 55. 3 See UNHCR Handbook, paras. 196, 203-204. 4 RPD's Record, Page 85. 5 Appellant's Record, Page 20, Memorandum, para. 25. 6 RPD's Record, Page 94. 7 Appellant's Record, Page 19, Memorandum, para. 21. 8 The RAD notes that the affidavit is also inconsistent with the Appellant's Basis of Claim narrative (RPD's Record, Page 12) in that it claims the Appellant was attacked by Al-Shabab (paragraph 5) while his narrative does not place him at the scene of the attack. However, as the affidavit has no probative value for other reasons, it is not necessary for the RAD to make a finding with respect to this inconsistency. 9 RPD's Record, Page 96. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-09532