TB6-03798

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 : TB6-03798 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 June 28, 2016 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Rodney L. Woolf 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), a citizen of Somalia, is appealing the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant is requesting that the Refugee Appeal Division (RAD) set aside and substitute the negative determination with a positive determination or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. The Appellant submitted new evidence in support of his appeal. He did not request an oral hearing under section 110(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. This appeal is allowed. Background [3] The Appellant alleges the following. [4] He was born in XXXX XXXX, Somalia on XXXX XXXX, 1987. He is a member of the XXXX minority clan and a Sufi Muslim. [5] In 1993 men from the majority Marehan clan attacked the Appellant's family farm. During the attack the Appellant's brother, uncle and the son of his uncle were killed. His father was severely injured. The Appellant, his parents and his two sisters fled to Ethiopia. Shortly after their arrival in Ethiopia the Appellant's father died as a result of his injuries. [6] The Appellant had no legal status in Ethiopia and very limited work opportunities. Eventually the Appellant collected and sold firewood as a means of supporting his mother and sisters. The Appellant and his family constantly faced discrimination. [7] The Appellant left Ethiopia on XXXX XXXX, 2015 with the assistance of a smuggler. He eventually arrived in the United States (US) where he made a claim for asylum. His claim was subsequently denied. [8] The Appellant arrived in Canada on XXXX XXXX, 2015 and made a claim for refugee protection at the Port of Entry (POE). [9] The Appellant had a refugee determination hearing on January 20, 2016. In a written decision issued on February 16, 2016 the RPD rejected the claim. The RPD member found that the Appellant did not establish his identity. The RPD also found that, even if the Appellant had established his identity, he did not provide credible and trustworthy evidence as to his fear of persecution in Somalia. [10] Appeal pleadings were received on April 20, 2016. In his appeal, the Appellant argues that the RPD erred in law in its identity findings and in its credibility findings. ROLE OF THE RAD [11] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. [103] 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. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [12] 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 RPD, and may accept documentary evidence and written submissions from the Minister and 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. [13] The Appellant states in his Memorandum that he submits the following new evidence: i) A letter dated XXXX XXXX, 2016 from the Somali Immigrant Aid Organization which he contacted on XXXX 15, 2016, after the rejection of his claim, as further evidence of his identity. ii) A letter from his mother dated XXXX XXXX, 2016 which confirms that a birth certificate was never issued in his name and provides information regarding his lineage. [14] The Appellant submits that the proposed new evidence meets the test of section 110(4) of the IRPA because the documents could not reasonably been expected in the circumstances to have been presented at the time of the rejection, because it was not known on what basis the RPD would make its determination. [15] The RAD is following the guidance in the Federal Court of Appeal decision of Singh, 2016 FCA 96, on March 29, 2016, in determining the admissibility of new evidence under subsection 110(4) of the IRPA. The RAD's analysis of the admissibility of the proposed new evidence, an affidavit from the Appellant's mother, must begin first with the test set out in section 110(4). In assessing whether the proposed new evidence meets the statutory provisions of section 110(4), the RAD considered the following: a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred, or a circumstance that arose after the rejection of the refugee claim.2 i. The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.3 ii. It is important to note here that section 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. iii. If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and the materiality of the document.4 b) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in section 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,5 or that it proves a fact that was unknown to the Appellant at the time of the hearing?6 If so, the RAD will proceed to assess the newness, credibility and relevance of the evidence. c) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the section 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.7 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility and relevance of the evidence. [16] If the proposed new evidence meets the tests set out in the statutory requirements and, subject to the necessary adaptations, the FCA's considerations in Raza, the evidence will be admitted as evidence in the appeal. The materiality of the evidence will be only considered in the context of the assessment made under section 110(6) of the IRPA. [17] In the case at hand, the Appellant submits that his mother's letter, dated XXXX XXXX, 2016, addresses those matters which the RPD stated were not addressed and ought to have been addressed in the first letter from his mother, dated XXXX XXXX, 2016, which he provided for his hearing before the RPD. He argues that inasmuch as the determinative issue is identity, this document raises a serious answer to the RPD's decision on identity and, if accepted, the document justifies allowing his claim for refugee protection. [18] In considering the statutory provisions of section 110(4), the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim. The RAD finds that while the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, the Appellant has not established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim. However, the RAD finds that the Appellant could not reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim. [19] The RAD, therefore, accepts the affidavit from the Appellant's mother, dated XXXX XXXX, 2016, for the reasons given in the following two paragraphs. [20] According to the recording of the hearing, the RPD asked the Appellant if a birth certificate had ever been issued in his name. The Appellant responded in the negative. In its decision, the RPD found that the Appellant was unable to provide any primary identification documents, including a birth certificate. The RPD stated in its reasons that many Somalis did receive government-issued birth certificates prior to the outbreak of war in 1991 and noted that the Appellant was born in 1987. The RAD reasonably infers that the RPD is implying that given the Appellant's birth date, a birth certificate would have been issued. The RPD stated in its reasons that the Appellant had not asked his mother if she possessed a birth certificate issued in his name. The RPD found that there was no reason to believe that the Appellant did not know that he should provide all identity documents, or give a reasonable explanation as to why he could not provide them. According to the recording of the hearing the Appellant was not given the opportunity to explain why a birth certificate was not issued to him prior to the civil war. In addition, according to the recording of the hearing, the RPD did not ask the Appellant if he had asked his mother if she possessed a birth certificate issued in his name. The affidavit provided by the Appellant's mother, dated XXXX XXXX, 2016, addresses the issue of the lack of a birth certificate which the Appellant was not given the opportunity to explain during the hearing. [21] More importantly, according to the recording of the hearing, at the end of questioning the RPD asked the counsel for the Appellant to address two issues: the Appellant's clan identity [RAD's emphasis] and whether the Appellant would face a risk in Somalia given that he left Somalia in 1993. The counsel for the Appellant then confirmed these two issues with the RPD. The RPD did not indicate to counsel that the Appellant's personal or national identities were issues to be addressed. The RAD finds this to have been a denial of natural justice. The affidavit provided by the Appellant's mother, dated XXXX XXXX, 2016, addresses issues that the counsel for the Appellant was not given the opportunity to address in his oral submissions at the hearing before the RPD. [22] In its assessment of the affidavit, dated XXXX XXXX, 2016,8 provided by the Appellant's mother, the RAD gives considerable weight to this document for the following reasons. The document contains information critical to the Appellant's appeal, that is, that a birth certificate was never issued in his name, and an explanation as to why the Appellant has little knowledge of his lineage. The document is an oath and contains the seal of a Notary Public of Nairobi, Kenya. The Appellant provided the DHL envelope in which the document was shipped from Kenya.9 The Federal Court has held that documents issued by a foreign government are presumed to be authentic10 unless evidence external to the document is provided to prove otherwise, or the Board is able to make a determination based on the contradictory evidence that calls the authenticity of the document in question.11 The RAD will discuss later in this decision the lack of contradictory evidence regarding the absence of a birth certificate and the Appellant's lack of knowledge of his lineage. [23] The RAD notes that the Appellant neglected to include new evidence in the form of a letter from the Somali Immigrant Aid Organization in his appeal. Since the RAD finds that it has sufficient evidence to make a positive decision on behalf of the Appellant, the RAD does not require this particular evidence to consider. ANALYSIS OF THE EVIDENCE The Appellant's personal and national identity Absence of a birth certificate [24] As stated above, the RPD found in its written decision that the Appellant testified that no birth certificate was issued to him and that the Appellant did not ask his mother if a birth certificate had been issued in his name. The RPD noted in its decision that the Appellant was born in 1987 and that many Somalis received government issued birth certificates before the outbreak of war in 1991. The RPD made a general finding that the Appellant did not give a reasonable explanation as to why he did not provide primary identity documents. The RPD found that the Appellant also would have known from having made a prior protection claim in the US that his identity would be an issue. [25] In his appeal the Appellant argues that the new evidence, in the form of an affidavit from his mother, clearly states that he was not born in a hospital but at home and, therefore, never had a birth certificate. [26] The RAD, for the following reasons, finds that the lack of a birth certificate does not undermine the Appellant's credibility. [27] The Appellant testified that he was never issued a birth certificate. As stated above, the Appellant was denied natural justice when he was not provided the opportunity during questioning by the RPD to explain why a birth certificate was never issued to him. The Appellant was also denied natural justice when the RPD did not list personal or national identity as issues when instructing counsel on submissions at the end of questioning. Thus, the counsel for the Appellant was denied the opportunity to address the issue of personal and national identity, including any reasons for the lack of a birth certificate. [28] The RAD finds that information found in the National Documentation Package (NDP) regarding the issuance of birth certificates prior to the outbreak of war in 1991, does not support the RPD's finding. A Response to Information Request (RIR)12 regarding the issuance of documents in Somalia provides the following information with respect to birth certificates. The Norwegian Country of Origin Information Centre also notes the following in a report published in 2009 on birth certificates in Somaliland, a region of northwestern Somalia that declared itself independent in 1991: "Birth certificates are rarely issued, and in principle, it is only issued if the child is born in a hospital. The majority of babies are born at home. However, in the case of home births, a declaration of the event can be given under oath (affidavit). Certificates and declarations (affidavit) [of birth] can and should be confirmed/authorized by the Ministry of Religious Affairs in Hargeisa. The Ministry is supposed to keep an overview of the regional courts' jurisdiction and over personnel within the Courts who are authorized to sign the documents. (Norway, 5 Jan. 5, 2009, 11)" Country Reports on Human Rights Practices for 2012, published by the US Department of State, notes the following regarding births in Somaliland: "Birth registration occurred in Somaliland for hospital and home births; however, limited capacity combined with the nomadic lifestyle of many persons caused numerous births in this region to go unregistered. Failure to register births did not result in denial of public services such as education. (US 19 Apr. 2013, 40)" Corroborating information and additional information on birth registration in Somalia could not be found among the sources consulted by the Research Directorate. [29] The RAD appreciates that the information refers to Somaliland, which the NDP13 indicates is located in northwest Somalia while, according to the Appellant's evidence, he was born and lived in an area close to XXXX, in the south east of the country. Nevertheless, the RAD finds it reasonable to infer that the situation regarding the issuance of birth certificates was similar throughout the country prior to 1991. In any event, there is no evidence that birth certificates were issued for every birth in the XXXX area at the time of the Appellant's birth. [30] The RAD, above, has assigned significant weight to the affidavit provided by the Appellant's mother as new evidence.14 The Appellant's mother affirms that the Appellant was born at home and he never had a birth certificate. [31] With regards to the Appellant's claim for asylum in the U.S., the RAD notes that information contained within evidence from the U.S. claim states the following. "Applicant's identity was determined with a reasonable degree of certainty". This finding was based upon the "Applicant's own credible statements."15 Therefore, the RAD, respectfully, does not agree with the RPD's finding that the Appellant ought to have known identity was an issue because of his previous claim in the U.S. The lack of secondary identity documents from Ethiopia [32] The RPD found that the Appellant was unable to produce any secondary identity documents such as a driver's licence and photographs. The RPD then noted that while the Appellant lived in Ethiopia for twenty-two years and worked there, he could produce no pay stubs, no receipts for purchases, no rent receipts or any bank statements. The RPD made a general finding that the Appellant did not give a reasonable explanation as to why he did not provide identity documents. [33] The Appellant pleads that during the hearing he testified that he worked at collecting wood using a donkey and he also cleaned shoes to provide for his mother and sisters. The Appellant argues that it is unreasonable, in these circumstances, to expect him to have had a driver's licence or even a camera. He argues further, given he is illiterate, that obviously with respect to paystubs, receipts of purchases or bank statements, it is ludicrous to expect him to produce such documents. [34] The RAD concurs with the Appellant for the following reasons. [35] In his Basis of Claim form the Appellant states that he was born in Somalia in 198716 and left Somalia in 1993.17 He provided similar testimony at his hearing before the RPD. At the POE the Appellant stated that he had no formal education and was living in a refugee camp in Ethiopia from 1993 to 2015.18 In his written narrative the Appellant states that he had no legal status in Ethiopia and had to keep a low profile.19 According to the recording of the hearing the Appellant was asked if he worked in Ethiopia. He testified that to support his family he collected and sold wood using a donkey and that he cleaned shoes. This testimony is consistent with information found in the Appellant's narrative.20 Given the profile of the Appellant as an uneducated man, living in a refugee camp, with no legal status and few resources, the RAD finds it reasonable that the Appellant had no secondary identity document issued to him in Ethiopia. [36] In addition, the recording of the hearing indicates that when the Appellant testified that he did not have a birth certificate, the RPD asked the Appellant if had ever had any identity documents issued during his life. The Appellant responded in the negative. The Appellant was never asked if he had any particular documents issued in Ethiopia, such as a driver's licence, photographs, paystubs, receipts or bank statements. The RAD, thus, finds that the Appellant was denied natural justice because he was not provided the opportunity during the hearing to explain why he had no documents from Ethiopia. [37] The RAD, thus, finds that the Appellant's credibility is not undermined because of a lack of secondary identity documents from Ethiopia. Affidavit of XXXX XXXX XXXX, dated XXXX XXXX, 201621 [38] The RPD attributed no weight to the affidavit from the Appellant's mother, XXXX XXXX XXXX, which the Appellant provided as evidence for his claim. The RPD's reasons for this finding included the fact that the document was not accompanied by any identity documents or photographs of the deponent. The RPD found that while the deponent stated that the Appellant is from the XXXX clan she did not mention that the Appellant "and presumably she" belong to a sub-clan of the XXXX sub-clan. The RPD also found that the deponent stated that two sons of her brother-in-law were killed in 1993, which contradicts the Appellant's evidence that one son was killed. The RPD found that since the deponent was not produced as a witness she could not be asked to explain this discrepancy. [39] In his appeal, the Appellant submits that the affidavit was provided through an interpreter and bears the stamp and seal of a Commissioner for Oaths/Notary Public and that it is unreasonable that the Notary Public would not first ascertain the identity of the affiant. [40] The Appellant in his appeal argues that the affidavit from his mother, dated XXXX XXXX, 2016, (new evidence) provides evidence of why he has little knowledge of his lineage. [41] With regard to the Appellant's mother not being presented as a witness at this hearing before the RPD, the Appellant depends upon jurisprudence in which the Honourable Mr. Justice Mahoney found: If a tribunal herein is suggesting that the affidavit evidence of patently respectable deponents as to facts within their knowledge may be discounted, because, in the nature of the process, the deponents are not available to be cross-examined, the tribunal is wrong. It is not for the Refugee Division to impose on itself or claimants evidentiary fetters of which parliament has freed them.22 [42] The RAD agrees with the Appellant for the following reasons. [43] As the RAD found above, the Federal Court has held that documents issued by a foreign government are presumed to be authentic23 unless evidence external to the document is provided to prove otherwise, or the Board is able to make a determination based on the contradictory evidence that calls the authenticity of the document in question.24 [44] With regards to the apparent discrepancy between the Appellant and information found in his mother's affidavit, the RAD finds that according to the recording of the hearing the Appellant provided a reasonable explanation. Although his written narrative states that one son of his uncle was killed, the Appellant provided an amendment at the outset of the hearing to read that two sons were killed. During the hearing, when asked to explain what had happened during the attack in 1993, the Appellant testified that his uncle and two sons were killed. The RAD also notes that during his interview for asylum in the US the Appellant testified that his uncle and his two sons were killed in an attack in 1993.25 [45] The RAD is guided by the jurisprudence26 as referred to by the Appellant with respect to the Appellant's mother not being called as a witness during the hearing before the RPD. [46] The RAD, with respect, does not agree with the RPD with regards to the deponent not mentioning that the Appellant "and presumably she" belong to a sub-clan of the XXXX sub-clan. Not only does the deponent state in the new evidence, her second affidavit, that she is a member of the XXXX clan, according to the recording of the hearing before the RPD, the Appellant provided similar testimony. The RAD discusses in further detail, below, the Appellant's identity as a member of the minority XXXX clan. [47] For the following reasons, the RAD assigns significant weight to the affidavit, dated XXXX XXXX, 2016,27 as evidence of the Appellant's personal and national identity as well as his credibility. [48] The affidavit contains the signature and seal of a Notary Public of Kenya. There is nothing on the face of the document to make the RAD doubt its veracity. [49] The deponent identifies herself as the mother of the Appellant. Her name is consistent with evidence given by the Appellant at the POE28 and in his Basis of Claim Form (BOC).29 [50] The deponent states that she and the Appellant are citizens of Somalia. The deponent identifies the Appellant as being member of the XXXX clan. This information is consistent with evidence provided by the Appellant. [51] The deponent's information regarding the reason the Appellant and his immediately family fled Somalia in 1993 is consistent with evidence provided by the Appellant. The letter from XXXX XXXX XXXX30 [52] The RPD gave no weight to the letter from the Appellant's third cousin, XXXX XXXX XXXX, for the following reasons: i) The author of the letter does not explain how he is related to the Appellant nor did he provide any identity documents or photographs. ii) The author of the letter states that he escaped Somalia on XXXX XXXX, 2016, which is not possible given that the letter is dated XXXX XXXX, 2016 and was presented at the hearing before the RPD on January 20, 2016. iii) The author of the letter identified that major persecutor as "Al Shabby" and the RPD expects that an individual who truly fears a militia would be able to properly identify Al-Shabaab. [53] The Appellant argues that the discrepancy in the dates was an error on the part of the letter's author. The Appellant argues further that in the second paragraph of the letter the author states that his family members were killed by Al-Shabaab and that the spelling error found later in the letter was clearly a typographical error and pleads that the error was most likely made by the interpreter of the letter. The Appellant depends upon jurisprudence when arguing that it was an error in law for the RPD to use the letter as an example of lack of credibility and to give no weight to the document. In particular, the Honourable Mr. Justice Hughes found: The whole saga of the applicant's endeavours to prove his Somali identity reeks of a concerted effort to reject or minimize as opposed to giving it a fair and reasonable interpretation.31 [54] The RAD cannot agree with the assigning of no weight to the letter. The RAD's reasons follow. [55] The Appellant was not questioned during the hearing about the lack of identity documents from the author of the letter. The RPD appears not to have considered the situation of the letter's author, a Somali citizen who has escaped to Ethiopia. The RAD finds that such a person is highly unlikely to have identity documents. As the Honourable Mr. Justice Hughes stated in a recent Federal Court decision "It is notorious that government documents from Somalia are virtually unobtainable (see Elmi v Canada (MCI), 2008 FC 773 at para 22)."32 [56] The Appellant was not provided the opportunity during his hearing before the RPD to explain the relationship between him and the letter's author. [57] Upon listening to the recording of the hearing, the RAD finds that the RPD did not ask about the provenance of the letter. The Appellant was not asked how the letter arrived in Canada and, therefore, no envelope and e-mail evidence was requested, or the absence thereof questioned. [58] The RAD finds that the RPD was microscopic in its finding because of the misspelling of Al-Shabaab, especially, as argued by the Appellant, Al-Shabaab was spelled correctly earlier on in the letter. [59] The RAD appreciates the concern the RPD had regarding the contradictory dates. However, on considering the whole of the letter, translated by an interpreter, it is obvious that the interpreter's command of the English language is weak. There are numerous grammatical errors as well as the spelling error referred to in the previous paragraph. Therefore, it is possible that the date, XXXX XXXX, 2016, was made in error. [60] The RAD cannot assign significant weight to the document because, as outlined above, certain information was not ascertained from the Appellant during the hearing. The RAD, nevertheless, assigns some weight to the document. The letter from XXXX XXXX33 [61] The RPD assigned no weight to a letter from the organization XXXX XXXX, a Somali Multi-Service Centre in Toronto. The RPD found that the letter claims to have followed policy guidelines without stating the guidelines or how the guidelines assisted the organization in identifying the Appellant. The RPD found that the letter states that the Appellant is from XXXX XXXX, which contradicts the Appellant's testimony that he was born in "XXXX XXXX (phonetic) (also spelled XXXX XXXX)". The RPD found that the Appellant was unable to explain the discrepancy. The RPD found that XXXX XXXX does not explain how it concluded that the Appellant is a Somali citizen, other than to state that the information was gathered from the Appellant during interviews. [62] The Appellant argues that a very different finding was made in another RPD decision, File No. TB5-12743, with regards to the weight assigned to a letter from XXXX XXXX. In that decision the RPD assigned some weight because of the RPD's specialized knowledge of XXXX XXXX being a respected settlement organization funded by various levels of government. The Appellant argues further that it is unreasonable for one RPD member to give weight to a letter from XXXX XXXX while another gives no weight. [63] The RAD finds that while RPD members are independent decision makers, the RAD, respectfully, does not agree with the RPD's assignment of weight to the letter from XXXX XXXX. The RAD's reasons are as follows. [64] The letter provides information regarding the policy XXXX XXXX follows in establishing a person's nationality of origin. An interview in the Somali language, following the XXXX XXXX questionnaire, is conducted by a professional Somali settlement counselor. The questionnaire covers the topics of heritage and culture. Obviously, the answers were provided by the Appellant. The RAD reasonably assumes that the answers attested by the Appellant were such that XXXX XXXX attests that the Appellant is "of Somali Nationality and a Citizen of Somalia."34 [65] Regarding the difference in the names of the Appellant's place of birth, the RAD notes that throughout the documents provided by the Appellant there are different spellings. The RAD has kept in mind that the Appellant is illiterate and information he provided was done through an interpreter. For example, at the POE the Appellant's place of birth is listed as XXXX XXXX.35 [66] In his BOC narrative the Appellant states he was born in XXXX XXXX.36 In the Appellant's claim for asylum in the US, authorities recorded his place of birth as XXXX.37 The birth place, XXXX XXXX, referred to by the RPD in its decision, is found in the affidavit of XXXX XXXX XXXX provided by the Appellant for his US claim.38 According to the recording of the hearing, the RPD did not question the Appellant about this particular spelling. According to the recording of the hearing before the RPD, the name given by the Appellant was then spelled phonetically, "XXXX XXXX", by the interpreter. The RAD notes that in the US claim application the Appellant's clan was recorded as XXXX,39 while at the POE his clan is recorded as XXXX.40 In his BOC narrative his clan is stated as XXXX.41 The documentary evidence entitled, The Total Somali Clan Genealogy, provides the clan spelling as XXXX.42 The RAD reasonably infers that the letters "XXXX" and "XXXX" are sometimes interchanged in the interpretation of Somali names. As a result of this analysis, the RAD does not draw a negative inference from the different spellings of the Appellant's birth place. [67] The RAD, thus, assigns significant weight to the letter from XXXX XXXX, a respected refugee settlement organization. The Witness [68] The RPD found that the identity witness provided evidence that was consistent with oral evidence provided by the Appellant. [69] The Appellant pleads that the RPD appears to have simply ignored the fact that the Appellant did provide an identity witness confirming information regarding the relationship between the two men. [70] The RAD concurs with the Appellant. The RPD gave no weight to the testimony of the identity witness. According to the recording of the hearing, the identity witness, with the assistance of a Somali interpreter, was questioned over a ten minute period by the counsel of the Appellant. The RPD chose to ask the witness two questions. The RAD finds that while more questions might have been asked of the witness, such as more details of the meeting between the witness and the Appellant in Ethiopia and knowledge of each other's immediate family members, there were no contradictions between information provided by the witness and the Appellant. The RAD, therefore, finds the witness to be credible and, thus, assigns some weight to the testimony of the witness. [71] As a result of the above analysis, the RAD finds, on a balance of probabilities, that the Appellant has established his personal and national identity as XXXX XXXX XXXX, a citizen of Somalia. Credibility [72] The RPD states that it examined available information and there does not appear to be a clan named XXXX. The RPD found that the Appellant's credibility was seriously undermined because the Appellant did not identify his clan as a sub-clan of the larger XXXX clan. The RPD, as discussed above, gave no weight to the affidavit provided by the Appellant's mother because, in part, she also failed to identify the XXXX clan as a sub-clan of the larger XXXX clan. The RPD found that "presumably" the Appellant's mother was member of the Appellant's XXXX clan. [73] The Appellant pleads that he, his identity witness and his mother all confirmed that he is a member of the XXXX (also spelled XXXX) clan. The Appellant argues that his mother's affidavit confirms that the Appellant's father died when he was six years old and he, therefore, lost close connection to his father's clan. [74] The RAD is not able to support the RPD's credibility findings despite the RPD's advantage of having heard the Appellant's testimony in the hearing room. The RAD's finding on the RPD's credibility findings are not merely a disagreement but a finding that they are outside the range of what the RAD can recognize and respect. The RAD's reasons follow. [75] According to the recording of the hearing, the Appellant testified that he is a member of the XXXX clan. When asked if his clan was at the same level as the Darod or Hawiya (noble) clans, the Appellant testified that he left Somalia when he was a little child and he had not been told about these clans. He testified further that his mother told him that he is from a small clan. When the Appellant was asked if his clan was related to any other clan, he testified that as far as he knew they were not. The RPD then referred the Appellant to information contained in the NDP which states that the XXXX is a sub-clan of the XXXX clan which is, itself, a sub-clan. When then asked if it was not likely that he is related to the XXXX clan, the Appellant testified that he had no knowledge of any relationship. At a later juncture in the hearing, the Appellant testified, when asked to state his mother's clan, that she is a member of the XXXX clan. Given that the Appellant left Somalia at six years of age, lost his father at that time, received no formal education and resided with his mother and sisters for twenty-two years in a refugee camp, the RAD finds it to be reasonable that the Appellant learned extremely little about his father's clan of which he is a member. [76] As the Appellant argued in this appeal, he provided an identity witness who affirmed his clan membership as well as an affidavit from his mother also identifying his clan membership. The RAD found the identity witness to be credible and also assigned considerable weight to the affidavits provided by the Appellant's mother. [77] As a result of the above analysis, the RAD finds, on a balance of probabilities, that the Appellant has established that he is a member of the XXXX minority clan. The claim for asylum in the U.S. [78] The RPD found the Appellant's testimony regarding his U.S. claim, that he did not know why his claim was rejected and that he had failed to ask anyone, to be not believable. The RPD drew a negative inference as to the Appellant's credibility because the Appellant took no interest in his claim in the U.S. [79] The Appellant pleads that the RPD's consideration of the Appellant's response to the rejection of his U.S. asylum claim is an irrelevant consideration, and thus an error in law. The Appellant argues that the RPD failed to consider the Appellant's fear of Al-Shabaab, who targets people who return from Western countries. [80] For the reasons provided in the following two paragraphs, the RAD, respectfully, cannot concur with the RPD's findings. [81] As the Appellant argued, his lack of knowledge regarding the reason for the denial of his claim in the U.S. is irrelevant to his claim for refugee protection in Canada. [82] Nevertheless, the RAD has considered the eighty-one pages of evidence provided by the Appellant from his U.S. claim.43 The RAD notes that the Appellant, who was detained in the U.S., did not have the assistance of a counsellor or attorney when he completed his application for asylum in the U.S.,44 nor when an interview of one and one-quarter hours was conducted by an immigration officer.45 Not only was his claim denied but the Appellant was ordered removed to Somalia and denied withholding of removal. The RAD has kept in mind that the Appellant is an illiterate man with little or no experience dealing with government officials. The RAD finds that the Appellant was in a disadvantaged situation and, thus, the RAD does not draw any negative inference. [83] While the RAD is not bound by the Appellant's claim in the U.S., the RAD wishes to note the following regarding this claim: a) US officials found the Appellant had established a credible fear of persecution.46 b) The Appellant's allegations in the U.S. are consistent with those he provided to Canadian officials. The RAD has noted above that U.S. officials found that the Appellant had established his identity. c) The Appellant provided an affidavit from XXXX XXXX XXXX, a native of Somalia and citizen of the U.S., who attested to the Appellant's identity.47 Mr. XXXX states that he was a friend of the Appellant's father. According to the recording of the hearing before the RPD, the Appellant testified that it was a friend of his father, residing in the U.S., who provided him contact with his mother after she relocated to Kenya. However, the Appellant was not asked any information about this man at his hearing before the RPD. [84] The RAD, therefore, assigns some weight to the documents from the Appellant's claim in the U.S. The Appellant's fear [85] The RPD stated in its decision that, when it asked the Appellant what he could possibly be afraid of if he returned to Somalia after twenty-two years, the Appellant merely repeated what had happened to him in 1993. The RPD found that the Appellant was singularly uninformed about the current political situation in Somalia. [86] The RPD found that even if it was wrong in finding the Appellant had not established his identity, that the Appellant did not provide credible and trustworthy evidence as to his fear of persecution in Somalia. [87] The Appellant pleads that the RPD failed to take into consideration the totality of his claim, and in particular, information in his BOC form where he stated that he fears Al-Shabaab, who targets people who have lived in Western countries because they are considered traitors and spies. [88] The RAD is not able to support the RPD's credibility findings despite the RPD's advantage of having heard the Appellant's testimony in the hearing room. The RAD's reasons follow. [89] The Appellant's knowledge of the current political situation in Somalia, or lack thereof, does not undermine his credible fear of his return to Somalia. [90] In any event, the RAD finds that the RPD has neglected to consider the totality of the Appellant's evidence in this regard. The following are a number of examples found in the recording of the hearing before the RPD. a) When the RPD asked the Appellant if he was aware that African troops had taken control of XXXX in 2012, the Appellant responded in the affirmative. The Appellant testified further that he had heard via the media that there was fighting in Juba but he did not know who was in control now. b) When the RPD asked the Appellant whom he feared, he testified that he feared members of the Marehan and XXXX clans. When asked if the XXXX clan was in Somalia, the Appellant testified that it was the Marehan clan who caused his own clan the biggest problems, but also that his cousin had informed him that the XXXX are now in charge in the Juba area. When asked to clarify, the Appellant testified that the XXXX have an army in the area and are killing people. The RPD then asked the Appellant how far the Juba area is from his home town. The Appellant responded that he left his home town when he was a boy but had been told that his home town is in XXXX c) At one point in the hearing the RPD referred the Appellant to paragraph 29 in his BOC narrative, in which he alleges that he cannot return to Somalia because his life would be in danger from majority clans. The RPD then asked the Appellant to identify the majority clans he feared. The Appellant testified that he feared the Marehan clan who had caused problems for his family and, when asked if the Marehan are the majority clan in the Juba area now, the Appellant responded in the affirmative. d) When the RPD asked the Appellant to confirm that he feared to return to Somalia, he did so and then testified that he also feared Al-Shabaab because they are Sunni Muslims and he is Sufi Muslim e) When counsel asked the Appellant if he was aware of the situation for people returning from the West to Somalia, the Appellant testified that he had been told and also heard on the news that Al-Shabaab kills such people. f) When counsel reminded the Appellant that the RPD asked him why he had reason to fear returning to Somalia after twenty-two years, the Appellant repeated his testimony that he feared being killed by Al-Shabaab and that people from his minority clan are still being killed by majority clans. The Appellant testified that he does not read or write but he heard on the BBC news that the Somali government cannot guarantee his safety. [91] The RAD finds that the Appellant is aware of the situation in Somalia with regards to members of his minority clan, those who practice the Sufi Muslim faith, and those returning from Western countries. [92] The fact that the Appellant left Somalia in 1993 does not alter his membership in the minority XXXX clan. [93] Having heard the recording of the hearing before the RPD, the RAD finds the Appellant's testimony was given in a straightforward and spontaneous manner. He made no apparent attempts to embellish his claim. There were no obvious contradictions between his oral testimony and information contained in his BOC. The RAD finds that the Appellant is a credible witness. Objective Basis for the Claim [94] The RAD will now consider the evidence with respect to country conditions in Somalia. [95] The RAD first refers to the three documents from the NDP cited by the Appellant in his appeal.48 These documents clearly indicate that members of minority clans in South and Central Somalia live under constant mistreatment and are likely to face violence. The documents also indicate that Al-Shabaab does not tolerate any interpretation of Islam that deviates from its own strict interpretation, in particular the Sufi religion. Additionally, Al-Shabaab kills returnees to Somalia. Since the Appellant left Somalia in 1993 there has been a rising pattern of lawlessness carried out by Al-Shabaab. [96] Numerous other documents provide evidence that the conditions in Somalia are such that the Appellant would be at risk if he were to return to Somalia. Examples follow. [97] The Operational Guidance Note from the United Kingdom Home Office indicates that minority groups, often lacking armed militias, continue 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 continue to live in deep poverty and suffer from numerous forms of discrimination and exclusion.49 [98] A Report from the United Nations High Commissioner for Refugees (UNHCR) states that armed clashes continue outside of Mogadishu and in rural areas in Southern and Central Somalia which remain under Al-Shabaab control. In addition, areas under the control of the SFG, including Mogadishu, are often affected by attacks and other forms of violence.50 [99] A further report from the UNHCR,51 regarding the viability of returning to Somalia, indicates the following: the security situation in many parts of Southern and Central Somalia continues to be volatile and the capacity of the State and its institutions to protect civilians residing there remains weak, including at local level.5 Protracted armed conflict has had devastating consequences, including massive displacement, weakened community structures, gross human rights violations and the breakdown of law and order. Large parts of Southern and Central Somalia remain under the effective control of non-state armed groups. [100] The Appellant's evidence is consistent with and is not contradicted by country condition documents. Thus, there is an objective basis to support the Appellant's subjective fears. DISPOSITION [101] After carefully considering the RPD decision and carrying out its own analysis of the record, the RAD determines that the RPD erred in law in its identity findings and in its credibility findings, as submitted by the Appellant. Based on its own analysis of the record, the RAD finds that the Appellant has established, with credible evidence, a well-founded fear of persecution in Somalia based upon his race, that is, the XXXX minority clan. CONCLUSION [102] Pursuant to section 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee, as he has a well-founded fear of persecution on the basis of his race. This appeal is allowed. (signed) "Lesley Mason" Lesley Mason June 28, 2016 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, para. 13.3(a). 3 Raza, para. 16. 4 Raza, para. 13.5(b). 5 Raza, para. 13.5(a). 6 Raza, para. 13.3(b). 7 Raza, para. 13.5(a). 8 Exhibit P-2, Appellant's Record, p. 12. 9 Ibid., p. 13. 10 Warsame, Mohamed Dirie v. M.E.I. (F.C.T.D., no. A-758-92) Nadon, November 15, 1993; Olojo, Omolara Abimbola v. M.C.I. (F.C.T.D., no, IMM-3918-96), Lutfy, November 6, 1997; Kabashi, Sokol v. M.E.I. (F.C.T.D., no. IMM-3489-97), Gibson, April 20, 1998. 11 Mpoli, Noellie Ngoya v. M.C.I. (F.C.T.D., no. IMM-2098-02), Noël, April 3, 2003. 12 Exhibit RPD-1, RPD's Record, exhibit 3, National Documentary Package (NDP) for Somalia (July 17, 2015), item 3.8, pp. 158-186, RIR SOM104486.FE. 13 Exhibit RPD-1, RPD's Record, exhibit 3, NDP for Somalia (July 17, 2015), item 1.5 14 Exhibit P-2, Appellant's Record, p. 12. 15 Exhibit RPD-1, RPD's Record, p. 98, questions 4.25 and 4.26. 16 Exhibit RPD-1, RPD's Record, p. 13, question 1c). 17 Ibid., p. 15, question 2e). 18 Ibid., p. 40, questions 7 and 8 respectively. 19 Ibid., p. 21, para. 6. 20 Ibid., p. 22, paras 6 and 7. 21 Exhibit RPD-1, RPD Record, p. 238. 22 Fajardo, Mercedes v. M.E.I. (F.C.A., no. A-1238-91), Mahoney, Robertson, McDonald, September 15, 1993. Reported: Fajardo v. Canada (Minister of Employment and Immigration) (1994), 21 Imm. L.R. (2d) 113 (F.C.A.). 23 Warsame, Mohamed Dirie v. M.E.I. (F.C.T.D., no. A-758-92) Nadon, November 15, 1993; Olojo, Omolara Abimbola v. M.C.I. (F.C.T.D., no, IMM-3918-96), Lutfy, November 6, 1997; Kabashi, Sokol v. M.E.I. (F.C.T.D., no. IMM-3489-97), Gibson, April 20, 1998. 24 Mpoli, Noellie Ngoya v. M.C.I. (F.C.T.D., no. IMM-2098-02), Noël, April 3, 2003. 25 Exhibit RPD-1, RPD Record, p. 101. 26 Fajardo, Mercedes v. M.E.I. (F.C.A., no. A-1238-91), Mahoney, Robertson, McDonald, September 15, 1993. Reported: Fajardo v. Canada (Minister of Employment and Immigration) (1994), 21 Imm. L.R. (2d) 113 (F.C.A.). 27 Exhibit RPD-1, RPD Record, p. 238. 28 Exhibit RPD-1, RPD Record, p. 45. 29 Ibid., p. 18, question 5(b). 30 Ibid., p. 236. 31 Abdullahi, Ibrahim v. M.C.I. (F.C., no. IMM-851-15), Hughes, October 14, 2015, 2015 FC 1164. 32 Ibid. 33 Exhibit RPD-1, RPD's Record, p. 235. 34 Exhibit RPD-1, RPD's Record, p. 235. 35 Ibid., p. 28, question 8. 36 Ibid., p. 21. 37 Ibid., p. 95, question 2.9. 38 Ibid., p. 77, paragraph 4. 39 Ibid., p. 97, question 4.6. 40 Ibid., p. 43. 41 Ibid., p. 21, paragraph 1. 42 Exhibit RPD-1, RPD's Record, exhibit 3, NDP for Somalia (July 17, 2015), item 13.9, pp 158-186. 43 Exhibit RPD-1, RPD's Record, pp. 77-157. 44 Ibid., p. 94. 45 Ibid., pp. 99-105. 46 Exhibit RPD-1, RPD's Record, p. 97. 47 Ibid., p. 77. 48 Exhibit RPD-1, RPD's Record, exhibit 3, NDP for Somalia (July 17, 2015), items 1.12, 7.9, 13.13, pp 158-186. 49 Exhibit RPD-1, RPD's Record, exhibit 3, NDP for Somalia (July 17, 2015), item 1,7, section 3.11.3. 50 Ibid., item 1.10. 51 Ibid., item 1.11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-03798