TB5-01610

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 : TB5-01610 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 1, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lani Gozlan 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), a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to overturn the negative decision of the RPD and replace it with a positive finding on the Appellant's behalf or in the alternative to refer the matter back to the RPD for re-determination. DETERMINATION [2] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a Convention refugee. BACKGROUND [3] The Appellant alleged before the RPD that, as a 29 year old born in Abu Dhabi (United Arab Emirates - U.A.E.) to Somali parents, he has no right of abode in the U.A.E. and has never been to Somalia where he is a citizen because of his birth parents. The Appellant fears that he will be targeted by the terrorist group, Al Shabaab, a group which he alleges was responsible for an attack on his parents' home which resulted in the Appellant's uncle being killed and his father being assaulted. Although the Appellant testified that he has never been to Somalia, he fears that as a member of the minority clan, the XXXX, he would not have the clan protection from Al Shabaab which larger clans can offer. The Appellant made no allegations of fear in Djibouti in the Appellant's Basis of Claim (BOC) but at the hearing for the first time, the Appellant indicated that he was at risk in Djibouti because of his father's enemies and because of his (Appellant's) ethnicity. [4] The Appellant's application for refugee protection was heard on October 20, 2014 and December 29, 2014 with a final decision being rendered on January 14, 2015. The decision dealt with the major issue of identity and citizenship. The Minister had intervened and provided evidence1 (passport) that the Appellant was a citizen of Djibouti. The Minister further showed how this passport was used by the Appellant to make his visa application in Abu Dhabi on XXXX XXXX, 2013 and when he entered the United States of America (USA) on XXXX XXXX, 2014. The Minister had pointed out to the RPD that the Appellant had sworn in his (BOC) form where the Appellant had stated that his passport was a false one obtained for him by his father. There was great discussion and debate on this issue and the issue of exclusion due to the fraudulent use of the passport however, in the long run, the RPD decided that the passport was not fake and that the Appellant, more likely than not, was a citizen of Djibouti and that Djibouti should be the proper country of reference. As the Appellant had disclosed insufficient evidence of any real risk to him in Djibouti, the RPD found that the Appellant would not face persecution upon his return to Djibouti. [5] The Appellant submits that the new evidence presented will establish the Appellant's identity as a citizen of Somalia and of no other country. [6] The Appellant submits that the RPD erred in its credibility findings and in its considerations of the evidence before it. Specifically, the RPD found credibility issues with the Appellant's explanation of his lack of understanding of the meaning of citizenship. The RPD failed to give due weight to the documentary evidence2 presented which shows his parents are Somali citizens and that show the Appellant as a Somali citizen. ANALYSIS Admissibility of Evidence Submitted on Appeal [7] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] Even where a document meets the test in Section 110(4), this does not require the RAD to admit it into evidence without any further consideration. In Raza,3 the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA Section 110(4), it is based on the very similar wording of Section 113(a). The Court held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.4 In Iyamuremye, the Federal Court accepted the RAD's application of the factors in Raza to new evidence submitted on an appeal under IRPA.5 [9] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.6 [10] In Raza, para. 16, the Federal Court of Appeal endorsed the principle that a document's "newness" cannot be tested solely by its date of creation; what is important is the event or circumstance sought to be proved by the evidence. [11] The evidence being disclosed by the Appellant as "new" evidence is as follows: [12] An affidavit7 sworn by the Appellant's father on February 26, 2015, in Nairobi, Kenya. The affidavit swears that the Appellant's father has no Djibouti citizenship and is a citizen of Somalia and no other country. The affidavit explains why the father was unable to obtain Djibouti citizenship. [13] This document could have been provided prior to the hearings however; as is sworn to in the document, the father of the Appellant said that he had sent this information earlier to his son but for an unknown reason, his son did not receive the package. The original package was sent by mail from Kenya. It is not unreasonable to believe that the mail may have gone astray. After the hearing and after learning that the Appellant had not received the original package, the father faxed the document to his son. [14] The RAD sees this document as being new in as much as it answered questions put to the Appellant at the hearing. Although one might expect such identity questions as were asked to be asked at a refugee hearing, the RAD is taking the broadest look at this evidence. It is material to the identity of the Appellant. It is relevant to the claim. The only issue the RAD sees in accepting this evidence is the credibility of it. It has been said that such a document sworn by so close a relative as one's father may lack credibility due to the personal desire of a relative to see the refugee claimant succeed. The RAD has considered this issue and looks for guidance from the Courts. In Maldonado8 the Court stated: "Where [a claimant] swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness." [15] Even though the evidence in question is not testimony of the Appellant, The RAD believes that Maldonado is still applicable here. The RAD has no valid reason to disbelieve the sworn affidavit of this witness. The fact that the witness is the father of the Appellant does not make that witness a liar. Even though, as the RPD wrote, in Ferguson,9 Justice Zinn did write that such evidence needs other corroborative evidence in order for such evidence to carry weight in the decision making of a trier of fact, the Hon. Justice did not suggest a lack of credibility of the evidence but only that it is uncorroborated. The RAD therefore finds this evidence to be from a credible source. As it is material, relevant, credible and new, the RAD accepts this as new evidence for this claim. The RAD will look at the case to see whether or not there is other evidence which will corroborate this new evidence and the RAD will assign weight to the evidence based on that search. The new evidence is allowed. Role of the RAD [16] Counsel has made some submissions in regard to the role that the RAD plays in the review of an RPD decision. The RAD finds that the recent Federal Court decision, in Huruglica,10 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. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the [Appellant] is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [17] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. The RAD will recognize and respect the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. The RPD's Findings [18] The Appellant argues that the new evidence presented will establish the Appellant's identity as a citizen of Somalia and of no other country. [19] The RAD has perused the evidence which was on file before the RPD. Included are the following documents which have been attached to the Appellant's record of appeal. [20] Appellant's birth certificate, this document, through a certified translator, clearly identifies the Appellant's parents as Somali. [21] Appellant's parents' marriage certificate, this document, issued by the XXXX Court in Abu Dhabi clearly identifies the Appellant's parents as Somali. [22] Student Medical Record, this document clearly identifies the Appellant as a Somali while he was a student between 1991 and 2004. [23] The RAD finds that the new evidence is corroborated by the above evidence and will therefore assign significant weight to the affidavit in the issue of identity. The RAD finds that, on a balance of probability, the Appellant is a citizen of Somalia and of no other country. [24] The Appellant argues that the RPD erred in its credibility findings and in its considerations of the evidence before it. Specifically, the RPD found credibility issues with the Appellant's explanation of his lack of understanding of the meaning of citizenship. The RPD failed to give due weight to the documentary evidence11 presented which shows his parents are Somali citizens and that show the Appellant as a Somali citizen. Now, with further corroboration in the new evidence, the RAD finds that the RPD did err in its assessment of the evidence but the RAD recognizes that the RPD did not have the sworn affidavit to consider at the hearing. Risk Factors [25] The RAD has considered the evidence and has decided that the Appellant is a citizen of Somalia and that Somalia is the country of reference in this case. That being the decision, the RAD must now examine the actual claim against Somalia. [26] The RAD has perused this entire file, carefully and can find no evidence of persecution of this Appellant at any time, in any place. In fact, the Appellant has sworn testimony that he had never been to Somalia even though he is a citizen of that country. [27] The Appellant argues that as a member of a minority group, he is at risk from majority clans as well as from Al Shabaab. It is true, according to the documentary evidence in the National Documentation Package (NDP),12 item 2.1, that minority clans continue to be disproportionately subjected to killings, torture, rape and other crimes while many minority communities continue to live in deep poverty and to suffer many forms of discrimination. Disposition [28] The RAD has found that the RPD decision as it is cannot stand. The evidence before the RAD strongly suggests that this Appellant is a citizen of Somalia and is of the minority clan, XXXX. The NDP13 says the following: National/Racial/Ethnic Minorities More than 85 percent of the population shared a common ethnic heritage, religion, and nomad-influenced culture. In most areas the predominant clan excluded members of other groups from effective participation in governing institutions and subjected them to discrimination in employment, judicial proceedings, and access to public services. Minority group clans included the Bantu (the largest minority group), Benadiri, Rer Hamar, Brawanese, Swahili, Tumal, Yibir, Yaxar, Madhiban, Hawrarsame, Muse Dheryo, Faqayaqub, and Gabooye. Custom restricted intermarriage between minority groups and mainstream clans. Minority groups, often lacking armed militias, continued to be disproportionately subjected 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 continued to live in deep poverty and to suffer from numerous forms of discrimination and exclusion. [29] The RAD is obliged to take a forward looking view at the patriating of this Appellant to Somalia. This Appellant has never been to Somalia, does not speak the language to any degree, has no family or clan support should he go there and would very much appear to be a foreigner in his homeland. The likelihood is that he will suffer discrimination as itemized above (NDP 2.1) and that discrimination may arise to the level of persecution as foreseen in the IRPA. The RAD notes that it is not satisfied with the question of exclusion and is unsure of the future for this Appellant in Somalia. All the RAD can say at this point is that the decision of the RPD cannot remain as it stands. [30] The RAD finds that the Appellant, a citizen of Somalia would face a serious possibility of persecution due to his ethnicity and his "foreignness" should he be patriated to Somalia. CONCLUSION [31] 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. (signed) "David Lowe" David Lowe June 1, 2015 Date 1 Exhibit RPD-1, RPD's Record, Copy of Djiboutian passport #XXXX in the name of XXXX XXXX XXXX, born XXXX XXXX, 1985, at pp.187 2 Exhibit P-2, Appellant's Record, at pp. 88-95. 3 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 4 Ibid., Raza, paras. 13-15. 5 Iyamuremye, Oscar v. M.C.I. (F.C., No. IMM-5282-13), Shore, May 26, 2014; 2014 FC 494, at para. 45. 6 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 7 Exhibit P-2, Appellant's Record, Memorandum, at pp. 100-101. 8 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 9 Ferguson, Mitchell Marie v. M.C.I. (F.C., no. IMM-1356-08), Zinn, September 23, 2008, 2008 FC 1067. 10 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 11 Exhibit P-2, Appellant's Record, at pp. 88-95. 12 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Somalia (March 14, 2014). 13 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Somalia (March 14, 2014), item 2.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-01610