TB9-21733

RAD File / Dossier de la SAR : TB9-21733 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision November 12, 2019 Date de la décision Panel Daniel Tucci Tribunal Counsel for the person who is the subject of the appeal Tina Hlimi Barrister and Solicitor Conseil de la|des personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (Appellant), is a citizen of Somalia appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. She requests that the Refugee Appeal Division (RAD) set aside the RPD's decision under section 111(1)(b) and substitute the RPD determination with a determination that should have been made or in the alternative, that the RAD set aside the decision of the RPD and refer the matter back for re-determination before a different Panel under section 111(1)(c). DETERMINATION OF THE APPEAL [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),1 the Panel confirms the determination of the RPD. The Panel therefore finds that the Appellant is not a Convention2 refugee or a person in need of protection. BACKGROUND [3] The Appellant is a citizen of Somalia. While in Somalia, she ran a XXXX shop. The XXXX shop was frequented by the police. The Appellant played music at her XXXX shop and some patrons chewed Khat. The appellant and her husband were threatened by Al Shabab because she co-mingled with men; the XXXX shop was frequented by the police and some patrons chewed Khat. These actions by the Appellant were opposed by Al Shabab. The Appellant received threatening letters which led her to close down her XXXX shop. [4] The Appellant re-opened her shop one year later because of a drought in Somalia. Her husband was unable to sell his produce because of the drought. The Appellant states that she had no choice but to reopen her XXXX shop to support her family. The Appellant's brother and mother were targeted by Al Shabab. They were violently assaulted in her home. This led the Appellant to decide to leave Somalia. The Appellant fled to Kenya. She remained there for a period of time until her aunt was able to sell a piece of land. The Appellant used the proceeds of this sale to hire a smuggler to get her to the United States. The Appellant obtained a United States visa which she used to travel to the United States. Once in the United States, the Appellant travelled to Canada where she made a refugee claim. ISSUES [5] The RPD Member found that the determinative issues were the Appellant's national identity as well as credibility. The RPD Member determined that the Appellant had not provided sufficient credible or trustworthy evidence to establish her claim under either section 96 or 97 of the IRPA. The Appellant argues that the Member erred in her assessment of her tribal affiliation, religion, identity and credibility. The Appellant is asking that the RAD Panel set aside the RPD decision and substitute that decision with a finding that the Appellant is a Convention refugee or person in need of protection or in the alternative, that the RAD set aside the decision of the RPD and refer the matter back to the RPD for re-determination before a different Panel. NEW EVIDENCE AND ORAL HEARING [6] The Appellant's Counsel has submitted new evidence under section 110(4) of the IRPA. This includes an Affidavit from her husband. The Appellant states that her husband did not have the financial means to obtain and submit an Affidavit for the Appellant's hearing. Moreover, the Appellant states that it could not have been reasonably expected for her to present this evidence. [7] The Panel finds that the evidence presented by the Appellant under section 110(4) of the IRPA does not meet the criteria to be admitted in this appeal. The letter post-dates the RPD decision rejecting her refugee claim. The Appellant states that her husband was unable to obtain an Affidavit to be provided in support of her claim because of financial constraints. The Panel finds that the form of the husband's evidence was not required to be in the form of an Affidavit. The best evidence rule applies in cases before the IRB. The Panel could accept a letter from the Appellant's husband and the Panel would then assign the appropriate weight to the letter. [8] The issue with respect to the letter is not the form but the content of the letter. The Panel finds that the Appellant provided a letter from her husband in support of her hearing. The RPD Member assessed the letter and concluded that it was vague and did not address the core allegations made by the Appellant. The onus is on the Appellant to establish her claim. In this case she provided a letter from her husband. The RPD Member found the letter to be vague and unhelpful in establishing the Appellant's claim. The Panel finds that the presentation of evidence under section 110(4) is not to be used to perfect the evidence presented by the Appellant at the RPD hearing. The Panel disagrees with the Appellant that she could not anticipate that this would be an issue in her claim. The Appellant was aware that her identity and credibility would be issues that she would be required to establish at her RPD hearing. She was aware of this as she presented the husband's original letter in support of her claim. The Panel finds that the Appellant could have presented a more detailed letter in support of her claim. In addition, the Panel finds that even if it were to accept the Affidavit, it would not have been determinative of her claim. The Panel therefore rejects the admission of the new evidence presented by the Appellant. SCOPE OF RAD APPEAL [9] When reviewing the RPD decision, the Panel is required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. The Panel may defer to the RPD's credibility assessment of oral testimony, if the Panel finds that the RPD had a meaningful advantage in the circumstances. Reasons will be provided in the Panel's analysis if the Panel finds that the RPD had a meaningful advantage. ANALYSIS OF THE MERITS OF THE APPEAL [10] The Panel has reviewed the evidence in the record and has listened to the recording of the RPD hearing. The Panel has made its own independent assessment of the Appellant's evidence and testimony at the RPD hearing. The Appellant's Counsel raised the issue of interpretation at the RPD hearing. The Appellant's Counsel notes that as a result of a scheduling issue, there was no interpreter available at the RPD hearing. The Appellant's Counsel states that this impacted the Appellant's ability to present her case and erroneously led to a finding by the RPD Member that the Appellant was not credible. The Panel disagrees. The Panel finds that the Appellant was able to present her case before the RPD and there was no breach of procedural fairness in this case as the Appellant was given the opportunity to adjourn the hearing but decided to proceed with the hearing after consulting with her Counsel. [11] The Appellant's Counsel raised an issue with respect to the RPD Member in combination with the fact that the hearing proceeded without an interpreter. The Appellant's Counsel raised a concern about the newness of the RPD Member hearing the case. The Appellant's Counsel suggested that the RPD Member may not have been as well-versed as more senior RPD Members with respect to Somalia. The Panel finds this to be speculative. The Panel finds that the RPD Member provided a detailed analysis based on the evidence before her. The Panel gives this suggestion no weight in the analysis of the RPD Member's decision. [12] The Appellant's Counsel argues that the RPD Member erred in her analysis and conclusions regarding the Appellant's clan membership and religion. The Panel disagrees. The Appellant was asked about Sufism. The Panel finds that the Appellant was vague with respect to her explanation of her clan and religion. The Appellant was unable to provide details of her religion. The Panel finds that the Appellant was unable to provide a basic understanding commensurate with her attendance at a Koranic school for seven years. The Panel finds that the Panel was correct in drawing a negative inference from the Appellant's superficial and vague knowledge of Sufism. [13] The Panel further finds that the Appellant provided vague information about her clan and sub-clan. The Panel agrees with the RPD Member that clan membership in Somalia is a central factor in the life of Somalis. The objective evidence corroborates this. The Appellant's inability to provide details of her clan membership negatively impacts the Appellant's overall credibility. [14] The Appellant's Counsel argues that the RPD Member erred drawing inference from the Appellant's interview in XXXX 2018 when she stated that she could obtain a birth certificate. The Appellant did not provide a birth certificate to assist in establishing her identity. When asked about this at the hearing, she stated that she mentioned the possibility of obtaining a birth certificate as a hypothetical. The Panel agrees that the Appellant's explanation for failing to provide a birth certificate is not reasonable. The Panel finds that there is no indication that the Appellant was speaking hypothetically when she mentioned the possibility of obtaining a birth certificate. The Panel further finds that the lack of an interpreter at the time of the interview was not a reasonable explanation for her failure to produce a birth certificate. The Panel draws a negative inference from the Appellant's unreasonable explanation for not producing a birth certificate at the RPD hearing. [15] The Appellant's Counsel argued that the RPD erred in her assessment of the Appellant's testimony with respect to her Kenyan passport. The Panel disagrees. The Appellant was in possession of a Kenyan passport when she appeared at the United States Embassy for her interview to obtain a visa. The Panel finds it to be a reasonable inference that the United States official would have assessed the genuineness of the passport when he interviewed the Appellant. The Panel further finds that it is reasonable to assume that the visa officer determined that the passport was genuine. The Appellant testified that she was provided educational documents by the smuggler that were presented to United States officials in support of her visa. The interview was conducted in English. The Appellant stated that she learned English over a two-year period in Somalia. The Panel finds that the Appellant's testimony with respect to the passport and the visa interview at the United States Embassy was vague. The Panel finds that the Appellant on the one hand tried to explain that her English was good enough to review the educational documents that were in English to convince the visa officer that her application for a United States visa was legitimate on the one hand and she argues that issues arose in the course of her interview in Canada because her English is poor. The Panel draws a negative inference from the Appellant's vague responses about her passport and the United States' visa process. [16] The Panel gives the witness testimony of Mr. XXXX little weight. He states that he visited the XXXX shop owned by the Appellant in XXXX 2015. He could not provide the number of times he visited the XXXX shop only stating that it was open for one month. He further stated that he met the Appellant by chance in Canada. The Panel finds that the testimony of Mr. XXXX is insufficient to establish the allegations made by the Appellant nor is it sufficient to establish her identity even when considered with the other evidence provided by the Appellant. [17] The Appellant testified that she began receiving threats from Al Shabab approximately one month after the XXXX shop opened. The Appellant was so fearful for her life that she decided to close up her shop. She then decided to reopen the shop a year later when her husband could not sell his produce. The Appellant then received additional threats from Al Shabab. The Appellant stated that her husband told her to ignore the threats as they were not serious. The Panel finds that the Appellant's testimony is internally contradictory. The Panel finds that the Appellant is not credible on this point as she took the threats in 2015 seriously enough to close her shop then for some unexplained reason she did not take the threats seriously a year later. The Panel draws a negative inference from the Appellant's contradictory evidence. [18] The Panel finds that the Appellant provided contradictory evidence with respect to why she was targeted by Al Shabab. In her testimony she said that the threats were made because men chewed Khat at the XXXX shop and because they believed women should be at home. She subsequently stated that the reason for the threat was because she was of the Sufi faith. In her Basis of Claim Form she stated that she was threatened because she played music and served police officers. The Appellant did not provide a reasonable explanation for the contradictions of her evidence. The Panel draws a negative inference from these contradictions. [19] The Appellant was asked to explain the incident that led to the assault of her family members. The Appellant explained that all previous threats by al Shabab were made at the XXXX shop. She stated that Al Shabab went to her home at 7 p.m. in XXXX 2018. The Appellant was asked to explain why she thought that the Al Shabab members went to her home rather than the XXXX shop. She stated that the Al Shabab members were scared to enter the XXXX shop because some police were present in the shop. The Appellant stated that when Al Shabab went to her home, they asked her family about her whereabouts. The Appellant was asked to explain why Al Shabab would go to her home looking for her if they knew she was at the shop. The Appellant stated that sometimes she went home early. The Panel finds that the Appellant is not credible on this point. The Panel finds that the Appellant's explanation as to why Al Shabab went to her home when they knew she was at the XXXX shop is not reasonable. The Panel draws a negative inference from the Appellant's unreasonable explanation. The Panel draws a negative inference from this and it raises serious doubts with respect to the assault by Al Shabab of her parents. [20] The Panel agrees with the RPD Member's assessment of the letter provided by the Appellant's husband. The Panel finds that the letter is very vague and provides no detailed information about the issues facing the Appellant in Somalia. The Panel finds that the letter is of little value for the Panel as it does not provide evidence of the events in Somalia. [21] The Panel gives little weight to the evidence provide by the Affiant. He provides little information that is helpful to the Panel with respect to the allegations made by the Appellant regarding Al Shabab. He did not provide any information on the clan membership and religion of the Appellant and although he claims to know the Appellant's family, he provided no details of the said family. [22] The Appellant provided a copy of the police report that was filed. The Panel gives this document little weight. The Appellant acknowledged that her aunt filed the police report on her behalf. The information provided to the police came from the Appellant. As the Panel finds serious credibility concerns regarding the Appellant's description of the events surrounding the Al Shabab assault on her family, the Panel gives this document little weight. The Panel also gives the marriage certificate little weight as it provides little value with respect to the Appellant's citizenship, clan affiliation and place of birth. The Panel also gives little weight to the XXXX XXXX document as there is no knowledge of the Appellant outside of Canada and the fact that the Appellant can speak and write Somali does not provide sufficient evidence to establish her identity. [23] Having considered all the evidence, the Panel finds that the Appellant has not provided sufficient credible and trustworthy evidence to establish her identity. The Panel therefore finds that she has not established that she faces a serious risk of persecution in Somalia nor that she is a person in need of protection. The Panel therefore confirms the decision of the RPD and rejects her claim under section 96 and 97 of the IRPA. REMEDIES [19] For all these reasons, the Panel confirms the decision of the RPD and rejects her claim under both section 96 and 97 of the IRPA. (signed) "Daniel Tucci" Daniel Tucci November 12, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-21733 RAD.25.02 (April 04, 2019) Disponible en français 9 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.25.02 (April 04, 2019) Disponible en français