MB7-17694

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. / No de dossier de la SAR MB7-17694 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 Montreal, Quebec Appel instruit à Date of decision March 16, 2018 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal David Matas Conseil de la personne en cause Designated representative N/A Représentante désignée Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] Mr. XXXX XXXX XXXX XXXX, the Appellant, a citizen of Somalia and of Djibouti, is appealing the negative decision rendered in his case by the Refugee Protection Division (RPD). He presented evidence, but he did not ask for a hearing. He submitted that the RPD failed to take into account that Djiboutian law does not allow the grant of its nationality to a person who already has another nationality. [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely that Mr. XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96, or a "person in need of protection" within the meaning of section 97 of IRPA. I. BACKGROUND A. Summary of Alleged Facts [3] In his BOC, the Appellant declared that he is a citizen of Somalia where he is persecuted because of his minority clan status, Arab Salah tribe, and because Al Shabab, a terrorist group, targeted him.1 Before the RPD, the Appellant, then identified as "the claimant", introduced documents into evidence.2 B. Minister's Intervention before the RPD [4] The Minister of Public Safety (the Minister) intervened at the RPD and disclosed documentary evidence.3 [5] In his Notice of Intent to intervene, the Minister referred, among other things, to the results of the biometric immigration information shared with the United States of America (USA), which showed that the claimant holds a passport from Somalia and a passport from Djibouti. He further submitted that the claimant has not established his identity and that there were reasons for considering that he lacks the credibility to substantiate his claim.4 C. RPD Decision [6] The hearing before the RPD was held on June 12, 2017, and the decision rejecting the refugee protection claim was rendered at the conclusion of the hearing. [7] The RPD found that the claimant established his identity as a national of Somalia considering his testimony, a passport of Somalia, a birth certificate and a national identity card. The RPD also found that the claimant has also the citizenship of Djibouti and that he does not have a well-founded fear of persecution and does not face a personal risk of harm in this country.5 II. GROUNDS OF APPEAL AND DECISION SOUGHT [8] In his memorandum, the Appellant has submitted that the RPD erred in failing to take into account that Djiboutian law does not allow the grant of its nationality to a person who already has another nationality. [9] Based on an analysis of the 1981 and the 2004 laws on citizenship in Djibouti, the Appellant argued that a person with a foreign nationality cannot subsequently acquire the nationality of Djibouti, but that a person with the nationality of Djibouti can subsequently acquire a foreign nationality. In his own case, the date of issue for the passport from Djibouti is XXXX XXXX, 2015, and the date of issue of the passport from Somalia is XXXX XXXX, 2014. It follows that, legally, according to Djiboutian law, he could not be a citizen of Djibouti. [10] Concerning the passport from Djibouti, it sets out, as the RPD found, prima facie rebuttable evidence. The Appellant argued that the RPD should have considered all the evidence to determine whether the prima facie rebuttable evidence set out in the passport was rebutted. Since the RPD did not consider the Djiboutian citizenship law, there is an error. [11] The Appellant also argued that, ultimately, his status as a citizen of Djibouti must be determined by the Government of Djibouti and not by the Immigration and Refugee Board (IRB). He invited the RAD to ask the Specific Information Research Unit (SIRU) to contact and ask the Government of Djibouti to inform the IRB if he is a citizen of Djibouti or not. [12] The Appellant further submitted that the information provided in support of his claim as well as his oral testimony show that he has a well-founded fear of persecution in Somalia, that he is a person in need of protection and that the RAD can make that determination, which has not been made by the RPD.6 III. EVIDENCE PRESENTED ON APPEAL A. A letter dated August 17, 2017, and signed by the president of an organization [13] The Appellant made an application, under Rules 29 and 37 of the RAD, to file an additional document in his appeal7. In his affidavit included in this application, the Appellant declared that he did not anticipate that Djiboutian nationality would be an issue at his refugee claim and that it was only when he received the decision that he realized the need to obtain documentation on the issue. He also declared that there is no Embassy of Djibouti in Canada, that the Embassy of Djibouti in USA did not answer his e-mails and his phone calls, so he contacted an organization called "La coalition djiboutienne", which sent him a letter included in his application. He also declared that the members of his family in Somalia were not able to obtain any document for him from the Government of Djibouti. The letter is dated August 17, 2017, signed by the president of this organization, confirming that the Appellant is not a Djiboutian citizen. [14] In his memorandum which is included in his application, the Appellant argued that this letter is showing that he is not a citizen of Djibouti and that, as a forthright claimant, he did not realize the value of corroborating evidence, prior to the decision which rejected his claim. He also argued that this letter, in conjunction with prior evidence, is sufficient to answer the rebuttal of the presumption of credibility determined by the RPD. [15] In deciding whether to allow an application based on Rule 29, the RAD must consider any relevant factors, including the document's relevance and probative value; any new evidence the document brings to the appeal and whether the Appellant, by making reasonable efforts, could have provided the document with his record. 8 [16] In Singh, the Federal Court of Appeal stated that the explicit conditions set out in subsection 110(4) of IRPA are inescapable, should be met, and leave no room for discretion on the part of the RAD. It also decided that the implicit admissibility criteria identified in Raza also flow from the wording of subsection 110(4). In other words, this subsection expresses a clear legislative intention not to authorize any new evidence on appeal other than in very specific and carefully defined circumstances. The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors of law or mixed errors of fact and law to be corrected. 9 [17] From my own assessment, the Appellant is not credible when he is declaring in his affidavit that he was not aware that his credibility was at issue during the RPD hearing. In fact, since March 1st, 2017, he was aware that the Minister had presented the results of the biometric immigration information shared with the USA, showing that he was in possession of a passport from Somalia and of a passport from Djibouti, and that the Minister was arguing that credibility was an issue in his claim. So, I find that, with reasonable efforts, the Appellant could have provided the document with his appeal record. [18] I also find that the letter he would like to use in his appeal has no probative value, since the conclusion reached by the president of the organization is not based on any clear reasoning or on any specific documentation. Furthermore, this organization does not have any kind of authority concerning the Djiboutian citizenship of any person, including the claimant. [19] For those reasons, I do not allow the Rule 29 application. B. The Djibouti Citizenship Act of 1981 [20] In his Appeal Record, the Appellant included extracts from an Act adopted on October 1981 by the Republic of Djibouti called "Loi No. 200/A.N./1981 portant code de la nationalité djiboutienne".10 He based his arguments primarily on the analysis of these extracts in conjunction with the actual Djibouti Citizenship Act of 2004, included in the National Documentation Package (NDP) on Djibouti, which formed part of the evidence before the RPD.11 [21] Before Canadian Courts and Tribunals, foreign law is treated as a fact and must be proven. This requires the production of an official copy of the statute in question. If the content and implications of the statute cannot be determined by reference to the words of the statute itself, expert evidence is required. No knowledge of foreign law can be imputed to a decision maker.12 [22] In the present case, the Appellant has not introduced into evidence the Act on nationality adopted by Djibouti in 1981. There are no detailed observations in his memorandum in order to establish that this Act meets the conditions set out in subsection 110(4) of IRPA and could be admitted as new evidence.13 Therefore, I find that this statute is not admissible. IV. THE STANDARD OF REVIEW AND THE ANALYSIS OF THE APPEAL [23] The RAD's role is to review RPD decisions on a standard of correctness after conducting its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. The exception to this rule is where the RPD benefits from an advantageous position in making a particular finding based on the oral testimony, the RAD may assess that finding using a standard of reasonableness applicable in its specific context.14 From my assessment, the arguments presented by the Appellant are legal ones and, on question of law, correctness should be applied. [24] After having conducted my own analysis of the record, I find that the RPD's decision to reject the claim was correct. A. Assessment of the Claimant's Djiboutian Citizenship [25] I have listened to the recording of the hearing held before the RPD. When asked about the possibility for him to go to Djibouti, the claimant answered that their Somalian passports were almost dead in 2015, so almost everyone working for the UN organizations, for the government or in the business sector, had to obtain a document either from Djibouti or Kenya in order to travel. He also stated that he paid for and received a passport from Djibouti without providing his signature or going to Djibouti.15 When asked why he would need a Djiboutian passport, if he had a UN passport, the claimant answered that one cannot use a UN passport for unofficial reasons.16 When asked to elaborate about the visa process in order to get a visa from the USA, the claimant answered that he filed papers, went to Djibouti, where he had an appointment in order to explain why he wanted to go to the USA and where he was fingerprinted. He also declared that he personally went to the office to receive his visa with his passport on XXXX XXXX. Asked if the visa was included in his Djiboutian passport, the claimant answered yes, but stated that he told them that he was a Somalian citizen and that his nationality was Somalian.17 Based on the fact that the American authorities examined his Djiboutian passport and issued a visa to him, the RPD then asked the claimant why, as a Djiboutian, he cannot go back to Djibouti and live there. The claimant answered that he got the Djiboutian passport in a corrupted way and that the passport he has is different from the ones of the citizens of this country. He also answered that the passport he owns could be used only for travel purposes and that, if he would be caught with this passport, he could be put in prison.18 There was a discussion between the RPD and the claimant on the aspect of passports from Djibouti, and the claimant then declared that anyone from anywhere could easily obtain a passport from Djibouti.19 [26] Based on the evidence, the RPD concluded that it was more likely than not that the claimant had Djiboutian citizenship. The RPD referred, among other things, to the fact that, in the claimant's American visa applications, the claimant listed himself as having citizenship in Somalia and in Djibouti and indicated that his passport was a regular passport issued by Djiboutian authorities in Djibouti. The RPD also referred to the fact that American authorities' information indicated that the claimant had citizenship from Somalia and from Djibouti, that they issued their visa on the passport from Djibouti and that they have expertise in verifying the authenticity of the local passports.20 [27] In his memorandum, the Appellant did not present arguments to establish that the RPD made an error while doing specifically this analysis. B. Documentary Evidence [28] Moreover, in its decision, the RPD added that the claimant had submitted no evidence to support his allegation that Djiboutian passports are issued to non-citizens, that passport fraud exists in Djibouti, and that Djibouti issues special passports for nationals from Somalia who have problems obtaining documents from their own government. 21 [29] Failing to file supporting documentation may have an impact on the claimant's credibility.22 According to Rule 11 of the RPD Rules, it is clear that claimants have a duty to provide acceptable documents establishing their identity and the other elements of their claims. A lack of diligent effort to obtain an important document corroborative of her testimony can undermine a person's credibility.23 [30] Based on my own assessment of the file, it was reasonable to expect the claimant to file supporting documentation concerning the way the Djiboutian authorities are actually issuing passports to non-citizens. His failure to do so affects his credibility. [31] Moreover, a document purportedly issued by a foreign authority is presumed to be valid unless there is evidence to the contrary.24 In his memorandum, the Appellant argued that it is for the Government of Djibouti to determine if he is a citizen of this country and that the RPD or RAD should contact this government in order to obtain information about this issue. I disagree. Since the claimant used this passport, it was his onus to refute the presumption of the validity of this document. [32] For all these reasons, I find that the RPD made no error in concluding that the evidence of the claimant's Djiboutian citizenship outweighs his testimony. C. The legal analysis of the Djiboutian law on Citizenship [33] In his memorandum, the Appellant provided a legal analysis of the Djiboutian law on Citizenship. In order to do so, the Appellant did not refer only to the wording of the actual Djibouti Citizenship Act of 2004, included in the NDP on Djibouti, which formed part of the evidence before the RPD. In fact, his analysis is based on an Act adopted on October 1981 by the Republic of Djibouti called "Loi No. 200/A.N./1981 portant code de la nationalité djiboutienne" in conjunction with the Djibouti Citizenship Act of 2004. In other words, this analysis has not been made simply by reference to the words of the actual statute in force in Djibouti. Expert evidence is required to do the analysis that the Appellant made. The Appellant and his counsel are not experts in the law in force today in Djibouti. The Appellant did not provide that expert evidence. Also no knowledge of foreign law can be imputed to a decision maker.25 Therefore, there is no basis to conclude that the RPD made an error in law in its assessment of the Djiboutian citizenship of the claimant. CONCLUSION [34] For all these reasons, I confirm the decision of the RPD, namely that Mr. XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96, or a "person in need of protection" within the meaning of section 97 of IRPA. [35] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette March 16, 2018 Date /ag 1 His Basis of claim form (BOC) is reproduced at pages 8 to 20 of the RPD record. 2 The claimant's documents are reproduced at pages 117 to 155 of the RPD record. 3 These documents are reproduced at pages 101 to 116 of the RPD record. 4 Notice of Intent to Intervene, March 1, 2017, pages 99 and 100 of the RPD record. 5 Notice of Decision and the transcript of the RPD's reasons for the decision, pages 1 to 7 of the RPD record. 6 Appellant's memorandum, August 17, 2017, pages 15 to 26 of the appeal record. 7 Application Record of the Appellant, November 17, 2017, 9 pages. 8 RAD Rules, SOR/2012-257, Section 29. 9 Canada (Citizenship and Immigration) v. Singh, A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96. 10 See pages 10 and 11 of the appeal record. 11 IRB, National Documentation Package, Djibouti, 31 March 2017, Tab. 3.1: Djibouti, Loi No. 79/AN/04/5ème Portant Code de la Nationalité Djiboutienne, 9 pages. 12 Cheikhna v. Canada (Minister of Citizenship and Immigration), IMM-1757-12, Noël, October 1st, 2012; 2012 FC 1135, paragraph 6. See also Obi v. The Minister of Citizenship and Immigration, Kenneth D. MacLean, member of the Immigration Appeal Division (IAD), IRB, May 7, 2013; 2013 CanLII 98784 (CA IRB), paragraph 18. 13 RAD Rules, subsection 3 (3) (g) (iii). 14 Minister of Citizenship and Immigration v. Huruglica, A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, Dahal v. Canada (Minister of Citizenship and Immigration), Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31, and X (Re), 2017 CanLII 33034 (CA IRB). 15 Recording of the hearing held before the RPD on June 12, 2017, 32:30 to 34:00. 16 Ibid., 34:18 to 35:00. 17 Ibid., 40:00 to 43:20. 18 Ibid., 43:20 to 44:35. 19 Ibid., 44:35 to 48:35. 20 Transcript of the RPD's reasons for the decision, pages 4 and 5 of the RPD record. The RPD was then referring to Exhibit 4, which is reproduced on pages 99 to 116 of the RPD record. 21 Ibid., page 5 of the RPD record. 22 Mercado v. Canada (Minister of Citizenship and Immigration), IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, paragraph 32. 23 Villanueva Pinon v. Canada (Minister of Citizenship and Immigration), IMM-4906-09, Boivin, April 20, 2010; 2010 FC 413, paragraph 15. 24 Cisse v. Canada (Minister of Citizenship and Immigration), IMM-5227-15, Harrington, June 3, 2016; 2016 FC 623, paragraph 16. See also Cheikhna v. Canada (Minister of Citizenship and Immigration), IMM-1757-12, Noël, October 1st, 2012; 2012 FC 1135, paragraph 21. 25 Obi v. The Minister of Citizenship and Immigration, Kenneth D. MacLean, member of the Immigration Appeal Division (IAD), IRB, May 7, 2013; 2013 CanLII 98784 (CA IRB), paragraph 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB7-17694 10