TB5-11667

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 : TB5-11667 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX(a.k.aXXXX XXXX XXXX XXXX)XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 10, 2016 Date de la décision Panel Ken Atkinson Tribunal Counsel for the person(s) who is(are)the subject of the appeal Ceri P. Forbes 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 ("Appellant"), who claims to be a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The Appellant is submitting new evidence and is not requesting an oral hearing. He requests that the appeal be allowed and the decision of the RPD be set aside and the Refugee Appeal Division ("RAD") find the Appellant to be a Convention refugee or a person in need of protection or alternatively, that the matter be returned to the RPD for re-determination. DETERMINATION OF THE APPEAL [2] The appeal is dismissed. Pursuant to subsection 111(1)(a) of the Immigration and Refugee Act ("IRPA"), the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [3] The Appellant states that he is a member of the XXXX clan in Somalia. His clan is a minority clan in the area where he lived with his family. The clan had no power and the family was forced to pay money to the larger clans to live in peace. [4] He states that his father had a small XXXX shop in their hometown. In XXXX 2013, members of al Shabaab came to the shop where he was working while his father was out of town. They demanded that the shop be closed because his father had not been complying with the rules that the shop be closed during prayer times. The Appellant says that they beat him and broke his left arm. His right leg was also injured and he was hit in the head with a gun butt. They looted some things from the shop before they left. [5] He says that a month later members of al Shabaab came to his father and wanted the Appellant and his brother to join them. The family then decided to leave Somalia and went to Ethiopia. The Appellant then came to Canada and made a claim for refugee protection. He states that he fears al Shabaab as well as the militias from the other clans who could pose a threat to him because of hostility between the clans. ROLE OF THE RAD [6] The Huruglica1 decision of the Federal Court provides guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD, to decisions of the first level administrative tribunal. Justice Phelan states in paragraph 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 claimant 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". [7] Accordingly, the RAD will 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. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [8] The RPD determined that the Appellant was not a Convention refugee or a person in need of protection for the following reasons: (a) The Appellant failed to establish his identity with credible evidence. New Evidence [9] The Appellant submits the following document as new evidence: (a) An affidavit affirmed by XXXX XXXX XXXX, dated XXXX XXXX, 2015. [10] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of their claims or that was not reasonably available, or that they could not reasonably have been expected2 in the circumstances to have presented, at the time of the rejection. [11] It is for the Appellants to make full and detailed submissions in their Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.3 [12] Section 110(4) establishes a disjunctive test.4 The RAD must first consider whether the proposed new evidence arose after the rejection of the refugee claims. If it did, the evidence meets the requirements of the section. If it did not, the RAD must consider whether the evidence was reasonably available for presentation to the RPD prior to the rejection of the claims. If it was not reasonably available at that time, it meets the requirements of Section 110(4). If the evidence did not arise after the rejection, and it was reasonably available, the RAD must consider whether the Appellants could reasonably have been expected, in their circumstances, to have presented the evidence to the RPD prior to the rejection of their claims. If they could not have been expected to do so, the evidence meets the requirements of the section. [13] If the evidence did not arise after the rejection of the claims, was reasonably available, and could reasonably have been expected, in the circumstances, to be presented to the RPD prior to the rejection of the claims, the evidence does not meet the test in Section 110(4). The RAD does not have discretion to admit such evidence.5 [14] As the RAD understands it, Section 110(4) provides the Appellants with an opportunity to present evidence that could not have been submitted to the RPD-either because the evidence did not exist at the time of the RPD proceeding, or because it did exist but was unavailable, or because it did exist and was available, but the Appellants could not have been expected to present it to the RPD. [15] In considering whether the evidence arose after the rejection of the claim, the RAD will not restrict its analysis to the date on the proposed new evidence. In the RAD's view, a document's "newness" cannot be tested solely by the date of its creation; what is important is the event or circumstance sought to be proved by the evidence.6 Old evidence remains old evidence, even if it is placed in a new document with a recent date. [16] However, the RAD acknowledges the Federal Court decision in Singh, where the Court wrote that; ...in order for there to be a "full fact-based appeal" before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur. Often, the evidence at stake will be essential for proving the factual basis of the errors the claimant alleges were made by the RPD. This consideration becomes all the more pertinent in light of the strict timelines a claimant now faces for initially submitting evidence before the RPD. A claimant now has 50 days to present all documents from the date he or she made the claim; the previous legislative scheme required the documents 20 days prior to a hearing, which, on average, took much longer to take place. When the RPD confronts a claimant on the weakness of his evidentiary record, the RAD should, in subsequent review of the decision, have some leeway in order to allow the claimant to respond to the deficiencies raised.7 [17] The Appellant states that he had provided identity evidence from his cousin and various letters in support of his identity. He reasonably expected that his evidence and testimony and the testimony from the most appropriate witness with the closest relationship to him would suffice to establish his identity. He could not have anticipated that a single inconsistency about his mother's living arrangements when she was a young girl and before he was born, would be enough for all of her evidence to be rejected. If he has been reasonably aware he could have presented other identity witnesses to testify on his behalf. He then goes on to state that the evidence meets the criteria for admission of new evidence outlined in the Raza case.8 [18] The RAD must first determine whether the new evidence meets the requirements of section 110(4) of the IRPA. The requirements to prove identity are clearly outlined in section 106 of the IRPA as well as Rule 11 of the RPD Rules. The RPD hearing was held on September 14, 2015 and written reasons are dated October 2, 2015. The Notice of Decision was sent out on October 14, 2015. The affidavit produced as new evidence was sworn after the date of the RPD hearing. There has been no persuasive evidence presented to show that this evidence did not exist at the time of the RPD proceedings or if it did exist and was available why the Appellants could not have been expected to present it to the RPD. The fact that evidence presented does not go as anticipated is not a reason that other available evidence could not have been presented as well. [19] The Federal Court stated in a recent case: "I am satisfied that the RAD did not err in refusing to admit the applicant's proposed new evidence. The RPD's decision indicates that it was well aware of its role, that is that it assessed each piece of the proposed new evidence, including the applicant's submissions on the new evidence, in light of subsection 110(4) and, "within the context of the totality of the Appellant's evidence adduced at the RPD." The applicant's explanation for failing to place the proposed new evidence before the RPD was that he could not have foreseen that the RPD would make negative findings on: (1) his identity; and (2) the question of objective risk. This is simply not consistent with the record. I concur with the RAD's conclusion that the applicant had the onus to put forward his case to the RPD as to why he should be accepted as a convention refugee or person in need of protection. It was not open to him to wait to forward requisite and relevant evidence until the RPD rendered a negative determination. 9 [20] The RAD will not admit the affidavit since it does not meet the requirements of subsection 110(4). [21] The RAD finds that there is no basis to hold oral hearing under the provision of subsection 110(6) since there are no new documents admitted in evidence. Submissions [22] The Appellant submits that the RPD erred by finding the testimony of the Appellant and the witness not credible based almost exclusively on one inconsistency in the testimony. The RPD also erred in finding that the letters provided in support of the Appellant's identity impugned the consistent and uncontradicted testimony of the Appellant in all areas of his testimony and that of the witness. [23] The Appellant submits that he comes from a very small and remote town in Somalia. He is unable to provide the type of documents required by the RPD. The Appellant was a very young boy when the government of Somalia collapsed and it is unlikely the family would have thought of obtaining school documents or medical documents when they escaped from the country. He submits that it is unlikely that the XXXX store would have had bills or receipts or ledgers and even if there were such documents it would be virtually impossible to connect them to the Appellant or to Somalia. [24] There are no family members left in the town in Somalia and the communications available to remote communities of Somalia are such that it would be impossible to obtain any documents by mail or courier or fax even if they existed or could be produced by the school or the doctor, for example. [25] The Appellant testified that his mother and aunt (witness's mother) were sisters but did not grow up in the same house. The witness testified that they did live together. The Appellant's explanation for this contradiction was found not credible by the RPD. The Appellant argues that the RPD then determined that this explanation detracted from his overall credibility as well as the credibility of the witness. [26] The Appellant submits that this is the only instance of an inconsistency or contradiction in the evidence of either the Appellant or witness mentioned in the RPD decision. He further submits that despite the RPD's assertion that its determination is based on cumulative evaluation of the credibility of the evidence, this does not appear to be the case. In testimony, both witnesses testified that their information was based on what their mothers had told them in the past as neither could have had first-hand knowledge of the facts. While the Appellant's explanation of the discrepancy could be seen as lacking and a relatively poor attempt to reconcile the difference, it is submitted that this discrepancy should have very little significance under the circumstances and should in no way be sufficient to undermine all of the other credible identity testimony provided. [27] The Appellant argues that this one finding should be insufficient to rebut the presumptive truth of his testimony or that of the witness. [28] The Appellant further submits that the RPD has fixated on the cumulative lack of adequate documents rather than providing a proper evaluation of the testimony. The RPD has substituted its analysis of the sufficiency of the letters provided for a proper analysis of the actual credibility of the testimony and has made unjustified determinations on the credibility of the entirety of the evidence as a result. Analysis [29] The RPD considered the evidence produced by the Appellant to prove his identity. Each item of evidence was considered separately. The evidence consisted of a letter, alleged to be from the Appellant's sister in Ethiopia; a letter from an aunt in the United States of America (USA); a letter from XXXX XXXX XXXX; and the testimony of XXXX XXXX XXXX, who stated that he is a cousin of the Appellant. [30] The RPD acknowledge that the letter received from the Appellant's alleged sister indicated that the document was faxed to the Appellant's counsel from Ethiopia. The RPD noted that the letter is not accompanied by any document that would establish the identity of the author. The RPD found that an individual who does not establish her own identity, cannot reliably provide evidence of the identity of another person. The RPD found that the letter was minimal probative value. [31] The RPD found that the letter from the aunt in the USA contained minimal details about the Appellant or of herself that would verify that she is actually the aunt of the Appellant. The RPD noted that the letter was not notarized and described it as simply a statement with details that cannot be verified. The photocopy of the author's passport was of poor quality and the RPD stated there was no way to tell if the document was genuine. The RPD found that the letter, on a balance of probabilities, did not establish the Appellant's identity. [32] The RPD found that the letter from XXXX XXXX XXXX did not establish the Appellant's identity. The RPD gave the letter minimal weight since the person who signed a letter did not provide details of any expertise he holds to determine Somalian nationality. There were no details in the letter as to how the person who signed the letter was aware of the identity of the Appellant as XXXX XXXX XXXX born on XXXX XXXX 1987. The RPD stated further that the mere fact that a person can recite names of places and monuments does not establish, on a balance of probabilities, that the Appellant is who he says he is. [33] XXXX XXXX XXXX stated that he was the cousin of the Appellant and he testified on his behalf before the RPD. He stated that his mother and the Appellant's mother are half-sisters as they had the same mother. He testified that his mother and the Appellant's mother did not grow up in the same house. The Appellant testified that they had lived together when they grew up. The RPD asked the Appellant to explain the inconsistency. He said that they lived in the same house but did not live in the same room. He stated that when the RPD asked if his mother and aunt lived together, he thought he had been asked whether they had shared a room. The RPD rejected this explanation as unreasonable. The RPD found that this was a significant discrepancy and stated if two people lived in the same house and grew up together, one would say so. It would not matter if they did not share a room. The Appellant had specifically stated that they grew up separately but saw each other. The RPD found that the inconsistency and the explanation detracted from the credibility of the Appellant and diminished any weight given to the testimony of the witness. The RAD recognizes and respects this finding of the RPD as it had the opportunity to personally hear the evidence of the Appellant and the witness. [34] The RPD did not find the Appellant to be not credible based solely on the inconsistency but also considered on the explanation provided by the Appellant as to why there was a discrepancy. The RPD provided an explanation as to why it assigned minimal weight to each piece of evidence. The RPD did not reach its conclusion that the Appellant's evidence with respect to his identity was neither credible nor trustworthy based on one inconsistency between the Appellant and the witness. The RPD considered all the evidence and concluded that it could not determine who the Appellant is or where he is from or whether he has suffered the persecution alleged. The RPD acknowledged the challenges faced by Somali nationals in providing satisfactory documents to establish identity. However, it found that the Appellant had failed to provide sufficient credible evidence to establish his identity as a national of Somalian on a balance of probabilities, as required by section 106 of the IRPA and Rule 11 of the RPD rules. The RAD agrees with this finding of the RPD. [35] The RAD reviewed the documentary evidence the RAD produced by the Appellant before the RPD and agrees that it should be given minimal weight for the reasons outlined in the RPD decision. Based on all the evidence, the RAD finds that, there is no serious possibility that the Appellant will be persecuted if he returns to Somalia or that, on a balance of probabilities, he would be subjected personally to a risk to his life, risk of cruel and unusual treatment or punishment or a danger of torture. The Appellant is not a Convention refugee or a person in need of protection. DISPOSITION [36] The appeal is dismissed. Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Ken Atkinson" Ken Atkinson February 10, 2016 Date 1 Huruglica, Bajar v. M.C.I., (F.C no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 In the French version of IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh v. Canada (Citizenship and Immigration), 2014 FC 1022, para 51. 3 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 4 See Olowolaiyemo v. Canada (Citizenship and Immigration), 2015 FC 895, para. 19. 5 Deri v. Canada (Citizenship and Immigration), 2015 FC 1042, para. 55. 6 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2008] 1 F.C.R., para. 16. 7 Singh v.M.C.I. 2014 FC 1022. 8 Supra., footnote 6. 9 Cabdi,Mahad Cali v. M.C.I., (F.C., no. IMM-1365-15),Gleeson, January 8, 2016; 2016 FC 26. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-11667