TB9-13151

RAD File / Dossier de la SAR : TB9-13151 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXXXXXXa.k.a. XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision July 27, 2020 Date de la décision Panel Ron Liberman Tribunal Counsel for the person who is the subject of the appeal David P Yerzy Barrister and Solicitor Conseil de la 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 appeals a decision of the Refugee Protection Division (RPD) dated April 30, 2019, rejecting her claim for refugee protection because the RPD found she failed to establish her identity. I have conducted an independent analysis of all the evidence concerned, including the entire Appellant Record and the oral testimony. I find that the Appellant has satisfactorily established her identity, but that because the RPD rejected her claim based on the issue of identity, the substantive elements of her refugee claim were not explored. The RAD is unable to make a final determination in this case without re-hearing evidence that was presented to the RPD, and therefore remits the matter to the RPD for re-determination by a differently constituted Panel. BACKGROUND [2] The Appellant's claim was originally heard by the RPD on September 25, 2017. Her claim was dismissed by the RPD on October 2, 2017. On June 7, 2018 the Federal Court of Canada determined on judicial review that the RPD made no reviewable error in concluding that the Appellant had failed to establish her identity, but that the RPD's finding of "no credible basis" was in error.1 A redetermination of her claim by the RPD resulted in the decision under appeal. [3] The Appellant's allegations are as follows. She is a widow, now aged XXXX. She was born in XXXX, Somalia, and her husband passed away in 1991. She has no children. She is a Muslim, of the minority Yibir tribe. She is afraid of Al-Shabaab because in XXXX 2016 she refused a request from them to allow her home to be used to store weapons and to hide men. She also fears pro-government forces if she is viewed as having collaborated with Al-Shabaab. After Al-Shabaab's request to her she sold her home, and on XXXX XXXX XXXX 2016, she fled Somalia for Kenya. She stayed with a Somali citizen in Kenya for a number of months. With the help of a smuggler, she came to Canada on XXXX XXXX, 2016 and entered using a false passport. If she is returned to Somalia, in addition to facing risks from Al-Shabaab and pro-government forces because of the events of XXXX 2016, she is at risk as a single woman from a minority tribe. RPD findings [4] The RPD found the Appellant's inability to obtain a birth certificate or other documents from Somalia was understandable. However, she had made no attempt to contact the woman with whom she stayed for several months in Kenya. She had made no efforts to contact anyone in Somalia to confirm her identity. The Appellant had stated that she had sold her home, but had not registered the sale with anyone. The RPD found this testimony to be evasive and unreasonable. There was therefore no documentary evidence of her identity from sources in Kenya or Somalia. The RPD considered letters from community organizations in Canada and the testimony of a witness. The RPD found that in total there was insufficient evidence of the Appellant's identity, and that she had failed to make reasonable efforts to establish her identity. She had also not provided adequate reasons for failing to do so. Appellant's arguments [5] Counsel argues the RPD erred in its assessment of the Appellant's identity. Counsel also argues there are good reasons why the Appellant is unable to contact anyone in Somalia who will verify her identity. Regarding the woman with whom she stayed in Kenya, this person would be unable to confirm her identity. The Appellant did make two attempts to provide corroborating evidence, but the RPD dismissed them without good reason. The RPD's confidence in the land registry system in Somalia is unfounded. Counsel submits the RPD ought not to have discounted the testimony of a witness, and that the Appellant has provided good and trustworthy evidence of her identity. The evidence shows Al-Shabaab still operates in Somalia, and there is no state protection for the Appellant. She is at risk if she returns to Somalia owing to her age and gender, and because she is from a minority tribe. ROLE OF THE RAD [6] In accordance with the decision in Huruglica,2 when reviewing the decision of the RPD, I have applied a standard for my review of correctness while conducting an independent assessment of the entirety of the evidence before me. ANALYSIS [7] The Appellant did not provide any new evidence with this appeal, and did not request an oral hearing. I analyze below the evidence which the RPD considered when it evaluated whether the Appellant has established her identity, and the submissions of Counsel in this regard. Appellant's entry to Canada [8] The Appellant states in her Schedule 12 form3 that she entered Canada using an Australian passport in the name of "XXXX XXXX", and she indicated by selecting the checkbox on this form that the passport was not a genuine document. In her Basis of Claim (BOC) form the Appellant states her name is XXXX XXXX XXXX4 and in her IMM0008 form5 and her Schedule A form6 the spelling of her name is slightly different, being XXXX XXXX XXXX. [9] The Minister intervened in this appeal on the basis of credibility and program integrity, and served documents which are dated XXXX XXXX XXXX 2016. These documents state there is no record of anyone by the name XXXX XXXX having entered Canada in the 10 years before the documents were served, which calls into question the credibility of the Appellant and her identity. These documents also confirm there is no record of anyone having entered Canada between XXXX XXXX XXXX 2016 and XXXX XXXX XXXX 2016 using the name XXXX XXXX XXXX. [10] Counsel submits that the RAD should not draw an adverse inference against the credibility of the Appellant from the government's failure to locate a record that a person with the name XXXX XXXX entered Canada within the specified 10-year period. In essence Counsel's submission is that the name might have been spelled differently on the passport in question. Although the RPD noted the submissions of the Minister, I note that the RPD did not explicitly draw an adverse inference against the credibility of the Appellant as a result. [11] The sworn testimony of an Appellant is presumed to be true unless the presumption is rebutted.7 The Appellant testified that she entered Canada by plane, travelling from Kenya to Toronto, posing as the wife of the person smuggling her, who presented the officer at the Port of Entry with a false Australian passport on her behalf. [12] I acknowledge the previous Federal Court decision addressed this matter: [29] The Applicant also submits that the RPD erred in relying on the Minister's search for individuals entering Canada under the name XXXX XXXX. She states that the RPD did not consider the fact the Applicant is illiterate and had no way of knowing how the name used on passport was spelled. Neither she nor the person assisting her in filling out her application could have anticipated that the precise spelling of the name would become an issue. She submits that the panel also erred in finding that she was responsible for filling out the form, as a CBSA agent and a Somali interpreter assisted her. [30] The RPD provided reasons for its conclusion that neither the Minister nor the RPD had any reason to doubt the accuracy of the spelling of the name XXXX XXXX. The Applicant provided the name with assistance from a person of her choice, a representative of a non-governmental organization. The CBSA agent did not help the Applicant to complete the form other than to ensure the form was complete. It was not his role to query the spelling of information provided to him or to alert the Applicant and her representative of the consequences of any misspelling. It was the Applicant's responsibility to provide accurate information. The RPD's reasons and conclusion are supported by the evidence. [13] Nonetheless, while I agree that it was not the Minister's responsibility to query the spelling of the information provided, I accept that the spelling of the Appellant's name on the passport she used to enter Canada might have been phonetically similar, but not identical to, the name XXXX XXXX. The Appellant testified she does not read or write, and in this situation the spelling of her name on the forms would necessarily reflect the name she heard from the smuggler, and not a written version of that name. While she should have alerted the CBSA to this issue, I do not hold the fact that the Government of Canada was unable to locate a record of the Appellant's entry to Canada under the name "XXXX XXXX" against her credibility. Lack of official documents to confirm the Appellant's Identity [14] The RPD confirms in its Reasons that, because of the long-standing civil war in Somalia, the Appellant could not reasonably be expected to produce documents held by the former government of that country. For that reason, the RPD found there was a reasonable explanation as to why the Appellant was unable to produce a birth certificate. At the hearing, the Appellant also testified that she did not have any other documents from Somalia that would confirm her personal identity. [15] I find therefore, as did the RPD, that the Appellant does not possess and has not provided acceptable government documentation establishing her personal identity, but that she has a reasonable explanation for failing to do so. Lack of documents relating to Appellant's property in Somalia [16] The Appellant stated at the hearing that she does not have signed documents for the sale of her house. She was asked if the house was registered in a government registry. In response, the Appellant stated she did not register the sale with anyone. She stated that she received the house from her late husband through inheritance, and that when she sold it the transaction was witnessed by persons at the market. Those witnesses would be able to confirm details of the sale such as who sold the property and who purchased it. The Appellant confirmed she is unable to produce any documents related to the sale. [17] The RPD acknowledged that, as per the National Documentation Package (NDP), the mechanics of selling a property in Somalia can be difficult, but the RPD explained in its Reasons the procedure that is outlined in the NDP8 for doing so. This procedure would be registered using the services of a public notary, and includes asking the seller for guarantors; the local government would charge a tax of three to five percent. Counsel's Memorandum describes part of the information contained in the NDP as "preposterous" and states that the Panel "cannot impugn the Appellant's credibility on the basis of this vague and inherently unbelievable information."9 [18] I have examined the procedure in the NDP, and find that the information provided emanates from a representative of the ILO (International Labour Organisation) based on information from other United Nations agencies. I regard this evidence as from authoritative sources, and to be credible. I note there is additional information before me in this item within the NDP which originates from a lawyer and which I find gives a cogent explanation of the procedure to be followed and the documents that are required to complete the sale of a property. It is clear from this documentation that the seller and buyer go to the notary with two witnesses, and that the seller requires a financial guarantor."10 [19] I find it is implausible that, even in Somalia, a purchaser of a home would be willing to part with cash without an assurance of receiving some legal documentation, equivalent in the Canadian context to clear title to the property. I have however considered that the Appellant is illiterate and has a low level of education, and that there are extensive cultural and societal differences between Canada and Somalia, including that women may not be expected to deal with property transactions. Implausibility findings as per the Federal Court ought only to be made in the clearest of cases. I find this is not the clearest of cases, because the Appellant used an agent for the transaction, and she might not have been aware that the buyer had forwarded the paperwork to a public Notary, which is part of the procedure outlined in the NDP. For this reason, I do not hold this matter against the credibility of the Appellant. [20] Nevertheless, I find the documents related to the sale of the Appellant's property, if produced, would be strong evidence of the Appellant's identity. Documents of this type would necessarily contain evidence of the Seller's name, and of the address of the property concerned. The RPD notes that the Appellant was questioned about the lack of documentation relating to property transfers in an earlier hearing, on September 25, 2017. I do not accept Counsel's submission that there is no evidence that the guarantor was a friend of the Appellant and that there is no evidence that tax receipts are available, given the overall lack of government services in Somalia. The onus was on the Appellant to attempt to obtain evidence of the Appellant's identity, and if evidence was indeed unavailable, Counsel could have provided evidence of the attempts made to obtain it. The Appellant, through Counsel, could have contacted a Notary in Somalia prior to or after the initial or present RPD decisions, to search for records of the property, for records as to who the guarantor was, and to provide evidence of tax payments. These records might have enabled the Appellant to provide evidence of her identity from authoritative sources. However, based on her own testimony and Counsel's submissions, she has neither attempted through her Counsel to contact a Notary in Somalia, nor has she attempted to separately contact her guarantor for the transaction, and she has not attempted to contact the tax authorities in Somalia. I have taken this into account when assessing whether the Appellant has satisfactorily established her identity. Lack of attempt to contact person in Nairobi [21] The RPD asked the Appellant whether she had attempted to contact XXXX, a lady with whom she stayed for three months in Eastleigh, Nairobi, Kenya after leaving Somalia. The Appellant responded that she did not have the lady's telephone number. In this context, the RPD Reasons also reflect that the Appellant was asked whether she had requested assistance from the staff of the Dejinta Beesha organization, later known as the Loyan Foundation, and which she had visited to obtain confirmation of her identity, to contact the lady concerned. [22] Counsel's Memorandum, although it concedes that the Community organization referenced above assists refugees, states that the organization does not necessarily assist in enquiries of this sort, where the Appellant is seeking persons in Somalia or Kenya, and that there is no evidence to that effect. [23] I note Counsel also submits, at paragraph 56 of the Memorandum, that XXXX evidence would not have been useful, as the only evidence she could have given about the Appellant's identity would be second-hand. [24] I reject this explanation of Counsel, because XXXX could have provided confirmation of the name by which she knew the Appellant, which goes directly to the matter of the Appellant's personal identity, and because, Section 106 of IRPA requires the RPD to assess whether the Appellant has provided adequate documentation to establish her identity, and to assess whether or not the claimant has provided a reasonable explanation for any lack of documentation. It follows that an Appellant's BOC and sworn testimony alone may be insufficient to establish an Appellant's identity. I note also that when the Federal Court allowed an application for judicial review by the Appellant of the initial RPD decision in her claim, the Honourable Madam Justice Walker in paragraph 26 of her decision found that XXXX would have been a clear candidate to provide corroborating evidence of the Appellant's personal identity11. In view of the Federal court decision, Counsel was effectively on notice as to the utility of providing this additional corroborating evidence of the Appellant's. I find Counsel could have tried to contact XXXX by other means, for instance by attempting to use directory enquiries for the Nairobi area, and, if unsuccessful, could have provided an affidavit detailing the attempts to contact her. I find the Appellant has not reasonably explained why she did not attempt to contact XXXX. Letters from Community Organizations [25] The RPD found that the letters from the Loyan Foundation and its predecessor, the Dejinta Beesha organization provided insufficient evidence of identity, and in this context considered the lack of requests the Appellant made for assistance in contacting persons in Kenya and Somalia on her behalf. [26] Counsel states in response that the RPD's analysis is improper. Counsel states that the failure to contact is not relevant and that the letters corroborate the Appellant's claim. [27] I agree with Counsel in this instance that the failure to contact other persons is a separate issue, and is not relevant when evaluating the letters, which must be assessed independently. [28] I have examined the copy of the letter from the Loyan Foundation12 and accept that it is from a credible source. The letter confirms the organization's view that the Appellant is a national of Somalia and that she is of the minority Yibir tribe. I give this letter some weight. [29] I have also examined copies of two letters in the Record from the Dejinta Beesha organization, the predecessor of the Loyan foundation. The letters are dated XXXX XXXX, 201713 and XXXX XXXX XXXX 201714 respectively. It appears the second letter is a correction of the first. [30] The second letter confirms the organization's view that the Appellant is a citizen of Somalia. I give this letter some weight. Evidence of witness [31] The RPD noted the testimony of a witness who stated that he used to visit the Appellant and her husband for three years, and saw her most recently in 1976. The RPD noted the witness could not testify to the Appellant's place of birth, or as to the date when she was married. The RPD noted that the witness last encountered the Appellant more than 40 years prior to his testimony, and that he was unable to provide testimony to prove where the Appellant resided between 1976 and her journeying to Canada. The RPD therefore found the evidence of this witness was insufficient to overcome the negative credibility inferences it had drawn with regard to the Appellant's identity. [32] Counsel submits that the evidence of this witness is uncontradicted, and that few people know where others were born, or when they were married. [33] I agree with Counsel on these points, and I find that the testimony of the Appellant is not undermined because he did not know in what city the Appellant was born, or when she was married. For the same reason I find it does not undermine his testimony that he was unable to testify about where the Appellant had resided between sometime in 1976 and when they met in Canada, in XXXX 2018. [34] The witness testified that he has a name that is uncommon. He testified that the Appellant approached him in a restaurant, and asked him if he was the person of that name who had attended University with a friend of her late husband's. The witness did not recognize the Appellant. She told him that she needed someone to confirm her identity. When questioned by the RPD, the witness was able to state the Appellant's name, and to give the correct name of her late husband. He did not know whether the Appellant had children. The Appellant stated he had only visited her home twice. On both occasions he had stood outside the premises, and did not observe or hear any children. [35] I accept, as stated previously, that the sworn testimony of a witness is presumed to be truthful. Although more than 40 years has elapsed since he saw her in Somalia, he was ultimately able to confirm her personal identity. The testimony of the witness is a significant development since the previous Federal Court decision. Although I have not had an opportunity to examine this witness personally, his testimony is uncontradicted, and I give it some weight. Has the Appellant satisfactorily established her identity? [36] Section 106 of the Immigration and Refugee Protection Act (IRPA)15 states that "The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation." [37] Rule 11 of the RPD Rules16 similarly states that a Claimant "must provide acceptable documents establishing their identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them." [38] I find that the letters from the Loyan Foundation and its predecessor, together with the sworn testimony of the Appellant adequately confirm her nationality of the Appellant and the clan to which she belongs. This evidence confirms she is a Somali national and a member of the minority Yibir tribe. [39] I agree with the RPD that the Appellant has not made efforts to obtain information from outside Canada which might confirm her personal identity, specifically records related to the sale of her property, and from XXXX, the woman with whom she stayed in Kenya, and that, despite the mitigating circumstance that the Appellant is illiterate, she has not adequately explained why she failed to do so. These failures to obtain corroborating documentation are troubling, especially in view of the time that has elapsed, and that the Appellant was effectively put on notice by a decision of the Federal Court of the need to provide additional documentation. However, in my view the Appellant has ultimately provided sufficient evidence, in the form of her sworn testimony, which is uncontradicted, and the uncontradicted testimony of a witness, to which I have given some weight, for her personal identity to be established. In my view, the totality of the evidence that has been provided is ultimately sufficient to establish the Appellant's personal identity on a balance of probabilities. [40] For the above reasons, and in view of the opinion provided by a Community organization, I find that the Appellant has satisfactorily established her identity. Is the Appellant a Convention refugee? [41] Counsel, in a brief analysis of the merits of the claim, submits that the Appellant faces more than a minimal possibility of persecution from Al-Shabaab and that given the Appellant's clan affiliation, gender and age there is no state protection or IFA for her. Counsel submits that the Appellant is a Convention refugee. [42] The Appellant testified that she avoided providing Al-Shabaab with the use of her home for its own purposes, and that she then left Somalia before receiving any further demands or threats from Al-Shabaab. The RPD decision was focussed on identity, and did not canvass whether there is more than a minimal possibility that the agents of harm have an ongoing motivation, and the means, to persecute the Appellant, including in areas within Somalia which are not under their control. Moreover, the RPD did not assess the significance of the Appellant's clan, her gender, or her age when deciding her claim. I am unable to make findings on these issues, which go to the heart of the Appellant's claim to be a Convention refugee, without re-hearing evidence that was presented to the RPD. Unfortunately, therefore, the matter must be remitted to the RPD so that it may make a further re-determination of the Appellant's claim. DETERMINATION [43] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act, the RAD allows the appeal and refers the matter to the RPD for re-determination by a differently-constituted Panel. (signed) "Ron Liberman" Ron Liberman July 27, 2020 Date 1 Sacaada Mahamad Hadi v. Canada (Minister of Citizenship and Immigration), 2018 FC 590 2 Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 3 Exhibit RPD-1, RPD Record at p. 42, Schedule 12 form. 4 Exhibit RPD-1, RPD Record at p.16, Basis of Claim form 5 Exhibit RPD-1, RPD Record at p. 32, IMM0008 form. 6 Exhibit RPD-1, RPD Record, p. 46, IMM5476 form. 7 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 8 National Documentation Package (NDP) for Somalia, March 29, 2019, Item 3.16, p.3 9 Exhibit P-2, Appellant's Record, Memorandum at p. 34, para. 40. 10 NDP for Somalia, March 29, 2019, Item 3.16, p. 4. 11 Exhibit RPD-1, RPD Record, p. 131 12 Exhibit RPD-1, RPD Record, p. 155. 13 Exhibit RPD-1, RPD Record, p. 58. 14 Exhibit RPD-1, RPD Record, p. 60. 15 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 16 Refugee Protection Division Rules, SOR/2012-256. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-13151 RAD.25.02 (January, 2020) Disponible en français 2 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 (January, 2020) Disponible en français