TB8-31715

RAD File / Dossier de la SAR : TB8-31715 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 Toronto, ON Appel instruit / entendu à Date of decision 22 January 2021 Date de la décision Panel S. Thompson Tribunal Counsel for the person who is the subject of the appeal Lani Gozlan Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Richard Long Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant, XXXX XXXX XXXX, is appealing a decision of the Refugee Protection Division (RPD) dated November 14, 2018, refusing his claim for refugee protection on the grounds of identity and credibility. [2] For the following reasons, the appeal is dismissed. I confirm the decision of the RPD, for other reasons, that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND OF APPEAL The Appellant's claim, the RPD's decision, and the Appellant's arguments before the Refugee Appeal Division (RAD) [3] Before the RPD, the Appellant alleged that he was a citizen of Somalia, and that he faced a serious forward-looking risk of persecution in that country from the terrorist group Al-Shabaab on account of his "perceived political opinion and [his] Sufi faith," as well as "clan based persecution at the hands of large clans and militias"1 due to his status as a member of the minority Asharaf clan and Hassan sub-clan.2 [4] The RPD refused his claim. It found the Appellant failed to establish his identity as a national of Somalia3 and that "numerous credibility concerns" raised doubts about "the veracity of all of [his] evidence," which led the RPD to believe "that the central allegations" in his claim were "not true, on a balance of probabilities."4 The RPD also found the Appellant's supporting documents were "insufficient to establish the truth of the central allegations of the case" and neither outweighed nor overcame "the cumulative credibility concerns related to the [Appellant's] testimony and evidence."5 In particular, the RPD found the Appellant's testimony about Somalia and his knowledge of "Somalia's geography, clan structure, religious practices" and language failed to establish his personal and national identity and did "not overcome [its] other credibility findings in relation to his identity."6 It declined to consider the Appellant's residual profile as a member of the Asharaf clan.7 [5] In this appeal, the Appellant submits the RPD erred in its credibility findings and in its consideration of the evidence before it, particularly documents and supporting letters he disclosed to establish his identity as a citizen of Somalia. The Appellant asks that I "substitute the negative decision of the RPD and accept his claim" or alternatively that I "send the matter back to the RPD for a redetermination."8 [6] On October 21, 2020 the Minister of Public Safety ("the Minister") intervened in this appeal on the grounds of program integrity. Relying on evidence in its intervention record, the Minister submits "salient details regarding the appellant's travel to and arrival in Canada, and the timeline of the appellant's travel to Canada ... contradict the declarations of the appellant."9 The Minister submits: "it is more likely than not that the appellant, XXXX XXXX XXXX, is one and the same as Canadian study permit holder and Kenyan national XXXX XXXX XXXX, who arrived at Toronto, apparently unaccompanied, using his Kenyan passport on XXXX XXXX XXXX 2017."10 [7] In an affidavit dated XXXX XXXX XXXX 2020, the Appellant "affirm[s] that the information contained in the Minister's submissions is correct" and that he was "untruthful" in "providing a different identity, name, date of birth and country of citizenship." He affirms he did so "out of extreme desperation, poor living conditions and fear of being targeted and possibly killed by either the gangs or police in Kenya."11 In written submissions dated XXXX XXXX XXXX 2020, the Appellant submits "that his life is truly in danger at the hands of gangs and police who target youth in Kenya."12 NEW EVIDENCE, APPLICATION FOR AN ORAL HEARING [8] The Appellant has applied under Rule 29 of the Refugee Appeal Division Rules ("RAD Rules") to admit two news articles "illustrating gang violence and police impunity in Kenya" in support of his allegation that he faces a serious forward-looking risk in Kenya at the hands of "gangs and police who target youth in Kenya."13 [9] As well, one of the items that makes up Exhibit "A" to the Appellant's affidavit of XXXX XXXX XXXX 2018 is a waybill from a courier envelope dated XXXX XXXX XXXX 2018.14 According to paragraph five of the Appellant's affidavit, the waybill is from a package that contained several original documents he asked a contact in Somalia to send to him in Canada in anticipation of his RPD hearing. As the waybill is part of the Appellant's perfected appeal record, it does not come within the scope of Rule 29 of the Refugee Appeal Division Rules. However, the waybill clearly post-dates the RPD's determination of the Appellant's claim at first instance, which suggests the document should be treated as new evidence in accordance with subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). [10] Although the Appellant has not asked me to admit the waybill as new evidence in this appeal, out of an abundance of caution and invoking Rule 52 of the Refugee Appeal Division Rules, I will determine whether it is admissible with reference to the explicit statutory requirements of subsection 110(4).15 [11] According to subsection 110(4), I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [12] I will first consider the two news articles in the Appellant's Reply Record of November 5, 2020. The news articles are dated April 3 and 4, 2017, and pre-date the RPD's determination of the Appellant's claim by more than one year and seven months. However, the Appellant submits these articles "could not have been provided earlier as regrettably [he] was not truthful regarding his identity and true basis for his fear of persecution."16 [13] The fact that the Appellant misled the RPD concerning his identity is not a reasonable basis for his failure to disclose these materials to the decision-maker. As the news articles were reasonably available at the time of the RPD's determination, they do not meet the explicit statutory criteria under subsection 110(4), and consequently I have no discretion to admit them into evidence. [14] I turn now to the waybill, which meets the statutory requirements, as it arose after the RPD's determination of the Appellant's claim on November 14, 2018. Given the disclosures in the Appellant's affidavit of XXXX XXXX XXXX 2020, however, I find that it is not relevant to my assessment of issues raised in this appeal concerning the RPD's weighing of evidence. I therefore decline to admit the document into evidence. [15] As no new evidence has been admitted in this appeal, there is no basis for me to convene an oral hearing in accordance with subsection 110(6) of the IRPA. ANALYSIS [16] My role is to look at all the evidence and decide if the RPD made the correct decision.17 I will apply the correctness standard of review after independently assessing the record in order to determine whether the RPD erred. I will only show deference to the RPD's credibility assessment and/or to its weighing of the oral evidence in situations where the RPD enjoys a particular advantage. If I find the RPD had a particular advantage, my reasons will explain why. [17] My determination is based on my independent assessment of the evidence before me. This includes the records prepared by the RPD and the Appellant; transcripts and audio recordings of all three sittings of the Appellant's RPD hearings on 24 May, 12 September and 10 October 2018; and documents contained in the current compilation of the National Documentation Package (NDP) for Kenya. The Minister's intervention, the Appellant's identity, and the Appellant's alleged risk of persecution [18] Paragraph three of the Appellant's affidavit of XXXX XXXX XXXX 2020 states that his "real name is XXXX XXXX XXXX" and that he "was born in Garissa, Kenya" and is "a Kenyan citizen."18 This is supported by evidence in the Minister's intervention record.19 I find on a balance of probabilities that the Appellant's identity as a national of Kenya has been established. [19] The Appellant's stated fear is that if he returns to Kenya he will be "killed by a local gang or police".20 He alleges that "[t]he real danger to [his] life is from gangs in Nairobi and police impunity as the authorities are killing youths suspected [of] criminal activity."21 Regarding his alleged fear of gangs, he states that he "was approached by the gangs on the street and they would rob and harass [him]" and that these "attacks increased as [he] got older."22 [20] Concerning his alleged fear of the police, the Appellant states "a man called 'XXXX' ... was hired on a contract by police to stop the gang activities" and "had a license to shoot and used to shoot even innocent youths." The Appellant alleges "on several occasions in 2015, 2016 and 2017" XXXX approached him and his friends and "threatened us that we look like the youths that he has killed and if you do anything wrong I will kill you."23 [21] In my independent assessment, the determinative issue in this appeal is credibility. I find the Appellant's credibility as a witness is fatally undermined by his decision to disclose his true identity as a national of Kenya only at the eleventh hour, and in the face of the Minister's intervention. [22] I acknowledge the Appellant "truly regret[s] misleading the Canadian government and [his] counsel."24 While I also accept his stated reasons25 for filing a claim under a false name and identity, his explanation is inadequate to remedy the serious damage done to his credibility and reliability as a witness in his own cause. [23] In short, I do not believe the Appellant's subjective fear of persecution is credible on a balance of probabilities. The timing of his new risk allegations is too closely tied to his admission that he misled the RPD as to his identity as a Somali national for me to accept that the Appellant continues to face any risk of persecution of harm in Kenya, including one that predates the initiation of his claim as he alleges. Nor has the Appellant disclosed any other evidence capable of credibly supporting his claim that he faces a forward-looking risk of persecution or harm in Kenya. [24] Given the foregoing, I find the Appellant's claim that he faces a serious forward-looking risk of persecution in Kenya, his country of nationality, is without merit. The Appellant is neither a Convention refugee nor a person in need of protection and his appeal is duly dismissed. CONCLUSION [25] I dismiss the appeal and confirm the decision of the RPD, for other reasons, that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) S. Thompson S. Thompson 22 January 2021 Date 1 Exhibit RPD-1, RPD Record, Exhibit 2, p. 28 (lines 131-133). 2 Exhibit RPD-1, RPD Record, Exhibit 2, p. 23 (lines 3-4). 3 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 5 at para. 11. 4 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 18 at para. 73. 5 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 18-19 at para. 74. 6 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 19 at para. 76. 7 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 19 at para. 78. 8 Exhibit P-2, Appellant's Record, Notice of Appeal, p. 2 at para. 6. 9 Exhibit M-1, Minister's Intervention Record dated October 21, 2020, p. 2 at para. d. 10 Exhibit M-1, Minister's Intervention Record dated October 21, 2020, Minister's Memorandum, p. 21 at para. 10. 11 Exhibit P-3, Appellant's Reply Record dated November 5, 2020, Appellant's Affidavit, p. 1 at para. 2. 12 Exhibit P-3, Appellant's Reply Record dated November 5, 2020, Appellant's Further Memorandum, p. 16 at para. 9. 13 Exhibit P-3, Appellant's Reply Record dated November 5, 2020, Appellant's Further Memorandum, p. 16 at para. 9. 14 Exhibit P-2, Appellant's Record, p. 22. 15 Subsection 110(4) of the IRPA. 16 Exhibit P-3, Appellant's Reply Record dated November 5, 2020, Appellant's Further Memorandum, p. 18 at para. 14. 17 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 18 Exhibit P-3, Appellant's Reply Record dated November 5, 2020, Appellant's Affidavit, pp. 1-2 at para. 3. 19 Exhibit M-1, Minister's Intervention Record dated October 21, 2020, pp. 7, 6, 12. 20 Exhibit P-3, Appellant's Reply Record dated November 5, 2020, Appellant's Affidavit, p. 2 at para. 4. 21 Exhibit P-3, Appellant's Reply Record dated November 5, 2020, Appellant's Affidavit, p. 4 at para. 12. 22 Exhibit P-3, Appellant's Reply Record dated November 5, 2020, Appellant's Affidavit, p. 2 at para. 4. 23 Exhibit P-3, Appellant's Reply Record dated November 5, 2020, Appellant's Affidavit, p. 2 at para. 5. 24 Exhibit P-3, Appellant's Reply Record dated November 5, 2020, Appellant's Affidavit, p. 5 at para. 13. 25 Exhibit P-3, Appellant's Reply Record dated November 5, 2020, Appellant's Affidavit, p. 1 at para. 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-31715 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