VB9-08169

RAD File / Dossier de la SAR : VB9-08169 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 XXXXXXXXa.k.a. XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 14, 2021 Date de la décision Panel Cynthia Pay 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 N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] This decision is about XXXX XXXX XXXX (the Appellant), who claims to be a citizen of Somalia. He is appealing a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant alleges that he fears returning to Somalia because he fears persecution by Al Shabaab as a Western returnee, as he lived in the United States (U.S.) for many years before coming to Canada, and on the basis of his identity as a minority Banadir/Reer Hamar clan member. The RPD rejected his claim on the basis that he had not established his identity on a balance of probabilities and because he lacked credibility. After considering his arguments and all of the evidence, I confirm the determination of the RPD that the Appellant has not established his identity on a balance of probabilities, as there are too many unexplained inconsistencies in the evidence of his identity, and that therefore he has not established that he is a Convention refugee or a person in need of protection. DECISION [2] I dismiss the Appellant's appeal and confirm the determination of the RPD. BACKGROUND [3] The Appellant claims that he is a Somali citizen. He alleges that he is a member of the minority Banadir/Reer Hamar clan; that in 1991 during the civil war there his father was killed; and that he was shot in the abdomen in 1992. After that, he fled to Kenya with his mother and siblings. He lived in a refugee camp there until it closed in 1994, when he and his siblings moved to Nairobi and his mother returned to Somalia. He married a Somali woman in Kenya in 1995, but they were separated when he fled to the United States in 1998. He made a refugee claim in the U.S. in 2000 which he reports was denied, but he was able to stay there and obtained a work permit, and eventually re-married a U.S. citizen. They had two children. He claims that his U.S. wife had sponsored him, but his application was revoked in 2018 because of new immigration polices under the Trump government. He then fled the U.S., entering Canada irregularly. He made a refugee claim here which was heard by the RPD on XXXX XXXX XXXX 2019. [4] As outlined in its oral reasons provided on the same date, the RPD rejected the Appellant's claim on the basis that he had not credibly established his identity. The Appellant had no official documentation of his identity. In considering the evidence provided to support the Appellant's claimed identity, it found that there were too many inconsistencies between his Canadian refugee claim and the documents filed for his U.S. refugee claim, including the chronology of when he left Somalia to go to Kenya; where he lived in Somalia; where he lived in Kenya; and where his children were born. The RPD rejected the Appellant's explanation that these were errors caused by interpretation problems and found that they diminished the credibility of his claimed identity and his credibility in general. It found that the omission of his claim that his sister was sexually assaulted from his narrative and his inconsistent evidence about his education further diminished his credibility; and that it was implausible that he would have married a woman from another clan. Further, it found that his other documentary evidence, including a letter from a community organization, was insufficient to overcome these credibility concerns, and he lacked other expected evidence such as documentation relating to his daughter born in Kenya or from his mother. [5] The Appellant argues that the RPD erred in these findings. He provides new evidence in support of his claimed identity and allegations and requests an oral hearing. He argues that any inconsistencies in the evidence in his U.S. asylum claim were errors likely caused by miscommunication with his interpreter, and that otherwise he was consistent regarding his claimed identity. He argues that he omitted his sister's sexual assault from his narrative because it was a very traumatizing subject for him to discuss; that the inconsistency regarding the schools he had attended was microscopic; and that an affidavit provided stating that he was born in Puntland, Somalia, not Mogadishu, was in error. Further, his other evidence should have been given more weight by the RPD. Finally, he provides new evidence addressing some of the findings of the RPD, including documentation regarding his daughter born in Kenya and his claimed gunshot wound. ANALYSIS ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [6] As held by the Federal Court of Appeal in Huruglica,1 the RAD must review RPD decisions on a correctness standard with respect to questions of law and findings of fact (and mixed fact and law) which raise no issue of the credibility of oral evidence. Deference may be required when the RPD is in an advantageous position with respect to the assessment of oral evidence.2 In this appeal, I was able to review and clearly understand the transcript of the hearing and the record, and I do not find that the RPD was in an advantageous position in assessing this evidence. I therefore do not apply a deferential standard. NEW EVIDENCE [7] The Appellant submits the following new evidence in support of his appeal: * Letter from the Somali Banadir Association of Canada dated XXXX XXXX XXXX 2019.3 * Documents regarding his daughter born in Kenya, including her birth certificate dated XXXX XXXX XXXX XXXX and two school documents, one undated and one dated XXXX XXXX XXXX 2019.4 * Letter from XXXX XXXX XXXX dated XXXX XXXX XXXX 2019.5 He also provides an affidavit, which I accept regarding his explanations for why his new evidence is being submitted to the RAD. He reiterates other evidence, such as explanations for inconsistencies in his evidence, which repeat evidence provided at the RPD and is already before me. This part of the affidavit is not new and I do not accept it as new evidence, although I will consider his affidavit as well as his memorandum as arguments in his appeal. He argues that the new documentary evidence goes to the heart of his claim and addresses the RPD's credibility and identity concerns, and that the reasons why this evidence was not provided earlier are reasonable. He submits that the letter from the Somali Banadir Association establishes his claimed clan affiliation; the medical report confirms his scar caused by the claimed gunshot wound; and his daughter's Kenyan birth certificate and school documents had been noted as missing by the RPD. [8] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) provides that the Appellant may present only evidence that arose after the rejection of his claim, that was not reasonably available, or that could not reasonably have been expected in the circumstances to have been presented at the time of the rejection of the claim. If the new evidence meets one of the criteria set out in subsection 110(4), then the RAD may assess its admissibility further based on its credibility, relevance and newness.6 [9] Letter from the Somali Banadir Association of Canada: Regarding this letter dated XXXX XXXX XXXX 2019 from this group, which is a settlement organization serving the Benadiri community, the Appellant argues that he was in Manitoba at the time of his RPD hearing, and that there was no Banadiri association there. He was only able to contact this association and obtain this letter after his move to Toronto, and therefore the letter is new and was not reasonably available to him at the time of the rejection of his claim. [10] I accept that this letter meets the criteria for new evidence as argued by the Appellant. I note, however, that it is quite terse, and give it only limited weight, as it provides little detail regarding its reasons for supporting his claimed Banadiri clan membership as follows: This letter is to bring to your attention that Somali Banadir Association of Canada is a Non-Profit-Association. It is established in to aiming and helping the Banadiri their settlement in Canada. In Canada, we are legal institution who can say and witness if required of the person belonging to Banadiri tribe through interviews the Banadiri language, knowledge and any other methods. Therefore we wish to inform you that XXXX XXXX XXXX XXXX XXXX in subject belongs to the Banadiri ethnic minority Somalia.7 [11] Documents regarding the Appellant's daughter: The Appellant has provided three documents regarding his daughter XXXX XXXX who was born in Kenya: her Kenyan birth certificate, a copy of her Kenya Primary School Learning Certificate dated XXXX XXXX XXXX XXXX, and her Kenya Certificate of Primary Education.8 He argues that he had requested these documents before his RPD hearing, but was unable to obtain them earlier because his family in Kenya was living in a precarious situation without status, and were unable to send them until later. [12] I accept the Appellant's explanation that he was unable to obtain these documents until after the rejection of his claim and admit these documents as new evidence. [13] Letter from XXXX XXXX XXXX XXXX XXXX: The Appellant submits a letter from XXXX XXXX XXXX dated XXXX XXXX XXXX 2019, which states that: This is to state that the above-named patient was seen by me. He states that he has sustained gun-shot wound to the abdomen (left side) in 1992 in Somalia. The exam shows normal vital signs and other systems (clinically) except an abdominal injury and repair marks as follows: A left mid abdomen 4 cm horizontal scar, bullet injury site A mid abdomen 20 cm laparatomy (abdominal surgical repair site). If you need more information, please call my office.9 The Appellant argues that the letter meets the criteria for acceptance by the RAD, as he believed he could show his scar at the hearing and that the RPD would not have any reason to doubt his credibility on this point. [14] I accept the Appellant's argument and admit this report, as he did offer to show his scar during the hearing,10 and the RPD made a negative inference from the fact that the panel did not see the scar or photos of it and because the Appellant did not provide medical documentation in support of his claimed injury. As a result, in the specific fact situation of his case, I find that it was not reasonably expected to have been provided at the time of the rejection of his claim, as the Appellant did offer to show his scar to the panel, but this offer was not accepted. I note, however, that the report only confirms the scar and surgical repair, and not the specific details of the Appellant's allegations. ORAL HEARING [15] The Appellant requests an oral hearing. Section 110(6) of the IRPA provides that the RAD may hold an oral hearing if there is new documentary evidence that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; that is central to the decision with respect to the refugee protection claim; and that, if accepted, would justify allowing or rejecting the refugee protection claim. Based on my review, I find that the new evidence is not central and would not justify allowing or rejecting the Appellant's claim. The medical evidence and documentation regarding the Appellant's daughter respond to relatively minor credibility findings by the RPD, and the letter from the Banadiri association is not sufficient on its own to justify allowing or rejecting his claim. The Appellant has not established his identity on a balance of probabilities Inconsistencies regarding the Appellant's identity [16] The RPD found a number of inconsistencies in the evidence regarding the Appellant's identity, and that his other evidence was insufficient to overcome these inconsistencies. These findings included: * In his U.S. asylum claim, he stated that he went to Kenya in 1997, but in his Canadian refugee claim he states that he fled to Kenya in 1992. * In his U.S. claim it states that he lived in XXXX XXXX Somalia for 6 years, but in his Canadian claim he states that he only lived in Mogadishu, Somalia. * He does not mention living in a refugee camp in his U.S. claim, and states that he was only in Kenya for a few months, but in his Canadian claim he states that he lived in a refugee camp in Kenya for a number of years and was in Kenya from 1992 to 1998. * In his U.S. claim it states that he has two children who were born in Somalia, but in his Canadian claim he states that none of his children were born there and that they were born in Kenya and the U.S. * An affidavit by XXXX XXXX in support of his U.S. claim states that the Appellant was born in Galkayo, Puntland, Somalia and that the affiant knew him in Somalia; but in his Canadian claim, the Appellant testified that he only met this person in Minnesota, and that the affiant was mistaken because the Appellant was born in Mogadishu, Somalia. [17] When confronted by these inconsistencies during his RPD hearing, the Appellant testified that the inconsistencies between his U.S. and Canadian claims were the result of errors, possibly caused by poor interpretation, and that the information in his Canadian claim was correct. He explained that the information in the affidavit was in error. The RPD did not accept these explanations, noting that the statements in both his U.S. and Canadian claims were sworn statements and that he had legal representation for his U.S. asylum claim as well as in his U.S. wife's sponsorship application for him. It found that these contradictions negatively impacted the credibility of his claimed identity as well as his overall credibility. [18] The Appellant argues before the RAD that the RPD erred in these findings, and that his new evidence helps establish his claimed identity. The inconsistencies in information in his U.S. and Canadian claims could be explained by miscommunication with the interpreter used while making his U.S. claim, as well as the fact that he was initially in detention in the U.S. Further, he has now provided documentation corroborating that his daughter was born in Kenya as stated in his Canadian claim. He reiterates his explanation provided to the RPD that he only passed through XXXX for a few days on his way out of Somalia and did not live there. He cites caselaw that cautions against putting too much emphasis on statements given at the port of entry, as the circumstances at that point may not be ideal and such statements may not be reliable; in his case, he was initially in detention, had to communicate via an interpreter, and was unaware of the errors in his U.S. documents. [19] While I do consider the Appellant's argument that one or two of the inconsistencies in his statements may have been in error or as the result of an interpretation problem, I find that this is an insufficient explanation for the sheer number and significance of the inconsistencies in the evidence of his identity and chronology of his claim that are outlined above. As noted by the RPD, he had legal representation in his U.S. claim and he was also represented in his RPD hearing in Canada. These inconsistencies were not identified and corrected in his Canadian claim but were only addressed when raised by the RPD during the Appellant's hearing. While he has now provided documentation regarding one daughter born in Kenya, this does not resolve the other inconsistencies in the evidence about his family, and is not central to his own identity and does not help to establish his claimed Somali citizenship. I find that these numerous and significant inconsistencies seriously diminish the credibility of the Appellant's claimed identity as a Somali citizen and the chronology of his claim, including when he left Somalia and where he went after that. Other evidence in support of the Appellant's claimed identity [20] I find that the Appellant's other evidence does not overcome these credibility issues. His own testimony and statements in his Canadian claim were contradicted by other statements in his U.S. claim, as discussed above, which seriously diminishes the credibility of this evidence. [21] The Appellant provided a number of affidavits in support of his identity and claim. As part of his U.S. immigration file, there are three affidavits. The affidavit of XXXX XXXX is discussed above.11 I have found that it is inconsistent with the Appellant's evidence regarding where he was born in Somalia, and that it diminishes the credibility of his claimed identity. There is also an affidavit from XXXX XXXX XXXX stating that the Appellant's first wife died and was buried in Puntland, Somalia.12 The RPD found that it was implausible that the Appellant would be married to a woman from a majority clan, and the Appellant argues that this was an impermissible implausibility finding. I agree that the RPD erred in this credibility finding, as such findings should only be made in the clearest of cases, such as when the facts as presented are outside the realm of what could be reasonably expected.13 I find, however, that although this affidavit tenuously links the Appellant to Somalia as argued by the Appellant, it is of limited help in establishing his claimed identity, as this is its full text: 1. That XXXX XXXX was the wife of XXXX XXXX XXXX XXXX. 2. That XXXX XXXX, died on XXXX XXXX XXXX 2005 in Galkayo, Puntland State, Somalia 3. I am present when XXXX XXXX passed away and I visited her burial location. It does not confirm the Appellant's nationality or identity. There is another affidavit from XXXX XXXX XXXX XXXX, who states that: 1. I have known XXXX XXXX XXXX XXXX parents since my childhood. I am personally familiar with the events establishing his claim for asylum in United States. 2. I am XXXX XXXX XXXX XXXX close relative. 3. XXXX XXXX XXXX XXXX was born in Mogadishu, Somalia- XXXX XXXX XXXX XXXX. 4. XXXX XXXX XXXXandXXXX XXXX XXXX XXXX are the parents of XXXX XXXX XXXX XXXX.14 Although this confirms the Appellant's claimed name and birth in Somalia, I find that it provides no detail regarding his citizenship, their relationship, how well he knows the Appellant or when he was in contact with him except to say that they are "close relatives." As a result, I give this affidavit limited weight. [22] The Appellant also provided letters of support and affidavits with his Canadian refugee claim. He provides a letter from the Manitoba Somali Association that supports his claimed identity as a Somali citizen and member of the Banadiri minority group on the basis of interviews by three community elders of the Appellant; of XXXX XXXX, another member of the Somali community in Winnipeg who knows the Appellant and his family background; and of other unnamed members of the Somali community from Mogadishu.15 The letter states that the Appellant's interview focused on the geography of Mogadishu. I consider this letter, but give it only limited weight, as I note that knowledge of geography is not strong evidence of citizenship or personal identity, and further, details of the knowledge and relationship between the Appellant and other community members is not provided. A similar statutory declaration from the president of the Winnipeg Somali Community association is also provided.16 While this declaration also supports the Appellant's claimed identity as a Somali citizen, it states that it is based on an assessment of the Appellant's accent and local and tribal knowledge, but further details are not provided in the affidavit, and as a result, I give this limited weight. The Appellant has also submitted as new evidence a similar letter from the Somali Banadir Association of Canada, which I have also given only limited weight as discussed above. [23] The Appellant provided affidavits in support of his claim and argues that the RPD erred in failing to give these documents weight. Based on my review of these affidavits, I find that they do provide some support for his claimed identity, but can only give them limited weight. An affidavit from XXXX XXXX XXXX states that he knew the Appellant in 1982 in Mogadishu and that they were friends. The affiant reports that he left Somalia in 1987, but that he met up again with the Appellant in Canada in 2019.17 This affidavit places the Appellant in Somalia in the 1980s, but does not confirm his citizenship, clan or his whereabouts for over 30 years between 1987 and 2019, or provide much detail about their relationship. As a result, I give the affidavit limited weight. The Appellant also provided an affidavit from XXXX XXXX XXXX, who states that he knew the Appellant in Mogadishu, that they played soccer and saw each other frequently, and that the last time he saw him there was in 1990. He states that he had some contact with him when he was in the U.S. but they lost contact until they met in Toronto, and confirms that the Appellant is a Somali citizen. I give this affidavit limited weight for similar reasons: the affiant had little contact with the Appellant for almost 30 years between 1990 and 2018 or 2019; he states that the Appellant is a Somali citizen but gives no basis for this statement except for the fact that he knew him in Mogadishu almost 30 years ago; and he states that he only "gradually" recognized him when they met in Toronto. [24] I do not agree with some of the other credibility findings made by the RPD. I agree with the Appellant's argument that the RPD's finding regarding the name of the elementary school he attended in Somalia was somewhat microscopic and put no weight on it. I also accept his explanation that he may have omitted the incident involving the sexual assault of his sister from his narrative because it was a traumatizing incident to re-visit. I note that the Appellant has provided new evidence about his daughter in Kenya and to corroborate his abdomen injury, and put no weight on the credibility findings made by the RPD based on the absence of this corroborative evidence. I accept that the Appellant is unable to obtain corroborative documentation from his mother, who is elderly and living in Somalia, and make no negative inference from its absence. [25] I do find, however, that the inconsistencies in the evidence regarding the Appellant's identity is too significant, including the inconsistent evidence about where he was born; where he lived in Somalia and when he left Somalia; how long and where he lived in Kenya; and where his children were born; and that these serious inconsistencies were not adequately explained or overcome by his other evidence of his identity as discussed above. As a result, I find that the Appellant has not established his claimed identity as a Somali citizen and member of the Benadir minority clan on a balance of probabilities, and that this is determinative of his claim. CONCLUSION [26] On the basis of the findings outlined above, I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Cynthia Pay Cynthia Pay January 14, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157. 2 Huruglica, ibid., at para. 70; X(Re), 2017 CanLII 33034 (CA IRB). 3 Exhibit P-2, Appellant's Record, at p. 11. 4 Ibid., at pp. 12-14. 5 Ibid., at p. 15. 6 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (CanLII), cited in Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230, at para 64. 7 Exhibit P-2, Appellant's Record, at p. 11. 8 Ibid., at pp. 12-14. 9 Ibid., at p. 15. 10 Transcript of September 23, 2019 RPD Hearing at p. 53. 11 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 144. 12 Ibid., at p. 143. 13 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII), at para. 7. 14 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 145. 15 Ibid., at p. 177. 16 Ibid., at p. 178. 17 Ibid., at p. 179. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-08169 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