TB9-09476

RAD File / Dossier de la SAR : TB9-09476 TB9-09477 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision September 4, 2020 Date de la décision Panel T. Card Tribunal Counsel for the persons who are the subject of the appeal Micheal Crane Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Richard Long Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the "Principal Appellant"), and XXXX XXXX XXXX (the "Second Appellant") allege to be citizens of Somalia. They are appealing a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection on the basis the Appellants have not established their identities. [2] The Principal and Second Appellants are sisters. DETERMINATION [3] The appeals are dismissed. BACKGROUND AND ALLEGATIONS [4] The Appellants alleged that they are citizens of Somalia and that they are members of the Hororsame clan. The Appellants alleged that they fear Al-Shabaab on the basis they were targeted by them for forced marriage. Family members have been threatened and some killed. [5] The Appellants fled Somalia in XXXX 2018 with the assistance of a smuggler. After entering Canada, the Appellants made their refugee claims, but were refused by the RPD on the basis they had not established their identities. RULE 29 APPLICATIONS [6] The Appellants did not submit any new evidence with the perfection of appeal. However, they did submit a package of new evidence1 (Exhibit P-3) to be considered under Rule 29 of the Refugee Appeal Division Rules.2 The proposed documents are all related to a request by the Appellants for JHS to be allowed to be a new identity witness. [7] The Appellants were also advised by the Board on 15 June 2020 that further submissions could be made within 30 days, due to the temporary closure of the Board's facilities resulting from the COVID-19 pandemic. A new package of documents3 was received in time (Exhibit P-4). [8] Rule 29 allows the Appellants to make an application to provide a document not previously provided. Such an application must include an explanation of how the document meets the requirements of section 110(4) of the Immigration and Refugee Protection Act (IRPA) and how that evidence relates to the Appellant.4 In determining the application, the Refugee Appeal Division (RAD) must consider any relevant factors, including: the relevance and probative value of the document, any new evidence the document brings to the appeal, and whether the Appellants could have, with reasonable effort, provided the document with the Appellants' Record. Exhibit P-3 Rule 29 evidence rejected [9] The Appellants have argued that JHS could not have been admitted as a witness. Firstly, the Appellants have argued "as far as we knew," JHS's identity had not been accepted and they did not think JHS could testify on their behalf. [10] JHS had her RPD hearing on 7 February 2019 and received an oral positive decision on that day. The transcript indicates that JHS was present when the oral decision was rendered.5 Even if JHS did not yet have paperwork, she could testify on oath that she had been accepted as a refugee orally, and the RPD member could verify this in the RPD's internal records. [11] I do not accept the explanation that the Appellants "as far as [they] knew" did not know JHS's identity had been accepted. The Appellants firstly allege that they met JHS in Canada for the first time (after knowing each other in Somalia previously) on XXXX XXXX 2018. JHS states in her affidavit6 that the Appellants did not know JHS had been accepted until after the Appellants' called JHS to tell her about their case. This is inconsistent with the Principal Appellant's affidavit, which states that JHS called the Appellants.7 [12] Even if this inconsistency can be dismissed as a minor one, the Principal Appellant states that contact was made on XXXX XXXX 2019.8 This is over a month before the RPD decision was rendered on 27 March 2019. The Appellants had the benefit of paid counsel, who could have applied for a new sitting to be held in order for JHS to give her evidence, or even to submit an affiadivt from JHS to the RPD as post-hearing evidence. The written transcript of JHS's decision was also issued on 26 February 2019, ahead of the RPD decision for this appeal. [13] The Appellants have also argued that they were unable to hire their current RAD Counsel until 2 May 2019, and that this Counsel was unable to meet with JHS until after perfection of the Appeal. [14] I find that a change of Counsel is not a sufficient reason to find that the evidence was unavailable, unless there has been an allegation of previous Counsel incompentence, and that such incompetence has been found to have taken place by a RAD Member. This is not the case here. [15] When taking all of these circumstances into account, I find that the evidence was not only available before the Rule 29 Application, but in fact was available before perfection of the Appeal, and would not meet the s.110(4) requirements. If this were a regular new evidence application under s.110(4), the evidence would be rejected at this point. [16] However, I note that the cases of Semykina9and Arisekola10 require that I must also consider the documents' relevance and probative value, and any new evidence that the documents bring to the appeal. [17] The documents are certainly relevant and probative and do bring new evidence. However, considering Rule 29(4)(c), I am not satisfied that the Appellants could not have, with reasonable effort, provided this evidence at the time of perfection of the appeal. I find that the fact that the documents would not even pass the s.110(4) requirements to be deeply troubling. I do not believe it was the Federal Court's intention to make it easier for new documents to meet the requirements of a Rule 29 than those under s.110(4) of the IRPA. Yet if I allow the evidence due to the documents' relevance, probative value and new evidence, this is exactly what would result. This is not a precedent I am prepared to set. It would create a perversion of the new evidence rules. Doing so also could reduce incentive to comply with the s.110(4) rules and instead wait to make a Rule 29 application. [18] I therefore find, in a case where even the s.110(4) requirements would not have been met, as is the case here, the documents cannot therefore meet the requirements of Rule 29. The documents are therefore rejected. Exhibit P-4 Rule 29 Evidence accepted [19] The documents in Exhibit P-4 relate to the Appellants' mother meeting the Appellants' midwife in Kenya in XXXX XXXX XXXX 2020. They are being provided in order to address the issue of identity. [20] The event of the Appellants' mother meeting the Appellants' midwife did take place after the perfection of the Appeal and therefore the Appellants could not have, with reasonable effort, provided the documents with the Appellants' record. [21] The documents are also relevant to the issue of identity and appear credible on their face for admission purposes. This is not the same as weight, which will be assessed later. [22] For these reasons, I accept the documents in Exhibit P-4 as new evidence under Rule 29. MINISTERIAL INTERVENTION [23] Counsel for the Minister of Citizenship and Immigration (the Minister) independently sent in their intervention11 after both Rule 29 applications were submitted. A copy of the intervention was sent to the Appellants' Counsel. I gave the Appellants over 14 days to reply to the intervention. No reply to the intervention was received. I note that by this time, full mail service for the Board had been restored for more than a month, and that there was no impact on the Appellants' ability to reply by this point due to COVID-19. NO ORAL HEARING [24] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.12 [25] For reasons that will be discussed in more detail below, I find that Exhibit P-4 does not provide enough evidence which, if accepted, would justify allowing or rejecting the claim due to the presence of the Ministerial Intervention. I therefore cannot hold a hearing. ISSUES IN APPEAL [26] The Appellants argue the following issues in their appeals: a. The RPD erred in its analysis of the Appellants' evidence and its finding that they had not established their identities. b. The RPD did not take proper account of the psychological report provided by XXXX XXXX XXXX.13 c. The RPD erred by not taking into account the Appellants' ages, educational background and gender when assessing their evidence. d. The RPD erred in its assessment of the evidence of HMA (the RPD Witness) and its finding that the RPD Witness was unable to corroborate the Appellants' identities. e. The RPD erred in finding the Appellants not credible regarding the lack of travel documents or proof of travel. [27] The Minister argued the following issues in his intervention: a. The Appellants are not who they say they are. They are not Somali citizens. The Minister alleges that the Appellants are Kenyan nationals named XXXX XXXX XXXXand XXXX XXXX XXXX. b. The Appellants did not travel to Canada and enter Canada in the manner alleged. [28] I find that the determinative issues in these appeals are: a. Identity b. Credibility ANALYSIS [29] I have conducted an independent analysis of the evidence concerned, including reviewing the record of the RPD hearing, as well as considering the Appellants' Memorandum,14 the RPD Decision,15 the Principal Appellant's Basis of Claim (BOC) form and narrative,16 and the Minister's Intervention package.17 Minister's evidence is convincing [30] The Minister provided copies of student visa applications18 which show the Appellants to be Kenyan citizens with different names, rather than Somali citizens as alleged. As part of this, the Minister also provided a photo comparison19 between the photographs taken at the time of the visa applications and the photos taken during the refugee applications. [31] I have also done my own comparison between the photographs in the passports provided by the Minister20 and the ones attached to the Generic application forms.21 I find on a balance of probabilities that the photograph in XXXX XXXX XXXX passport22 matches the photograph on the Principal Appellant's Generic application form.23 I also find on a balance of probabilities that the photograph in XXXX XXXX XXXX passport24 matches the photograph on the Second Appellant's Generic application form.25 [32] The Minister also points out that the dates of birth for the Principal Appellant and Second Appellant stated in the passports and in the refugee application forms are very similar, putting the two identities at very similar ages. The Principal Appellant's passport has a birth year of 1997, while the refugee forms say 1998. The Second Appellant's passport and refugee forms both give a birth year of 2000. [33] I find the Minister's evidence and submissions on this point to add weight to his arguments about the actual identities of the Appellants. Missing evidence not satisfactorily explained [34] The RPD made reference to a number of instances where the Appellants failed to attempt to get certain pieces of evidence. [35] One of these was from AG, the lady who met the Appellants at the airport in Toronto. The Appellants allege that AG's mother know their mother. The RPD noted that AG did not provide an affidavit, nor make herself available to provide testimony about how she knows the Appellants. The RPD also notes that the Appellants did not provide an explanation as to why they did not get this evidence. [36] The Appellants were also asked by the RPD what efforts were made to contact relatives in Somalia. The Principal Appellant's responses appear erratic, ranging from saying that she asked her mother (living in Kenya) for evidence, to then saying she does not know if her mother contacted anyone and that she did not ask her mother about this, to saying she is certain her relatives are scared to contact the Appellants. None of these answers directly address the question as to why the Appellants have not attempted to contact relatives in Somalia directly. [37] The Appellants' argument has been that the RPD failed to take into account their psychological state due to major depressive order of moderate severity and post-traumatic stress disorder as diagnosed by XXXX XXXX XXXX.26 [38] I do not accept this as a reasonable rebuttal for the RPD's analysis and finding. The RPD was correct to point out that the Appellants had the benefit of paid counsel to obtain all the evidence they could to establish their cases including their identities. The report and diagnosis are not a sufficient explanation as to why they made efforts to get certain pieces of evidence presented, but not the evidence referred to by the RPD. [39] I have also considered the Appellants' arguments that the RPD failed to take into account their education, gender and ages when assessing the Appellants' evidence. As it pertains to the Appellants' failure to request the above-discussed pieces of evidence, again I find that these are not factors that address this failure, especially given the assistance of paid Counsel. [40] I find the RPD did not err in its analysis, and was correct regarding the evidence which the Appellants did not attempt to obtain nor its treatment of XXXX XXXX XXXX report in its decision. I uphold these findings accordingly. Travel history credibility problems [41] The RPD also found the Appellants' alleged travel history to Canada to have numerous credibility problems. The RPD noted that no evidence of the alleged travel history, including travel documents used, or boarding passes, were presented. The RPD drew an adverse credibility finding. [42] The RPD also noted that the Appellants only knew the first names they needed to use for their trip, and had no other details such as last names or dates or places of birth used in the passports. The Appellants did know that the same last names were used in the passports. Again, the RPD drew adverse credibility findings on the basis they should know these details as they could be needed when questioned by immigration officers. [43] The Appellants have argued that such issues are peripheral to the overall case and that they should be not rejected on this basis. [44] If this was the only reason the RPD rejected the Appellants' claims, this would be true. However, even in relation to the Appellants' allegations regarding the passports used, another problem arises. [45] The RPD pointed out that the Appellants openly admitted, in their own testimony, that they did not provide photographs to the smuggler, and that as a result, the smuggler found two Swedish passports with photographs that looked like the two Appellants and which had the same last names. The RPD did not find this credible. [46] While this may be a plausability finding, I find it is a valid one made in the clearest of cases that these set of coincidences are simply too far fetched to believe. The Appellants have not satisfactorily addressed this issue. [47] Further to this, the Minister has provided a copy of the Integrated Customs Enforcement System (ICES) report27 showing that the individuals matching the provided passports entered Canada within seconds of each other on XXXX XXXX 2018 at Toronto Pearson Airport. I find this evidence to far outweigh the Appellants' unsubstantiated allegations. [48] As a result, I find the RPD's overall analysis regarding the Appellants' travel history was correct and I uphold its findings. Employee's letter not credible [49] I have also considered the letter28 allegedly sent by an employee of the Appellants' father as evidence of the Appellants' identities. I note that the RPD Member examined a covering email on the Appellants' RPD Counsel's phone as to its provenance. The email with the attached letter was sent by someone with a different name to that of the employee. The Principal Appellant did not know the name of the email sender but concluded he sent it on the employee's behalf. [50] I note from the National Documentation Package (NDP)29 that documentation from Somalia can be unreliable especially due to high corruption. When this is combined with the problems with the provenance of the letter, the lack of any accompanying identity document, and the fact that no attempt to present the employee as a witness to add detail to the letter means that no weight can be afforded to this letter. [51] The Appellants have not adequately addressed these issues in their Memorandum. I find that the RPD did not err in its analysis of this document and uphold its findings accordingly. Family Letters from Kenya worth little weight [52] The RPD also found that affidavits from family members, including the Appellants' mother, currently living in Kenya, were not genuine due to the lack of identity documents of both of the affiants, and for the lawyer in front of whom the affidavits were sworn. An adverse credibility finding was drawn. The Appellants argued that the RPD erred for making these findings as the affiants themselves have no direct identity documents due to being Somali, and that in relation to the lawyer, identity documents for a Canadian lawyer would not be required, and so the same should be said for foreign lawyers. [53] In this case, I find that the RPD erred by drawing adverse credibility inferences against the Appellants for the letters' deficiencies. The RPD, however, has not erred in finding the letters worth little weight due to problems regarding provenance. [54] I can accept that the affiants may not have primary identity documentation, and I can accept that the lawyer is who he says on the letter's face due to the seals and signatures at the bottom of the documents. However, the question still remains on how the Kenyan lawyer can satisfy himself about the truth of the affiants' declarations. The Kenyan lawyer would surely also have the same problems in establishing the affiants' identities as we do establishing the Appellants' identities. [55] These existing problems, combined with a lack of detail in the statements, and combined with the Appellants' lack of willingness to even present the affiants as witnesses to expand on these statements with oral testimony, means that the affidavits carry little weight. Midaynta Letter carries little weight [56] The Appellants also provided a letter from Midaynta Community Services30 which states that after interviews, the Appellants have been determined to be Somali. [57] The RPD gave no weight to the letter as the letter does not provide detail as to the questions asked, the difficulty of the questions asked, and the lack of other information on how the examiner arrived at the conclusion that the Appellants were Somali. [58] The Appellants have argued the RPD erred, as caselaw shows that discounting examinations by community organisations like Midaynta is an error. [59] I find that while the RPD erred in awarding no weight to the Midaynta letter for the reasons stated above, the Appellants have also not addressed the fact that Midaynta's letter provides little detail, beyond a test of Somali language, geography and politics; and on how a conclusion about the Appellants' alleged Somali citizenship was reached. [60] I find it problematic that these questions would establish nationality, and that the RPD's concerns that someone who is not Somali can acquire this knowledge, has simply not been addressed. In fact, this appears on a balance of probabilities to be the case here, as there is more evidence to show the Appellants are Kenyan citizens who learned Somali knowledge. [61] Accordingly, I find that the RPD erred in awarding no weight to the Midaynta letter, and substitute my finding that it be awarded little weight. The practical difference in this case, however, is negligible. The extra weight awarded is not enough to overcome the other problems with the Appellants' evidence. Witness evidence insufficient to establish identity [62] The Appellants also provided an identity witness. I note for the record that contrary to Rule 44(1) of the RPD Rules31, no advance statement or notification of the witness was provided to the RPD, and that therefore, there is no witness statement or affidavit to refer to in the RPD Record. Only the Witness's oral testimony was available for me to examine. [63] The evidence before me is that the Witness knew the Appellants from the Appellants' XXXX XXXX in Somalia. The Principal Appellant stated she saw the witness about four times a week as a customer. The Principal Appellant was not consistent about how long the Witness was seen for, ranging from two and a half years down to one year. The Witness and Appellants testified they did not see each other in Somalia outside the XXXX. [64] Both the Witness and Appellants testified that after 2017, they did not see each other in Somalia again. It was not until a chance encounter at a community office that they saw each other. [65] The RPD found that this reunion in Canada was suspicious and that the knowledge of each other could have been acquired simply by the Appellants telling the Witness what to say. [66] The Appellants have argued that the RPD erred in making an adverse plausibility finding regarding how the Witness and Appellants met back in Canada, when these should only be made in the clearest of cases. [67] The fortuitousness of the meeting is certainly troubling, but it is not the only problem with the Witness's evidence. The nature of the alleged relationship in Somalia is a tenuous one, and not a close one by the admission of all involved parties. This can mean that the evidence provided is more easily consistent, but also worth little in terms of weight. Just because evidence is consistent doesn't make it weighty and reliable. The lack of detail causes a problem. [68] The Appellants have addressed this to an extent, saying that if the evidence is "not substantial by itself, this evidence ought to be evaluated with the other credible evidence."32 This is where the next problem lies. There isn't much credible evidence to go on. There are credibility problems. The Appellants have failed to attempt to obtain all the evidence they could to establish their cases and identities. Using this very lens, I find the RPD did not err awarding little weight to the Witness's testimony. XXXX XXXX knowledge [69] The RPD also made adverse findings against the Appellants regarding their knowledge of which forces were present in XXXX XXXX. [70] The Appellants have argued that their lack of education and the fact they gave some accurate information regarding the presence of Ethiopian forces should count in their favour, and that the RPD erred in drawing an adverse credibility finding. [71] I find that even if the RPD were considered to have been too microscopic on this finding, it does nothing to address the other credibility and evidentiary problems already discussed. Evidence from the Midwife does not carry sufficient weight [72] I have also considered the additional evidence from the Appellants' midwife contained in Exhibit P-4. This includes brief affidavits from the Appellants' mother and the midwife, along with a court confirmation about the notary signatures used and a copy of the midwife's Somali passport. [73] I find that I can give little weight to these documents given the other credibility issues already identified. [74] I have also considered how oral evidence might be able to overcome these credibility concerns. I find that they cannot. Neither the midwife nor the mother can offer any kind of evidence, including testimony, explaining why the Appellants have Kenyan documentation provided by the Minister. CONCLUSION [75] Overall, I find that the Appellants' credibility problems are too numerous, and that the Appellants did not take all reasonable steps to establish their identities. These outweigh the few pieces of positive evidence available. [76] I also find on a balance of probabilities that the Minister has established that the Appellants are not who they say they are, and are not Somali citizens. I find on a balance of probabilities that the Principal Appellant is actually XXXX XXXX XXXX, a citizen of Kenya, and that the Second Appellant is XXXX XXXX XXXX, also a citizen of Kenya. [77] As the Appellants have not made a refugee claim against Kenya, the Appellants are not refugees and can return to Kenya safely and reasonably. [78] I find that the RPD did not err in its overall finding that the Appellants have not established their alleged identities. [79] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD that the Appellants are neither refugees nor persons in need of protection. The appeals are dismissed. (Signed) T. Card T. Card 4 September 2020 Date 1 Exhibit P-3, Appellants' Rule 29 Application dated 27 May 2019. 2 Refugee Appeal Division Rules, SOR/2012-257. 3 Exhibit P-4, Appellants' Rule 29 Application dated 14 July 2020. 4 Rule 29(3), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 5 See in particular Exhibit P-3, Appellants' Rule 29 Application, Page 11, Lines 20-25. 6 Exhibit P-3, Appellants' Rule 29 Application, Page 6, Paragraph 9. 7 Ibid., Page 2, Paragraph 3. 8 Ibid. 9 Semykina v. M.C.I. 2019 FC 249. 10 Arisekola v. M.C.I. 2019 FC 275. 11 Exhibit M-1, Minister's Intervention Record received 17 August 2020. 12 Immigration and Refugee Protection Act, S.C. 2001, c. 27, subsection 110(6). 13 Exhibit RPD-1, RPD Record, Exhibit 6, Pages 98-104. 14 Exhibit P-2, Appellants' Record, Memorandum, Pages 1-27. 15 Exhibit RPD-1, RPD Record, Decision, Pages 3-18. 16 Ibid., Exhibit 2.1, Pages 19-33. 17 Exhibit M-1, Minister's Intervention Record received 17 August 2020. 18 Ibid., Pages 6-37. 19 Ibid., Page 38. 20 Ibid., Pages 19, 34. 21 Exhibit RPD-1, RPD Record, Exhibit 1, Pages 53, 70. 22 Exhibit M-1, Minister's Intervention Record, Page 19. 23 Exhibit RPD-1, RPD Record, Exhibit 1, Page 70. 24 Exhibit M-1, Minister's Intervention Record, Page 34. 25 Exhibit RPD-1, RPD Record, Exhibit 1, Page 53. 26 Ibid., Exhibit 6, Page 103. 27 Exhibit M-1, Minister's Intervention Record, Page 39. 28 Exhibit RPD-1, RPD Record, Exhibit 5, Pages 93-94. 29 National Documentation Package, Somalia, 31 March 2020, tab 3.2: ?Documents in Somalia and Sudan. Norway. Norwegian Country of Origin Information Centre, Landinfo. 5 January 2009. 30 Exhibit RPD-1, RPD Record, Exhibit 5, Page 88. 31 Rule 44(1), Immigration and Refugee Board, Refugee Protection Division Rules, SOR/2012-256. 32 Exhibit P-2, Appellants' Record, Page 8, Paragraph 54. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-09476 TB9-09477 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