TB7-12007

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB7-12007 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 19, 2018 Date de la décision Panel Laura Brittain Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lani Gozlan Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX (hereinafter "the Appellant") alleges that he is a citizen of Somalia and a member of the minority XXXX clan. He alleges that he was born XXXX XXXX, 1963 in Mogadishu, and lived there (or in a neighbouring town) for 49 years before he fled Somalia in 2012. The Appellant alleges that he faced persecution as a result of his clan, including his father's murder and his own torture in 1997, and then once married in 2006, continuous threats from his majority clan wife's family with violent assaults. He fled Somalia to Ethiopia in XXXX 2012, later fleeing to Kenya, to the United States (US) where he made a failed asylum claim, and then to Canada in June 2014. His claim was not heard until April/May 2017. [2] The Refugee Protection Division (RPD) rejected the Appellant's claim on the basis that he had not established his identity - the only evidence presented was the Appellant's testimony and a witness who could not place him in Somalia since 1986. The Appellant appeals this decision, requesting that the Refugee Appeal Division (RAD) admit new evidence, convene an oral hearing, and set aside the RPD's decision. [3] I have found that the new evidence tendered is inadmissible, as explained below. Identity was the determinative issue, and I have found that the RPD was correct in its conclusion that the Appellant has not established his identity on a balance of probabilities. DECISION [4] I confirm the determination of the RPD that the Appellant has not established his identity. This appeal is dismissed. NEW EVIDENCE IS NOT ADMISSIBLE [5] The Appellant tenders two new pieces of evidence: a document purporting to be from the Howlwadaag District Court in Mogadishu1 and an affidavit from XXXX XXXX.2 [6] Evidence from the person who is the subject of the appeal is only admissible if it meets one of the statutory conditions set out in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), namely that it arose after, was not reasonably available, or could not reasonably have been expected to have been presented at the time the claim was rejected. If one of these conditions is met, the RAD will also consider if the evidence is credible, relevant, and new as per Singh.3 While the Appellant cites the Federal Court Trial Division decision in Singh, I note that the Court of Appeal decision is binding. [7] I do not find the document from Howlwadaag District Court is admissible on appeal.4 This document purports to be issued by the court. It contains a statement from an XXXX XXXX XXXX, who declares that he and the Appellant were neighbours in Mogadishu, lists the Appellant's mother's name and his date of birth, and states that the two last saw each other in 2012. After this declaration, there is a "verdict," where, on the basis of the declaration, the Court makes a finding that the Appellant is a Somali native. [8] First, the Appellant states on appeal that he had been "making efforts to contact neighbours and friends in Somalia" since he arrived in Canada,5 but he made no mention of these efforts when he was asked if he had any documents establishing that he had been in Somalia from birth to 2012.6 While the document itself is dated June 26, 2017, post-dating the RPD decision which was rendered June 13, 2017, the Appellant attests that he was "only able to reach [his] friend XXXX XXXX XXXX who resides in Mogadishu after [his] hearing and [he] received his notarized letter only a few days ago."7 [emphasis added] The Appellant's hearing concluded May 26, 2017 - nearly three weeks before a decision was rendered. It is not clear from the facts, then, that the evidence meets the requirements of subsection 110(4) - though the notarized letter is dated after the rejection, the Appellant has not established that the existence or possibility of such evidence was not reasonably available to him in some form prior to the rejection of the claim, and that he could not have made an application to submit post-hearing evidence in this regard. [9] In the alternative, however, the document is not credible on its face, and is therefore not admissible.8 I have been provided with the originals, and the stamp beside the judge's signature is clearly not a stamp but printed on an inkjet printer - the printing lines are clearly visible, though the appearance of the logo itself leads me to believe it has been made to look like a stamp (ie. uneven colouring, parts of the seal missing as if the paper did not contact the stamp fully). Though the document is signed by "The Judge," the judge is not named, nor is the address of the court indicated anywhere on the document. The document is accompanied by Mr. XXXX XXXX XXXX Somali passport, but while the passport number (XXXX) is clearly indicated on the passport, it is cited in the court document incorrectly (XXXX).9 It is unclear to me why the court issued this same document in both English and in Somali, with the same reference number for both, but with differences between the two. For example, different words are bolded, and the underlined title "Court Verdict" in the English version is printed in red ink, while the capitalized title in the Somali version is black. I cannot verify if the English version is a true translation of the Somali version - no translation has been provided for the Somali version, and the stylistic differences between the two leads me to question whether the contents are also different. For these reasons, I find that the document is not prima facie credible, and is therefore inadmissible. [10] The Appellant also tenders the affidavit of a proposed new identity witness, Mr. XXXX XXXX XXXX10 This evidence is similarly not admissible. [11] Again, first, I am not satisfied that this evidence meets the requirements of subsection 110(4) of the IRPA - it is not clear to me that this evidence was not reasonably available to the Appellant prior to the rejection of his claim. Both the Appellant and Mr. XXXX attest that they reconnected in Canada after the rejection of the Appellant's claim, by coincidence.11 Mr. XXXX XXXX, who was a witness at the RPD hearing, is said to have bumped into Mr. XXXX, who is an acquaintance of both the Appellant and Mr. XXXX. Mr. XXXX told Mr. XXXX that the Appellant is in Canada, and provided the Appellant's contact information. Through this chain, Mr. XXXX and the Appellant are said to have found each other. While Mr. XXXX attests that Mr. XXXX was a mutual friend and former neighbour in Somalia, the Appellant attests that Mr. XXXX was a former neighbour in Toronto.12 If the Appellant and Mr. XXXX were neighbours in Toronto at some point in the three years the Appellant was in Canada prior to the rejection of his claim, it is not clear why this evidence was not reasonably available at an earlier time. [12] The Appellant also attests that he found the witness for his RPD hearing through the Somali community - a coffee shop where Somalis congregate. It is clear from the Appellant's evidence that the Somali community shares information about acquaintances from Somalia who are now in Canada. Mr. XXXX is said to have been the link to Mr. XXXX- and the Appellant lived with Mr. XXXX in Canada from approximately XXXX 2014 to sometime XXXX XXXX 2017. It is not clear why, during this two and a half years, this connection could not have been made with reasonable effort. An appellant is responsible for providing submissions about how new evidence meets the statutory criteria;13 given the facts as alleged, it is not clear why the evidence meets the requirement of subsection 110(4). [13] Finally, I also do not find either piece of new evidence to be sufficiently credible to be admissible by reason of plausibility. The Appellant was in Canada for three years, during which time he could prepare for the hearing into his claim. This was his second refugee process; he also made a claim in the US. He was thus experienced in the process, and he was represented by counsel throughout his application in Canada. At the hearing, he presented no documentation from Somalia, despite living there for 49 years, including about 30 years before the collapse of the government there. The RPD rejected his claim, in part because his witness could not place him in Somalia beyond 1986. It is therefore an incredible coincidence that after three years of being unable to provide evidence, in the two months after his claim was rejected, the Appellant was able to contact a friend in Mogadishu to attest that he was there in 2012, and that by happy accident involving two intermediaries, he was able to find a childhood friend who alleges he returned to Somalia in 2011 and saw the Appellant there. [14] In certain circumstances, evidence that is the result of a "suspiciously convenient" "extraordinary coincidence" may be found to be implausible.14 While I am mindful that plausibility findings are to be reserved for the clearest of cases, and must take an appellant's social and cultural milieu in to account, I am also to consider whether new evidence is credible, considering its source and the circumstances in which it came into existence.15 The new evidence in this case so fortuitously responds to the RPD's concerns, and its timing is so suspiciously manufactured to be admissible on appeal, that I do not find it to be plausible. This is particularly true in light of the fact that the Appellant was allegedly unable to get this evidence in the three years prior to his claim. The RAD is not an opportunity to supplement a record which was deficient before the RPD. [15] For all of these reasons, I do not find the Appellant's new evidence to be admissible. REQUEST FOR ORAL HEARING DENIED [16] The Appellant requests that the RAD hold an oral hearing. I note that the RAD's jurisdiction to hold an oral hearing is contingent on there being new evidence admitted on appeal.16 Since I have not found the Appellant's new evidence admissible, I have no jurisdiction to convene a hearing on that basis. ISSUES ON APPEAL [17] Beyond requesting the admission of new evidence, the Appellant argues that the RPD erred in its assessment of the evidence. Specifically, the Appellant argues that the RPD * failed to consider his testimony as evidence in support of his identity; * failed to consider his explanation for his lack of corroborative documents; * erred in its assessment of the witness evidence; and, * erred in its assessment of the letter from a Canadian Somali community organization and a Canadian doctor. ROLE OF THE RAD [18] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.17 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, attracts a standard of review of reasonableness.18 Unless specifically stated below, I have applied a correctness standard. ANALYSIS [19] For the following reasons, while I do find that the RPD erred in part, I find that the RPD's conclusion that the Appellant has not established his personal and national identity is correct. The Appellant's testimony is not commensurate with his alleged 49 years of living in Somalia [20] The Appellant argues that he provided "detailed oral testimony" about "Somali geography, politics including the names of past and present president;" "he described the city of Mogadishu in detail including landmarks in the city, names of districts, hospitals, markets, monuments, streets and surrounding towns as well as information about Somalia." He argues that he also provided "detailed" testimony regarding his clan, including his lineage and the history and description of the clan's traditional occupations.19 The Appellant argues that his knowledge is "consistent with the level of knowledge expected of a person who was a resident of that country," and that his testimony is presumed to be true.20 [21] The RPD concluded that overall the Appellant was not a credible witness, but I agree with the Appellant that it made no specific finding or weighing of the Appellant's testimony about Somalia. [22] I have considered this evidence myself, however, and find that it is not as counsel describes. The evidence given in response to counsel's questions on Somalia was not, by any account, detailed. Contrary to counsel's arguments, the Appellant gave almost no testimony about Somali geography; though he knew of Mogadishu and Elasha Biyaha (a small town about 8 kilometers from Mogadishu), he stated he could not name any other towns around Mogadishu.21 When he was asked about Mogadishu's districts, he named approximately five in halting testimony before stating that there are a lot of them.22 Though he named two statues as landmarks, he stated he did not know any others.23 He named three hospitals and two markets.24 He was not sure who the interim president was at the time he left Somalia, though he guessed it was either Sheikh Sharif or "the man called Hassan."25 I do not find this evidence to have been commensurate with nearly 50 years lived in or around the city of Mogadishu in Somalia. It goes little way to establishing the Appellant's nationality. [23] With respect to his clan ethnicity, this was his central allegation of persecution. Nevertheless, his demonstrated knowledge of the clan amounts only to the fact that some are traditionally shoe makers while others are nomadic hunters. Asked to state his lineage, he first stated "XXXX XXXX," which he said was a subclan of the XXXX, and when asked to go further and list his lineage, he stated "XXXX XXXX XXXX XXXX XXXX, those ones."26 The objective documentary evidence indicates that the XXXX and the XXXX XXXX are distinct subclans of the larger XXXX group, and the XXXX, XXXX and XXXX are distinct minorities under the umbrella term XXXX or XXXX.27 Another source indicates that the terms XXXX, XXXX, and XXXX may be interchangeable.28 It is not clear to me, however, how the Appellant's lineage could include XXXX, XXXX XXXX, XXXX, and XXXX; while the name for this group of clans appears to have several versions, including XXXX, it is clear that these are all names of distinct and separate subclans, some of which are reported to have different ancestries and occupations. I therefore find that the Appellant's testimony about his clan was at odds with the objective documentation, and does not serve to establish his lineage or membership in his alleged clan on a balance of probabilities. [24] I have considered that the Appellant has no formal education, and only attended night school on and off for approximately 5 years as an adult. However, he has demonstrated a level of agency and resourcefulness in allegedly travelling alone from Somalia to Ethiopia, where he spent eight months brokering the long-distance sale of inherited property, then travelling to Kenya for four months to find an agent who could bring him to the US. When he was not successful there, he was able to corral resources to travel to Canada to make a claim. [25] I wish to be clear that I would not require the Appellant to have provided perfect evidence in response to any question asked about Somalia. Viewed as a whole, however, and taking his personal circumstances and demonstrated abilities into account, his evidence was simply insufficient to establish his identity, and not commensurate with his allegation that he had lived from birth to nearly the age of 50 in and around Mogadishu, and had lived there throughout it being the site of a long civil war, survival of which I find would require intimate knowledge of the city. [26] Therefore, though the RPD erred in failing to assess this evidence, I have done so. I do not find that it was detailed, as argued, but rather vague, at times halting, and lacking details (such as those relating to towns near Mogadishu) that I would expect of someone with the lived experience the Appellant alleges. The witness testimony is deserving of little weight [27] The RPD found that the testimony of XXXX XXXX XXXX was insufficient to establish the Appellant's identity. Though the testimony between the Appellant and the witness was generally consistent, the RPD found that it was insufficient in large part because the two alleged to be childhood friends who had not seen each other in Somalia since 1986. [28] I agree with the Appellant that the RPD's emphasis on the manner of his reunion with his witness, through the Somali community in Toronto, was misplaced; I do not find anything inherently implausible, since the community is obviously engaged in reconnecting people. [29] The Appellant argues that the witness testimony was a credible means of establishing his identity. I've reviewed the testimony, however, as the Appellant requests, and I agree with the RPD that it is insufficient. While the Appellant argues that the two provided "detailed information about their knowledge of each other" that was "consistent and without any contradictions," I disagree. The Appellant testified that he and the witness did not talk about clan because the Appellant is a minority and he did not know what the witness might say about his clan.29 He stated he was guessing that the witness was from the XXXX clan. The witness, by contrast, said that though he does not like to talk about clan, he and the Appellant did discuss it growing up.30 He claimed to know that the Appellant was XXXX and stated that the Appellant knew his clan, which was XXXX. [30] It is simply not plausible, in light of the documentary evidence indicating that clan is a central organizing factor in Somali society,31 that these men, who testified that they were so close as to be almost one person,32 did not know each other's clans despite living across the street from each other for more than twenty years. I find this to be particularly implausible given that the two then lived together in Canada for 2 and a half years, and that the witness' clan, the XXXX, is the larger umbrella clan of the XXXX XXXX,33 who the Appellant alleges killed his father, tortured him, and persecuted him for marrying one of their women. [31] While I appreciate that the witness testified he did not like to talk about his clan, and this is understandable since his clan were major combatants in the beginning of the Somali civil war, this was not the case prior to 1991, when the two knew each other and when he specifically testified that he and the Appellant discussed their clans. [32] Though the Appellant argues that no concerns with respect to the witness' testimony were put to him, one in fact was. The Appellant alleges that he was an only child, and lived with his mother and father. The witness was asked who lived in the Appellant's house, purportedly directly across the street, and he testified that the Appellant's mother did not live with them.34 When the Appellant was asked to explain this discrepancy, he asserted that his mother did live with him and that the witness knew her name.35 This explanation is unresponsive to the question that was asked. I do not find that it reasonably accounts for the differing accounts, and that this, too, calls into question the allegation of an extremely close, longstanding relationship between neighbours of twenty years. [33] The probative value of the witness' testimony is significantly reduced, in my view, as a result of the above findings. Moreover, I agree with the RPD that its value is also reduced when, at face value, it establishes nothing about the Appellant's whereabouts and/or nationality between 1986 and 2014 - nearly thirty years. Given that no other evidence was provided to account for this time, and given the problems with the Appellant's own testimony about identity, I find that overall, Mr. XXXX testimony is deserving of little weight. It does not, either alone or in combination with the other evidence before me, establish the Appellant's identity on a balance of probabilities. The corroborating documents are insufficient to establish identity [34] Along with the witness testimony, the Appellant also tendered a letter from a Somali settlement organization, Dejinta Beesha, and a letter from a doctor who verified his injuries. [35] The RPD assigned minimal weight to the Dejinta Beesha letter36 because it simply establishes that the Appellant was able to demonstrate knowledge of Somalia when interviewed by the organization. Despite the Appellant's arguments that the Somali community organization is best placed to evaluate such issues, the Board must still make an independent assessment of credibility. I agree that in this case, the letter is deserving of very limited weight, since it is premised on the Appellant's knowledge of Somalia - this knowledge was simply not demonstrated at the hearing. The Appellant also argues that he was not afforded an opportunity to respond to concerns about the letter, or that the RPD ought to have called the author as a witness. It was the Appellant who bore the burden of proof, not the RPD. The Appellant's knowledge of Somalia as demonstrated at the hearing was incongruent with the opinion expressed in the letter. Accepted for its contents, that the author believed the Appellant is Somali from the XXXX clan, this evidence must still be weighed. When weighed with the totality of the evidence, and the problems in this case, the letter is simply insufficient to establish the Appellant's identity, either on its own or in conjunction with the other evidence before me. [36] The RPD made no mention of a letter from Dr. XXXX XXXX. Dr. XXXX evaluated the Appellant's scars against his account of his injuries over the years (from members of majority clans) and found that he "has scars consistent with his history of having had his fingers severed, his leg burnt, and suffering trauma to his eye...."37 The Appellant argues that this evidence was overlooked in error. I do not find this to be a material aspect of the identity finding. It would have been preferable for the RPD to have mentioned the letter. However, all the letter concludes is that the Appellant has physical injuries inflicted by others; this provides no verification of who injured the Appellant nor, when weighed with the totality of the evidence, does it establish the Appellant's personal or national identity on a balance of probabilities. There is no other evidence to establish the Appellant's identity [37] The RPD drew a negative inference from the lack of any evidence, beyond the Dejinta Beesha letter, to corroborate the Appellant's five decades in Somalia. [38] The Appellant argues that lack of corroboration, alone, is not a sufficient basis to impugn a claimant's credibility. He argues that he testified that he was making efforts to contact witnesses in Mogadishu - with respect, I did not hear this testimony on the record nor has the Appellant pointed me to this alleged portion of his testimony. The Appellant also argues that he has never had any identity documents, and that since he had no formal status in either Ethiopia or Kenya, he could not present official documents such as a lease or an employment agreement. [39] My finding above, which is that the evidence tendered is insufficient to establish the Appellant's identity, is determinative, and I do not find it necessary to evaluate this argument in detail. [40] However, while I do note that the Appellant has provided some explanations for why he has not provided specific documents, such as formal identity documents from Somalia, Ethiopia, and Kenya, it does appear implausible that there were no documents available to him that might tie him to Somalia, given three years in Canada to prepare for his hearing. The Somali civil war did not break until 1991 - the Appellant lived for 28 years in a country that did issue some forms of documents. While he was illegal in Ethiopia and Kenya, he may not have signed a lease agreement, but he must have sought shelter somewhere - he testified it was with other Somalis. He had help brokering the sale of his property, which required contact with his Somali neighbours, he lived a further four months in Kenya, and then travelled through Mexico to the US. With cellular telephone communication and email, I do find it implausible that the Appellant had not a shred of documentation from outside Canada to establish his identity before the RPD. He was represented by experienced counsel and thus knew of his onus to establish his identity. [41] This being said, this appeal is more properly decided not on what evidence was lacking, but on the insufficiency of what was presented. The record before me establishes that the Appellant speaks Somali, but his knowledge of his alleged clan and Somalia in general was not commensurate with his identity as alleged. Given that there is a large global Somali diaspora, and that countries neighbouring Somalia, such as Ethiopia, Djibouti, and Kenya, also have ethnic Somali communities among their citizens, there is simply insufficient evidence for me to find it is more likely than not that the Appellant is who he says he is, and that he is a citizen of Somalia. CONCLUSION [42] For the above reasons, I find that the RPD did not err in rejecting the Appellant's claim on the basis that he had not established his identity. Therefore, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the determination of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismiss the appeal. (signed) "Laura Brittain" Laura Brittain April 19, 2018 Date 1 Exhibit P-2, Appellant's Record, pp. 59-64. 2 Ibid, pp. 56-58. 3 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Exhibit P-2, Appellant's Record, pp. 59-64. 5 Ibid, p. 14. 6 Exhibit RPD-1, RPD Record, Recording of Hearing, 10 April 2017, at 1:54-2:05. 7 Exhibit P-2, Appellant's Record, p. 14. 8 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 9 Exhibit P-2, Appellant's Record, pp. 59-60. 10 Ibid, pp. 56-58. 11 Ibid, pp. 14 and 56-58. 12 Ibid. 13 Rule 3(3)(g), Immigration and Refugee Board, Refugee Appeal Division Rules, SOR/2012-257. 14 Meng, Renxian v. M.C.I. (F.C., no. IMM-1102-14), de Montigny, March 23, 2015, 2015 FC 365, at para 22. 15 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, citing Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385; [2007] F.C.J. No. 1632. 16 Subsection 110(6), Immigration and Refugee Protection Act (IRPA), S.C. 2001, C. 27. 17 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para. 103. 18 Ibid, at paras 69-74, and X (Re), 2017 CanLII 33034 (CA IRB). 19 Exhibit P-2, Appellant's Record, p. 74. 20 Ibid. 21 Exhibit RPD-1, RPD Record, Recording of Hearing, 26 May 2007, at 0:00-0:19. 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid. 26 Ibid. 27 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Somalia (31 March 2017), Item 13.5, Denmark. Danish Immigration Service (2000) and Item 13.13, Response to Information Request (RIR) SOM104239.E, Immigration and Refugee Board of Canada (4 December 2012). 28 Ibid. 29 Exhibit RPD-1, RPD Record, Recording of Hearing, 10 April 2017, at 53:30-1:12. 30 Exhibit RPD-1, RPD Record, Recording of Hearing, 10 April 2017, at 1:12-1:31. 31 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Somalia (31 March 2017), Item 13.10, Austrian Red Cross; Austrian Centre for Country of Origin and Asylum Research and Documentation (December 2009), p. 7. 32 Exhibit RPD-1, RPD Record, Recording of Hearing, 10 April 2017, at 45:30-53:30. 33 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Somalia (31 March 2017), Item 13.9, Leiden University. African Studies Centre, p. 10 and Exhibit RPD-1, RPD Record, p. 12. 34 Exhibit RPD-1, RPD Record, Recording of Hearing, 10 April 2017, at 1:31-1:38. 35 Exhibit RPD-1, RPD Record, Recording of Hearing, 10 April 2017, at 1:38-1:45 36 Exhibit P-2, Appellant's Record, p. 54. 37 Exhibit RPD-1, RPD Record, p. 68. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-12007