TB4-10478

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 : TB4-10478 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 XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 18, 2015 Date de la décision Panel C. Forbes Tribunal Counsel for the person(s) who is(are)the subject of the appeal Paul Vandervennen Barrister and Solicitor 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 [1] XXXX XXXX XXXX (the Appellant), who claims to be a citizen of Somalia, has appealed a negative determination of the Refugee Protection Division (RPD) dated September 30, 2014. He has not submitted new evidence in support of his appeal nor is he requesting an oral hearing. The Appellant requests that the decision be set aside and that a new hearing be ordered at the RPD pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [2] Pursuant to ss. 111(1)(a) of the IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD and dismisses the appeal. BACKGROUND [3] The Appellant alleges that he is a citizen of Somalia and a member of the minority Amoudi clan, who have been subjected to abuses and humiliations at the hands of major tribes. His father, a businessman, was robbed of his wealth and his properties confiscated after civil war ended. Having fled the capital, his father returned in 1992 to protect his wealth but in his attempt, was shot dead. Following his death, the Appellant, his mother and remainder of his family left from Mogadishu to Khartoum, Sudan on April 10, 1992 where his uncle had established himself and owned a business. The Appellant remained there until XXXX XXXX, 2014. At the time, permission was given by the government of Sudan to allow people who were fleeing from Somalia to enter with or without papers. The Appellant alleges only his mother had identity documents to enter the country. The Appellant fears persecution and potential death should he return to Somalia because of his identity as a member of the Amoudi clan. The Appellant arrived in Canada on XXXX XXXX, 2014 and claimed for refugee protection on June 14, 2014. [4] The RPD found the Appellant failed to establish his identity, on a balance or probabilities. [5] The Minister did not participate in the hearing or in this appeal. ROLE OF THE RAD [6] Counsel for the Appellant argued that the RAD should follow the Federal Court Decision in Huruglica. [7] The RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.2 [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error."3 [8] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD's decisions, Justice Martineau, in Alyafi,4 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [9] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. Analysis of the Merits of the Appeal [10] The RAD focused on the following determinative issue in assessing this appeal: Is the Appellant a citizen of Somalia? [11] The RPD determined the issues in the Appellant's claim were identity and credibility. Lack of Documentation and efforts to obtain documents [12] The RPD found that the Appellant has failed to establish his identity, on a balance of probabilities. [13] In the appeal, the Appellant argues that the RPD erred by drawing a negative inference from a lack of documents or efforts to obtain documents to establish his 22 year stay in Sudan. [14] The Appellant points to the decision of Federal Court5 where the RPD erred in law by failing to give due consideration to the inherent difficulties the claimant faced in obtaining documentation in the particular circumstances of his case. [15] The Appellant argues that he was there illegally, and had no identity documents while he stayed there. The Appellant stated that he attended school and worked for neighbours and friends in Sudan. When the RPD asked if he had attempted to contact any of his neighbours, or friends he replied "no, I have not tried because my situation does not allow me to make phone calls and that I will try to connect." The RPD found the Appellant's explanations for why he has no evidence of his time in Sudan to be unreasonable. While the RPD agreed that it would have been difficult to obtain Sudanese government documents to show his residence in Sudan, given his illegal status, the RPD found the Appellant's account that there is simply no documents, phone or school records, letters from neighbours, or friends that could corroborate his testimony was unreasonable. The RPD further found for the Appellant to have lived in a country for 22 years and not have a single piece of evidence to demonstrate was unreasonable. [16] The Appellant submits this is wrong and that there are no such records or documents that he had or would reasonably be expected to have. He lived with his uncle, attended an informal Islamic school, and did not participate in the economy or broader society. [17] The RAD does not agree with this argument. The RPD asked the Appellant if he had any documents he could have obtained to corroborate who he is and where he is from. As noted above, the Appellant testified that he made no efforts to contact any of his neighbours or friends in Sudan. The RAD notes the Appellant not only has family in Somalia, but brothers and sisters in Sudan. The Appellant explained that his mother and two sisters are in Somalia but that he has had no contact with his family in Somalia since 1994. The RPD asked him what efforts, if any, he made to reach his family, he stated that he tried but without success. He stated he had telephoned his uncle once in Sudan and tried to get information about his mother, but he was told by his uncle that he did not know where she was and that he had not seen or heard from her. This was his only effort to reach his family and try to obtain documents in support of his identity. The Appellant was asked if he had any evidence to show record of the single telephone call that took place from Sudan to Somalia and he stated that he did not. The Appellant was asked why he did not make any other efforts. His response was that he was not able to return to Somalia because he heard that there was a war between 1995 and 1999. The RPD found the Appellant's testimony did not provide an explanation for his total lack of efforts to obtain documents in support of his Somali citizenship. The RAD has reviewed the audio recording and the totality of the evidence on the record and concurs with the RPD in this regard. [18] The Appellant's evidence was that although he did not get paid for work he did for his uncle in his shop, he would work in people's houses doing plumbing work and help them in their house. He stated, "sometime I would get some income from outside....people would ask me to work and that's how I would get paid." The RPD asked the Appellant if he had made any efforts to obtain documents from any of the people he had worked for to help establish his identity. His response was that he had not. The RPD found the Appellant provided no reasonable explanation for not doing so. [19] The Appellant also did not provide the RAD with any evidence in support of efforts he undertook to obtain such documents after the rejection of his claim. [20] The RAD considered the lack of evidence proffered by the Appellant at the hearing to establish his identity and also whether the Appellant provided any reasonable explanations for the lack of efforts made to acquire evidence attesting to his personal identity and nationality. [21] The Appellant might not be able to maintain contact with people in Somalia given the country conditions; however, the issue of maintaining contact with people in Sudan is different. The Appellant did not provide evidence of a precipitating event which caused him to leave Sudan in haste. The RAD notes the reason he left Sudan was because of money problems between he and his uncle, although as noted below, this same uncle allegedly financed his trip to Canada. Given that the Appellant had time to prepare his departure, given that the Appellant intended to leave Sudan, given that no evidence was presented of problems between him and his family members in Sudan that would support an estrangement, given that he alleged that his family lived in Sudan, given that the Appellant demonstrated resourcefulness in coming to Canada, and given that no evidence was presented to support a fear of contacting individuals in Sudan, the RAD finds it implausible that the Appellant would not have made arrangements to maintain some sort of contact with his family in Khartoum, either through friends, his former neighbours, by mail or e-mail, or through the UNHCR. [22] Furthermore, the RAD finds it implausible that the Appellant would not have retained some information or would be able to find some information in order to contact his uncle in Sudan, who allegedly funded his travel to Canada. For these reasons, the RAD finds the Appellant's explanation that he was unable to provide documents because he had no way of contacting family in Somalia was simply not plausible. [23] The RAD therefore is faced with an Appellant who has failed to provide any primary or secondary evidence regarding his alleged time in Somalia or Sudan, and he has failed to provide a reasonable explanation for this failure. The Appellant was represented by counsel in the appeal and had ample time and opportunity to make efforts to obtain documents or at least demonstrate that he made efforts to obtain documents. The onus is on the Appellant to provide acceptable documents to establish his identity or provide a reasonable explanation for the lack of documentation as per s. 106 of the IRPA. The Appellant has failed to carry out his responsibility to provide documentation despite being represented for his hearing and this appeal by the same counsel. Given his inaction in obtaining documents after the rejection, and given the remaining credibility concerns below, the RAD concurs with the RPD's finding that the Appellant did not introduce reliable evidence to establish his identity. Letter from Community Centre [24] The Appellant submits that the RPD erred in giving no weight to the letter from the coordinator of Dixon Community Services confirming the Appellant's identity as a citizen of Somalia who is native to Somalia. [25] The RPD had before it evidence from the Dixon Community Services, dated September 8, 2014. The author of the letter states that the Appellant came to their office for the purposes of verifying his citizenship. He was accompanied by Mr. XXXX XXXX. When this organization asked him how he knew Mr. XXXX, he stated that he was his distant relative; knew the Appellant since he was four years old and prior to his departure from Somalia; knew that they had left Somali for Sudan and had kept close contact with the Appellant's family members who remained in Somalia. [26] The RAD has reviewed the audio recording of the hearing. The RPD asked the Appellant if Mr. XXXX XXXX (his witness shown in the letter) had any contact with his family in either Sudan or Somalia. The Appellant replied not since they left in 1992. The RPD noted and the RAD concurs that the letter states that the witness had close contact with the Appellant's family in Somalia. When the RPD explained to the Appellant that the letter states that he had close contact with family in Somalia, he stated that he does not think that he has contact. The RAD notes the RPD once again explained to the Appellant the letter states that the witness had close contact with his family in Somalia and provided him an opportunity to explain the inconsistency between his testimony and the information provided by the witness as stated in the letter. The Appellant responded that he asked the witness if he had seen his mother and sister and he stated that he had not but that the witness knows his family. The RPD found the Appellant's response to this question, posed in different ways to be evasive and confusing. The RAD concurs with the RPD finding that the letter from the Dixon Community Centre did not outweigh the numerous credibility problems with the Appellant's testimony. [27] The RAD notes the letter states that the Appellant speaks "Somali, has some recollections of places, monuments, as well as some geographical locations in Mogadishu, Somalia." The RAD finds the Appellant's ability to provide information that he would be expected to know considering his evidence that he had resided in Mogadishu does not constitute clear, cogent and convincing evidence to establish his personal, national or clan identity, on a balance of probabilities. The RAD finds the letter does not confirm the Appellant's personal identity or nationality; rather, it indicates the Appellant is a member of the "Amudi" clan. Even if this were true, the Appellant could reasonably be a member of the clan and not be a citizen of Somalia. Given the above concerns, the RAD finds that the above noted letter from the Dixon Community Services has little probative value in supporting the Appellant's personal identity, nationality, and his clan. Therefore, the RAD concurs with the RPD placing no weight on the letter as evidence of the Appellant's identity and finds the Appellant lacking in credibility with respect to his testimony. Absence of references to the objective evidence [28] The Appellant submits that the RPD erred in drawing a negative inference from an absence of references in objective documentary evidence to the Amoudi clan. The Appellant further submits that the RPD erred by discounting the documentary evidence that was submitted that did corroborate the Appellant's evidence. This was a printout from answers.yahoo.com. [29] The RAD considered the evidence related to the Appellant's alleged clan affiliation. The RAD noted that the documentary evidence indicates that Somali society is one that is divided into clans and sub-clans, and political affiliation is based on clan lines.6 The Appellant alleges that he feared returning to Somalia because of his status as a minority member of the Amoudi clan. [30] The RPD asked the Appellant if he had any objective evidence to show the existence of the Amoudi (Amudi) clan in Somalia. The Appellant stated "Amoudi is not even a tribe, it is a few people, they are Somali." The Appellant further explained that it is not a clan or a tribe; their roots go back to Rer Hamar. The RPD asked the Appellant why he described the Amoudi group as a clan. He replied that he had wanted to clarify that there is a difference between a clan or tribe and that "this Amoudi is the house of Amoudi." When given the further opportunity to explain, the Appellant stated "the house of Amoudi is actually spread around Somalia, Yemen and Saudi Arabia." [31] The RPD noted that both the Appellant and his counsel stated that the Amoudi House belongs to the Rer Hamar tribe. The RPD stated that this link to the Rer Hamar tribe was not established through any objective evidence and that in the Appellant's written submission, he does not make this link. He states that the Amoudi people belonged to their own clan and makes no reference of this clan being affiliated with the Rer Hamar tribe. [32] With regards to the "Yahoo Answer" document,7 the RAD concurs with the RPD that little weight can be placed on this document, as the credential and expertise of the author of this "answer blog" was lacking and thus unverifiable. [33] The Appellant argues this is an error, as the credibility of this evidence does not depend on the writer's expertise or credentials. This answer was written in 2012, and therefore it could not have been produced for the purpose of bolstering his refugee claim. While this may be true, the RAD concurs with the RPD giving the document little weight, given the information provided in the document, including the information contained therein that the writer's mother is Reer Hamar and her clan is Amoudi, is provided by an unverifiable source. [34] The Appellant was asked by the RPD why, in perusing documentary research related to minority groups in Somalia, the evidence was silent on this "Amoudi house." The Appellant's response was that "history will prove they are big traders in Somalia like other tribes such as the Ashraf tribe, they are well known in Somali." The RPD stated in its reasons for decision that they were unable to verify the Appellant's testimony and found that if it was true that the Amoudi house were well known in the trade community, then it would be reasonable to expect some reference to this group. [35] The RAD searched the current and archived National Documentation Packages (NDP) on Somalia8 available to the RPD, Appellant and his counsel on the Immigration and Refugee Board (IRB) website and found information was silent on the Amoudi house and/or tribe among the sources consulted by the Research Directorate. The RAD therefore concurs with the RPD that, in the absence of such evidence and given the many other credibility findings, there is insufficient objective evidence to establish on a balance of probability that the Appellant was a Somali citizen who belonged to the Amoudi "house" or tribe and that the Amoudi house or tribe belonged to the Rer Hamar tribe. Identity [36] The Appellant argues that the RPD was wrong to conclude that he has not established his identity as a citizen from Mogadishu belonging to a minority non-ethically Somali tribe. The Appellant submitted that he testified about different tribes and sub-tribes of Somalia, landmarks and history, and demonstrated a strong knowledge about the country. He also could name different neighbourhoods of Mogadishu and hospitals. The RAD does not accept this argument, as the information as noted above provided by the Appellant regarding different tribes and sub tribes of Somalia is accessible from the IRB's NDP on Somalia posted on the IRB website.9 In addition, the RAD finds historical and geographical knowledge of Somalia is readily available to the public on the internet. In addition, the RAD finds that simply because the Appellant has demonstrated some knowledge of Somalia, it does not establish his identity as a national of Somalia. At best, it indicates that he may have lived in Somalia for a period of time. It does not establish his identity as a citizen of Somalia. SUMMARY [37] The RAD finds that the RPD considered the totality of the evidence before it and found the Appellant had not introduced reliable evidence to establish his identity, on a balance of probabilities. In addition, the RPD found that the Appellant failed to present objective evidence to establish on a balance of probabilities that he was a Somali citizen who belonged to the Amoudi "house" or tribe and that the Amoudi house or tribe belonged to the Rer Hamar tribe. [38] Having considered the totality of the evidence, the RAD concurs with the RPD's finding that, for reasons of failure to establish his identity and lack of credibility, the Appellant had not satisfied the burden of establishing a serious possibility of persecution on a Convention ground, or that, on a balance of probabilities, he would be personally subjected to a danger of torture or face a risk to life, or face a risk of cruel and unusual treatment or punishment, if he were to return to Somalia. [39] The RAD considered that the Appellant testified in the Somali language. The ability to speak a language does not establish a person's personal identity, nor can it establish a person's citizenship. This is especially relevant for individuals who speak Somali and given that this language can be spoken in Somali, Djibouti, Kenya and Ethiopia. [40] The Appellant also challenges the RPD drawing a negative inference from the fact that the Appellant did not apply for citizenship in Sudan and from the fact that the Appellant cannot recite his siblings' dates of birth. [41] The jurisprudence sets out that, where identity is not established, it is unnecessary to further analyze the evidence and the claim.10 [42] In this particular case, given that the Appellant was found not to be a credible witness, the RAD finds that the RPD's Reasons and Decision could have benefited by a more strict application of the provision in s. 107, namely, a finding of no credible basis or a finding that the claim was manifestly unfounded. DISPOSITION [43] Based on a review of the totality of the evidence, the RAD confirms the RPD's determination that the Appellant is not a Convention refugee nor is he a person in need of protection, as per s. 111(1)(a) of the IRPA. [44] The appeal is dismissed. (signed) "C. Forbes" C. Forbes February 18, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Ibid., Huruglica, para 54. 3 Ibid., Huruglica, para 55. 4 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 5 Ghebremichael, Hagos v. M.C.I. (F.C., no. IMM-7302-11), Mosley, July 11, 2012, 2012 FC 873. 6 RPD's Record, Exhibit 3, National Documentation Package (NDP) for Somalia (3 May 2013), Items 3.2, 13.5, 13.9, and Items 1.7 and 2.3. 7 RPD's Record, Exhibit 6. 8 RPD's Record, Exhibit 3, NDP. 9 Ibid. 10 Li, Lina v. M.C.I. (F.C., no. IMM-2342-05), Phelan, March 7, 2006; 2006 FC 296, [2006] F.C.J. No. 369 (QL), at para. 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-10478