TB8-23350

RAD File / Dossier de la SAR : TB8-23350 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision October 8, 2020 Date de la décision Panel N. Kaufman Tribunal Counsel for the person who is the subject of the appeal Tina Hlimi (Law Office -Tina Hlimi) 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 OVERVIEW [1] XXXX XXXX XXXX (Appellant), who claims to be a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) dated September 5, 2018, rejecting his claim for refugee protection on the basis that he did not establish his identity. He alleges that he fears persecution and harm at the hands of the Al-Shabaab (AS) terrorist organization, and because of his membership in a minority clan that is subject to persecution. He argues that the RPD erred and asks the Refugee Appeal Division (RAD) to substitute a positive determination or remit the matter to the RPD for redetermination. My role is to consider all the evidence and decide if the RPD made the correct decision.1 DETERMINATION [2] I dismiss the appeal because I find that the RPD was correct that the Appellant has not established his identity on a balance of probabilities and therefore, is neither a Convention refugee, nor a person in need of protection.2 BACKGROUND Appellant's allegations [3] The details of the Appellant's allegations are found in the Basis of Claim form (BOC) narrative,3 and in his testimony at the hearing. Briefly, he alleges that he is a citizen of Somalia, and belongs to the minority XXXX clan, XXXX XXXX sub-clan. He alleges that, when he was XXXX years of age, AS attempted to recruit him, and that he fled Somalia out of fear. He made unsuccessful asylum claims in XXXX, XXXX, and XXXX after which he travelled to Canada on a fraudulent passport and made an asylum claim upon his arrival on XXXX XXXX, 2018. He fears that, upon return to Somalia, he would be targeted by AS, both because of his resistance to being recruited and because, as a returnee from the west, he would be perceived by AS to be a spy. He also claims that he would be persecuted as a member of his minority clan. RPD's findings [4] The RPD found that the determinative issue raised by the claim is the Appellant's identity. It found that the Appellant had not established his identity on a balance of probabilities. Appellant's Arguments [5] The Appellant argues that the RPD erred in finding that the Appellant has not established his identity, and wrongfully gave little or no weight to cogent documentary evidence. NEW EVIDENCE IS NOT ADMITTED [6] The Appellant sought to rely on new evidence consisting of an affidavit of the Appellant, sworn XXXX XXXX, 2018.4 The Appellant did not request an oral hearing. [7] In this affidavit, the Appellant repeats the details of his claim and his testimony from the hearing, adds further details and information that were not presented in evidence at the hearing, explains some of his testimony given at the hearing, sets out his views about the errors committed by the RPD, and states that, if the RPD had properly analyzed the evidence, it would have found that he had established his identity. [8] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) provides that I can only accept new evidence on this appeal that: (a) arose after the RPD decision; or (b) was not reasonably available at the time of the decision; or (c) could not reasonably have been expected in the circumstances to have been presented to the RPD before the decision. If the evidence meets one or more of these subsection 110(4) requirements, I must decide if the evidence is new, credible, and relevant before I can accept it5 (the Singh/Raza factors). If it is accepted, I must decide whether to hold an oral hearing, but subsection 110(6) of the IRPA provides that I may only hold an oral hearing where the accepted new evidence raises a serious issue with respect to the credibility of the person who is the subject of the appeal; and is central to the decision of the claim; and if accepted, justifies allowing or rejecting the claim. [9] The evidence contained in parts of the affidavit (see, for example, paragraphs 2-35) does not deal with events that occurred after the rejection of the claim, but is simply a description of the Appellant's claim and a repetition of his testimony with further elaboration and explanation. The Appellant was given an opportunity to explain his allegations and address the RPD's concerns at the hearing. A claimant is required to put their best evidentiary foot forward before the RPD.6 It is not open to a claimant to wait to forward requisite and relevant evidence until after the RPD renders a negative determination.7 An appeal is not an opportunity to rectify or supplement a deficient hearing record.8 The Appellant states that the affidavit is written "in order to clarify misunderstandings raised at the hearing, and the Panel's failure to take into consideration all of the Appellant's testimony,"9 and argues that this means that the information in the affidavit could not have been provided at the hearing. I do not agree. All the evidence relates to issues that were foreseeably in issue at the hearing, that were addressed during the hearing, and about which the Appellant testified at the hearing. All the evidence contained in the affidavit is evidence that was reasonably available at the time of rejection of the claim. I also find that the Appellant could have been expected to have presented all his evidence, including the additional details and explanation for the RPD's concerns by the time of rejection of the claim.10 The Appellant was represented by counsel throughout, including in connection with the preparation and submission of the BOC form. These parts of the affidavit do not satisfy the test set out in subsection 110(4) of the IRPA. The Appellant argues that the RAD should apply subsection 110(4) with flexibility, but the Federal Court of Appeal has stated that subsection 110(4) does not confer any discretion on the RAD. New evidence cannot be admitted unless the conditions set out in that subsection are satisfied.11 [10] The remaining parts of the affidavit, in which the Appellant gives his views regarding the RPD's alleged errors, are argument rather than evidence, and those arguments should be (and are) contained in the Appellant's memorandum. These portions of the affidavit do not contain any new evidence and do not meet the test for admission of new evidence, and are considered only as argument. [11] The affidavit does not meet the test for the admission of new evidence and is not admitted as new evidence. Since no new evidence is admitted, no oral hearing may be held, and none is requested. ANALYSIS OF THE MERITS OF THE APPEAL [12] The determinative issues raised by this appeal are the Appellant's identity, and his credibility relating to his identity. [13] In assessing the credibility of the testimony of the Appellant, I am mindful that sworn testimony is presumed to be truthful. However, that presumption is rebuttable where testimony features inconsistencies, implausibilities, material omissions or other reasons to doubt its truthfulness. For the reasons set out below, I find that the presumption of truthfulness has been rebutted. [14] The RPD correctly identified the requirements of section 106 of the IRPA and rule 11 of the Refugee Protection Division Rules (RPD Rules) which require claimants to provide acceptable documents establishing their identity or explain why they are not provided and what steps they took to obtain them; and which require the RPD to consider whether the claimant has provided acceptable documents establishing their identity or have reasonably explained the lack of such documents and whether reasonable steps were taken to obtain such documents. The RPD correctly stated that a claimant cannot be recognized as a Convention refugee or a person in need of protection if their identity has not been established, and that the burden of establishing their identity on a balance of probabilities is on the claimant. [15] The RPD also noted that the documentary evidence indicates that, because of the absence of a functioning government in Somalia to issue valid or reliable identity documents since 1991, it would be very difficult for Somalis to obtain valid or reliable state-issued identity documents. Because of this, the RPD did not draw any negative inference from the Appellant's lack of Somali government-issued identity documents. The RPD acknowledged that the Appellant would be entitled to establish his identity by alternate means, although the onus to do so continues to be on the Appellant. The Appellant argues that he made reasonable efforts to obtain documents to prove his identity. It was not the effort made by the Appellant that was of concern to the RPD; rather, it found issues with the documents that were produced and with the testimony of the Appellant and his witness that undermined the credibility of some of those documents and that testimony, and that left the RPD unable to find that the Appellant established his identity on a balance of probabilities. Failure to disclose previous asylum claim in XXXX [16] In his BOC, the Appellant disclosed that, after leaving Somalia and before arriving in Canada, he had made unsuccessful claims for asylum in XXXX and in XXXX. However, he did not disclose that he had also made an unsuccessful claim for asylum in XXXX after his claim in XXXX and before his claim in XXXX. That was first disclosed in a letter from his counsel two days before the RPD hearing. When asked at the hearing to explain his failure to disclose the application in XXXX, the Appellant explained that, when the questions were asked of him, he was tired and confused and he disclosed it to his lawyer later on. The RPD rejected that explanation, noting that the Appellant had the assistance of counsel and an interpreter when he completed the BOC, and that he certified its contents to be complete, true, and correct. The RPD found that the Appellant intentionally sought to omit the fact of the application in XXXX in an effort to conceal identity issues that arose in the context of his claim in XXXX, and that this undermined his credibility. [17] The Appellant argues that the RPD unreasonably discredited his credibility because: a. it unreasonably held it against the Appellant for being forthcoming and disclosing the fact that he had made a refugee claim in XXXX; b. it failed to take into account that the Appellant had been detained from his arrival in Canada until just before the hearing and that it was not surprising that he was tired and confused when initially apprehended by the Canada Border Services Agency (CBSA) at the airport and interviewed for hours; and c. it failed to take into consideration that the Appellant has a mistrust of authorities given that he was dealing with authorities in Europe who have also disbelieved him and wanted to deport him to Somalia. [18] I am not persuaded that the RPD erred in its findings in relation to this issue. First, the Appellant did not testify that he has a mistrust of authorities because of his failed asylum applications in Europe, and he did not give this as a reason for not disclosing the XXXX application. Further, the Appellant not only did not disclose the XXXX application to authorities, but he also did not disclose it (until much later) to his counsel. Also, there is no evidence that he was interviewed for hours at the airport in Toronto. There is evidence that a certified Somali interpreter was used throughout the examination at the airport and that the Appellant was offered the opportunity to use the washrooms and have food and drinks during the examination.12 [19] More importantly, the Appellant failed to disclose the asylum application in XXXX not only on the forms he completed with an interpreter to initiate his refugee application at the airport on XXXX XXXX, 2018, but he also failed to disclose it in his BOC narrative completed with the assistance of counsel on XXXX XXXX, 2018. In his Schedule A Background/Declaration, he was specifically asked if he had been refused refugee status in any other country, and he disclosed the applications made and rejected in XXXX and XXXX and the dates of those decisions, but did not mention the application in XXXX. In the same form he was required to provide separate chronological personal histories of his places of residence and activities since he was XXXX. This required him to provide the details of where he had been and what he had done for the previous 5 years, and although he completed the histories leaving no time gaps, there was no mention of his time in XXXX. I do not find it credible that he went through the process of detailing his places of residence and his activities in two lists and that he forgot about his time in XXXX. Then, five days later, when he was assisted by counsel, when asked in his BOC to list other countries in which he sought safety, he listed XXXX and XXXX, but again omitted mention of XXXX, not only in response to the specific question, but also in his detailed narrative. He certified that the information in the form was complete, true, and correct. Contrary to the argument of the Appellant, the RPD took into account that the Appellant was in detention when the BOC was completed, as do I. However, the Appellant did not testify that he was unable to contact his counsel while he was detained. Like the RPD, I find the Appellant's explanation that he was tired and confused when asked the questions is unreasonable and not credible, and that his failure to disclose the significant fact of the previous asylum application in XXXX until just before the hearing indicates a willingness to mislead immigration authorities and significantly undermines his credibility. Different identities/names in previous European asylum claims [20] In his Canadian asylum application documents and at the hearing, the Appellant gave his name as XXXX XXXX XXXX and his date of birth as XXXX XXXX, 1995. The RPD found that he used various names and dates of birth when he made his European asylum claims. [21] The RPD pointed to a letter from the XXXX XXXX XXXX, dated XXXX XXXX, 2017.13 The letter indicates that the Appellant is known in XXXX as XXXX XXXX XXXX (with one "XXXX" in the last name rather than two), and that he applied for asylum in Sweden as an unaccompanied minor with a date of birth of XXXX XXXX, 1998, but that, after an age assessment, his date of birth was changed to XXXX XXXX, 1995. [22] The RPD also pointed to a letter from the XXXX Ministry of the Interior, dated XXXX XXXX, 2015,14 which indicates that he has been known by a number of different names, including "XXXX XXXX XXXX", born on XXXX XXXX, 1998; "XXXX XXXX XXXX XXXX," born on XXXX XXXX, 1995; and "XXXX XXXX XXXX XXXX," born on XXXX XXXX, 1995. [23] The Appellant testified that his first asylum claim was rejected in XXXX and that, rather than be deported to Somalia, in late 2013, he went to XXXX and claimed asylum, but he was told that he would be sent back to XXXX because he had been fingerprinted there. He testified that he was known to XXXX authorities as "something like" XXXX XXXX XXXX, and that the XXXX authorities told him that he had used the name, XXXX XXXX XXXX XXXX when he was in XXXX. He testified that he had given the XXXX authorities his correct name, that he did not know where the other name came from, and that it was used by the authorities by mistake. He stated that he was very confused and tired, that he was placed in detention, and that he did not get the opportunity to express himself. When asked how it was that the wrong names came to be used as his name in XXXX, the Appellant explained that he had been travelling on a boat by sea, and that he gave authorities his true name and did not know where this other name came from. [24] The Appellant testified that, when his application in XXXX was refused, rather than be returned to XXXX where he would be deported to Somalia, he travelled to XXXX and applied for asylum, but his application was rejected because they did not believe he was Somali. He acknowledged that he provided the XXXX authorities with a false birth date because, as a minor, he could not be deported. The RPD was also concerned that the Appellant was known in XXXX by the last name "XXXX" with one "XXXX" rather than two. [25] The RPD found that the Appellant had used different names in his European applications and his explanation that the authorities had inexplicably registered the Appellant with different names - names that the Appellant did not provide - was not credible, noting that the Appellant admitted that he had intentionally misled the XXXX authorities about his age so they would believe he was an unaccompanied minor. The RPD found that the use of differing names and the serious misrepresentation and attempt to mislead the XXXX authorities undermined the Appellant's credibility relating to his identity. I agree with this finding, and find it is correct. [26] The Appellant argues in his Memorandum15 that Somali names are formed by using the person's given name, their father's name, and their paternal grandfather's name. He argues that he believes the XXXX authorities used his given name (XXXX), and wrote his grandfather's name (XXXX), while omitting his father's name (XXXX XXXX XXXX). He also argues that the RPD never made it clear to the Appellant that it had serious concerns about the actual names (such as the addition of "XXXX" and the omission of "XXXX XXXX XXXX"), as opposed to the misspelling of the Appellant's name. He also argues that it is unreasonable to expect the Appellant would know why his name had been listed by the XXXX authorities in this manner since he was new to XXXX, did not speak XXXX and did not have a lawyer to represent him. I am not persuaded by these arguments. [27] The Appellant testified at the hearing that he did not know how the wrong names came to be used in XXXX (and again in XXXX), but now he argues in his Memorandum that he believes that it was derived in part from his grandfather's name. He did not give that answer when asked about the names at the hearing, and did not mention that XXXX was his grandfather's name. Further, his explanation is inconsistent with his answers at the hearing that he did not know where the wrong name came from, because it implies that he gave his grandfather's name to the authorities. I also do not agree that the RPD did not make known its concerns about the differing names (as opposed to merely the spelling). Having listened to the hearing recording, it is clear that the RPD was concerned about the use of different names as well as the spelling of names (for example, asking how names got misspelled or mixed up, and referring to names that were different and had different spellings), and gave the Appellant and his counsel a full opportunity to address those concerns. The Appellant argues that the RPD did not make sense when it said: "He did not know how his name came to be recorded as his own name [emphasis added]." Read in context, I am satisfied that the word "his" is a typographical error that was intended to read "this." Neither do I consider it significant that the RPD stated that the Appellant was detained in XXXX, rather than in XXXX. Further, the Appellant did not testify to any difficulty in communicating with the XXXX authorities. Like the RPD, I find it to be not credible that multiple European authorities registered the Appellant with different names that the Appellant did not provide. [28] In reaching this finding, I place no reliance upon the RPD's finding that the Appellant only disclosed the letter from the XXXX authorities after he was directed to disclose his European asylum documents. Having not asked about when the European documents were requested by the Appellant or his counsel, this finding by the RPD is speculative, but I find that it is not central to the finding, and is not determinative. I also place no reliance upon the issue involving the spelling of the Appellant's name with two "XXXX"s on some occasions and with one "XXXX" on other occasions. It appears from paragraph 24 of the Reasons that the RPD regarded this issue to be less significant than the use of different names in XXXX and XXXX. In my assessment of the evidence, I am satisfied that this discrepancy is reasonably explained as being attributable to the use of double vowels in the Somali language that are not always incorporated into English. [29] The Appellant also argues that the Appellant reasonably explained his attempt to mislead the XXXX authorities by misrepresenting his date of birth, arguing that he did so "[w]ith the bad advice of others." The Appellant did not testify at the hearing that his misrepresentation of his age was based on the advice of others. The XXXX XXXX XXXX letter confirms that the incorrect age given by the Appellant was changed after an age assessment. I acknowledge that the Appellant testified that he lied about his age because of his belief that he could not be deported if he was a minor. In my assessment of the evidence, I find that the willingness to mislead immigration authorities in connection with asylum applications is a serious matter, and it is reasonable to infer from his willingness to do so in the past that he would be willing to do so again. This undermines his credibility. Parents' ages [30] The RPD found that there was inconsistency between the Appellant's testimony (in his BOC, and at the hearing orally and through documentation) that his father was about XXXX years old and his mother was about XXXX years old, and his Schedule A form, in which his father's date of birth is listed as XXXX XXXX XXXX XXXX, and his mother's date of birth is listed as XXXX XXXX XXXX XXXX (which would have meant that his father was XXXX years old and his mother was XXXX years old). The Appellant testified that he did not provide these birth dates, but instead told the immigration officer that his father was about XXXX and his mother was about XXXX, and the officer must have entered the wrong data. The RPD found the Appellant's explanation to be unreasonable and not credible, noting that the Appellant was again blaming immigration authorities for entering the wrong information even though he provided the correct information - as he did in connection with the names recorded in XXXX and XXXX. The Appellant argues that the RPD was intent on minimizing every aspect of the Appellant's claim rather than giving him a fair and impartial hearing and in not giving the Appellant the benefit of the doubt. The Appellant argues that port-of-entry (POE) notes and interviews are not part of the refugee claim and are only to assess admissibility of the person. I am not persuaded by this argument. [31] The Federal Court in Cetinkaya16, referred to in argument by the Appellant, states that it is an error for the RPD to impugn the credibility of the applicant on the sole ground that the information provided by the Applicant at the POE interview lacks details given that the purpose of the interview is to determine admissibility and is not part of the claim and therefore cannot be expected to contain all the details of the claim [ emphasis added].17 In my view, the Cetinkaya reasoning is distinguishable. [32] The Schedule A form is not only a POE note used only to determine admissibility. As the form indicates, it is also used to assist in evaluation of the suitability of the applicant to remain in Canada pursuant to Canadian legislation.18 It is not simply an officer's notes regarding an interview, but is a form containing detailed information about the Appellant and his history, and is signed by the Appellant with the assistance of an interpreter who certified that they faithfully and accurately interpreted the content of the form.19 The Appellant declared that he understood the nature and effect of the information interpreted.20 He did not testify to any difficulties in understanding the interpreter. The form does not merely indicate the age of the Appellant's parents, but provides specific dates of birth for both. The issue is not that the form lacks details when details cannot be expected to be included (as in Cetinkaya); rather it is that there is an inconsistency between the specific details provided in the form and the Appellant's other testimony. The RPD was entitled to consider the inconsistency contained in a prior written statement, including a statement made at a POE, in assessing credibility.21 The RPD considered and rejected the Appellant's explanation for the inconsistency. Like the RPD, I find it not credible that the person assisting with the completion of the Schedule A would invent birthdates for the Appellant's parents if the Appellant did not provide those dates, and that the Appellant would sign the form containing those dates if he did not provide them and agree with them. The identity of the Appellant's parents and their details are central to the identity of the Appellant. This is not the sole basis for the RPD's negative credibility finding relating to his identity, but it supports that finding. I agree with the RPD that the identified inconsistency regarding the ages of his parents undermines the allegations of the Appellant regarding his identity. XXXX Asylum Seeker card [33] When the Appellant was intercepted by the CBSA upon his arrival in Canada, in addition to the fraudulent XXXX passport that he used to travel to Canada, the CBSA found in his luggage a XXXX asylum seeker card in the name of XXXX XXXX XXXX, said to be an Ethiopian national.22 The Appellant claimed that the document was not his and was not related to him, and that he does not know anyone named XXXX XXXX XXXX and had never claimed to be an Ethiopian citizen. He testified that his Somalian friend in XXXX (XXXX) had given him the luggage that he brought with him to Canada when he left XXXX and that, until the card was discovered at the airport in one of the pouches, he did not know it was there. He testified that the bag was empty, but that he had not checked this pouch previously and had only checked the places where he put his clothing. He testified that he believed the bag belonged to his friend, XXXX. The RPD did not believe the Appellant's explanation and found it probable that the Appellant arrived in Canada with the card, intending to pose as the individual named in the card. [34] The Appellant argues that the RPD had no reason to disbelieve the Appellant, did not challenge him at the hearing, and did not give reasons for disbelieving him. He also argues that the photo on the XXXX asylum card is clearly not a photo of the Appellant or close to a photo of the Appellant, and that it makes no sense for the Appellant to risk travelling with documents showing two different identities (the fraudulent XXXX passport and the XXXX asylum card). [35] The RPD questioned the Appellant about the card at the hearing, as did the Appellant's counsel. The RPD did not believe the Appellant because it could not see why XXXX XXXX XXXX's XXXX asylum seeker card - an important identity document - would be in luggage belonging to XXXX, who resides in XXXX and not in XXXX. Given the Appellant's use of differing names, dates of birth, and a false passport, the RPD found it probable that the Appellant intended to use the card to pose as the person named in the card. The Appellant did not present any evidence from XXXX about how this card would be in luggage provided by XXXX to the Appellant, but he was not asked by the RPD or by his counsel why no such evidence was presented or whether he had attempted to obtain such evidence. [36] When examined in more than a superficial way and compared to photographs of the Appellant, it appears that the photo on the XXXX card is not similar to the photographs of the Appellant that are in evidence.23 However, in my independent assessment, although they appear to be of different people when compared to each other, the photograph on the XXXX asylum card is not so different from the photographs of the Appellant that it could not be used as an identification card of the Appellant for some purposes. The person identified on the card and the Appellant are similar in age, and the shapes of their heads are generally similar as is the length of their hair. I do not agree with the Appellant's argument that the photographs are so different that the RPD's belief is "incredulous." Further, I do not agree with the Appellant's argument that the presumption referred to in the Maldonado decision required the RPD to accept the Appellant's testimony, since there are sufficient reasons identified in these Reasons to rebut the presumption of truthfulness. [37] The XXXX card was in the luggage carried by the Appellant when he travelled to and entered Canada. In my assessment of the evidence, the RPD was correct in finding that it is difficult to understand why XXXX XXXX XXXX's XXXX asylum seeker identification card would be in luggage belonging to XXXX, who lives in XXXX, and would not have been found by the Appellant before his arrival in Canada. I agree that the Appellant has not reasonably explained the presence of the card in his luggage used to travel to Canada, and it is his onus to do so. Although the card is insufficient in my assessment to establish that the Appellant is XXXX XXXX XXXX, I find that it is another example of the willingness of the Appellant to use false information and documents to mislead immigration authorities, and undermines his credibility relating to his identity. Witness testimony [38] The Appellant called a witness (XXXX) at the hearing, and submitted an affidavit of XXXX as evidence. The Appellant and XXXX testified that they knew each other in Somalia where the Appellant was a customer of XXXX's XXXX XXXX shop, which he visited to have XXXX XXXX XXXX once or twice per month from XXXX 2011 until XXXX 2012. They never saw each other outside the XXXX shop, and by their own testimony, they were not friends, and did not know much about each other than their names and some very superficial information such as their mutual interest in soccer. The RPD found that, although the Appellant and XXXX were consistent in their testimony regarding several factual matters, it gave XXXX's evidence no weight because of some inconsistencies in their testimony, which led the RPD to find that they were not credible regarding their connection in Somalia, and that they did not know each other in Somalia. Specifically, a. The Appellant testified that he lived in the XXXX district of Kismayo (one of four districts in the city), and XXXX's store was in the XXXX district. The Appellant testified that XXXX is in the XXXX part of the city and that XXXX is in the XXXX XXXX XXXX. The witness testified that XXXX, is in the XXXX XXXX XXXX part of the city - diametrically opposite from where the Appellant testified it to be located. When confronted with the contradictory testimony, XXXX stated that he may have made a mistake and it was possible that the Appellant was correct. The Appellant later testified that the districts are very close to each other and that one person can describe them differently from others. The RPD found that, having both lived in Kismayo for many years, it is reasonable to expect that, if the Appellant had gone to XXXX's shop in XXXX as many times as he alleges, he would be able to identify where in Kismayo that district is located, and their inability to provide a consistent description of the location of the XXXX district undermines their credibility regarding having met in the XXXX district in Kismayo; and b. The Appellant testified that XXXX's shop was made of metal sheets, while XXXX testified that it was a hut made from timber covered with wood. It was only when confronted with the contradictory testimony that XXXX changed his testimony to state that the hut was covered with metal sheets, and the Appellant testified that the store was a hut covered with metal sheets with sides made of timber and wood. The RPD was not satisfied by their attempts to reconcile their initially contradictory testimony, and found that, if the Appellant had gone to XXXX's shop as many times as he alleges, he would be able to provide a physical description of the shop that is consistent with XXXX's description, and the inconsistency undermines their credibility regarding having met in Kismayo. [39] The Appellant argues that it was unfair for the RPD to find an inconsistency regarding the location of the XXXX district because there is no evidence in the record regarding the geographic locations of the various districts in Kismayo. The Appellant also argues that XXXX's response when confronted with the Appellant's testimony that XXXX's store was covered in metal sheets - that all Somali huts are covered with metal sheets because otherwise the rain will come in - was a reasonable explanation for the discrepancy. It is not essential that a roof be covered in metal sheets to keep rain out. I agree with the RPD that there were inconsistencies between the testimony of the Appellant and that of XXXX as identified by the RPD, and for the reasons identified by the RPD at paragraphs 37 to 41 of its Reasons, I agree that they were not reasonably explained. It is significant to note that the Appellant and XXXX knew little about each other, so that the inconsistencies in what they claim to know assume considerable significance when assessing their testimony in its entirety, as do their attempts to reconcile their inconsistent testimony. I agree with the RPD that the identified inconsistencies that are not reasonably explained outweigh the consistent portions of their testimony, and find, on a balance of probabilities, that the Appellant and XXXX did not know each other in Somalia. As a result, I agree with the RPD that XXXX's testimony and affidavit are entitled to no weight. Affidavit of XXXX XXXX XXXX (XXXX)24 [40] The Appellant provided an identity supporting affidavit, correctly described by the RPD as most unusual. It purports to be an affidavit of the Appellant's mother, who lives in Somalia, but is signed and sworn by XXXX on her behalf before a lawyer in Kenya. The RPD was not satisfied with the identity of the affiant, noting that the Appellant was unable to recall the name of the individual who made the affidavit in Nairobi, and that the affiant stated in the affidavit that he is related to the Appellant's mother, while the Appellant stated that he was not related to his family. The Appellant argues that the RPD was wrong in stating that the Appellant denied that the affiant was a relative, and that the Appellant did not testify that the affiant was not related to the his mother, but this does not correctly reflect the evidence. When asked whether the affiant is related to the Appellant's family at all, the Appellant responded: "We are not of the same family."25 It was only after being confronted with the statement by XXXX in the affidavit that he is a relative of the Appellant's mother that the Appellant changed his testimony to say that it was possible that the affiant was related to his mother. The RPD did not accept the explanation for the inconsistency, questioning why the Appellant would initially deny that XXXX and his mother are related if he did not know whether or not they are related. I note that the Appellant was cautioned by the RPD that, when giving his testimony, if he did not know the answer to a question, he should say so, and that he should not guess or speculate without making it clear to the RPD that he was doing so. [41] The Appellant also argues that the RPD's finding that the affidavit was "unusual" is not a valid reason for giving it no weight. The Appellant also argues that the affidavit "on its face is a genuine affidavit...[It is] signed and prescribed under the Oaths and Statutory Declarations Act, Cap 15 of the Laws of Kenya [Kenya Oaths Act], and signed by all parties involved."26 In response to this argument by the Appellant, I note the following concerns regarding the affidavit: a. In paragraph 11 of the affidavit, the affiant states that the affidavit is made "under the statutory declaration act of Kenya." The correct name of the statute under which affidavits and statutory declarations are made in Kenya, as submitted in argument by the Appellant, is the Oaths and Statutory Declarations Act.27 It is reasonable to expect that a lawyer in Kenya taking an affidavit or declaration would know the correct name of the enabling legislation; b. Section 5 of the Kenya Oaths Act (raised in argument by the Appellant) requires that: "Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is made [emphasis added]." The jurat does not state the place at which the affidavit was made. It is reasonable to expect that a lawyer in Kenya taking an affidavit or declaration would know what must be contained in the jurat; and c. It is unclear whether the document is an affidavit or a statutory declaration. It appears to be a declaration given that the wording of the opening paragraph states that that the Appellant's mother "solemnly declares and states." Section 8 of the Kenya Oaths Act provides: "A magistrate or commissioner for oaths may take the declaration of any person voluntarily making and subscribing it before him in the form of the Schedule [ emphasis added]." Therefore, a statutory declaration requires that the person making the declaration subscribes it before the commissioner for oaths, and that it be in the form of the Schedule, which is as follows: " I, A.B., do solemnly and sincerely declare as follows- ........................................................................... [here state the matters declared] I make this declaration conscientiously believing the same to be true and according to the Oaths and Statutory Declarations Act."28 The document does not qualify as a declaration of the Appellant's mother because she did not sign it at all and certainly not before the commissioner for oaths, and because it is not in the form of the Schedule. [42] The RPD was correct to be concerned about the affidavit. I do not agree that it was in accordance with the Kenyan Oaths Act, as argued by the Appellant. Of more importance is that it was not signed by the maker, being the Appellant's mother, and there is no evidence in the record establishing that the person who signed the document, XXXX, was authorized to make an affidavit "on behalf" of the Appellant's mother other than a document signed by XXXX himself alleging that authority. These concerns, together with the concern about the identity of the person signing the document, lead me to conclude that the RPD was correct in doubting that XXXX was authorized to swear the document on behalf of the Appellant's mother, and that the information in the document came from the Appellant's mother. I am not satisfied that the document is an affidavit or even a statement of the Appellant's mother. I agree that the affidavit is deserving of no weight. Mother's birth certificate29 [43] The Appellant submitted as evidence a document purporting to be a birth certificate of XXXX XXXX XXXX (in the English translation) who the Appellant claims to be his mother (although the affidavit of XXXX states her name as XXXX XXXX XXXX). The document purports to be an original document issued by a local government office in Kismayo in 1989. The RPD notes that the original version of the document was submitted post-hearing, and that the Appellant provided no explanation or evidence as to how this document came to him (as opposed to the affidavit of XXXX, for which the transmittal envelope was provided.) The RPD also noted that there is nothing in the birth certificate that identifies the Appellant as the son of the person named in the birth certificate. Although this is not surprising given that the Appellant was born after the certificate was issued, the document has little weight in establishing that the person named in the certificate is the mother of the Appellant, even if the certificate is authentic. As noted by the RPD, there may be a woman bearing the name of the person named in the birth certificate, but the only evidence that she is the mother of the Appellant (other than the "affidavit," which I have discounted) comes from the Appellant himself. Given the significant credibility concerns already identified and the absence of corroborating evidence regarding the person's relationship to the Appellant, I am not satisfied on a balance of probabilities that the person named in this document is the mother of the Appellant. I agree with the RPD that the document is entitled to little weight in establishing the identity of the Appellant. European documents do not corroborate the Appellant's identity [44] The Appellant argues that the XXXX and XXXX documents in evidence corroborate the Appellant's identity as a Somali from Somalia.30 There is nothing in those documents that indicates that either country accepted the Appellant's claim to be a Somali national. In my view, in listing his nationality as Somalian, those documents are referring to his claimed nationality. The evidence does not indicate that either country accepted the Appellant's claim to be a Somali national. In fact, the Appellant's own evidence is that his application in XXXX was rejected because they did not believe that he was Somali. He did not know why his XXXX application was rejected. I find that the XXXX and XXXX documents do not corroborate the Appellant's identity as a Somali from Somalia, although they corroborate that he claimed to be Somali. Summary regarding credibility relating to identity [45] I have conducted an independent analysis of the evidence, including the full RPD Record, and the entire audio recording of the RPD hearing, and have considered the RPD Reasons and the arguments of the Appellant. [46] Although I do not agree with all of the findings made by the RPD, I find that it did not err in its overall finding that the Appellant has not established his personal or national identity. The concerns I have with the RPD's findings are not fatal to its final determination, which is supported by the evidence. The cumulative effect of the significant identified credibility issues that were not reasonably explained is to substantially undermine the credibility of the Appellant and the documentary evidence and witness testimony provided by the Appellant, and result in the Appellant not being a credible witness. The documentary evidence does not overcome those concerns. [47] In reaching my findings, I have considered that the Appellant provided some evidence of his identity and his testimony was consistent in some respects. I have also considered that the Appellant testified entirely in the Somali language. However, as noted by the RPD, which accepted that the Appellant is ethnically Somali, the fluency of the Appellant in the Somali language, while capable of providing some corroboration of the Appellant's testimony, does not establish national identity, as there are many ethnic Somalis who are fluent in Somali residing in different parts of Africa who do not hold Somali citizenship. Similarly, the Appellant's ability to answer some questions about Kismayo and his clan are also capable of providing some corroboration of the Appellant's evidence, but it is also possible for anyone to obtain publicly available information about Somali tribes and the districts in Kismayo. In assessing the totality of the evidence, I find that the evidence supporting the Appellant's testimony is undermined by the identified credibility concerns, and find that it is insufficient to overcome the identified credibility concerns. I find that there is insufficient credible and trustworthy evidence to establish the personal and national identity of the Appellant on a balance of probabilities. [48] In light of my findings that the Appellant has not established his identity, it is unnecessary to consider the evidence further. CONCLUSION [49] 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, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) N. Kaufman N. Kaufman October 8, 2020 Date 1 Canada (M.C.I.) v. Huruglica, 2016 FCA 93, at para. 103. 2 Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended. 3 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim form (BOC) narrative (narrative), pp. 27-30. 4 Exhibit P-2, Appellant's Record, Affidavit of the Appellant, pp. 21-31 plus exhibits. 5 Canada (M.C.I.) v. Singh, 2016 FCA 96 (Singh); Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 (Raza); Nteta-Tshamala v. Canada (M.C.I.), 2019 FC 1191, at para. 25. 6 Hassan v. Canada (M.I.R.C.), 2019 FC 459 at paras. 20-24. 7 Ozomba v. Canada (M.C.I.), 2016 FC 1418 at paras. 16-18; Cabdi v. Canada (M.C.I.), 2016 FC 26, at para. 24; Canada (M.C.I.) v. Desalegn (Desalegn), 2016 FC 12 at para. 23; Marin v. Canada (M.C.I.) 2016 FC 847, at paras. 26-28. 8 Singh, supra note 5, para. 54. 9 Exhibit P-2, Memorandum, para. 4, p. 76. 10 Pajarillo v. Canada (M.C.I.), 2019 FC 1654 at paras. 14, 20. 11 Singh, supra, at note 5, at paras. 34 and 63. I have considered the decision of the Federal Court in Asri v. Canada (M.C.I.), 2020 FC 303. In my view, that decision does not change the requirement that any proposed new evidence must meet the legislative and jurisprudential requirements as stated in the binding decision of the Federal Court of Appeal in Singh, although it illustrates the importance of considering explanations given for failure to provide the evidence earlier in the context of the facts of the case. 12 Exhibit RPD-1, RPD Record, CBSA interview notes, p. 54. 13 Exhibit RPD-1, RPD Record, Exhibit 6, p. 116. 14 Ibid., p. 114. 15 Exhibit P-2, Memorandum, para. 12, p. 80. 16 Cetinkaya v. Canada (M.C.I.), 2012 FC 8. 17 Ibid., at para. 51. 18 RPD Record, Exhibit 1, Schedule A (also known as form IMM 5669), p. 69. 19 RPD Record, Exhibit 1, Interpreter Declaration, p. 53. 20 Ibid. 21 Avrelus v. Canada (Citizenship and Immigration), 2019 FC 357 at para. 14; Arokkiyanathan v. Canada (M.C.I.), 2014 FC 289 at para. 35. 22 RPD Record, Exhibit 1, XXXX asylum seeker's care, pp. 78-79. 23 See, for example, RPD Record, Exhibit 1, Notice to Appeal for a Hearing, p. 33; RPD Record, Exhibit 6, pp. 111-112. 24 RPD Record, Exhibit 7, p. 117. 25 Audio recording of the RPD hearing, August 9, 2018 (Hearing Recording), at 2:28:14 to 2:28:21. 26 Exhibit P-2, Memorandum, para. 51, p. 88. 27 Oaths and Statutory Declarations Act, Laws of Kenya, Revised Edition 2012, Chapter 15. 28 Ibid., Schedule. 29 RPD Record, Exhibit 8, pp. 132-133. 30 Exhibit P-2, Memorandum, paras. 15 and 8 [sic], pp. 78-79. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-23350 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