TB6-03487

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 : TB6-03487 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXXa.k.a.XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 20, 2016 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal David Matas 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 (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal however does not request an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to find him to be a Convention refugee or a person in need of protection. In the alternative, the Appellant asks the RAD to order that his claim be returned to a different member of the RPD for redetermination. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that, upon return to Somalia, he will be harmed by members of al-Shabaab or members of majority clans. He alleged that his father was killed by members of al-Shabaab for failing to allow his daughter to marry one of their members. He also alleged that his brother was killed by members of the XXXX clan while preventing them from looting his farm. [4] The Appellant's application for refugee protection was heard on November 13, 2015. By a decision rendered orally the same day, the RPD rejected the claim, finding that the Appellant had not established his identity. The RPD also found that the Appellant had not rebutted that he cannot live in Mogadishu. [5] The Appellant submits that the RPD engaged in a faulty analysis of credibility by assuming certain facts and requiring corroborative evidence. He further submits that the RPD engaged in a faulty analysis of return conditions in Mogadishu. ANALYSIS Role of the RAD [6] What is the role of the RAD in considering an appeal against a decision of the RPD? While the Appellant makes no argument with respect to the role of the RAD, the RAD notes that the Federal Court of Appeal has indicated that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law; and this translates into an application of the correctness standard of review.1 The Court held that, with respect to findings of fact (and mixed fact and law), which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. It goes on to indicate that after carefully considering the RPD decision, the RAD is to carry out its own analysis of the record to determine whether the RPD erred. The Court also stated that having done the above, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination.2 [7] Considering the recent jurisprudence, the RAD will carefully consider the RPD decision and carry out its own analysis of the record to determine whether the RPD erred. After having done the above, the RAD will provide a final determination or refer the matter back to the RPD for redetermination. Admissibility of evidence submitted on appeal [8] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. It is for the Appellant to make full and detailed submissions in his Memorandum of Argument about how any proposed new evidence meets the requirements of section 110(4) and how that evidence relates to him.3 [9] The Appellant has tendered an affidavit as proposed new evidence in support of his appeal. The affidavit was sworn by the Appellant on January 8, 2016. The Appellant submits that the affidavit was not available to the RPD. He further submits that the purpose of the affidavit is to clear up facts assumed by the RPD in its reasons that led to a faulty understanding of why he left Somalia without his identity documents and why he has been unable to contact his family since his arrival in Canada. [10] Following a review of the record, the RAD finds that paragraphs one to five of the Appellant's affidavit do not meet the statutory requirements of section 110(4). In paragraphs one to five, the Appellant explains why he left Somalia without documents and why he has had no contact with his family since he left Kenya. The RAD notes that the Appellant was questioned about these aspects of his claim at his hearing. Furthermore, the issues pertain to the Appellant's credibility and identity, which are issues in all claims for refugee protection. The Appellant was represented by counsel and ought to have known that credibility and identity would be issues in his claim and would be further addressed at his hearing. Moreover, at the outset of his hearing, the RPD indicated that credibility and identity were issues in the Appellant's claim. The Appellant's counsel had the opportunity to question the Appellant at his hearing and address any identity and credibility concerns that may have been identified or expected. The Appellant has failed to establish that the information in paragraphs one to five of his affidavit is evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. Since it does not meet the statutory requirements of section 110(4), paragraphs one to five of the affidavit will not be accepted as new evidence. [11] In paragraph six of his affidavit, the Appellant explains how he reconnected with his brother in late 2015. He states the following. However, just before Christmas 2015, friends of mine in XXXX told me that their family had met my brother in XXXX. My brother was asking people in XXXX who have relatives in Canada whether they knew someone with my name from my tribe. He found some people who had heard about me from their family in XXXX and connected us. I was able to talk to him over the phone. I have his phone number now. He has told me that my wife, my daughter and my sister are together in Niarobi, Kenya. I have not contacted them yet.4 [12] Although the information in paragraph six of the Appellant's affidavit arose after the rejection of his claim and therefore meets the statutory requirements of section 110(4), it adds nothing new. The Appellant has not been in touch with his family and he still has nothing additional to corroborate his identity. The Federal Court of Appeal in Singh5 stated that to determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It also stated that it was reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by the Federal Court of Appeal in Raza, with the exception of the materiality of the new evidence. [13] One of the Raza factors is the newness of proposed new evidence. The Court indicated that the question to be asked is as follows: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or (c) contradicting a finding of fact made by the RPD (including a credibility finding)? If not, the evidence need not be considered.6 The RAD finds that the information in paragraph six of the Appellant's affidavit is not capable of proving (a) or (b) above or of contradicting a finding of fact made by the RPD. Therefore, it will not be considered in this appeal. Since it does not meet the test for new evidence, paragraph six of the affidavit will not be accepted as new evidence in this appeal. ANALYSIS OF THE MERITS OF THE APPEAL Identity [14] The RPD noted the Appellant's explanation for his lack of documents from Somalia was because he had left Somalia in a hurry. It remarked that it was hard to see how the Appellant left Somalia in a rush when he had indicated that his father was killed in XXXX and he did not leave until XXXX. The RPD indicated that nevertheless, it would have to consider other aspects of the Appellant's claim to establish his identity. It noted that the Appellant went to a Somali organization to be interviewed and the members of the organization established that the Appellant spoke the Somali language and that he was from Somalia however they do not know who the Appellant is. The RPD indicated that there is nothing in the evidence from the Somali organization to establish the Appellant's identity. [15] The RPD noted that the Appellant has family living in Kenya. It remarked that the Appellant has a wife, child, brother, sister and former business partner in Kenya yet he made no efforts to contact them to establish his identity. The RPD found it hard to believe that the Appellant was unable to contact his family in Kenya considering the availability of modern communication devices. It remarked that it did not seem plausible that the Appellant would be completely out of touch with his family. The RPD found that the Appellant had not made reasonable efforts that are required under the law to take steps to obtain documentation to establish his identity. It noted the Appellant's testimony of what he could have done or what he could do if he was given the time to obtain documentation however noted that this should have been done beforehand. It found that the Appellant should have been prepared at the beginning of his hearing to have his identity established since he had been in Canada for a number of months. The RPD indicated that without the Appellant's identity being established and without reasonable explanations for why he did not have identity documents, it could not proceed any further with his claim. [16] The Appellant submits that the RPD erred by making a credibility finding and denying his claim solely on a lack of corroborative evidence. He submits that the RPD dismissed his claim without disclosing any other credibility concerns or doubts in his story; effectively ignoring any presumption of credibility. He argues that he had a reasonable explanation for his missing documentation: his father had just been killed by members of al-Shabaab and he was warned that they were going to come after him; and he his wife and his brother left their home in a hurry that day in order to avoid death. The Appellant submits that it is reasonable that amidst the fear and rush to leave XXXX, he and his family members did not take their documents with them. [17] The Appellant maintains that he left XXXX in a hurry. He notes that the RPD asked him about an apparent discrepancy in his evidence regarding the date he left XXXX but never continued the line of questioning to further clarify when he left his home. The Appellant submits that it was unfair for the RPD to assume that the day he left Somalia is the same day he left his home town of XXXX. [18] With respect to the RPD's findings on the Appellant's efforts to obtain identity documents, the Appellant submits that the RPD's reasons are based on its expectations of the actions that he should have taken to establish contact with his family in Kenya. He argues that if the RPD can make an assumption about what he ought to have done to contact his family, then it seems that it should have also made an assumption that he wants to contact his family and has attempted to, to the best of his abilities. He submits that such assumptions and generalizations should not be the basis to reject a refugee claim. The Appellant argues that, even if one accepts that he could have contacted his family in Kenya, they too are without identity documents and would be unable to provide an affidavit confirming his identity without the ability to establish their own identity. The Appellant submits that he has recently reached out to his brother and has spoken to him on the phone. [19] The RAD notes that section 106 of the IRPA states that the RPD must take into account, with respect to the credibility of a refugee claimant, whether the refugee claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. Rule 11 of the Refugee Protection Division Rules states that a refugee claimant must provide acceptable documents establishing their identity and other elements of the claim. It also states that a refugee claimant who does not provide acceptable documents must explain why they did not provide the documents and what steps they took to obtain them. [20] The Appellant in this case did not possess acceptable documentation establishing his identity. He indicated at his hearing that his identity documents from Somalia were left behind when he fled his hometown of XXXX in fear. The Appellant indicated that he did not think of taking his documents with him when he fled. He also indicated that he was unable to obtain the documentation that he left behind because Somalia is not a safe place and it was not feasible to have someone obtain the documentation for him. The RAD notes documentary evidence indicating that the African Union Forces and the Somali National Army captured XXXX from al-Shabaab on XXXX XXXX, 2014.7 This evidence suggests that XXXX has been a safer place and under government control since XXXX XXXX, 2014. The RAD finds that it would be reasonable to expect the Appellant to have attempted to obtain the Somali identity documents he alleges he left behind in XXXX. The Appellant alleges to have resided in XXXX for approximately 34 years. One would expect him to know individuals who continue to reside in XXXX. At the very least, it would be reasonable to expect the Appellant to attempt to locate someone he knows in XXXX to determine if they could obtain the identity documents he alleges to have left behind. The Appellant indicated that he made no such effort. [21] The Appellant alleges that he resided in Kenya for almost six years; from XXXX 2010 until XXXX 2015. He indicated that he lived in Nairobi, Kenya with his wife and daughter. He also indicated that one of his brothers resided in Nairobi, Kenya. The Appellant described operating a small store in Kenya that sold such items as snacks and cigarettes. He indicated that he operated the store with a partner. He provided no credible documents to corroborate his residency, employment, business, marriage, birth of his child, or his immigration status in Kenya. [22] If the Appellant had lived in Kenya for almost six years and operated a business in that country and had family members who continue to reside in that country, it would be reasonable to expect the Appellant to make an effort to obtain documentation from family members, his former business partner, or others he may have had dealings with in Kenya, who could provide evidence regarding his identity. The Appellant indicated that he made no attempt to do so. When asked if he considered contacting his family members in Kenya to help him establish his identity, the Appellant said he was sure he could get a hold of his family members if he started asking questions and started talking to people but it would take him some time to do so. When asked what efforts he had made to demonstrate or prove his identity since he had been in Canada, the Appellant indicated that there was no one else he knew so he went to a Somali association to swear that he is Somali and belongs to a certain tribe. [23] A representative of the XXXX Somali Association indicates in an affidavit that a panel of elders concluded that the Appellant is an individual of Somali origin.8 It is unclear how the elders of the XXXX Somali Association concluded that the Appellant is an individual of Somali origin. However, even if the Appellant is of Somali origin, members or elders of the XXXX Somali Association did not know the Appellant prior to the Appellant visiting the association. They also did not know his citizenship. The RAD finds that it is unlikely that the XXXX Somali Association members or the elders referred to in the affidavit could be certain of the Appellant's personal or national identity since they did not know the Appellant prior to his arrival in XXXX in 2015, a period in which the Appellant alleges to have resided in at least two other countries. Considering the above, the RAD gives the affidavit little weight in establishing the Appellant's identity. [24] Instructions for completing the Basis of Claim (BoC) form are clear in asking refugee claimants to provide documents, such as identity documents, to support their claim for protection. The Appellant knew it was important to obtain and present documents to establish his identity. He went to a Somali organization in XXXX and asked individuals who did not know him for a document to support his identity. However, the Appellant failed to make any effort to obtain documents from Somalia or Kenya, when the evidence suggests they would be reasonably available. [25] The RAD concurs with the RPD findings noted above and assigns a significant negative credibility inference from the Appellant's failure to make an effort to obtain documents from Somalia or Kenya in support of his identity. It was not the lack of corroborative evidence alone that caused the RPD to make a negative credibility finding as the Appellant submits. It was due to the Appellant's lack of effort to obtain documents that were likely to be available if he requested them. The RAD finds that the Appellant did not take reasonable steps to obtain the documentation. [26] The RPD was not wrong to disbelieve the Appellant's explanation that he was unable to contact his family in Kenya considering the availability of modern communication devices available today, including countries such as Kenya. Further, one would expect that a refugee claimant would have the desire to maintain contact with his family members, especially a spouse and child, if he is leaving them behind and to make sure that a method of contact was established prior to his departure. The Appellant's evidence suggests that he did not make sure he had a method of contacting his family members before he left Kenya, which is simply not credible. [27] The Appellant has indicated that it was unfair for the RPD to assume that the day he left Somalia is the same day he left his home town of XXXX. However, it is insignificant to the RPD decision when the Appellant left his home town. The RPD does not make a finding regarding this issue. Although the RPD comments on it in its reasons, it indicated that it had to consider other aspects of the claim to establish the Appellant's identity. This suggests that the RPD did not draw a negative inference from any inconsistencies in the Appellant's evidence regarding when he left his hometown. [28] As noted above, the Appellant argues that, even if one accepts that he could have contacted his family in Kenya, they too are without identity documents and would be unable to provide an affidavit confirming his identity without the ability to establish their own identity. Although an affidavit would be one form of evidence the Appellant's family members could provide, it is not the only form the evidence could take. For example, evidence from the Appellant's family members could be in the form of a letter, an e-mail message or oral testimony over the telephone. Although an affidavit may hold more weight, if a witness cannot have an affidavit produced, other acceptable forms of evidence may be considered by the Board. The Appellant in this case made no effort to obtain any type of evidence from those who were likely able to provide it. [29] The Appellant recently reaching out to his brother and speaking to him on the phone, as noted in the Appellant's Memorandum, suggests that the Appellant's family members are accessible. Since the Appellant had spoken to his brother in XXXX 2015 or early XXXX 2016, it would be reasonable to expect a document from the Appellant's brother to support the Appellant's identity. The RAD notes that the Appellant has not provided a corroborating document from his brother in the approximately three months since he spoke with him. [30] The RAD recognizes the difficulty faced by the RPD in determining the identity of refugee claimants who claim to be from Somalia.9 Documentary evidence indicates that Somalia has not had a functioning state government since 1991, and large parts of the territory are under no actual central administration or governing. This means that Somalia's inhabitants have been unable to obtain official documents such as ID cards, passports or various certificates for the past 17 years.10 Considering the difficulty Somalis have in obtaining identity documents from that country, the fact that the Appellant was in possession of Somali identity documents in Somalia prior to leaving Somalia in 2010 but made no effort to reclaim them, also undermines his credibility. [31] The RAD has considered that the Appellant spoke the Somali language at his hearing and had the use of a Somali interpreter in giving his evidence. However, 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, given that this language is spoken in countries such as Somalia, Kenya, and Ethiopia.11 It is important to note that the Appellant alleges to have resided in Kenya for approximately five years, a country where Somali is spoken. As such, the RAD assigns little weight to the fact that the Appellant can speak and understand Somali. [32] The RAD finds that the Appellant failed to provide sufficient credible evidence of his identity or reasonable explanations as to the lack of documentation as well as take reasonable steps to prove his identity as per section 106 of the IRPA. The Federal Court has established that the burden of proof to establish a claim lies with the refugee claimant. A refugee claimant must come to a hearing with all of the evidence that they have to offer and believe necessary to prove the claim.12 The Board may draw a negative inference from a refugee claimant's lack of effort in acquiring evidence to establish their identity since rule 11 of the RPD rules clearly states that the refugee claimant must provide such documents. Internal flight alternative (IFA) [33] The RAD concurs with the RPD's conclusion on identity. The Appellant has not met the burden to establish his identity on a balance of probabilities as set out in section 106 of the IRPA. There is no requirement for the RAD to review the issue of IFA since the Appellant failed to establish his identity, which is determinative in this case. DISPOSITION [34] Based on a review of the totality of the evidence, and pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD. The Appellant has not met the burden to establish his identity on a balance of probabilities as set out in section 106 of the IRPA. He is therefore not a Convention refugee or a person in need of protection. [35] The appeal is therefore dismissed. (signed) "M. Pettinella" M. Pettinella April 20, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93, para. 78. 2 M.C.I. v. Huruglica, para. 103. 3 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 4 Exhibit P-2, Appellant's Record, at p. 10, para. 6. 5 M.C.I. v. Singh, Parminder (F.C.A., No. A-512-14), Nadon, Gauthier, De Montigny, March 29, 2016; 2016 FCA 96. 6 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 7 Exhibit RPD-1, RPD's Record, at pp. 44-71, National Documentation Package (NDP) for Somalia (July 17, 2015), item 1.12, at p. 27. 8 Exhibit RPD-1, RPD's Record, at p. 84. 9 The Federal Court has also noted that section 106 of the IRPA recognizes the difficulty in proving national identity with the usual documentation from countries with unstable civil administration, such as is the case in Somalia; see, Elmi, Sahra Shukri v. M.C.I. (F.C., no. IMM-4956-07), Teitelbaum, June 24, 2008; 2008 FC 773, para. 22; and Shafi, Lul Mahamed v. M.C.I. (F.C., no. IMM-8156-04), Phelan, May 18, 2005; 2005 FC 714, at para. 27. 10 Exhibit RPD-1, RPD's Record, at pp. 44-71, NDP for Somalia, 17 July 2015, item 3.2. 11 Exhibit RPD-1, RPD's Record, at pp. 44-71, NDP for Somalia (17 July 2015), item 3.5. 12 Kante, Abdoulaye v. Canada (Minister of Employment and Immigration), (F.C.T.D., no. IMM-2585-93), Nadon, March 23, 1994. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-03487