TB4-10673

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 : TB4-10673 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXXXXX (a.k.a. XXXXXXXXXXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 9, 2015 Date de la décision Panel Luis F. Agostinho Tribunal Counsel for the person(s) who is(are)the subject of the appeal Micheal Crane Conseil(s) du (de la/des) personne(s) en cause Barrister and Solicitor Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXXXXXXX (the Appellant), who claims to be a citizen of Somalia, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to substitute its own determination that she is a Convention refugee or a person in need of protection, or to refer the matter back to the RPD for redetermination by a differently-constituted panel. Application for an Oral Hearing [2] The Appellant did not request that an oral hearing be held, pursuant to Section 110(6) of IRPA. DETERMINATION [3] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection, as she has failed to establish her personal identity and nationality. BACKGROUND [4] The Appellant alleged that she is a member of the Garre clan. The Appellant's family lived in a small hut on the outskirts of the town of XXXX. The Appellant alleged that on XXX, 2013, members of Al Shabaab came to their hut and demanded that her brothers join them, and that the Appellant become the wife of one of their members. The Appellant, upon hearing this, fled out the back with her two younger siblings to the safety of their aunt's house. Later, in the middle of the night, the Appellant's mother came to see the Appellant and her siblings where they were staying and announced that the Appellant's father and brothers had been killed by members of Al Shabaab. The Appellant, his wife and his mother fled to Ethiopia. The Appellant, along with her mother and siblings, left on XXX, 2013 from Somalia to Kenya to seek protection. Once in Kenya, the Appellant remained there until she left for Canada. The Appellant arrived in Canada on November 11, 2013, and made an inland claim for protection on November 27, 2013. [5] The Appellant had a refugee determination hearing on September 23, 2014 and written reasons were issued on October 10, 2014. The RPD found that the Appellant was not credible as a witness and did not provide sufficient credible or trustworthy evidence to establish her personal identity and nationality based on the following individual findings: * The Appellant's identity was undermined by her failure to make attempts to provide secondary evidence (land deed, school documents, business contracts, bill of sale for the family home, and affidavits) to support her personal identity and nationality. * The RPD found the connection between the Appellant and the witness was peripheral, tenuous and minor. * The Appellant had no knowledge of the geo-political history of Somalia, but this does not establish the Appellant's nationality as a citizen of Somalia. * The Appellant's ability to speak Somali did not establish her citizenship as Somali, as speakers are found in Ethiopia, Kenya, Djibouti, and Yemen. [6] In the appeal, counsel argued that the RPD erred in its findings of fact as it relates to the Appellant's personal identity and nationality. Specific errors included: * The RPD erred in fact by assigning a negative inference to the lack of documents, especially in regards to the sale of the family animals. * The RPD erred in fact by the Appellant not knowing the currency of Somalia or Kenya. * The RPD erred in fact in the amount of time it took for the Appellant and her family to walk to Kenya. * The RPD erred in failing to assess the credibility of the Appellant's witness except for commenting on the use of the word grandmother. [7] The Appellant requested that the RAD set aside and substitute the negative determination with a positive one, or refer the matter back to the RPD for redetermination. ANALYSIS Role of the RAD [8] Counsel has made submissions in regard to the role that the RAD plays in the review of an RPD decision. 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 a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. 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. [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." [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. The RAD will recognize and respect the credibility findings of the RPD or other findings where the RPD has a particular advantage in reaching its conclusions. ADMISSIBILITY OF NEW EVIDENCE Admissibility of Evidence Presented on Appeal [10] Section 110(4) of 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 of his claim. [11] Even where a document meets the test in Section 110(4), the RAD is not required to admit it into evidence without any further consideration. [12] The Appellant submitted numerous pieces of new evidence to the RAD. The Appellant provided the following new evidence with her appeal record: * (a) Authorization for hospitalization costs and letter from the Ottawa Hospital;2 and * (b) Affidavit from XXXX;3 and, * (c) Internet article, "Somali Shilling" dated October 25, 2014.4 [13] Document (a) of the new evidence that the Appellant provided are two pages from The Ottawa Hospital, which she asks the RPD to accept as new evidence. The Appellant does not provide an explanation why these were not submitted earlier, or what relevance they have. The Appellant did provide an affidavit from XXX,5 who states that her counsel forgot to have her refer to the documents in her affidavit. The RAD considered the explanation but, without an explanation as per RAD Rule 3 as to the relevancy of these documents, the RAD does not find these documents to be admissible. [14] Document (b) is an affidavit from XXXX, who states that he/she is an accredited interpreter, and was the interpreter at the hearing of the Appellant. The affiant states that the word "bessa" means money in Garreh. The Appellant does not explain the circumstances why this affidavit is being submitted. The RAD finds that the Appellant's lack of explanation has failed to persuade the RAD that the affidavit was not reasonably available at the time of the rejection or that she could not reasonably have been expected in the circumstances to have presented the affidavit at the time of the rejection, as per s. 110(4). As such, the RAD finds this document is merely a rebuttal to the RPD's credibility finding and, therefore, document (b) is admissible as new evidence under section 110(4). [15] Document (c) is an internet article, "Somali Shilling; valueless currency that needs a new policy."6 The RAD cannot place significant weight on this article as it is an internet post and there is no explanation as to why the article was not readily available prior to the rejection. The Appellant also failed to provide an explanation pursuant to RAD Rule 3. Without the Appellant providing a sound explanation for its relevancy, and why it was not available prior to the rejection of the RPD hearing. The article also appears to be used to rebut the RPD credibility finding in regards to the Appellant's testimony as to why she did not know what the currency was for Somalia. For the reasons set out above, documents (a), (b), and (c) are not admissible as new evidence in this appeal. Merits of the Appeal [16] The RAD focused on one issue in assessing this appeal: Has the Appellant provided sufficient credible or trustworthy evidence to establish his personal identity and nationality as a citizen of Somalia? [17] In analyzing the claim, the RAD considered the totality of the evidence, including the recording of the hearing. [18] The RPD found that the Appellant's identity was undermined by her failure to make attempts to provide secondary evidence (money transfers, bill of sale for the family farm and or animals, and affidavits) to support her personal identity and nationality. The RPD acknowledged the lack of documents, given the country conditions and evidence on the availability of documents in Somalia.7 [19] The RPD focused on the Appellant's efforts to provide evidence from secondary sources. When asked by the RPD throughout the hearing if she attempted to obtain documentary evidence from secondary sources, the Appellant consistently indicated that she had made no efforts; as such, information was not available. The RAD finds that, even in Somalia, it was implausible for the Appellant not to be able to provide at least one document to identify herself, place her in XXXX during the period of alleged persecution, and/or to establish her personal profile. The Appellant could have made efforts to contact her mother who, according to her testimony, is living and working in Nairobi, Kenya or her uncle who still resides in Somalia for evidence related to the alleged murder of her family members, and the Appellant's personal identity and nationality. Furthermore, the Appellant could have made efforts to obtain documents concerning her membership in the Garre clan. The Appellant did not attempt to provide this information. [20] The RAD also noted that, while the national governmental administration was weak in Somalia, there were still authorities whom the Appellant could have approached from Canada to assist in documenting the murders of her father and brothers. For example, there was a regional administration established in Jubaland (which includes XXX) since September of 2012. There was an African Mission in Somalia, the Somali National Army, and the Somali Police Force.8 The existence of these authorities in Jubaland undermined the credibility of the Appellant, as she could have contacted them or had a member of her family contact them to obtain any documents in support of her personal identity or nationality, or any aspect of her claim. [21] The RAD also noted that the Appellant spent approximately four months in Nairobi, during which she had communication with her relatives in Somalia as evidenced by her knowledge that the farm and the animals had been sold. Given this, the RAD found that the Appellant could have asked her remaining relatives in Somalia to provide evidence to her when she was in Ethiopia. The RAD noted that she had planned to come to Canada to seek protection while she was in Ethiopia and therefore she could have taken some time or effort to assemble documents to confirm her personal identity or nationality before coming to Canada. Furthermore, the Appellant used the money from the sale of the farm to pay for a smuggler to assist her to leave Ethiopia and come to Canada. The RAD finds that it would be reasonable for there to be some documentation of a transfer of a large quantity of money from Somalia to Ethiopia or from Somalia to the smuggler which could demonstrate that the Appellant had been in Ethiopia and/or to support the Appellant's allegations that she used a smuggler to assist her in leaving Ethiopia. [22] The Appellant was aware that she was required to provide evidence to establish her personal identity and nationality given that she obtained a document from a Somali social service agency, and arranged for a witness. The Appellant, however, failed to make any effort to obtain secondary evidence to establish her identity and nationality and other aspects of her claim. Her explanations for this failure (things done orally, no documentation, no authority in Somalia) were not credible, especially given the fact that she made no efforts to try to obtain such information despite being represented by counsel and despite her being associated with a Somali social service agency in Toronto. The RAD concurs with the RPD that the Appellant's failure to make any efforts to obtain secondary information undermined her personal identity and nationality as well as undermined the Appellant's overall credibility as a witness. [23] The RAD considered the evidence from the SIAO. The RAD considered a Response to Information Request9 (RIR) concerning documents from Somali-Canadian associations in support of a person's identity. The RAD noted that the associations employed several different techniques to identify whether a person was Somali. For example, one organization asks the person to come to the organization with a person who knew him or her personally for three years in Somalia who could attest to the person's identity. The person is requested to sign a statutory declaration of identity. The identity of the person is established based on his or her accent and the testimony of people who knew him or her in Somalia. Another organization asks the person to bring up to three witnesses who are willing to attest to the person's identity under oath. The witnesses must explain how and for how long they have known the person, and they must be considered trustworthy by the organization. An organization in Toronto does not write attestation letters that vouch for a person's identity; rather, it assists clients in collecting information or proof necessary to have their identity confirmed through the legal system. Another organization interviews the client and witnesses about their city or town of origin in Somalia as well as how they know each other or how they are related in order to assess the level of knowledge. [24] The letter received from the SIAO indicates that it made inquiries among the Garre members of the organization whether they know the Appellant's family. The documentary evidence indicates that members of the Garre clan live throughout Somalia and the Arab world.10 The letter indicates that members of the clan have confirmed that the Appellant is from the Garre clan. The RAD is concerned with the contents of this letter for several reasons. Firstly, the letter does not provide details concerning exactly who was consulted to establish the Appellant's membership in the clan. The letter also does not indicate that any specific checks and balances were performed to ensure the accuracy of the information such as those cited in the RIR highlighted above. The RAD also noted that the letter does not confirm the Appellant's personal identity or nationality; rather, it indicates that the Appellant is a member of the Garre clan. The Appellant could reasonably be a member of the Garre clan but not be a citizen of Somalia, as members of the Garre clan are scattered all over Somalia and all over the Muslim world.11 Furthermore, given that members of the Garre clan live throughout Somalia, and given that the letter from the organization did not indicate that it consulted with members of the Garre clan from Jubaland, the RAD finds that it cannot place significant weight on the letter from the organization in support of the Appellant's membership in the Garre clan as well as her personal identity or nationality as a Somali citizen. [25] The RAD considered the evidence and testimony of the witness. The RPD placed little weight on the testimony of the witness given that the Appellant testified that the witness was her grandmother, but in reality it allegedly is her great aunt; the Appellant knew little about the witness despite being in contact with her in Canada. The RPD found the connection between the Appellant and the witness was "peripheral, tenuous and minor at best." The RAD, after assessing the evidence in this area, arrived at the same conclusion as the RPD did in its findings regarding the witness. [26] The RAD finds that, even if the witness' evidence was found to be credible, this evidence can only establish the Appellant's personal identity and affiliation with the Garre clan. The witness' testimony cannot and does not establish the Appellant's nationality at the time the witness knew the Appellant or any time after. For example, the Appellant and her family could have left Somalia and obtained permanent residence or citizenship in another country after she was last seen by the witness. The Appellant could have been living in XXXX and have citizenship in another country as well as Somalia. [27] Given the credibility concerns highlighted above, the RAD finds that the witness' evidence is of little probative value in establishing the personal identity and nationality of the Appellant. Even if the RAD placed significant weight on the witness' testimony and evidence, it does not establish the Appellant's nationality or country of reference. This is of little value in establishing the Appellant's nationality in the year 2014. [28] Finally, the Appellant did not provide the RPD with any documentary evidence that would attest to her country of reference, or to document how and when she came to Canada. If the Appellant flew from Kenya via the United Kingdom to Canada, it would be reasonable for her to provide evidence of this, such as a baggage ticket, boarding pass or other documents. SUMMARY AND DETERMINATION [29] When taken as a whole, the RAD has before it evidence of the Appellant's failure to make any reasonable efforts to provide documentation regarding her identity and nationality and her residence in Somalia; unreasonable explanations for her failure to provide documentation regarding her identity and nationality; a document from a social service agency whose conclusions are not adequately supported and which only comments on the Appellant's clan affiliation and does not establish the Appellant's personal identity or nationality; concerns based on an inconsistency in the neighbourhood identified by the Appellant as to where she lived, the currency of the country, concerns with the Appellant's lack of knowledge regarding her witness; evidence from the witness which does not establish the Appellant's nationality; no evidence other than the Appellant's oral testimony regarding her whereabouts and her travel to Canada. As such, the RAD concurs with the RPD that the Appellant has failed to provide sufficient credible or trustworthy evidence to establish his personal identity and nationality. [30] Given the analysis above, the RAD therefore has afforded a considerable level of deference to the RPD findings on questions of credibility in this claim. [31] The RAD has assessed the entirety of the evidence and I have reached the same conclusion as the RPD did in its decision regarding the identity finding. DISPOSITION [32] 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 she a person in need of protection, as per section 111(1)(a) of IRPA. The appeal is, therefore, dismissed. (signed) 'Luis F. Agostinho' Luis F. Agostinho April 9, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Appellant's memorandum, pages 12-13, two letters from The Ottawa Hospital, dated October 20, 2014 and the other dated November 03, 2014. 3 Appellant's memorandum, page 14, Affidavit of XXX, dated December 21, 2014. 4 Appellant's memorandum, pages 15-17, internet article posted October 25, 2014 5 Appellant's memorandum, page 10, Affidavit of XXXX dated December 22, 2014. 6 Appellant's memorandum, pages 15-17, internet article posted October 25, 2014 7 Appellant's record, page 7, Reasons for Decision, paragraph 11 8 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Somalia (1 March 2014), item 2.3, UK Home Office, Somalia: Country of Origin Information Report, Sections 1.29-1.33, 5 August 2013. 9 Exhibit RPD-1, RPD's Record, National Documentation Package for Somalia, item 3.5, Response to Information Request (RIR) ZZZ104663.E, 29 November 2013. 10 Exhibit RPD-1, RPD's Record, NDP for Somalia, item 13.6, RIR SOM103613.E, 23 November 2010. 11 Exhibit RPD-1, RPD's Record, NDP for Somalia, item 13.6, RIR SOM104613.E, 23 November 2010. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-10673