Citation: 2020 RLLR 100
Tribunal: Refugee Protection Division
Date of Decision: March 6, 2020
Panel: M. Gayda
Counsel for the Claimant(s): Rodney L Woolf
Country: Somalia
RPD Number: TB8-14586
Associated RPD Number(s):
ATIP Number: A-2021-00945
ATIP Pages: 000095-000119
REASONS FOR DECISION
[1] [XXX] (hereinafter “the claimant”) alleges that he is a [XXX] year-old citizen of Somalia and claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
[2] Claimant’s counsel and minister’s counsel provided written submissions. The claimant provided post hearing documents with respect to the issue of his status in South Africa which I accepted and listed as Exhibit 16 and 17.
ALLEGATIONS
[3] The claimant’s allegations are set out in full in his Basis of Claim form (BOC)[2]. In summary, the claimant alleges that he was born and lived in [XXX] in the Lower Juba region of Somalia. He alleges to be a citizen of Somalia and no other country and that he is from the Ogaden clan, sub-clan Mohamed Subeer, Reer Isaq. He alleges that he was targeted for recruitment by the insurgent group, Al-Shabaab, in early 2010, and he refused their demands to join them saying as a Sufi Muslim he did not believe in their ideological, religious and political goals.
[4] The claimant alleges that Al-Shabaab’s insistence on recruiting him culminated in Al-Shabaab threatening him and his brothers with death, prompting the claimant to flee Somalia to Dadaab refugee camp in Kenya at the end of [XXX] 2010. He says that he remained in Kenya for about three months and then made his way to Mozambique and then by [XXX] 2010 to South Africa. In late [XXX] 2010, he made an asylum claim in South Africa. He was granted refugee status in South Africa on [XXX] 2010 and lived there until [XXX] 2014. At that time the claimant was accepted for resettlement to Denmark as a refugee approved by the United Nations High Commissioner for Refugees (UNHCR) and he travelled to Copenhagen, Denmark with his then wife, along with his brother, [XXX], who was also accepted, at least in part, on the grounds of a serious medical disability.
[5] In Denmark the claimant was given temporary resident status as a refugee, that was to last for five years. The claimant received notice in [XXX] 2017 that his temporary status was being revoked as the Danish government took the view that there was a change of country conditions in Somalia, insofar as it would allow the claimant, and many other Somalis in a similar situation, to return to Somalia. The claimant appealed this decision however on [XXX] 2018 his appeal was denied and he was given 30 days to leave Denmark, otherwise he would be deported to Somalia.
[6] The claimant alleges that he feared being removed to Somalia so he improperly obtained a Danish passport in a different name and left Denmark in late [XXX] 2018, intending to come to Canada. He presented this passport to Canada immigration in London, United Kingdom in transit, and was stopped from completing his journey to Toronto as Canadian officials suspected that his Danish passport was fraudulently obtained as he could not answer questions about that passport or provide other Danish identity documents in that name.
[7] The claimant then was able to use this same Danish passport to travel to the USA from London, UK. He flew to Chicago, USA, arriving there on [XXX] 2018. The claimant subsequently presented himself at an irregular border crossing at Emerson, Manitoba on [XXX] 2018 and started his claim for refugee protection in Canada.
[8] The claimant alleges a fear of forced recruitment by Al-Shabaab; he does not agree with their religious or political beliefs or actions, and he does not want to join them. He also alleges to additionally fear Al-Shabaab today because he has resided outside of Somalia for ten years, six of those years in westernized, predominantly Christian countries. The claimant alleges that Al Shabaab would perceive him as opposed to them and possibly a spy for the Somali or foreign governments or organization due to this prolonged absence from Somalia and residence in western countries.
DETERMINATION
[9] For the reasons that follow, I find that the claimant has established that he would face a serious possibility of persecution in Somalia (section 96 of IRPA). Therefore, I accept his claim.
ANALYSIS
Identity and Credibility
[10] This claim raised two determinative issues: identity and credibility. These issues are interrelated, and as such have been assessed together.
[11] Section 106 of IRPA, under the sub-heading “Claimant without Identification”, states:
The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the 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.[3]
The legislation therefore is clear that the Board must consider whether a claimant without acceptable documentation establishing their identity, has provided a reasonable explanation for their lack of documentation and whether they have taken reasonable steps to obtain that documentation, as part of the assessment of credibility.
[12] Similarly, section 11 of the Refugee Protection Division Rules (the Rules) requires that:
The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to provide them.[4]
[13] As held by the Federal Court in Su, “[t]he onus is on the claimant to produce acceptable documentation establishing his or her identity.”[5] (Emphasis added) Furthermore, the Federal Court in Duale held that “it is up to the claimant to establish his identity and he must make a genuine, substantive effort to do so”.[6]
[14] The documentary evidence in the National Documentation Package (NDP) indicates that there has not been a functioning central government which issues valid and reliable identity documents in Somalia since approximately 1991.[7] While the central government in Somalia is issuing some forms of identification, they are not accepted internationally and do not seem to be widely used in civil life in Somalia.[8] Although it is sometimes possible for Somalis to apply for passports, the process of obtaining such a document is reported to be costly and difficult, and a number of countries do not recognize the Somali passport as a valid travel document due to widespread passport fraud.[9] The federal government in Somalia has not been recognized by the United States or by Canada as a competent civil authority to issue civil identity documents.[10] Moreover, while the documentary evidence indicates that the Somali government has been issuing national identity cards since [XXX] 2013, the evidence also indicates that in practice, the identity card is “rarely used to do anything other than [serve] as a precursor to obtaining a passport”.[11]
[15] I find that the above review of the objective country documentation constitutes a reasonable explanation for why the claimant was not able to present a passport or other type of national identity card issued by the state of Somalia. The claimant testified that he once held a Somali driver’s licence but that this licence was lost while he was in South Africa. The onus rests on the claimant to utilize other reliable, credible means to establish his identity, and to provide reasonable explanations as to what steps he took to obtain documentary evidence to support his identity. This would include reasonable explanations as to why certain documents could not be obtained. Rule 11 of the Rules reinforces section 106 of IRPA and further states that a claimant must not only make reasonable efforts to provide acceptable documents to establish their identity, but also other elements of their claim. When such documents are not provided, these provisions state the Board is to evaluate a claimant’s explanation as to what the efforts and steps he took to try and obtain documents and whether such explanation(s) are reasonable, taking into account the claimant’s particular personal circumstances.
[16] For the reasons that follow, I find that the claimant has established his personal and national identity, on a balance of probabilities. His testimony was consistent with the testimony from his witness, as well as with his corroborating documents. I do not accept his testimony as credible as it related to his acquisition of a Somali driver’s licence (no longer in the claimant’s possession). I have weighed this negative credibility finding, outlined below, against the rest of his testimony and the testimony of his witness which I found credible, and his supporting documentation concerning his identity. I find that despite that credibility concern, outlined below, several sources of the claimant’s written corroborating evidence as to his identity, the quality of which I have assessed and found to be consistent and reliable, and the credible testimony from his witness, lead to my finding that the claimant has established his personal and national identity, on a balance of probabilities.
Claimant’s Testimony about family; life in Somalia; residence and travel history
[17] The claimant’s testimony about his family and life in [XXX], Lower Juba Somalia was spontaneous and generally consistent with his BOC form and other corroborating documentation. He also testified with details and consistently about his travel route out of Somalia and his arrival and time in South Africa, followed by his application for resettlement to the UNHCR that was accepted by Denmark. His testimony was consistent with the testimony of a witness from his clan who had known him in Somalia from 2007-2009. The claimant testified that he had no formal education, having been taught to read and written at home by his mother, and he claimed to have worked only as an animal herder in Somalia. I have evaluated his testimony with this background in mind.
Witness’s Testimony
[18] The claimant’s witness, [XXX], a fellow clan member and a permanent resident of Canada, testified credibly about how and when he came to know the claimant and his family in Somalia from 2007-2009 wherein he stayed with them when visiting [XXX] to buy cattle about 6 or 7 times. The witness consistently identified his mother and knew he had six siblings, and testified that he remembered three of them and provided their names. He testified that when he stayed with the claimant at his family’s home in [XXX] in 2007, he knew that his father had been killed and he had heard that the claimant’s father was someone who had been supportive of the government in that region and that he was killed for those reasons. I find that the witness’s testimony did not appear to be a rehearsed memorization, and that his answers were natural and spontaneous, as well as consistent with the claimant’s allegations in his claim and the claimant’s testimony about how he knew the witness.
Corroborating Documents related to Identity
[19] Before me were many corroborating documents concerning the claimant’s identity, some of them original identity documents such as his Danish alien passport and his Danish resident card[12] and a copy of this Denmark “Laissez Passer” travel document issued by the Royal Danish Embassy in Pretoria.[13] From South Africa, he provided copies of his South African temporary asylum seeker and refugee recognition documents[14] and his UNCHR Resettlement Registration Form[15], a Traffic Register Certificate[16] and an affidavit from a cousin in South Africa[17]. The claimant provided a letter from his brother in Denmark, accompanied by a copy of his brother’s Danish resident card.[18] The claimant also provided a copy of the 2018 Danish Refugee Appeal Board decision[19], rejecting his appeal and indicating that he would face removal to Somalia, and this decision was consistent with his personal and national identity, including his family and clan background, travel and residence history, as well as consistent with his core allegations of having been targeted for recruitment by Al-Shabaab. The claimant also provided a letter from Midaynta Community Services indicating that they had met with and questioned the claimant and the same identity witness in the Somali language and believed the claimant was a Somali national.[20]
Minister’s Intervention
[20] The Minister intervened in person on the issues of identity and credibility. I have considered the Minister’s written submissions alongside the totality of the evidence in the claim, including the claimant’s testimony over multiple sittings and his witness’s testimony, counsel’s written submissions and the written evidence submitted as exhibits by both counsel and the Minister. I address the Minister’s submissions below.
Claimant’s Name
[21] The Minister identified purported inconsistencies in the claimant’s testimony with respect to why his name was different than his siblings’ names, and his reason for going by his “official” Somali name. I asked the claimant why he did not share the same middle name “[XXX]” as his siblings, including his half-brother in Denmark who provided a letter and a copy of his Danish resident card.
[22] The claimant testified that in Somalia he was known as [XXX], or the son of [XXX], the son of [XXX]. He testified that his father’s official name was [XXX], that his own grandfather had been named [XXX], and his father’s grandfather had been named [XXX], and that his father also went by the nickname “[XXX]”. The claimant testified that he did not know why the family called his father this nickname. He testified that they also called his father “[XXX]” or “[XXX]” (teacher) because his father was known in their area of Somalia for having read and learned the Koran well and that he had gone to the pilgrimage or Haj.
[23] The claimant testified that when he went to South Africa he decided to go by his given name ([XXX]), followed by his father’s given name ([XXX]), followed by his grandfather’s name ([XXX]). He explained that his half-brother provided the name “[XXX]” for himself when he arrived in South Africa and also in his UNHCR interview for resettlement in Denmark. His brother entered South Africa at a different point, about three years after the claimant, and the claimant had no control over the more colloquial name given by his brother to the South African and then the UNCHR and Danish authorities. The claimant testified that he did not know his brother’s reasons for doing this.
[24] I have reviewed the claimant’s testimony over the multiple sittings and I find that his explanation for the difference in his name between his half-brother’s and other siblings names is reasonable given the cultural context of the use of nicknames in Somalia. I accept that it is reasonable that upon arrival in another country (South Africa) where he claimed asylum, he decided to use if his “official” name, [XXX], which is indeed his full name and not the more colloquial nickname he was called in Somalia. At the second sitting, the claimant testified that this was also the name that had been on his Somali driver’s licence, so his South African asylum documents referenced this name.
[25] I note that the claimant’s identity witness in his testimony identified the claimant by his name, [XXX], and was not aware of other nicknames he may have gone by in Somalia. The witness was from the same clan as the claimant but did not live in [XXX]. He said he visited the claimant and his family in [XXX] from his own small village in lower Juba on six or seven occasions between 2007 and 2009. Given that the witness was not a close family member or someone who saw the claimant regularly in Somalia, I do not find it unusual that he was not aware of the claimant’s nickname in Somalia.
[26] I am mindful of the information before me about Somali naming customs and the common use of nicknames in Somali culture. While Somali naming conventions for their children typically involve a given name + father’s given name + grandfather’s given name[21], further evidence in the NDP suggests:
A child can be given more than one first name at birth. It is also common to give the child a nickname, such as a family name, a descriptive name or an abbreviation of the given name. It is often the case that these names are mixed together, and sometimes a person would use his/her nickname in an official context. A large percentage of the Somali population is still illiterate and there is sometimes a lesser focus on formalities. All these factors may often create confusion as to a person’s “correct” name and identity.[22][Emphasis added]
[27] I find that this country evidence provides important cultural context in which the claimant’s explanations and personal circumstances are rooted. I therefore accept his explanation for the difference in his name from his siblings names as reasonable. For the same reason, I also do not find that the claimant’s brother’s letter, dictated to an interpreter who wrote it down in English and provided his own photo identification, can be discounted as not probative or trustworthy simply because he declared in this letter that he was “[XXX]” and his Danish resident permit card lists him as “[XXX]”.[23] Such mixing together of official and colloquial names is, according to the above-noted evidence in the NDP, quite common in Somalia.
Al-Shabaab’s threats and actions towards the claimant
[28] The Minister pointed to some purported inconsistencies between the claimant’s testimony and BOC narrative, namely that that the claimant testified that it was only he and his older brother, rather than all his brothers, who were being pressured to join Al-Shabaab and that he testified that the Al-Shabaab fighter/former homeschool-mate, [XXX], did not threaten him in person, whereas the BOC indicates he did come in person. I have reviewed the claimant’s testimony and I note that when I asked the claimant to tell me about the threats he received in Somalia he indicated that Al-Shabaab asked for him and his brothers and had threatened his mother that if he and his brothers did not join them, Al-Shabaab would kill them. Then in later questioning the claimant indicated that Al-Shabaab was only “sending” messages to him and his older brother to join them, which he clarified in his testimony was because it was only his older brother and himself who had cell phones which is why they were the ones receiving the text messages demanding that they join Al-Shabaab. From my review of his testimony, the claimant originally testified that it was him and his brothers who [XXX] was trying to convince to join Al-Shabaab and that it was the claimant and his brothers who were being sought on the day that [XXX] came to their family home in [XXX] 2010 and made threats about their recruitment to their mother. I therefore find that this does not detract from the claimant’s credibility, as I do not find this to be inconsistent.
[29] The Minister also submits that there was an inconsistency between the claimant’s testimony and his BOC form when he described in his testimony that [XXX] had not threatened him in person, and he testified that if he had been face-to-face with [XXX], he would have taken the claimant. The claimant’s BOC form indicates that [XXX] came several times to him and his brothers trying “to encourage us to join Al-Shabaab with him.”[24] This apparent inconsistency was put to the claimant, and he responded that [XXX] came to him and his brothers in person before he had joined Al-Shabaab, wanting him and his brothers to join Al-Shabaab with him, and it was only after he had joined that he started texting him and his older brother demanding that they join Al-Shabaab, and using threats.
[30] The Minister submits that this explanation is an attempt to explain away an inconsistency between his testimony and his BOC form. I find that the claimant’s explanation was immediate and is not clearly inconsistent with the information in his BOC form of [XXX] coming to him in person to encourage the claimant and his brothers to join Al-Shabaab with him. Further, the claimant also provided elaborative details in his testimony, such as the fact that when he came to him in person encouraging the claimant to join Al-Shabaab with him, [XXX] did not yet appear to have joined Al-Shabaab, as he was not dressed like Al-Shabaab at that time and he did not appear to have weapons that were typical of Al-Shabaab. The claimant did not appear vague or evasive in responding to my queries. In these circumstances, I decline to draw the negative credibility inference suggested by the Minister, as I find the claimant’s explanation reasonable.
[31] The Minister also submits that a difference between the Port of Entry (POE) declaration, in a question and answer format, made by the claimant when he entered Canada and his testimony and BOC form, should ground a negative credibility finding. The claimant stated at the POE that Al-Shabaab tried to kidnap him, however in his testimony and BOC form he stated that he was not home when Al-Shabaab came and threatened his mother and brothers, and there is no mention of an attempted kidnapping.
[32] The claimant explained in his testimony that what he meant at the POE was that Al-Shabaab would have kidnapped him had he been home; their intention was to take him by force. I accept this explanation as reasonable. The questions and answers in a POE interview typically only provide a brief snapshot of a claimant’s reasons for fleeing harm, and they were done through an interpreter over the telephone in this case.[25] There is no indication that the claimant was asked for further details to explain this harm he feared from Al-Shabaab, as the next question from the POE declaration asks about his status in Denmark. Moreover, the Danish refugee appeal decision does not reference any kidnapping attempt, which is consistent with his BOC from and testimony. I therefore decline to draw a negative credibility finding on this issue.
Comparing the Danish Refugee Appeal Board decision with the claimant’s allegations
[33] The Minister submits that there are inconsistences between the information in the Danish Refugee Appeal Board decision and the information that the claimant has provided in his refugee claim in Canada. Having reviewed the Danish Refugee Appeal Board decision in its entirety, I disagree that the differences described by the Minister between that decision and the claimant’s evidence should sustain a negative credibility finding. The Minister points out that in the Danish Refugee Appeal Board’s summary of the claimant’s evidence, the Board member describes the claimant as having stated he had a “good life” in South Africa and that he had a job, as well as having described that there were “thieves and gangs in South Africa who terrorized people, but the Appellant [claimant] stayed there because he had a job.”[26] The incident in South Africa of being shot in the arm by thieves at the store where he worked is not mentioned by the Danish Refugee Appeal Board and the Minister submits that this is a “major omission”.
[34] Counsel for the claimant notes that the Appeal Board’s summary of the claimant’s life story concerning South Africa was for the purpose of determining whether he should remain in Denmark or face return to Somalia, and as the claimant did not have citizenship or permanent residence in South Africa, his situation in South Africa was not being assessed by the Appeal Board, so it is not unusual for it not to be a detailed or fulsome account of the problems he encountered there. I agree with this submission and do not find that this is a serious omission from which a negative credibility finding should be drawn.
[35] I also decline to draw a negative credibility finding from the Minister’s submission with regards to an alleged inconsistency between the Danish Refugee Appeal Board decision and the claimant’s allegations about the nature of Al-Shabaab’s threats towards him. In the Appeal Board decision, it is noted that the claimant alleged to have had two to three phone calls from Al-Shabaab and to have received approximately three text messages from Al-Shabaab who also sent an old school-mate to seek him out to get him to join them. This is consistent with the claimant’s allegations in his BOC form. The Appeal Board also noted that the claimant had alleged that Al-Shabaab had threatened him if he did not cooperate with their recruitment demands he would be killed, and also that he had a fear that as someone now who would be returning to Somalia now with no family remaining there having resided in western countries for several years, he would be particularly vulnerable.[27]
[36] I find that this description of why the claimant fled Somalia is generally consistent with the claimant’s present allegations. The Appeal Board’s decision in fact appears to be internally contradictory on the point that the Minister mentions, as the decision indicates, more than once on page three, that Al-Shabaab sent a former school-mate to seek him out to get him to join them, and also states that he was never sought out by Al-Shabaab.
[37] An inconsistency between the Danish Refugee Appeal Board decision and the present claim which I put to the claimant was that in the Appeal Board decision it states that Al-Shabaab did not attempt to recruit anyone else in his family in the same manner, but the claimant knew other people in the same area who had were forcibly recruited. The claimant testified that when he reviewed the Danish Refugee Appeal Board decision, he had seen some errors, and it could have been a problem with interpretation, and he is not certain why they are there. While this is a difference that would not seem to necessarily be the result of poor interpretation, rather it appears that the brothers also being targeted by Al-Shabaab is an omission in the Appeal Board decision, I am mindful that comparing such the Appeal Board decision to the present allegations with a mind to looking only for differences, must be balanced against looking at the decision as whole and considering the aspects of the Appeal Board decision that are in line with what the claimant alleges in the present claim.
[38] I am satisfied that the Danish Refugee Appeal Board decision when read in its entirety and not microscopically, is consistent with respect to the claimant’s identity and his core allegations of why he fled Somalia to escape forced recruitment to Al-Shabaab; that a former school-mate was approaching him asking him to join, and also sending him text messages on behalf of Al-Shabaab demanding that he join. It is also consistent with his alleged route to Denmark, including having made and been accepted as a refugee in South Africa, who then applied through the UNHCR to come to Denmark with his brother who required surgery to remove a brain tumour. I also note that the Appeal Board decision indicates, consistent with the claimant’s allegations in this claim, that his father was killed in Somalia in 2006 as a result of battles between militant Islamist groups and government forces in their village. I find that the Danish Refugee Appeal Board decision therefore is assistive to the claimant in establishing his core allegations, as well as his identity.
Obtaining the Danish passport used for travel out of Denmark
[39] The Minister submits that a negative credibility finding is warranted from the fact that the improperly obtained Danish passport used by the claimant for his first attempt to reach Canada and then for his travel to the United States was issued in [XXX] 2018 prior to him having received the final decision on his refugee appeal in Denmark on [XXX] 2018. The claimant testified that he destroyed this passport in the United States. He required a Danish passport for travel since his own “alien passport” from Denmark would not have permitted his travel to Canada or the United States. The claimant testified that he believed the Danish passport he used in his journey to the United States was genuine “because it worked” and he was told by the agent whom he had paid to procure it, that “you can travel with that”. The claimant also testified that the passport was altered to include his photograph in it and that he made the arrangement with the agent for the passport after receiving his negative appeal decision orally on [XXX] 2018.
[40] The Minister asserts the opinion that the it would be “near impossible” for the claimant’s photograph to have been added to the polymer substrate in the Danish passport to replace another photograph after the passport was issued in [XXX] 2018, and hence if the passport was improperly obtained, then such passport was likely obtained with the claimant’s photograph already in it on its issuance date in [XXX] 2018, prior to the claimant receiving his negative refugee appeal decision. This raises the concern, according to the Minister, that the claimant improperly obtained this passport prior to learning the outcome of his appeal and that he is not being truthful concerning the circumstances under which he obtained this document.
[41] I note that the Minister did not provide any objective evidence about the manufacture of Danish passports, and the possibility, prevalence or rarity of document tampering of such documents. Further, the Minister’s submission does not address the possibility that the passport could have been created, fraudulently after the claimant requested after [XXX] 2018 and that the information in it may have simply indicated an earlier issuance date. While the claimant referred to it as a “genuine” document “because it worked” and because he was told by the agent that “you can travel” with the document, this does not necessarily mean it was truly a genuine document, and that it was not fabricated after the claimant requested it. I decline to draw the negative credibility inference suggested by the Minister on this point.
An area of credibility concern: How and why claimant obtained his Somali driver’s licence
[42] I do have a credibility concern with respect to the claimant’s testimony concerning his attainment of his driver’s licence in Somalia. He testified that this document was lost by him at some point in South Africa. I find that the claimant’s testimony on this issue evolved when being questioned about the information that the claimant had provided to the Ontario Ministry of Transportation when applying for an Ontario driver’s licence, and obtained and provided by the Minister in this claim.[28] Moreover, I find that his description of how and why he obtained this Somali driver’s licence in Somalia in 2009 is unreasonable and inconsistent.
[43] When asked about why he declared five years of driving experience in South Africa on his Ontario application form for a driver’s licence when he had only resided in South Africa for four years, the claimant explained that he had had four years of driving experience in South Africa and he had also driven in Denmark, and so he had included the total number of years of driving experience that he possessed. I asked him how it was that he obtained this driving experience in South Africa when his South African driver’s licence indicates it was issued in 2014, and the claimant left South Africa on [XXX] 2014. The claimant then described that he drove in South Africa on his Somali driver’s licence, which he had obtained in 2009. The claimant provided a copy of his South Africa Traffic Register Number certificate issued on [XXX] 2012[29] and testified that he needed this document along with his Somali driver’s licence when driving in South Africa.
[44] The claimant testified that he applied for a driver’s licence in 2009 in Somalia in [XXX] and paid a fee of about $[XXX] (US) for it. I asked the claimant why he wanted to expend this kind of money and effort in getting a driver’s licence when he was working herding animals and did not have formal income and given he acknowledged that his family did not own a car and he did not have an occupation that involved driving. His answer was that he wanted to have the chance to drive at some point, so he wanted a licence. He testified that he did not drive much in Somalia. At the second sitting he indicated that at the time he obtained his driver’s licence in Somalia he had plans to get a car in the future.
[45] At the [XXX] 2019 sitting he testified that there was an office in [XXX] where he got his licence, and there was an area there where one could learn to drive. In the [XXX] 2019 sitting the claimant described how there were no Jubal and government offices in [XXX] in the 2009-2010 timeframe. When asked about the contradiction with his previous testimony- that he had testified that he had obtained his driver’s licence in [XXX] in 2009- the claimant denied that he had obtained the licence had been issued in [XXX] itself and explained that “[XXX] driving school” had given him the driver training and that this driving school in [XXX] got him his licence which would have been issued in Kismayo where they had government offices at the time. He testified that he thought it was the driving school who arranged for the driver’s licence.
[46] I find that the claimant’s testimony about how he obtained a Somali driver’s licence appears to have evolved to account for inconsistencies, and that his reason for seeking out a driver’s licence at that point in his life in Somalis does not appear plausible in that I question why he would spend the money and time in getting a Somali driver’s licence in 2009 without any concrete reason or ability to use it. I have weighed this credibility concern against the rest of the claimant’s testimony with regards to his identity and his core allegations, the testimony of his witness, and particularly against his corroborating evidence as to his identity.
Summary on Identity and Credibility
[47] Ultimately in weighing the totality of the evidence, including the claimant’s corroborating documents as to his identity and residence history, I find that my credibility concern about his testimony pertaining to his Somali driver’s licence does not outweigh the other credible corroborating evidence such that I find that despite this concern, the claimant has established his personal and national identity, on a balance of probabilities. I find that the multiple corroborating documents before me that consistently list his personal and national identity assist in overcoming this credibility concern about why and how he obtained a Somali driver’s licence, as does his witness’s credible testimony.
[48] This concern also does not outweigh the other credible evidence outlined about his life and experiences in Somalia that lead him to flee that country. As such I find that he has established the core of his allegations, on a balance of probabilities. Those core allegations are that he was targeted by Al-Shabaab for recruitment in 2010 in the [XXX] area of Somalia and if he were returned to Somalia today, he would also be perceived with suspicion and targeted for harm as a possible Somali government or western government spy by Al-Shabaab.
No Permanent Status in South Africa
[49] I am satisfied, after canvassing the issue thoroughly with the claimant and reviewing his corroborating documents, that the claimant, on a balance of probabilities, has established that he does not have citizenship or permanent residence in South Africa. The claimant alleged that he claimed asylum in South Africa and was granted refugee status in that country, and that he had never obtained permanent residence status or citizenship there. He testified that he did not believe he was even eligible to apply for permanent residence in South Africa, given that he had only lived there for four years as a refugee. His testimony about when he arrived in South Africa and what he did in that country was generally consistent with his BOC form and other supporting documentation. He also provided a copy of the Danish laissez-passer document that had been issued to him and stamped with his travel dates in leaving South Africa on [XXX] 2014 to travel to Denmark as a United Nations-accepted refugee.
[50] I had questions for the claimant about his South African driver’s licence. A copy of this licence was provided in the information that was obtained by the Minister from Ontario’s Ministry of Transportation concerning the claimant’s application for an Ontario driver’s licence. A copy of his South African driver’s licence was provided by the claimant when he applied for his Ontario driver’s licence.[30] The claimant testified that this driver’s licence was genuine. He also testified that he was no longer sure where the original of this licence was, since after he obtained his Ontario driver’s licence, that is what the document he was concerned about. In the third and final sitting, I putto the claimant my concern about the I.D. Number that appeared on his South African driver’s licence, pursuant to the information contained in the South African National Documentation Package, the eleventh digit of this number being “0”, signifies that the holder has South African citizenship.[31]
[51] The claimant responded in his testimony that this was the first time he had heard about this issue, and that he did not know how this could be, since he was someone in South Africa who only had been granted asylum, and did not possess citizenship. He said that the South African licensing office gave him this card after doing a test, and that he had never noticed this issue with the I.D. Number on the licence.
[52] At the third sitting the claimant provided a copy of his UNHCR Resettlement Registration Form[32] noting his name, date of birth, nationality as a Somali citizen, his parents’ names with his father being noted as deceased, that he is from the [XXX] area of Somalia, is from the Ogaden clan, and also the particulars of his wife (now ex-wife). It notes an “arrival date” to the country of asylum (South Africa) as [XXX] 2010. He explained that he only recently obtained a copy of this document as an acquaintance had gone to Denmark and gotten it for him from his brother’s house. The claimant testified that he had asked her to go there and look for any documents related to him, as he was not even sure what documents he had that remained there. He obtained the copy of this UNHCR document in either late [XXX] or early [XXX] 2019, after the second sitting of his refugee claim. I asked him why he had not had his brother in Denmark send him this document previously and the claimant responded that his brother is not healthy and often not capable of doing these kinds of things, as he spends a lot of his time in hospital having had multiple brain surgeries for a tumour in his brain.
[53] I note that the information on this UNHCR document is consistent with the claimant’s allegations, testimony and other corroborating documents concerning the issue of his personal and national identity, and his date of arrival in South Africa. Moreover, his testimony about his brother’s health condition is consistent with his previous testimony and the other corroborating documents before me.
[54] I allowed the claimant an opportunity to provide post-hearing evidence on the issue of his status in South Africa. He provided two documents issued by the Department of Home Affairs of the Republic of South Africa. The first entitled, “Formal Recognition of Refugee Status in the RSA” and the second is entitled, “Asylum Seeker Temporary Permit”.[33] These documents indicate that the claimant applied for refugee protection in Johannesburg, South Africa on [XXX] 2010 and was found to be a refugee by the Department of Home Affairs on [XXX] 2010. On the refugee status document, refugee recognition is noted as being valid until [XXX] 2012. According to the claimant and his Danish travel and other documents he remained in South Africa until [XXX] 2014 as a refugee, and therefore this South African Refugee Status document was likely extended at least once.
[55] These South African documents are consistent with the information in the NDP for South Africa concerning the types of documents that are issued to asylum seekers and recognized refugees and the process of applying for asylum and being granted refugee protection in South Africa, initially on a two- year basis that is to be renewed.[34]
[56] While I do find that the I.D. number in the claimant’s South African driver’s licence is a discrepancy in the evidence, I have weighed and assessed this against the multiple other pieces of evidence before me, including now his UNHCR Registration Document and his temporary Refugee Status and Asylum Seeker Temporary Permit issued by the Department of Home Affairs of South Africa,[35] such documents corroborating the claimant’s allegations that he only entered South Africa in 2010 and obtained temporary status there through an asylum claim. I find therefore on a balance of probabilities that the claimant did not obtain citizenship in South Africa, either through birth there, or through arrival to that country at a much earlier time, which would have allowed time for possible naturalized citizenship.
[57] The information in the South African NDP is clear that the process to obtain permanent residence in South Africa and then naturalized citizenship is a lengthy, inconsistent and often arduous process, that would take at least five years, but most likely much longer, as permanent residency can only be applied for after an individual has resided for five years in South Africa after having been granted refugee status and that citizenship can only be applied for after a person has been a permanent resident for five years.[36] Sources in the NDP also note that a required step, called “certification”, in the pathway to obtaining permanent residence, from the South African government can be very difficult or next to impossible for refugees to obtain, with some refugees never receiving a decision or waiting up to 20 years for certification.[37] I accept, on a balance of probabilities, based on the claimant’s testimony that is supported by his corroborating documents from South Africa and the UNHCR, that he only lived in South Africa from [XXX] 2010 onwards. And on a balance of probabilities, I find that the claimant left South Africa on [XXX] 2014 arriving in Copenhagen, Denmark the next day, which is corroborated through his Denmark documentation, including the travel stamps on his Danish Laissez-passer travel document issued by the Royal Danish Embassy in Pretoria, South Africa.
Nexus
[58] This claim is based on imputed political opinion as Al-Shabaab would perceive the claimant’s refusal to join them and his fleeing from their demanded recruitment of him, to be an act of ideological and political defiance against them. As well, I find that the claimant’s residence in a western country augments the perception of the persecutor that the claimant may be a spy for western governments or the Somali government and that he holds political and ideological views to which Al-Shabaab is strongly opposed.
Well-foundedness of the Claim
Subjective basis
[59] I accept the claimant’s allegations, on a balance of probabilities, that he fled Somalia as soon as possible after he came to know that he was being targeted by Al-Shabaab. Upon learning that he faced removal from Denmark to Somalia, he looked for a way to avoid this fate, and obtained a fraudulent or improperly obtained Danish passport in a different name. He attempted to travel to Canada on this passport but was stopped in transit in London, UK by Canadian officials on the suspicion that the passport was fraudulent. He then changed his route to travel to the USA. Four days after arriving in the USA, the claimant made his refugee protection claim at an irregular crossing near Emerson, Manitoba. I accept that the claimant has established that he is subjectively fearful of returning to Somalia.
Objective basis
[60] There is an objective basis in the country documentation for the claimant’s risk of persecution. The UNHCR Report, International Protection Considerations for People Fleeing Southern and Central Somalia notes specific risk profiles when considering risk in Somalia and included in this are individuals at risk of being forcibly recruited by Al-Shabaab.[38]
[61] A March 2017 report from the Danish Immigration Service entitled, South and Central Somalia, Security Situation, al-Shabaab Presence, and Target Groups, states:
An independent organisation and an anonymous source concurred that refusing to join al-Shabaab can have serious consequences. Persons, who refuse, can be killed, and the killing can take place as a public execution. The independent organisation considered it to be a part of an overall al-Shabaab strategy in order to install fear in the population and to state examples for future recruits.[39]
[62] The May 2016 Update from the United Nations High Commissioner for Refugees Position on Returns to Southern and Central Somalia states that Al-Shabaab is “reported to be responsible for a wide range of grave human rights abuses, including extrajudicial killings, abductions and disappearances, rape and other forms of sexual violence, forced recruitment of children, forced marriages to Al-Shabaab members, restrictions on civil liberties and freedom of movement, and restrictions on NGOs and humanitarian assistance.”[40]
[63] I am satisfied that the claimant’s individualized circumstances are consistent with the objective documentary evidence in that he has a similar risk profile to those who face targeted killing and serious harm from Al-Shabaab. I have considered that Al-Shabaab’s past targeting of the claimant for recruitment took place over ten years ago, and how this impacts his forward facing risk of persecution. I find that the claimant’s long-term residence outside of Somalia, particularly in the western countries of Denmark and now Canada, further heightens his risk and makes up for any possible dissipation of Al-Shabaab’s interest or motivation in harming him over the ten years he has been away. Hence, I find that the claimant’s personal circumstances lead to the finding that he would be targeted by Al-Shabaab for interrogation or physical harm upon his return to Somalia. He would be viewed with suspicion by this armed group as a possible government or western collaborator or spy. There is a serious possibility that the claimant’s past resistance to Al-Shabaab’s recruitment demands in the [XXX] area would become known to them and that he would be perceived as an enemy in the eyes of Al-Shabaab due to his profile as a returning westernized person.
[64] The evidence in the Somalia National Documentation Package states that Al-Shabab has a sophisticated intelligence wing called Amniyat, and that they have an extensive network of sympathizers and collaborators with several sources considering Al-Shabaab to have information gathering reach everywhere in south-central Somalia, including in Somali government institutions.[41] In analyzing whether he would face a serious possibility of persecution in the future, I have also considered his personal circumstances, as someone with no remaining family members in Somalia. This heightens his risk.
[65] The National Documentation Package speaks of Al-Shabaab committing grave human rights abuses against civilians, including public executions, due to accusations of spying, that those questioned at check-points with clothing or items such as smartphones from the West are viewed with suspicion by Al-Shabaab, and that escaping harsh treatment from Al-Shabaab can often depend on having relatives and clan connections who can vouch for a returnee.[42] Other evidence indicates that Al-Shabaab’s targeting for kidnapping and harm of government officials and workers from international organizations is motivated primarily for ideological rather than for-profit reasons.[43] Based on the objective country evidence, I find that as someone who was previously targeted but eluded the recruitment attempts of Al-Shabaab in the [XXX] area, the claimant would be at a heightened risk in attempting to traverse Somali territory as someone who is, and would perceived to be, westernized and who has been away from Somalia for a significant amount of time.
[66] I therefore find that the claimant has established that his claim for refugee protection is subjectively and objectively well-founded. I find that there is a serious possibility that he would face persecution if returned to Somalia.
State Protection
[67] I find that there is no adequate state protection for the claimant in Somalia: there is clear and convincing evidence that state protection would not be reasonably forthcoming to him and the presumption of state protection has been rebutted. The documentary evidence in the Somalia NDP indicates:
Civilian authorities did not maintain effective control over the security forces and had limited ability to provide human rights protections to society.
…
Security forces abused civilians and often failed to prevent or respond to societal violence. Although authorities sometimes used military courts to try individuals believed to be responsible for abuse, they generally did not investigate abuse by police, army, or militia members; a culture of impunity was widespread.
…
Impunity generally remained the norm. Government authorities took minimal steps to prosecute and punish officials who committed violations, particularly military and police officials accused of committing rape, killings, clan violence, and extortion.
…
Police were generally ineffective and lacked sufficient equipment and training.[44]
Internal Flight Alternative
[68] I find that there is no viable internal flight alternative for the claimant. The NDP describes the frequent checkpoints throughout the country run by Al-Shabaab as well as other state and non-state agents, inhibiting movement of persons and putting those stopped at risk of looting, extortion, harassment and violence.[45] The humanitarian and security situation in other areas of south and central Somalia would make it unreasonable for the claimant to relocate to another location. With no family or support network in other areas of Somalia, there is no viable internal flight alternative for the claimant. Therefore, the claimant would face a serious possibility of persecution throughout Somalia.
CONCLUSION
[69] For the above reasons, I find that the claimant is a Convention refugee pursuant to section 96 of IRPA, and I therefore accept his claim
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended.
[2] Exhibit 2.
[3] IRPA, section 106
[4] Refugee Protection Division Rules, SOR/2012-256, Rule 11
[5] Su v. Canada (MCI), 2012 FC 743, at para. 4
[6] Duale v. Canada (MCI), 2004 FC 150, at para. 19 (3).
[7] Exhibit 3, National Documentation Package (NDP) for Somalia (April 30, 2019), Item 3.2, Documents in Somalia and Sudan, Norwegian Country of Origin Information Centre, Landinfo, January 5, 2009, Item 3.11, Response to Information Request No. SOM105248.E, March 17, 2016: Identification Documents, including national identity cards, passports, driver’s licenses, and any other document required to access government services; information on the issuing agencies and the requirements to obtain documents (2013-July 2015)
[8] Exhibit 3, Item 3.11
[9] Exhibit 3, Item 3.8, Response to Information Request No. SOM104486.FE, June 26, 2013, Birth Registration, including the issuance of birth certificates; the registration of children attending school … ; Item 3.6, Response to Information Request No. SOM104487.FE, July 15, 2013, Possibility for people outside the country without identity documents to establish their Somali nationality, in particular, those who have left Somalia since 1991; fraudulent identity documents (2012-July 2013); Item 3.11
[10] Exhibit 3, Item 3.11, Item 3.7, Somalia U.S. Visa Reciprocity and Civil Documents by Country, U.S. Department of State, accessed March 22, 2019
[11] Exhibit 3, Item 3.11
[12] Exhibit 10, Originals presented at the hearing and then provided by claimant to CBSA, Exhibit 13, Notice of Seizure of these documents with colour photocopies of originals
[13] Exhibit 10, page 14
[14] Exhibit 16
[15] Exhibit 15
[16] Exhibit 12
[17] Exhibits 16 and 17
[18] Exhibit 11
[19] Exhibit 10, pages 1-11
[20] Exhibit 7
[21] Exhibit 3, Item 3.20, A Guide to Names and Naming Practices: Somali, International Criminal Police Organization (INTERPOL), March 2016 and Item 3.2, infra, pages 7-8.
[22] Exhibit 3, Item 3.2, Documents in Somalia and Sudan, Norway- Norwegian Country of Origin Information Centre, Landinfo, 5 January 2009, page 8; and Item 3.20, supra, noting the common use of nicknames
[23] Exhibit 11
[24] Exhibit 2, para. 9 of BOC narrative
[25] Exhibit 1
[26] Exhibit 10, page 2
[27] Exhibit 10, page 3.
[28] Exhibit 8
[29] Exhibit 11
[30] Exhibit 8
[31] Exhibit 14, South Africa National Documentation Package, version January 31, 2020, Item 3.5, Response to Information Request, South Africa: Information on identity numbers, including significance of the digits and the legal status for which they are issued…, 13 September 2013, page 2
[32] Exhibit 15
[33] Exhibit 16, Post-hearing documents received on February 19, 2020
[34] Exhibit 14, NDP of South Africa, version January 31, 2020, Item 3.3, Citizenship. Paralegal Manual 2015, The Black Sash; Education and Training Unit, November 2015, pages 12-14
[35] Exhibit 16, Post-hearing documents received on February 19, 2020
[36] Exhibit 14, South Africa NDP, Item 14.3, Whether a person who was recognized as a refugee in South Africa and holds a valid Formal Recognition of Refugee Status loses refugee status upon leaving South Africa; information on the process to reacquire refugee status; information on the process for a refugee to apply for citizenship (2014-Janaury 2015), Immigration and Refugee Board of Canada, 22 January 2015, ZAF105046.E, pages 2-3, Item 3.3, Citizenship. Paralegal Manual 2015, The Black Sash; Education and Training Unit, November 2015 pages 5-6.
[37] Exhibit 14, Ibid, Item 14.3, pages 2-3
[38] Exhibit 3, NDP, Somalia, 30 April 2019, Item 1.10, International Protection Considerations with Regard to People Fleeing Southern and Central Somalia, United Nations, High Commissioner for Refugees, January 2014. HCR/PC/SOM/14/01.
[39] Exhibit 3, NDP, Somalia, 30 April 2019, Item 7.7, South and Central Somalia. Security Situation, al-Shabaab Presence, and Target Groups, Danish Refugee Council; Denmark, Danish Immigration Service, March 2017, p. 21.
[40] Exhibit 3, NDP, Somalia, 30 April 2019, Item 1.11, UNHCR Position on Returns to Southern and Central Somalia (Update I), United Nations High Commissioner for Refugees, May 2016, p. 5.
[41] Exhibit 3, NDP of Somalia, 30 April 2019, Item 7.7, South and Central Somalia. Security Situation, al-Shabaab Presence, and Target Groups, Danish Refugee Council; Denmark, Danish Immigration Service, March 2017, pages 10, 18, 22, 47; Item 7.11, Situation in South and Central Somalia (including Mogadishu), Asylum Research Centre, 25 January 2018, page 109.
[42] Exhibit 3, NDP Somalia, 30 April 2019, Item 7.7, South and Central Somalia. Security Situation, al-Shabaab Presence, and Target Groups, Danish Refugee Council; Denmark, Danish Immigration Service, March 2017, pages 25, 41; Item 1.7, Situation in South and Central Somalia (including Mogadishu), Asylum Research Consultancy, 25 January 2018, page 394.
[43] Exhibit 3, Item 1.19, Country Policy and Information Note. Somalia (South and Central): Fear of Al-Shabaab, Version 2.0, United Kingdom Home Office, July 2017, page 16.
[44] Exhibit 3, NDP Somalia, 30 April 2019, Item 2.1, Somalia. Country Reports on Human Rights Practices for 2018, United States, Department of State, 13 March 2019, pages 1-2, 6.
[45] Exhibit 3, Ibid.
