Abdi v. Canada (Citizenship and Immigration)

Abdi v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2020-01-30
Neutral citation
2020 FC 172
File numbers
IMM-1949-19
Decision Content
Date: 20200130
Docket: IMM-1949-19
Citation: 2020 FC 172
Ottawa, Ontario, January 30, 2020
PRESENT: Mr. Justice Russell
BETWEEN:
OSMAN ALI ABDI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of the decision of the Refugee Appeal Division of the Immigration and Refugee Board of Canada [RAD], dated March 1, 2019 [Decision], which denied the Applicant’s appeal of the Refugee Protection Division of the Immigration and Refugee Board’s [RPD] decision denying the Applicant’s refugee and person in need of protection claim under ss 96 and 97 of the IRPA.
II. BACKGROUND
[2] The Applicant claims to be a citizen of Somalia. He states that he was born in Mogadishu and raised in Mugambo, a village in the Lower Juba region of Somalia. The Applicant says that he is a Sunni Muslim and a member of the Sure sub-clan. He grounds his claim in his fear of persecution and harm by Al-Shabaab.
[3] The Applicant submits that, in 2007, his teacher was replaced by an extremist member of Al-Shabaab who began teaching and promoting violent jihad. In response, the Applicant’s father took him out of school. However, the Applicant claims that Al-Shabaab subsequently sent a letter to the Applicant’s father threatening to kill him and his family should the Applicant and his brother fail to return to school. In response, the Applicant says his father sent him to Kenya for his own safety.
[4] In 2011, the Applicant alleges that he left Kenya for South Africa and claims to have obtained refugee status there. However, the Applicant submits that he was forced to flee South Africa due to attacks on his shop.
[5] The Applicant arrived in the United States of America [USA] in January 2016 where he made an asylum claim. However, in November 2016, the Applicant crossed the border into Canada and made a refugee claim. The Applicant submits that he chose to abandon his asylum claim in the USA because he feared deportation.
[6] The RPD rejected the Applicant’s claim on November 1, 2017. In essence, the RPD found that the Applicant was not credible and had not met the burden to establish his identity on a balance of probabilities. The Applicant appealed the RPD’s decision to the RAD.
III. DECISION UNDER REVIEW
[7] On March 1, 2019, the RAD dismissed the Applicant’s appeal of the RPD’s decision and found, following an independent assessment of the evidence at hand, that the Applicant had not established his identity on a balance of probabilities. As such, the RAD upheld the RPD’s conclusion that the Applicant was not a refugee or a person in need of protection under ss 96 and 97 of the IRPA.
A. New Evidence and Request for Oral Hearing
[8] Before assessing the merits of the appeal, the RAD first considered whether the new evidence submitted by the Applicant was admissible as per the criteria set out in s 110(4) of the IRPA. Following this analysis, the RAD assessed whether a new oral hearing was appropriate as per the RAD’s discretion pursuant to s 110(6) of the IRPA.
[9] The RAD found that the affidavit of Ms. Amiira Yossuf Barre, the sponsorship application of Mr. Abdirisak Muse Hassan, and a photograph depicting Mr. Abdirisak Muse Hassan and the Applicant together were all admissible pursuant to s 110(4) of the IRPA. Indeed, the RAD found them to be credible, relevant, and new.
[10] However, the RAD found that an oral hearing was not justified in this case. The RAD noted that the new evidence did not raise a serious issue with respect to the Applicant’s credibility, nor was it central to the Decision and, if accepted, would not justify allowing or rejecting the Applicant’s claim. The RAD found that Mr. Abdirisak Muse Hassan’s sponsorship application and photographs had little probative value for his refugee claim and, as such, did not warrant convoking an oral hearing. As for Ms. Barre’s affidavit, the RAD found that its probative value would not overcome the other problems with the Applicant’s claim as: (1) she last saw the Applicant in Somalia in 2007 when she was fourteen; (2) she did not have a close relationship with him; (3) the affidavit did not contain any other evidence to corroborate her former residence in Jaamame, Somalia; (4) no corroborative documents were provided to allow the RAD to determine that they had a consistent history in the Jaamame district; and (5) there was no indication as to whether she was willing to act as a witness.
B. Merits of the Appeal
[11] Moving to the merits of the appeal, the RAD considered two main issues. First, whether the RPD’s conduct during the hearing resulted in a breach of natural justice and, second, whether the RPD erred in its identity finding as well as in its treatment of the supporting evidence.
(1) Breach of Procedural Fairness and Natural Justice
[12] The RAD found that no breach of natural justice arose from the RPD’s conduct. The Applicant submitted that the RPD member was aggressive, spoke to him in abrupt terms, and used a loud voice causing him to feel intimidated, nervous and unable to focus and respond comprehensively to the RPD’s questions. However, the RAD noted that its own review of the hearing materials did not identify any instances of poor conduct by the RPD. Moreover, it faulted the Applicant for not identifying any specific examples, nor raising any issues of natural justice or procedural fairness at the RPD hearing itself, given that breaches of procedural fairness must be raised at the earliest possible opportunity (McCurvie v Canada (Citizenship and Immigration), 2013 FC 681 at paras 64-65).
(2) Assessment of the Applicant’s Identity
[13] The RAD found that it agreed with the vast majority of the RPD’s findings and concluded that there were valid reasons to doubt the Applicant’s credibility as well as his identity. The RAD concluded that the Applicant’s identity had not been established and therefore rejected his claim on this basis.
[14] First, the RAD agreed with the negative inferences drawn by the RPD from the fact that the Applicant had first stated in his Basis of Claim form that his USA refugee claim was rejected, but then amended it to say that he had abandoned his claim once the RPD asked for an audio recording of the proceedings. The RAD further noted that the Applicant’s evolving and contradictory testimony on this issue supported the negative inferences, and that the Applicant’s explanation concerning his fear of deportation was not logical. As such, the RAD found that the Applicant’s refugee claim in the USA was denied as originally indicated, and that he amended his Basis of Claim form in order to withhold information about the proceedings that took place in the USA. The RAD consequently assigned little weight to the Applicant’s birth certificate photocopy, his USA asylum documents, and the positive identity determination following a credible fear interview in the USA, which appeared to have been grounded on the basis of the Applicant’s statements and some unspecified other documents but not on any government-issued identification.
[15] Second, the RAD drew a negative inference in relation to the Applicant’s identity as a result of the multiple inconsistencies regarding his date of birth. The RAD found that, although one typographical error would likely not justify a negative inference, the Applicant had listed his date of birth as January 1, 1990, in several of his refugee forms, and even in his USA asylum documents. This contradicted his testimony and his alleged birth certificate, which indicate his date of birth as being January 11, 1990.
[16] Third, the RAD found that the RPD had erred in drawing a negative inference as to the Applicant’s identity based on the fact that he did not describe a clan lineage consistent with the National Documentation Package [NDP] for Somalia. The RAD noted the flexibility of genealogical tracing in Somali culture for social and political positioning and acknowledged that the Applicant’s understanding of his clan lineage might not be exactly consistent with the NDP. However, the RAD did not find that this error changed its finding that the Applicant had not credibly established his identity.
[17] Fourth, the RAD agreed with the RPD’s decision to give no weight to Mr. Abdirisak Muse Hassan’s affidavit. The affidavit states that he and the Applicant grew up together in Kismayo, in a village called Mugambo. This was inconsistent with the Applicant’s testimony, which indicated that Mugambo was a one to two-hour drive from Kismayo. As such, the RAD found that this inconsistency, combined with the fact that Mr. Abdirisak Muse Hassan was unavailable to be cross-examined to explain this discrepancy, justified giving no weight to this affidavit. The RAD further noted that this inconsistency could not be cured by the Applicant’s new evidence. Specifically, the RAD stated that Ms. Barre’s affidavit, which describes Mugambo village as being on the outskirts of Kismayo, could not overcome the fact that the Applicant stated that Mugambo and Kismayo are one to two hours away from each other and claimed to have lived in an entirely different district. Concerning Mr. Abdirisak Muse Hassan’s sponsorship application and photos, the RAD stated that the former did not indicate his residential history, while the latter did not establish that they knew each other in Somalia.
[18] Fifth, the RAD agreed with the RPD that little weight should be given to the notarized letter from Ms. Faiza Abdulkadir. The RAD found that the letter could not credibly speak to the Applicant’s identity as it did not indicate: whether the Applicant is a citizen of Somalia; whether she or the Applicant ever lived in Somalia; whether the two ever saw each other in Somalia; or any mutual family members’ names. Furthermore, the original document was not provided to the RPD and Ms. Abdulkadir was not made available as a witness.
[19] Sixth, the RAD agreed with the RPD’s decision to assign low weight to the affidavit of Mr. Abdirahaman Omar Hassan, who the Applicant alleged to be a Somalian he met in South Africa in 2012. The RAD found that the affiant was not in a position to reliably assess the Applicant’s nationality, nor did the affidavit assess the Applicant’s knowledge of Somali geography, culture, or language skills. Moreover, the RAD noted that there was no evidence to corroborate that the Applicant was accepted as a refugee in South Africa.
[20] Finally, the RAD found that the support letters from Dejinta Beesha and Midaynta, two Somali community organizations in Canada, merited little weight. Though both organizations reached the conclusion that the Applicant is a Somali national, the RAD noted that there was little detail to indicate that the Applicant is a Somali national and not simply an ethnic Somali from another country in East Africa such as Ethiopia, Kenya, or Djibouti. The RAD also noted that these organizations were only acquainted with the Applicant in Canada for the purposes of his refugee claim.
[21] In conclusion, the RAD found that an overall assessment of the evidence in this case led to the conclusion that the Applicant had not established his identity. Though the RAD acknowledged that Ms. Barre’s affidavit was the strongest evidence provided by the Applicant, it also found that it was not sufficient to tip the balance of evidence in his favour, given the concerns noted above as to its probative value. As such, the RAD dismissed the Applicant’s appeal.
IV. ISSUES
[22] The issues to be determined in the present application are the following:
Did the RAD err in not convoking an oral hearing?
Did the RAD violate the Applicant’s right to procedural fairness and natural justice?
Did the RAD err in its credibility and identity findings?
V. STANDARD OF REVIEW
[23] This application was argued prior to the Supreme Court of Canada’s recent decisions in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] and Bell Canada v Canada (Attorney General), 2019 SCC 66. This Court’s judgment was taken under reserve. The parties’ submissions on the standard of review were therefore made under the Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] framework. However, given the circumstances in this matter, and the Supreme Court of Canada’s instructions in Vavilov at para 144, this Court found that it was not necessary to ask the parties to make additional submissions on the standard of review. I have applied the Vavilov framework in my consideration of the application and it does not change the applicable standards of review in this case nor my conclusions.
[24] In Vavilov, at paras 23-32, the majority sought to simplify how a court selects the standard of review applicable to the issues before it. The majority did away with the contextual and categorical approach taken in Dunsmuir in favour of instating a presumption that the reasonableness standard applies. However, the majority noted that this presumption can be set aside on the basis of (1) clear legislative intent to prescribe a different standard of review (Vavilov, at paras 33-52), and (2) certain scenarios where the rule of law requires the application of the standard of correctness, such as constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies (Vavilov, at paras 53-64).
[25] In this case, the Applicant did not make any submission as to the applicable standard of review. The Respondent, on the other hand, submitted that the standard of correctness applied to the issues of procedural fairness while the standard of reasonableness applied to this Court’s review of whether the RAD should have convoked an oral hearing as well as the review of the RAD’s credibility and identity findings.
[26] Some courts have held that the standard of review for an allegation of procedural unfairness is “correctness” (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59 and 61 [Khosa]). The Supreme Court of Canada’s decision in Vavilov does not address the standard of review applicable to issues of procedural fairness (Vavilov, at para 23). However, a more doctrinally sound approach is that no standard of review at all is applicable to the question of procedural fairness. The Supreme Court of Canada in Moreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 stated that the issue of procedural fairness:
requires no assessment of the appropriate standard of judicial review. Evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation (Moreau-Bérubé, para 74).
[27] As for the standard of review applicable to this Court’s review of whether the RAD should have convoked an oral hearing and the RAD’s credibility and identity findings, I agree with the Respondent that the standard of reasonableness applies. There is nothing to rebut the presumption that the standard of reasonableness applies in this case. The application of the standard of reasonableness to these issues is also consistent with the existing jurisprudence prior to the Supreme Court of Canada’s decision in Vavilov. See Ikheloa v Canada (Citizenship and Immigration), 2019 FC 1161 at para 7; Galamb v Canada (Citizenship and Immigration), 2019 FC 580 at para 6) regarding this Court’s review of a decision-maker’s decision to grant an oral hearing, and Li v Canada (Citizenship and Immigration), 2019 FC 537 at para 12; Pretashi v Canada (Public Safety and Emergency Preparedness), 2019 FC 1105 at para 26 concerning this Court’s review of a decision-maker’s credibility and identity findings.
[28] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with whether it “bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para 99). Reasonableness is a single standard of review that varies and “takes its colour from the context” (Vavilov, at para 89 citing Khosa, at para 59). These contextual constraints “dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt” (Vavilov, at para 90). Put in another way, the Court should intervene only when “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” (Vavilov, at para 100). The Supreme Court of Canada lists two types of fundamental flaws that make a decision unreasonable: (1) a failure of rationality internal to the decision-maker’s reasoning process; and (2) untenability “in light of the relevant factual and legal constraints that bear on it” (Vavilov, at para 101).
VI. STATUTORY PROVISIONS
[29] The following statutory provisions of the IRPA are relevant to this application for judicial review:
Convention refugee
Définition de réfugié
96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
96 A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays ;
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Person in need of protection
Personne à protéger
97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
97 (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture ;
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Appeal to Refugee Appeal Division
Appel devant la Section d’appel des réfugiés
Procedure
Fonctionnement
110 (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board.
110 (3) Sous réserve des paragraphes (3,1), (4) et (6), la section procède sans tenir d’audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s’agissant d’une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission.
Evidence that may be presented
Éléments de preuve admissibles
110 (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.
110 (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet.
Hearing
Audience
110 (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)
110 (6) La section peut tenir une audience si elle estime qu’il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois :
(a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;
a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause ;
(b) that is central to the decision with respect to the refugee protection claim; and
b) sont essentiels pour la prise de la décision relative à la demande d’asile ;
(c) that, if accepted, would justify allowing or rejecting the refugee protection claim.
c) à supposer qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou refusée, selon le cas.
VII. ARGUMENTS
A. Applicant
[30] The Applicant argues that the RAD erred by: (1) refusing to convoke an oral hearing in light of the new evidence presented; (2) breaching the Applicant’s right to procedural fairness and natural justice by taking an incorrect approach to assessing the RPD’s behaviour and by failing to give the Applicant an opportunity to respond to new credibility findings; and (3) unreasonably assessing the evidence in making its credibility and identity findings. Consequently, the Applicant argues that this judicial review should be allowed.
(1) Oral Hearing
[31] The Applicant argues that an oral hearing should have been held in this case in order to permit him to address the credibility issues raised by the RAD with regard to the new evidence submitted. He states that an oral hearing would have been beneficial in order to clear up any confusion and allow him to provide further evidence. The Applicant cites this Court’s decision in Ajaj v Canada (Citizenship and Immigration), 2016 FC 674 at paras 21-22 [Ajaj] where it is noted that:
[21] This may be contrasted with this Court’s decision in Husian v Canada (Minister of Citizenship and Immigration), 2015 FC 684. In that case, Justice Hughes found that where the RAD makes new credibility findings, the parties must be given an opportunity to make submissions.
[22] The arrest warrant and circular letter that Mr. Ajaj submitted raised a new credibility issue that was unconnected to the RPD’s and RAD’s negative credibility findings regarding the genuineness of his conversion from Islam to Christianity. The new evidence was central to the decision regarding his sur place claim. If the documents had been accepted by the RAD as authentic, then they would substantiate Mr. Ajaj’s fear of persecution by the authorities in Yemen and his sur place claim could potentially succeed. For that reason, the criteria of s 110(6) of the IRPA were met, and the RAD erred in failing to convene an oral hearing.
[32] The Applicant argues that his case is analogous to Ajaj as the RAD largely discredited Ms. Barre’s affidavit due to the fact that she was only fourteen when she last saw the Applicant and because she did not provide her own Basis of Claim form. He argues that this amounts to a new credibility finding and, as such, an oral hearing should have been convoked. By failing to do so, the Applicant argues that the RAD fettered its discretion under s 110(6) of the IRPA in a similar way to the decision in Tchangoue v Canada (Citizenship and Immigration), 2016 FC 334 at para 18 where the Court noted that “the weight given to the new evidence should not have been the determining factor in its decision not to hold an oral hearing.”
(2) Breach of Procedural Fairness and Natural Justice
[33] The Applicant argues that the RAD erred in determining that there was no breach of his right to natural justice and procedural fairness. He submits that the RAD took a backward approach to analyzing the RPD’s behaviour by not recognizing that the RPD’s aggressive interrogation caused the Applicant to change his testimony due to anxiety and intimidation.
[34] The Applicant also argues that he should have been given an opportunity to respond to the RAD’s new credibility findings, notably concerning the RAD’s reversal of the RPD’s finding that the Applicant had been accepted as a refugee in South Africa.
[35] The Applicant further states that counsel could not have known the impact of the RPD’s behaviour on the Applicant during the hearing because counsel cannot read the Applicant’s mind. As such, it is logical that the Applicant and his counsel did not object to the RPD’s behaviour at the hearing.
(3) Credibility and Identity Findings
[36] The Applicant argues that the RAD’s credibility and identity findings were unreasonable because the RAD took an overzealous approach to assessing the evidence in this case that is inconsistent with this Court’s jurisprudence.
[37] First, the Applicant argues that the RAD erred by placing less weight on Ms. Barre’s affidavit simply because it dealt with events that took place when she was fourteen. The Applicant states that this goes against the presumption of truthfulness at stated in Dirieh v Canada (Citizenship and Immigration), 2018 FC 939 at paras 23-30. Instead, the Applicant submits that Ms. Barre’s affidavit, along with the other evidence, clears up the perceived inconsistency relating to the location of Mugambo and cannot be dismissed simply because of what it does not say, citing Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] 157 FTR 35 at para 17.
[38] Second, the Applicant argues that the RAD unreasonably disregarded Mr. Abdirisak Muse Hassan’s sponsorship application and his photographs. Regarding the former, the RAD allowed the RPD’s negative findings to colour its appreciation of this new evidence and to give it little weight simply because it did not contain Mr. Abdirisak Muse Hassan’s residential history, which the Applicant notes had already been provided in an affidavit. Concerning the photographs, the Applicant argues that a contextual approach to the evidence, as mandated by this Court, would have demonstrated that the photographs were taken with the Applicant in Somalia (Warsame v Canada (Citizenship and Immigration), 2019 FC 118 at para 18).
[39] Third, the Applicant argues that the RAD erred by upholding the RPD’s finding concerning the weight given to Ms. Abdulkadir’s affidavit and dismissing the pertinent information concerning the Applicant’s identity simply because it did not resolve the inconsistencies concerning the Applicant’s claim in the USA. The Applicant also argues that the RAD erred in dismissing the affidavit simply because Ms. Abdulkadir was not called to testify at the hearing as this is inconsistent with this Court’s jurisprudence, citing Shahaj v Canada (Minister of Citizenship and Immigration), 2005 FC 1044 at para 9.
[40] Fourth, the Applicant argues that the RAD unreasonably gave Mr. Abdirahaman Omar Hassan’s affidavit low evidentiary weight simply because the affiant had not known the Applicant in Somalia. The Applicant argues that the affiant is also Somali and is uniquely positioned to assess the Applicant’s identity claim as he can assess his language skills, his geographic knowledge, and his cultural knowledge. The Applicant states that the RAD took an overly critical approach to the evidence presented as warned against by this Court in Abdullahi v Canada (Citizenship and Immigration), 2015 FC 1164 at paras 9-10 which explicitly recognized that it “is notorious that government documents from Somalia are virtually unobtainable” and applicants must therefore rely on secondary sources to establish identity.
[41] Fifth, the Applicant submits that the RAD was overzealous in rejecting his USA claim documents simply because he corrected his Basis of Claim form. The RAD erroneously fixated on this minor correction to his narrative to ground its rejection of the entire body of evidence relating to his claim in the USA, including the credible fear interview, which confirmed his identity. The Applicant argues that this is inconsistent with this Court’s jurisprudence as it unreasonably fixates on a fact that is not central to his claim (Zhang v Canada (Citizenship and Immigration), 2007 FC 665 at para 6) and unreasonably rejects the evidence, while at the same time using its contents to impeach the Applicant’s credibility (Csiklya et al v Canada (Minister of Citizenship and Immigration), October 30, 2012, IMM-654-12).
[42] Sixth, the Applicant submits that the RAD unreasonably assigned negative weight to the fact that the Applicant mistakenly listed his date of birth as January 1, 1990, instead of January 11, 1990. The Applicant argues that this Court has already made it clear that a credibility finding cannot be grounded in an innocent typographical error (Ali v Canada (Citizenship and Immigration), 2015 FC 814 at para 31 and Mohamud v Canada (Citizenship and Immigration), 2018 FC 170 at para 6).
[43] Finally, the Applicant argues that the RAD erred in dismissing the support letters from the Somali community organizations in Canada. The Applicant says that these letters confirm that he is a Somali national, and are based on extensive interviews by knowledgeable individuals. They also attest to the Applicant’s knowledge of the language, history, and geography of Somalia. This is consistent with the relevant factors identified by this Court to establish an applicant’s identity (Lin v Canada (Minister of Citizenship and Immigration), 2006 FC 84 at para 13).
B. Respondent
[44] The Respondent contends that: (1) an oral hearing was not required in this case as the RAD’s findings concerning the new evidence related to its sufficiency rather than its credibility; (2) the Applicant provides no evidence to support the alleged breach of procedural fairness and natural justice; and (3) the RAD’s credibility and identity findings were reasonable and the Applicant simply disagrees with the weighing of the evidence. Consequently, the Respondent submits that this judicial review should be dismissed.
(1) Oral Hearing
[45] The Respondent argues that oral hearings are not automatically mandated by s 110(6) and no hearing was required in this case. The RAD retains significant discretion to convoke an oral hearing and the Applicant is not entitled to one simply because it may be beneficial, or because it is the best procedure available.
[46] In this case, the Respondent submits that none of the RAD’s conclusions diverge in any substantial or material way from the RPD’s findings or from the Applicant’s submissions to the RAD. Although the Applicant claims that the RAD made credibility findings concerning the new evidence submitted, the Respondent argues that the Applicant confuses the distinct concepts of credibility and sufficiency of evidence. Indeed, the Respondent states that the RAD only assessed the quality and weight of the evidence adduced and found that the new evidence presented was simply insufficient to allow it to come to a different conclusion than that of the RPD.
(2) Breach of Procedural Fairness and Natural Justice
[47] The Respondent submits that there was no breach of procedural fairness or natural justice in this case as the Applicant’s assertions are without merit and were not raised in a timely manner.
[48] First, the Respondent states that the Applicant makes bald assertions that the RPD was aggressive, abrupt, and used a loud voice. Despite the fact that the Applicant did not cite any specific examples, the RAD undertook its own analysis of the hearing but could not find any instances of poor conduct by the RPD.
[49] Second, the Respondent states that the Applicant failed to raise any procedural fairness concerns at the RPD hearing. The Respondent notes that a failure to raise the issue at the first opportunity has been found by this Court to constitute a waiver of the right to later challenge an alleged breach (Haniff v Canada (Citizenship and Immigration), 2012 FC 919 at para 15). The Respondent disagrees with the Applicant’s argument that counsel was unable to raise this concern during the RPD hearing; it would have been evident to counsel had the RPD’s conduct been so objectionable that it gave rise to a breach of procedural fairness and natural justice. Furthermore, counsel and the Applicant had the opportunity to discuss this issue during breaks.
[50] Finally, the Respondent notes that natural justice did not require the RAD to provide the Applicant with an additional opportunity to address the RAD’s observation that no evidence was presented to establish that he had been accepted as a refugee in South Africa.
(3) Credibility and Identity Findings
[51] The Respondent argues that the RAD’s findings concerning the credibility and identity of the Applicant were reasonable and that the Applicant’s arguments largely amount to a disagreement in the RAD’s weighing of the evidence.
[52] First, the Respondent argues that the Applicant simply disagrees with the weight given to Ms. Barre’s affidavit. The Respondent notes that it was reasonable for the RAD to conclude that Ms. Barre’s affidavit did not overcome the inconsistencies in this case, given its insufficient probative value in establishing the Applicant’s personal identity and nationality. Specifically, it was reasonable for the RAD to conclude that Ms. Barre’s affidavit could not overcome the inconsistency regarding the location of Mugambo between the Applicant’s testimony and the affidavit of Mr. Abdirisak Muse Hassan.
[53] Second, the Respondent submits it was reasonable for the RAD to find that Mr. Abdirisak Muse Hassan’s sponsorship forms or photographs were of little probative value as they did not establish the affiant’s residential history, nor whether he and the Applicant knew each other in Somalia.
[54] Third, the Respondent states that the letter from Ms. Abdulkadir was not an affidavit, as submitted by the Applicant, nor was it rejected on the sole basis that its author was not made available for cross-examination. In fact, the RAD specifically reviewed the letter and noted that it did “a rather poor job” of speaking to the Applicant’s identity. As such, the Respondent states that the RAD weighed Ms. Abdulkadir’s letter appropriately.
[55] Fourth, the Respondent argues that the RAD’s assessment of Mr. Abdirahaman Omar Hassan’s affidavit was reasonable. The RAD did not doubt that the Applicant was an ethnic Somali; however, it was reasonable for the RAD to find that the affidavit did not specifically establish that the Applicant is a Somali national, given the fact that there are significant populations of ethnic Somalis in Kenya, Ethiopia, Djibouti, and elsewhere.
[56] Fifth, the Respondent states that it was reasonable for the RAD to conclude that the support letters from the Somali community organizations in Canada were insufficient to overcome the numerous credibility concerns in this case and to establish the Applicant’s personal identity. The Respondent characterizes the Applicant’s argument as simply a disagreement with the RAD’s weighing of the evidence.
[57] Finally, the Respondent disagrees with the Applicant’s characterization of the inconsistencies regarding the status of his refugee claim in the USA as well as the numerous inconsistencies concerning his date of birth. The Respondent argues that these findings are not peripheral to the Applicant’s credibility and identity.
VIII. ANALYSIS
A. Failure to Convoke an Oral Hearing
[58] The Applicant says that an oral hearing was required in this case because:
[it] would have been beneficial to clear up any confusion and to have the Applicant provide further evidence on credibility issues, which is the intent of the legislative provision for an oral hearing.
[59] Section 110(6) of the IRPA reads as follows:
110 (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)
110 (6) La section peut tenir une audience si elle estime qu’il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois :
(a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;
a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause ;
(b) that is central to the decision with respect to the refugee protection claim; and
b) sont essentiels pour la prise de la décision relative à la demande d’asile ;
(c) that, if accepted, would justify allowing or rejecting the refugee protection claim.
c) à supposer qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou refusée, selon le cas.
[60] The Applicant concedes that the RAD has the discretion on whether or not to convoke an oral hearing, but he says that this discretion must be exercised reasonably and, if new credibility findings are made, it is unreasonable not to allow an applicant the opportunity to make submissions.
[61] The Applicant says that the s 110(6) factors were met in this case and that the RAD made new credibility findings. Hence, it was unreasonable not to convoke an oral hearing so that he could have an opportunity to address these alleged credibility concerns. The Applicant, however, simply asserts that the s 110(6) criteria are met in this case without explaining how.
[62] My review of the record and