TB9-06548

RAD File / Dossier de la SAR : TB9-06548 TB9-06549 / TB9-06550 / TB9-06551 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 5, 2020 Date de la décision Panel S. Thompson Tribunal Counsel for the persons who are the subject of the appeal Lina Anani Conseil des personnes en cause Designated representative

XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX XXXX (the principal Appellant), his spouse XXXX XXXX XXXX, and their children XXXX XXXX XXXX and XXXX XXXX (the associate Appellants), are appealing a decision of the Refugee Protection Division (RPD) dated February 5, 2019, rejecting their claims for refugee protection.

BACKGROUND AND OVERVIEW OF APPEAL The Appellants' claim, the RPD's decision, and the Appellants' arguments before the Refugee Appeal Division (RAD) [2] The principal Appellant was born in Afghanistan and lived in India while holding an Indian passport. Before the RPD he alleged that he and his family fear serious harm in both India and Afghanistan: in the first country, at the hands of a powerful former politician, and in the latter country, at the hands of a politically powerful person. The principal Appellant alleged he was threatened and forced to pay bribes to the police in India, and received death threats relating to his business in Afghanistan. The Appellants travelled to Canada on XXXX XXXX XXXX 2017 and claimed refugee protection on XXXX XXXX XXXX 2017. [3] The RPD rejected the claim for lacking credibility. It found the Appellants were citizens of India and that they failed to provide credible or trustworthy evidence to corroborate the serious risks of persecution they alleged in India and Afghanistan, respectively. The RPD also found that the targeting the Appellants alleged in both countries were criminal vendettas with no nexus to any of the Convention grounds. [4] In this appeal the Appellants submit the RPD: 1) Erred in concluding they are citizens of India; and 2) Failed to apply the Chairperson's Gender Guidelines in a meaningful way and to consider the risk of

sexual violence in India faced by the female Appellants; 3) Failed to consider how their ethnicity gave their claim a nexus to a Convention ground; and 4) Failed to conduct a proper risk assessment under Sections 96 and 97. [5] The Appellants argue further that the absence of RPD reasons related to a section 97 risk assessment has prejudiced their ability to analyze the first panel's decision and to properly present their case on appeal, thus giving rise to a breach of procedural fairness. [6] The Appellants have not asked to submit new evidence in this appeal, nor have they asked the RAD to convene an oral hearing in accordance with subsection 110(6) of the Immigration and Refugee Protection Act (IRPA).

DETERMINATION [7] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA).

THE ROLE OF THE RAD [8] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting its own analysis of the record with a view to determining whether, as the appellant submits, the RPD erred.1 The RAD will only show deference to RPD findings based on the assessment of the credibility or weight to be granted to the oral evidence given before it, in situations where it enjoys a particular advantage. If the RAD finds that the RPD had a particular advantage, the reasons will indicate as much.

ANALYSIS [9] My determination is based on my independent assessment of the evidence before me. This includes the records prepared by the RPD and the Appellants, an audio recording of the Appellants' RPD hearing on October 16, 2018, and documents contained in the current compilation of the National Documentation Package (NDP) for Afghanistan and India. RPD's Risk Assessment under subsection 97(1) of the IRPA Procedural Fairness [10] The Appellants submit the RPD simply concluded that they were not persons in need of protection under section 97(1) of the IRPA. They submit that because they faced a personalised rather than a generalised risk under section 97, the RPD should have conducted a separate risk analysis under that section and provided reasons, and that the absence of such reasons has "prejudice[d] [their] ability to analyze the decision and to properly present their case on appeal."2 [11] I reject this submission. The Appellants' submissions fail to adequately set out how the lack of a separate section 97 analysis by the RPD has impeded or frustrated their exercise of their right of appeal to the RAD, or impacted the form and content of their appeal submissions. It is not sufficient for the Appellants to make the bare submission that section 97(1) of the IRPA governed their claim without elaborating arguments that explain their submissions and pointing to evidence in

support of their position. [12] In any event, for the reasons below, I find that because the RPD did not err in its assessment of the Appellants' risk under section 96 of the IRPA, and in particular their credibility, there was no need for the first-instance decision-maker to conduct a separate section 97(1) analysis. The RPD's credibility finding: The Appellants' citizenship; section 96 risk assessment [13] The Appellants submit the RPD's country of reference analysis wrongly concluded they could have gained citizenship in India by virtue of their long residence in that country because it ignored their evidence that their Indian passports were fraudulently obtained. "By virtue of their obtaining the passports fraudulently", they submit "they would have been barred from being naturalized."3 They submit further the RPD "engaged in pure speculation in reaching [this] conclusion" and made implausibility findings "without any evidentiary basis."4 [14] The RPD found that the minor Appellants were citizens of India by virtue of having been born in that country to citizens of India.5 It had "significant credibility concerns" with the principal Appellant's testimony about he and his family's status as citizens of India, concerns that it found were "not adequately explained or clarified."6 [15] The Appellants submit the RPD "did not state what [its] credibility issues were."7 The RPD

decision states, however: the principal [Appellant] has not testified in a truthful manner to advance his claim for refugee protection in Canada. Due to this significant falsehood in the principal claimant's testimony and the allegations in his claim, the Board attaches an adverse inference to his overall credibility and the truthfulness of the allegations in the claim.8 [16] Based on my reading of the parts of the RPD's decision immediately preceding this finding, it is my independent assessment that this finding concerned the principal Appellant's testimony that he and his family did not have Indian nationality. While the language of the RPD's oral credibility finding may not have been as explicit as the Appellants might wish, the conclusion that the RPD's credibility finding relates to the principal Appellant's testimony about whether or not he and his family possessed Indian citizenship follows from a straightforward reading of the totality of the decision. [17] The RPD rejected the Appellants' submission that the fact they had to pay large amounts of money to obtain passports issued by India's government, documents issued based on fraudulent information and renewed only infrequently, showed that their citizenship in India was fraudulently obtained and therefore invalid.9 The Appellants have not disputed the substance of the RPD's findings beyond submit that the RPD's

finding was "pure speculation [...] without any evidentiary basis."10 [18] The RPD's finding about the Appellants' Indian nationality, however, referred to documents disclosed in a Ministerial Intervention including (but not limited to) notes from Immigration, Refugees and Citizenship Canada (IRCC)'s Global Case Management System (GCMS) showing the Appellants renewed their Indian passports every two years and used those passports to successfully apply for Canadian visitor's visas at the Canadian embassy in New Delhi, India and travel to Canada. [19] In independently assessing this disclosure before me, I note that the existence of a passport is generally strong evidence of a person's nationality. Moreover, documents issued by a foreign authority are presumed to be valid.11 To rebut the presumption of validity, there must be evidence or reasons for doubting the authenticity of documents. All the Appellants in this case were in possession of valid Indian passports, as detailed in the materials in support of the Minister's intervention.12 Admittedly, these documents were not before the RPD, but the Appellants did not dispute their existence when asked about them. [20] In my independent assessment, the principal Appellant's testimony about how and why the Indian passports he and his spouse and children obtained were fraudulent was not convincing, as it was vague and lacking

specifics. [21] Documents in the current NDP compilation for India describe the laws and rules that govern the issuance of Indian passports.13 According to these documents: - India's government issues ordinary passports to Indian citizens "for the purpose of personal or business travel"14; - Persons applying for Indian passports must give the authorities proof of their date of birth, identity, residency and nationality and must also give their biometric information to the authorities as part of the passport application, specifically thumb prints which are "scanned and printed in the passport" itself15; - Under India's current passport rules, "[t]he validity of a minor's passport is restricted to five years or till they attain the age of 18, whichever is earlier. But the minors aged between 15 to 18 years can apply either for a 10-year validity passport or for a passport which is valid till they attain the age of 18 years"16; and - Before December 23, 2016 all applicants for Indian passports "born on or after 16/01/1986, in order to get a passport had to, hitherto, mandatorily submit [their] Birth Certificate as the proof of [their] Date of Birth".17 [22] The preceding information supports a finding that the Appellants could only have obtained their travel documents after having given authorities both their biometric information and proof of their Indian nationality. [23] For me

to accept the Appellants' argument that the RPD erred in finding that India was their country of nationality, I would have to prefer their submissions not only to the information from the NDP, but also evidence disclosed by the Minister showing the Appellants previously held and obtained Canadian visas using valid Indian passports. [24] I acknowledge there is a chance that the Indian passports previously held by the Appellants were fraudulent, and that they used them to travel to Canada from Afghanistan via New Delhi, India and Frankfurt, Germany, where they would have been examined more than once by border control officials in several countries without anyone ever questioning the validity of the passports. [25] The test on evidentiary matters, however, is a balance of probabilities. If the Appellants' ability to present themselves as citizens of India for several years, and in several jurisdictions, merits any weight in answering the question of their nationality, it strongly supports a finding that the Appellants are Indian nationals. [26] I find further support for this finding in the following excerpts from documents in the current NDP compilation for India about the laws and rules governing the acquisition of Indian citizenship. According to these documents: - Citizenship in India can be obtained by birth, descent, registration or naturalization, and that an Indian

passport can be issued to citizens by descent, "i.e. [to a] person born to Indian parent(s) outside India"18; - Persons born in India after the coming into force of that country's Citizenship (Amendment) Act, 2003 (which was effective January 7 2004) - in this case, the minor Appellants - are citizens of that country if both their parents are citizens of India or if "one of [their] parents is a citizen of India and the other is not an illegal migrant at the time of [their] birth"19; - That persons born outside of India "on or after the 26th day of January, 1950, but before the 10th day of December, 1992" - such as the principal Appellant and his spouse - are citizens of that country "if [their] father is a citizen of India at the time of [their] birth" and, if their father is a citizen by descent, "his birth is registered at an Indian consulate within one year of its occurrence or the commencement of [the] Act, whichever is later, or, with the permission of the Central Government, after the expiry of the said period" or "his father is, at the time of his birth, in service under a Government in India"20; - The persons of Indian origin may obtain citizenship by registration if "ordinarily resident in India for seven years before making an application for registration" or if "ordinarily resident in any country or place outside undivided India" 21; and - That "an application [may

be] made in the prescribed manner by any person of full age and capacity [not being an illegal migrant] for the grant of a certificate of naturalisation to him" allowing India's Central Government "may, if satisfied that the applicant is qualified for naturalisation under the provisions of the Third Schedule [to the Act], grant to him a certificate of naturalisation" and that "[t]he person to whom a certificate of naturalisation is granted under sub-section (1) shall, on taking the oath of allegiance in the form specified in the Second Schedule, be a citizen of India by naturalisation as from the date on which that certificate is granted".22 [27] Thus, even if the principal Appellant was not an Indian citizen when he first began living in India in 1985, it would have been open to him to obtain Indian citizenship for himself, his spouse and his children at any point during the 32 years that he and his family lived in India subject to the applicable laws - including during the 14 years of his marriage and at any time after his children were born. [28] I note that I prefer the documents in the NDP to the Appellants' testimony, as the information in them comes from sources compiled by the Board's Research Directorate and because they are reliable, relevant, and disinterested in the outcome of these proceedings. [29] Based on the preceding analysis, I find that the RPD did not err

in finding the Appellants were not truthful when they testified they did not possess Indian nationality. I find on a balance of probabilities not only that the Appellants are citizens of India, but also that their credibility as witnesses is seriously undermined by their misleading testimony about their nationality. The RPD did not err in finding this lack of credibility negatively impacted the rest of the evidence they provided in support of their claim. [30] I have considered the Appellants' further submission that there was no real assessment of their section 96 risk vis-à-vis Afghanistan.23 In my independent assessment, however, the Appellants' fears of being deported to Afghanistan and suffering persecution and harm there have no objective basis given their Indian citizenship, because they can return to India rather than Afghanistan in order to avoid any risk that they might face in returning to Afghanistan. [31] Meanwhile, the evidence available to establish their citizenship in Afghanistan, namely the principal Appellant's tazkira24 is, in my view, insufficient and lacking in credibility, as this document has no security features. While a source in the NDP states that "an assessment on the authenticity of a Tazkira document" should be made "on a case by case basis" 25 by cross-referencing of various types of ID documents that should reinforce the applicant's tazkira

number such as a driving permit booklet, a marriage certificate booklet, a passport and/or a military service booklet26, I did not have any additional documentation which would assist in allaying concerns regarding the authenticity of the principal Appellant's tazkira. Notably, the marriage certificate27 from the Sikh gurdwara in Afghanistan where the principal Appellant and his spouse were apparently married did not include a tazkira number for the principal Appellant or his spouse. [32] I find on a balance of probabilities that there is insufficient credible evidence to establish that any of the Appellants are citizens of Afghanistan. Even if there was, however, in my independent assessment the evidence does not support a finding the Appellants face any risk of persecution or threat to life or of harm, whether in Afghanistan or India. [33] This is despite the Appellants' submission that the RPD erred not only in finding that the risks they alleged were related to criminal vendettas, but also in failing to assess the risk of gender-based sexual violence faced by the female Appellants in India "as a means of getting at the male [principal] Appellant" despite his allegations that a specific threat targeted the associate Appellants.28 [34] In any event, the RPD's Reasons state that it considered the Chairperson's Gender Guidelines in respect of the female Appellants.29 Although

it considered the principal Appellant's testimony that a politician in Indian made "an implicit threat that he and members of his family would be abducted" if the principal Appellant failed to repay his business debts, and "that his wife and children would suffer"30, it ultimately found that the Appellants' subjective fear simply was not credible. [35] In its Reasons the RPD observed that Rule 11 of the Refugee Protection Division Rules requires claimants to "provide acceptable documents" to establish not only their identity but also other elements of their claim.31 The RPD found the Appellants "provided no credible or trustworthy evidence"32 to show that they ever had contact with XXXX XXXX XXXX XXXX one of the alleged agents of persecution in India, or XXXX XXXX XXXX, their alleged agent of persecution in Afghanistan. Based on my examination of the RPD record, and given my earlier finding that the Appellants are not credible witnesses, I agree with this finding. [36] In summary, I find that the Appellants' supporting documentation and evidence is insufficient to credibly establish that there exists a serious possibility of forward-looking risk due to a Convention ground or, on a balance of probabilities, risk of harm under section 97(1). My independent assessment leads me to conclude that the negative credibility finding by the RPD is well supported by the evidence. The appeal therefore fails.

CONCLUSION [37] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "S. Thompson" S. Thompson February 5, 2020 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 11-12 at paras. 19, 21-22. 3 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 8 at para. 12. 4 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 9 at para. 15. 5 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7 at lines 19-20. 6 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 8 at lines 25-26. 7 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 8 at para. 13. 8 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7 at lines 24-27. 9 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, pp. 6 (lines 7-49) to 7 (lines 5-20). 10 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 9 at para. 15. 11 Ramalingam v. Canada (Minister of Citizenship and Immigration), [1998] FCJ No 10 (Fed TD), at para 5; Manka v. Canada (Citizenship and Immigration), 2007 FC 522, at para 8. 12 Exhibit RPD-1, RPD Record, Exhibit 8, pp. 193-208. 13 National Documentation Package,

India, 31 May 2019: item 3.7 - Issuance procedures for passports, both within the country and abroad. Immigration and Refugee Board of Canada. 7 May 2014. IND104840.E; item 3.15 - Passport Services Overview. India. Ministry of External Affairs. Consular, Passport and Visa Division. 15 March 2019; item 3.20 - Announcement of new Passport Rules. India. Ministry of External Affairs. 23 December 2016. item 3.4 - The Citizenship Act, 1955. India. 1955; item 3.1- Citizenship Amendment Act, 2003; Citizenship Rules, 1956; Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, India 2004; item 3.2 - Citizenship Rules, 2009. India. 2009; and item 3.12 - The Citizenship (Amendment) Act, 2015. India. 2015. 14 National Documentation Package, India, 31 May 2019, item 3.7: Issuance procedures for passports, both within the country and abroad. Immigration and Refugee Board of Canada. 7 May 2014. IND104840.E at p. 1. 15 National Documentation Package, India, 31 May 2019, item 3.7: Issuance procedures for passports, both within the country and abroad. Immigration and Refugee Board of Canada. 7 May 2014. IND104840.E at p. 4. 16 National Documentation Package, India, 31 May 2019, item 3.15 - Passport Services Overview. India. Ministry of External Affairs. Consular, Passport and Visa Division. 15 March 2019 at p. 2 of 14. 17 National Documentation Package, India,

31 May 2019, item 3.20: Announcement of new Passport Rules. India. Ministry of External Affairs. 23 December 2016 at p. 1. 18 National Documentation Package, India, 31 May 2019, item 3.15 - Passport Services Overview. India. Ministry of External Affairs. Consular, Passport and Visa Division. 15 March 2019 at pp. 5 and 14. 19 National Documentation Package, India, 31 May 2019, item 3.4 - The Citizenship Act, 1955. India. 1955 p. 4 of 15 at s. 3(1) ("Citizenship by birth"). 20 National Documentation Package, India, 31 May 2019, item 3.4 - The Citizenship Act, 1955. India. 1955 p. 4 of 15 at s. 4(1) ("Citizenship by descent"). 21 National Documentation Package, India, 31 May 2019, item 3.4 - The Citizenship Act, 1955. India. 1955 p. 5 of 15 at s. 5 ("Citizenship by registration"). 22 National Documentation Package, India, 31 May 2019, item 3.4 - The Citizenship Act, 1955. India. 1955 p. 4 of 15 at s. 6 ("Citizenship by naturalisation"). 23 Exhibit P-2, Appellants' Record, Appellants' Memorandum, p. 9 at para. 14. 24 Exhibit RPD-1, RPD Record, Exhibit 1, p. 107. 25 National Documentation Package, Afghanistan, October 31, 2019, Item 3.10. Description and samples of the Tazkira booklet and the Tazkira certificate; information on security features. Immigration and Refugee Board of Canada. AFG103812.E. 16 September 2011. 26 National Documentation Package, Afghanistan, October 31, 2019.

Item. 3.10. Description and samples of the Tazkira booklet and the Tazkira certificate; information on security features. Immigration and Refugee Board of Canada. AFG103812.E. 16 September 2011. 27 Exhibit RPD-1, RPD Record, Exhibit 1, p. 106. 28 Exhibit P-2, Appellants' Record, Appellants' Memorandum, pp. 12-13 at paras. 24-26. 29 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 4 at lines 29-32. 30 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 7 at lines 36-37. 31 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 8 at lines 28-29. 32 Exhibit RPD-1, RPD Record, RPD Reasons for Decision, p. 8 at lines 21-22. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-06548 TB9-06549 / TB9-06550 / TB9-06551 RAD.25.02 (April 04, 2019) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français