MB9-11088

RAD File / Dossier de la SAR : MB9-11088 MB9-11089/ MB9-11090 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision March 11, 2020 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the persons who are the subject of the appeal Me Odette Desjardins Conseil des personnes en cause Designated representative

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

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX (Principal Appellant/PA), his wife XXXX XXXX and their minor child XXXX XXXX XXXX, are citizens of India. They appeal a decision of the Refugee Protection Division (RPD) rendered on May 15, 2019, denying their claim for refugee protection. The Appellants claim to fear the PA's brother and the police in India as a result of a land dispute. They submit that the RPD erred in dismissing their claim based on overriding concerns about the credibility of their evidence.

DECISION [2] I dismiss the appeal. After conducting my own analysis, I find that the RPD was correct in finding that the Appellants' evidence lacked credibility. I conclude that the Appellants are neither Convention refugees nor persons in need of protection.

BACKGROUND [3] The Appellants are a family from Punjab. [4] In August 2016, the PA's father partitioned his land between his three sons. He gave the best part of the land to the PA, his favourite son. [5] The PA's brother Shingara was not happy with the piece of land that he received from his father. As such, he pressured his father to change his decision and threatened the PA if he did not give him his rightful share of the land. [6] The PA alleges that his brother Shingara is a XXXX with connections to the Bharatiya Janata Party (BJP). He has contacts with the authorities and is involved in XXXX XXXX. In the past, his brother was sentenced to prison and released in mid-2016. [7] The PA began to experience problems as a result of the land dispute. On September 5, 2016, he was detained and interrogated by the police about militants. Then, in October 2016, XXXX was physically aggressive to the PA and his wife, who suffered a miscarriage. During the altercation, XXXX also pushed his parents and his father was injured. The police refused to take a complaint because of XXXX links to the BJP. [8] Following the advice of his father, the PA decided to make plans to leave the country, hoping that the situation with his brother would eventually improve. [9] Meanwhile, as the Appellants (assisted by an agent) were making ongoing plans to leave India, the PA's brother continued to harass

them. On February 24, 2017, XXXX gave the PA a deadline to sign documents transferring ownership of the land to him. Then, on February 27, 2017, the PA states that the police raided their home, and he and his spouse were brought to the police station where they saw XXXX. The Appellants were questioned about militants and physically mistreated and detained. [10] On XXXX XXXX XXXX 2017, the Appellants arrived in Canada where they waited for the PA's father to resolve the land dispute with XXXX. [11] In December 2017, an incident occurred whereby XXXX made a failed attempt to kill his father. While the father escaped, he was seriously injured. As a result of this incident, the PA decided to obtain legal advice to remain in Canada. [12] In January 2018, the PA was informed that his brother had framed him in a false militancy case and that a summons for his arrest was issued against him. As such, the Appellants made a refugee claim in January 2018. [13] The Appellants fear XXXX and the police if they return to India. [14] The RPD rejected the Appellants' refugee claim, finding that the evidence was generally not credible based on adjusted, confused and changeable testimony and discrepancies in the evidence. The RPD also found that the Appellants' delay in making their refugee claim undermined the credibility of their subjective fear and gave no weight to documentary evidence aimed at corroborating their claim. Finally, the RPD determined that the PA's decision not to relinquish his land to his brother was unreasonable as this would put an end to the dispute and allow the Appellants to live peacefully in a context where the PA has other ways to earn his livelihood and provide for his family in India.

DETERMINATIVE ISSUE [15] The determinative issue on appeal is whether the RPD erred in the assessment of credibility and erred in expecting the Appellants to relinquish their land.

SCOPE OF THE RAD APPEAL [16] The Refugee Appeal Division (RAD) reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.1 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.2 I have applied the correctness standard in the present case.

ANALYSIS 1. The RPD did not err in finding that the Appellants' evidence lacked credibility [17] The RPD identified a number of credibility concerns leading to the conclusion that the Appellants were generally not credible. Counsel disputes these findings on appeal. I will address each issue in turn. Documents related to the land in India [18] The RPD accepted that documents provided by the Appellants establish that some pieces of land were given to the PA from his father. This being said, the RPD found that the land documents do not show when the land division was made.3 [19] On appeal, Counsel submits that the RPD erred by discounting the land documents because the document credibly establishes that the father's land was divided and part of the land was given to the PA and his brother. [20] With respect, I find that Counsel has misstated the finding that was made by the RPD. As noted above, the RPD accepted that the land documents establish that the PA was granted part of the land from his father. The RPD simply noted in the decision that the land documents do not indicate when this land division occurred.4 In other words, this is not a situation where the RPD discounted the land documents altogether. Rather, the RPD accepted that the documents prove a land division took place but do not establish when this transaction took place. [21] My own review of the land document is

compatible with the RPD. On a final note, I will add that establishing "when" the land division took place is not a trivial issue in the present claim since the Appellants state that the entirety of their problems in India started when his father partitioned the land between his sons and his brother reacted in an angry and threatening manner. The PA's belief that his brother framed him in January 2018 is based on speculation [22] The PA stated in his BOC that after the land dispute began, his brother framed him in a false militancy case in January 2018. In contrast, when asked about this at the RPD hearing, the PA stated that "maybe it's him" because his brother is always threatening him. The RPD found that this aspect of the evidence is based on supposition which negatively impacts the PA's credibility. [23] On appeal, Counsel argues that the RPD misconstrued the PA's testimony because the PA never put into question that his brother was behind the false militancy charge. Rather, the PA indicated that he did not know the identity of members of the police who engage in corruption. [24] I find that this argument cannot succeed. [25] First, Counsel has not provided any specific reference to illustrate where the RPD misconstrued the evidence. Next, my own review of the audio recording of the RPD hearing reveals that the PA did in fact express uncertainty when he was asked if his

brother falsely accused him of being involved with militants. He testified that maybe it is his brother because he can do anything and is always threatening us because of the land.5 Inconsistency in the evidence about whether the brother illegally named the PA's land in his name [26] The PA states in his BOC that his brother "took the advantage and illegally named the remaining property under his name. I tried to get the help of lawyer to seek legal action against him but as of today there is no case could register against him."6 [27] When asked to clarify this statement at the RPD hearing, the PA responded that his brother took possession of the land. When asked whether this meant that his brother took physical possession or legal possession, the PA repeated that his brother took possession of the land. When questioned again, he added that the documents bear the name of the PA and that his brother forcefully took possession of the land so it is under his name although this was not done on paper. The RPD found the PA's credibility further undermined given that he could not explain why he wrote in his BOC that his brother "illegally named the remaining property under his name" if, in fact, his brother had only taken physical possession of the land. [28] On appeal, Counsel submits that the identified passage in the BOC is merely written unclearly. It does not reflect the PA's

consistent testimony that his brother took physical possession of the land even though the PA maintains legal title over the land. [29] I am not persuaded by this submission. The PA clearly indicated in his BOC narrative that his brother took legal title of the land leading the PA to seek the advice of a lawyer. This is at odds with his updated statement7 and testimony at the RPD hearing that his brother only took physical possession of the land. The RPD did not err in reaching an adverse credibility finding as a result of inconsistent evidence which is not reasonably explained. The credibility of the Appellants' subjective fear [30] The Appellants state that their problems began in India with the partition and transfer of the land in August 2016. They decided to leave India in XXXX 2016 and came to Canada XXXX XXXX, 2017, on a six-month visa. While the agent promised to arrange work permits in Canada, this did not materialize. They claimed refugee protection in January 2018. The PA explained that he waited to make an asylum claim because his father had told him that he would try talking to his brother in order to resolve the family feud over the land. [31] The RPD found that the Appellants' delay claiming asylum undermines their subjective fear and their credibility. While the Appellants state that they delayed making a refugee claim because they were waiting for the PA's

father to resolve the conflict with his son, the PA also testified that he knew his father would not be able to resolve the conflict because his brother would not change his mind. Moreover, the PA testified that his father had already made several failed attempts to resolve the property dispute so he did not actually think that his father would convince his brother to change his mind. [32] In considering their delay to claim asylum, the RPD also noted that the Appellants allege that they were threatened, framed and physically assaulted by Shingara and detained by the police. Against this backdrop, they came to Canada, expecting work permits. However, the RPD noted that obtaining a work permit is not a reason to delay their asylum claim since work permits are only a temporary solution to their predicament. It is reasonable to expect that the Appellants would regularize their status as soon as possible if they truly feared for their safety. The RPD found that the Appellants' almost one-year delay in making their refugee claim is not compatible with people fearing for their lives which undermines their credibility. [33] On appeal, Counsel submits that the Appellants reasonably explained their delay in making their refugee claim by the fact that they came to Canada on a six-month visa and their agent promised to get them work permits. The PA was waiting in Canada for his father to

resolve the conflict. Once it became obvious that the situation would not get resolved, they claimed refugee protection. [34] In certain cases, a delay in claiming can ground a negative credibility finding and undermine subjective fear. However, it is incumbent on the RPD to consider the circumstances and explanations for the delay because a claimant may have valid reasons to delay making their refugee claim.8 [35] In this case, the RPD correctly set out the Appellants' explanation for their delay and considered their explanation in context. Ultimately, the RPD chose to reject the explanation as unreasonable based on the factual presentation of the case. [36] My own review of the evidence is compatible with the RPD. It is true that the Appellants state that they came to Canada and waited for the PA's father to resolve the land dispute. However, it bears noting that the PA's father had already made several failed attempts to resolve the dispute; the PA did not believe his father would resolve the dispute; and the Appellants even waited to make their refugee claim after the six-month visa had expired, which placed them in a precarious situation. This is difficult to reconcile with their allegation that they fear their brother and the police in India. All things considered, the Appellants' inadequate explanation for their delay in making their refugee claim was certainly one

factor to consider in the overall assessment of their credibility. Documentary evidence [37] In assessing the credibility of the documents submitted by the Appellants to corroborate their claim, the RPD first asked the PA to explain how he obtained the documents from India. The PA was noted to provide a confused and changeable response. [38] At first, the PA stated that his father had shipped the documents via DHL. Further in his testimony, he mentioned that his father had a stroke in 2018 or 2019 and can no longer walk; he is paralyzed on one side of his body; he is bedridden and he cannot write, although he can sign. [39] When asked how his father sent the documents given his physical condition, the PA was noted to change his testimony, stating that someone else had forwarded the documents to him in Canada. Further in his testimony, he stated that his father took someone with him to the DHL office to ship the documents. When questioned further, he stated that his father cannot walk so his father sent someone on his behalf to ship the documents. When given the opportunity to explain the variations in his story regarding how he obtained the documents from India, the PA stated that he was confused. The RPD found that the PA's changeable evidence about how he received documentary evidence negatively impacts his credibility. [40] The RPD also note that the PA provided changeable

testimony about how he obtained police documents including the Notice to Appear9 and a "Wanted" poster.10 At first, the PA stated that the police sent them to his house. Then, he stated that his father had sent someone to get the documents. When asked to clarify this aspect of his evidence, he then stated that the police came to their house to personally give these documents to his father. The RPD found the PA was adjusting his testimony which also negatively impacts his credibility. [41] Counsel submits that any confusion related to who sent documents to the PA is peripheral to the claim. However, the PA's confused and changeable testimony with respect to how he obtained documents from India raises concerns about the reliability of his story. While not determinative, it was certainly one factor amongst others, to consider in assessing the overall credibility of the evidence. Written complaint to the police [42] In support of his claim, the PA submitted a written complaint that he made to the police October 22, 2016.11 However, the RPD noted that the complaint is not signed by the PA. When asked to explain why he did not sign the complaint, the PA stated that there is no need for him to sign the document because he wrote the complaint himself. [43] The RPD found the PA's explanation for the unsigned police complaint is unreasonable, noting that all the other documents submitted

by the Appellants to support their claim are signed by the person who authored them. [44] On appeal, Counsel argues that the PA was simply following the instructions of the police and the police officer signed the document. The RPD erred by dismissing the document without providing an adequate explanation. I disagree. The complaint is meant as a criminal complaint against the PA's brother for "infliction of violence". There is clearly a space at the bottom of the police complaint where the complainant is intended to place his signature. In this case, the PA is the complainant but he did not sign the complaint. This puts into question its validity. The RPD did not err in assigning minimal probative value to this document. The Notice to Appear and the Wanted Poster [45] Given the noted credibility concerns about how the PA obtained the documents from India, and considering the irregularity noted in the police complaint, the RPD gave no probative value to other documents including the "Notice to Appear"12 and the Wanted poster.13 [46] Case law has established that when the RPD makes a general finding of lack of credibility, that is sufficient to dispose of the claim unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim.14 [47] On the face of it, the Notice to Appear and the Wanted Poster are two pieces

of independent evidence that should have been assessed by the RPD notwithstanding the general lack of credibility finding. I have corrected the error by conducting my own assessment of these documents. [48] With respect to the Notice to Appear, I note an irregularity with the document. The document states that it was "delivered by hand". The document includes a space for the "signature of the receiver" but this is left blank. In other words, there is no indication that this hand delivered document was actually received by anyone, including the PA's father, as alleged by the PA. This is a significant irregularity leading me to give no weight to this document. [49] I also find that the Wanted poster is not in itself capable of leading to a positive disposition of the claim. The document is a typewritten sheet of paper with a picture of the PA, as opposed to an official document from the police. In my view, the document could be confectioned by anyone with access to a computer. There is no way to know the source of the document and I give it minimal weight in the overall assessment of the claim. Affidavits of support [50] Counsel also submits that the RPD erred by not giving any probative value to affidavits of support from his father and the sarpanch.15 As noted above, the RPD made a general credibility finding against the Appellants. It follows that the Panel member could

reasonably dismiss corroborative evidence coming from his acquaintances that were not independent proof of the PA's account.16 Medical certificates [51] While the PA submitted medical certificates17 stating that the PA, his spouse and parents were injured, the document itself does not explain how the injuries were sustained. [52] The Appellant states that the RPD erred in rejecting these medical certificates because it was incumbent on the Appellants to explain how they were injured, not the doctor. [53] I find that the medical certificates are independent evidence from a disinterested third party. This being said, while the certificates indicate that the Appellants were injured, it does not establish how they were injured nor does it establish the central facts at the heart of this claim. In a context where the RPD made a general credibility finding against the Appellants, the medical certificates are not in themselves capable of supporting a positive disposition of the claim.

2. The Appellants' refusal to relinquish their land [54] When asked if he could simply relinquish his share of the land to avoid further problems with his brother, the PA responded that ancestral land is like a mother and you cannot abandon it. He added that he will continue to fight for the land even though his brother took physical possession of it in February 2018. [55] The RPD noted that Canadian jurisprudence has established that refugee claimants who are able to free themselves of a risk of harm must be expected to pursue those options. In this case, the RPD observed that the PA did not establish that relinquishing his property would have any impact on his life and his ability to earn a livelihood. The PA could get another job in India. He lived in Greece for 12 years on a work visa and returned to India in 2012. He started his own XXXX in Canada. He could find another way to support his family. If he relinquished his property rights to his brother, he would end the feud and could safely return to India. [56] On appeal, Counsel submits that the right to own land is a basic human right and the RPD erred by expecting the PA to give up his share of the land as a way to resolve the land dispute and protect himself and his family from further harm. [57] I disagree, finding that the RPD did not err in concluding that the PA can reasonably be expected to relinquish his land to

avoid further risk of harm from his brother. The RPD decision is compatible with the Sanchez decision where the Federal Court of Appeal established that "claimants who are able to make reasonable choices and thereby free themselves of a risk of harm must be expected to pursue those options."18 The Sanchez decision also found that: [P]ersons claiming to be in need of protection solely because of the nature of the occupation or business in which they are engaged in their own country generally will not be found to be in need of protection unless they can establish that there is no alternative occupation or business reasonably open to them in their own country that would eliminate the risk of harm.19 [58] Turning to the present case, I agree with the RPD that once the PA relinquishes the land, his brother will no longer pursue him and he will not be at risk of harm. Moreover, the PA who lived in Greece for 12 years with a work permit and established his own company in Canada, did not establish that he could not find another way to support his family in India.

CONCLUSION [59] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. Patricia O'Connor Patricia O'Connor March 11, 2020 Date PO/lp 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paras 78, 103. 2 Ibid, paras 58, 59 and 70. 3 Exhibit C-14, Land deeds, RPD record pp. 227-255. 4 RPD decision, para 17. 5 Audio recording of the RPD hearing at 1:10. 6 BOC narrative, RPD record, p. 26. 7 Exhibit C-1, RPD record, p. 257. 8 Rajadurai v Canada (Citizenship and Immigration) 2013 FC 532. 9 Exhibit C-8: Notice to Appear, RPD record, p. 271. 10 Exhibit C-9, Wanted poster, RPD record, p. 273. 11 Exhibit C-10, Complaint, RPD record, p. 275. 12 Notice to Appear, supra note 9. 13 Wanted poster, supra note 10. 14 Olanrewaju v Canada (Minister of Citizenship and Immigration) 2018 FC 679, paras 16-20. 15 Exhibit C-2 and C-3, RPD record pp. 258-263. 16 Olanrewaju, supra note 14. 17 Exhibit C-4, C-5, C-6 and C-7, RPD record pp. 264-270. 18 Sanchez v Canada (Citizenship and Immigration), 2007 FCA 99 (Canlii), para 16. 19 Sanchez, Ibid. See also Malik v Canada (Citizenship and Immigration), 2019 FC 955. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-11088 MB9-11089/ MB9-11090 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français