MB9-23576

RAD File / Dossier de la SAR : MB9-23576 MB9-23577 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision December 18, 2020 Date de la décision Panel John Helis Tribunal Counsel for the persons who are the subject of the appeal Humera Manzoor Conseil de la/des personne/s en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] The Appellants, XXXX XXXX (the principal Appellant) and XXXX XXXX (the associate Appellant), citizens of India, allegedly fear a drug mafia and corrupt authorities. The Refugee Protection Division (RPD), denied their claims in a decision dated August 16, 2019, for lack of credibility. The Appellants appeal to the Refugee Appeal Division (RAD), and requests that the matter be referred back to a different panel of the RPD for redetermination.1

DETERMINATION [2] The appeal is dismissed. I confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection.2

SUMMARY OF THE FACTS [3] The Appellants are a couple from Punjab state in India. Their problems allegedly began on July 18, 2018, when the principal Appellant attended the police station with his brother and the head of the local village council (the "Sarpanch"), to report the leader of a drug mafia. The principal Appellant's brother had recently completed addiction treatment at a drug rehabilitation centre, and the Sarpanch had convinced him to report the drug traffickers to the police. The police, however, were uninterested in filing the complaint, and the Station House Officer (SHO) warned the three men that their lives would be in danger because the head of the drug mafia has connections with politicians. [4] The three men then decided to take the issue to the local member of the Punjab Legislative Assembly (MLA), and on August 2, 2018 requested that he instruct the police to take action against the drug mafia. Unfortunately, the MLA also warned them that they should not take any steps against the drug mafia. [5] The principal Appellant's brother was allegedly killed on August 25, 2018, and then the Sarpanch was killed exactly a month later on September 25, 2018. The Appellants believe that the drug mafia was behind the murders. [6] The Appellants went to file a complaint to the Senior Superintendent of Police (SSP). Instead of helping, however, the SSP accused the

Appellants of supporting militants and being involved in anti-national activities. The SHO and the MLA were present at the second meeting with the SSP, which led the Appellants to believe that he was also involved with the drug mafia. [7] Following the second meeting with the SSP, the Appellants relocated to the city of Amritsar in Punjab to escape from the agents of harm. They were allegedly found by the Anti-Terrorism Squad (ATS) on November 27, 2018 and accused of having connections with militants in Jammu and Kashmir. They were released after a twelve-hour interrogation but were told to return the next day. [8] Fearing that they would be arrested on false pretenses, the Appellants decided to leave India. They went to Delhi on XXXX XXXX XXXX 2018, and left India for Canada on XXXX XXXX, 2019. They filed their claims for refugee protection on February 8, 2019.

THE RPD DECISION [9] The RPD determined that the Appellants were not credible and denied their claims based on omissions from their Basis of Claim form (BOC), inconsistencies and contradictions in their evidence, and because of their overall inability to answer questions directly.

NEW EVIDENCE [10] The Appellants submit a solemn declaration in which they reiterate some of the basic allegations of their claims and outline their attempts at obtaining the police report and death certificate of the principal Appellant's brother. [11] New evidence is only admissible before the RAD if it arose after the rejection of the claim, if it was not reasonably available, or if the Appellants could not have reasonably been expected in the circumstances to have presented the evidence at the time of the rejection of their claims.3 In addition to these legislative requirements, under the Federal Court of Appeal decisions in Singh and Raza, admissibility is limited to evidence that is relevant, new, and credible.4 [12] The solemn declaration does not meet the requirements for admissibility. The RPD member questioned the Appellants about their attempts at obtaining the death certificate and their testimony was similar to the information contained in their solemn declaration. The sole argument in the Appellants' memorandum on the question of the admissibility of this document is that "the judge was not convinced because she didn't have any documents to prove the murder of his brother." Contrary to this submission, however, while the Appellants were questioned about this issue, their failure to submit the death certificate did not form part of the RPD's decision. None of the

information contained in the solemn affirmation is new, it did not arise after the denial of the claims, and it was reasonably available to the Appellants. The Appellants could have reasonably been expected to provide this evidence at the time of the denial of their claims - and they indeed did provide it through their testimony to the RPD. The solemn declaration is therefore inadmissible. [13] The Appellants' request for an oral hearing before the RAD is denied because the evidence is inadmissible. Hearings before the RAD are limited to circumstances when new evidence which is admissible on appeal raises a serious issue with respect to the Appellants' credibility that is central to the decision, and if accepted, would justify allowing or rejecting the refugee protection claims.5

THE ISSUES [14] The determinative issue in this appeal is the Appellants' credibility.

STANDARD OF REVIEW [15] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Huruglica.6 This requires an independent assessment of the refugee claims to determine whether the RPD was correct in its findings and determinations.7 While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case.

ANALYSIS [16] After considering the Appellants' arguments and conducting an independent review of the entire record, including the transcript of the proceeding before the RPD, I agree with the RPD that the Appellants are not credible. As will be outlined below, the omissions from the BOC and the inconsistencies in the evidence concern central aspect to the Appellants' claims and therefore undermine their overall credibility. The alleged letter to the government [17] I agree with the RPD that the omission of any reference in the BOC to the letter that the Appellants allegedly wrote to the government denouncing the drug mafia and its connections to the authorities, and their inability to fully recount the information contained in the letter or even the person they addressed it to, undermines their credibility. [18] The principal Appellant testified that he and his wife were being targeted by the drug mafia because they "told the SPP and [...] also wrote to the government." The Appellants allegedly wrote the letter in September 2018, but they could not fully remember the content of the letter or even who they addressed the letter to in the government. [19] After the RPD asked several questions about the content of the letter, the principal Appellant was only able to provide "that the drug dealers are here and the police is supporting them. [...] And the MLAs are also with them and

they are supporting them." When asked whether they wrote anything else in the letter, the principal Appellant testified that "I don't remember." [20] The RPD correctly rejected the principal Appellant's attempt at attributing the omission of any reference to this letter in the BOC to his friend that helped him write his narrative. The principal Appellant claimed that he mentioned the letter to his friend that helped write the BOC. This explanation is not reasonable because the principal Appellant first testified that his friend read back to him everything he wrote in the BOC. When this was pointed out, the principal Appellant testified that "when he ... when he read it to me, it was written inside," but did not explain its current omission. The Appellants swore at the beginning of the hearing that their BOC was "complete, true, and correct," and they had a representative who could have assisted them to amend the BOC and include information about the alleged letter. [21] The omission of any reference to the letter in the BOC and the principal Appellant's inability to fully recount its content or the person he addressed it to is significant because according to his testimony its was one of two steps that he took after his brother and the Sarpanch were murdered. When the principal Appellant was asked why he was being targeted, he testified that it was because he raised his voice

by speaking to the SSP and writing to the government. The Appellants did not address this adverse finding by the RPD in their memorandum to the RAD. Alleged meeting with the SSP [22] The Appellants' inconsistent evidence on their meeting with the SSP also undermines their credibility. [23] According to the BOC, the Appellants attended the SPP's office after the two murders to submit a complaint about the collusion of the SHO and the MLA with the drug mafia. The SPP called the Appellants the next day to attend a meeting, which included the SHO and the MLA, and the Appellants were accused of anti-national activities and supporting militants. [24] Similar to the BOC, the principal Appellant initially testified that he was called by the SPP to attend the meeting, but then subsequently testified that the SSP told him to "come back the next day" while he was submitting his complaint. [25] The principal Appellant did not provide an explanation for the inconsistency in his evidence on whether he was called by the SPP to attend the meeting the following day, or whether he was told to attend while he was submitting his complaint. The RPD member specifically asked: "can you explain the contradiction in your testimony today?" Instead of providing an explanation, the principal Appellant reiterated that the SPP "told us to come back tomorrow." [26] The alleged meeting with the SPP is central

to the Appellants' claims, as it represents the cumulation of the various incidents that they experienced, including the murder of the principal Appellant's brother and the Sarpanch. The Appellants claim that they felt the need to flee their village after the meeting to "save our lives." In the circumstances, I agree with the RPD that the inconstancy in the evidence on how the meeting was arranged undermines their credibility. The Appellants did not address this credibility finding in their memorandum to the RAD. Inconsistent evidence regarding visa application [27] Lastly, I also agree with the RPD that the inconsistencies in the evidence about the timing of the Appellants' applications for Canadian visitor visas undermine their credibility. [28] The Appellants indicate in the BOC that they were located by the ATS in Amritsar on November 27, 2018, and after a 12-hour interrogation left for Delhi on XXXX XXXX, 2018. In Delhi they found an agent that helped them obtain Canadian visas. According to the principal Appellant's testimony, they coincidentally came across an agent in Delhi on the 29th or 30th of November when they overheard him speaking to someone else in a Gurudwara about obtaining travel documents. They fortunately had their visas with them at the time, and the agent helped them complete applications for Canadian visas that same day. [29] Contrary to the Appellants'

testimony, the documentary evidence reveals that their completed applications for Canadian visas were received on November 27, 2018. This is inconsistent with both their BOC and their testimony in which they claimed that they were in Amritsar on November 27th, where they were being interrogated by the ATS. [30] The Appellants were unable to provide an explanation for the inconsistency. The RPD member specifically asked the Appellants "how can you explain that you met the agent on the 29th or 30th of November 2018, when according to this form, the agent or whomever applied for your visa, applied on the 27th of November when you were allegedly in Punjab in police custody?" In response the principal Appellant testified that: "[w]e don't know how the agent did that." The principal Appellant was given two additional opportunities to provide an explanation, and he continued to assert that "[h]ow can we explain if we don't know ourselves? We don't know how he did that there," and "we don't know anything." [31] While the Appellants point out in their submission that they were interrogated for twelve hours when they were detained on November 27th, and thus released after midnight on November 28th, this does not help resolve the inconsistency. The evidence in their BOC and testimony that they arrived in Delhi on XXXX XXXXand applied for visas after meeting an agent remains inconsistent

with the fact that the visa applications were completed on November 27th. [32] This represents more than just an inconsistency with the date that the Appellants applied for Canadian visas, and instead affects the timing of significant parts of their narrative, including their alleged twelve-hour interrogation by the ATS, their relocation to Delhi, and their decision to flee India. I therefore agree with the RPD this inconsistency undermines their overall credibility. [33] While the RPD made a number of additional adverse credibility findings, I find that the ones outlined above fully rebut the presumption of the Appellants' truthfulness and undermine their overall credibility because they concern central elements of their claims.8 [34] Lastly, I do not accept the argument that "all the minorities in India especially belonging to the Sikh community are persecuted and considered to be the enemy of the state." The Appellants have not pointed to any objective evidence in support of their bald assertion. Contrary to this submission, the evidence in the National Documentation Package (NDP), notes that "Indian federal law provides minority community status to Sikhs, which allows access to government assistance programs, while legislation refers to Sikhs under the same category as Hindus."9 Sikhs reside in every Indian state, with the majority residing in Punjab, and "[a]lmost every

major Indian city has a Sikh community."10 Moreover, "since the late 1980s and early 1990s, Sikhs have lived peacefully in India and the majority of Sikhs do not experience societal discrimination or violence."11 At most, Sikhs may face instances of "localized discrimination," but "these matters are usually dealt with by local courts or police." None of this evidence supports the Appellants' assertion.

CONCLUSION [35] For the reasons outlined above, I agree with the RPD that the Appellants are not credible and therefore do not face a serious possibility of persecution in India, nor, on a balance of probabilities, a danger of torture, a risk to their lives, or a risk of cruel and unusual treatment or punishment. [36] The decision of the RPD is confirmed and the appeal is dismissed.12 John Helis John Helis December 18, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 111(1)(c) [IRPA]. 2 IRPA s 111(1)(a). 3 IRPA s. 110(4). 4 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 at para. 13; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 5 IRPA s. 110(6). 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 7 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 8 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 at para. 6, citing Maldonado v. M.E.I., [1980] 2 FC 302 at 305. 9 RAD-1, National Documentation Package, India, 17 July 2020, tab 12.8: Situation of Sikhs outside the state of Punjab, including treatment by authorities and society; ability of Sikhs to relocate within India; treatment of Khalistan supporters or perceived supporters outside of Punjab (2017-October 2019). Immigration and Refugee Board of Canada. 16 December 2019. IND106294.E. p. 2. 10 Ibid. p. 1. 11 Ibid. p.

2. 12 IRPA s. 111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-23576 MB9-23577 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