TB8-24243

RAD File / Dossier de la SAR : TB8-24243 TB8-24244 / TB8-24245 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 Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision December 16, 2019 Date de la décision Panel Jillan Sadek Tribunal Counsel for the persons who are the subject of the appeal Baldev S Sandhu Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Kamal Gill Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Minister of Citizenship and Immigration and Minister of Public Safety are appealing a decision of the Refugee Protection Division (RPD), dated June 20, 2018, in which it was determined that the respondents XXXX XXXX XXXX (Principal Respondent) and her two children: XXXX XXXX XXXX XXXX XXXX XXXX XXXX (minor Respondents), all citizens of India, are Convention Refugees. [2] The Respondents allege they may not return to India because the Principal Respondent and her children suffered domestic abuse by the Principal Respondent's husband and she fears this will resume should she return to India. The RPD found the Principal Respondent's testimony to be credible. The RPD also accepted the Respondents' argument that they had no viable Internal Flight Alternative (IFA), because of the difficulties of being a single mother in India with no family support. [3] The Appellant asserts that the RPD was too easily satisfied of the Respondents' identity and failed to properly analyse the Principal Respondent's credibility, specifically with regards to her delay in claiming asylum and certain incoherencies in her evidence. The Appellant also asserts that the RPD failed to conduct an exclusion analysis which should have resulted from her admissions of having committed the crimes of using a false identity when she resided in the U.K. and removing her children from India without their father's permission. [4] Though the RPD conducted a thorough hearing and its decision is well reasoned, for the most part I agree with the Appellant's arguments. For the reasons which follow, I am allowing the appeal and substituting my own decision in place of the RPD's. I find that the Respondents are neither Convention Refugees, nor persons in need of protection. ROLE OF THE RAD [5] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, may attract deference. Unless specifically stated below, I have applied a correctness standard. ANALYSIS [6] I have attentively listened to the recordings of the RPD hearing, and have carefully reviewed the entire record. I have also reviewed the documents submitted by the Appellant on appeal. These were: a. An email dated September 8, 2017 "response from the UK Home Office" regarding XXXX XXXX (the name the Principal Respondent used in the UK) b. An email dated July 20, 2018, from UK authorities regarding XXXX XXXX XXXXCanadian Visitor Visa application forms completed in the name of XXXX XXXX (the name the Principal Respondent used to come to Canada). c. Canadian Visitor Visa application form completed by XXXX XXXX XXXX who alleged to be the husband of XXXX XXXX (and who the Principal Respondent indicates is not her husband) d. Notes from the Principal Respondent's Refugee Intake eligibility interview from June 26, 2017 e. Printouts from immigration databases which provide US biometric information and travel history. f. UK criminal code provisions g. Instructions for Indian passports h. Photocopies of the Respondents' passports. [7] I have also reviewed the Respondents' submissions and the Appellant's reply to the Respondents' memorandum. The Respondents did not submit any new evidence and have stated they are not requesting that a hearing be held. The Respondents submit that the RPD's decision was reasonable and contained no errors. The Respondents also submit that the Appellant acted unfairly in declaring their intention to intervene twice before the RPD, then withdrawing both notices of intervention but then finally appealing the RPD's decision with material that could have been submitted prior to the RPD rendering its decision. [8] For the most part, I agree with the Appellant. Exclusion ought to have been considered by the RPD and the determinative issue, in my view, is the Respondents' lack of credibility. The issue of the timing of the Minister's intervention [9] On July 18, 2017, the Minister filed a notice of intent to participate before the RPD, stating they would appear in person. No particular issues were identified on the notice. On the day of the hearing, August 24, 2017, the RPD received a phone call and then a document confirming the Minister was withdrawing its intervention notice. During the hearing on August 24, 2017, the RPD member discovered that the claimant had lived under a false identity in the UK during the period 2004 to 2009. The RPD decided to adjourn the hearing and inform the Minister. On September 21, 2017, the Minister reinstated its notice of intention to participate - again without providing documents and again stating that the Minister would appear in person at the next sitting. The hearing finally resumed on June 20, 2018. The Minister's representative appeared in person but only to apologize and state that the Minister was, once again, withdrawing its intervention. The Minister's representative did not file any documents. The RPD rendered its decision on that day, June 20, 2018, at the close of the hearing. [10] I take the Respondents' point that "this sequence establishes that the Minister was provided with ample time and opportunity to provide input on these matters. The repeated withdrawals from the Minister displays its lack of concern regarding the principle claimant's identity, credibility, or any exclusion issues."2 [11] The Respondents also argued that the Minister was precluded from submitting new evidence as the documents failed to meet the test of 110(4) of the Immigration and Refugee Protection Act (IRPA). The Appellant's reply clarified these matters. Section 110(4) of IRPA does not apply to the Minister, who is not bound by these rules of new evidence. [12] While I am sympathetic to the Respondents' position on this point and agree that the lack of intervention during the RPD process did suggest a lack of concern about the outcome of the case, I note that the law permits the Minister to provide documentary evidence and to intervene before the RAD even though they did not intervene before the RPD. [13] Thus, I find that I must fully and fairly consider all of the Minister's evidence and argumentation. The RPD failed to conduct an exclusion analysis pursuant to Article 1Fb of the Convention Relating to the Status of Refugees [14] The RPD did not conduct an exclusion analysis. I find that this was an error. [15] The Appellant notes that the Principal Respondent admitted to committing two non-political crimes. The offences in question are the following: a. The Principal Respondent removed her children from India without obtaining the permission of their father. This was established in her testimony at approximately 1h19 - 1h21 of the first sitting.3 This could be considered child abduction pursuant to section 283 of the Criminal Code of Canada. I note that this is hybrid offence, meaning it may be punished by summary conviction or by indictment. As an indictable offence, a person found guilty is liable to imprisonment for a term not exceeding 10 years. This brings the crime into the ambit of "serious criminality" as it is defined in section 36 of the IRPA. b. The Respondents lived under false identities when they resided in the UK from 2004 to 2009. This was established during the hearing at approximately minute 0h30 of the first sitting and by the documents filed by the Appellant referred to earlier in this decision. This is a crime of identity fraud, as defined in section 403 of the Criminal Code of Canada, as well as "uttering a forged passport" pursuant to section 57 of the Criminal Code of Canada. I note that, in Canada, an offence under section 403 is also hybrid offence and if proceeding by way of indictment, a person found guilty is liable to imprisonment for a term not exceeding 10 years. An offence under section 57 is also a hybrid offence, and if proceeding by way of indictment a person found guilty is liable to imprisonment for a term not exceeding 14 years. Thus, again, these crimes come within the ambit of "serious criminality" as it is defined in section 36 of the IRPA. [16] In terms of (b), the Respondents argued that, pursuant to section 133 of IRPA, as they are refugee claimants they cannot be considered excludable under 1Fb of the Convention or inadmissible for using fraudulent documents. However, as pointed out by the Appellant in their reply, section 133 of IRPA is an exception for fraudulent/improperly issued documents used "in relation to the coming into Canada", not for fraudulent documents used to enter a third country at a different point in time - in this case, the UK. [17] I acknowledge that, as the RPD found the Principal Respondent to be credible, the analysis need not have been long or involved but the RPD failed to turn its mind to the issue of exclusion at all. The RPD could have noted that it believed the Respondents that they only took these measures to save their lives and that this consideration would be a mitigating factor, which along with other factors, resulted in a finding that the offences were not serious enough to warrant the Respondent's exclusion. But such an analysis did not occur. I note that the RPD must consider exclusion in every refugee claim when the facts give rise to a potential exclusion, whether or not the Minister has intervened. [18] Based on my independent assessment of the evidence, my rationale as to exclusion is as follows: a. In terms of (a), the kidnapping, the materials before me state that the Minister suspects that the husband of the Principal Respondent is in fact in Canada.4 While there is no corroborative information on this subject, given my findings regarding the Respondent's credibility, I find that it is unlikely that she is fleeing her husband to begin with, thus there is a strong possibility that she did not flee with the children without her husband's permission, as alleged. Thus, despite her testimony, I find there is insufficient evidence on which to base a conclusion that there are serious reasons for considering that the Respondent committed a serious non-political crime with regards to the abduction of her children. b. In terms of (b), uttering a forged document and personification, these crimes were also admitted to by the Principal Respondent. She stated she committed these crimes in order to save her life. However, this would not explain why she continued to live in the UK with an assumed identity for nearly 5 years. According to her evidence, she fled her abusive husband in 2004 and used the services of an agent to reach the UK where her brother was living. She stated that she did not claim asylum after reaching the UK because she only wanted to stay a short while as she hoped her husband would "improve" during her absence.5 During the second sitting, she stated that she did not claim asylum immediately after arriving in the UK because she was not aware of how to file a claim.6 This is not credible. If the Principal Respondent was so desperate to save her life as to use the services of an agent and relocate to a new country, it does not make sense that she would have been reluctant to claim asylum. According to her Immigration forms she completed 12 years of education7; if she had been motivated to find out how to stay safe in the UK, she could have made efforts to inform herself and could have asked her brother for assistance - who she testified was very concerned for her safety.8 [19] Thus, the use of the fraudulent or improperly obtained passport and living under a false identity for 5 years would appear to be non-political crimes definitively committed by the Respondent and for a purpose other than claiming asylum. However, in terms of seriousness, other than the potential of a sentence of 14 years, no particular aggravating factors are apparent, such as a criminal record, proof of involvement in additional crimes, use of violence or victim evidence demonstrating a financial or other type of loss. [20] In Jayasekara, the Federal Court of Appeal determined that in the context of a 1Fb exclusion it is necessary to consider the elements of the crime, the mode of prosecution, the penalty prescribed, the facts, and the mitigating and aggravating circumstances underlying the conviction.9 Furthermore, in Febles, the Supreme Court of Canada stated that when a particular crime has a wide range of sentences, a claimant whose crime would fall at the lower end of the sentencing range should not be presumptively excluded from protection.10 [21] If prosecuted by summary conviction, the sentence for identity fraud could be as little as $5000. The Appellant did not file any case law or other evidence that would establish the likely sentence the Principal Respondent would have received had these crimes been committed in Canada. I note that the onus is on the Minister to establish the seriousness of the crimes committed. Therefore, I have no basis on which to find that the Principal Respondent would have received a sentence at the upper end of the sentencing range for identity fraud in the circumstances of this case. [22] In conclusion, I find that these factors are sufficient to rebut any presumption of serious criminality in the circumstances of this case. Consequently, the Principal Respondent is not excluded. In my opinion, her lack of credibility is the determinative issue. The RPD did not give sufficient weight to the problems with credibility, including the delay in claiming asylum [23] The Appellant points to the fact that the Respondents lived in the UK for 5 years without claiming asylum and lived in Canada from mid-XXXX 2015 to mid-XXXX 2017 before claiming asylum. These delays, argue the Appellant, are inconsistent with the actions of a person fearing being returned to an abusive husband in India. Furthermore, not only did she delay claiming in Canada, but also continued living on a second assumed identity for nearly two years prior to claiming. [24] I agree with the Respondents that delay in claiming is not generally a determinative issue, however, I also agree with the Appellant that the fact that the RPD did not even explore why the Principal Respondent did not claim asylum sooner after arriving in Canada was an error. Furthermore, in this particular case, as the Respondents had lived for a total of some 6 years on false identities without claiming asylum (2 in Canada and more than 4 in the UK), this lack of forthright behavior should have been given greater weight in the RPD's assessment of her credibility. In my own analysis, this factor weighs heavily against the Respondents' overall credibility. [25] The Appellant also notes that in the Principal Respondent's basis of claim form (BOC), the Respondent omitted to mention any grounds for her children's claim for refugee protection. Only when questioned on this point at the hearing did she state that her children were also beaten by their father.11 The Principal Respondent also failed to give any specific details of the alleged assaults by her husband against her children. She stated that the omission in her BOC must have been simply an oversight in completing her forms, but this does not also explain why she did not describe these incidents in explaining her rationale for leaving India during the hearing. Up until the point where the RPD specifically asked her whether her husband had abused the children, she had only stated that her husband had "never cared for the children".12 I also find this factor weighs against her credibility. [26] The Appellant also pointed out the Respondent's lack of credibility when it comes to her financial situation. She claimed that she never worked in India and that the agent who assisted her to travel to the UK and the agent who assisted her to travel to Canada were paid by her friends. But her testimony was not even consistent on this point. Early on in the hearing the RPD asked her "Is this someone who you paid to help you get to Canada?" She replied: "I didn't pay for it but my friend helped me and she might have paid."13 This friend, XXXX XXXX, the Principal Respondent explained, felt badly for her as she was in a bad situation. Later in her testimony, the Principal Respondent replied with certainty to the RPD's question "how much did it all cost to come to Canada?" that her friend paid 2 lakhs rupees to the agent, the equivalent of about $3900 CAD.14 Thus, she contradicted her earlier vague statement that her friend "might" have paid. She also testified that she is no longer in touch with this friend and has no contacts and no support in India or from her brother in the UK. She confirmed that she did not work in Canada before obtaining a work permit after she filed her refugee claim. Thus, she would have had no source of income for the first two years of living in Canada. The Appellant is correct, there is no explanation as to how she managed financially during this period. This further undermines her testimony that she has no financial support from her relatives which was a key aspect of her rationale for not merely leaving her husband, but needing to flee the country.15 It is not credible that the Respondents have had no assistance from relatives, financial or otherwise, since coming to Canada. This factor again undermines the overall credibility of the Respondents' allegations. The new evidence submitted by the Appellant further undermines the credibility of the Principal Respondent [27] In the package of evidence filed by the Appellant, certain documents were submitted which further undermine the Respondents' credibility. Naturally, the RPD cannot be faulted for not taking them into account as they were not submitted until the Appeal was filed. However, I must take them into account as part of my independent assessment. [28] The email from the UK authorities indicates that the Principal Respondent was removed from the UK on March 25, 2009.16 This contradicts the Principal Respondent's testimony that she left the UK of her own volition because she hoped to reconcile with her husband. The Respondents did not address this contradiction by way of evidence or in submissions in their memorandum but simply accused the Appellant of "nit-picking". [29] At the hearing, the RPD asked the Principal Respondent quite clearly if she ever did any work outside of her brother's home while she resided in England and she replied "No".17 However, in the email from UK authorities it states that when she was intercepted at Heathrow airport she admitted to working as a beautician in the UK. Thus, her testimony was inconsistent and this fact undermines the credibility of her assertions that she fled to the UK to escape her abusive husband. Again, the Respondents did not address this contradiction by way of evidence or in submissions in their memorandum. [30] These additional inconsistencies, while not determinative in and of themselves, cumulatively with the other credibility problems, render the Principal Respondent's allegations unworthy of belief. As such, I am not satisfied, on a balance of probabilities, that her allegations of mistreatment in India occurred. The issue of identity [31] The Appellant submits that the RPD was too easily satisfied of the Respondents' identity given that they had used two prior identities for extended periods of time as well as the evidence of being able to have a new Indian passport issued well in advance of the expiry of the old passport. The Respondents did not make any submissions on this issue, other than to state that the RPD was correct to be satisfied of her identity. [32] Before the RPD, in support of the Principal Respondent's identity as XXXX XXXX born in 1981 and her children's identity as XXXX XXXX XXXX XXXX XXXX XXXX, the Respondents had submitted a "Character certificate" issued by the Government High School of Littran dated 1998. This document appears to be a mere sheet of paper with no security features and no photograph. However, they also submitted a copy of the Principal Respondent's Aadhar card, her son's Aadhar card, copies of her children's birth certificates showing the mother's name as the Principal Respondent as well as passport copies. The Principal Respondent had a somewhat convoluted explanation for why she had only copies and not originals, indicating that she managed to obtain copies from her friend who had some of the originals but not the original passports which were at her in-laws' house, but that she did not bring originals with her as her friend only sent her copies of her documents after she came to Canada, at the end of 2015.18 [33] I agree with the Appellant that the issue of identity documents could have been more thoroughly explored during the hearing before the RPD, however, the supporting documentation is sufficient to establish the identities the Respondents have used since 2009. [34] I accept the Respondents' identities to be as claimed. The determinative issue in this case is the lack of credibility. CONCLUSION [35] Given the lack of credibility of the Principal Respondent, I am not satisfied the Respondents have demonstrated that there is a serious possibility that they would be persecuted if they returned to India, nor that, on a balance of probabilities, they would be personally subjected to a danger of torture, a risk to their lives or a risk of cruel and unusual treatment or punishment should they return to India. DETERMINATION [36] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Respondents are neither Convention refugees nor persons in need of protection. (signed) "Jillan Sadek" Jillan Sadek December 16, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 R-1, Repondent's Memorandum, paragraph 7, Respondent's Record, p. 6 3 At minutes 1h19 - 1h21 of the recording of the first sitting before the RPD, August 24, 2017 4 P-2, Appellant's evidence, Appellant's record, p. 25 5 At minute1h36 of the recording of the first sitting before the RPD, August 24, 2017 6 At minute 0h30 of the recording of the second sitting before the RPD, June 20, 2018 7 RPD-1, IMM5669 forms, RPD record, p. 59 8 At minute 0h17 of the recording of the second sitting before the RPD, June 20, 2018 9 Jayasekara v. Canada, 2008 FCA 404 at para. 44. 10 Febles v. Canada (Citizenship and Immigration), 2014 SCC 68. 11 At minute1h22 of the recording of the first sitting before the RPD, August 24, 2017 12 At minute 1h20 of the recording of the first sitting before the RPD, August 24, 2017 13 At minute 0h20-0h21 of the recording of the first sitting before the RPD, August 24, 2017 14 At minute1h10 of the recording of the first sitting before the RPD, August 24, 2017 15 At minute 0h49-0h52 of the recording of the first sitting before the RPD, August 24, 2017 16 P-2, Appellant's documents, Appellant's record, p. 25 17 At minute 2h28 of the recording of the first sitting before the RPD, August 24, 2017 18 At minute 0h42-0h45 of the recording of the first sitting before the RPD, August 24, 2017 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-24243 TB8-24244 / TB8-24245 RAD.25.02 (April 04, 2019) Disponible en français 12 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