VC1-09032

RAD File / Dossier de la SAR : VC1-09032 VC1-09033 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX Personnes en cause Date of decision September 30, 2022 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the persons who are the subject of the appeal Rajveer Singh Atwal Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Jasbir Sandhu Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I grant this appeal for the reasons that follow. [2] This is an appeal filed by the Minister with respect to the claims filed by the Respondents, XXXX XXXX (Ms. K), and her son, XXXX, who are citizens of India. The Respondents alleged a fear that Ms. K's brother-in-law and his wife would kill or persecute them if they return to India. [3] The Respondents alleged that Ms. K's brother-in-law and his wife started to become abusive toward her, her husband, and her son in 2010-11 when Ms. K's husband would not turn over his part of the family property to his brother. The Respondents alleged that the brother-in-law and his wife beat Ms. K in 2018. After this, Ms. K's husband went to Russia to look for work. He was beaten by his brother when he returned to India. In early 2019, Ms. K and her son obtained a visa to come to Canada for a XXXX tournament in which both were participating. They obtained a visa from XXXX to XXXX 2019. They claimed refugee protection in XXXX 2019. Ms. K's husband remains in the family home in their hometown in Haryana state. According to the Respondents, Ms. K's husband has chosen to remain in the abusive situation with his brother in order to take care of his father rather than travel to Canada with the Respondents. [4] The Minister initially indicated an intention to intervene before the Refugee Protection Division (RPD). However, it withdrew its intervention due to its heavy caseload. It advised the RPD that it continued to have concerns about the Respondents' credibility and program integrity. [5] The RPD found credible the Respondents' allegation that they had endured ongoing abuse at the hands of Ms. K's brother-in-law and his wife for many years before they fled India. The RPD also accepted as credible that Ms. K's spouse was unable to prevent the abuse and has chosen to remain in the family home. The RPD found that the Respondents would not have access to adequate state protection in India and that they would not have a viable internal flight alternative (IFA) there. Specifically, at the hearing, the RPD had proposed Bangalore, Chennai, and Mumbai as possible IFAs (IFA cities). The RPD found that the Respondents would not face a serious possibility of persecution nor a likelihood of serious harm in the IFA cities. [6] However, the RPD found that it would be unduly harsh to expect the Respondents to relocate to the IFA cities. It found that Ms. K would most likely be a single mother solely responsible for supporting herself and her son. The RPD made this finding because the member accepted that Ms. K's spouse had demonstrated an intention to remain in the family home in Haryana state. The RPD found that it would be difficult for Ms. K, as a single mother, to find employment and accommodation in the IFA cities and therefore it would be unreasonable to expect her to relocate there. [7] The Minister has appealed the RPD's decision. DECISION [8] My role is to look at all the evidence and decide if the RPD made the correct decision.1 I agree with the Minister that the RPD erred with respect to some of its factual findings and its finding that the Respondents would not have a viable IFA in Bangalore, Chennai, or Mumbai. NEW EVIDENCE ADMITTED The evidence presented by the Minister is accepted [9] The following evidence submitted by Minister is admitted as new evidence: 2 * A listing of room rentals available for women in Bangalore, Chennai, and Mumbai; * A report on the conditions faced by women in the workplace; * The Minister's Global Case Management System summaries related to the Respondents' temporary resident visa applications; * A partial copy of Ms. K's temporary visa application; * A partial list of registered entrants in the 3rd Annual Canada Open XXXX Championships held in XXXX 2019; and * A listing of job vacancies in Bangalore, Chennai and Mumbai. [10] Neither the Minister nor the Respondents requested an oral hearing. I find that the new evidence admitted on appeal does not satisfy the conditions for the holding of an oral hearing.3 ANALYSIS OF THE MERITS Credibility Standard of review [11] At the outset, I note that the standard of review applicable in this case is not the reasonableness standard urged by the Respondents' counsel. Counsel is correct to note that the Federal Court generally applies deference to the assessment of evidence by the RPD and the Refugee Appeal Division (RAD). However, the RAD generally applies a standard of correctness when reviewing RPD decisions. The RAD only defers to the RPD's assessment in cases where the RPD had a meaningful advantage in assessing the evidence. That is not the case here. I am in as good a position as the RPD member to assess the documentary and testimonial evidence in the case. I disagree with the Respondent's counsel that it is not the RAD's role to reweigh evidence. The RAD regularly must do so as part of its independent assessment of the evidence in the course of conducting its correctness review of the RPD decision. Omissions in the Respondents' written narrative [12] I agree with the Minister's Counsel that the RPD erred in failing to draw negative credibility inferences from the omissions in the Respondents' written narrative. [13] The Respondents testified to various incidents of abuse at the hearing, specifically abuse against Ms. K's son, that they had failed to mention in their written narratives. I agree with the Minister that the RPD erred in accepting these allegations as credible simply on the basis that the Respondents had included in their narratives a sentence saying that they "may have forgotten many details to be added at the time of the hearing."4 [14] Claimants are permitted to provide additional details of their allegations at the hearing, but the RPD and RAD may validly draw negative credibility inferences from their omission of significant allegations in their written narratives. I agree with the Minister that the fact that the Respondents included the sentence set out above in their written narratives does not provide them with the opportunity to add significant allegations of abuse for the first time at the RPD hearing without providing a satisfactory explanation for the omission of these significant allegations from the Respondents' written narrative. This is especially the case since the Respondents had the benefit of counsel in drafting their claims. In addition, this was not a situation where the Respondents were filling out their claims immediately upon arrival in Canada after having just fled persecution in their countries of origin. As noted above, the Respondents arrived in Canada in XXXX to compete in a XXXX tournament in XXXX 2019. They filed their claims several months later, in XXXX 2019. As such, they had ample time to remind themselves of all of the significant incidents of abuse that they had experienced in India. Finally, I also note that there was no evidence in this case that either of the Respondents suffered from trauma or mental health issues that could cause a severe loss of memory that might explain their failure to mention significant incidents of abuse in their written narratives. [15] As noted by the Minister, the RPD accepted as credible the Respondents' testimony about certain incidents of physical abuse that Ms. K's son had experienced at the hands of his uncle and aunt. The Respondents gave this testimony after the RPD advised them that one of the issues it wanted to hear about, in particular was the risk of harm faced by Ms. K's son. Ms. K and her son testified to numerous incidents of abuse that the son experienced at the hands of Ms. K's in-laws and in fact testified that he had to stay locked in their house for fear of being beaten up by Ms. K's in-laws. The Respondents made no mention of such abuse against Ms. K's son in their written narratives. [16] In addition, Ms. K testified to several incidents of "torture" that she experienced at the hands of her in-laws starting at the time that she got married in 2010 or 2011.5 However, in her written narrative, she only describes threats to take over her husband's portion of the family land before the one specific incident of abuse against her that she described in XXXX 2018. She made no mention of any incidents of physical abuse against her, and certainly no torture, prior to XXXX 2018. [17] Also, at the hearing Ms. K testified that her in-laws had focused their abuse on her and her son in particular. The Respondents also made no mention of this in their written narratives. On the contrary, in their written narratives, the Respondents described an incident of physical abuse against Ms. K in XXXX 2018 and one against her husband after he returned from Russia. [18] I do not agree with the Respondents' counsel that these omissions were permissible since the Respondents were subjected to "ongoing and systemic" domestic violence. I do not find that it is an excuse for the Respondents to allege "systemic" violence. To begin, I note that this is the characterization of the Respondents' counsel on appeal and not the characterization of the Respondents. In any event, claimants still have an obligation to include in their Basis of Claim narratives all major incidents that are central to their claims. Counsel argues that it is unreasonable to expect claimants to list every incident of abuse that took place over years. I do not agree that it is unreasonable to expect claimants to list significant incidents of abuse or to at least mention that they experienced various incidents of abuse over a certain time period. In this case, the Respondents simply referred to vague threats to take over the property owned by Ms. K and her husband. The only actual incidents mentioned were an attack on Ms. K in XXXX 2018 and the attack on her husband after he returned from Russia. The Respondents mentioned no other significant incidents of abuse, nor did they mention a pattern of abuse going back years or any abuse against Ms. K's son. [19] In the above circumstances, I find that the RPD erred in not drawing a negative credibility inference with respect to any significant allegations of abuse not mentioned in the Respondents' written narrative. Specifically, I find that the RPD should have drawn a negative credibility inference regarding the Respondents' allegations at the hearing that Ms. K's in-laws had physically assaulted her son and tortured Ms. K between 2010 and 2018. If such assaults in fact occurred, one would expect that they would be the kind of significant incidents that the Respondents would have mentioned in their written narratives. The fact that they did not so and failed to provide a satisfactory explanation for the omission gives rise to a negative credibility inference in relation to their allegations regarding such incidents. It was not a satisfactory explanation for the Respondents to point to the sentence in their narrative in which they stated that they would provide further "details" at the hearing. Incidents of physical abuse and torture are not simply "details" - they are serious new allegations that one would expect to be listed in the Respondents' written narrative if they were in fact true. Error in finding that Ms. K's husband likely would not go to IFA cities [20] I agree with the Minister that the RPD failed to take into account relevant evidence when it found that it was unlikely that Ms. K's husband would relocate to any of the IFA cities to assist Ms. K and her son. In addition, the RPD failed to take into account inconsistencies in Ms. K's own evidence regarding that issue. [21] When the RPD asked Ms. K whether her husband hoped to join the Respondents in Canada, she gave a largely non-responsive answer saying her husband wanted her and their son to be safe and that he did not have a visa.6 However, as noted by the Minister, in the "Additional Dependents/ Declaration Form" that Ms. K filled out, she indicated that her husband would be accompanying her to Canada.7 Also, in the section asking about the spouse's "Intended Occupation," Ms. K wrote "any suitable occupation." I agree with the Minister that the RPD failed to take this evidence into account when it found that Ms. K's husband likely would not relocate to any of the IFA cities to assist his wife and son. In my view, this was evidence that Ms. K expected her husband to join the Respondents in this country if he had the opportunity to do so. This is inconsistent with her testimony at the hearing which was a great deal more equivocal in particular with respect to the likelihood that he could ever leave their hometown due to his father's state of health. [22] The Respondents' counsel argues on appeal that the intention of Ms. K's husband cannot be established from a form that he did not complete. He argues that the RPD appropriately took into account the evidence before it in making its finding. I disagree. The RPD had the obligation to take into account all of the evidence in this case. Unfortunately, the Respondents did not call Ms. K's husband as a witness nor did the Respondents file any kind of affidavit or statement from Ms. K's husband. Therefore, the RPD was left with Ms. K's evidence about whether she thought her husband would relocate with the Respondents to one of the IFA cities. The Additional Dependents/Declaration Form was an important piece of evidence indicating that Ms. K believed that her husband would be accompanying the Respondents to Canada. [23] The RPD asked Ms. K several questions aimed at determining whether she believed that her husband would move to the IFA cities if the Respondents were to relocate to one of those cities. Generally, Ms. K responded that she did not know what her husband could do for the Respondents and that he would not want to leave his father. However, when the RPD specifically asked Ms. K whether her husband would join the Respondents in the IFA cities, she replied, "Yes. I would say that, if we move into any of those cities, he will come because he is in India, he will come."8 She then went on to say that she would not want her husband to leave his father in order to assist the Respondents in the IFA cities. When the RPD pressed her on why she was saying that she would not want her husband to go and help the Respondents if they needed assistance in the IFA cities, Ms. K replied that she could not say one way or the other what her husband would do. She testified that he would be "more than willing"9 to help the Respondents but that she could not say whether he would leave his father alone and move to the IFA cities. This was inconsistent with her earlier testimony that he would go to any of the IFA cities if the Respondents moved there. [24] Taking all of the above into account, I agree with the Minister that it is more likely than not that Ms. K's husband would move to the IFA cities to be with them. At a very minimum, the evidence indicates that the Respondents would have assistance from Ms. K's husband if they relocated to one of the IFA cities. I do not agree with the Respondents that the Minister's argument is "unreasonable" because Ms. K's husband was previously unable to assist the Respondents. While Ms. K's husband was previously unable to prevent his brother from beating Ms. K on one or more occasions, there was no evidence in this case that Ms. K's husband was not financially supporting her and their son. There was no evidence that he would not continue to do so if the Respondents relocated to one of the IFA cities. Therefore, I agree with the Minister that it was an error for the RPD to treat Ms. K's situation as akin to that of a single mother who would be moving to one of the IFA cities on her own and who would be solely responsible for supporting herself and her son. The Respondents have viable IFAs in India [25] The legal test for assessing whether a claimant has a viable IFA has two prongs.10 Finding under the first prong not contested [26] Neither the Minister nor the Respondents have challenged the RPD's finding under the first prong of the IFA test that the Respondents failed to demonstrate that they would be at risk of persecution or serious harm in the IFA cities. Since this finding is not challenged, I do not have to provide extensive reasons for why I agree with it. It suffices for me to confirm that I agree with the reasons for this finding provided by the RPD at paragraphs 48-51 of its decision. RPD erred under the second prong [27] Under the second prong of the IFA test, a decision-maker must assess whether it would be unreasonable in all the circumstances to expect a claimant to relocate to one of the IFA cities. The threshold for unreasonableness is very high and requires that a claimant's life and safety be in jeopardy. 11 [28] As detailed above, the RPD erred in finding that it is unlikely that Ms. K's husband would join the Respondents if they relocated to any of the IFA cities. In my view, when all of the evidence is considered, it is more likely than not that Ms. K's husband would join the Respondents in one of those cities. That said, it is sufficient to find that, at the very least, Ms. K is still married to her husband and, as she testified, the latter would do what he could to assist the Respondents if they relocated to one of the IFA cities. Therefore, it was an error to treat Ms. K's situation was comparable to that of a single mother who would be solely responsible for supporting herself and her son. [29] The RPD asked Ms. K whether there were any reasons, other than the issues with her in-laws, for why the Respondents could not safely relocate to one of the IFA cities. Ms. K responded that the IFA cities were expensive, and it would be difficult to rent a place and educate her son. Later, she testified, "Like I don't say that going and living would be problem, but how to go and live because as I said I have had no exposure, no experience of living anywhere else, and no work."12 [30] The Respondents' counsel on appeal refers to Ms. A as a single uneducated woman who was unemployed during her whole time in India. In fact, none of these characterizations are accurate. As noted above, Ms. K is still married, and her husband is still willing to assist her and their son if they relocate to one of the IFA cities. In addition, Ms. A is not uneducated. She completed secondary education as well as a certificate at the National Institute of Open Schooling. While Ms. K was a housewife for most of her time in India, she also worked for a period of time as a XXXX XXXX. Since leaving India, has gained experience working at XXXX. [31] In my view, the Respondents have failed to establish that any difficulties Ms. K would face in finding work and housing in the IFA cities would be significant enough to put the Respondents' lives and safety in jeopardy. As the evidence submitted by the Minister shows, a number of low-level warehouse jobs are currently being advertised in the IFA cities. Contrary to the argument made by the Respondents' counsel, most of the positions do not indicate that they are reserved for "boys." [32] I do not agree with the Respondents' counsel that the Minister referred exclusively in its submissions to jobs in the IT and banking sectors which are inapplicable to Ms. K. While the RPD was correct to note that there exists gender-related discrimination in employment in India and women are paid less than men on average, I do not find that this evidence establishes that any difficulties Ms. K would have in finding work would place the Respondents' lives and safety in jeopardy. The evidence in the National Documentation Package (NDP) indicates that women in India have access to fewer employment opportunities that match their skills and education level. What this means is that women are more likely to work in low-level positions that pay less. However, the evidence does not indicate that women seeking employment in low-level positions such as the one held by Ms. K in Canada are unable to secure such employment. Moreover, there is insufficient to establish that the income Ms. K would be earning form such employment in addition to whatever assistance she receives from her husband would be insufficient for her to live a reasonable life in the IFA cities. [33] In terms of housing, as noted above, any discrimination in housing against single women would not apply to Ms. K who is not a single woman. In any event, the evidence filed by the Minister demonstrates that there are multiple listings for rooms specifically available for women in the IFA cities. As for the cost of housing, I agree with the Respondents' counsel that this issue is to a certain extent bound up with the issue of employment. In my view, the evidence does not establish that any problems Ms. K would have in finding employment would make her unable to afford suitable housing for her and her son. This is especially the case as her husband would also be doing what he could to assist his wife and his son, whether living with them in the IFA cities or from back in their hometown in Haryana state. [34] For all of the above reasons, I find that the RPD erred in concluding that it would be unreasonable, in the circumstances, to expect the Respondents to relocate to any of the IFA cities. [35] In light of the conclusions, I have reached above, I do not need to address the parties' arguments on the issues of nexus and state protection. CONCLUSION [36] The appeal is allowed. I substitute my own decision that the Respondents are not Convention refugees nor persons in need of protection. (signed) Jo-Anne Pickel Jo-Anne Pickel September 30, 2022 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Immigration and Refugee Protection Act (IRPA), ss. 110(3) and 171(a.5). 3 Subsection 110(6) of the Immigration and Refugee Protection Act. 4 Basis of Claim narratives, RPD Record, Exhibits 2.1 and 2.2. 5 Transcript of RPD hearing, p. 7-8. 6 Transcript of RPD hearing, p. 14. 7 Additional Dependents/Declaration Form, RPD Record, Exhibit 1, p. 98. 8 Transcript of RPD hearing, p. 20. 9 Transcript of RPD hearing, p. 21. 10 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (CA). 11 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (CA). 12 Transcript of RPD hearing, p. 14. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC1-09032 VC1-09033 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français