MB7-16643

RAD File / Dossier de la SAR : MB7-16643 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision April 25, 2019 Date de la décision Panel Max Wolpert Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Claude Whalen Conseil(s) (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] XXXX XXXX, a citizen of India, has appealed the decision of the Refugee Protection Division dated September 7, 2017, finding that he is neither a Convention Refugee nor a person in need of protection. I have decided to grant his appeal and have substituted my decision that Mr. XXXX is a Convention refugee. These are my reasons why. [2] Mr. XXXX is a devout Sikh and lifelong resident of Delhi, India. He has earned his living as a XXXX XXXX and XXXX XXXX in XXXX in India and abroad. In or about 2013, he met a man named XXXX XXXX and worked with him professionally till early 2014. Due to that association, Mr. XXXX claims to have been detained and severely beaten by police three times between XXXX and XXXX 2014, the second time at the Delhi airport upon his return to India from a work trip to China, and to fear future persecution by the Delhi police, because they suspect XXXX XXXX of colluding with and XXXX XXXX to militants returning to India from Pakistan and wrongly believe Mr. XXXX has information about those activities. He also claims to fear XXXX XXXX and his associated militants because they threatened him right after he tried to cooperate with police by telling them he had spotted XXXX XXXX in XXXX 2014. [3] The RPD member did not believe that those past events occurred. He found it not credible that Mr. XXXX would have returned from China after having experienced the first alleged brutal police detention, nor that he called the Delhi police from China the day after he missed his first reporting date, which had allegedly caused the police to beat his family, to tell them that he would be back in a week. I have found the RPD erred because Mr. XXXX would have had little choice but to return from China and it would have been impracticable for him to avoid doing so. [4] The RPD member also found not credible that Mr. XXXX would have made that alleged call from China to protect his family, but would have later left them behind when he allegedly fled to Jalandhar, Punjab a week before the XXXX XXXX, 2014, reporting date imposed on him after his second release. The RPD member found this negated Mr. XXXX`s alleged XXXX 2014 arrest. I have held the RPD erred here about the call, because there was nothing inherently implausible about it in its circumstances, whatever the perceived inconsistency of its motives with Mr. XXXX`s later behaviour. I also have held, however, that the RPD member was correct to find that allegedly fleeing to Jalandhar, leaving his family behind to face potential further police assault once a looming reporting date passed, was not credible, but that this only moderately damaged the credibility of that earlier arrest. [5] The RPD member further found not credible that Mr. XXXX waited five weeks after his second release to flee to Jalandhar, when he had left for China only eleven days after his first release, despite medical evidence that his injuries were apparently similar on both occasions. I have found this an unjustified deduction from that medical evidence. [6] The member also did not believe that Mr. XXXX would not have reported to the police XXXX XXXX threat. This was given that he had been willing to inform them the day before that he had seen XXXX XXXX and the police had not harmed him then, and had even returned his passport and had tried to make him become a paid informant. The RPD member also rejected Mr. XXXX`s evidence that he had refrained on the advice of his municipal councillor, holding that this had not been mentioned in the BOC. I have found that the RPD member incorrectly interpreted that advice, which was in fact mentioned in the BOC and was described as focussing mainly on the threat from the militants. [7] The RPD member also held that, although Mr. XXXX had valid temporary status in Canada from his arrival in XXXX 2014 until he filed his refugee claim in July 2015, this delay further damaged his credibility because alleged police searches for him between XXXX and XXXX 2014 would have demonstrated that his alleged situation would not improve, so that further waiting was pointless, and he knew all about the refugee claim process by no later than January 2015. I have found that the RPD member was correct here, but that the damage to Mr. XXXX`s credibility was only moderate, particularly given that he did have status in Canada throughout the delay, and is not determinative. [8] In the result, I have found that there was only moderate damage to Mr. XXXX`s credibility from the two correct RPD findings, and that the RPD erred in rejecting his overall credibility. [9] Finally, the RPD member found that, even were Mr. XXXX allegations true, he would have a safe and reasonable internal flight alternative in Mumbai or Bangalore, because the Delhi police would probably be unwilling to seek him elsewhere and it was also unlikely that police in another state would be willing to cooperate with them. I have found this incorrect, based largely on Mr. XXXX past arrests by or at the request of the Delhi police at the Delhi airport and in Punjab. ROLE OF THE RAD [10] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I have not deferred to the RPD's credibility assessment of oral testimony, as I did not find that the RPD had a meaningful advantage in the circumstances.1 [11] I have read all the documents filed. I have also listened to and taken detailed notes of the audio recording of the RPD hearing. ANALYSIS Return to India from China - RPD erred [12] The RPD member asked Mr. XXXX why, given his past mistreatment by the police, he went back to India from China in XXXX 2014. Mr. XXXX gave two reasons: His Chinese visa was time-limited, and he had not known that the situation he faced in India would escalate to such a major degree. The RPD member then asked Mr. XXXX why he had not tried to go to a third country. He replied that he had never confronted such a situation before, so he had thought it was minor and hadn't taken it seriously. The RPD member asked how so, given that the police had raided his home and beat his family on XXXX XXXX, the day after he failed to report. Mr. XXXX answered that he hadn't been there on XXXX XXXX, that he didn't have many options then, and hadn't understood what he should be doing. Moreover, he added, he did not then have a visa for any third country.2 [13] The RPD member found Mr. XXXX explanations insufficient. The member noted Mr. XXXXalleged past severe beating by the Delhi police that Mr. XXXX said sent him to hospital for XXXX days. He referred to the reporting condition and the police allegedly having beaten family members when it was violated. He concluded that all this was incompatible with Mr. XXXX notion that his situation had not yet become serious.3 He further found the alleged police mistreatment incompatible with Mr. XXXX lack of effort to avoid returning to India.4 He held that returning did not reflect the behavior of a person facing persecution or harm. He concluded that Mr. XXXXcredibility about his first arrest was damaged.5 [14] Appeal counsel argues that Mr. XXXX explanation was reasonable in context.6 He adds that it was wrong to reproach the appellant for not having tried not to return to India, particularly given that he wanted to avoid further problems for his family.7 [15] There were two components to the RPD finding here: First, the member did not believe that Mr. XXXX would have considered his alleged situation not yet serious in XXXX XXXX XXXX 2014. Second, he found Mr. XXXX failure to try to flee from China to a third country incompatible with his alleged XXXX 2014 detention and severe beating by the Delhi police. [16] No one asked Mr. XXXX why he hadn't simply returned to India by XXXX XXXX, 2014, when he was originally allegedly scheduled to report to police. Nor did anyone ask why he hadn't called the Delhi police from China on or before that date to advise that he needed a postponement of eight days or so. His answers to those questions would have made analyzing his credibility on this issue easier. While both the member and hearing counsel could have posed these, the RPD member did the bulk of the questioning, so most of the damage from these omissions, so to speak, counts against his reasoning. [17] In my opinion, the RPD member was incorrect on the second component. In order for Mr. XXXX to have tried to flee to a third country from China, objectively he either would have to have been in a position to obtain a work visa in that country, and there was no evidence that he had the necessary contract or arrangements to do so, or he would have had to approach an embassy to request protection in its country. There was no evidence that he would or should have known about this, or that it was a realistic and practicable possibility. Admittedly, parts of Mr. XXXX explanations are psychologically problematic, particularly the element that he thought the situation minor and not serious, but taken as a whole I find the objective aspects are clearer and outweigh those problems. [18] As to the first component, again, Mr. XXXX testimony that he had thought his situation, novel to him, was minor and hadn't taken it seriously is odd. Nonetheless, objectively he would have had little choice but to return to India, particularly given the police raid and assault his family had just experienced and the highly likely impossibility and impracticability of his remaining indefinitely in China. So this seems another case where the action was objectively foreseeable and plausible, even if puzzlingly explained. Therefore, here too I find that the RPD member erred. Calling police from China - RPD erred [19] The RPD member next asked Mr. XXXX why, given that they had tortured him, he had called the Delhi police from China on XXXX XXXX, 2014, to tell them he would be back XXXX XXXX and report then. He said he had done so after his family told him about the police raid on their home the day before. He explained that he had assured the police of his return because he wanted them never to harass his family, especially his children, again.8 [20] Given that, the RPD member later asked Mr. XXXX why in XXXX 2014 (following his alleged second arrest) he had relocated to Jalandhar alone without his family. He answered that his only thought had been that if he could save his life by fleeing there, then once he had established himself then he could have his family join him. How did he know, the member asked, that police wouldn't harass his family in the meantime? He really wanted to leave Delhi then, said Mr. XXXX, and he thought he would be able to summon his family very soon. Counsel then asked whether he had been afraid that the police would harass his family before that. I was scared, was his ambiguous (i.e. scared for himself, for his family, or both?) answer as translated.9 He was not asked to clarify. [21] The RPD member found that Mr. XXXX insufficiently explained having called the Delhi police from India (to tell them he would be back on XXXX XXXX, 2014).His reasoning, however, was not based on anything to do with that act itself; rather it was founded on the perceived behavioural inconsistency between Mr. XXXX explanation that he called the police from China because he wanted to protect his family from further assaults by them, and what the RPD member saw as his lack of worry for his family when he allegedly fled to Jalandhar, alone, on XXXX XXXX, 2014.10 [22] In addition to the points set out above, appeal counsel argues that Mr. XXXX did not believe he was in danger when he returned from China, so his return was not inconsistent with his (eventual) subjective fear of persecution.11 [23] There was nothing inherently implausible in itself about the XXXX XXXX, 2014, call to Delhi police. Given that Mr. XXXX had missed his reporting appointment of the day before, and the alleged resultant suffering by his family that resulted, it would have been a sensible and understandable thing to do. Leaving family behind when fleeing to Jalandhar - RPD correct [24] That leaves the contrast between Mr. XXXX calling from China to protect his family from the fallout of his failure to report to police and his purportedly abandoning them to further potential police attack when he fled alone to Jalandhar a week before he was scheduled to report again. There was still a week to go before the reporting date. Mr. XXXX second explanation, that he thought he could summon his family quickly, was, however, an evolved response to the RPD member's follow-up question to his original answer that once he had established himself (stated without any time frame), then he could have his family join him. Mr. XXXX also did not refer at any point to the time remaining between his departure for Jalandhar and his reporting appointment. I find, on the balance of probability, then, that the remaining week did not figure in Mr. XXXX thoughts in his RPD answers. In other words, he did not say or mean that he expected his family to join him in Jalandhar before XXXX XXXX, 2014. [25] Neither did Mr. XXXX claim or give any reason not to have feared that the swift alleged past police persecution of his family following his failure to report in XXXX 2014 would be repeated once he failed to report on XXXX XXXX, 2014. Recall that Mr. XXXX asserted that protecting his family from such further persecution had been his primary concern and his motive for calling the Delhi police from China. [26] That being so, I find that the RPD member was correct in finding that Mr. XXXX had failed to clarify his relative lack of worry about potential police violence to his family when he left Delhi without them in XXXX 2014. Degree of damage to credibility [27] The RPD member found that this damaged Mr. XXXX credibility, specifically regarding his alleged second arrest on his XXXX XXXX, 2014, return from China, to an unspecified degree.12 The member had made no direct finding about that arrest. That is, he did not explicitly find anything wrong with Mr. XXXX evidence or description of the alleged events of XXXX XXXX, 2014, when he says he was arrested at Delhi airport, then detained at the same city police station and by the same Inspector as in the previous XXXX, interrogated about XXXX XXXX, beaten for two days, and then released with a further obligation to inform police on XXXX XXXX and report on XXXX XXXX. [28] Mr. XXXX was questioned for only five minutes about all those events.13 That being so, none of his responses were inconsistent with his BOC or apparently implausible. Weighing this against the RPD member's correct credibility finding about Mr. XXXX alleged flight to Jalandhar, which was an alleged direct result of that arrest, is not straightforward. Taken as a whole, I find that the damage to Mr. XXXX credibility regarding this arrest and his resultant flight is moderate, and not in itself determinative. Delay in fleeing to Jalandhar - RPD incorrect [29] The RPD member next found insufficiently explained Mr. XXXX five-week delay in fleeing to Jalandhar following his XXXX XXXX, 2014, release from his alleged second arrest. He held that this further damaged Mr. XXXX credibility, this time concerning his third alleged arrest (in Jalandhar on XXXX XXXX, 2014). The member's reasons were, first, that although Mr. XXXX testified that he needed time to recuperate and be treated following that release, he had nonetheless said that he was afraid of being beaten again and could no longer endure his circumstances.14 Second, the member found that the medical certificate submitted about Mr. XXXX alleged injuries and medical treatment following each of the alleged first two arrests indicated that those injuries and treatments were the same after both arrest. Thirdly, Mr. XXXX had been able to travel to China in early XXXX 2014 only XXXX days after his first alleged release by police.15 The unspecified apparent deduction by the RPD member was that Mr. XXXX, allegedly similarly injured the second time, and feeling the above fear, would have fled within a similarly short delay the second time round. [30] Appeal counsel argues that Mr. XXXX evidence was that he needed time to recuperate and he did not have to report to police until XXXX XXXX, 2014. He left Delhi a week before that, so the evidence taken as a whole shows that this was reasonable.16 [31] Both of Mr. XXXX alleged arrests up to that time had occurred after he did not report on time. There was still a week to go when he allegedly left Delhi the second time. Thus counsel is correct that the upcoming XXXX XXXX reporting date in itself was quite compatible with Mr. XXXX not leaving Delhi until shortly before then. [32] In addition, the RPD member was inaccurate in stating that the medical certificate indicated that Mr. XXXX alleged XXXX 2014 injuries were the same as those of the previous XXXX. All the brief certificate says is that Mr. XXXX condition on each of his alleged hospital admissions (as well as on his third alleged admission in XXXX 2014) was "very poor".17 The injuries were not specified. [33] Mr. XXXX testified that when he was allegedly released by police on XXXX XXXX, 2014, he was in a very bad state and so had to go to hospital.18 The medical certificate states that Mr. XXXX was hospitalized from XXXX XXXX to XXXX XXXX, 2014. He was not asked about that stay or the treatment administered. Asked why he then waited almost five more weeks to leave Delhi, he answered that he had been in bad shape, could not even stand or walk properly, and his blood pressure had been very low.19 (Speaking later about his alleged third hospitalization of XXXX 2014, he added that he has low blood pressure, which I take to mean chronically, and thus has a tendency to feel weak "very soon"20). To compare, the medical certificate states that Mr. XXXX was hospitalized XXXX days in XXXX 2014, and his only testimony about his alleged injuries on that occasion was that he had been in a bad state.21 His BOC does not detail his alleged injuries on either occasion. [34] In my opinion, in these circumstances the evidence did not justify the RPD member's conclusions that Mr. XXXX alleged injuries were the same after the second alleged detention as after the first, nor the consequent deduction that he would have been ready to travel, and should have travelled, after a similar period on both occasions. There was neither personal nor medical evidence to justify either of those findings. [35] So, the evidence about alleged injuries did not justify the RPD member's negative credibility finding about the delay in leaving Delhi for Jalandhar, and the alleged reporting date was also consistent with that delay. [36] That leaves one more concern, though. Why would not Mr. XXXX have left Delhi earlier than a week before his alleged XXXX XXXX, 2014, reporting date, since that would have allowed more time to establish himself with a job and home in Jalandhar so that his family could have a better chance of joining him there before that date, thereby avoiding the risk of further police attacks on the family once he would fail to report? Recall that his explanations for having first gone to Jalandhar without them were that he felt the need to get away from Delhi and expected to summon them once he had established himself in Jalandhar. Recall also that he testified that his primary concern since his family allegedly experienced police persecution in XXXX 2014 had been to protect them. [37] Analyzing this issue is made more difficult by the dearth of detail on Mr. XXXX condition and its endurance after his alleged XXXX 2014 release. The responsibility for that deficiency is shared between the RPD's limited questioning and the very brief and undetailed medical certificate that Mr. XXXX filed. As to the latter, however, I have no lawful justification for holding him responsible on that point for a document allegedly prepared by a third party, nor for what that document does not say. [38] I would add that the matter may well have been resolved had Mr. XXXX requested and filed his 2014 hospital medical records from his alleged admissions, rather than the brief certificate prepared over a year later. Mr. XXXX was not confronted with this question, including its feasibility, nor am I aware of RAD or court jurisprudence commenting on it. In the result, I will not count it against the appellant in this case. [39] Therefore, absent clear evidence that Mr. XXXX was capable of doing so, it would not be correct to conclude that he probably could and should have left Delhi earlier than XXXX XXXX, 2014, and that this damages the credibility of his explanation for the delay in doing so. [40] I therefore find that the RPD erred in finding that this delay damaged Mr. XXXX credibility. Not reporting threatening calls from XXXX XXXX - RPD erred [41] The RPD member found Mr. XXXX "credibility to be damaged in regards to seeing XXXX XXXX [in the park on XXXX XXXX, 2014] and receiving threats [by phone] from the militants [the next day]."22 This finding stemmed from Mr. XXXX testimony that, while he had quickly informed the police after spotting XXXX XXXX, he had not told them about receiving that phone call from a friend of XXXX XXXX threatening him for having done so. [42] The member rejected Mr. XXXX explanation that he had refrained from telling police about the phone threat on the advice of his Municipal Councilor who warned him that otherwise he would be inviting further problems, said he should leave India and put him in touch with an agent to arrange his departure.23 The RPD member noted that, asked to specify the further problems, Mr. XXXX said police would have put an officer, possibly undercover, outside his house to track his movements to see if he would be in contact with XXXX XXXX.24 (Not mentioned by the RPD member was Mr. XXXX preceding answer that he thought telling police about the threat call might have made them "really get after me" and make him unable to flee to Canada or elsewhere.)25 [43] Asked how that would be problematic for him, Mr. XXXX said the police would have summoned him to their station often for questioning. He added that he had been really taken aback by their beatings and persistent line of questions, and he no longer wanted to be involved in that.26 [44] The RPD rejected these explanations, first because police had not harmed Mr. XXXX when he reported spotting XXXX XXXX, and he had not made intelligible why they would have posed a greater danger had they been told of the threatening call. Second, the member found the BOC did not mention any warning from the Municipal Councilor about further harm from the police. Mr. XXXX was not confronted with that alleged omission. [45] Appeal counsel argues that that, given the Municipal Councilor's advice, and Mr. XXXX painful past experiences at the hands of police, it was reasonable not to have told them of the threats.27 Re the alleged BOC omission: Mr. XXXX BOC was signed by an interpreter.28 The English in the narrative pages appears poorer than that in the pre-printed portions, so it is not clear whether the same person wrote both parts. In any event, the narrative states that, after they returned to Mr. XXXX home from the meeting with Inspector XXXX the day after Mr. XXXX reported spotting XXXX XXXX, the Municipal Councilor, "told now I am in more danger because I give information to police for XXXX XXXX. If militants know that you work for police they will kill you, that time I and [sic] afraid from police and from XXXX XXXX links."29 [46] Mr. XXXX only testimony on this conversation was that the councilor "warned me not to involve myself in any new problem", told him to leave and put him in contact with the agent.30 [47] In parts of his answers to the pre-printed questions in the BOC, Mr. XXXX wrote: i. I fear the police because I have given them information about XXXX XXXX;31 ii. The police is persecuting me, and I cannot tell them about XXXX XXXX links because I will be in more problems with the police.32 [48] In his BOC, Mr. XXXX also wrote, immediately after mentioning the alleged threatening phone call: iii. I was afraid from police that if police know about that XXXX XXXX friend call me then police give me problem again and kill me.33 [49] It is apparent that both in his BOC and his testimony, Mr. XXXX consistently claimed, and at no point omitted that, since his above last meeting with the police, he feared them and thought he couldn't safely tell them more to do with XXXX XXXX. He also did not write or testify that the municipal councilor was the source or inspiration for that specific fear or expressly warned against further harm from the police; rather his evidence was that the councilor warned that Mr. XXXX having informed on XXXX XXXX had put him in greater danger, because if the militants knew, they would kill him. This was, according to the evidence, accompanied by a general warning against further involvement. Mr. XXXX consistent evidence was that, after that, he himself feared both the militants and the police. [50] The affidavit from the Municipal Councilor also says that he told Mr. XXXX, ``if he will escape from the police but terrorist will not leave you``34, which emphasizes, at least, the threat from the XXXX XXXX side. [51] Thus there was no material omission here. That part of the RPD member's reasoning was thus incorrect. Re: No disincentive to tell police about the phone threat: Shorn of that alleged omission, the RPD member's negative credibility finding here is reduced to an implausibility conclusion, with all the inherent risks of such findings. Implausibility is nonconformity of testimony with common experience.35 Here, in my opinion, the reasons for the RPD member's finding, that the police, not having harmed Mr. XXXX when he informed them about spotting XXXX XXXX, would not have posed a greater threat to Mr. XXXX had he reported the subsequent threat, and therefore his not having done so was not believable, does not meet that standard. [52] Mr. XXXX evidence was that, by the time he received that alleged telephone threat, he already had turned down cash from the police to be an informer, been warned by a trusted advisor against further involvement and had decided to leave India. His evidence was also that he spoke with an agent three days after that threat, and moved into hiding eight days later to await his Canadian visa and departure from India. [53] Seen in that light, Mr. XXXX decision not to tell the police of the phone threat is not far-fetched. According to his sworn evidence, which I find plausible, the way he saw his situation by that point was that there was little to gain, and possibly much to lose, by doing so, and that it could even block his intention to flee. [54] I conclude that the RPD member erred in making this negative credibility finding. Delay in claiming protection - RPD correct [55] The RPD member found Mr. XXXX credibility further damaged because he arrived in Canada on XXXX XXXX, 2014, but did not claim refugee protection until July 14, 2015.36 [56] Mr. XXXX was admitted to Canada for six months on XXXX XXXX, 2014, on a restricted work permit that allowed him to XXXX XXXX XXXX only for his sponsor, a Sikh society in Toronto.37 [57] Mr. XXXX testified that when he arrived in Canada, he was unaware of the refugee protection process.38 His thinking at that time, he said, was that he should be able to find work here and that eventually his situation back home would improve and then he could return.39 He lost a lot of time, he said, waiting for that improvement. It didn't come to pass, he testified, the police resumed looking for him. He said they initially came to his house in XXXX, XXXX and XXXX 2014.40 [58] As a result, said Mr. XXXX, he became very tense in Toronto, and his six-month legal status in Canada was running out.41 He emphasized that throughout his prior extensive international work travel, he had an impeccable record of complying with his admission conditions and had never overstayed. This seems to be borne out by his passport entries. So, he explained, in XXXX 2014 or XXXX 2015, while still in status, and before he knew about the refugee process, he decided to apply for an extension of his temporary status in Canada.42 He said that his application was approved in XXXX 2015, and that his legal status in Canada was extended to XXXX 2015.43 [59] Meanwhile, Mr. XXXX had been doing sporadic XXXX XXXX in Toronto, both at the temple and elsewhere.44 [60] In XXXX 2015, shortly after he had submitted his immigration extension application, Mr. XXXX said, he befriended a truck driver. After Mr. XXXX explained his situation, he testified, the driver advised him about the whole refugee process. Mr. XXXX stated that this was when he first became aware of it. The driver also told him he should come to Montreal and file his claim here.45 Mr. XXXX moved to Montreal that same month.46 [61] Mr. XXXX filed his refugee claim in mid-July 2015. He was asked why that was six months after he came to Montreal. He said that first he went to meet the people at the Sikh temple here and also arrange a place to live. Then slowly he was advised that he could ask for refugee protection here, he said, and then he did so.47 [62] 'But', asked the RPD member, 'by the time you came to Montreal you already knew you could make a refugee claim, so why did it take till July?' Because, replied Mr. XXXX, he was thinking that he had valid status till XXXX 2015 and he was trying to find a lawyer.48 [63] In a later answer to a similar question, he said that once he had his visa extension, he came to Montreal, looked for and found a lawyer, found a place to live, then claimed refugee protection.49 RPD reasons: The RPD member found Mr. XXXX delay explanation unreasonable, because: i. The police visits to his home in XXXX, XXXX and XXXX 2014 would have made him aware that his circumstances in India were not improving.50 ii. Though he had valid status in Canada till XXXX 2015, he knew that was temporary. Even after speaking to the driver after learning of the police visits, he still took seven months to file his refugee claim.51 iii. This delay was incompatible with that of a person fearing persecution or harm.52 Argument: Appeal counsel argues that Mr. XXXX only found out in XXXX 2015 that he could claim protection, and after that date he was safe in Canada because his visa had not expired. As a result, his explanations were reasonable. In addition, delay cannot be determinative in the assessment of his credibility.53 [64] There is arguably divergent jurisprudence on the significance of delaying to claim protection while in status. In Peti, the Federal Court endorsed the argument that "possession of a visa does not rebut the presumption that a true refugee would claim protection at the first opportunity"54 [65] By contrast, the same court ruled in Gyawali that where a person has left home for fear of persecution but has found, pursuant to a temporary resident visa, a safe place to stay and work, so much so that they did not feel the need to apply for refugee status as they were safe for the time being, but then suddenly finds themselves in peril of returning home through circumstances over which they had no power or influence and immediately filed a claim, then negative inferences may not be drawn from the delay.55 [66] It is difficult to believe that neither the agent in India, whom Mr. XXXX approached for emigration help because he allegedly feared persecution, nor anyone in the Sikh temple or Toronto community between XXXX and XXXX 2014, either were asked by Mr. XXXX, nor volunteered advice on, the existence of or the procedures to claim refugee protection in Canada. That is all the more so, given the large number of such claims that emanate from Indian citizens, and particularly Indian Sikhs. I do not find that assertion credible. [67] Further, unlike the two examples in Gyawali, one of whom had a five-year work permit but suddenly lost his job, while the other had a study permit and had already applied for permanent residency (but suddenly and unexpectedly lost their student funding), Mr. XXXX had no such gainful and quasi-stable situation in Canada to make him just keep calm and carry on. He was doing some sporadic religious work, which is all his permit allowed him to do, and then obtained one six-month extension, with no guarantee that could be repeated. With himself and a family back home to support and safeguard, that would clearly not have been even a medium-term solution. If fear of persecution was the basis for his predicament, he would have felt a pressing urge to find out what he needed to do to seek long-term protection and get on with it. [68] Thirdly, Mr. XXXX`s testimony that, after moving to Montreal in XXXX 2015, he slowly was advised by people he met at the temple in this city that he could ask for refugee protection here, is markedly inconsistent with his evidence that the truck driver had already explained the whole thing to him before he left Toronto. It also would have taken only a short time for the people in Montreal to repeat this to him. [69] In addition, though a subsidiary point, it is hard to follow Mr. XXXX`s explanation that when he first came to Canada, he planned to wait to see if his situation would improve. Since he had not missed any further reporting date, the police not having imposed one on him, and the police had not come to his house nor otherwise tried to bother him between his XXXX 2014 release and his XXXX XXXX, 2014, departure, it is not at all clear how he thought he would have ascertained such an improvement. [70] For these reasons, I find the RPD member was correct to find Mr. XXXX`s delay explanation unreasonable. That said, however, this was not such an egregious case that the delay would be determinative in itself. In addition, other things being equal, a delay while in status is less damaging than one of similar duration while without status. I thus find the damage to Mr. XXXX`s credibility because of his delay to be only moderate. Overall assessment of RPD credibility findings - RPD incorrect [71] This completes my assessment of the RPD credibility findings. In the result, I have upheld only two, both relating to delay in fleeing internally or seeking protection. Neither was, in my opinion, devastating or more than moderately damaging to Mr. XXXX`s overall credibility. Taken as a whole, I find that the RPD was incorrect to reject Mr. XXXX`s allegations of his past experiences in India based on credibility. [72] There are a number of other matters in Mr. XXXX`s evidence that might have merited questioning at the hearing, which did not happen, or borne closer scrutiny and inclusion in the reasons by the RPD after such questioning, e.g. why Mr. XXXX hadn`t returned from China or called the Delhi police before his original report date, what he did or didn`t tell the police about XXXX XXXX during his detentions (to help analyze his continuing value or lack of same to them), and certain apparent omissions from his BOC with which he was not confronted at the hearing (e.g. his testimony that police found where he was in Jalandhar by forcing his father to reveal that). This is, however, the fourth consideration of Mr. XXXX`s claim by an IRB division. In my opinion, the need for finality outweighs the pursuit of perfection here, and returning this claim for a third RPD hearing would not be justified. Prospective harm [73] The RPD member acknowledged that, were Mr. XXXX`s alleged past experiences credible, the Delhi police may have had some ongoing interest in him.56 He noted, however, that while they had allegedly arrested him three times, they had released him on each occasion, albeit twice with bribes, and had returned his passport after he reported to them seeing XXXX XXXX, even though he had earlier tried to flee to and hide in Punjab. He found that the Delhi police would then have reasonably been aware that Mr. XXXX could again flee their jurisdiction, from which he inferred that they would probably not be willing to seek him from another part of India away from Delhi.57 [74] Despite the return of his passport, I find, on the balance of probability, that there is more than a mere possibility that the Delhi police would persecute Mr. XXXX were he to return to India. First, I have found credible that they have done so on several occasions in the past. This creates a presumption that they would continue to do so. Second, those past experiences include having been arrested at the airport upon his return from abroad and again when he tried an internal flight alternative in Punjab. Third, Mr. XXXX appears to have earned a good part of his family`s living by XXXX XXXX XXXX XXXX XXXX abroad. The Delhi police knew that, and their return of his passport was consistent with their having tried to cultivate his favour as an informer; but leaving India without having supplied any information, without notice and by now for a very extended period, could plausibly have reignited their enmity. Finally, Mr. XXXX`s claim that the Delhi police have in fact continually come to his home looking for him is corroborated by the affidavit of the Municipal Councilor, who was personally involved in interceding in his problems and advising him on them, and thus would be in a position to know about his situation. (The RPD member made no negative credibility finding on that specific part of the evidence.58) Internal Flight Alternative - RPD incorrect [75] The RPD member found that Mr. XXXX would have a safe and reasonable IFA in Mumbai or Bangalore. In addition to his above finding about the Delhi police`s awareness that he might try to flee their city, the member based this finding on an analysis of the documentary information regarding police interstate searches as well as the tenant registration systems in the proposed IFAs. He concluded that it was unlikely that the Delhi police would be willing to seek Mr. XXXX from another state, nor is it likely that such other state would be willing 59to cooperate with them. [76] Appeal counsel argues that the tenant verification system and its attendant police background checks are well established by the documentary evidence,60 and are generally if not universally applied to prospective tenants.61 The evidence, he submits, also demonstrates that there is communication, formal and informal, among different state police forces, including about persons of interest who are not high profile.62 [77] Appeal counsel also submits that Mr. XXXX`s past persecution demonstrates that he was and is a person of interest to the police, even if he is not an extreme case. In my opinion, that is key to this case. There are numerous RPD and RAD decisions finding that the interstate police communications and tenant background check systems do not establish a reasonable chance that a claimant will be found and arrested in and returned from a proposed IFA to his home region. Given that Mr. XXXX was arrested by Delhi police at the Delhi international airport upon his return to India, and at their behest when he sought shelter in another state, it is plausible that they may do either again were he now to return. [78] I would add that I am finding only that there is a reasonable chance of this happening, not a probability. Under IRPA section 96, which is where Mr. XXXX`s claim falls to be analyzed due to the aspect of his perceived political opinion, that is sufficient. The RPD member`s requirement that he establish a likelihood of this occurring63 was thus incorrect. DETERMINATION [79] 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 appellant XXXX XXXX is a Convention refugee. (signed) Max Wolpert Max Wolpert April 25, 2019 Date MW/bq 1 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. 2 Audio recording 0:26 to 0:31. 3 RPD reasons, paragraph 21. 4 RPD reasons, paragraph 22. 5 RPD reasons, paragraph 23. 6 Appellant's memorandum, page 19, paragraph 23. 7 Appellant's memorandum, page 20, paragraph 26. 8 Audio recording 0:31 to 0:34. 9 Audio recording 0:45 to 0:47. 10 RPD reasons, paragraphs 25 and 26. 11 Appellant's memorandum, pages 19 to 20, paragraphs 22 to 23 and 26 to 27. 12 RPD reasons, paragraph 26. 13 Audio recording 0:35 to 0:40. 14 RPD reasons, paragraph 27. 15 RPD reasons, paragraph 28. 16 Appellant's memorandum, page 20, paragraphs 28 and 29. 17 RPD record, page 427. 18 Audio recording 0:40. 19 Audio recording 0:44. 20 Audio recording 0:42. 21 Audio recording 0:23 to 0:24. 22 RPD reasons, paragraphs 29 to 32. 23 Audio recording 1:11 and 1:16. 24 RPD reasons, paragraph 31; Audio recording 1:13 to 1:14. 25 Audio recording 1:12. 26 Audio recording 1:14 to 1:15. 27 Appellant's memorandum, page 20, paragraphs 30 to 32. 28 RPD record, page 30. 29 RPD record, page 25. 30 Audio recording 1:11. 31 RPD record, page 20, question 2(b), line 1. 32 RPD record, page 20, question 2(c). 33 RPD record, page 25, 3rd full paragraph. 34 RPD record, page 445. 35 Magonza v. MCI, 2019 FC 14, paragraph 19. 36 RPD reasons, paragraphs 33 to 37. 37 RPD record, pages 146, 172 and 396. 38 Audio recording 1:28. 39 Audio recording 1:22 and 1:26; He was not asked to explain how he would have known that his situation had improved. 40 Audio recording 1:23 to 1:24. 41 Audio recording 1:24 to 1:27. 42 Audio recording 1:45 to 1:46 and 1:47 to 1:48. 43 Audio recording 1:33 to 1:34 and 1:47 to 1:48; RPD record, page 133, question 12. 44 Audio recording 1:31. 45 Audio recording 1:24 to 1:28 and 1:47. 46 RPD record, page 133, question 12. 47 Audio recording 1:32. 48 Audio recording 1:33 to 1:34. 49 Audio recording 1:47 to 1:48. 50 RPD reasons, paragraph 35. 51 RPD reasons, paragraph 36; Although Mr. XXXX did not specify the exact dates of the several events of XXXX 2015, my understanding of the evidence is that the claim was probably filed about six months after Mr. XXXX spoke to the driver. 52 RPD reasons, paragraph 37. 53 Appellant's memorandum, page 21, paragraphs 34 and 35. 54 Peti v. Canada (Citizenship and Immigration), 2012 FC 82 (CanLII), paragraph 42. 55 Gyawali v. Canada (Minister of citizenship and immigration), 2003 FC 1122 (CanLII), paragraphs 16 to 18. 56 RPD reasons, paragraph 61. 57 RPD reasons, paragraph 58. 58 RPD reasons, paragraph 59. 59 RPD reasons, paragraphs 40 to 61. 60 Appellant's record, page 22, paragraph 45. 61 Appellant's record, pages 23 to 24, paragraphs 52 to 58. 62 Appellant's memorandum, pages 22 to 23, paragraphs 46 to 50. 63 RPD reasons, paragraph 61. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-16643 RAD.25.02 (September 18, 2018) Disponible en français 21 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 (September 18, 2018) Disponible en français