MB9-10213

RAD File No. / No de dossier de la SAR : MB9-10213 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision August 28, 2020 Date de la décision Panel Marie-Lyne Thibault Tribunal Counsel for the person who is the subject of the appeal Me Marie-José Blain Conseil de la personne 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 (the appellant) is a citizen of India. [2] Should he return to India, he fears for his life at the hands of the Indian police who suspects his brother, XXXX XXXX, of having ties to Sikh militants. [3] He is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim on the ground that he was not credible. He maintains that the RPD erred in its assessment of his credibility. [4] For the reasons set out below, the Refugee Appeal Division (RAD) concludes that the RPD's decision is correct. The appellant's credibility was undermined with respect to central elements of his refugee protection claim. [5] The appeal is dismissed. ANALYSIS [6] The RAD conducted an independent analysis of the evidence, including listening to the recording of the hearing held by the RPD, and applied the correctness standard of review.1 [7] The appellant maintains that the RPD erred in assessing his testimony. He maintains that the RPD did not have serious reasons to doubt his sworn testimony. He maintains that the RPD did not carefully assess his written account, analyzed his written account in a surgical fashion, and identified every deficiency systematically and capriciously. [8] For the reasons set out below, the RAD concludes that the RPD did not err in relying on a contradiction, on implausibilities, on omissions and on a behaviour that was inconsistent with a risk to his life to make an adverse credibility finding. The RAD disagrees with the appellant's arguments that the RPD did not assess his written account with caution and analyzed his written account in a surgical fashion by identifying every deficiency systematically and capriciously. In the RAD's opinion, the RPD, in its reasons, correctly explained why it drew negative inferences. [9] As a result, although the RAD requested the appellant to provide arguments related to an internal flight alternative (IFA) via a notice,2, the RAD will not address the appellant's arguments3 that there is no viable IFA for him in India. The RPD did not err in relying on a contradiction, on implausibilities and on omissions in the Basis of Claim Form [10] The RAD concludes that the RPD did not err in making a credibility finding, because of a contradiction regarding the conditions that had been imposed on XXXX XXXX, omissions in the Basis of Claim Form (BOC Form)4 regarding the conditions imposed on XXXX XXXX and his brother, and an implausibility, namely that the police had released his brother XXXX and XXXX XXXX, although they had been allegedly suspected of working with militants. [11] The appellant submits that the RPD's analysis is circular and it placed undue emphasis on events that are not central to his written account. He adds that he provided a detailed account and the RPD should have considered the fact that he is not very educated. He also submits that it is possible that he was unable to provide further details about events experienced by third parties. [12] The RAD disagrees with the appellant's arguments. XXXX XXXX is central to his account. His brother XXXX is also central to his account. The appellant's problems with the Punjab police stem from his connection to those two individuals. The police became interested in the appellant after the disappearance of his brother XXXX, who had been arrested and held three times. XXXX XXXX and the appellant were arrested together at the appellant's home and accused of having ties to militants. They were both released two days later. The appellant testified that he considered claiming refugee protection in Canada when he learned of XXXX XXXX death, who had been allegedly killed by the police.5 The interactions of his brother XXXX and XXXX XXXX with the police are therefore central to the appellant's account. [13] In addition, the issue here is not the appellant's inability to provide details about events experienced by third parties, since he was able to testify at the hearing about the conditions imposed on his brother XXXX and on XXXX XXXX. [14] As noted by the RPD, the appellant's account raises implausibilities. The documentary evidence shows that India takes the terrorist threat very seriously. Under the National Security Act, the police may detain an individual suspected of terrorist activities without charge for as long as one year.6 In this context, it is unlikely that the police would have released the appellant's brother three times and later on, XXXX XXXX, if they had been actually been perceived as militants. In such circumstances, the reasons why the police allegedly released them even though were suspected of being militants, are significant. The RAD would have expected the appellant to mention those reasons in his BOC Form. [15] When asked why his brother XXXX had been released three times although he had been suspected of having ties to militants, the appellant stated that the police wanted him to reveal where the militants were hiding.7 When asked to explain why he did not mention this in his BOC Form, the appellant stated that it was probably an oversight due to stress.8 This explanation is not satisfactory. The RAD accepts that refugee claimants can feel stressed when they are completing their BOC Forms, and the fact that he is not very educated may have had an impact on how he completed his BOC Form. However, the applicant provided a very detailed BOC Form. On the other hand, the appellant had the opportunity to add to his BOC Form at the beginning of the hearing,9 and he was represented by an experienced counsel. Yet, he confirmed that his BOC Form was true, complete, and correct. [16] With regard to the circumstances surrounding the release of the appellant and XXXX XXXX, the appellant stated in his BOC Form10 that the police imposed upon him the condition of collaborating with it, and told XXXX XXXX not to come back to the region. It was not until he was confronted with the implausibility, namely that the police would likely not have released XXXX XXXX with such a condition if he was suspected of working with the militants, as it was alleged in his BOC Form, that the appellant stated that the police had released them because it wanted to have information about the militants.11 When confronted with the contradiction between his testimony and his BOC Form about the condition imposed upon XXXX XXXX, the appellant again adjusted his testimony by stating that the police also told XXXX XXXX that if the police needed information, it could arrest him again.12 The RAD draws a negative inference from the adjustment to his testimony. When asked to explain why he had not written about this in his BOC Form, the appellant answered that it was because his BOC Form had been written in English.13 As mentioned earlier, the appellant had the opportunity to make changes and amendments to his BOC Form at the beginning of the hearing. He was represented by an experienced counsel. The fact that the BOC Form had been translated from Punjabi to English,14 while the hearing was held in Punjabi translated to French, does not explain this omission. Considering the appellant's allegation that the police arrested him because he was at his home, the RAD is of the opinon that the circumstances surrounding XXXX XXXX release are significant,. [17] In the absence of a satisfactory explanation, the RAD draws a negative inference from the contradiction raised about the conditions imposed on XXXX XXXX, as well as the implausibilities and omissions in the BOC Form. The RAD finds that the appellant's credibility was undermined with respect to his arrest by the police. [18] In addition, as detailed below, another contradiction also undermines the credibility of the appellant's written account. The RPD did not err in relying on another contradiction [19] The RAD concludes that the RPD did not err in relying on a contradiction between the appellant's testimony and his BOC Form about whether XXXX XXXX was treated by the same doctor, to draw a negative credibility inference. [20] The appellant maintains that the RPD erred in making such a finding. He maintains that the RPD noted each deficiency without analyzing all of his testimony. He adds that the RPD erred in rejecting his explanation that this was an error made by the interpreter who had translated his BOC Form, and that this error is far from being essential to the basis of his refugee protection claim. He maintains that he had no reason to lie by stating that XXXX XXXX sought treatment with him. [21] The RAD agrees with the appellant that the contradiction noted by the RPD, namely that XXXX XXXX allegedly returned to his village15 instead of seeking treatment with the appellant,16 is not an essential element. However, in the RAD's opinion, the circumstances surrounding the release of the appellant and XXXX XXXX are nevertheless relevant. In addition, the issue is not whether the appellant had a reason to lie about the medical care that had been provided to XXXX XXXX. Instead, the issue is whether the account that the appellant submitted during the hearing before the RPD is the same as the one he presented in his BOC Form. Consequently, the RPD could consider the contradiction between the appellant's BOC Form and his testimony regarding whether or not XXXX XXXX received treatment with him. Even if the RAD accepts that the interpreter made an error, this does not explain why the appellant failed to amend his BOC Form at the beginning of the hearing, when he had the opportunity to do so. Consequently, the RPD finds that the contradiction noted by the RPD regarding whether XXXX XXXX received treatment with the appellant or did not, further undermines the appellant's credibility as regards his account about his arrest by the police. [22] The appellant also maintains that the RPD erred in making a negative credibility finding owing to his delay in claiming refugee protection. The RPD did not err in relying on the appellant's delay in claiming refugee protection [23] The RAD concludes that the RPD did not err in relying on the delay of approximately one year which included five months without status before the appellant claimed refugee protection in Canada, to make a negative credibility finding. [24] The appellant maintains that, according to the case law, the delay in claiming refugee protection is not a determinative factor. He also maintains that the RPD erred in rejecting his explanations that first considered claiming refugee protection and believed he needed his passport to make the claim only after he had learned about XXXX XXXX death, towards the end of XXXX 2018,. [25] Although the delay in claiming refugee protection is not a determinative factor, it is nevertheless a relevant one. After reading the RPD's reasons, the RAD concludes that the RPD did not treat this factor as determinative, but rather as relevant. In addition, the RAD is of the opinion that the appellant's explanations are inconsistent with the information in his BOC Form. According to his BOC Form,17 after he was released by the police, he left his home and took refuge with family members in Chandigarh, then he used the services of a facilitator who sheltered him and helped him leave India. According to his BOC Form, he indicated that he waited impatiently for the facilitator to organize his family's exit from India because it was also harassed by the police. However, this is not the behaviour of an individual who was planning a return to India, as alleged by the appellant. In addition, the appellant had been purportedly tortured by the police. In such circumstances, the RAD would have expected him not to delay claiming refugee protection upon his arrival to Canada or, at least, to take steps to investigate the procedure to follow before his visitor status expired. In light of the foregoing, the RAD concludes that the appellant's delay in claiming refugee protection in Canada undermined the credibility of his account. [26] In light of all of the above, the RAD finds that the appellant's credibility is undermined with respect to his account. [27] The appellant also maintains that the RPD erred in not giving any value to the documents submitted as evidence. The RPD did not err in not giving any probative value to the documents submitted by the appellant [28] The RPD concludes that the RPD did not err in not giving any probative value to the affidavit of the headman of the village,18 the medical certificate,19 and the death certificate.20 [29] The appellant maintains that the problems raised by the RPD were not sufficient to cast doubt on his credibility. Consequently, the RPD should have appreciated those documents on their merits. This would have bolstered the appellant's credibility. [30] The RAD took into consideration the evidence submitted by the appellant. [31] The RAD notes that the affidavit of the headman of the village21 repeats part of the allegations in the BOC Form. Considering that the appellant's credibility was undermined with respect to his written account, the RAD concludes that this document is not sufficient to render his allegations credible. [32] The medical certificate22 refers to the fact that the patient told the doctor that his injuries were caused by the hands of the police. However, the appellant's credibility was undermined with respect to the story of his arrest, and the medical certificate does not establish the circumstances in which the injuries were caused. Consequently, the RAD concludes that this document is not sufficient to render his allegations about the arrests and his abuse by the police credible. [33] XXXX XXXX death certificate23 does not mention the circumstances in which he died. Consequently, the RAD concludes that this document is not sufficient to render the appellant's allegations credible that XXXX XXXX was killed by the police. [34] In light of the above, the RAD concludes that the RPD's decision is correct. The appellant did not establish a serious possibility of persecution on a Convention ground, and he did not demonstrate, on a balance of probabilities that, should he return to India, he would be personally exposed to a danger of torture, a risk to his life, or a risk of cruel and unusual treatment and punishment pursuant to subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [35] The RAD dismisses the appeal and confirms the RPD's determination that XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) Marie-Lyne Thibault Marie-Lyne Thibault August 28, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 SAR-1, Notice of new issue. 3 Exhibit P-3, additional submissions. 4 SPR-1, Refugee Protection Division (RPD) record, Basis of Claim Form (BOC Form), at pp. 30-41. 5 Ibid, BOC Form, at p. 41; Recording of the hearing held by the RPD on March 8, 2019, at approximately 01:20:30. 6 SPR-1, RPD record, National Documentation Package on India (December 4, 2018), Tab 9.9: Extrajudicial detention, including instances of torture by authorities; state response and recourse available to victims; documents issued to persons detained or interrogated by police (2016-April 2018). Immigration and Refugee Board of Canada. May 24, 2019. IND106099.E., at pp. 1-5. 7 Recording of the hearing held by the RPD on March 8, 2019, at approximately 00:33:00. 8 Ibid, at approximately 00:36:15 9 Ibid, at approximately 00:03:15. 10 Supra, endnote 4, BOC Form, at p. 41. 11 Recording of the hearing held by the RPD on March 8, 2019, at approximately 00:46:40. 12 Ibid, at approximately 00:49:30. 13 Ibid, at approximately 00:50:30. 14 Supra, endnote 4, BOC Form, at p. 39. 15 Recording of the hearing held by the RPD on March 8, 2019, at approximately 00:51:15. 16 Supra, endnote 4, BOC Form, at p. 41. 17 Supra, endnote 4, BOC Form, at p. 41. 18 SPR-1, RPD record, Exhibit R-3, affidavit from XXXX XXXX, at pp. 190-191. 19 SPR-1, RPD record, Exhibit R-4, medical certificate, at pp. 192-193. 20 SPR-1, RPD record, Exhibit R-5, death certificate, at pp. 194-195. 21 Supra, endnote 18, affidavit. 22 Supra, endnote 19, medical certificate. 23 Supra, endnote 20, death certificate. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-10213 RAD.25.02 January 2020) Disponible en français 8 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