VC0-02445

RAD File / Dossier de la SAR : VC0-02445 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 Vancouver, BC Appel instruit / entendu à Date of decision April 29, 2021 Date de la décision Panel Nicole Ginsberg Tribunal Counsel for the person who is the subject of the appeal Harpreetinder Singh Phoolka 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] I allow the appeal of XXXX XXXX (the Appellant), a citizen of India. [2] The following is a summary of the allegations contained in the Appellant's Basis of Claim (BOC) form.1 The Appellant is a 34 year old man originally from Jalandhar, Punjab province. The Appellant alleges that in late 2016, when he was living in Jalandhar with his family, some men came to his home looking for a family friend name XXXX XXXX, who had visited them several days before. The men abducted the Appellant, beat him, and demanded that he produce a package and a sum of money that they allege was left at the Appellant's home. They identified themselves as members of the Lashkar-e-Taiba (LET) militant group. [3] The Appellant escaped his captors when his door was left unlocked. The Appellant went to stay with his cousin in Jalandhar, but was intercepted on the way by two men who he understood to be police officers, who abducted him at gunpoint and had taken him to an unknown location. The men beat him and demanded the package and the money. They told him the package contained heroin and that XXXX XXXX was a member of LET. The Appellant escaped his captors during the night, when one of them had gotten drunk. After walking a few yards, he found himself at a railway station in Amritsar, and boarded a train to Delhi. [4] In Delhi, the Appellant stayed with his friend XXXX, who had the Appellant's passport in his possession because they had been planning a trip to Singapore together and XXXX had been making the arrangements. In Delhi, after two months, the Appellant was working as XXXX XXXX XXXX in the Nizamuddin area when he was found by one of his previous kidnappers from LET. The Appellant was taken to a nearby house and interrogated about the package and the money. The Appellant escaped captivity when there was a police raid of the house next door and the sirens frightened his captors away. [5] The Appellant then went to Pune, where his uncle lives. Some time after settling in Pune, the same policemen who abducted the Appellant in Punjab found the Appellant in Pune and abducted him again. The van in which he was taken was involved in a road accident, and the Appellant was able to escape. From there, the Appellant went to Surat to stay with his cousin while he got in touch with an agent to help him facilitate his travel to Canada. The Appellant left India for Canada on XXXX XXXX XXXX 2018 and made his claim for refugee protection thereafter. [6] The Refugee Protection Division (RPD) dismissed the Appellant's claim in a decision dated April 2, 2020. The RPD found the events alleged by the Appellant not to be credible because it found his allegations to be implausible.2 Specifically, the RPD found the claimant's allegations to be implausible because they were outside the realm of what could reasonably be expected.3 The RPD found that, considered individually, each of the central events alleged by the Appellant would be improbable but possible.4 However, the RPD found it implausible that all of the events occurred as described by the Appellant. The RPD found that it was their cumulative implausibility which caused it to doubt the Appellant's allegations.5 The RPD found no major omissions, inconsistencies or other irregularities with the evidence. The RPD found that the Appellant's allegation that he was discovered in Delhi was implausible due to the large population in Delhi, which the RPD found made the chances of being found by his alleged agents of persecution or harm "extremely low" in the circumstances alleged.6 The RPD further found the Appellant's documentary evidence to not be adequate to establish his credibility or to address any of its plausibility concerns. [7] The Appellant argues on appeal that the RPD erred in its implausibility findings, including its implausibility finding concerning the Delhi incident, that the RPD erred in its interpretation of country conditions, and the RPD erred by requiring corroborating documentation. The Appellant submits new evidence on appeal and requests an oral hearing. [8] I find that the RPD erred in its credibility analysis and I find its implausibility findings can not stand. This is determinative of the appeal. However, credibility issues remain outstanding on the evidence presented to the RPD regarding all of the central allegations of the Appellant's claim for protection, which were not tested by the RPD. Therefore, I am unable to confirm the RPD's decision or find that the Appellant is a Convention7 refugee or a person in need of protection. DECISION [9] The appeal is allowed. I send this matter back to the RPD to be redetermined. NEW EVIDENCE [10] The Appellant has submitted new evidence on appeal, in the form of two news articles,8 which I have reviewed. I find I do not have to determine whether these documents meet the requirements to be admitted as new evidence as I have decided this matter is to be referred back to the RPD, and as I do not find that these documents change the outcome of my decision. The Appellant can submit this evidence to the RPD when the case is reheard. For that reason, also, I am not convening an oral hearing. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [11] My role is to look at all of the evidence and decide if the RPD made the correct decision.9 In this case, I am reviewing the RPD Decision on a standard of correctness, as I do not find that the RPD had a meaningful advantage in assessing the credibility of oral evidence, and I do not see any reason to depart from this standard in this case. ANALYSIS The Appellant's Arguments [12] The Appellant's arguments on appeal are brief and amount to the following: 1) the RPD erred in its implausibility findings including the implausibility finding concerning the Delhi incident; 2) the RPD erred in its interpretation of country conditions; and 3) the RPD erred in requiring corroborating documentation.10 [13] Having reviewed the record, I agree with the Appellant that the RPD's decision cannot stand. I make this determination on the basis of significant deficiencies in the RPD's decision that warrant a redetermination of the Appellant's claim. The RAD's Assessment The RPD's implausibility findings cannot stand [14] In this case, the RPD arrived at its "cumulative implausibility"11 finding by reference to what amounts to a collection of vague plausibility findings. In assessing the Appellant's evidence, the RPD refers to a series of "coincidences"12 alleged by the Appellant, each of which it determines to be "improbable."13 In this case, the RPD lists the offending allegations14 but offers no substantive analysis or explanation as to how or why it finds them to be improbable or implausible. For instance, the RPD's findings are made without identifying any contradictions, inconsistencies, omissions, or other irregularities in the evidence that would effectively rebut the presumption of truthfulness on the part of the Appellant. In fact, the RPD explicitly states in its decision that "there were no major omissions, inconsistencies or contradictions within the claimant's testimony,"15 but does not otherwise indicate on what basis the Panel has found the allegations to be improbable or not credible. [15] In addition to the aforementioned findings, the RPD made a specific implausibility finding with respect to one of the Appellant's key allegations: the discovery of the Appellant by LET militants in Delhi. The RPD found that considering the objective documentary evidence concerning the exceedingly large size of Delhi and its distance from Jalandhar, the chances of the Appellant being identified on the street by the alleged agents would be "extremely low."16 If it is the case that the alleged agents are sufficiently motivated, it may be that the prospect of finding the Appellant in Delhi is not implausible, despite the objective documentary evidence as to Delhi's large population. However, I am unable to assess this in the absence of both the credibility analysis discussed above and testimony elicited concerning the implausibility finding about the Delhi incident. [16] After finding certain key allegations to be "possible" yet "improbable," the RPD found that it was implausible that all of the events occurred, and as such, their cumulative implausibility caused the RPD to doubt that the claimant faces a risk at the hands of the actors alleged.17 The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.18 That is, the RPD does not necessarily have to accept a witness's testimony simply because it was not contradicted at the hearing. However, the Federal Court in Barekzai recently reaffirmed that plausibility findings must be supported by the evidence before the panel, including country condition evidence, rationality or common sense, and should only be made in the clearest of cases.19 The Court has further stressed that it is not sufficient to indicate that a claimant's story is implausible without explaining further the reasoning behind that finding.20 There must be a basis in the evidence to support the inferences on which the finding is based.21 The jurisprudence is also clear that the panel should articulate why the testimony that is being rejected is clearly out of line with what could be reasonably expected in the circumstances.22 [17] The Federal Court in Al Dya affirmed that it is available for a panel to make a finding based on a cumulative assessment of implausibility.23 Nonetheless, the panel must articulate in their reasons why they had credibility concerns with the particular allegations. In Al Dya, the panel had found the claimant's account to be implausible based on country condition evidence and the details of his particular factual allegations.24 The Court in that case upheld the cumulative credibility finding. [18] In the Appellant's case, however, unlike Al Dya, aside from taking note of the objective documentary evidence on file regarding the large population of Delhi, the Panel expresses that the alleged events are "improbable"25 without articulating why the Panel finds this to be the case. Articulating its reasons would involve explaining why the panel made such a finding, such as that it flew in the face of common sense, rationality, country condition evidence, or other evidence in the case. In the absence of such analysis in the Appellant's case, it cannot be determined that the "clearest of cases"26 threshold is met. It is insufficient for the panel to indicate that it has "doubts"27 about each event alleged and find, because of the volume of doubt accrued by the panel that, cumulatively, the Appellant is to be disbelieved. In the Appellant's case, where the RPD's only reasons for doubting the Appellant's allegations are because the panel finds each of them "improbable,"28 I do not find that this is a sufficient explanation to permit the Appellant to know the case he has to make. For these reasons, I find that all of the RPD's implausibility findings can not stand. Documentary Evidence [19] The RPD found that the affidavits submitted in support of the Appellant's allegations were not adequate to establish his credibility.29 In addition, the RPD found that the news articles submitted by the Appellant did not address any of its plausibility concerns.30 The Appellant argues that documentary evidence cannot be reasonably expected to be produced in this case because the arrests and apprehensions by the police and the LET were illegal, and otherwise he has provided affidavits from family members and others involved in the events.31 [20] The Appellant's argument on appeal is misplaced, as the RPD did not draw a negative credibility inference based on the Appellant's failure to bring corroborative documentary evidence; instead, the RPD found that the documentary evidence that was provided was inadequate or insufficient to outweigh its credibility concerns. Nonetheless, I find that the RPD erred in its treatment of the documentary evidence, as it has effectively dismissed the evidence without meaningfully engaging with it. An administrative decision maker is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown,32 and while the RPD is not required to address all of the evidence, where there is relevant evidence to the issue before it, the RPD cannot simply ignore it or fail to meaningfully engage with any of it. [21] In this case, the RPD lists the Appellant's documentary evidence without providing any substantive analysis or reasons for dismissing it in its entirety. The RPD does not identify any particular problems or deficiencies with the documentary evidence, and it has not explained on what basis it finds the documentary evidence to be unsatisfactory or inadequate in addressing or overcoming the credibility or plausibility concerns it has identified. Moreover, I do not find that the RPD elicited sufficient testimony that would allow me to assess the Appellant's supporting documents. Insufficient evidence on record [22] In not questioning or confronting the Appellant on any of the deficiencies in the evidence that led to its negative credibility findings or its ultimate implausibility finding, I do not find that the RPD elicited sufficient testimony that would allow me to assess the evidence relating to the Appellant's credibility or the cumulative or individual plausibility of the allegations. Having reviewed the transcript and heard the audio recording, I find it to be likely that the Appellant would have left the hearing room with little to no inkling as to what the concerns of the RPD were as regards his testimony and evidence. Considering all of the foregoing, I find the record to be insufficient to allow me to uphold the RPD's decision or to substitute a positive decision in the Appellant's favour. CONCLUSION [23] The appeal is allowed. I send this matter back to the RPD to be redetermined by a differently constituted panel. Nicole Ginsberg Nicole Ginsberg April 29, 2021 Date 1 Exhibit RPD-1, RPD Record, Basis of Claim form, at pp. 21-29. 2 Exhibit RPD-1, RPD Record, RPD Decision, at para. 20. 3 Exhibit RPD-1, RPD Record, RPD Decision, at para. 21. 4 Exhibit RPD-1, RPD Record, RPD Decision, at para. 23. 5 Exhibit RPD-1, RPD Record, RPD Decision, at para. 24. 6 Exhibit RPD-1, RPD Record, RPD Reasons, at para. 26. 7 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 8 Exhibit P-2, Appellant's Record, New Evidence, at pp.14-24. 9 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 10 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 7. 11 Exhibit RPD-1, RPD Record, RPD Decision, at p. 8. 12 Exhibit RPD-1, RPD Record, RPD Decision, at para. 22. 13 Exhibit RPD-1, RPD Record, RPD Decision, at para. 23. 14 Exhibit RPD-1, RPD Record, RPD Decision, at para. 22. 15 Exhibit RPD-1, RPD Record, RPD Decision, at para. 25. 16 Exhibit RPD-1, RPD Record, RPD Decision, at para. 26. 17 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 23 and 24. 18 Alizadeh, Satar v.M.E.I. (F.C.A., no. A-26-90), Stone, Desjardins, Dcary, January 11, 1993. 19 Barekzai v. (Citizenship and Immigration), 2021 FC 199, at paras. 27-38. 20 Arumugam, Kandasamy v.M.E.I. (F.C.T.D., no. IMM-1406-93), Reed, January 20, 1994. 21 Miral, Stefnie Dinisha v.M.C.I. (F.C.T.D., no. IMM-3392-97), Muldoon, February 12, 1999. 22 Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C. C.A.), at 357, per O'Halloran J.A. 23 Al Dya, Ali v. M.C.I. (F.C. no. IMM-4025-19), McHaffie, September 17, 2020; 2020 FC 901. 24 Al Dya, at para. 51. 25 Exhibit RPD-1, RPD Record, RPD Decision, at p. 8. 26 Exhibit RPD-1, RPD Record, RPD Decision, at para. 21. 27 Exhibit RPD-1, RPD Record, RPD Decision, at para. 27. 28 Exhibit RPD-1, RPD Record, RPD Decision, at p. 8. 29 Exhibit RPD-1, RPD Record, RPD Decision, at para. 27. 30 Exhibit RPD-1, RPD Record, RPD Decision, at para. 29. 31 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p.7. 32 Florea v. Canada (Minister of Employment and Immigration), 2005 FC 1472. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC0-02445 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français