MC0-06421

RAD File / Dossier de la SAR : MC0-06421 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 Montreal, QC Appel instruit / entendu à Date of decision April 19, 2021 Date de la décision Panel Ayanna Roberts Tribunal Counsel for the person who is the subject of the appeal Tyler Goettl 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 this appeal. XXXX XXXX (Appellant) is a citizen of India. a. The Appellant fears that he will be harmed or killed by his paternal cousin due to an ongoing dispute originally related to family land. He states that his cousin is well-connected to both Naxalite/Maoist terrorists and local politicians. The Appellant left India for work in Saudi Arabia in 2006 and moved his family to Ranchi, Jharkand in 2008, in an attempt to distance them from the dispute. The Appellant returned to India in XXXX 2017 after having lost his Saudi Arabian job and residency. The Appellant and his family confronted their cousin in XXXX 2018 in an attempt to reclaim their land. The Appellant's brother was harmed and died on XXXX XXXX, 2018. Fearing harm, the Appellant left India and arrived in Canada on XXXX XXXX, 2018 and requested protection on April 11, 2019. b. The RPD rejected the credibility of the Appellant's claims based upon several key omissions from his Basis of Claim (BOC) form and narrative. The Appellant argues that the RPD should have accepted that his explanations for the omissions were reasonable given that he was self-represented before the RPD and unfamiliar with the expectations and requirements associated with the BOC. c. The determinative issue for the Refugee Appeal Division (RAD) is the credibility of the basis of the claim. d. The RPD erred by focusing its credibility assessment only on the omissions rather than evaluating all of the evidence before it, including personal documentary evidence. Following an independent analysis, I find that the Appellant is credible about being engaged in a land dispute with his cousin. However, the Appellant has not established that he faces a prospective risk of harm related to the death of his brother within that dispute, that he cannot access adequate state protection, and that he does not have a viable Internal Flight Alternative (IFA). These questions were not adequately explored during the RPD hearing or in its decision. For this reason, the matter is returned to the RPD. DECISION [2] The appeal is allowed. I send this matter back to the RPD to be redetermined. ANALYSIS [3] My role is to look at all the evidence and decide if the RPD made the correct decision.1 Credibility [4] After listening to the hearing and considering all of the evidence before me, I find that the Appellant has credibly established parts of the basis of his claim. [5] The RPD did not err by considering the Appellant's BOC omissions in its credibility assessment. But the RPD did err by failing to draw conclusions about the credibility of what was included in his narrative and not contradicted by his oral testimony. The RPD also erred by concluding that the Appellant was not credible prior to considering all of the evidence before it, including the Appellant's personal documentary evidence. Some, but not all of the omissions from the Appellant's BOC detract from the credibility of his claims. [6] The RPD drew a series of negative credibility conclusions related to oral testimony that was omitted from his BOC form. [7] The omissions are: a. The Appellant testified that in XXXX 2006, he was beaten by his cousin and threatened by Naxalites. He did not mention a physical assault in his BOC. b. In his XXXX 2018 statement to the police, the Appellant reported receiving threatening phone calls from his cousin and the Naxalites. No threatening phone calls are mentioned in his BOC. c. After returning to the city of Ranchi in 2017, the Appellant travelled to Hyderabad, Delhi, Chandigarh, Amritsar, Jalandar, Jammu and Mumbai. He omitted the travel to Chandigarh, Amritsar, Jalandar, Jammu and Mumbai from his BOC. d. The Appellant left Ranchi in 2017 because he heard that his cousin was moving there to confront him. He did not mention leaving Ranchi for this reason in his BOC. [8] The RPD also noted a significant contradiction between the Appellant's testimony and his BOC narrative. The Appellant testified that in 2018, he and his family took the phone threats from his cousin and the Naxalites lightly, whereas in his BOC narrative, he wrote that after being kidnapped and threatened by the Naxalites, he was scared to death and moved to Saudi Arabia. He also wrote that he moved his family to Ranchi in 2008 due to his fears and that in XXXX 2016, he was visited by police and interrogated. Despite these expressions of fear, he testified that he only took the situation with his cousin seriously in XXXX 2018 after his brother was killed. [9] The Appellant has only addressed the BOC omissions identified by the RPD in his appeal arguments. a. The Appellant argues that it is trite law that a BOC narrative is not meant to be an encyclopedic recitation of the evidence and that he included the most important details about his request for protection in his BOC. b. The Appellant argues that the omissions must be assessed in context and not in isolation. He argues that he repeatedly told the RPD that he tried to provide a short, concise story in his BOC. The Appellant also argues that he was not represented by counsel at the RPD, and that he prepared his BOC in English on his own though he required Hindi interpretation at the hearing. c. The Appellant argues that the RPD's response to his BOC omissions is inflexible because it is inconsistent with the procedural accommodations offered to him in other respects. He cites the example of the admission into evidence of an untranslated police report after live translation by the RPD hearing interpreter, thus recognizing that unambiguous instructions in the BOC may not be fully appreciated by a self-represented claimant operating in his second language. d. Furthermore, the Appellant argues that the space within the BOC form itself is limited, sending a contextual clue that brief answers are acceptable given the opportunity to explain the story during a hearing. e. Finally, the Appellant submits that inconsistencies are a more reliable foundation for negative credibility determinations than omissions and elaborations. He argues that his testimony was spontaneous and reliable and that the RPD's only reason for disbelieving his testimony is its omission from his BOC. [10] The Appellant has correctly pointed out that when a claimant is unrepresented before the RPD, the presiding member usually takes extra care to explain procedural issues to that self-represented person. The RPD member acknowledged that the Appellant was unrepresented and indicated that they would take extra time to explain what was happened. I note that the two next points addressed by the RPD were the solemn affirmation and the completeness of the BOC. The RPD did not take the time to explain what it means to swear that the BOC is complete, true, and correct. The Appellant then indicated that the information contained in his BOC was completely true before making a minor correction. However, I do not find that the RPD's failure to provide additional explanations about the completeness of the BOC in this case disadvantaged the Appellant during the hearing as I will explain in the next paragraph. [11] I do not accept the argument that the Appellant misunderstood that he should include detail in his BOC, that he thought he should provide a concise story in his BOC, or that he felt constrained by contextual clues in the BOC form itself. The Appellant submitted a BOC narrative that is just over two pages in length and that contains a lot of detail. This BOC narrative indicates that the Appellant understood that he should take the time to carefully tell his story and clearly outline the reasons for which he is at risk in India. The Appellant has not argued that he does not speak English at a level that prevented him from clearly telling his story in his BOC and the sophistication of the text in his BOC narrative leads me to believe that he is a proficient English speaker. The fact that he preferred interpretation in Hindi at the hearing does not lead me to conclude that he did not have a fulsome opportunity to provide the necessary information to the RPD in his BOC. [12] I agree with the Appellant that in his case, inconsistencies are a more reliable foundation for a negative credibility determination. I do not find that the only reason for detracting from the credibility of his claim lies within BOC omissions. However, the problem with rejecting the credibility of the Appellant's claim based upon these BOC omissions is that the RPD did not issue any determinations about the credibility of what was included in the Appellant's BOC without being contradicted during the hearing. These omissions are not enough to do away with the general credibility of the Appellant's claim because some of the information that he provided during the hearing does not necessarily contradict the basis of what was included in his BOC. [13] The Appellant's BOC narrative explains that he is at risk from his cousin because of a family land dispute, and that his cousin's reach is supported by the Naxalites. It is mentioned that he was attacked several times for this reason, and the narrative specifically includes incidents and threats that occurred in 2006, XXXX 2008, on XXXX XXXX, 2016, and on XXXX XXXX, 2018. It is within this basis of claim that I am considering the omissions. [14] In his BOC, the Appellant mentioned that he suffered a lot of harassment and humiliation from relatives after he filed a case against them to reclaim his property shares. He then explained that one day, the Naxals took him to the forest and threatened to kill him if he did not abandon his claim. As the RPD noted, he did not mention being physically assaulted as part of the harassment, humiliation, or the abduction by the Naxals, nor did he mention that he, his father, his wife, and his brother were beaten up in XXXX 2006. I find that this omission is not significant since the Appellant did mention strife between himself and his family members in his BOC. While the addition of a physical assault involving himself and his family members is important, he did not over-embellish his description of this physical assault during the RPD hearing. He explained that the Naxals hit him with bamboo on his feet when they took him to the forest. He did not provide details related to how he and his family members were beaten in XXXX 2006, so I cannot draw any inference as to how badly they were beaten or what is meant by a physical assault. In reference to a later incident where he, his brother and his wife were beaten, the Appellant explained that no one is spared in these conflicts. I accept that he and his family members engaged in strife and conflict with his cousin that became physical. [15] The problematic omissions are those presenting different or contradictory facts when looking at his basis of claim. One of the problematic omissions is the alteration of how and why the Appellant left Ranchi after returning to India from Saudi Arabia in 2017. [16] The RPD confronted the Appellant with the following contradiction during the hearing. In his BOC, the Appellant claimed that after losing his job in Saudi Arabia, he returned to India in XXXX 2017 intending to start a business in Ranchi. He wrote that once his relatives realized that he was back in India, they defamed him and would not let him find any work.2 This expression of fact is very different from his oral testimony. At the RPD hearing, he testified that he learned that his cousin was coming to confront him in Ranchi and left the town XXXX days later. He then testified that he travelled to six locations in India between XXXX and XXXX 2017, and that at each location, he was discovered by his cousin due to his family and friends disclosing his location. When confronted with this contradiction between his BOC and his testimony, he only responded that he did not know that he should write every detail. After further discussion, the Appellant testified that he did run from his cousin in XXXX 2017 and then decided to start a business in XXXX 2017 after running from his cousin. [17] The RPD correctly detracted from his testimony for this omission from his BOC, though it did not provide details related to the ensuing contradiction in its reasons. As I have previously explained, the Appellant provided the RPD with a long and detailed narrative. The omission of having relocated and hidden in six cities specifically to avoid his cousin is a significant detail to leave out of that long and detailed narrative. The contradiction between what is written in that narrative and his oral testimony is important and goes to the basis of his claim. It is a specific reason to justify why he fears his cousin in India. I find that his explanation that he was being concise is insufficient to explain the omission and that his testimony then evolved to explain the contradiction between the two stories. The omission and contradiction do detract from his credibility about whether or not his cousin was pursuing him between XXXX and XXXX 2017. [18] As mentioned earlier in this decision, the RPD also raised the omission of the 2018 phone threats from his BOC in its decision. The Appellant explained that he and his family took those threats lightly and only realized their severity once his brother was killed on XXXX XXXX, 2018. As the RPD noted, his explanation does contradict his narrative, which states: My relatives took over on my shares of the property, so I had to file a case against them in order to claim my property shares, because of filing that case I suffered a lot of harassment and humiliation by relatives. I was actively involved in claiming the property and dealing with the lawyer, government offices, and court and [my cousin], has strong connections with politicians and Naxals (a terrorist organization). One day, the Naxals came to my home and they took me in the forest and threatened to kill me, and demanded me to stay away from the property matters. I was scared to death and realized something would happen, I was completely devasted by this incident and decided to move to Saudi Arabia. Luckily, I got a job in 2006. I worked in a Muslim country KSA while being a Hindu. [M]y relatives hate me, because it is assumed that if you visit a Muslim country, you are converting to Islam. My sisters & their husbands (l have 3 sisters and they all are married) and other relatives did not want me to go to Saudi Arabia they were so rigorous about the situation that, they started fighting and harassing me to stay in Maharajganj. The environment at my home was very tense it became difficult to live in this situation, to avoid the arguments I decided to leave Maharajganj, Bihar without my property worth XXXX XXXX dollar and move to Ranchi, Jharkhand in XXXX 2008. I could not leave my job in KSA because that was the only source of income I had.3 [19] The Appellant clearly expressed serious fears related to this situation dating back to 2006. I find that it detracts from the credibility of the threat that his cousin poses that his explanation for the omission of the phone threats is that his family took threats from the Naxals or his cousin lightly. At the same time, the RPD should have considered the Appellant's personal documentary evidence, including his statement to the police, prior to detracting from his credibility about the phone threats, since they are mentioned in that statement. The RPD erred by determining that the Appellant was not credible prior to considering all of the evidence before it, including personal documentary evidence [20] In its decision, the RPD concluded that the Appellant was not credible prior to considering his personal documentary evidence in the credibility assessment. The RPD erred because it is required to consider all of the evidence before it in assessing the Appellant's credibility, including supporting or corroborating documents. [21] The Appellant argues that the RPD incorrectly assigned little weight to personal documentary evidence in the overall assessment of his credibly. He contends that the RPD did not find that his documents were fraudulent and that the Federal Court has found that it is a conceptual error to afford some weight to supporting documents while implicitly questioning their authenticity. Therefore, he argues that the RPD's determination that the supporting documents are insufficient to overcome its credibility concerns is not adequately explained. I agree. [22] The Appellant argues that his written statement to the police establishes that he attended the police station and made a pre-emptive report against his cousin on XXXX XXXX, 2018, and that the medical report establishes that his brother died from traumatic injury in Maharajganj XXXX XXXX later. He argues that his explanation is that his brother was beaten and killed by their cousin and the Naxalites in relation to the land dispute and that the RPD has not offered any alternate explanation about why this would not be the case. [23] I agree with the Appellant that his statement to the police indicates that he made a pre-emptive report against his cousin on XXXX XXXX XXXX 2018.4 I note that the Appellant mentioned having received phone threats in this statement and that he feared serious consequences prior to confronting his cousin about the land. I find that it is a credible statement and that it has probative value with respect to establishing that he was embroiled in a family land dispute and feared consequences at the hands of his cousin for challenging the land claim. I assign it weight with respect to establishing the land dispute, and the problems and fears related to his cousin on a balance of probabilities. [24] I agree with the Appellant that the medical report indicates that his brother died from traumatic injuries in Maharajganj about one week after he made his statement to the police. The medical report indicates that the Appellant's brother died on XXXX XXXX XXXX 2018 at XXXX XXXX XXXX am, of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and that he was dead on arrival.5 I find that the medical report is credible, and that it has probative value with respect to establishing that his brother died in a violent incident on that day. I assign it weight with respect to establishing that his brother died in a confrontation with the Appellant's cousin over the land claim on that day. [25] The RPD rejected the credibility of an affidavit from the Appellant's father, having already concluded that he was not credible. Though the Appellant did not specifically mention this affidavit in his arguments on appeal, I find that the RPD should have considered the content of the affidavit and evaluated the credibility of the document and its content on its own merits. The affidavit from the Appellant's father is signed, dated, and notarized.6 Though I have not had the opportunity to examine the original, the RPD did not indicate that it appears to be fraudulent. In it, the Appellant's father indicates that he has shares in an ancestral landed property in Maharajganj that is subject to a family dispute. He indicates that his son was killed by his relatives and that the Appellant is not safe in India. I do not find that the document is fraudulent. It has weight and probative value with respect to confirming that the Appellant does have access to family land and that this land is subject to a dispute. The RPD did not determine the credibility of the claim that there is a family land dispute and should have considered this affidavit in its determination. The Appellant is credible about being engaged in a land dispute with his cousin [26] After considering the Appellant's testimony during the RPD hearing, and all of the evidence before me, here is what I find has been established with credibility on a balance of probabilities. I accept that the Appellant is involved in a family land dispute over land in Maharajganj. I accept that the Appellant's cousin is a primary player in the land dispute, that he has Naxalite associates and that he used his Naxalite associates to threaten the Appellant in 2006. I accept that the Appellant and his family members decided to move to Ranchi to distance themselves from the conflict, and that the Appellant moved to Saudi Arabia for work where he spent the next 10 years. I accept that in April 2018, the Appellant and his brother returned to Ranchi to challenge his cousin over the increasing value of the family land and crops and because the Appellant needed income, having lost his job in Saudi Arabia. I accept that the Appellant's brother died in that April 2018 confrontation. [27] I do not find that the Appellant has established on a balance of probabilities that he left Ranchi in XXXX 2017, and moved to various cities in India until XXXX 2017, because he was located and pursued by his cousin. Similarly, I do not accept that the Appellant did not realize that his cousin was a serious threat prior to his brother's death in XXXX 2018. [28] The Federal Court has found that a property rights claim is not a basis for a refugee claim.7 The Appellant has not alleged that his cousin pursued him in the 10 years prior to his return to India from Saudi Arabia, though the family lived in Ranchi, which is in Jharkand state, a neighbouring state to Bihar where Maharajganj is located, and where the Naxalites are said to be active.8 The evidence before me indicates that if the Appellant does not pursue the issue of the land dispute, his cousin will not pursue him. [29] I acknowledge that the Appellant also claims that he fears his cousin because his cousin believes the Appellant will pursue him for the murder of his brother. I cannot resolve this aspect of the Appellant's claim based upon the evidence before me. A series of determinative questions related to the risk that the Appellant faces given the situation with his cousin remain unanswered, including whether the Appellant's cousin is motivated to harm him for reasons related to his brother's death, can the state protect him from this harm, whether his cousin's connections with Naxalites or other alleged actors can be leveraged to locate the Appellant, and could the Naxalites or other actors locate the Appellant in an IFA? CONCLUSION [30] The appeal is allowed. I send this matter back to the RPD to be redetermined. DIRECTIONS TO THE RPD [31] I am returning the matter to the RPD so that the issues of the Appellant's prospective risk of harm, his access to adequate state protection, and the availability of an IFA may be assessed by a differently constituted panel. (signed) Ayanna Roberts Ayanna Roberts April 19, 2021 Date AR/dd 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 RPD Record. Basis of Claim form narrative. 3rd paragraph. Page 24. 3 RPD Record. Basis of Claim form narrative. Page 23. 4 RPD Record. Written statement to the police. Page 154; Exhibit 7. Translation of the statement. Page 125. 5 RPD Record. Medical Report for XXXX XXXX. XXXX XXXX. XXXX XXXX, 2018. 6 RPD Record. Affidavit of XXXX XXXX XXXX, XXXX XXXX, 2019. Page 154. 7 Kenguruka v. Canada (Citizenship and Immigration), 2014 FC 895; 8 Appellant's Record. Paragraphs 51-53. Pages 17-18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-06421 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