MB8-12497

RAD File / Dossier de la SAR : MB8-12497 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 Ottawa, ON Appel instruit / entendu à Date of decision August 26, 2019 Date de la décision Panel Jillan Sadek Tribunal Counsel for the person(s) who is(are) the subject of the appeal Jeffery Platt 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] The Appellant is a citizen of India. He alleges that he may not return to India because he fell in love with a woman while engaged to another woman. The Appellant asserts that the father of the woman he was engaged to and the father of the woman he fell in love with both wish to destroy his life. Further, the father of the woman he fell in love with initiated a false criminal case against him. The Appellant states that in October 2016 he was arrested, beaten and tortured by police in connection with this false accusation. The Appellant alleges he tried to relocate within India but in the end used the services of an agent to assist him to apply for a visitor visa for Canada. According to his Immigration forms, he entered Canada on XXXX XXXX XXXX 2017. He then claimed refugee protection one month later at the Immigration office in Montreal on June 13, 2017. [2] The Refugee Protection Division (RPD) determined that the Appellant's allegations lacked credibility and rejected his claim. The RPD also reasoned, in the alternative, that he had a viable Internal Flight Alternative (IFA) in Mumbai or Delhi. [3] The Appellant contests the RPD's decision on the basis that the credibility finding was arbitrary and subjective, the analysis of the internal flight alternatives (IFA) did not take into account the Appellant's testimony and because the RPD failed to assess the supporting documentation independently of the Appellant's credibility. [4] I have determined that the RPD was correct to reject the claim but have noted some errors in its decision, which are not determinative of the appeal. The appeal is dismissed. ROLE OF THE RAD [5] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, may attract deference. Unless specifically stated below, I have applied a correctness standard. REQUEST FOR A HEARING [6] In the Appellant's written statement, he asks that an oral hearing be held because of the errors in the decision, specifically the improper assessment of the evidence. However, the Appellant does not explain how the test for a hearing is met. Section 110(6) of the Immigration and Refugee Protection Act (IRPA) states the RAD may hold a hearing if, in its opinion, new evidence presented pursuant to section 110(4) of IRPA: (a) raises a serious issue with respect to the credibility of the person who is subject of the appeal, (b) is central to the decision with respect to the refugee protection claim; and, (c) if accepted, would justify allowing or rejecting the refugee protection claim. [7] As the Appellant has not submitted any new evidence, no hearing may be held. ANALYSIS [8] In his Basis of Claim form (BOC), the Appellant asserts that he was engaged to be married to XXXX XXXX, the daughter of XXXX XXXX, a community leader and influential member of the Congress party who was a friend of his father's. The Appellant states that in March 2016 while jogging in the park, he repeatedly met a woman called XXXX XXXX and he struck up a relationship with her. In September 2016, the Appellant alleges that the park guards caught XXXX sitting on his lap and the couple were brought to the police station where both sets of parents were called in to intervene. According to the Appellant, XXXX XXXX and Ms. XXXX father found out about the incident and since then both men have been motivated to destroy his life. On October 26, 2016, the Appellant states he was arrested by police on trumped up charges that he abducted, raped and killed XXXX XXXX. The Appellant asserts that he was tortured by police and released the next day because his father paid a sum of money to police and community elders intervened. The Appellant states that he left Bangalore and spent the next two months in Delhi, then travelled to Chandigarh and Goa in order to escape his pursuers, finally leaving India in XXXX 2017 with the assistance of an agent. [9] The RPD determined that the Appellant's allegations lacked credibility because he was unable to explain in any detail a key element of his story: his relationship with XXXX XXXX. In the alternative, the RPD argued, even if the events the Appellant described took place, the Appellant would have an IFA in Mumbai or Delhi. [10] I have attentively listened to the recording of the RPD hearing, and have carefully reviewed all of the supporting documentation. I agree with the RPD that the Appellant is not credible. I find that there were some errors in the RPD's decision but that these are not determinative of the appeal. The RPD was correct to determine that the Appellant's testimony lacked credibility [11] The Appellant submits that the RPD erred in finding that he gave vague testimony with regards to how he fell in love with XXXX XXXX. The Appellant asserts such a finding is subjective and arbitrary as attraction to another person is a very personal matter. [12] I agree with the RPD, the Appellant's testimony with regards to the woman he ostensibly fell in love with was vague and incompatible with someone who had truly met and fallen in love with a woman he met in park while jogging. For example: Member: What was attracting you to her? Claimant: I really don't know but there was something attractive about her so we started talking to each other and I always wanted to keep the relationship only till friendship. Member: You don't know what was attracting about her? Claimant: No. I don't know. Member: Still, at that moment, do you know what did attract her to you? Claimant: I really don't know. She used to smile at me and I always thought that she wants to talk to me. Member: So, you said at the beginning of the hearing that you were supposed to get married to XXXX XXXX, but you were in love with another woman. I assume its XXXX XXXX XXXX Were you in love with her? Claimant: Yes Member: Why were you in love with her? Claimant: I used to meet her and that's how the relationship started growing every day. I really don't know what caused the attraction. Member: So now, you don't know why you were in love with her? Claimant: No I don't. Member: How can you explain, I don't understand. Claimant: I don't know how to explain this because the attraction comes from within, I really don't know how to explain it in words to explain that to you.2 [13] The above excerpt demonstrates the nature of the Appellant's testimony regarding a woman that he was supposed to be in love with, who he met with regularly against his own better judgement, who he "could not resist"3 despite his engagement to another woman. According to the Appellant this was not simply a light distraction for him but someone he had fallen in love with. Love is an intense emotion, I do not accept that the Appellant had no idea what motivated him to feel this way if he had indeed truly fallen in love with a woman in the park called XXXX XXXX. I agree with the RPD, the fact that he was unable to explain this attraction severely undermines the credibility of his story. [14] I also agree with the RPD's reasoning at paragraph 17 and 19 of the RPD decision, that the Appellant lacks credibility for not being able to provide details regarding XXXX XXXX and his relationship given the alleged duration and frequency of his meetings and agree with the RPD's rejection of the Appellant's explanation for not being able to provide details of the relationship alleging that he does not express himself well and he is not good with language. [15] Furthermore, in my opinion there were other instances where the Appellant's testimony demonstrated that his allegations were not credible. I note that the Federal Court has ruled that "when the credibility of a refugee protection claimant is at the heart of the RPD's decision and the grounds for appeal before the RAD, the RAD is entitled to make independent findings in this regard, without having to question the applicant or giving the applicant another opportunity to make submissions".4 [16] The issue of caste was discussed at the hearing, though the RPD did not comment on it in its decision. I note that in the Appellant's BOC he mentions the fact that XXXX XXXX came from a "lower caste" and he describes how this played into the anger of both XXXX XXXX father and XXXX XXXX father. In his BOC he wrote (my bolding): "(...) XXXX family arrived when we were leaving with a lot of other men and women like some kind of a mob. They were shouting and screaming for justice and accusing me of taking advantage of a lower caste girl. (...) XXXX told my father he had been a friend to him all his life but after this incident he would use all his political resources to ensure I never saw the light of day and in the community our family would be ostracized. I made his daughter and family into a laughing stock by choosing a Dalit girl over her. (...) My father told me that the Dalit community had also started making a lot of noise and several times XXXX father had brought his community members to our door screaming for justice. On November 5, 2016, someone painted foul words on our gate with goat's blood. It could only be the Dalits as one their professions involved dealing with animal carcasses. (..) Police will not help me there no one can help me, they are too busy framing me in a false case that the Dalits have cooked up."5 [17] Yet, in the Appellant's oral testimony when questioned by his own Counsel, he testified that he didn't think Muslims, like himself, XXXX XXXX and XXXX XXXX, were part of the caste system: Counsel: What does XXXX XXXX father have against you? Claimant: He feels I took advantage of her [his] daughter, also we cannot marry because they are from a lower caste so it's his opinion that I was taking advantage of a low caste girl. Counsel: What is her caste? Claimant: If you follow Islam, then you do not have a caste, although some people bring in a caste system even if you're Muslim. Counsel: But do you know the caste that she is from? Claimant: I know that in Islam there is no caste system, however they have created some caste. Member: So why is her father is saying, that she is from a lower caste? Claimant: I am really not aware. I know they are Muslims but maybe it is a cultural thing which they follow, that I am not aware of. Counsel: I am assuming that XXXX XXXX XXXX XXXX XXXX, they are Muslims as well? Claimant: Yes. Member: Do you know the caste system that some Muslims use? Claimant: I really don't know, I don't have any information about the caste system under people who are Muslim. However, I know that Islam doesn't have any provision within the religion to have any caste system. Counsel: Your story mentions.... I want you to explore this question a bit in your testimony if you can. Your story mentions the Dalit community. What is the Dalit community and how is it involved in your problems, if any? Claimant: All I know...I don't have much information about this. All I know is, this person was a leader in the Dalit community. XXXX, XXXX XXXX father. He's the leader of the Dalit community. Counsel: So is it correct to understand that, the caste you are talking about, is the Dalits? Lower caste? Claimant: Yes. Member: But how do you know he was a Dalit leader? Claimant: Local people from there informed us that he is their leader. Member: The Dalits are not from the Hindu religion? Claimant: No, people told me he is a leader of the Dalit community but I know that they are all Muslims.6 [18] As can be seen from the above excerpt, the Appellant does not even mention the Dalits until reminded of this aspect of his story by his own Counsel. Dalits are a scheduled caste and were formerly known as the "untouchable" caste.7 Yet, when asked directly by his Counsel what caste XXXX XXXX belongs to, The Appellant cannot identify it. The Appellant's understanding of Muslims vis-à-vis the caste system is inconsistent with his description of how the caste system affected his claim in his BOC narrative. In my opinion, this further undermines the credibility of the Appellant's allegations and confirms the RPD's finding that the Appellant's story is not worthy of belief. The RPD erred by not providing an analysis of each of the supporting documents [19] The Appellant submits the RPD erred by not giving any probative value to the documents adduced into evidence: the solemn declarations and the medical certificate. The Appellant asserts these should have been examined independently of his overall credibility. I agree. [20] During the hearing, it was evident that the RPD had concerns with the medical certificate. The Appellant testified that after he was released from custody he suffered some soft tissue injuries and had a lot of pain in his back.8 He testified that he was treated by a physician for this pain. The member asked why the medical certificate header indicated that the issuing authority was the Department of Cardiology and why the certificate was signed by a doctor specializing in Urology. The explanations provided by the Appellant did not answer these concerns. He stated that he wanted to a go to a different doctor located far from the police station and that any doctor can treat people with small injuries and pain.9 These answers do not explain why the letter would have been issued by a department of Cardiology or why a specialist in Urology would have treated the Appellant's back injuries. Furthermore, the letter mentions that the injuries were caused by "local police officials" due to pressure from a "man called Mr. XXXX XXXX".10 This appears to be an excess of information unrelated to a physician's medical knowledge which would not normally be the result of a physical examination of a patient by a doctor. It also contradicts the Appellant's testimony that is was XXXX XXXXs father and not XXXX XXXX's father who initiated the false charges against him. Given these issues with the letter, I give it little weight. I find that the RPD ought to have made a similar analysis part of its decision. [21] The other supporting documents were not discussed at the hearing. These consist of three affidavits: one from XXXX XXXX, one from XXXX XXXX XXXX XXXX XXXX and one from XXXX XXXX. The format of all three is the same and they were all signed and dated July 19, 2017. In his affidavit, XXXX XXXX indicates he is a relative of the Appellant. He reiterates the allegations that the Appellant included in his BOC though does not state how he was informed of these events. He then states that he was the one to arrange the Appellant's departure from India and introduced him to the agent. As the affiant does not state he had any first-hand knowledge of the events in question, I give it little weight. [22] The second affiant, XXXX XXXX XXXX XXXX XXXX XXXX, indicates he is a religious cleric and that the Appellant's father asked him to intervene with police in order to have the Appellant released from custody. He states that "based on my request and the councillor's request" the Appellant was released.11 This is inconsistent with the information in the Appellant's BOC that he was released because his father paid a substantial bribe in addition to the influence of the "maulvi and sarpanch" (religious cleric and councillor).12 Given this inconsistency, I also accord this affidavit little weight. [23] The third affiant, XXXX XXXX, indicates he knows the Appellant's father well and that the Appellant's father asked him to accommodate his son for a couple of months as he was "mentally disturbed at home due to some issue and he needed a change of place."13 This affidavit does not provide any corroborating evidence of the Appellant's key allegations. [24] Cumulatively, the three affidavits provided do not provide sufficient evidence of a reliable nature to counterbalance the problems with the overall credibility of the Appellant's allegations. I find that the RPD should have mentioned this in its decision. However, as I have completed the analysis and my assessment demonstrates that the supporting documents do not affect the negative determination made by the RPD, I find that the RPD's error is not determinative of this appeal. The RPD's analysis of a viable IFA was unnecessary [25] The Appellant submits that the RPD's IFA analysis was faulty as he testified that the police would be able to locate him as he is wanted on trumped up charges. In my opinion, the IFA analysis was unnecessary. There was no need for the RPD to proceed to an "in the alternative" assessment of the evidence given the serious problems with credibility. Accordingly, I will not be addressing the arguments related to the IFA. CONCLUSION [26] After my independent review of the evidence in the Appellant's case, I find the RPD did not err in its finding that the Appellant's allegations are not credible. I am satisfied, based on the evidence, that the Appellant would not be personally subjected to a risk of torture, a risk to his life or a risk of cruel and unusual treatment or punishment should he return to India. I am also not satisfied the Appellant has demonstrated that there is a serious possibility that he would be persecuted on a Convention ground if he returned to India at this time. DETERMINATION [27] I dismiss the appeal. The Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act. (signed) "Jillan Sadek" Jillan Sadek August 26, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 At 0h39 to 0h43 of the recording of the RPD hearing wich took place on March 20, 2018. 3 At 0h38 of the recording of the RPD hearing wich took place on March 20, 2018. 4 Corvil v. Canada (Citizenship and Immigration), 2019 FC 300, paragraph 13. https://www.canlii.org/en/ca/fct/doc/2019/2019fc300/2019fc300.html?autocompleteStr=2019%20FC%20300%20&autocompletePos=1 5 RPD-1. RPD Record, basis of claim, p. 31. 6 At 1h54 to 2h00 of the recording of the RPD hearing wich took place on March 20. 2018.(1h54 to 2h00) 7 RPD-1, RPD Record, Exhibit 3, Nationa Documentation Packages, item 13.4, IND104063.E, Treatment of Dalits by society and government authorities, including the state response to mistreatment (2010-March 2012), 7 May 2012, Immigration and Refugee Board of Canada, 28 February 2013. 8 At 1h10 of the recording of the RPD hearing wich took place on March 20, 2018. 9 At 1h11 of the recording of the RPD hearing wich took place on March 20, 2018. 10 RPD-1, RPD Record, letter written by Dr. XXXX dated July 21, 2017, p. 67. 11 RPD-1, RPD Record, affidavit of XXXX, pp. 63- 64. 12RPD-1, RPD Record, basis of claim, p. 30. 13 RPD-1, RPD Record, affidavit of XXXX, p. 66. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-12497 RAD.25.02 (September 18, 2018) Disponible en français 11 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