TB5-03475

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 File No. / N° de dossier de la SAR : TB5-03475 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX(A.K.A.XXXX XXXX XXXX XXXX)XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision May 19, 2015 Date de la décision Panel Robert S. Garner Tribunal Counsel for the person(s) who is(are)the subject of the appeal Minakshi Arora Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, (the Appellant) is a citizen of India. He appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. The Appellant wishes to resubmit evidence provided to the RPD at the time of the hearing, and asks that an oral hearing be conducted at the Montréal office at 200 Rene Lévesque West, Montréal, QC H2Z 1Z4. The evidence submitted for the hearing was not accepted by the RPD. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD (Refugee Appeal Division) confirms the determination of the RPD and dismisses the appeal. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [3] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [4] The Appellant has tendered the following documents (a) The original documentation submitted to the RPD for the hearing on July 18, 2014. (b) A faxed copy of that First Information Report (FIR) concerning a car accident where his family members were injured. [5] The Appellant speculates that this FIR report is a cover-up by the police and that the family fears that anything can happen to them and the police will get by easily for the wrongdoings. The Appellant also submits that the RAD consider the factors of the Appellant's mental and physical situation in regards to his testimony, and comments on the difficulty of the Appellant being able to explain his claim to the RPD in a stressful situation. [6] The evidence submitted in (a) was evidence submitted at the RPD hearing. The RPD refused to admit those documents into evidence. According to Rule 2(c), the Appellant can submit any documents that the RPD refused to admit. [7] The RPD's reasoning in its decision was that the documents submitted were copies, not the originals, and were illegible. The RPD rejected the Appellant's explanation that the documents were in the mail, having allegedly been sent by registered mail. The RPD noted that the Appellant has been in Canada since XXXX 2014, and made the decision to leave his country in XXXX 2013. The RPD reasoned that the Appellant had more than enough time and money, given that he paid an agent to come here, in order to gather and send documents that would reasonably be expected by the Canadian authorities. No submission was made in the Memorandum of Appeal that the evidence produced was either misconstrued or dealt with inappropriately by the RPD. [8] The RAD concurs with the RPD's assessment. It is reasonable that the Appellant would have produced the original documents given the timelines outlined by the RPD. Had the Appellant produced the documents in a timely fashion after the hearing, or in the RAD appeal, a different decision could have been rendered. In addition, the documents submitted to the RAD are not the originals, rather photocopies, albeit more legible. It has been 10 months since the RPD hearing, July 18, 2014. If the Appellant's testimony regarding the sending of the documents was credible, the original documents should be in Canada and would have been produced for the RAD appeal. The RAD does not accept the documents listed in (a) as new evidence. [9] In dealing with the documents submitted in (b), the RAD will consider them under Section 110 (4) of the IRPA, Rule 28, of the RAD Rules. [10] Rule 28 (1) states in part that all documents submitted in an appeal "must be in either English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator." The Appellant submitted a First Information Report (FIR) of an accident, with a page of what appears to be an explanation, written in his native language. No translation was provided, and the RAD is unable to address the document, and as a result does not accept the document as new evidence. Even if the document had been translated, the Memorandum of Appeal provides some information regarding this document. [11] The Appellant's submission on this document was speculative. He submitted that the FIR report by the police was an attempt by the police to cover up their tracks. Memorandum of Appeal [12] The Appellant submits that the RPD erred on page 1, paragraph 9 of the decision, where the counsel of the Appellant attempted to explain the misconception of the visa file noted on the Basis of Claim (BOC) form. [13] The Appellant submits that an error was made on page 3, paragraph 19 of the decision, where the RPD addresses the issue of delay in claim. Background [14] The Appellant was a XXXX living in the village of XXXX, in Haryana state. The Appellant was questioned by police in XXXX 2013 after militants had crossed his land. After a similar occurrence on XXXX XXXX, 2013, the Appellant was detained, beaten, and tortured by the police who accused him of being in league with the militants. He was released after a bribe was paid. After hiding in New Delhi, the Appellant made arrangements for him and his wife to leave India using fraudulent documentation. The Appellant and his wife arrived in Canada on XXXX XXXX, 2014, and his wife returned to India on XXXX XXXX, 2014 to take care of their children. The Appellant made a claim for refugee protection on May 21, 2014. The Appellant fears that he would be again a victim of the police if he returned to India to live. [15] The Appellant's application for refugee protection was heard on July 18, 2014. In a decision of July 18, 2014, the RPD rejected his claim finding that there was insufficient corroborative documentation to support his claim, and that the Appellant had not been a credible witness. ROLE OF THE RAD [16] The Appellant made no submission on the standard of review to be used by the RAD. The RAD finds that Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. Justice Phelan states, in paragraphs 54 and 55, of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the [Appellant] is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error." [17] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. Merits of the Appeal [18] The RAD noted that there was a discrepancy between the Appellant's testimony and the visa application regarding his occupation and living circumstance. The RPD found that it would be reasonable for the Appellant to provide documentation to substantiate his actual living arrangements and occupation, so that the issue of his visa could be addressed in a more substantive manner. No documentation was submitted, and as outlined below, the RPD did not accept the Appellant's explanation. The RPD found that major inconsistencies between documentation and testimony undermined the Appellant's credibility. [19] The Appellant submitted that an attempt was made to explain this misconception, quoting the hearing time of the RPD hearing. The Appellant submits that information provided, when acquiring a visa and using a smuggler is often a misrepresentation of certain facts in order to have an application approved. [20] The RAD concurs with the RPD's decision that this inconsistency could have been dealt with by providing appropriate documentation to substantiate the genuineness of the Appellant's occupation and living circumstance. In listening to the recording of the hearing, the RAD did not find any testimony that provided additional information to substantiate why the original documents were not provided. The Appellant explained that the documents were in India; that he did not think the panel would find them helpful; and that he did not have time to obtain them. The RPD rejected this explanation. The RPD had found the absence of such a document, without reasonable grounds undermined the Appellant's credibility. The RAD reviewed this appeal at the end of April 2015. In the Memorandum of Appeal no documentation was submitted to address this concern addressed by the RPD. The RAD finds that the RPD's finding, regarding a lack of credibility, is sound. The RAD also finds that the testimony of the Appellant that the documentation was allegedly sent by registered mail, was not credible. [21] The Appellant arrived in Canada on XXXX XXXX XXXX 2014, and did not make his claim for protection until May 2014. The RPD found that the Appellant's behaviour was inconsistent with that of someone who fears for his life. The Appellant testified at the hearing that he decided to come to Canada because he feared that the police would attack him in India, and he did not know he could claim refugee protection. The RPD did not find his explanation reasonable, given the alleged circumstances. The RPD stated that it would have been reasonable to ask his "agent" questions about the steps to regularize his status. [22] The Appellant submits that a newcomer is often unaware of the laws of the alien country, and that they always have a fear of being sent back to the country of their nationality. As they usually use the assistance of a smuggler/agent to leave their country, and these agents usually charge them outrageous fees, delay is normal in that they are unaware that a delay in claim would not be beneficial for them. [23] The RAD finds that the Appellant's submission is in the third person, and does not address any issue specific to the Appellant. The RAD rejects the Appellant's submission on this point because it is not personalized, and makes no submissions to explain his particular circumstance. The RAD notes that these arguments are being made on behalf of the Appellant, but specifics regarding his individual circumstance in dealing with the alleged smuggler would be expected. The Appellant's explanation was that it was not until he went to a Sikh temple in Montréal where he received the information. It would be reasonable that some documentation would have been presented to support such an allegation. [24] In addressing both issues submitted in the Memorandum of Appeal, the RAD concurs with the RPD's findings, and finds, on a balance of probabilities, that the Appellant has not demonstrated that he was a credible witness. The RAD also draws a negative inference from the Appellant's unwillingness or inability to acquire pertinent documentation after the rejection of his refugee claim on July 18, 2014, some 5 months before perfection of the appeal of December 30, 2014. The Appellant's testimony on July 18, 2014 was that the originals of his documentation were sent by registered mail. Given that these documents were not submitted for his appeal, the RAD draws a further negative inference regarding the Appellant's credibility. Internal Flight Alternative (IFA) [25] In listening to the recording of the hearing, IFA was addressed as a possible issue. The Appellant during questioning by the RPD explained that he moved to New Delhi. Counsel in her submissions raised the issue. This issue was not included in the RPD's decision, nor did the Appellant raise this issue in the Memorandum of Appeal. Due to the lack of any documentation being provided on this issue, the RAD will not make a finding. Disposition [26] Pursuant to Section 111 (1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection and dismisses this appeal. (signed) "Robert S. Garner" Robert S. Garner May 19, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03475