MB8-25714

RAD File No. / No Dossier de la SAR : MB8-25714 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision September 21, 2020 Date de la décision Panel Guerlain Guerrier 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 XXXX (the appellant) is a citizen of India. [2] The appellant's brother was suspected of being a Sikh militant around 2001. To find him, the police allegedly arrested the appellant and his father in XXXX 2001 and accused them of collaborating with militants. The appellant was tortured by the police during his incarceration. [3] Fifteen years later, the appellant was working a XXXX XXXX. He bought his XXXX from a man named XXXX XXXX XXXX was suspected of being a Muslim militant from Kashmir. The appellant was arrested again on XXXX XXXX XXXX 2016. He was accused of aiding the militants. After his release, militants claiming to be associated with XXXX demanded that the appellant surrender the weapons that XXXX had allegedly left at his home. Fearing these militants, the appellant fled to his uncle's home in Uttar Pradesh province in XXXX 2016. He arrived in Canada in XXXX 2017. [4] The Refugee Protection Division (RPD) determined that the appellant was not a refugee within the meaning of the Convention or a person in need of protection. It concluded that the appellant's account was not credible and, additionally, that there was an internal flight alternative (IFA) in Delhi or Mumbai. [5] The appellant is of the opinion that the RPD erred in its assessment of his credibility and of the IFA. [6] The determinative issue in this case is credibility. DECISION [7] I reject the appeal. The RPD's determination that the appellant is neither a refugee within the meaning of the Convention nor a person in need of protection is correct. The RAD does not agree with all of the RPD's credibility findings, but there is enough determinative evidence lacking credibility to suggest that the appellant has not established a serious possibility of persecution, a threat to his life, or a risk of cruel or unusual treatment or punishment. Consequently, the IFA will not be analyzed. ANALYSIS Contradiction over XXXX detention undermines appellant's credibility [8] The appellant argues that the RPD should have considered his low level of education before concluding that he contradicted himself about XXXX release. He explains that at the time of his own release, XXXX had not been released, but he does not know what happened to him afterwards. He claims that the RPD disregarded the explanation in his testimony. [9] The RAD does not accept these arguments. [10] What happened to XXXX is not a complex subject requiring a solid academic background. According to the documentary evidence, the appellant is the owner of a XXXX XXXX business. There is no indication that he cannot answer simple factual questions. The appellant took it upon himself to state in his Basis of Claim Form (BOC Form) that XXXX was not released. Furthermore, the RAD notes that the RPD's questions on this subject were simple and straightforward. [11] In his oral testimony, the appellant acknowledged that he had no idea what happened to XXXX. He admitted that XXXX might have been released before him.1 This testimony clearly contradicts his BOC Form, in which the appellant appears to want to exaggerate the threat by writing that XXXX was not released. All of the evidence surrounding the appellant's and XXXX arrests in XXXX 2016, which led to the appellant's flight, is significant. The appellant's credibility is undermined by this contradiction. The RPD's finding is correct. Contradiction between account and testimony about his presence in Punjab in XXXX, and omission of militants' visit undermine appellant's credibility [12] The appellant is of the opinion that the RPD erred in finding that he could not have gone to the police station twice in XXXXand XXXX 2016 because he was living with his uncle. The appellant notes that it is possible that he reported to the police station twice between his release in XXXX 2016 and his departure to Uttar Pradesh since he does not remember the exact dates of his visits. In addition, the RPD did not take his low level of education into consideration. [13] The RPD's finding is correct. [14] A low level of education is not an argument that the RAD accepts when it comes to explaining a contradiction regarding a factual element. [15] It is not the number of visits to the police station or the exact dates of those visits that are problematic. It is the impossibility of his being in two places at once. In XXXX 2016, the appellant could not have been both in Punjab and in hiding at his uncle's house in Uttar Pradesh. According to his account, the appellant left Punjab to take refuge at his uncle's house after the militants' visit on XXXX XXXX XXXX 2016. He wrote that he took refuge at his maternal uncle's house in "XXXX" from XXXXtoXXXX XXXX 2016.2 In his testimony, the appellant stated that he reported to the police in Punjab in XXXX 2016. When confronted with this contradiction, the appellant insisted on the fact that he went to the police station in XXXX 2016.3 The appellant later argued that he did not remember the specific dates, but this is still a contradiction since his BOC Form is very specific about the chronology of events and his place of residence. This contradiction undermines the appellant's credibility and calls into question that he had to report to the police station and that he took refuge at his uncle's house. [16] In addition, there is a significant omission in the BOC Form about the currency of the Muslim militants' threats. In his account, the appellant does not mention that the militants returned to his home after he fled. In his testimony, he stated that the militants went to his home twice.4 The fact that the militants are still looking for the appellant is evidence that he should have recorded in his BOC Form. This omission further undermines his credibility. Given his alleged political profile, appellant's multiple releases are not credible [17] The RPD found that the appellant was not credible about the Indian police releasing him so easily on three occasions in 2001 and 2016, given the documentary evidence regarding the treatment of nationalist militants. [18] The appellant argues that the RPD did not consider all the documentary evidence about the Indian police. The police are corruptible. It is possible that the bribes offered by his family contributed to his release. [19] Although the appellant does not specify on what documentary evidence he bases his arguments, the RAD agrees that there is corruption within the Indian police force. However, two things can be true at once. Pointing out that some police officers are corrupt does not prevent the Indian state from taking stricter measures against certain categories of suspects, including members of violent militant groups. [20] The documentary evidence shows that sarpanches can resolve certain interpersonal conflicts involving small amounts of money and also have an influence over local law enforcement.5 However, it also shows that the repression of armed militants and terrorists is handled and coordinated by provincial and federal authorities. In our view, the large number of actors involved in the fight against these groups, including law enforcement and government agencies (national and international), makes it unlikely that a bribe or the intervention of a sarpanch led to the release of an individual, who, along with his father and brother, was suspected of belonging to several armed militant groups (Sikhs and Muslims).6 [21] In addition, the appellant's account does not provide a coherent picture of his interactions with the police. The police allegedly violently tortured him, but stopped each time the appellant's family pressured them. Moreover, the bribes paid by the family worked to obtain the appellant's early release, but were ineffective in stopping the harassment and the obligation to report every month. [22] In light of the above, the RAD concludes that the appellant's account of his arrests, detentions and early releases is not credible. The RPD did not err. Appellant's occupation during his stay at his uncle's house is a peripheral detail that is not determinative [23] The RPD found that the appellant contradicted himself about his activities when he fled to his uncle's house. He first stated that he did not do anything and then said that he had worked in the fields. [24] The appellant states that he did not work while living with his uncle. He submits that the help he gave his uncle on his farm was not paid employment. The appellant argues that the RPD erred in concluding that there was a contradiction in that regard. [25] The RAD accepts this explanation and finds that the appellant did not contradict himself about his occupation. Even if there were a contradiction, it is not one involving a determinative element of the refugee protection claim. This error by the RPD does not invalidate the entire decision. CONCLUSION [26] The appellant made a statement about the detention of his friend XXXX XXXX when in fact he does not know what happened to him. He contradicted himself as to his place of residence in XXXX 2016. He failed to mention that militants returned to his home twice after his departure. And the treatment he claims to have received from law enforcement-he was released quickly on three occasions following pressure from family and a sarpanch-does not fit his alleged political profile. All these elements greatly affect his credibility. The RAD is of the opinion that he has not established, on a balance of probabilities, a serious possibility of persecution, a threat to his life, or a risk of cruel or unusual treatment or punishment. And that the conclusion regarding the appellant's credibility is correct. [27] For these reasons, the RAD rejects the appeal and confirms the impugned decision that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Guerlain Guerrier Guerlain Guerrier September 21, 2020 Date IRB translation Original language: French 1 Recording of the RPD hearing, August 29, 2018, between 56:30 and 1:01:30. 2 RPD-1, RPD record, Schedule A, questions 8 and 12, pages 52-53. 3 Recording of the RPD hearing, August 29, 2018, between 1:49:45 and 1:54:00. 4 Recording of the RPD hearing, August 29, 2018, around 1:29:15. 5 RPD-1, Exhibit 3, National Documentation Package (NDP) on India (July 31, 2018), Tab 9.4: Role and importance of a sarpanch; information on how this position is filled and what kind of authority a sarpanch has in relation to the law, including his or her relationship with police; information on how easily a sarpanch can be contacted from. . . 6 RPD-1, Exhibit 3, NDP on India (July 31, 2018), Tab 7.2: India. Country Reports on Terrorism 2016. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No Dossier de la SAR : MB8-25714 RAD.25.02 (January 2020) Disponsible en français 3 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) Disponsible en français