MC0-08877

RAD File / Dossier de la SAR : MC0-08877 Private Proceeding / Huis clos Reasons and Decision ? Motifs et decision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 21, 2021 Date de la décision Panel Sasha Kiran Cragg-Gore Tribunal Counsel for the person who is the subject of the appeal 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] These are my reasons for allowing this appeal. XXXX XXXX XXXX (the Appellant) is a citizen of India. She alleges to be a victim of domestic violence, which began as the result of the affiliation of her family to a different political party than her husband. She also fears the police and alleges that her husband has influence over them. The Appellant travelled to Canada with her husband and did not return to India with him after he threatened her. A few years later, she claimed refugee status. [2] The Refugee Protection Division (RPD) rejected her refugee claim for the following main reasons: (a) The Appellant was inconsistent in describing the threats from her husband before he left Canada; (b) She failed to mention, in her narrative, a written description of her allegations submitted in advance of her hearing, that her husband threatened to get her arrested by the police; (c) She remained in Canada for three and a half years without any status before claiming refugee status, calling into question whether she subjectively feared returning to India; and (d) She submitted two affidavits that were given no weight because one of them lacked details and the other one contained an important inconsistency. [3] The Appellant has appealed this decision and is now asking that the Refugee Appeal Division (RAD) recognize her as a Convention refugee or a person in need of protection. In the alternative, she asks that this matter be referred back to the RPD for redetermination. She has not submitted new evidence nor has she requested an oral hearing. Her main arguments are as follows: (a) The Appellant testified about painful memories that took place many years ago, and she cannot be expected to recall them as accurately as the RPD expected her to; (b) A delay in claiming refugee status cannot be determinative and the RPD failed to consider the Appellant's particular circumstances in coming to the conclusion that she lacked subjective fear; (c) The Appellant's documentary evidence should have been given more weight, and there was an insufficient basis to question the allegations on the Appellant based on the issues identified in the evidence by the RPD. [4] I requested additional submissions from the Appellant in April 2021 in relation to the newest National Documentation Package (NDP) for India as well as her prospective risk given that she has not returned to India for more than seven years. Additional submissions from the Appellant were received in May 2021 and have been considered in rendering this decision. [5] I have also considered and applied the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution1 to this claim. DECISION [6] The appeal is allowed. I set aside the determination of the RPD and substitute my own decision that the Appellant is a Convention refugee. The RPD erred in multiple credibility findings, and I find that the Appellant's allegations are established and that she would face a serious possibility of persecution upon return to India. ANALYSIS [7] My role is to look at all of the evidence and decide if the RPD made the correct decision.2 The Appellant has established that her husband threatened to have her arrested by the police [8] The Appellant testified that her husband had threatened to have her arrested by the police when they were questioning her about her brother, something that she omitted from her narrative. The RPD found this to be an important omission that was not reasonably explained and concluded that this impacted her credibility. The Appellant argues that this omission is minor and understandable given that she was testifying about painful events that happened a long time ago. I agree with the Appellant that the RPD erred. [9] The Appellant mentions in her narrative that, when the police showed up to question her about her brother, her husband said in front of the police that she knew where her brother was hiding. In her testimony, she stated that he threatened to have her arrested by the police. I find that the Appellant simply elaborated on the statement in her narrative suggesting that he wanted to turn the police against her in her hearing. She testified that he threatened to have her arrested, a statement that gets at the same intention as the one in her narrative. I do not find this to be an important omission that should impact the Appellant's credibility. [10] The event in question took place many years ago and represents one incident out of the many that were described by the Appellant. I agree with the Appellant that, in these circumstances, it is inappropriate to conclude that this represents a credibility concern. I find that the RPD erred in concluding that the Appellant omitted an important detail from her narrative. [11] I further find that the Appellant has established that her husband threatened to have her arrested by the police. The Appellant's delay in claiming refugee status in Canada does not represent a lack of subjective fear [12] The RPD concluded that the Appellant's three-and-a-half-year delay in claiming refugee status after her visitor's visa expired represents a lack of subjective fear. The Appellant argues that delay in claiming refugee status is not determinative and that the RPD failed to consider the particular circumstances of the Appellant. I agree with the Appellant that her delay in claiming refugee status does not represent a lack of subjective fear. [13] The Appellant only attended eight years of school and has never held a job.3 She only speaks Punjabi.4 When she arrived in Canada, she stayed with her sister and brother-in-law who both worked in factories. She explained at her hearing that she did not apply for refugee status sooner because she was waiting to see if her husband would change and because she did not know that she could apply. [14] The Appellant was making the difficult decision of not returning to her husband which would have major ramifications for her entire family and her children. It is reasonable for this type of decision to take some time to make. Given the sensitivity and difficulty of disclosing domestic violence and the shame associated with it,5 it is also understandable that it would have taken some time to get to a place where the Appellant was comfortable to go through with the asylum process. [15] Given the above, I agree with the Appellant that her explanations for the delay are reasonable given her particular circumstances. While three and a half years is a long delay, it is entirely possible that it took this amount of time to accept that she could not return to her husband and to figure out her options to remain in Canada. I find that the RPD erred in concluding that the Appellant lacked subjective fear. The Appellant's allegations are credible and established [16] The Appellant has provided detailed and generally consistent evidence about years of threats and harm at the hands of her husband. Her testimony was spontaneous, detailed and credible and generally consistent with her narrative and the other evidence she submitted on file. I find that the major RPD conclusions referred to above are in error and that the presumption of truth applies to the Appellant's allegations in these circumstances. [17] I acknowledge that there are still minor inconsistencies in her supporting affidavits as well as in the specific nature of her husband's threat when he left Canada. However, these inconsistencies are minor and represent a small portion of the Appellant's overall allegations and evidence which are generally consistent and detailed. I also agree with the Appellant that minor inconsistencies are to be expected when claimants are asked to testify about painful events that took place a long time ago. [18] The Appellant has provided signed and dated affidavits which corroborate many of her allegations. I give these affidavits, prepared by two village Sarpanches who know the Appellant personally, significant weight. [19] I find that the Appellant has established that she is a victim of domestic violence at the hands of her husband, that she was threatened by the police, and that she would face a serious possibility of persecution if she returned to India today. State protection [20] The Appellant's husband has a certain degree of influence over the police due to his position in the Congress party, and the Appellant was directly threatened by the police. The country documentation confirms that the police do not always operate independently from the Congress in Punjab and are subject to influence in carrying out their duties.6 I find that the Appellant would not receive adequate state protection if she were to return to India today. Internal Flight Alternative (IFA) [21] The Appellant's husband has demonstrated a certain degree of influence over state authorities. Victims of domestic violence are regularly discriminated against and stigmatized in India.7 Single women face significant challenges in obtaining employment and housing.8 I also note that the Appellant only speaks Punjabi and has never held a job. All of these factors lead me to conclude that the Appellant would not have a viable IFA available to her if she were to return to India. CONCLUSION [22] The appeal is allowed. I set aside the determination of the RPD and substitute my own decision that the Appellant is a Convention refugee. (signed) Sasha Kiran Cragg-Gore Sasha Kiran Cragg-Gore June 21, 2021 Date 1 Guideline issued by the Chairperson, pursuant to subsection 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in paragraph 159(1)(h) of the IRPA. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 3 Exhibit RPD-1, RPD Record, at p. 89. 4 Exhibit RPD-1, RPD Record, at p. 23. 5 Gender Guideline, supra, footnote 1. 6 NDP for India (April 16, 2021), item 4.9, Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) IND106097.E, "Treatment of political activists and members of opposition parties in Punjab; treatment of perceived supporters of Sikh militancy by authorities (2017-April 2018)", June 14, 2018. 7 NDP for India (April 16, 2021), item 5.2, IRB, RIR IND200255.E, "Domestic violence against women; legislation, state protection and services available; whether victims have recourse to the law; support services available to victims of domestic violence (2017-June 2020)", June 18, 2020. 8 NDP for India (April 16, 2021), item 5.11, IRB, RIR IND106275.E, "Situation of single women and of women who head their own households without male support, including access to employment, housing and support services, particularly in Delhi, Mumbai, Chandigarh and Bengaluru; women's housing, land, property ...", May 3, 2019. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-08877 RAD.25.02 (May 19, 2021) 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 (May 19, 2021) Disponible en français