TB5-03283

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 : TB5-03283 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 10, 2015 Date de la décision Panel Michele Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal John M. Guoba Barrister and Solicitor 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) appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence and requests an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to find him to be a Convention refugee or a person in need of protection. In the alternative, the Appellant asks that the matter be remitted to the RPD for rehearing before a different panel. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that, upon return to India, he will be harmed by associates and supporters of a politician because it is believed he exposed the politician's corrupt activities. [4] The Appellant's application for refugee protection was heard on February 4, 2015. By a decision of February 17, 2015, the RPD rejected the claim. The RPD found that the Appellant was not a credible or trustworthy witness and he did not provide trustworthy or reliable evidence to establish on a balance of probabilities that he had been targeted for harm in India as alleged. The RPD also found that, even if it was credible that the Appellant had been targeted for harm in India, there is an internal flight alternative (IFA) for him in Chennai, New Delhi, Mumbai or Bangalore. The Appellant submits that the RPD erred in its credibility and IFA findings. ANALYSIS Role of the RAD [5] What is the role of the RAD in considering an appeal against a decision of the RPD? The Appellant refers to Huruglica1 and notes that the Court determined that an administrative law standard of review analysis is not an appropriate analytical approach for the RAD. He further notes that the Court found that the RAD's appellate jurisdiction is similar, if not identical, to that of the Immigration Appeal Division. The Appellant argues that the RAD should apply the principles found in Huruglica. [6] The RAD notes, in Huruglica the Court considered the appropriate relationship between the RAD and the RPD. It found that the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellant's refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of the IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.2 [7] Justice Phelan stated the following in Huruglica: 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 claimant 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.3 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."4 [8] Considering the Court's decision in Huruglica, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. In cases where the RAD's assessment departs from that of the RPD, the RAD will substitute its own determination. Application for an Oral Hearing [9] The Appellant requests that an oral hearing be held under Section 110(6) of the IRPA.5 He submits that serious credibility issues may persist on appeal not from any new evidence that is adduced but from the original RPD record. The Appellant argues that Section 110(6) of the IRPA does not confine the authority to conduct oral hearings to situations involving truly new evidence under Section 110(4), but rather to the general language of Section 110(3), which includes the record before the RPD and, potentially, new evidence adduced pursuant to Section 110(4). [10] The RAD does not agree with the Appellant regarding the authority of the RAD to conduct oral hearings. Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. The person, who is the subject of the appeal, may, pursuant to Section 110(4), 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. [11] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in section 110(3) must be understood in relation to section 110(4). [12] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [13] No new evidence has been presented or accepted in this appeal. As such, the RAD must proceed without a hearing and the Appellant's request for an oral hearing is denied. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD err in its credibility findings? [14] The Appellant submits that the RPD did not directly address in its decision any of the factors considered by the courts in assessing credibility, other than perceived omissions or contradictions. He further submits that the RPD did not consider the fact that some of the events found discrepant occurred almost six years previously. April 2010 incident [15] The Appellant indicates in his Basis of Claim Form (BoC) narrative that the first incident involving the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX occurred in XXXX 2010. However, when questioned about the incident at his hearing before the RPD, the Appellant indicated that the incident occurred in XXXX 2011. When asked to confirm the date, the Appellant said the incident occurred in the latter part of 2010. When asked to clarify what he meant by the latter part of 2010, the Appellant indicated that it was around XXXX 2010. When asked to explain why he indicated in his BoC narrative that the incident occurred in XXXX 2010, the Appellant indicated that XXXX 2010 was the correct date. [16] The alleged XXXX 2010 incident is a significant element of the Appellant's story, particularly since it was the incident that caused him further problems that led to his flight from India. It would be reasonable to expect the Appellant to give consistent evidence about this significant and pivotal incident, and the RAD finds that his failure to do so seriously damages his credibility. Date MLA elected [17] The Appellant indicated at his hearing before the RPD that the XXXX was elected in XXXX 2010, however, according to his BoC form narrative, the incident with the XXXX occurred in XXXX 2010. When it was pointed out to him by the RPD that the XXXX 2010 incident must have occurred prior to the XXXX being elected, the Appellant indicated that he had made a mistake and that the election had been held in XXXX 2009. One would expect the Appellant to give consistent evidence surrounding the XXXX 2010 incident and about the elected official involved in the incident. The RAD finds that the further inconsistency in the Appellant's evidence surrounding this incident and the elected official involved in the incident further undermines his credibility. Threats made to spouse at temple [18] The Appellant indicates in his BoC narrative that the XXXX wife made a veiled threat against him when she encountered his wife at a temple. However, the Appellant presented no credible evidence to indicate that the XXXX wife knew the Appellant's wife personally or that she had been informed who she was. When asked if the XXXX wife knew his wife or who she was, the Appellant said that the people who escorted the XXXX wife had seen his wife and had identified her to the XXXX wife. When asked how he knew this, the Appellant indicated that those escorting the XXXX wife had been to his house looking for him and had seen his wife. When asked why there was no mention in his BoC narrative or in his earlier testimony that anyone had been to his house to look for him, the Appellant indicated that, in between incidents, hit men had visited his house and had seen his wife. [19] If the XXXX henchmen had been to the Appellant's house to look for him prior to him fleeing India, it would be reasonable to expect the Appellant to have indicated this in his BoC narrative. The Appellant's allegation that the XXXX henchmen pursued him at his home is significant and pivotal. The RAD finds that the omission of this information from the Appellant's BoC narrative, without a reasonable explanation, further undermines his credibility. The RPD has been upheld by the Federal Court when making a negative credibility finding when a pivotal allegation, which goes to the heart of the claim, has been omitted from a Personal Information Form (BoC in this case) and arises for the first time at a hearing, and for which a reasonable explanation has not been provided.6 Other actions against the MLA [20] At his hearing before the RPD the Appellant indicated that he took part in actions against the XXXX other than the XXXX 2010 protest he was involved in. However, there is no indication in his BoC narrative that he participated in any other actions against the XXXX other than the XXXX 2010 protest. When asked to explain the omissions, the Appellant said that he was disturbed and his mindset was not okay. [21] The RAD rejects the Appellant's explanation for the omissions. The Appellant had approximately two months, between the time he arrived in Canada and the date of his hearing, to provide an accurate BoC narrative. The Appellant alleges that he fled India due to the XXXX and his henchmen pursuing him because of actions he took against the XXXX. It would be reasonable to expect the Appellant to note in his BoC narrative all the actions he took against the XXXX to cause the XXXX to want to harm him. It was unreasonable for the Appellant to write about unrelated incidents in the first three paragraphs of his BoC narrative and omit incidents related to the XXXX and his refugee claim. The incidents related to the XXXX would have supported his claim for refugee protection whereas the other incidents do not necessarily support his claim. As such, the RAD finds that the omissions, without reasonable explanations, further undermine the Appellant's credibility. Spitting incident [22] The Appellant indicates in his BoC narrative that, in late 2013, the XXXX pulled his car up to the side of his motorcycle and spat on him. The RPD noted in the reasons for its decision that, when asked if there was any other incident involving the XXXX, the Appellant indicated that he was threatened while he was walking on the side of the road. It also noted that when asked if he had any encounter with the XXXX, the appellant indicated that nothing was done personally by the XXXX. The RPD noted that when it was pointed out to the Appellant that he indicated in his BoC narrative that the XXXX spat on him, he indicated that he had already said that some other incidents took place. The RPD rejected the Appellant's explanation, indicating that the Appellant would have remembered if the spitting incident actually occurred because it was very important evidence material to his claim, and drew a negative inference with respect to his credibility. [23] The Appellant submits that even if he had forgotten the spitting incident, which he denies, the RPD made a purely subjective finding as to the importance of the incident. He argues that it is clear that he was afraid of future persecution that was exponentially more serious than being spat at. [24] The RAD does not concur with the RPD finding with respect to the spitting incident. It is clear that the Appellant testified at his hearing before the RPD that the XXXX spat at him. When asked by the RPD if he remembered the incident when he was riding his motorcycle, the Appellant said that he did. When asked what happened, the Appellant said that he was stopped and the XXXX and his people came by in a vehicle and stopped by his side. He went on to say that they pulled down the window and spat at him. When asked who he was referring to, the Appellant said that there were four or five individuals in the vehicle and the XXXX spat at him. [25] Even though the RPD erred in its analysis of the spitting incident, it is not fatal to its overall decision as the alleged incident was relatively insignificant. Even the Appellant submits that the RPD made a purely subjective finding as to the importance of the incident. The RPD's findings regarding more serious incidents and issues noted above are sufficient to support the RPD's overall finding. Credibility summary [26] On the basis of the findings noted above and after its own assessment of all the evidence in the record, including the recording of the hearing, the RAD agrees with the RPD's finding that the Appellant was not credible or trustworthy and did not provide trustworthy or reliable evidence to establish on a balance of probabilities that he had been targeted by the XXXX and his henchmen as alleged. The RAD finds that the Appellant has not established, on a balance of probabilities, that he is at risk of being harmed by the XXXX or his henchmen in India. Therefore, the RAD finds that there is not a serious possibility of persecution should the Appellant return to India. The RAD therefore concludes that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA, and, for these same reasons, the RAD finds that the Appellant is not a person in need of protection or at a risk to life, or at risk of cruel and unusual treatment or punishment, or in danger of torture as set out in section 97 of the IRPA. IFA [27] Since the RAD has found that the Appellant has not established, on a balance of probabilities, that he is at risk of being harmed by the XXXX or his henchmen in India there is no need to consider the issue of IFA. CONCLUSION [28] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division and dismisses the appeal. (signed) "Michele Pettinella" Michele Pettinella June 10, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, para. 45. 3 Huruglica, para 54. 4 Huruglica, para 55. 5 Exhibit P-2, Appellant's Written Statement, at p. 28. 6 Aragon, Romel Abutan v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-651-07), Frenette, February 4, 2008; 2008 FC 144; Kutuk, Aydin v. Canada (Minister of Citizenship and Immigration), (F.C.T.D., no. IMM-2484-94), Simpson, December 14, 1995. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03283