MB8-01759

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 / Dossier de la SAR : MB8-01759 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 at Montreal, Quebec Appel instruit à Date of decision June 14, 2019 Date de la décision Panel Me Julie Corry Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Baldev S. Sandhu 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 OF THE APPEAL [1] XXXX XXXX XXXX is a citizen of India appealing the Refugee Protection Division (RPD) decision that she is neither a "Convention refugee" nor a "person in need of protection". [2] I deny the appeal and confirm the RPD's decision.1 [3] In my opinion, the RPD did not err in its credibility assessment of the Appellant. [4] I find that the Appellant did not establish, with sufficient credibility, that her children would be a threat to her in the village of Sahani Khurd in Punjab should she return there, based on their drug and alcohol addictions. Nor did she establish that as a widowed single woman, having been the victim of domestic violence and without the support of family, she would be at risk from Indian society and not be able to return and live safely in India. Background2 [5] The Appellant was born in Punjab, India to a Sikh family where she was raised and completed her education up to grade XXXX. She got married in 1987 to XXXX XXXX XXXX, who is an alcoholic person who was abusive to her. Her three children were born in 1988, 1989 and 1991. She was forced to live with her husband because of her culture and the cultural expectations. [6] Her husband died on XXXX XXXX, 2004, after suffering a fatal heart attack. She received a Canadian visitor visa on XXXX XXXX, 2010, and came to Canada on XXXX XXXX. She had no employment prior to coming to Canada and was always a homemaker. [7] In Canada she met a man, XXXX XXXX XXXX at a friend's home in XXXX 2011. She and Mr. XXXX were married in XXXX 2013. Her three children became angry with her because she had married someone in Canada and cut off all ties with her, refusing to have a relationship with her. The relationship with her husband in Canada broke down and he became abusive. She could not leave him because she had no place to go. [8] She submitted an application for permanent residence in Canada, but it was refused on August 4, 2015, and her husband left her on XXXX XXXX, 2015. The Appellant stated in her Basis of Claim Form (BOC) that it was not possible to return to India because of her status as a single woman and the negative stigma of a victim of domestic violence and the attitude of Indian society towards people who are in her position. [9] There was a first RPD decision dated February 16, 2016, that was overturned by the Refugee Appeal Division (RAD) for a breach of procedural equity due to issues identified with the quality of the interpretation that took place during the first hearing. The file was sent back to the RPD for a de novo hearing and the second RPD panel did not receive the first RPD panel's decision, the hearing transcript or the recording of the RPD hearing. [10] The second RPD hearing took place on October 27, 2017, and a negative decision was rendered from the bench on the same day. The present reasons are in response to the appeal of that second RPD decision. [11] The Minister of Citizenship and Immigration Canada (The Minister) intervened before the RPD on the issue of credibility and program integrity, submitting evidence and submissions, but did not intervene in this appeal. The Minister's Intervention3 [12] In November of 2015 the Minister intervened in writing and asked the RPD to reject the asylum claim on the basis that it was manifestly unfounded. The Minister intervened before the first RPD hearing but did not add anything for the second RPD hearing and was not present at any of the hearings. [13] The Minister was of the opinion that the multiple discrepancies in this claim and the Appellant's previous immigration history raised serious credibility concerns as well as program integrity concerns. The Minister submitted immigration documents and gave detailed submissions essentially pointing out that the Appellant misrepresented herself, gave contradictory evidence and thus cannot be trusted to give credible testimony. [14] The Minister also argued that the Appellant's delay in seeking asylum showed a lack of subjective fear. He also made submissions on the fact that documentary evidence supports that divorce is more common in India today, at least in the major urban centres. He added that there was no information on file to support the fact that she would face more than a generalized risk of discrimination if she returned to India. [15] The Minister then filed additional evidence and submissions when he found an additional piece of evidence that had been included in the Appellant's permanent resident application as supporting documentation. [16] This evidence included tax returns covering 2008-2011, bank statements from 2005 to 2008 and what appears to be a XXXX assessment for 2007-2008. These documents show that the Appellant XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Ahmedgarh, Punjab. [17] The Minister argued that these documents show that the Appellant was not a destitute widow living in India prior to coming to Canada, but instead a XXXX XXXX with an active bank account and a XXXX XXXX. This further supported the previous statements regarding the Appellant's lack of credibility and the relating program integrity concerns. RPD decision4 [18] Credibility, including subjective fear, was the determinative issue in this matter for the RPD. [19] The RPD found that the Appellant did not provide credible evidence to establish the basic facts in support of her claim. [20] After having found the Appellant not credible, the RPD also found that there was insufficient residual evidence to establish that the Appellant had a foundation for a claim. Appellant's arguments5 [21] The Appellant argues that the RPD based its decision upon an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it. She also argues that the RPD failed to observe the principle of natural justice in this case. [22] The Appellant submits that her testimony should be presumed to be the truth, unless it is either contradicted, internally inconsistent or implausible, and that her testimony should have been listened to as a whole with an objective and open mind, citing Maldonado and other Federal Court jurisprudence.6 [23] The Appellant also argues that the RPD failed to assess her claim as a person in need of protection pursuant to section 97 of the IRPA. [24] Finally, she argues generally that the RPD failed to consider the entire evidence before making her decision with respect to credibility and failed to consider and also misconstrued the independent documentary evidence properly presented and which supported the allegation made by the Appellant. STANDARD OF REVIEW [25] When reviewing the RPD decision, I am required to independently assess all the evidence and determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I may defer to the RPD in the exceptional situation that I find that it had a meaningful advantage in the circumstances, and reasons will be provided in that situation. 7 ANALYSIS OF THE MERITS OF THE APPEAL IRB Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution8 [26] The IRB Chairperson's Guidelines 4 must be considered in appropriate cases. It is incumbent on IRB decision-makers to exhibit the knowledge required, and to apply it in an understanding, fulsome and sensitive manner when deciding issues relating to women fearing gender-related persecution and violence. [27] In the reasons for the RPD decision, the member stated that she considered Guidelines 4 in rendering her decision. [28] In the present decision and reasons, and throughout my analysis of the testimony and the evidence in the file, I have also considered Guidelines 4 and the fact that the Appellant fears mistreatment from her children as well as Indian society in general. She alleges that women in her position are deemed dishonoured and disgraced, having been the victim of domestic abuse, being a widow, and now having a second marriage to a man in Canada which ultimately failed. Principle of Natural Justice [29] Besides making the statement that the RPD failed to observe the principle of natural justice in this case, the Appellant has not made any argument on this or provided any explanation in her memorandum of appeal.9 [30] Without knowing what the Appellant is referring to with any precision, I cannot respond to her statement and based on my own analysis of the file, I do not see any breaches of natural justice. The RPD did not err in assessing the Appellant's credibility [31] Having conducted an assessment of the record as well as listening to the recording of the hearing, I conclude that the RPD's credibility assessment of the Appellant was correct. In my opinion, the Appellant did not give satisfactory explanations to the concerns that the RPD had and confronted her with during the hearing. I also note that besides making the generalized arguments in appeal summarized above, the Appellant has not put forth any detailed arguments or precise references to her evidence to rebut the findings of the RPD. I will explain. [32] The RPD's negative credibility conclusion was based on the following: * The omission in the Appellant's original allegations about her fear of her children. This came out during oral testimony only; * The Appellant travelled to England in XXXX 2004. This did not correspond with her allegations that her husband orchestrated this trip because he wanted to get rid of her, given that he passed away in XXXX 2004. The RPD also found this raised questions about the Appellant's capacity to travel alone, and having the financial means to do so, if she were a destitute uneducated widow living on charity with no capacity to read forms; * It did not make sense that she would leave her children alone at home with no food to go to England to find work if they were aged 11, 15 and 16 at the time; * The whole family situation described by the Appellant did not make sense, including that they had no income for day to day expenses or even food, yet the husband and even the children were drinking alcohol and not attending school, and that she then had the means to and indeed did travel to England; * Instead of making a claim for asylum upon arrival in Canada, the Appellant applied twice for an extension of her visitor status, and then applied for a work permit, which was also denied. A significant period of time passed while she had no status, and then she married and applied for permanent residency through sponsorship, and this was also denied. * The Appellant alleges that all documents used in support of her permanent resident application are fraudulent, which also raised significant subjective fear issues for the RPD. * Some of the documents used in support of her permanent resident application showed that she had a successful transport business in Punjab which was in operation even after her husband passed away, with bank account statements reflecting significant amounts of money; * The Appellant did not provide satisfactory or realistic explanations for any of the above, and her testimony was evasive and illogical. [33] In her memorandum of appeal, the Appellant argues that the RPD was wrong in her finding that she was not truthful about the essential elements of her claim, and especially that she fit the profile of a vulnerable woman. [34] The Appellant submits that she submitted truthful evidence on the following: * That her first husband died in 2004 and she was abandoned by her second husband; * She has been the victim of domestic violence; * She only has a XXXX grade education which she obtained from the school in her village; * She has no source of income in India and does not own any property; * Both of her sons are addicted to drugs and she has no relations with her children. In fact, her children are not happy with her because she married her second husband. [35] The one document that the Appellant did submit was a death certificate that attests to her first husband's death in XXXX 2004. The explanations that she offered for the contradictions and inconsistencies in her statements that conflict with her immigration documents are that everything was done for her by an agent who fabricated the facts and documents relied on for her visa applications as well as her permanent resident applications. [36] The RPD did not accept that the Appellant was as unsophisticated as she claimed, as she had a travel history and managed a number of circumstances, even once she was in Canada. [37] The Appellant also claimed she had memory problems, yet the RPD found that she was competent during the hearing and understood what was going on. [38] With respect to the omission about the fear of her children, which only came out in testimony before the RPD, the Appellant said she had not included this information initially, but gave the information and answers when she was in her hearing. There was no other explanation for the omission of this aspect of her basis of claim. [39] The RPD recognized, as was argued by the Appellant's lawyer, that one could expect a refugee claimant to use fraudulent documents to escape persecution in their country, however the documents provided in support of the permanent resident application were submitted when the Appellant was already in Canada. [40] The RPD then found that this situation did not satisfactorily explain the failure to make a refugee claim at an earlier date, instead of preferring to submit a fraudulent permanent resident application. [41] In her memorandum of appeal, the Appellant also argues that she provided a satisfactory explanation for not making a refugee claim earlier after her arrival in Canada. She had testified that she waited to submit her permanent resident application because she had met a man in 2011 that she was hoping to marry and thus was anticipating the possibility of sponsorship. She married this man in 2013. The Appellant submits that the RPD did not take into consideration her testimony addressing these concerns. [42] The Appellant's legal counsel had also argued in final submission that there could have been problems with the testimony because the Appellant spoke through an interpreter, however the RPD stated she did not observe any issues in which interpretation was a barrier to being able to answer questions. [43] I agree with the RPD's credibility assessment for the same reasons. In my opinion, none of the explanations offered by the Appellant were satisfactory and they were insufficient to overcome how badly her credibility was undermined in the first place. [44] For example, the portion of the testimony about travelling to England in 2004 seriously affected the Appellant's credibility. When asked about the timing, at first the Appellant said her husband was there and that the whole purpose of the trip was so he could get her out of the house so he could drink. Once the RPD pointed out that her trip was in XXXX 2004 and her husband passed away in XXXX 2004, the Appellant said she could not remember the dates and agreed that he could not have been there. She then testified that it was a friend of her husband's who paid for the trip, and that she was trying to get away from her kids who were always drinking, and that she wanted to find work in England. The modified and evolving testimony on this part of her story had a negative effect on her credibility. [45] The omission about being afraid of her children and that they were under the influence of drugs and alcohol and could harm or kill her also negatively impacted her credibility. I agree with the RPD that she did not adequately explain why she did not refer to this in her initial allegations and it seemed to me that it came out in her testimony as an embellishment to her basis of claim. I can understand that her children may have been angry and turned against her when she married a man in Canada, but this is not all she said. She said that her eldest child had assaulted her after her first husband died in 2004, and that she wanted to get away from them because they drank and took drugs. If this were the case one would expect it to be described in her initial allegations, and not something that came out in testimony the day of the RPD hearing. [46] I also find that it is significant that the Appellant spent several years being widowed in India, from 2004 to the end of 2010, without feeling the need to leave her country, except for the one trip to England in 2004. She did not make a refugee claim in England and chose to return to India at that point. The gap in time between 2004 and 2010 was not explained and, in my opinion, also negatively impacts on the Appellant's subjective fear. [47] The Appellant's immigration history, once she did arrive in Canada, also negatively affects her credibility and specifically her subjective fear. I agree with the RPD that she did not provide a satisfactory explanation for the delay to claim from the end of 2010 to 2015. I understand that she initially had a visitor's visa, which was renewed, and she said after that she was hoping to marry the man she had met. Despite this explanation, this is a significant amount of time, some of which she had no status at all or had let her status lapse. I simply do not believe that if she feared returning to India to the point that her life and safety were in jeopardy, she would not have claimed asylum earlier. [48] I also agree with the RPD that having submitted a permanent resident application, once she did marry, based on certain documents that she claims were fabricated by an agent, shows that she was willing to risk being refused sponsorship. A refugee claimant fearing for their life would not have acted this way, especially once they had been safely in Canada for several years. It does appear to me that the Appellant claimed asylum only after every other immigration avenue was denied her. [49] The documents in question that were used to support her permanent resident application were found and submitted with the Minister's intervention. As described above, they show that the Appellant had significant business experience and assets in India. The Appellant denies all of this and her explanation is that an agent made it all up and she knew nothing about it, except to sign the application. During the hearing she also denied having any bank account in India. [50] In final submissions, the Appellant's lawyer asked why, if these documents were true, she would be here in Canada, employed at washing dishes, seeking asylum. He also asked why these types of documents, being tax returns, bank statements and financial statements, would have been used in a sponsorship application in the first place, when the point of the application would have been to show the genuineness of a marriage. [51] These are valid questions, but the only explanation offered is that they were fabricated by an agent. This does not explain why the Appellant did not make a refugee claim sooner, as opposed to a fraudulent permanent resident application, and does not answer the second question either. The documents themselves appear at face value to be authentic and the Minister's written submissions provide a detailed assessment of what they represent. From these documents, it appears that the Appellant had XXXX XXXX and assets, with an active bank account in India, during part of the time that she alleged she was a destitute widow living hand to mouth on charity, unable to properly feed her children. All of this significantly undermined the Appellant's credibility, and was considered by the RPD. [52] There was a cumulative effect to the credibility issues described above and this is my answer to the Appellant's argument that her testimony should be taken as truthful, unless it is either contradicted, internally inconsistent or implausible. The presumption of truthfulness has been rebutted, as there was a significant omission in her BOC about fearing returning to India because she was scared of her children, which was not properly explained, and there were contradictions and inconsistencies as well. So much so that on a balance of probabilities, I find that this Appellant is not credible. [53] Because of this, it is my determination that the RPD's overall credibility assessment was correct. The RPD did not err in assessing the residual evidence on which to base the Appellant's claim [54] The Appellant argued that she would be at risk if she were to return to India because society would view her as disgraced, and she has no family or anyone else to help her. [55] She stated in her BOC narrative that it is not possible for a woman in her situation and circumstance to live safely in India. She is a destitute and neglected woman who has no place to reside in India or anyone who can support her. The police in India are also corrupt and the rape of women in police custody is a common occurrence. She states she is also a victim of repeated domestic violence and this carries with it a negative stigma in Indian society. The Indian society deems a woman in her position to be dishonoured, disgraced and of bad character. The Indian orthodox society will socially boycott and ostracize her. It is also very difficult for a woman in her situation to find gainful employment and a place to live by herself in India. She is so helpless that she is left with no other option but to ask Canadian authorities to provide her protection and safe harbour. [56] The RPD acknowledged, as the Appellant's lawyer pointed out, that the circumstances for some women in India are challenging and that in certain circumstances a gender-based claim may have a foundation for a woman who does not have family support or certain resources. [57] However, the RPD found that because there was conflicting evidence and it was potentially the case that the evidence submitted in the permanent resident application was also genuine, in which case the Appellant would have significant business experience in India and access to resources there, then the RPD could not determine that outside of the allegations in her BOC there was sufficient residual evidence to establish that she had a foundation for a claim that she had a well-founded fear of persecution or, on a balance of probabilities, a risk to life or a risk of cruel and unusual treatment or punishment in her country should she return there.10 [58] In her memorandum of appeal, the Appellant argued that there was sufficient independent documentary evidence presented relating to country conditions regarding India of women in the Appellant's situation and that the RPD failed to even acknowledge such evidence. [59] At this point I would like to point out that neither the Appellant nor the RPD submitted or referred to any concrete or specific documentary evidence on the conditions for women in India, besides making general statements that such evidence existed or that it was accepted that the circumstances for some women in India are challenging. The only party who actually cited anything specific about country conditions was the Minister, in his intervention, when he cited Tab 5.11 of the National Documentation Package (NDP), to make the point that divorced and single women are increasingly accepted in India and that there are services to help them with housing and employment.11 [60] In my opinion, it can be accepted that the circumstances for many women in India are challenging, however it does not clearly emerge from the documentary evidence that all divorced and single women face a serious possibility of persecution in India. The issue with this Appellant is that there is contradictory evidence in the record about her personal situation that shows that she had significant business experience and access to financial resources. This is what stands out and sets her apart from the situation of divorced and single women generally in India, even victims of domestic violence. [61] I agree with the RPD's conclusion, that given the supporting documents to the permanent resident application, there was no residual evidence to support the Appellant's claim. The documents, which appear at face value to be authentic, show that the Appellant had significant business experience and funds in India, which is in stark contrast to her sworn testimony. [62] A gender-based claim against India could be made in certain circumstances, but given the contradictory evidence in the file about the Appellant's past in India, as the RPD, I cannot conclude that she would be at risk if she were to return there. [63] In my opinion, the Appellant has not established with sufficient credibility that she has the profile of a woman at risk in India. As a result, without this profile, she has not established that she has a well-founded fear of persecution or, on a balance of probabilities, a risk to life or a risk of cruel and unusual treatment or punishment in her country should she return there. Separate sec. 97 analysis [64] In her memorandum of appeal, the Appellant also argued that the RPD failed to assess her claim as a person in need of protection pursuant to section 97 of the IRPA, without identifying which aspects of her claim would have been specific only to section 97. She submits that a claim under section 97 must be evaluated with respect to all the relevant considerations and with a view to the country's human rights record. [65] She argues that there may well be instances where a refugee claimant, whose identity is not disputed, is found to be not credible with respect to her subjective fear of persecution but the country conditions are such that the claimant's particular circumstances make her a person in need of protection. [66] In this claim, the RPD's negative credibility findings could apply to both sec. 96 and 97 of the IRPA, as the analysis and findings went to the core of the Appellant's claim for protection.12 [67] The RPD did not find the Appellant credible with respect to her allegations about her personal situation nor that she was at risk from her children. Because of this, there was no independent or credible documentary evidence in the record capable of supporting a positive disposition of this claim.13 [68] In any event, in my opinion, the RPD did do an analysis under sec. 97 of the IRPA, did consider the situation of the Appellant, and was entitled to extend her sec. 96 credibility findings to the sec. 97 analysis, and did not err on this point. [69] Because of this, once again it is my determination that the RPD's overall credibility assessment was correct. RAD CONCLUSION [70] My analysis of the evidence reveals that the RPD did not err on the assessment of the Appellant's credibility and her overall decision based on credibility is correct. [71] I also conclude, as the RPD did, that the Appellant failed to establish a serious possibility of persecution or that, on a balance of probabilities, she could be subjected personally to a danger of torture or a risk to life or to a risk of cruel and unusual treatment or punishment if she were to return to India. [72] As a result, I confirm the decision of the RPD, concluding that XXXX XXXX XXXX is neither a "Convention refugee", nor a "person in need of protection".14 [73] The appeal is dismissed. Julie Corry Me Julie Corry June 14, 2019 Date JC/lp 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, art. 96, 97(1) and 111(1)(a). 2 Appellant's Basis of Claim form, including a narrative, pages 11-22 of the RPD record (BOC); RPD reasons and decision, dated October 27, 2017, at lines 17-37 of the first page of the reasons, page 3 of the RPD record (RPD Reasons); Appellant's memorandum of arguments, dated January 8, 2018, at paras. 1-9, pp. 22-24 of the Appellant's record (Appellant's memorandum). 3 Minister's intervention, pages 140-182 of the RPD record. 4 RPD reasons and decision, dated October 27, 2017, pages 3 to 10 of the RPD record (RPD Reasons). 5 Appellant's memorandum of arguments, dated January 8, 2018, pp. 22-28 of the Appellant's record (Appellant's memorandum). 6 Maldonado v. Canada, 1980 2 F.C. 302 (C.A.); Villarroel v. ME.I (1979) 31 n.r. 50; Armson v. M.E.I. (1989) 9 Imm. L.R. (2D) 150; Attakora v. M.E.I. (1989) FCA Digest D 1486-04; Van Anh Nguyen v. M.C.I. (1997) IMM 1533-96; Mohammed Sadique v. M.E.I. (1993) 92-T-1886. 7 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93 (Huruglica). 8 Immigration and Refugee Board of Canada (IRB), Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution, entered into effect on November 13, 1996 (Guidelines 4). These Guidelines can be found on the IRB's website. 9 Appellant's memorandum, para. 11, sub. para. 3. 10 See RPD Reasons, lines 9-15, p. 8, which is found at p. 10 of the RPD record. 11 The Minister's intervention, at para. 14 of the Notice of Intent to Intervene, p. 155 of the RPD record. 12 Ikeme v. Canada (Immigration, Refugees and Citizenship), 2018 FC 21, paras. 39-44. 13 Canada (Citizenship and Immigration) v. Sellan, 2008 FCA 381, para. 3. 14 IRPA, sec. 96, 97(1), 111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (September 11, 2014) Disponible en français RAD File / Dossier de la SAR : MB8-01759 16