VC2-07803

RAD File / Dossier de la SAR : VC2-07803 VC2-07804 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Date of decision February 07, 2023 Date de la décision Panel Jennifer A. Moore Tribunal Counsel for the persons who are the subject of the appeal Yelda Zohal Anwari Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (principal Appellant) and XXXX XXXX XXXX (associate Appellant) are citizens of India. They claim to fear their former husband/father and members of the Dharma Gurus because of erroneously imputed religious faith. The Refugee Protection Division (RPD) found the Appellants not to be credible, and rejected their claims in a decision dated August 18, 2022. [2] The Appellants appeal the RPD's decision to the Refugee Appeal Division (RAD).1The Appellants ask that the RAD set aside the decision of the RPD, and substitute its own determination that they are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be referred to a different panel of the RPD for redetermination. DECISION [3] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. BACKGROUND [4] The principal Appellant is a 50-year-old Hindu woman from Gujarat. The associate Appellant is her daughter, aged 13. [5] The principal Appellant was married to XXXX XXXX XXXX (VAP) and they are the parents of the associate Appellant. [6] It is alleged that VAP started an extramarital affair in XXXX or XXXX 2019, and concurrently became abusive to the principal Appellant. In XXXX 2019, the Appellants moved to the home of the principal Appellant's parents where they stay until XXXX 2019. [7] The Appellants alleged that VAP wants to kill the principal Appellant because she has allegedly disgraced the family's honour and reputation. It is further alleged that VAP is wealthy and his wealth has allowed him to foster close ties to politicians, police, and influential religious leaders. [8] In XXXX 2019, three unidentified men attended at the home of the principal Appellant's parents looking for the principal Appellant and threatening to kill her. They were scared off by her father. When her father attempted to file a police report, the police told him that there was a complaint filed against his daughter on the grounds she had converted to Islam, and was spreading negative messages about Hinduism. They further advised that the only reason she was not arrested was because the police were friendly with VAP. Around that time, the principal Appellant learned that VAP was involved with another woman, and he was the person responsible for spreading rumours about her religious conversion. [9] In XXXX 2019, the Appellants' home was raided again by three unidentified men. This time the men claimed that the principal Appellant had dishonoured their god. The principal Appellant's father was able to scare the men away by shooting at them. After this incident, the Appellants fled to Canada on a temporary resident visa (TRV) previously applied for in XXXX 2019. [10] The Appellants made a claim for protection shortly after arriving in Canada. Their hearing before the RPD was held on August 8, 2022. NEW EVIDENCE [11] The new evidence is not accepted. According to the law,2 the Appellants may only present evidence that arose after the rejection of their claims or that was not reasonably available, or they could not reasonably have been expected in the circumstances to have presented, at the time of the rejections. If the evidence meets one of these requirements, it must also be new, credible, and relevant to be admissible.3 [12] It is for the Appellants to make a full and detailed submission in their memorandum about how any proposed new evidence meets the requirements of the law, and how that evidence relates to them.4 The new evidence shall not be admitted [13] The new evidence the Appellants seek to submit consists of: a. Affidavit from the principal Appellant, dated XXXX XXXX XXXX 2022.5 [14] The affidavit contains explanations and justifications for the answers provided during the hearing. The affiant retracts her claim that the whispering heard during the hearing was from her daughter's iPad in another room and now claims it was her daughter and son speaking outside of her door. [15] Nothing in this affidavit postdates the rejection of the Appellants' claims or was not reasonably available to the Appellants at the time of the rejection. Further, it is expected that the Appellants provide fulsome, accurate and non-misleading answers at the hearing. [16] Accordingly, this affidavit may not be accepted as new evidence. I shall treat it as submissions. ORAL HEARING [17] The Appellants have requested an oral hearing. They argue that since credibility is at the core of the RPD decision, the RAD should convene an oral hearing to properly assess the Appellants' credibility. The legislative criteria for an oral hearing before the RAD have not been met. Oral hearings can only be convened by the RAD when new evidence which is admissible on appeal raises a serious issue with respect to the Appellants' credibility that is central to the decision, and if accepted, would justify allowing or rejecting the refugee protection claim.6 [18] No new evidence has been admitted and, therefore, an oral hearing cannot be held. ROLE OF THE RAD [19] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Huruglica.7 This requires an independent assessment of the refugee claim to determine whether the RPD was correct in its findings and determinations.8 While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case. Upon my review of the transcript, I find the RPD decision is based primarily on evidence found in the record. The RPD referred to physical actions taken by the principal Appellant, such as muting her microphone, during the hearing. These actions are not disputed by the Appellants and, therefore, I accept certain actions did occur. ANALYSIS [20] Following my independent assessment of the record, including reading the transcript of the RPD proceeding and listening to the recording of the hearing, I agree with the RPD and find the Appellants not to be a Convention refugees or persons in need of protection. The RPD correctly found the Appellants failed to establish that they face a serious possibility of persecution or, on a balance of probabilities, a risk to life or cruel and unusual treatment or punishment. [21] In making my decision, I have considered the Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board (Gender Guidelines)9 and the Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues (Child Guidelines).10 Credibility [22] When a claimant swears that certain facts are true, this creates a presumption that they are indeed true unless there is valid reason to doubt their veracity.11 The determination as to whether a claimant's evidence is credible is made on a balance of probabilities.12 The existence of contradictions or inconsistencies in the evidence can be a valid basis for a finding of lack of credibility.13 I may also consider the vagueness of a claimant's evidence based on common sense and rationality in regard to the surrounding circumstances.14 For reasons given below, including inconsistencies in the evidence about the principal Appellant's marital status, and whether she sought a divorce, and evidence that the principal Appellant was coached during the hearing rebut the presumption of truthfulness. The principal Appellant was coached during the hearing [23] The RPD correctly drew a negative credibility inference from evidence that the principal Appellant received coaching during the hearing. When asked how she obtained a custody letter signed by her former husband, the principal Appellant gave inconsistent and evolving answers. At this point she muted her microphone and, when asked to unmute herself, she immediately asked to take a break. When she returned from the break, she was asked a follow-up question. She paused after the question was interpreted and during that pause whispering could be heard. When asked to explain the whispering, the principal Appellant said it had come from her daughter's iPad in another room. The RPD did not accept this answer and found that she was coached. The Appellants argue that she was not coached, and that the whispering was done by her son and daughter who were just outside her door. [24] I have listened to the recording of the hearing, and I can hear the whispering clearly. Although, I cannot discern what was whispered, from the volume of the whisper, I can discern that the whisperer was in very close proximity to the microphone used by the principal Appellant. The RPD asked a question, the question was interpreted, whispering could be heard, and then the principal Appellant answered. Based on the timing of the question, the intervening whisper, and the principal Appellant's eventual response, I find on a balance of probabilities that she was coached. [25] In trying to determine whose voice was heard, the RPD asked the principal Appellant who was currently in her home to which she responded it was only herself and her daughter. The RPD then said it sounded like a man's voice and the principal Appellant confirmed no men were present in her home. In their memorandum, the Appellants concede that the adult son/brother was also present. The principal Appellant was directly asked who was present and, by her own admission, she chose to mislead the RPD. I do not accept a state of nervousness is a reasonable explanation for deliberately misleading the RPD. I find this deception undermines the principal Appellant's credibility. [26] The Appellants argue that there was whispering in the background for less than 10 seconds, and that is an insufficient basis from which to find the principal Appellant was coached. I do not agree with this assertion. The recording establishes, on a balance of probabilities that she did receive coaching on at least one occasion. Further, the record establishes that shortly before the whispering episode, the principal Appellant appeared confused, was unable to answer a question, asked for some time and then muted her microphone. The moment she was asked to unmute her microphone, she asked for a break. Given that I have found evidence on the record that she was coached, I also find, on a balance of probabilities, that she was coached while she muted her microphone. The Appellant argues the evidence establishes that, at most, she was coached for less than 10 seconds, however, I find that the record establishes that she was coached twice. [27] The RPD reviewed the recent case law on misconduct during virtual hearings. It has been determined that interference in the fact-finding process by abusing or taking advantage of a virtual examination strikes at the integrity of fact-finding and may not be tolerated.15 In another case, the Federal Court16 upheld a negative credibility finding made by the RPD in an instance where one applicant whispered answers to another applicant. The Appellants argue that these cases can be distinguished from the case at hand as in those cases the coaching was more clearly captured, and went on for a longer duration. [28] I find that any coaching undermines the integrity of these proceedings and cannot be tolerated. Furthermore, the principal Appellant has provided two separate explanations for the whispering which I find to be untrue. The first explanation was the noise came from her daughter's iPad in another room, while the second explanation was that the noise came from her son and daughter speaking in another room. I find neither of these explanations to be true because the source of the sound was immediately adjacent to the principal Appellant's microphone. Accordingly, I find the coaching, which was clearly heard, undermines her credibility and her explanations, which I find to be unreasonable, further undermine her credibility. The status of the principal Appellant's marriage [29] The RPD correctly drew a negative credibility inference from the inconsistencies in the Appellants' evidence about the principal Appellant's marital status, and her efforts made since 2019 to obtain a divorce. The principal Appellant provided inconsistent evidence with respect to her marital status and inconsistent and evolving evidence about steps taken to obtain a divorce. When asked why she claimed to be married in her immigration forms, the principal Appellant claimed she needed to do so because she was not yet divorced. The RPD did not find this explanation to be reasonable as the principal Appellant had referred to herself as separated in her Basis of Claim (BOC) form which was completed around the same time. The principal Appellant was asked several times whether she sought a divorce, and each time the answer was slightly different. The RPD found the evidence about whether the principal Appellant ever sought a divorce to evolve. [30] I cannot uphold the RPD's finding that the inconsistency in the principal Appellant's evidence about her marital status undermines her credibility. In her BOC and in her testimony, she consistently claimed that she and her husband separated in XXXX 2019. In the Generic Applicantion, she stated she was married to VAP. This was technically true and remains technically true. The RPD seems to indicate that she was asked to choose from married, single, separated, divorced, and widow options but I cannot find that reference myself. The principal Appellant was legally married at the time she filled out her Generic Application, and therefore her claim to be married does not undermine her credibility. [31] However, I do find the principal Appellant's testimony about the steps taken to obtain a divorce to be inconsistent, vague, and evolving. I find these inconsistencies undermine her credibility. The principal Appelant claimed to be at risk because VAP wanted to end her life in order to marry his new girlfriend. When asked if she considered divorcing her husband to allow him to marry his girlfriend, the principal Appellant said she did not have time to think about divorce because her life was in danger prior to leaving India. When asked if she considered getting a divorce in Canada, she said since they were living separately she had not considered it. She went on to say that if VAP had requested a divorce she would have accepted it. When asked why she had not considered getting a divorce during her three years in Canada, she claimed that she had tried to get a divorce in India but her husband would not give her one because of his reputation. The RPD then asked the principal Appellant to confirm that she had attempted to get a divorce and she confirmed the same. When asked when she had attempted to get a divorce, the principal Appellant started to recite events from her narrative including when three masked men came to her father's house and her father's response. The RPD repeated the question and pointed out that earlier she testified to have never considered a divorce while in India. She then said her father had approached VAP who allegedly said he would never agree to a divorce because of his reputation. She then immediately went on to refer to the police and religious gurus. For a third time, the RPD asked her to describe what steps she took to obtain a divorce in India, to which she said her father discussed the topic with VAP but VAP refused. [32] The principal Appellant testified that she never considered getting a divorce in India because she was trying to save her life. She also testified that she made attempts to get a divorce while in India. Despite making several efforts, the RPD was unable to get the principal Appellant to explain this discrepancy. These two statements cannot be reconciled. [33] The principal Appellant's marriage to VAP is foundational to her claim. She should be able to clearly and consistently answer questions about whether she considered divorcing VAP and, if so, what steps she took. I also find that her need to preface her answers by going back to unrelated facts in her narrative makes it sound like she memorized her narrative as opposed to spontaneously recounting her lived life, and that undermines her credibility. In addition, I find the discrepancy in the evidence about whether the principal Appellant attempted to get a divorce in India which was not reasonably explained undermines her credibility in general. [34] The RPD made other negative credibility findings about how the Appellants obtained certain documentary evidence. I do not need to address those findings as I find the credibility findings made above to be determinative. CONCLUSION [35] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Jennifer A. Moore February 7, 2023 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 111(1)(b) & s. 111(1)(c). [IRPA]. 2 IRPA s. 110(4). 3 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, 2007 FCA 385 at para. 13. 4 Refugee Appeal Division Rules, SOR/2012-257, Rule 3(3)(g)(iii). 5 Appellant's Record, pp. 21-23 (of PDF). 6 IRPA, s. 110(6). 7 Huruglica v Canada (Citizenship and Immigration), 2016 FCA 93. 8 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 9 Chairperson's Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board 10 Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues. 11 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 12 Orelien v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 592 (C.A.); (1991), 15 Imm. L.R. (2d) 1 (F.C.A.). 13 Dan-Ash v. Canada (Minister of Employment and Immigration), [1988], 93 N.R. 33 (F.C.A.). 14 Zheng v. Canada (Minister of Citizenship and Immigration), 2007 FC 673, at para 17 citing Aguebor v. (Canada) Minister of Employment and Immigration (F.C.A.) [1993] F.C.J. No. 732 (QL). 15 Kaushal v. Vasudeva et al., 2021 ONSC 440. 16 Gjergo v. Canada (Minister of Citizenship and Immigration), 2004 FC 303. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC2-07803 VC2-07804 RAD.25.02 (August 20, 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 (August 20, 2021) Disponible en français