TC2-22771

RAD File / Dossier de la SAR : TC2-22771 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision March 6, 2023 Date de la décision Panel K. Qureshi Tribunal Counsel for the person who is|are the subject of the appeal Viken G. Artinian 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 BACKGROUND [1] XXXX XXXX XXXX (Appellant) is a citizen of India. His Basis of Claim (BOC)1 alleges as follows. [2] The Appellant says his brother, NS, filed a case against their parents seeking property, and that his brother is linked with area goons and police. He says his brother threatened him and the police accused him of being involved with Sikh radicals. The Appellant visited Canada from XXXX 2018 to XXXX 2019. He says his brother-in-law, GSS, is very close to his brother and has ties to the Indian mafia and is involved in illegal activities. He says his brother-in-law wanted him to participate in illegal activities and he refused. He says his brother-in-law targeted him through a false police case on XXXX XXXX, 2019. He says the police would raid his house and on XXXX XXXX, 2019, he was arrested. He says he was tortured and told to give his property to his brother, and accused of helping anti-nationals. He was released upon payment of a bribe and then relocated to Shimla and Mohali. He says an agent was retained to arrange his safe departure and he returned to Canada on XXXX XXXX, 2019. He says since he arrived, the police have been looking for him. [3] The Minister of Citizenship and Immigration (Minister) intervened at the hearing in writing. The Refugee Protection Division (RPD) rejected the claim based on credibility. The Appellant appeals to the Refugee Appeal Division (RAD). He does not present new evidence. DECISION [4] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). The determinative issue is credibility. ANALYSIS [5] My role is to look at all the evidence and decide if the RPD made the correct decision.2 RAD does not draw negative inferences over the following omissions from the BOC [6] The RPD drew negative credibility concerns over omissions in the BOC. For example, the RPD found the Appellant failed to mention in his BOC that his brother had sent goons to threaten him if he did not instruct his parents to transfer property to the brother, that he did not mention the name of the complainant to the police, GS, or that his brother-in-law has connections with DSG, a politician. The RPD also found the BOC did not mention that there is a relationship between the Appellant's brother-in-law, his brother and DSG, or that his brother-in-law is involved in illegal activities, or that he had to leave his brother-in-law's home in XXXX 2018 because his brother-in-law wanted him to sell his property and give him the money. [7] Based on my review, I note that the Appellant's original BOC does indicate that his brother is seeking the family property and threatened him, does mention that GS was the complainant to the police,3 and does mention that the Appellant's brother-in-law is involved in illegal activities.4 As well, the amended BOC does mention that the Appellant's brother and brother-in-law are working together.5 While the BOC does not mention that in XXXX 2018 the Appellant had to leave his brother-in-law's house because the brother-in-law wanted him to sell his property, I note that the Appellant does mention that he was targeted by the brother-in-law over land.6 Therefore, I do not draw negative credibility inferences over the foregoing on the basis that the information either was included in the BOC or subsequent amendments, or are additional details. Failure to mention DSG in the BOC undermines credibility [8] However, I agree with the RPD that the Appellant's failure to mention DSG in his narrative or in any of his amendments undermines his credibility. Specifically, the Appellant testified at the hearing that his brother-in-law in Canada is friends with DSG, who is allegedly a member of legislative assembly (MLA), and who helped to arrange the false complaint to the police be lodged against him.7 I find the allegation that there is an important and specific political figure involved in the Appellant's claim is not just a detail, as he submits,8 but is important information because it is relevant to the agent of harms' ability to target him. The Appellant's failure to provide an explanation, or suggestion that his narrative would be too long, is not reasonable given that his narrative is long and detailed, and he submitted several amendments. I therefore agree with the RPD that the Appellant's failure to mention DSG in his BOCs is an important omission. [9] The Appellant contests the RPD's failure to give weight to photographs of DSG with his brother-in-law.9 Based on my review, while I have considered these photos, I find there is insufficient evidence to establish DSG is involved in targeting the Appellant. That is, it appears the Appellant's belief that DSG is involved in the targeting is extrapolated from his belief that his brother-in-law and DSG are involved in illegal sand mining together.10 While I accept that the RPD erred to the extent that it required corroborative documentary proof of DSG's involvement, as the Appellant submits,11 I nevertheless find the Appellant's belief that DSG is involved in targeting him is speculation, and not established simply through photos of his brother-in-law with DSG. Failure to claim and return to India indicates a lack of subjective fear and undermines credibility [10] The RPD found the Appellant's failure to claim refugee protection in Canada between XXXX 2018 and XXXX 2019, and then subsequent return to India in XXXX 2019, undermined that he had subjective fear, and his credibility. The RPD rejected the Appellant's explanation that, at that time, both of his parents were still alive and he believed they could resolve the issues with his brother. The Appellant states in this appeal12 "Considering the high importance and respect culturally given to one's elders" in the Indian community and the "realistic and reasonable nature" of his hope for a solution in XXXX 2019, and the "extreme and permanent consequences of a refugee claim," it was reasonable for him to make sure he had no other alternatives available to before claiming protection. Also, that the more serious incidents of detention and torture occurred after he returned to India in XXXX and XXXX 2019, and that his decision to leave India was taken after the XXXX 2019 incident. [11] I am not persuaded. According to the Appellant's evidence, in XXXX and XXXX 2018, which is before he arrived in Canada in XXXX 2018, his brother had him threatened by goons and twice arrested by the police.13 The police demanded that he relinquish his properties to his brother, or else they would accuse him of being involved with Sikh radicals. Despite the seriousness of these incidents, when the Appellant returned to Canada between XXXX 2018 and XXXX 2019, he did not claim refugee protection. Furthermore, he returned to India thereafter. I do not find his explanation that his parents were alive is reasonable. Specifically, there is no evidence that up to the time he returned to India in XXXX 2019, there had been any resolution to his alleged problems with his brother. Contrarily, his brother had not achieved his goal of retrieving the properties, and the Appellant was aware that his brother has influence with the police, and that the police could take steps against him. Therefore, I find the Appellant's failure to claim protection between XXXX 2018 to XXXX 2019, and his subsequent return to India, undermines that he had subjective fear, and his credibility. Allegation of detention in XXXX 2019 is not credibly established [12] The Appellant submits "his problems became significantly more dangerous (abduction and torture) in XXXX 2019. Indeed, the decision to leave India was taken after said incident, because of the level of gravity, not before."14 Accordingly, the RAD has conducted its independent assessment of this incident and finds this allegation has not been credibly established. [13] It was initially the Appellant's evidence that on "XXXX XXXX 2019, I was abducted by police in civil clothes around 3 A.M."15 He then changed this evidence in a subsequent amendment to his BOC to say on "XXXX XXXX, 2019 I wasn't abducted by police in civil clothes around 3 A.M...when I returned home after work around 5 PM, I was arrested."16 In any event, he says he was arrested on XXXX XXXX, 2019. According to a hospital letter he produced, after he was released from detention, he was admitted for medical treatment from XXXX XXXX-XXXX XXXX, 2019.17 He says in his narrative that after he was released from the hospital, he relocated to Shimla and then Mohali.18 Notably, he had a valid Canadian visa throughout this time. [14] However, the Appellant also produced "hotel invoices during relocation in India,"19 and which are issued to him, XXXX XXXX. Contrary to the above allegations, these documents indicate that the Appellant was at "XXXX XXXX XXXX" in Shimla between XXXX XXXX, 2019 and XXXX XXXX, 2019,20 which is during the time he alleges he was either in detention by the police or admitted to the hospital. According to the Federal Court, claimants are presumed to know what is in their own documents.21 I find the Appellant's inconsistent documentary evidence seriously undermines the credibility of his allegation of being detained, tortured and hospitalized in XXXX 2019, his credibility overall and suggests that he has access to, and is willing to use, fraudulent documents for his claim. [15] As an aside, I acknowledge the Appellant produced photos of injuries allegedly inflicted on this occasion, however these photos are undated, and therefore lack probative value with respect to the XXXX XXXX, 2019 alleged detention.22 Lack of corroboration of allegation of ongoing police visits undermines credibility [16] The RPD noted that an affidavit from the Appellant's wife did not mention ongoing visits from the local police and gave this affidavit little or no weight due to its numerous credibility concerns.23 The Appellant submits the RPD's credibility findings were erroneous, each piece of evidence should be evaluated independently, and documentary evidence should not be analysed for information it does not contain.24 [17] Based on my assessment, I do not find the Appellant has credibly established his allegation of ongoing police visits. First, I note that the Appellant's evidence of ongoing police visits is hearsay which does not attract the presumption of truth and may merit little weight.25 Second, the Appellant's wife in India would have direct knowledge of this allegation as he says the police approached her.26 This evidence would be reasonably available to the Appellant since his wife was able to produce an affidavit for the claim. However, there is no mention of ongoing police visits in her affidavit, and the Appellant has not put forward an explanation. Notably, the Appellant also swore in an update to his BOC that the police are visiting his friends, and while he indicated he has an affidavit from a friend in this regard, he did not produce it.27 While this Panel does not assess the affidavit for what it does not say, the Court has held that if there is a valid reason to question the claimant's credibility, the Board may draw a negative inference from a failure to provide corroborative evidence that would reasonably be expected.28 I find the Appellant's failure to produce corroboration of the police visits despite such evidence being reasonably available to him undermines the credibility of this allegation. [18] As an aside, I acknowledge the Appellant provided a letter from a lawyer which mentions ongoing police visits. However, it does not appear that this information is in the lawyer's firsthand knowledge29 and therefore I give this evidence little weight. Possibility of an FIR does not establish the Appellant is entitled to refugee protection [19] The Appellant produced a First Information Report (FIR) that he says pertains to a false case filed against him.30 The RPD31 did not doubt the FIR's authenticity but noted that the complaint is registered against three unknown individuals and does not name the Appellant, despite the Appellant alleging that the goal of the FIR was to victimize him. The RPD acknowledged that the FIR contains a vehicle registration number, but stated that a document the Appellant produced to link the vehicle registration number to himself was not legible. The RPD found, in any event, that despite the filing of an FIR, no other formal procedures have been undertaken by local police, no arrest warrant has been issued, and the Appellant did not establish that there have been ongoing police visits in search of him. [20] The Appellant submits the RPD was unreasonable in expecting him to know why his name is not mentioned in the FIR and that he did provide a copy of an online verification form confirming the vehicle mentioned in the FIR is registered to him, which the RPD disregarded.32 [21] Based on my assessment, I note, first, that the Appellant is capable of accessing and producing fraudulent documents, as discussed. Nevertheless, even if the vehicle referenced in the FIR is registered to the Appellant, for the following reasons, I do not find this is significant or determinative. [22] Specifically, as indicated by the RPD, there is no evidence that the police have taken any other steps against the Appellant, such as formal charges or a warrant, assuming they are even able to trace the vehicle to him. Rather, it was the Appellant's evidence that when he was beckoned to the police station on XXXX XXXX, 2019, he was released later that day upon payment of a bribe.33 Furthermore, as previously described, I do not find the Appellant has credibly established there are ongoing police visits. Therefore, in the event the FIR is genuine and the named vehicle is duly registered to him, that the foregoing indicates the police are not interested in pursuing the Appellant as a result of the FIR registered in March 2019. [23] Second, the Appellant's claim revolves around his brother and brother-in-law targeting him over property. For example, he stated at the hearing that he was arrested by the police on the instructions of his brother and brother-in-law, and that the police told him to relinquish the property.34 Also, when he was asked what is the motivation of the agents of harm to pursue him, he stated "they want to grab my property."35 When he was asked why he feared his brother, he said his brother was disowned by his parents and, as a result, he has been pressuring him for the property.36 His counsel also confirmed that the Appellant's "problems have started basically because of his brother and his brother-in-law who wanted to grab his properties in India."37 However, the Federal Court has repeatedly stated it is not unreasonable to expect a claimant to abandon land in order to protect their life.38 In fact, in Olori, the Court found this may have been sufficient to dispense with the appeal.39 In Singh, the Court repeated the Federal Court of Appeal's comments in Sanchez,40 ...persons claiming to be in need of protection solely because of the nature of the occupation or business in which they are engaged in their own country generally will not be found to be in need of protection unless they can establish that there is no alternative occupation or business reasonably open to them in their own country that would eliminate the risk of harm. [24] Therefore, I find the Appellant's problems could be resolved by relinquishing his claim to the disputed property. Notably, in the Appellant's case, his livelihood is not tied to property ownership, given that he worked as a XXXX XXXX in the United Arab Emirates and owned a XXXX in India.41 [25] Third, I acknowledge the Appellant's evidence that the police accused him of militancy. While I agree with the RPD42 that the objective evidence indicates Sikh activists are perceived to be threats to the stability of the ruling government and are subjected to police and/or legal harassment, I also agree with the RPD that this is not the Appellant's profile. Specifically, despite the police threatening to level accusations of militancy since 2018, as noted by the RPD,43 the police never actually pursued any such case against the Appellant and, rather, released him upon payments of bribes. Notably, even the fraudulent case he says he is implicated in is based on an accusation that he beat someone who taste-tested a sugar cube, and is not related to militancy. I find this further indicates that the police are not interested in pursuing the Appellant for militancy, or at all. [26] Finally, the Appellant submits in this appeal that allegations of militancy and terrorism are not only reserved for real members, but that the police use such allegations as a tool to harass and target Sikhs, and that his agents of persecution could use their connections in the police to further target him.44 [27] I am not persuaded. Based on my review, as discussed, it was the Appellant's evidence that the police harassment was at the behest of his brother and brother-in-law to force him to relinquish his property. Accordingly, it follows that the Appellant relinquishing the property would also resolve any police harassment. CONCLUSION [28] Overall, I find the Appellant has not credibly established that he faces a serious possibility of persecution or, on a balance of probabilities, a risk to life or of cruel and unusual punishment or treatment, or danger of torture. [29] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection pursuant to paragraph 111(1)(a) of the IRPA. (signed) K. Qureshi K. Qureshi March 6, 2023 Date 1 RPD Record, Exhibits 2, 6, 7, and 8, at pp. 54, 160, 285, and 24. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 RPD Record, Exhibit 2, p. 24. 4 Ibid., p. 24, para. 7. 5 Ibid., Exhibit 8, p. 285. 6 Ibid. 7 Transcript of the RPD hearing, 12 July 2022, p. 5; see also Transcript of the RPD hearing, 9 May 2022, starting at p. 11. 8 Appellant's Record, p. 4, para. 11. 9 Ibid., p. 5, paras. 17-18. 10 Transcript of the RPD hearing, 9 May 2022, starting at p. 16. 11 Appellant's Record, p. 4, paras. 12-13 ; see also RPD Record, Exhibit 2, p. 24. 12 Appellant's Record, p. 7, paras. 31-32. 13 RPD Record, Exhibit 2, p. 25; see also Transcript of the RPD hearing, 9 May 2022, at pp. 12-13. 14 Appellant's Record, p. 7, para. 32. 15 RPD Record, Exhibit 2, p. 25. 16 RPD Record, Exhibit 6, p. 30. 17 Ibid., Exhibit 5, p. 206. 18 Ibid., Exhibit 2, p. 25. 19 Ibid., Exhibit 5, p. 153. 20 Ibid., p. 198. 21 Konare v. Canada (Citizenship and Immigration), 2016 FC 985 (CanLII), at paras. 15-16. 22 RPD Record, Exhibit 5, p. 216. 23 RPD Record, RPD Reasons, pp. 10-12, paras. 31-32, 38. 24 Appellant's Record, p. 6, paras. 25-26. 25 Singh v. Canada (Citizenship and Immigration), 2022 FC 1764, At para. 14; Guo v. Canada (Citizenship and Immigration), 2022 FC 380 at para. 17-18; Ferguson v. Canada (Citizenship and Immigration), 2008 FC 1067 at para. 26. 26 Transcript of the RPD hearing, 9 May 2022, p. 10. 27 RPD Record, Exhibit 5, p. 160. 28 Ndjavera v. Canada (Citizenship and Immigration), 2013 FC 452 (CanLII), at para. 7; see also Pazmandi v. Canada (Citizenship and Immigration), 2020 FC 1094 (CanLII), paras. 18-32; see also Ni v. Canada (Citizenship and Immigration), 2022 FC 460, at paras. 16, 22. 29 RPD Record, Exhibit 5, p. 163. 30 RPD Record, Exhibit 5, p. 165. 31 Ibid., RPD Reasons, pp. 11-12, paras. 35-39. 32 Appellant's Record, pp. 7-8, paras. 33-38. 33 Transcript of the RPD hearing, 12 July 2022 at p. 14; see also p. 7, line 50. 34 Ibid., p. 10. 35 Ibid., p. 13. 36 Transcript of the RPD hearing, 9 May 2022, p. 11. 37 Transcript of the RPD hearing, 12 July 2022, p. 23. 38 Olori v. Canada (Citizenship and Immigration), 2021 FC 1308 (CanLII); see also Singh v. Canada (Citizenship and Immigration), 2021 FC 810 (CanLII). 39 Olori v. Canada (Citizenship and Immigration), 2021 FC 1308 (CanLII), at para. 33. 40 Singh v. Canada (Citizenship and Immigration), 2021 FC 810 (CanLII), starting at para. 32 41 RPD Record, Exhibit 6, p. 29, para. 3; see also p. 160. 42 RPD Record, RPD Reasons, pp. 12-13, paras. 40-41. 43 Ibid., p. 12, para. 40. 44 Appellant's Record, p. 9, paras. 43-44. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC2-22771 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