MB5-00542

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. / No de dossier de la SAR : MB5-00542 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision August 13, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Marie-José Blain Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX, a citizen of India, is appealing against the decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim by determining that he was not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] In the appeal memorandum, the appellant's counsel is asking the Refugee Appeal Division (RAD) to [translation] "set aside the panel's determination and recognize the appellant's refugee status."1 He is also asking the RAD [translation] "to obtain a written transcript or to listen to the recordings in their entirety in order to form an opinion as to the appellant's credibility or hold a hearing."2 [3] The appellant did not submit any new evidence on appeal under subsection 110(4) of the IRPA. [4] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [5] Under subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [6] The appeal is dismissed. BACKGROUND [7] This is the second time that the RAD has an appeal before it concerning this refugee protection claim. The RPD rendered an initial decision on December 9, 2013, finding that the claimant's credibility was the determinative issue because of [translation] "his vague, imprecise and laboured testimony. At times, he did not respond directly to the questions and merely repeated his account." My RAD colleague referred the matter to the RPD for re-determination of the claim, being of the opinion that the negative credibility findings were unreasonable and that there was no analysis of an internal flight alternative (IFA) or of state protection. [8] On January 6, 2015, the RPD again rejected the appellant's refugee protection claim. That decision is the subject of this appeal. [9] In the Basis of Claim Form (BOC Form), the appellant alleges that he fears for his life because family members of XXXX XXXX, a young girl with whom he had a romantic relationship, want to kill him. They hold him responsible for her death. XXXX XXXX is a Hindu and comes from a rich, influential family. The appellant is a Sikh and comes from a farming family. He states that he is a member of the middle class. [10] He alleges that he met XXXX at the time of the Jalandhar festival. They liked each other and started to see each other secretly. In XXXX 2013, XXXX informed her family of her wish to marry the appellant. The family was opposed and prevented the young woman from leaving the house. [11] He alleges that on XXXX XXXX, 2013, he was attacked by five men who threatened to kill him if he did not stop seeing XXXX. Following the attack, the appellant was taken to a clinic to receive medical care. During his stay at the clinic, a police officer came to take his statement. When he was informed of the identity of his girlfriend's father, he refused to take the complaint. [12] He alleges that after he was released from the clinic, he was summoned to the police station, where he was fingerprinted and photographed. The police inspector made him sign blank documents. He was also informed that false charges would be laid against him and that he would end his days in prison if he contacted the young woman again. [13] XXXX later contacted him, and on XXXX XXXX, 2013, they met in a Hindu temple. XXXX informed him that her parents had severely beaten her because she refused to marry the young man whom they had chosen. Caught unawares by XXXX brothers, the couple was attacked. The appellant managed to hide in a Sikh temple, where he stayed until late in the evening. When he contacted his family, they recommended that he not come home and informed him that XXXX had killed herself. He thinks that her brothers poisoned her. [14] The appellant alleges that his family was attacked and that XXXX brothers were looking for him to kill him. He left the temple and sought refuge at a friend's home in Chandigarh. There, he learned that XXXX brothers had paid the police a considerable bribe so that they would charge him with XXXX death. The appellant contends that he stayed at his friend's home for two days because the police managed to track him down. Then, he fled to his uncle's home in Delhi. [15] His uncle travelled to Punjab to assess the appellant's situation. Upon his return, he informed him that he was suspected in XXXX death. Fearing that they would have to shelter him permanently, his family and his uncle retained the services of an agent to organize his departure from India. That is how the appellant came to arrive in Canada on July 11, 2013. He claimed refugee protection upon his arrival. Impugned decision [16] On January 6, 2015, the RPD again rejected the refugee protection claim, finding that the claimant's credibility was compromised and that he had an IFA in Delhi. [17] Regarding his credibility, the RPD notes in paragraph 17 that [translation] "the claimant testified hesitantly and answered the questions in a manner that suggested that he wanted to recite an account; he did not respond spontaneously to the questions and skipped directly to the dates of the events in the written account. His testimony lacked credibility." [18] The RPD also raised contradictions between the BOC Form and his oral testimony. It noted the following: - The claimant stated at the hearing that in January 2013, he was taken by force to the police station, while according to his written statement in his BOC Form, he was summoned to the station. Since his explanations were insufficient to justify the inconsistency in his statements, the RPD drew a negative inference as to his credibility. - The statement changed regarding where he sought refuge after the alleged attack on XXXX XXXX, 2013. First, he stated that he went to a friend's home and then to another friend's home before going to his uncle's home. Then he changed his testimony and stated that he went to a friend's home and then to his uncle's home. The RPD also found that the completed forms did not mention his stay in Delhi between May and July 2013. - Doubting his credibility, the RPD noted that he did not provide any credible evidence to corroborate the elements in his account, namely, the existence or death of Puja, the existence of her family or their renown. - Alternatively, it concluded that the refugee protection claimant had an IFA in Delhi. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's arguments [19] In support of his appeal, the appellant points out that the RPD committed a number of errors in its assessment of his credibility and that it [translation] "clearly ignored some important facts regarding the appellant's particular situation." [20] He submits that sworn testimony is presumed credible unless there are valid reasons to doubt it. The RPD erred and did not consider the particular context of his claim by drawing a negative inference regarding the absence of a death certificate and the existence of XXXX. [21] Relying on the decisions in Singh Amrik v. MCI3 and in Ali Abbas v. MCI,4 he submits that it was wrong for the RPD to take into account his failure to indicate his two-month stay in Delhi in questions 8 and 12 of the completed forms. [22] Regarding the IFA, the RPD did not consider the documentary evidence, namely tabs 14.4 and 14.8 of the national documentation package, regarding the problems encountered by [translation] "people seeking refuge when they have problems with the police in other regions of their country."5 [23] It also did not consider that the documentary evidence mentions [translation] "that it is very hard, particularly for Sikh farmers...to relocate. ...or the fact that the appellant speaks only Punjabi, and it would then be very difficult to live in a city like Delhi, where the spoken language is Hindi. ...that registering tenants is mandatory." [24] Overall, he submits that the member did not assess all the factors related to the IFA. THE RAD'S ROLE AND FUNCTIONS [25] In his memorandum, the appellant emphasizes the decision rendered by Justice Phelan in Huruglica and points out that according to Justice Phelan, the RAD: ... may substitute the determination which "in its opinion, should have been made". One precondition of exercising this power is that the RAD must conduct an independent assessment of the application in order to arrive at its own opinion. It is not necessary, in order to trigger this remedial power, that the RAD must find error on some standard of review basis. (emphasis in the appellant's memorandum) [26] The appellant submits that the RAD has the jurisdiction to make its own findings regarding the appellant's credibility.6 [27] Since an appeal before the RAD is a statutory remedy, its mandate and powers are defined in its home statute, the IRPA. [28] The statutory provisions indicate precisely the allowable grounds for appeal7 as well as its "remedial powers." In this regard, Parliament allows the RAD to confirm the determination of the RPD, set it aside and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.8 [29] The Federal Court, in being called on to determine the appropriate type of review to be undertaken by the RAD regarding decisions rendered by the RPD, recognizes the RAD's "expertise" on refugee-related matters. The Court is of the opinion that broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of appeals",9 and states that "[t]he idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA".10 Although these opinions are shared by a number of judges, the Federal Court is faced with two key lines of case law. [30] According to the proponents of the first line of case law put forth by Justice Shore: [27] ...the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts. ...11 [31] Justice Roy and Justice Leblanc also concur that an error must be "palpable and overriding to succeed on appeal."12 Justice Roy notes that appeals before the RAD are meant to be generous but adds that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety."13 Justice Roy also states that "[i]t will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4)."14 [32] Justice Phelan proposes a different approach in Huruglica.15 He states that the "RAD is required to conduct a hybrid appeal." [33] The RAD 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."16 [34] Justice Phelan, when writing about the deference that the RAD owes to findings of the RPD, states that it may be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative". Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states, "there is no reason for the RAD to defer to the RPD on this type of assessment." [35] As this is the second appeal before the RAD for this refugee protection claim, I will take the approach proposed by the appellant. I will assess all the evidence in the record in order to come to my own opinion regarding his credibility and render the appropriate decision based on all the evidence in the record. ANALYSIS [36] The RPD found on two occasions that the appellant's credibility was undermined because his testimony was not spontaneous and because he did not answer the questions directly. In the decision on January 6, 2015, the RPD indicated that his manner of testifying suggested that he wanted to recite an account. Alternatively, it concluded that the appellant has an IFA in Delhi. [37] In Gjergo v. Canada (Minister of Citizenship and Immigration), 2004 FC 303, Justice Harrington reiterated the following: ... the panel may take into account the demeanor of an applicant during his testimony. When the witness has difficulty giving adequate and direct answers, the panel may make a negative credibility finding. [38] The assessment of credibility is a complex question of fact for which the RPD is generally in an advantageous position compared to the RAD because it has the advantage of seeing and hearing the refugee protection claimants and witnesses.17 In this case, the RAD will not have this privilege because the requirements in subsection 110(6) of the IRPA have not been met. [39] I listened to the recording of the latest hearing and carefully assessed all the evidence to form my own opinion about this refugee protection claim. [40] Like the two RPD members, I am of the opinion that the appellant's credibility is critical. I am of the opinion that it is determinative in this refugee protection claim. As he is not credible, there is no cause to assess the IFA since he did not establish a serious possibility of persecution or that it is likely that there would be a risk to his life in Punjab. State protection is also not an issue when credibility is seriously undermined. [41] The burden of proof rests with the appellant, who must establish his allegations on a balance of probabilities and not just establish that they are plausible. [42] In listening to the recording of the hearing, I noted that to the member's first question as to when he left his village, Bhadma, Punjab, the appellant answered: in XXXX 2013.18 [43] This first answer, combined with the fact that in question 12 of the IMM-5669 form,19 completed at the airport with the assistance of a Punjabi interpreter, his stay in Delhi was not indicated and that it was mentioned in question 8 of the same form,20 and that he worked in Punjab until XXXX 2013, raises serious doubt as to his oral statements that he stayed in Delhi for two months. In addition, according to what is indicated in paragraphs 13 and 14 of the initial decision, the appellant reportedly [translation] "explained that he arrived at his uncle's home on XXXX XXXX XXXX XXXX, 2013." [44] In light of the evidence, I find that the appellant did not meet his burden of establishing, on a balance of probabilities, that he stayed in Delhi from the end of XXXX 2013 until XXXX XXXX 2013. He therefore did not establish that he left Punjab in XXXX XXXX 2013 for the reason alleged. Police summons [45] Asked what he did when he was released from the hospital in January 2013, the appellant stated, [translation] "I went home after the hospital. Two days later, the police came to my home. They questioned my father about me. My father asked, what do you want with him? They stated that they wanted to take me to the police station and that they would explain to me at the station. The two police officers pushed me onto the bicycle to take me to the station." [46] Yet in the BOC Form the appellant gives a different version of how things transpired. The account in the appended BOC Form states the following: "After few days, police called me at the police station." [47] Asked to explain this inconsistency, he stated that he took a "short cut" to explain himself.21 I find this explanation insufficient to justify this inconsistency, which does not seem to be trivial to me. His credibility is again seriously undermined. [48] Finally, I also considered the sworn statements that he made at the initial hearing. They are summarized in paragraph 16 of the initial decision. The sworn statements following the XXXX XXXX, 2013, incident state the following: [translation] "he went to his friend's home in Chandigarh for two days, then to a gurdwara for three days, then he tried to go to the home of another friend who refused, so he returned to his friend's home in Chandigarh, who also refused but sent him to another friend of his, where the claimant stayed for 10 days, and finally, he went to his uncle's home in New Delhi. When asked about the omission of this information in the BOC Form, he informed the member that he wanted to keep his account as short as possible. When questioned at the second hearing, he did not refer to the same stops. This combined with the other inconsistencies leads me to conclude that the appellant is probably not telling the truth. [49] These inconsistences in the evidence and his manner of testifying, which suggests that he was reciting a memorized account, are enough to justify an overall negative credibility finding. In this regard, the Federal Court of Appeal states in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238, [1990] F.C.A. No. 604 (QL), that: The finding of a lack of credibility in the claimant's testimony may be extended to all relevant evidence emanating from that testimony. Within the legislative framework of the current Act, "a tribunal's perception that a claimant is not credible on an important element of their claim can amount to a finding that there is no credible evidence to support the claim". [50] In this context, it is not enough to submit an affidavit for which it is nearly impossible to question the affiant in order to ascertain the truthfulness of the facts therein reported, especially because the documentary evidence states how easy it is to obtain false documents in India.22 [51] Since the appellant's credibility is seriously undermined, documents R-523 and R-624 cannot compensate for his lack of credibility. Regarding the affidavit filed under R-6, I note that the sarpanch states that the appellant's family no longer lives in the village because of the problems encountered. Yet the appellant failed to mention this at the hearing or in the BOC Form. I am of the opinion that this fact, if it is true, should have been mentioned. This raises doubts as to what the appellant alleges. [52] Regarding the alleged ties of his girlfriend's family to politicians and the police, I would like to point out that the appellant did not establish that he made reasonable efforts to establish his allegations, namely, the fact that the paternal uncle of his girlfriend allegedly held an important position in his district's police institution. I am of the opinion that if this were the case there would probably be traces of this fact. Of course, a refugee protection claimant does not have to corroborate the allegations of their claim. However, when their credibility is in doubt, there is cause to consider the efforts made to establish the alleged facts, especially because in this case, it was not the first time that the appellant was heard by the RPD. CONCLUSION [53] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [54] The appeal is dismissed. Maria De Andrade Me Maria De Andrade August 13, 2015 Date IRB translation Original language: French 1 Appellant's memorandum, page 24. 2 Appellant's memorandum, page 16. 3 Singh Amrik v. Canada (Minister of Citizenship and Immigration), No. IMM-2835-95. 4 Ali Abbas v. Canada (Minister of Citizenship and Immigration), No. IMM-4565-99. 5 Appellant's memorandum, page 23. 6 Appellant's memorandum, page 17. 7 Subsection 110(1) of the Immigration and Refugee Protection Act (IRPA): "Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection." 8 Subsection 111(1) of the IRPA. 9 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 10 Idem. 11 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 12 Spasoja v. Canada (Minister of Citizenship and Immigration), Justice Roy, 2014 FC 913, Lamia Aloulou v. Canada (Minister of Citizenship and Immigration), Justice Leblanc, 2014 FC 1236. 13 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 14 Idem. 15 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 16 Idem. 17 Allalou v. M.C.I., (Minister of Citizenship and Immigration), 2014 FC 1084 para. 17, Sajad v. M.C.I., (Minister of Citizenship and Immigration), 2014 FC 1107, para. 20. 18 CD of hearing, at minute 10:53. 19 Refugee Protection Division (RPD) record, page 97. 20 RPD record, page 96. 21 CD of hearing, at minute 53:28. 22 RPD record, page 141. National documentation package (NDP) on India, dated May 31, 2013, Tab 3.5; India: Availability and prevalence of fraudulent identity documents (2004-2007). Immigration and Refugee Board of Canada (IRB). April 26, 2007. Number: IND102461. NDP on India dated May 31, 2013, Tab 9.7; India: Independence of and corruption within the judicial system, including the scale of corruption at different levels (2009-April 2013). IRB. April 26, 2013. Number: IND104368.E. 23 RPD record, page 208. 24 RPD record, page 209. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-00542 2 RAD.25.02 (2014.09.11) Disponible en français