MB7-07436

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 : MB7-07436 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 / heard at Montréal, Quebec Appel instruit à Date of decision October 2, 2018 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Jeanne Larochelle 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 Refugee Appeal Division (RAD) confirms the determination of the Refugee Protection Division (RPD), namely, that the appellant, XXXX XXXX XXXX, is not a "Convention refugee" or a "person in need of protection" within the meaning of section 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appeal is dismissed. FACTUAL BACKGROUND [3] The appellant states that he is from XXXX, Gujurat State, India. He alleges that his life is being threatened by two of his paternal uncles, who allegedly illegally took over his father's house and some of his land. [4] In his Basis of Claim Form (BOC Form), the appellant alleges that in 2008, he had to go into hiding in XXXX, a village located 20 kilometres from XXXX, because he had been beaten by his father's brothers, who wanted to take the family's land. In 2009, the appellant went to London to study. Thinking that the property dispute had been resolved, he returned to XXXX in 2012. On his return, his father informed him that he had signed a "Stamp paper" with his brothers. Since then, his uncles have been behaving as though they own the land and the house. [5] The appellant alleges that his uncles want to kill him in order to prevent him from reclaiming the land and house that he is allegedly to inherit when his father dies. [6] The appellant states in his BOC Form that after his wedding, which was in 2013, he went to Malawi with his wife. When his visa expired in 2014, he returned to XXXX, where he opened a business, which he had to close in November 2016 because of losses incurred as a result of some government decisions. The appellant alleges that the problems with his uncles did not stop and for that reason, his wife went to live with her parents. He went into hiding in different places in India, but his uncles continued looking for him in order to kill him. [7] Fearing for his safety, he left India in March 2017 to seek refugee protection in Canada. Impugned decision [8] After an analysis under section 97 of the IRPA, the RPD rejected the claim for refugee protection, concluding that credibility was the determinative issue. In essence, the RPD found that the appellant had not met his burden of establishing the facts at the heart of his refugee protection claim, particularly the existence of a dispute over property belonging to his father. He also did not establish that he had to go into hiding because his uncles wanted to kill him. GROUNDS OF APPEAL [9] In the appeal, it is argued that: * The RPD erred in assessing his credibility and by failing to analyze whether he would face an objective risk of persecution if he were to return to India;1 * The RPD violated the principles of natural justice because [translation] "at the hearing, the panel did not mention the documentary evidence at any point and the claimant did not have to answer questions on that subject;2 * The RPD erred in law by not allowing the claimant to comment on the documentary evidence in the National Documentation Package (NDP) on India, which contradicts its conclusion.3 SCOPE OF THE APPEAL [10] The RAD must determine whether the RPD decision is correct,4 except in cases where the credibility of the oral testimony is at issue and the RPD enjoys an advantage, in which case the RAD must assess the findings using the reasonableness standard, modified to its specific context. 5 If an error of fact, of law or of mixed fact and law was committed, the RAD must intervene using one of the means set out in sections 110 and 111 of the IRPA. ANALYSIS [11] First, the RPD was right to conduct an analysis under section 97 of the IRPA. The facts as alleged do not suggest that the appellant's fear has a nexus to one of the five grounds of the Convention. [12] Based on my independent review of all of the evidence and having listened to the recording of the hearing, I conclude that the appellant has not established that the RPD erred in finding that he did not meet his burden of establishing, on a balance of probabilities, the existence of a conflict that pitted him and his father against his father's brothers (the appellant's uncles). He also has not established that the RPD erred in deciding that the inconsistencies in the evidence led it to find that he did not conclusively establish that he sought refuge in different places because his uncles wanted to kill him. The alleged conflict was not conclusively established [13] The RPD concluded first that the appellant did not conclusively establish the existence of a family conflict relating to property belonging to his father. In arriving at this conclusion, the RPD considered the following factors: * The appellant was unable to explain or to provide details on the nature or the content of the documents, which he called "Stamp papers," signed by his father and his two brothers in 2012; * His father lives in XXXX with no particular problems; * His father has taken no legal action to recover the land or the house that the appellant claims were taken from them; * The appellant provided no evidence to establish that his father approached the Panchayat to intervene in order to resolve the dispute between him and his brothers. [14] The appellant submits that the RPD misinterpreted his testimony as to why he fears returning to India and that it gave too much weight to the lack of documents. [15] With respect, I do not believe that the RPD misinterpreted the appellant's statements about the alleged fear. [16] In my opinion, the factors mentioned by the RPD, when considered in context and more broadly, call into serious question the alleged conflict. It is also curious that the appellant, who alleges that he reported to police the fact that his uncles took his father's property illegally, is unable to provide details about the "Stamp paper" that his father and his uncles allegedly signed in 2012. [17] Corroborative evidence is certainly not necessary; however, when a serious doubt is planted in the decision-maker's mind, it can become necessary. This is the case here, given the vague testimony provided by the appellant and the lack of details about the document his father signed. [18] In my opinion, in this case, the appellant's testimony alone does not support the conclusion that there is any sort of conflict relating to property owned by his father. As the RPD indicated, the same applies to the documents he filed as Exhibit P-1, which cannot be used to corroborate the appellant's statements about the existence of a conflict. Places of residence [19] The RPD did not err in calling into serious question the appellant's statements that he had to go to different places in India because his uncles want to kill him. In my opinion, the RPD was correct to note that the information at question 12 of form IMM-5669 indicates that the appellant has always lived at the same address in India, that is, in XXXX,6 where he claims to have run a business and where his father, age 51, continues to reside with no particular problems. In addition, I also noted that the information at question 8 of that form indicates that when he returned from London in August 2012, the appellant worked on the family farm until he left for Malawi in November 2014. Then, on return from Malawi in September 2015, he went back to work on the family farm until he left for Canada in March 20177. [20] Although it is not determinative, I cannot ignore the appellant's claims that he was beaten by his uncles in 2008 because he opposed their taking over family land. He also stated that he had to flee the village of XXXX in January 2013 because his uncles were after him. According to his testimony, he tried to complain to the police but was unsuccessful because they did not want to intervene in a private conflict. Yet, the appellant returned to India after a visit to England. In addition, he returned to India after a visit to Malawi. In my opinion, these return trips to XXXX, which is located 20 kilometres from his father's land, suggest that the situation is not as alleged. If the danger were as alleged, why did the appellant return to XXXX after his visit to Malawi? [21] This element also, when considered with all of the evidence, indicates that the alleged facts were not established conclusively. Obligation to confront with the documentary evidence [22] The appellant criticizes the RPD for not confronting him with the documentary evidence but does not mention what type of information or evidence he should have been confronted with. It is worth noting that, in this case, the RPD decided that the appellant did not establish that his uncles were after him because of his opposition in a dispute they were having with his father. The RPD also did not believe that the appellant went elsewhere in India to get away from his uncles. In this context, I do not see which document in the National Documentation Package (NDP) the RPD should have confronted him with. Failure to assess whether the appellant would face an objective risk of persecution in India. [23] The appellant submits that the RPD did not provide sufficient reasons for its decision. He claims [translation] "that he cited two separate grounds for his fear of returning to India," the fear of his uncles and the fear of the police as a [translation] "failed refugee protection claimant."8 [24] With respect, I am surprised by this argument. A review of the evidence does not support a finding that the appellant cited two separate grounds for his fear of returning. First, in his BOC Form, nothing is mentioned about this matter, and the statements made at the hearing related to the father's property. Finally, his counsel's argument also did not relate to the appellant's fear of returning because he would be a failed refugee claimant. [25] Consequently, I am of the opinion that the appellant has not established that the RPD erred. CONCLUSION [26] For these reasons, I confirm the determination of the RPD, namely, that the appellant, 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. [27] The appeal is dismissed. Maria De Andrade Me Maria De Andrade October 2, 2018 Date IRB translation Original language: French 1 Appellant's memorandum, page 19. 2 Appellant's memorandum, page 20. 3 Idem. 4 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 5 X (Re), 2017 CanLII 33034 (CA IRB). 6 RPD record, page 33. 7 RPD record, page 32. 8 Appellant's memorandum, page 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB7-07436 7 RAD File No. / N° de dossier de la SAR : MB7-07436 7 RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-07436 6 RAD File No. / N° de dossier de la SAR : MB7-07436 5 RAD File No. / No de dossier de la SAR : MB7-07436 2