MB9-06358

RAD File No. / No de dossier de la SAR : MB9-06358 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 / entendu à Date of decision July 30, 2020 Date de la décision Panel Me Love Saint-Fleur 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(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX XXXX, is a citizen of India. He is alleging a fear of returning to his country because the Indian police, which wrongly accused him of working with Khalistan militants, is again targeting him. [2] On March 7, 2019, the Refugee Protection Division (RPD) rejected the appellant's claim for refugee protection because it found that he was not credible owing to contradictions and omissions in his account and the fact that he was reluctant or unable to provide details in his testimony. [3] The appellant is appealing against the RPD's decision. He submitted that it erred in its assessment of his credibility, not taking his testimony at the hearing into account. [4] In my opinion, the determinative issue for the Refugee Appeal Division (RAD) is whether the RPD erred in its assessment of the appellant's credibility. After a comprehensive and independent analysis of the evidence submitted, I am of the opinion that the RPD did not err. DETERMINATION [5] I dismiss this appeal and confirm the RPD's determination. I am of the opinion that the RPD correctly concluded that the appellant is not a Convention refugee or a person in need of protection. BACKGROUND [6] The appellant is a member of the Dalit caste in India. Between 2014 and 2015, he allegedly had an employee by the name of XXXX XXXX. In 2015, the employee reportedly began working for the Khalistan and was hiding from authorities. In XXXX and XXXX 2015, police allegedly made inquiries with the appellant regarding his former employee. On XXXX XXXX, 2016, the appellant was reportedly stopped at a police roadblock and detained and questioned by police for an hour. At that time, the appellant allegedly saw police taking his former employee's wife and a young Sikh in a jeep. After being released, the appellant reportedly notified his former employee's family and provided an affidavit. On XXXX XXXX, 2016, the appellant was allegedly stopped, taken and tortured by police. He was reportedly released the next day after paying a bribe. On XXXX XXXX, 2016, he was allegedly stopped and tortured by police and released after paying a bribe. On XXXX XXXX, 2016, men allegedly shot at the appellant. On XXXX XXXX, he was reportedly questioned by police. On XXXX XXXX, 2016, the appellant allegedly fled India with the help of a smuggler and arrived in Canada the same day. ROLE OF THE REFUGEE APPEAL DIVISION [7] The RAD must apply the correctness standard, in accordance with the Federal Court of Appeal's decision in Huruglica.1 Accordingly, I will carry out my own analysis of the record, including listening to the recording of the hearing, to determine whether the RPD erred. ANALYSIS OF THE MERITS OF THE APPEAL [8] The appellant submitted that the RPD's decision contained numerous errors with respect to its assessment of his credibility. He alleged that the RPD did not assess his credibility in light of his testimony at the hearing. The appellant cites the presumption of truthfulness set out in Maldonado.2 [9] It is established that the "presumption" that a claimant's sworn testimony is true is always rebuttable, and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention.3 That said, it is also established that the presumption of truthfulness of a claimant's allegations is not unchallengeable and can be rebutted when there is some reason to doubt that truthfulness.4 That is the case, for instance, when the evidence is inconsistent with the claimant's sworn testimony5 or when the RPD is not satisfied with the claimant's explanation for the inconsistencies in his account.6 After carrying out my own analysis of the record, I am of the opinion that that is precisely the situation in this case. [10] Specifically, the RPD considered that the appellant was reluctant to testify, did not provide details and evaded the questions he was asked. I listened to the recording of the hearing and I consider that the appellant was indeed vague regarding several aspects of his testimony. For instance, when the RPD asked him to state when he decided to leave India to seek refuge in Canada, he remained silent for a long time without answering. The RPD rephrased the question. After a long silence, he dodged the RPD's rather straightforward question and stated that he had left India on XXXX XXXX, 2016. Despite the fact that his lawyer rephrased the question and asked him to answer, the appellant stated that people continued to attack him, that police alleged he had ties to terrorists, that his life was in danger and that that was why he decided to leave India; yet again, this does not at all answer the question he was asked. [11] When asked by his lawyer to state when he decided to leave India, he answered that it was between 2014 and 2015 and that he came to Canada in 2016;7 since that answer was not clear, the RPD gave him another opportunity to state when he decided to flee his country. The appellant repeated that he had fled because his life was in danger. The RPD went to the trouble of giving him another opportunity to answer, not by providing a date or period, but by stating which incident was behind his decision to leave India. Again, however, the appellant was unable to provide a detailed answer and repeated that his life was in danger and that that was why he left his country.8 [12] In my opinion, these answers are vague and lack spontaneity. The argument alleged on appeal that the RPD should have taken into account the appellant's level of education and the fact that he had never testified before a court and that he understood the impact that the RPD's decision could have on his life in Canada do not explain these vague answers in relation to such a rudimentary aspect of his account. These considerations should not prevent the appellant from spontaneously stating when he decided to flee his country in order to save his life and which incident prompted him to do so, given that he personally experienced the alleged incidents on which his refugee protection claim is based. In light of that, like the RPD, I am of the opinion that his credibility is undermined as a result. [13] This is especially true given that, as the RPD sought an explanation for his inability to state which incident had led him to decide his country and when he decided to do so, the appellant testified as follows: [translation] "Everything that happened is written in my account." [14] The RPD also drew a negative inference from a significant omission in the appellant's Basis of Claim Form (BOC Form). Although he testified at the hearing that his spouse had been raped by police on XXXX XXXX, 2017, it is not mentioned in his BOC Form.9 In my opinion, the answer he gave the RPD to explain this significant omission, namely, that the girl who wrote his account wrote it that way, is not satisfactory. First, the appellant stated that he was the one who told the girl in Punjabi what to write. Second, he had the assistance of a lawyer when preparing and submitting his BOC Form, and, in signing his BOC Form, he indicated that the information provided in his BOC Form was complete, true and correct, which he also confirmed at the beginning of the hearing. In signing his BOC Form, he confirmed that it had been translated to him and that his declaration has the same force and effect as if made under oath. [15] Furthermore, his spouse's rape by Indian police entrusted with protecting Indian citizens is a serious and extremely violent act against someone close to him. The appellant testified that it was the worst incident he had experienced in India. In the circumstances, the fact that he had just eight years of education, had never testified before a court and realized the importance of the RPD's decision on his future in Canada is not sufficient to explain such a significant omission. [16] Moreover, I took into account the appellant's argument on appeal that it was difficult to talk about rape for a person from rural India and that it was only when he appeared before the court that he had the courage to talk about the event. That said, given the severity of the act committed by police, the same authority allegedly looking for him today, the argument that the crime against his spouse was perpetrated in connection with his own alleged problems with police does not, in my opinion, explain the omission noted in a satisfactory manner. In light of that, I consider that this omission undermines his credibility. The RPD did not err. [17] The RPD considered the fact that the appellant contradicted himself regarding essential elements in his account. Whereas he testified that, on XXXX XXXX, 2016, he was assaulted during a meeting of local leaders by them and by police,10 according to his BOC Form, the events unfolded otherwise. On XXXX XXXX, 2016, unidentified men allegedly shot at him on his way back from work, whereas, on XXXX XXXX, 2016, a local leaders meeting was reportedly held, but he was not attacked. The recording of the hearing reveals that the appellant was unable to provide a satisfactory explanation when confronted by the RPD with these contradictions. He first recounted that the XXXX XXXX meeting was held by human rights organizations, whereas he was attacked on XXXX XXXX; this does not at all explain the contradictions noted.11 Then, when the RPD sought to ascertain whether it was a single event or two separate events that occurred on XXXX XXXX and XXXX, the appellant cited an attack by police on XXXX XXXX, 2016, which, yet again, does not at all explain the contradictions noted. Nonetheless, the RPD made sure to give him another opportunity to explain, and he repeated that the XXXX XXXX meeting pertained to human rights and that, on XXXX XXXX, he was attacked. In my opinion, the appellant did not explain the contradictions. [18] Considering that he reportedly experienced these central and serious events personally, I am of the opinion that his level of education does not explain these major contradictions between his testimony at the hearing and his written testimony and that this undermines his credibility. The RPD did not err. [19] Contrary to the appellant's claim that the RPD relied solely on the contradictions regarding these two events to conclude that the appellant lacked credibility overall, which are secondary or peripheral issues, I note that it instead considered a set of problems in his account that were not explained in a satisfactory manner. [20] With respect to the appellant's argument that the RPD did not take into account the evidence submitted because it did not mention Exhibit R-3, a letter regarding XXXX XXXX XXXX, in its decision, I am of the opinion that it would have been preferable for the RPD to mention this letter and to explain why it was given no probative value. That said, this is not a fatal error of law given the extent of the problems noted in his account. [21] In addition, as set out in a recent Federal Court decision, "Evidence is not assessed in isolation from the overall claim, and where the Applicant's personal [...] evidence is not credible it is reasonable for the RAD to have credibility concerns with the supporting documentary evidence".12 [22] Specifically, I note that the author of the letter does not explain that they witnessed the events alleged by the appellant, which were found not to be credible.13 Accordingly, no weight must be given to this letter to establish that the appellant would face a risk in returning to India. [23] In light of the foregoing, I consider that the appellant failed to credibly establish his allegations. The RPD did not err. CONCLUSION [24] The RAD dismisses the appeal and confirms the RPD's determination that the appellant, XXXX XXXX XXXXXXXX, is neither a Convention refugee nor a person in need of protection. (signed) Love Saint-Fleur Me Love Saint-Fleur July 30, 2020 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) at 305. 3 Adu, Peter v. M.E.I. (F.C.A., No. A-194-92), Hugessen, Strayer, Robertson, January 24, 1994. 4 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) at 305. Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 5 Su v. Canada (Citizenship and Immigration), 2015 FC 666, at para. 11, citing Adu v. Canada (Minister of Employment and Immigration), [1995] FCJ No. 114 (FCA) (QL). 6 Lin v. Canada (Citizenship and Immigration), 2010 FC 183, at para. 19. 7 00:22:12 et seq of the recording of the hearing before the Refugee Protection Division (RPD) on January 8, 2019. 8 00:26:42 et seq. of the recording of the hearing before the RPD on January 8, 2019. 9 00:30:47 et seq of the recording of the hearing before the RPD on January 8, 2019. 10 00:41:27 et seq of the recording of the hearing before the RPD on January 8, 2019. 11 00:44:32 et seq of the recording of the hearing before the RPD on January 8, 2019. 12. Ogaulu v. Canada (Minister of Citizenship and Immigration), No. IMM-3862-18, McDonald, April 30, 2019; 2019 FC 547, paragraph 26. 13. Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 24. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-06358 RAD.25.02 (January 2020) Disponible en français 7 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 (January 2020) Disponible en français