VC1-03738

RAD File / Dossier de la SAR : VC1-03738 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 November 22, 2021 Date de la décision Panel Karen Wallace Tribunal Counsel for the person who is the subject of the appeal Baldev S. Sandhu 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] XXXX XXXX XXXX (the Appellant) is a citizen of India. He fears persecution or harm if he returns to India based on a long-standing legal dispute between his parents and a neighbour (Mr. S.) in their village. In particular, he fears that Mr. S. will make false allegations against him that could result in him being arrested by the police and put in jail. [2] The Refugee Protection Division (RPD) rejected the Appellant's claim based on credibility concerns with some of the Appellant's supporting documents, and the lack of sufficient evidence that the Appellant faces a future risk of persecution or harm if he returns to India. [3] The Appellant is appealing the RPD decision. He argues that the RPD erred in its credibility analysis by failing to apply the presumption of truthfulness to the Appellant's sworn testimony and to recognize that there is no general requirement for corroboration, and by failing to properly assess all of his supporting documents. The Appellant also argues that there has been a denial of procedural fairness due to a lack of quality interpretation at the hearing. [4] No new evidence has been submitted in this appeal. An oral hearing is not requested. [5] The determinative issue in this appeal is whether the RPD erred in their analysis of the forward-facing risk to the Appellant. DECISION [6] 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. BACKGROUND AND ALLEGATIONS [7] The Appellant's parents have been involved in a long-term legal dispute with Mr. S. which began in 2006 and is still on-going. The Appellant's parents allege that they lent Mr. S. money in 2006 so that he could arrange to send his son to live and work in Italy. Mr. S.'s son changed his mind about moving to Italy, and Mr. S. never paid them back the money they loaned him. [8] In contrast, Mr. S. accuses the Appellant's parents of fraud. The Appellant's parents promised they could get Mr. S.'s son a visa to live and work in Italy, because the Appellant's father had previously worked and lived there. Mr. S. paid the Appellant's parents a large sum of money to obtain a visa, but they never provided it to him. Mr. S. made a police report accusing the parents of fraud and brought a court case against them to charge them with fraud and to get his money back. The Appellant's parents filed their own court case demanding repayment of the loan. Both parties have appealed the various court decisions, and the matter is still ongoing. [9] In Mr. S.'s first complaint to the police, he named the Appellant as also being involved in the fraud, although there are no details about how he was involved. The details in the complaint only relate to the Appellant's parents' role in the fraud. Mr. S.'s subsequent complaints regarding the fraud, and his court case, do not name the Appellant as being involved. [10] In 2017, Mr. S. made a police report accusing the Appellant and his father of assaulting him on XXXX XXXX, 2017. However, stamps in the Appellant's passport establish that he was not in India at that time. [11] The Appellant came to Canada on a student visa in 2010. His student visa was extended multiple times up until XXXX 2018, when his final extension request was denied. The Appellant claimed refugee protection in March 2019. ANALYSIS [12] My role is to look at all the evidence and decide if the RPD made the correct decision.1 I have conducted my own assessment of the evidence. This included listening to the recording of the RPD hearing and reviewing all of the documents submitted. The agent of persecution or harm [13] Although the RPD decision and the Appellant's Basis of Claim (BOC) refer to the agent of persecution as a distant uncle, there is no dispute that he is not a relative or an uncle. He is a neighbour in the village, and the term "uncle" is used often and loosely as a term of respect to address elders in the village. There was no lack of procedural fairness [14] The Appellant argues that there was a lack of procedural fairness because he was not provided with continuous, precise, competent language interpretation at the RPD hearing. He refers to section 14 of the Canadian Charter of Rights and Freedoms, which guarantees him the right to the assistance of an interpreter. [15] The Appellant's counsel relies on a case from the Federal Court of Appeal2 and acknowledges that the Appellant must have objected to the quality of interpretation at the RPD hearing, in order to raise it as an issue in this appeal. Counsel states that he objected to the quality of interpretation several times during the RPD hearing, and that the audio recording of the hearing will confirm this. [16] The audio recording of the RPD hearing does not confirm this. In fact, the audio recording confirms that neither the Appellant, nor his counsel, objected to the quality of interpretation during the hearing. At the hearing, the Appellant confirmed that he understood the interpreter and he never made the RPD aware of any problems with interpretation. [17] Only one minor issue with interpretation arose during the hearing. While the Appellant was being questioned about whether his parents were represented by legal counsel during their long-standing court proceedings with Mr. S., the Appellant's counsel intervened and spoke to the interpreter about the meaning of "legal counsel" in Punjabi, and stated that the Appellant may not understand what is meant by the term "legal counsel".3 The issue was clarified, and the Appellant answered that his parents did have a lawyer assisting them. [18] Although the Appellant now alleges that the interpreter did not provide complete or correct interpretation of his testimony, he does not provide any detail whatsoever about what portion of his testimony was allegedly incorrect or incomplete. If there was an actual issue with the completeness or correctness of interpretation, that could have been addressed and corrected during the hearing. Yet, no complaints about the quality of interpretation were made to the RPD. [19] The audio recording establishes that the issue described above is the only interpretation issue that arose during the hearing. This minor, peripheral issue regarding whether the Appellant's parents had a lawyer assisting them in their legal dispute is irrelevant and has no bearing on the outcome of the Appellant's claim or appeal. Whether the Appellant's parents had a lawyer assisting them or not, this does not have an impact on my analysis of the forward-facing risk to the Appellant if he returns to India. [20] The Appellant was represented by experienced counsel at the RPD hearing and no issues concerning a breach of procedural fairness were raised at any time during the RPD proceeding. [21] Issues with procedural fairness must be raised at the earliest opportunity.4 A claimant should not wait until they receive a negative decision to complain that there was a breach of procedural fairness. A failure to raise any objection or concerns during a hearing amounts to a waiver of any perceived breach of procedural fairness or natural justice.5 [22] The audio recording of the RPD hearing does not support the Appellant's allegation. Instead, the audio recording leads me to conclude that there was no lack of procedural fairness or lack of quality interpretation at the RPD hearing. No nexus to a Convention ground [23] This claim arises from an alleged fear of being the victim of revenge or a personal vendetta, which has frequently been found not to be linked to a Convention ground for protection. Although being a member of a particular social group is a Convention ground, victims of crimes or personal vendettas are not considered to be members of a particular social group.6 [24] Therefore, the Appellant's alleged fear has no connection or nexus to one of the five Convention grounds (race, nationality, religion, political opinion, or a particular social group) under section 96 of the Immigration and Refugee Protection Act (IRPA). [25] However, even if there was a connection to a Convention ground, the outcome of the claim would be the same. There is insufficient credible, reliable evidence of a forward-facing risk of persecution or harm to the Appellant regardless of whether the claim is assessed under the lower threshold in section 96 (serious possibility), or the higher threshold (balance of probabilities) in section 97 of the IRPA. The supporting documentation [26] The Appellant provided numerous documents to corroborate his testimony, including copies of various police reports and court proceedings involving his parents and Mr. S., as well as an affidavit from his father. [27] The Appellant argues that the RPD erred by failing to assess all of the supporting documents properly or fully. I disagree. The RPD accepted that there is a long-standing legal dispute between the Appellant's parents and Mr. S., and that the Appellant was sometimes implicated in that dispute. Therefore, it was not necessary for the RPD to assess or comment on each document that details the history of the dispute. [28] I agree with the Appellant that the RPD provided insufficient reasons for their suspicion that the 2017 police report from Mr. S, which accused the Appellant and his father of assault, was not genuine. This is an insufficient basis for the RPD's negative credibility inference. However, this error is not fatal to the outcome of the claim. For the purpose of this appeal, I accept that Mr. S. made an accusation of assault against the Appellant in 2017. This factor does not change my analysis of the forward-facing risk to the Appellant. The presumption of truthfulness [29] The Appellant argues that the RPD erred by not applying the presumption of truthfulness to his sworn testimony. [30] The RPD accepted the Appellant's testimony regarding the long-term dispute between his parents and Mr. S. However, the RPD had a credibility concern regarding the inconsistency between the Appellant's testimony and his documentary evidence. The Appellant testified that Mr. S. is powerful and has political connections, and that officials are corrupt and can be paid off by Mr. S., which makes it difficult for him and his parents to defend themselves against Mr. S.'s false accusations. [31] Yet, the Appellant's own documents establish that his parents have been successful in some of their court cases and appeals against Mr. S. I agree with the RPD that this does not suggest that Mr. S. is powerful and influential, or that officials are so corrupt that the Appellant and his parents cannot get any justice in the courts. [32] Furthermore, the Federal Court has determined7 that the presumption of truthfulness applies to the credibility of facts alleged in sworn statements, but not to their trustworthiness. Credible evidence must also be shown to be trustworthy, usually through corroboration. The presumption of truthfulness does not excuse a claimant from making a genuine effort to provide corroborative evidence to establish the trustworthiness of their sworn statements. This is required by subsection 170(h) of the IRPA, as well as Rule 11 of the RPD Rules. However, if a claimant establishes that they were unable to obtain corroborative evidence after a genuine effort to do so, then a negative inference may not be justified. [33] The Federal Court has also determined that a claimant who makes a statement having a decisive impact, should provide sufficiently convincing proof to support that statement, or have made sufficient efforts to obtain that proof.8 [34] The Appellant may genuinely believe that Mr. S. is powerful and has political connections, but that does not make it true. He provided no evidence to establish Mr. S.'s influence or connections. [35] In another case where a claimant relied on the presumption of truthfulness, and the lack of a general requirement for corroboration, to support her testimony that her agent of persecution had power, influence, and connections, the Federal Court determined that the claimant's testimony related only to her belief, but not to any facts to support her belief.9 [36] The Appellant has not established that Mr. S. is politically connected, or so powerful that he is able to influence officials to act on his false allegations and arrest or imprison the Appellant or his parents. Insufficient evidence of a forward-facing risk [37] The presumption of truthfulness is insufficient to establish a forward-facing risk to the Appellant. The Appellant believes that Mr. S. will make a future false allegation against him out of revenge or retaliation for the on-going legal dispute with his parents, which will result in him being arrested and put in jail. However, there is a lack of objective evidence to support his fear of being arrested and put in jail. [38] The dispute between Mr. S. and the Appellant's parents began in 2006, and it has intensified over the years. The dispute has only played out in the courts. His parents have remained in the same village since 2006 (they are not in hiding), and even when the dispute intensified, there have been no attempts to harm them. Nor have they been arrested or jailed. It is no doubt inconvenient, costly, and frustrating to be involved in such a long-term legal dispute with a neighbour, but that does not amount to persecution, or to a type of harm identified in section 97 of the IRPA. [39] The Appellant has a clear defense against the false accusation of assault Mr. S. made against him in 2017. His passport shows that he was not in India at the time of the alleged assault. The Appellant has been living in Canada since 2010 and he has not been personally involved in the legal dispute. On a balance of probabilities, the false accusation of assault will not result in the Appellant being arrested or jailed if he returns to India. [40] Furthermore, the Appellant's father was also named in the false accusation, and nothing has come of it. He was not arrested or jailed, even though he was in India at the time of the alleged assault. This does not suggest that Mr. S. has power or influence over corrupt officials in India to ensure that the Appellant and his parents are arrested and imprisoned over his false allegations against them. He has not been able to accomplish that since the dispute intensified over a decade ago. The Appellant's parents, who are the main players in Mr. S.'s accusations, have not been arrested, jailed, or harmed since the dispute began. There is insufficient evidence that the Appellant would be arrested, jailed, or harmed. [41] Mr. S. could potentially make a false accusation against the Appellant if he returns to India. That situation would be frustrating and time consuming to defend against, just like his parents have experienced over the years. However, it does not amount to persecution, or to a risk to the Appellant's life, or of torture, or of cruel and unusual treatment or punishment. CONCLUSION [42] The Appellant has not established that there is a serious possibility of persecution if he returns to India. Nor has he established that there is a likelihood, on a balance of probabilities, of a risk to his life, or of torture, or of cruel and unusual treatment or punishment. [43] 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. (signed) Karen Wallace Karen Wallace November 22, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Mohammadian v. Canada (Citizenship and Immigration), 2001 FCA 191. 3 RPD Hearing Recording (April 28, 2021) at 1:00 to 1:01:35. 4 Al-Farran v. Canada (Citizenship and Immigration), 2017 FC 985, at paras. 26 and 27. 5 Sayeed v. Canada (Citizenship and Immigration), 2008 FC 567, at para. 23; and Kamara v. Canada (Citizenship and Immigration), 2007 FC 448, at para 26. 6 Flores Romero v. Canada (Citizenship and Immigration), 2011 FC 772. 7 Kallab v. Canada (Citizenship and Immigration), 2019 FC 706. 8 Avila Magana v. Canada (Citizenship and Immigration), 2021 FC 427, at para. 12. 9 Kassim v. Canada (Citizenship and Immigration), 2018 FC 621, at para. 22. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC1-03738 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