TB8-28610

RAD File / Dossier de la SAR : TB8-28610 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 Ottawa, ON Appel instruit / entendu à Date of decision October 8, 2019 Date de la décision Panel Jillan Sadek Tribunal Counsel for the person who is the subject of the appeal Lisa Winter-Card 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, is a citizen of India. The Appellant alleges that she cannot return to India because her ex-boyfriend may harm her as she gave birth to his child out of wedlock and refused to give up the child for adoption [2] Prior to coming to Canada the Appellant was living in Baroda, a city in the Gujarat region of India. The Refugee Protection Division (RPD) determined that the Appellant's allegations lacked credibility. The RPD also reasoned, a viable Internal Flight Alternative (IFA) exists of Mumbai. I have determined that the RPD was correct in rejecting her claim due to the Appellant's lack of credibility, which is the determinative issue of the claim. In my opinion, there is no need to assess the possibility of an IFA given that the allegations are not credible. The appeal is dismissed. ROLE OF THE RAD [3] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, may attract deference. Unless specifically stated below, I have applied a correctness standard. ANALYSIS [4] In her Basis of Claim form (BOC), the Appellant states she came to Canada as a student in 2013, first to pursue an XXXX XXXX XXXX XXXX XXXX XXXX and then a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX The Appellant indicates that while in Canada she began an online relationship in January 2016 with a man living in India she went to high school with in Gujarat, XXXX XXXX. The Appellant alleges that XXXX arranged to visit her in Canada in XXXX 2016. The Appellant became pregnant the same month. The Appellant alleges that they decided to return together to India in XXXX 2016 to break the news to their parents and to get married. The Appellant explains that both sets of parents were displeased by the news. By March 2017, the Appellant indicates that XXXX, who had left Gujarat to be with his parents in Delhi, indicated that he no longer wished to marry her and he stopped answering her calls. The Appellant explained that she continued to try contacting XXXX and his mother by various means. The Appellant did not want to give birth in India as an unwed mother so returned to Canada. The Appellant returned to Canada and claimed refugee protection on April 15, 2017. The Appellant gave birth in Canada to her daughter, XXXX XXXX, on XXXX XXXX XXXX 2017. After filing her claim, the Appellant provided proof of threats made to her by XXXX on WhatsApp in August of 2017. [5] The RPD found the Appellant's allegations not to be credible but then also rejected her claim based on the viability and reasonableness of an IFA of Mumbai. [6] I have attentively listened to the recordings of the RPD hearing, and have carefully reviewed the entire record. I have also taken into account the Chairperson's guideline number 4: Women Refugee Claimants Fearing Gender-Related Persecution. I agree with the RPD's decision and find that the determinative issue is the lack of credibility of the allegations. [7] The Appellant submits that the RPD erred in finding her allegations not credible and erred in making a negative inference from the lack of corroborative evidence. The Appellant also rejects the notion that there is a viable IFA for her in India. The Appellant argues that the IFA proposed by the RPD meets neither prong of the test. The RPD did not err in finding the Appellant's allegations lacked credibility. [8] The Appellant asserts that the RPD made an unreasonable inference with respect to the Appellant's credibility when he noted the fact that she remained "friends" on social media with people who are also still friends with XXXX. The Appellant contends it is "unclear as to why unfriending her high school friends on social media would have lent credibility to her claim, or why failing to unfriend them detracts from her credibility".2 I do not find the RPD's rationale unclear. [9] In my opinion, if a woman truly fears being killed by her ex-boyfriend, cutting all ties with this person, including ties with those who remain close to the ex-boyfriend would be an obvious first step in safeguarding the woman's wellbeing. Social media enables users who are "friends" or otherwise connected to see each other's information. Severing such connections with persons who may still communicate with the ex-boyfriend would be logical and would be consistent behavior with a person who feared for their life. The RPD's inference was logical and correct. The Appellant's actions are not consistent with a woman who fears for her life. The RPD also found that there was no reasonable explanation as to why the Appellant thought of cutting all ties with her former boyfriend from all social media platforms and deleted the conversations, but did not cut ties with his friends on social media. I agree with this rationale and find that the RPD was correct. [10] The Appellant submits the RPD made a second unreasonable finding when he noted that, in the "WhatsApp" conversation, the Appellant told XXXX that she was not afraid of him and that this was inconsistent with her allegations that she fears this man. The Appellant argues that the Appellant made this statement on social media while she was safe in Canada, far from her persecutor and thus it does not detract from her credibility.3 [11] In my opinion, the chat excerpt does not reflect well on either the Appellant or her ex-boyfriend. The RPD was correct in noting that the excerpt does not suggest that the Appellant is fearful of her ex-boyfriend, rather both parties appear to be very angry with one another and using words to deliberately insult the other. The conversation also includes a reference to the fact that the Appellant's costs in Canada were being paid by her ex-boyfriend for the period March to August 2017, which includes the period during which the Appellant filed her refugee claim and gave birth.4 Furthermore, at the hearing, the Appellant showed the RPD member the full length version of the chat on her phone. The chat continued from August 2017 to October 2017 -- long after the date of the threat, and the Appellant testified that she only received that one threat. In other words, she was not threatened by her ex-boyfriend the last time she would have communicated with him. This again, is indicative of a lack of real fear on the Appellant's part [12] The Appellant also argues that the RPD's focus on how the WhatsApp conversation was exported as an email is irrelevant, as the fact remains that it proves the key element of her claim which is that the father of her child threatened her. I disagree. The RPD was correct to question the Appellant's motives and reasons for keeping only this one exchange with her ex-boyfriend and allegedly deleting all the earlier evidence of communication. The RPD was also correct that her testimony was evolving on the subject of her motives for doing so. The Appellant first stated she could not recall why she exported that particular chat to her email in October, 20175 and thought that it might have been an accident and then clearly changed her testimony to say that she deliberately exported the chat because she needed proof of the threats for her claim.6 The RPD was correct in finding that this evolving testimony and the proof of the nature of her communications with her ex-boyfriend in general, undermines the credibility of the Appellant's allegations. The RPD did not err in making a negative inference from the lack of corroborative evidence. [13] The Appellant submits that the RPD erred in requiring corroborating evidence of her claim from family members. The Appellant states that to require such evidence is an error and that sworn evidence must be presumed to be true.7 [14] Given the RPD's findings with regards to the Appellant's credibility, the RPD was correct to then move on to the fact that there was also a dearth of corroborative evidence in this case. The RPD did not err in noting this as a factor that again detracted from the credibility of the claim. The RPD noted that the WhatsApp chat was the only corroborative evidence of the allegations. The RPD determined that there was insufficient credible evidence to establish that the Appellant was even in a relationship with this ex-boyfriend, XXXX, that he was the father her child and that any threats were made against her or her family. The RPD noted that as the Appellant's family were allegedly aware of the situation, she would have had ready access to statements made by family members or friends, and that she did not even present any evidence of the existence of the relationship to begin with such as photographs of her and her boyfriend given that the relationship lasted a significant period of time in Canada. I agree with this analysis of the lack of supporting documentation in this case. The Appellant did not provide a reasonable explanation for failing to provide evidence to corroborate her claim, she was aware of the RPD's concerns and did not make an application to the RPD to submit post-hearing evidence. The RPD did not err in finding that the lack of documentation further undermines the credibility of her allegations. The RPD's analysis of a viable IFA was unnecessary. [15] The Appellant submits that the RPD's IFA analysis was faulty as the Appellant and her ex-boyfriend have friends in common and he will be able to find her through them. The Appellant also argues that the IFA was unreasonable because the RPD failed to address the fact that the Appellant will face the stigma of being an unwed mother. [16] In my opinion, the IFA analysis was unnecessary. There was no need for the RPD to proceed to an "in the alternative" assessment of the evidence as the Appellant was not credible and, in my opinion, the lack of credibility is determinative. CONCLUSION [17] The Appellant has not demonstrated that there is a serious possibility that she would be persecuted if she returned to India, nor that, on a balance of probabilities, she would be personally subjected to a danger of torture, a risk to her life or a risk of cruel and unusual treatment or punishment should she return to India. DETERMINATION [18] I dismiss this 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 Immigration and Refugee Protection Act. (signed) "Jillan Sadek" Jillan Sadek October 8, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Appellant's Memorandum, Appellant's record, p. 19. 3 Appellant's Memorandum, Appellant's record, p. 20. 4 WhatsApp chat, RPD record, p. 168. 5 At minute 0h31 of the recording of the hearing before the RPD August 31, 2018. 6 At minute 0h43 of the recording of the hearing before the RPD August 31, 2018. 7 Appellant's Memorandum, Appellant's record, p. 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-28610 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français