MB7-09132

RAD File / Dossier de la SAR : MB7-09132 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision April 25, 2019 Date de la décision Panel Max Wolpert Tribunal Counsel for the person(s) who is(are) the subject of the appeal Maria Esposito Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of India from Punjab state, has appealed the rejection by the Refugee Protection Division of his claim for protection. The RPD dismissed his claim because the member did not believe the essential elements of his account. I have found that the RPD decision was correct. These are my reasons why. OVERVIEW Mr. XXXX claim is that: [2] He was a member and did voluntary work for the Shiromani Akali Dal (Amritsar) party, which advocates the separation of Punjab from India, in his district from 2003 to 2005. He did not speak publicly for the party, but performed logistical work at and before rallies. As a result, in 2005 he was arrested and tortured twice by Punjab police, who wanted to know about suspected militant links. He was released each time after intervention by village officials and payment of bribes. [3] He fled to the USA in 2006 and claimed asylum there. His claim was denied and he was deported back to India in 2007. [4] When he returned, the village head brought him to the police, as he had promised. He convinced them that Mr. XXXX would desist from any objectionable activities. The police then left him alone. [5] Party workers approached him to work with them again, but he refused. He lived peacefully till 2010. [6] In September of that year, five men accosted Mr. XXXX when he was working by himself at the family's farm land. They asked for shelter. When he refused, one of them said he recognised him from his party work. They called him a coward, beat and tied him up in a room on the property and left a bag containing weapons, saying they would come back to collect it and threatening him and his family if he told anyone. [7] Later police arrived, found the bag and arrested Mr. XXXX. They tortured him and detained him for three days. He was released after another intervention by the village council and bribe. Police took his signature on blank papers, and his photo and fingerprints. [8] The police kept harassing Mr. XXXX, and beat and questioned him about militants in November 2010. [9] Later that month, Mr. XXXX and village officials described his problems to the district's Deputy Commissioner, who said he would look into them, at a public meeting. [10] Angered, police raided his family home two days later, threatening him for helping militants and making false complaints. Mr. XXXX was not there. He hid in New Delhi, where he obtained an Italian one year agricultural work visa through an agent. He went to Italy, where he stayed till October 2012. He then lived and worked illegally in Germany till October 2016. He then made an asylum claim there, but was disbelieved. [11] In February 2017, Mr. XXXX flew to Canada using his brother's passport. He claimed protection after being detained and denied entry at the airport. [12] The RPD member disbelieved Mr. XXXX because he had omitted his alleged party membership and police detentions in his Canadian port of entry forms, and because he had not claimed asylum in Italy even after his visa expired and did not claim asylum in Germany until after he had lived and worked illegally there for over three years. [13] Appeal counsel argues that the RPD member did not adequately consider Mr. XXXX explanations or detail her reasons for rejecting them. She also argues that the findings about his failure to claim asylum in Italy and his delay in doing so in Germany are not determinative of his overall credibility. Role of the RAD [14] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I have not deferred to the RPD's credibility assessment of oral testimony, as I did not find that the RPD had a meaningful advantage in the circumstances.1 [15] I have read all the documents filed. I have also listened to the audio recording of the RPD hearing. ANALYSIS [16] The RPD made four negative credibility findings: Omission of party membership in port of entry forms - RPD correct [17] The RPD member drew a negative inference about Mr. XXXX credibility, and that of his alleged SAD (Amritsar) membership, because she found his not having mentioned such membership in his Schedule A immigration form, completed February 23, 2017, while he was in CBSA custody, a significant and not reasonably explained omission.2 That form was filled in by hand on the second day after Mr. XXXX arrival in Canada.3 Question 9 asks what organisations the claimant has supported or been a member of or associated with. It instructs to include any political organisations. On Mr. XXXX form, only a hand-drawn 'X' fills the space supplied for details.4 [18] Mr. XXXX signed his BOC, which describes his alleged SAD (Amritsar) party membership, on March 16, 2017.5 It was filed with the IRB the next day.6 On June 20, 2017, 7 his then counsel filed an amended typed Schedule A. Despite the contents of the BOC, Question 9 was (again) left blank.8 [19] Before questioning about the apparent omission, the RPD member asked Mr. XXXX whether he had been an official member of the party. He replied that he had.9 She then asked why he had not so indicated in his original Schedule A. Mr. Singh responded that at the time that form was completed, he was very confused and he did not understand what he was supposed to say or not. But, continued the member, all his problems were because of his (alleged) party involvement, so was it not important to mention? Mr. XXXX apologized and then added that, "At that time, I didn't know what I was supposed to say, what I was not supposed to say. I was very scared."10 [20] The RPD member rejected these explanations because party involvement was a central element of Mr. XXXX account.11 She cited Federal Court jurisprudence that inconsistencies between port of entry statements and testimony about central elements are enough to disbelieve a claimant, and that a single inconsistency can justify a negative credibility assessment where the impugned evidence is significant. [21] Appeal counsel argues that the RPD erred because the member did not examine the nature of the omission nor did she take into account all the appellant's explanation.12 [22] It is true, as counsel seems to be indicating, that the RPD member's conclusion on the point in issue was brief and not elaborated. Nonetheless, after conducting my independent analysis, I find that conclusion was well founded, logical, not arbitrary and took account of applicable jurisprudential principles, and that it was correct. [23] The RPD member was right that Mr. XXXX alleged party membership was central to his claim. The alleged persecution he suffered because of it was the whole supposed reason for his having travelled great distances several times and for having asked three countries for protection. Indeed, Mr. XXXX testified that he had told asylum authorities in the USA (2006-07) and in Germany (2016) that he had been a SAD (Amritsar) member. If so, he would have been well aware by the time he reached Canada that he needed to state this alleged fact. [24] In that context, it was both reasonable and correct for the RPD to find not credible Mr. XXXX explanation that he did not know what he was supposed to say or not say. It is not plausible that he would not have known that mentioning his party membership, the sole alleged root of his problems, on a document that was part of his request for protection was something he was supposed to say. All the more so in light of his alleged prior repeated experience in claiming such protection on that same basis elsewhere. Alleged confusion would not explain omitting to do so: Mr. XXXX did not propose any other version, caused by confusion, of what he was supposed to say. Based on his account, there could not have been any other. [25] Mr. XXXX was also interviewed by CBSA, while still in custody, on XXXX XXXX, 2017, a week after his arrival in Canada. While the officer's lengthy notes do record Mr. XXXX describing men beating him at his family's farm, leaving a bag of guns and then the police arresting and beating him before he left India for the second time in 2011, there is no reference to a political party or any connection to one on his part or that of his assailants.13 Both of those were core components of his claim. These notes alone would not be determinative, but they do not provide any support for Mr. XXXX alleged party membership. [26] Supplementary to these observations, the evidence and Mr. XXXX testimony set out numerous examples of his having lied or acted fraudulently to authorities in three countries. In the USA, he provided a partially false last name.14 In Germany, a false name and year of birth.15 He flew to Canada using his brother's passport that he had either stolen or conspired with him to use16, but then implausibly told CBSA that he had boarded the plane without a passport17. In each case he explained that his actions were motivated by desperation not to be returned to India. Be that as it may, Mr. XXXX has a long track record of making false statements to immigration and asylum authorities. His own evidence is that he tries to find or figure out what he is supposed to say or conceal, rather than just stating the truth. This bolsters the conclusion that the RPD member was correct to disbelieve him here. For greater certainty, I would have reached the same conclusion without the point covered in this paragraph. Omission of detentions in immigration and refugee forms - RPD correct [27] The RPD member next held that Mr. XXXX not having listed any of his three alleged detentions (two in 2005, one in 2010) by the Punjabi police on his Schedule A 18 or Schedule 1219 immigration forms was a significant unexplained omission that damaged his credibility and led her to disbelieve those detentions.20 These forms were completed by hand two days after Mr. XXXX XXXX XXXX, 2017, arrival in Canada,21 while he was in CBSA`s custody and unrepresented.22 [28] A question in the Schedule A form asks, `Have you ever been detained, incarcerated or put in jail?"23 The 'yes' box is ticked, and the requested details given by Mr. XXXX were simply 'Immigration Center'. [29] Schedule 12 asks whether the refugee claimant has ever been sought, arrested or detained by the police or military in any country. There is space for one instance to be listed, with instructions to add a sheet if needed to list more arrests. The space as completed states only that Mr. XXXX was detained by US Immigration from 2006 to 2007 for immigration reasons.24 [30] As noted above, but not by the RPD member, on February 28, 2017, Mr. XXXX mentioned to CBSA his alleged police detention and beating before his February 2011 departure to India.25 [31] Mr. XXXX signed his BOC, which describes the three alleged detentions by Punjabi police, on March 16, 2017.26 It was filed with the IRB the next day.27 On June 20, 2017, 28 his counsel filed amended typed Schedules A and 12. Schedule A there stated, "Detained in the Immigration Center in Canada, U.S.A. and Germany", so again no mention of Punjabi instances, in response to the above detention question.29 The amended Schedule 12 has the 'yes' box ticked for arrests or detentions, stating "See Annex" in the space for details. The annex (possibly a reference to the BOC narrative?) does not appear in the RPD record. [32] Mr. XXXX initial explanation for the omission from this original Schedule A of the three alleged Punjabi arrests was that, on the day that form was completed, he didn't know what was happening, so was saying whatever was coming into his mind.30 Asked about the Schedule 12 omission, he replied that he had been very stressed then.31 When the RPD member followed with questions about a different apparent omission in the Schedule A, Mr. XXXX again referred to his confusion shortly after his arrival in Canada, citing as reasons that he had at that time been discussing divorce with his wife and that he had allegedly stolen his brother's Canadian passport from him in Italy to fly to Canada.32 [33] The RPD member was not satisfied with these explanations, first because the form questions were 'clear and simple' and in her view Mr. XXXX should have spontaneously included the alleged Punjabi detentions in his February 2017 answers. Second, claiming stress did not justify such an important omission. Finally, even if it had been caused by stress, wrote the member, Mr. XXXX could have informed the RPD about the omitted detentions long before the RPD hearing, which took place on July 20, 2017.33 Here the RPD member was probably referring to Mr. XXXX above filing a month before the hearing. [34] That final reason is clearly incorrect. Mr. XXXX informed the RPD through his BOC about his three alleged detentions in Punjab on March 17, 2017, just XXXX days after his arrival in Canada and over four months before his RPD hearing. That leaves the RPD member's first two reasons for further analysis. [35] Appeal counsel argues that the RPD's examination of Mr. XXXX credibility here was clearly general and based on numerous elements of the evidence and testimony. She cites the Maldonado principle that a refugee claimant's sworn testimony is to be presumed true unless there be reason to doubt it. She submits that it does not seem clear that Mr. XXXX answers were uncertain or hesitant. She asserts that the RPD did not draw any particular conclusions about Mr. XXXX demeanour or the details or coherence of his testimony. Finally, she argues that this RPD finding violated the Federal Court's warning against hasty credibility conclusions.34 [36] Mr. XXXX explanations in testimony, citing confusion and stress at the time of his arrival in Canada, are not sufficient for the same reasons as his similar explanations for the omission of his political affiliation. His alleged police detentions, but particularly his third one in September 2010 some years after his return to India, are what he claims drove him to leave India again in February 2011 and were his foremost alleged reason for needing protection and coming to Canada to seek it. The RPD member is correct that the questions on the two forms are clear and simple. Mr. XXXX other answers on the form are apt and responsive to the other questions. Mr. XXXX concerns at that time about divorce and having stolen or used his brother's passport would not, in these circumstances, reasonably explain these omissions. [37] Yet in this instance, there are countervailing factors that the RPD member did not consider. First is that Mr. XXXX did describe to CBSA a week later his third detention. He was still in custody at that point. I have no evidence about his ability to communicate with others outside in the interim or whether he did so, so conjecture regarding advice about what to say would be inappropriate. While Mr. XXXX apparently did not mention to CBSA the two alleged 2005 detentions before his first departure from India, their notes indicate that he was asked only about what documents and name he used after his 2006 departure from India and was asked about problems he had in India only after he returned there in 2007. [38] Second, though less important, there is the odd consistency between Mr. XXXX February 21, 2017, answers on the two forms and those on the amended typed versions filed four months later, three months after his BOC that detailed all three alleged detentions and four months after he told CBSA about the one that supposedly caused him most recently to flee India. Both Schedule A's are answered with reference to immigration detention only, and both Schedule 12's are blank about any police detentions. This gives at least slight pause in interpreting the initial omissions in the forms: Could they be down to a misunderstanding of the questions? [39] In the end, I find that unlikely and not credible. The questions were clear and broadly worded, giving no indication that they were so limited. Further, Mr. XXXX testimony mentioned above was that at the time of his arrival at the Canadian airport, he was trying to figure out what to say rather than wanting to tell the truth. It is probable that he had the same attitude when he spoke with CBSA a week later. I thus do not give enough weight to his statements about detention at that time, or in his BOC, to outweigh the negative factors I have mentioned. [40] I thus find that the RPD member was correct to find that the omission of the detentions, particularly the alleged last one, of September 2010, was significant and not reasonably explained and that it damaged his credibility about those detentions. Failure to claim asylum in Italy - RPD correct [41] Mr. XXXX was in Italy from February 2011 to October 2012. The RPD member drew a negative credibility inference from his failure to claim asylum there during that time.35 [42] Mr. XXXX testified that he entered Italy with a one-year agricultural work visa. He wanted, he said, to save his life, and to find work. He found only sporadic work, though, averaging about four days per month. That is what led him to leave for Germany in XXXX 2012.36 [43] Mr. XXXX explanation for not claiming asylum in Italy was that he had thought he would get a 'proper job' and use that to get an extension of his visa instead. The RPD asked why, then, he had not requested asylum in Italy when his hope for such a job didn't pan out and during the months after his visa had in fact expired? Because he had decided he would not stay in Italy as there was no work there, was Mr. XXXX initial answer.37 [44] But since he said he had feared for his life, and didn't want to go back to India, and his visa had expired, why didn't he ask for protection? Mr. XXXX replied that there were a lot of people in Italy who knew him, and that the Punjab police had people there too. Asked what he meant, he said that the Punjab police knew people in Italy. How did he know that? He had no answer.38 [45] When hearing counsel canvassed the same issues, Mr. XXXX emphasized that it was lack of work that drove him out of Italy. Finally, asked then to confirm that his problems with staying in Italy were work-related, Mr. XXXX said no, where he found it was the right place (apparently a reference to Germany), then he claimed protection.39 [46] The RPD member found these explanations unreasonable. This was because in view of his alleged risk in India, the member would have expected him to claim asylum in Italy, where he had been legally admitted in 2011, especially since his sister was a permanent resident there, rather than choosing to work illegally in Germany for four years. Difficulty in finding a 'proper job' in Italy, she concluded, could not alone explain this failure.40 [47] Appeal counsel argues that this failure does not constitute an automatic obstacle to claiming protection. Claimants are not required by the Refugee Convention, she remarks, to ask for asylum in the first country they enter or the closest country to theirs.41 [48] While counsel's points are narrowly correct, they do not preclude the drawing of negative inferences about subjective fear, where justified, based on delay. Here the evidence justified the RPD member doing so. First, Mr. XXXX attempt to justify his delay by referring to the Punjab police presence or contacts in Italy was clearly based on no evidence, and foundered so badly that he couldn't even hazard an explanation for it. Second, while his agricultural visa was a bird in the hand for a year, he remained in Italy a further eight months after it expired. There was no evidence that he attempted to seek or even investigated claiming protection during that time. That is highly inconsistent with his professed fear for his life, which would had to have been his first priority were it genuine. Finally, when he left for another European country, he made no attempt to claim protection there for a very long time, so needing to find the right place to do so also is inconsistent with his actions. [49] Thus the RPD member was correct to draw a negative credibility conclusion here. Delays in claiming protection are generally not determinative in themselves, but this did further damage to Mr. XXXX credibility. Four-year delay in claiming asylum in Germany - RPD correct [50] Mr. XXXX testified that he entered Germany in XXXX 2012, and remained and worked there illegally until 2016. While he had felt safe in Germany, he said, he began feeling scared in 2016 so he claimed asylum then. It was put to him that he had not been safe, because he could have been deported at any time, Mr. XXXX had no answer. Pressed, he said that his employer had driven him around in Germany, and that he, the appellant, never went to visit any place.42 [51] Mr. XXXX testified that what made him claim asylum in 2016 was that his family in India told him that the situation was as it had been before, meaning the police were coming to his family home monthly, harassing them and asking about him, so he should claim protection where he was. He confirmed that they had been doing so since 2010.43 [52] Asked why then he had not claimed asylum earlier, Mr. XXXX said his employer had not been paying him properly and sometimes bothered him, but he heard from Punjabis in Germany in 2016 that if he would claim protection there, he would get a proper salary and also be given a house and become regularized in German records. Asked why he had not looked into getting protection and regularizing his situation before 2016, he answered that he had not known about it before then, and up to that time his life had been going well.44 [53] The RPD member's stated reason for rejecting these various explanations was simply her conclusion that Mr. XXXX behaviour was inconsistent with his alleged fear to return to India or with that of a person who risks persecution and fears for his life.45 [54] Appeal counsel argues that delay in claiming protection, while it can be an element of analysis, cannot by itself be determinative of the credibility of subjective fear46, or of the appellant's overall credibility.47 [55] Counsel's points are generally correct, but they do not preclude a negative credibility finding that, while not determinative of a claim or appeal in itself, can contribute to negative findings on subjective fear or of an appellant's overall credibility. [56] While the RPD member did not detail her reasons, beyond letting the testimony speak negatively for itself, which is less than ideal, in my opinion, and based on my independent analysis, her conclusion was justified and correct. First. Mr. XXXX could not defend with any coherence his assertion that he was safe in Germany from late 2012 to early 2016 though he was there illegally (initially no answer, then an incomprehensible one about being driven around by his employer). In the context of a person allegedly fearing for his life back in India, that is highly telling. Second, his testimony that he felt safe until his family told him in 2016 that the police were regularly asking for him and harassing them was seriously at odds with his evidence that the same had been happening since 2010. Finally, Mr. XXXX stated reasons for finally claiming asylum in 2016 were related to salary security and housing benefits, not to any pressing concern for his safety back in India. For all these reasons, I agree with the RPD member's conclusions. Affidavits and letters [57] Mr. XXXX filed six affidavits, two from his father and four from current and former members of his village council, two medical letters, a letter from the lawyer he allegedly consulted, a letter from the president of the local branch of the SAD (Amritsar) party, and a letter from the president of his local Gurdwara, to corroborate his claim. [58] The RPD member gave no probative value to these documents because she had already concluded, based on Mr. XXXX personal documents and testimony,that she did not believe the events described.48 That approach is incorrect. Disbelieving a claimant's personal evidence is not an independent ground for giving no weight to others' documents that he presents as corroboration. The documents themselves must be weighed before arriving at a final overall conclusion about a claimant's credibility. [59] While some of these documents, particularly the affidavits, consist partially of information that would have had to have been told to their authors by Mr. XXXX or his family, rather than by their first-hand knowledge, the people signing them would have had some first-hand involvement in his alleged situation and would logically have been informed of his other alleged experiences, had they in fact occurred. [60] That being said, over all the contents of these documents are consistent with Mr. XXXX BOC and testimony. Their few deficiencies are mainly omissions, such as the SAD (Amritsar) letter not mentioning Mr. XXXX alleged 2005 arrests, although it does refer to police harassment at that time. In general, at any rate, third party documents are discountable for problems, if any, in what they say rather than what they do not say. On the other hand, none of the deponents or authors were called, by telephone or otherwise, to testify at his RPD hearing, so the contents of their documents were not tested, which substantially diminishes their weight. [61] In the end, while there may be nothing blatantly wrong with these untested documents on their face, their individual and collective net weight does not outweigh the several serious and fundamental negative credibility aspects of Mr. XXXX personal documents and testimony. Conclusion [62] In the result, I have found correct the RPD member's specific and overall negative credibility findings. Together, these eliminate the essential elements of Mr. XXXX account. DECISION [63] The RAD dismisses the appeal and confirms the decision of the RPD that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). Max Wolpert Max Wolpert April 25, 2019 Date MW/bq 1 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. 2 RPD reasons, Paragraphs 22 to 26. 3 RPD record, page 193. 4 RPD record, page 178. 5 RPD record, page 34. 6 RPD record, page 23. 7 RPD record, page 258. 8 RPD record, page 268. 9 Audio recording 1:10 to 1:11. 10 Audio recording 1:12 to 1:14. 11 RPD reasons, paragraph 19. 12 Appellant's record, page 26, paragraph 36. 13 RPD record, bottom of page 162 to top of page 163. 14 RPD record, page 174, paragraph 5. 15 RPD reasons, paragraph 36. 16 RPD record, pages 166-167. 17 RPD record, page 163. 18 RPD record, page 177. 19 RPD record, page 182, question 9(a) The RPD member incorrectly referred to this form as the IMM0008 (Generic Application). 20 RPD reasons, paragraphs 27 to 32. 21 RPD record, page 193. 22 RPD record, pages 161 and 170 to 172. 23 RPD record, page 177, question 6 (j). 24 RPD record, page 182. 25 RPD record, bottom of page 162 to top of page 163. 26 RPD record, page 34. 27 RPD record, page 23. 28 RPD record, page 258. 29 RPD record, page 267. 30 Audio recording 1:30. 31 Audio recording 1:32. 32 Audio recording 1:33 to 1:37, RPD record pages 163 and 166 to 168. 33 RPD reasons, paragraph 32. 34 Appellant's memorandum, pages 26 to 28, paragraphs 37 to 41. 35 RPD reasons, paragraphs 33 to 35. 36 Audio recording 0:09 to 0:10. 37 Audio recording 0:10 to 0:11. 38 Audio recording 0:11 to 0:13. 39 Audio recording 0:13 to 0:15. 40 RPD reasons, paragraph 34. 41 Appellant's memorandum, page 28, paragraph 42. 42 Audio recording 0:25 to 0:29. 43 Audio recording 0:30 to 0:31. 44 Audio recording 0:32 to 0:35. 45 RPD reasons, paragraph 39. 46 Appellant's memorandum, page 28, paragraphs 43 and 44. 47 Appellant's memorandum, page 29, paragraph 46. 48 RPD reasons, paragraph 41. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-09132 RAD.25.02 (September 18, 2018) Disponible en français 15 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 (September 18, 2018) Disponible en français