MB9-11245

RAD File / Dossier de la SAR : MB9-11245 MB9-11246 / MB9-11247 / MB9-11248 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision October 10, 2019 Date de la décision Panel Susan Brown Tribunal Counsel for the persons who are the subject of the appeal Maria Esposito Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellants, XXXX XXXX XXXX, his wife, XXXX XXXX, and their minor children, XXXX XXXX and XXXX XXXX XXXX XXXX, citizens of India, appeal a decision of the Refugee Protection Division (RPD), dated May 10, 2019, rejecting their claims for refugee protection. The father is the designated representative of his minor children. The Appellants seek protection from the police who have detained and tortured the adult Appellants alleging links to Naxals and anti-national elements. The RPD found that the Appellants were not credible. The Appellants do not submit new evidence to the Refugee Appeal Division (RAD) under section 110(4) of the Immigration and Refugee Protection Act (IRPA) but request a hearing under section 110(6) which is denied. I have reviewed the record, the testimony and arguments of the Appellants, and I agree with the RPD that the Appellants did not credibly establish their claim. The appeal is dismissed. BACKGROUND [2] According to their Basis of Claim Forms (BOCs)1 the adult Appellants were born in 1981 and 1984, and their children in 2010 and 2011. [3] The police arrested and tortured the wife's brother, falsely alleging that he helped Naxals. The brother was released with the help of influential people and the payment of a bribe and returned to work as a XXXX XXXX. [4] On June 23, 2017, the police raided and searched the Appellants' home wanting to know the whereabouts of the wife's brother and other Naxals. The Appellants had to pay a bribe and the police ordered them to report any information about the brother and other Naxals. [5] On August 14, 2017, the police and army surrounded the area after an encounter between the Naxals and the security force. The police searched the Appellants' home and alleged that the wife's brother was involved in the Naxals attack. The police arrested the husband and took him to the police station where they beat and tortured him. During the detention the police took the husband's fingerprints, photos and signatures on blank papers. On August 19, 2017, the Appellants' family paid a bribe and the husband was released on condition that he work as an XXXX. After this incident the police put the Appellants' names on their suspects list and came to their house to question them about the Naxals. The husband went to a private hospital for medical treatment. [6] On November 4, 2017, the police raided the Appellants' home and arrested the adult Appellants. The police beat, tortured and sexually abused the adult Appellants. Their family paid a bribe and secured their release on November 6, 2017. The husband was ordered to report to the police station every month starting on December 1, 2017. The wife was depressed and the adult Appellants were treated at the private hospital. [7] As the date of reporting approached, the Appellants went into hiding in Mumbai. In Mumbai they talked to an agent who arranged new passports and hid them in different places. The police followed the Appellants to Mumbai and raided the house of the Appellants' friend, alleging that the Appellants were meeting Naxals in Mumbai. The agent arranged the Appellants' visas for Canada and their flight from India. The agent took the husband to Canada in XXXX 2018, they returned to Mumbai and then all the Appellants travelled to Canada on XXXX XXXX, 2018. [8] The Appellants' claims were received on August 6, 2018. The Minister of Immigration, Refugees and Citizenship (Minister) intervened on October 16, 2018, by making written observations and submitting evidence.2 The claims were heard on April 29, 2019, and the RPD rendered its decision on May 10, 2019. ORAL HEARING AT THE RAD [9] The Appellants request that the RAD hold a hearing. Section 110(6) of the IRPA says the RAD may only hold a hearing if there is new evidence that (a) raises a serious issue with respect to the credibility of the appellant, (b) is central to the RPD's decision, and (c) if accepted, would justify allowing or rejecting the refugee protection claim. As the Appellants have not submitted new evidence, the Appellants' request for an oral hearing is denied. STANDARD OF REVIEW [10] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing the oral testimony heard, which in particular cases attracts deference.3 Unless specifically stated below, I have applied the correctness standard. ANALYSIS [11] The RPD identified the determinative issue as credibility. The RPD did not find the Appellants credible, citing the following reasons: the Appellants' behaviour was incompatible with that of persons fearing persecution or harm; the Appellants did not use Canadian visas obtained in February 2018 to leave India until June 2018; the husband made a trip to Canada alone in XXXX 2018 and returned two months later; the husband made three trips through the Mumbai airport in XXXX, XXXX and XXXX 2018; the wife was not able to describe Naxals and omitted reference to the police detentions in June and August 2017 when questioned; her brother was released by the police in May 2017 and then continued to work as a truck driver; the husband posted on Facebook during his alleged November 2017 detention and while he was hiding in Canada; and the documentary evidence presented by the Appellants was insufficient to salvage the credibility of their story. [12] The Appellants argue that the RPD made the errors when it: violated the rule of audi alteram partem when it did not give any weight to the Appellants' documentary evidence; made an unreasonable credibility finding not justified by the evidence and contrary to the principle that claimants are presumed to tell the truth; applied "balance of probabilities" instead of "more than a mere possibility" in its assessment of the likelihood of the Appellants' persecution in the event of their return to India; and did not consider state protection. [13] As detailed below, I have reviewed the record, testimony and arguments of the Appellants and I agree with the RPD that the Appellants were not credible and that, on a balance of probabilities, they did not establish their allegations. I note that given its negative credibility finding, the RPD did not address the likelihood of the Appellants' persecution in the event of their return to India or state protection. Relevant principles in analyzing the credibility of refugee claims [14] A recent Federal Court decision, Lawani,4 has laid out the relevant principles in analyzing credibility in the context of refugee claims: * Refugee applicants are presumed to tell the truth but this is a presumption rebuttable by the applicant's lack of credibility, e.g. where the evidence is inconsistent with sworn testimony or where the applicant's explanation for the inconsistencies is not satisfactory; * Even though they may be insufficient when taken individually or in isolation, the accumulation of contradictions, inconsistencies and omissions regarding crucial elements of a refugee claim can support a negative conclusion about an applicant's credibility; * A negative credibility finding cannot be based on minor contradictions that are secondary or peripheral to the refugee protection claim; * A lack of credibility concerning central elements of a refugee protection claim can extend and trickle down to other elements of the claim and be generalized to all of the documentary evidence presented to corroborate a version of the facts; * Credibility findings should not be made based strictly on the absence of corroborative evidence. Where corroborative evidence should reasonably be available to establish an essential element of a claim and there is no reasonable explanation for its absence, a decision-maker can draw a negative inference of credibility based on the claimant's lack of effort to obtain such corroborative evidence; * Conclusions can be drawn concerning an applicant's credibility based on implausibilities, common sense and rationality. Rebuttable presumption of truth [15] The RPD based its negative credibility finding on evidence of behaviour by the Appellants that was incompatible with a fear of persecution and harm and based on omissions, inconsistencies and contradictions without reasonable explanations. [16] The Appellants allegedly went into hiding in Mumbai in late November 2017 and, working with an agent, visitor visas for all the Appellants for Canada were issued on February 9, 2018. In 2018 the husband visited Canada alone for two months, returned to India on XXXX XXXX and then all the Appellants travelled to Canada in June. When asked to explain why the husband went to Canada without the rest of the Appellants, they said they did not have the necessary funds to pay the agent for all their visas and that they were following the instructions of the agent.5 The explanation is not reasonable as incurring the costs of return flights to Canada, hotel accommodation for two months in Brampton6 and accommodation costs for the family in Mumbai is not consistent with an explanation about insufficient funds. [17] The Minister presented evidence that the husband posted "pictures of what appears to be a vacation in Brampton."7 The Minister made submissions that this behaviour was not compatible with an alleged fear of persecution in India. That the husband would identify himself in Canada, on an easily accessible Facebook publication while the other Appellants were hiding with the help of an agent, showed a lack of subjective fear.8 When asked for an explanation, the husband said he made a mistake.9 [18] In his BOC the husband says he is wanted by the police in India and he was "lucky not to be arrested" when he returned to India on XXXX XXXX, 2018.10 Specifically, he says that during his August 2017 detention, the police "took [his] fingerprints, photos and signatures on blank papers" and "after this incident police put our name in suspects list."11 Notwithstanding the husband risked being stopped at the Mumbai airport on three occasions, which is not behaviour compatible with a fear of persecution or risk of harm. [19] The objective evidence12 indicates that at the international airport in Mumbai, which is categorized as "hyper-sensitive,"13 the Appellant would have undergone an immigration check by the Bureau of Immigration (BOI). The BOI reports that Indian nationals must fill a departure card at the time of departure, including their name, date of birth, passport number, and address in India. Air India states that "embarkation forms should be duly filled out and submitted to customs and immigration authorities before boarding the aircraft."14 The objective evidence identifies four components to the immigration check: checking of passport/travel documents to identify the holder and to look out for cases of forgery; ascertain the eligibility of the holder either to leave or enter India, as per existing rules and regulations; computer confirmation in clearing passengers; and a health check.15 The husband testified that his agent paid bribes for him to get security clearance at the airport so that he could leave in both XXXX and XXXX 2018.16 I find, on a balance of probabilities, that the husband would have been required to provide the required documentation, undergo an immigration check by the Indian immigration authorities prior to boarding his aircraft, and would have been stopped if his name was in a police database or on a list of suspects related to Naxals. [20] The Appellants' passports were issued in Hyderabad from December 12, 2017, to December 28, 2017.17 The BOC says that the Appellants retained an agent to procure their passports after they arrived in Mumbai in late November. The wife testified that her husband's friend arranged the agent in Mumbai.18 The objective evidence says that "in practice passport applications take approximately one month to process" and that police verification is required prior to the issuance of the passport, which "involves the police officer visiting the applicant's address for verification as well as verifying that the applicant does not have a criminal record."19 I find, on a balance of probabilities, that the passports would not have been issued if the adult Appellants were on a list of police suspects and that their agent could not have procured them in such a short time period. [21] The foundation of the Appellants' claims is that they are persecuted by the police who are linking them with Naxals and anti-national elements. When asked by the RPD to describe Naxals, the wife said "it was going opposite to the government and kills the police" and only when pressed did she say it was in her region, lived outside the city and it was not a political party.20 [22] When first asked by the RPD to explain the problems they had with the police, the wife omitted the events of June 23 and August 14.21 When she referenced the earlier events later in her testimony, the RPD asked her to explain why she had not talked about them earlier, and she changed her testimony to say that their problems started June 23, 2017.22 [23] The evidence about the wife's brother was contradictory and inconsistent. The BOC said that the brother was arrested and tortured on false allegations of helping Naxals. No dates are given, but the BOC goes on to say that the brother was released with the help of influential people, the police were paid a bribe and he returned to work as a truck driver. The female adult Appellant testified that the brother has lived in Karimnagar since he was born in 1980 and works as a XXXX XXXX.23 She also testified that he was arrested in May 2017 and released after he paid the police. She said that a case and official accusations are pending against him and the papers are with him.24 This testimony that the brother was arrested and released in May 2017, lives in Karimnagar and works as a XXXX XXXX is not consistent with the BOC which says that the police raided and searched the Appellants' home on June 23, August 14 and November 4, 2017 looking for her brother, that the police alleged that he was hiding in their home and that the police wanted the Appellants to be informers about the brother's whereabouts. [24] The Minister presented evidence that the male adult Appellant posted on Facebook during his alleged police detention in November 2017.25 When the RPD asked him to explain, the husband said it wasn't him who posted on November 5, 2017, and that it was probably his children.26 The RPD accepted the possibility of the explanation. [25] The Appellants argue that the RPD made a general negative credibility finding which was not justified by the evidence and contrary to the presumption of truthfulness established in Maldonado.27 I do not agree. [26] As detailed above, I find that there are sufficient findings about the Appellants' behaviour incompatible with a fear of persecution or harm as well as contradictions, inconsistencies and omissions in the evidence about central elements of their claims, without satisfactory explanations, to rebut the presumption that the Appellants are telling the truth. I find, on a balance of probabilities, that the police are not looking for the wife's brother, they did not raid and search the Appellants' home and the adult Appellants were not arrested or detained. Documentary evidence [27] The Appellants submit the RPD violated the rule of audi alteram partem because it did not give any weight to the documents submitted in evidence, they argue that this evidence is relevant as it would confirm the Appellants' main allegations. The Appellants argue that the RPD had an obligation to take the documentary evidence into account in the reasons for its negative credibility decision. In particular, the Appellants argue that the RPD was required to assess the probative value of the documentary evidence as it directly contradicts the RPD's finding that the Appellants' claims were not credible. [28] Although the Appellants do not identify the documentary evidence, I note that the Appellants submitted two medical reports and three affidavits as corroborative evidence.28 The RPD addressed the documentary evidence generally, finding "the documentary evidence provided are insufficient to salvage the credibility of [the Appellants'] story."29 The RPD specifically identified the problems with the medical reports which were not contemporaneous with events as both were issued on March 15, 2019, and clearly state that the Appellants are the source of information about the source of their injuries.30 [29] I have reviewed each of the affidavits31 from a neighbour, the head of the area and the friend they stayed with when they first went to Mumbai, and find that they repeat the allegations in the Appellants' BOC narrative and testimony which have been found not to be credible. This is a situation where the lack of credibility concerning central elements of the claim extends and trickles down to other elements of the claim and is generalized to all of the documentary evidence presented to corroborate a version of the facts. For this reason I find that the affidavits have no probative value. [30] I note that the wife testified that her brother had evidence that the police case against him was pending; however, no evidence from her brother was presented to the RPD nor was an application to present new evidence submitted to the RAD. I find that this corroborative evidence should reasonably be available to establish an essential element of the claim, and there is no reasonable explanation for its absence which supports a negative inference of credibility based on the Appellants' lack of effort to obtain such corroborative evidence. CONCLUSION [31] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) "Susan Brown" Susan Brown October 10, 2019 Date 1 RPD-1, RPD Record, Exhibits 2.1-2.4, pages 11-56. 2 RPD-1, RPD Record, Exhibit 5, pages 203-214. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 4 Lawani v. Canada (Citizenship and Immigration), 2018 FC 924 (CanLII), paras. 21-26. 5 RPD-1, RPD Record, Exhibit 4, page 191 and Hearing of April 29, 2019, Audio Recording 1:36:00-1:38:20 and 1:39:00-1:45:50. 6 RPD-1, RPD Record, Exhibit 1, page 130. 7 RPD-1, RPD Record, Exhibit 5, pages 205 and 209. 8 Ibid., page 205, paras. 16-19. 9 RPD-1, RPD Record, Hearing of April 29, 2019, Audio Recording 2:02:00-2:04:10. 10 RPD-1, RPD Record, Exhbit 4, page 192. 11 RPD-1, RPD Record, Exhbit 2.1, page 22. 12 RPD-1, RPD Record, Exhibit 3, National Documentation Package, India, 4 December 2018, tab 14.4: Information on airport security screening procedures for passengers departing on international flights (2015-May 2017). Immigration and Refugee Board of Canada. 28 April 2017. IND105780.E. 13 Ibid., page 15. 14 Ibid., page 9. 15 Ibid., page 8. 16 RPD-1, RPD Record, Hearing of April 29, 2019, Audio Recording 1:49:20-1:54:15. 17 RPD-1, RPD Record, Exhibit 1, pages 92, 99, 108 and 113. 18 RPD-1, RPD Record, Hearing of April 29, 2019, Audio Recording 1:16:55-1:17:50. 19 RPD-1, RPD Record, Exhibit 3, National Documentation Package, India, 4 December 2018, tab 3.7: Issuance procedures for passports, both within the country and abroad. Immigration and Refugee Board of Canada. 7 May 2014. IND104840.E, pages 5 and 6. 20 RPD-1, RPD Record, Hearing of April 29, 2019, Audio Recording 0:56:30-1:01:10. 21 Ibid., 0:34:00-0:38:45. 22 Ibid., 0:49:20- 0:53:50. 23 Ibid., 1:03:10-1:06:10. 24 Ibid., 1:06:15-1:11:20. 25 RPD-1, RPD Record, Exhibit 5, page 214. 26 RPD-1, RPD Record, Hearing of April 29, 2019, Audio Recording 1:55:00-1:58:40. 27 Maldonado v. MEI, [1980] 2 FC 302 (CA). 28 RPD-1, RPD Record, Exhibit 4, pages 194-202. 29 RPD-1, RPD Record, RPD Reasons, page 9, para. 38. 30 RPD-1, RPD Record, Exhibit 4, pages 194 and 195. 31 RPD-1, RPD Record, Exhibit 4, pages 196-201, P-3, Appellants' disclosure, October 3, 2019 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-11245 MB9-11246 / MB9-11247 / MB9-11248 RAD.25.02 (April 04, 2019) Disponible en français 10 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