MC1-01340

RAD File / Dossier de la SAR : MC1-01340 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, Québec Appel instruit / entendu à Date of decision August 6, 2021 Date de la décision Panel Me Martine Durocher Tribunal Counsel for the person who is the subject of the appeal 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] I dismiss the appeal. XXXX XXXX XXXX XXXX (Appellant) is a citizen of India. He is appealing the negative decision rendered on March 4, 2021 by the Refugee Protection Division (RPD) against his refugee claim. [2] The Appellant says he fears to be persecuted by militants pro-independence of Punjab who are trying to recruit him. He also alleges fearing the police who believes that he is a supporter of those militants. He stated that his brother was abducted after he refused to take part in those militant groups in XXXX 2017. The Appellant claims that he then received phone calls asking him to join the militants as well. He was threatened that he would face the same faith as his brother if he refused. In XXXX 2017, he reported the calls to the police station where he was detained for a few hours. The police urged him to confess that he and his brother participated in the militants group activities. [3] The family decided that it was safer for him to leave the country, so they contacted an agent to obtain a Canadian student visa. While he was waiting for his visa to be delivered, he allegedly hid in his agent's place in New Delhi. He travelled to Canada on XXXX XXXX XXXX 2018 and claimed asylum on XXXX XXXX XXXX 2018. [4] The RPD concluded that the testimony of the Appellant was not credible. Alternatively, the tribunal ruled that he could benefit from an Internal flight Alternative (IFA) in Bangalore, New Delhi and Chandigarh. [5] Before the Refugee Appeal Division (RAD), only the issue of credibility will be addressed. 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. ROLE OF THE RAD [7] The 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 that the RAD may apply a deferential standard in some circumstances.2 I have conducted my own independent assessment of all of the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. [8] I note, however, that the hearing was not properly recorded, as the recording device did not engage. With the agreement of the Appellant and his counsel, the RPD Member summarized her notes for the record, while allowing the Appellant to bring precisions, when needed. The counsel was able to provide his oral submissions at the end of the hearing. ANALYSIS [9] The RPD identified a number of discrepancies that undermined the Appellant's credibility. The tribunal noted that the Appellant provided only vague and general information about the local militants during his testimony, despite the several articles about those militant groups submitted into evidence. It opined that it would have been reasonable for the claimant to be more knowledgeable on the local militias who are threatening him and his whole family. As a result, the panel found that the Appellant failed to demonstrate that he was being threatened by the pro-Khalistan groups, on the balance of probabilities. [10] The Appellant submits that the RPD did not have sufficiently serious motives to reverse the Maldonado presumption of truth of his allegations. He points at the RPD's consideration that the Appellant mentioned the Khalistan group only late in the hearing. He argues that the identity of the agent of persecution is not essential to the claim in the specific circumstances of this case. He submits that his fears are directed towards the Sikhs militants in general, not towards one particular group, as a result of the calls he received. This explains the Appellant's lack of detail should not undermine his credibility, and that the RPD should have, instead, appreciated the evidence as whole. [11] I agree with the RPD assessment regarding this issue. The objective evidence of the National Documentation Package for India (NDP) indicates that there are several pro-independence groups active in and outside Punjab.3 Considering the alleged intensity of the harassment by those groups towards the Appellant and his entire family, I agree with the RPD that it would have been reasonable to expect more details as to which group is attempting to recruit the Appellant and his brother who went missing, as a result.4 I also note the lack of explanation as to why the Appellant was more targeted than other teenagers in Punjab by those groups, since no political link to pro-independence Sikh party, such as SAD or BJP, was even alleged or established.5 As stated by the Appellant during his testimony, those militant groups target young men in general in Punjab, therefore, it is illusionary to believe that all young men fall victim of this harassment, irrespective of their profile. I do not agree with the Appellant's submission that his case is fundamentally different so that the lack of details as to the identity of the agent of persecution is not relevant to the credibility. On the contrary, the tribunal believes that, considering the alleged level of persecution perpetrated against the Appellant and his family, especially when his brother allegedly went missing, it would reasonably be expected that the specific names of the people and groups involved be known by the Appellant. I therefore agree that the Appellant failed to establish that he was being threatened by a pro-Khalistan group, on a balance of probabilities. Contradiction on his brother's profession [12] The RPD then noted that the visa application indicated that the Appellant's brother was an "XXXX", as opposed to being a XXXX XXXX, as the Appellant stated in both his Basis of Claim (BOC) and testimony. The RPD rejected the Appellant's explanation to the effect that his application was prepared by the agent and that he did not know why the agent wrote this. However, the panel understood that the Appellant discussed the content of his application with his agent regarding the mentioning of his brother's disappearance or not. The RPD concluded that the Appellant failed to establish that his brother was a bus conductor, which was the reason why the militants were interested in his recruitment. [13] The Appellant submits that the RPD was overzealous in its analysis, since his explanation about why he did not know the reasons for which his agent preferred to indicate that his brother was an XXXX was reasonable. He argues that it is not because he questioned the agent about the omission of the mentioning of his brother's disappearance in his application that he was automatically aware of all the details of his visa application. The RPD's negative inference against his credibility, as a result, was unreasonable. [14] I agree with the analysis and conclusion of the RPD on this issue. I note that the counsel of the Appellant explained in his oral submissions that it was the agent's onus to "try to maximize the chance to get a visa". Though I understand why mentioning his bother's disappearance would be detrimental to his visa application, I could not find any explanation as to why stating that his brother was a XXXX, as opposed to a XXXX XXXX would enhance the Appellant's chance of success in his application.6 [15] The counsel also advocated that the Appellant's concern in the visa application process was to pay the agent in order to get out of India to save his life.7 I am not convinced of this position, and especially not with the seemingly urgent nature of the situation. As shown in the part of the decision dealing with internal flight alternatives (IFA), the possibility to find safe refuge in India, for instance in New Delhi, was allegedly put at stake through the tenant registration system. Now, even if successful, this system would require a considerable amount of time to deliver results. I fail to see why the urgency of the situation would serve as a basis to complete the visa application with false information. In any event, I find that the propensity of the Appellant to provide false information in order to possibly increase his chances of obtaining a Canadian student visa undermine his overall credibility regarding his refugee claim. The fact that his application was prepared by an agent does not detract from his responsibility regarding the truthfulness of the information contained therein, unless a reasonable explanation is provided, especially regarding his brother's alleged occupation that would have no bearing on the outcome of the application process. Consequently, the RPD correctly concluded that the Appellant's credibility was undermined by this inconsistency between his visa application and his testimony, and therefore that he had failed to establish that his brother was a truck driver that would get the militants interested in his recruitment. Lack of corroboration for his brother's disappearance [16] The RPD also noted that the Appellant failed to submit any evidence to corroborate his brother's disappearance. The tribunal ruled that, in the circumstances, it would have been reasonable to expect a police report, a missing person report or a statement as part of the investigation, since the Appellant alleged that the police investigated his brother's disappearance. The RPD ruled that the Appellant's credibility is undermined for having failed to submit documentary evidence in order to corroborate his allegation that his brother disappeared or died. [17] The Appellant refers to the Federal Court of Appeal jurisprudence to the effect that the absence of corroborative evidence does not justify disbelieving the allegations. Though the disappearance of the Appellant's brother is relevant to his claim, it was unreasonable to expect the Appellant to submit additional proof distinct from his allegations. The Appellant also submits that, considering his family's difficult relationship with the police, it is clear that it was difficult to obtain a copy of the police report for his refugee claim. [18] As recently articulated by the Federal Court, the law of evidence does not require a testimony to be corroborated by written documents.8 Justice Grammond set out the principles by which the tribunal could require corroboration: To summarize, a decision-maker can only require corroborative evidence if: 1. The decision-maker clearly sets out an independent reason for requiring corroboration, such as doubts regarding the applicant's credibility, implausibility of the applicant's testimony or the fact that a large portion of the claim is based on hearsay; 2. The evidence could reasonably be expected to be available and, after being given an opportunity to do so, the applicant failed to provide a reasonable explanation for not obtaining it.9 [19] As set out above, the credibility of the Appellant is already undermined by unreasonably explained inconsistencies. Consequently, I find that the RPD was correct when drawing a negative inference on the Appellant's credibility from the lack of corroboration regarding his brother's alleged disappearance or death. I find that, even if the family's relationship with the police was difficult, the RPD correctly found that it was reasonable for the Appellant to submit independent evidence in support of this allegation. I disagree with the Appellant that the alleged disappearance of his brother was not so relevant to his claim. As pointed out by the RPD, this allegation is central to the Appellant's claim that he was persecuted by militants to join their cause. Consequently, the RPD was correct when it found that the Appellant failed to establish that his brother had disappeared or was presumed dead. Fear of the Indian Police [20] Finally, the RPD concluded that the Appellant failed to establish, on a balance of probabilities, that the police are looking for him as a result of his perceived involvement with the militants and want him to confess to working for that group. [21] The Appellant opines that the RPD was unreasonable when it considered the allegation to the effect that the Indian police is looking for him to be a "supposition". He argues that this point of view stays at odds with its consideration that the Appellant and his family are frequently visited and threatened by the police. The Appellant submits that those visits and threats are sufficient to demonstrate the interest of the police in finding him. [22] I note that the RPD asked specifically to the Appellant why he thought that the police was looking for him, to which he replied: "I know about the police", that "I know how they act and they always misbehave." He stated that, last month, the police misbehaved with his parents. He also believed that the police perceived him as a militant or working alongside them, so that he is labelled as a terrorist. He thinks that a First Information Report was issued against him, and maybe even an arrest warrant. [23] I agree with the RPD that those allegations lack substance and are based on suppositions or are speculative. I note that the Appellant was allegedly kept a few hours in custody at the police station, and does not allege having signed any document by force. As he stated, the militants are always trying to recruit youths to work for them. As articulated by the Federal Court, there is no obligation on the part of the RAD to accept speculative allegations by the appellant as true.10 [24] As noted above, the Appellant failed to substantiate why he would be targeted by the militants more than others, or why the police would be so interested in a XXXX-year-old teenager (in 2017) who played no political or activist roles in the Khalistan independent movement, aside from his brother's alleged disappearance that was found not to have been established. As for the statement that his parents were visited by the police regarding the appellant, I find that the allegations of the appellant remain unsubstantiated. As pointed out by the RPD, the affidavits of the village Sarpanch, along with those of his family members, are simply repeating his allegations that have already been undermined by credibility issues and are therefore not given any weight. I consequently find that the RPD was correct when it concluded that the Appellant failed to establish that the police is looking for him because he was involved with the militants and wanted him to confess having worked with them, on a balance of probabilities. [25] In conclusion, the Appellant failed to prove, on the balance of probabilities, that he received threats from the militants and that he is being persecuted by the Indian police as alleged. [26] I find it unnecessary to revise the IFA portion of the RPD decision. Suffice is to say that, after having reviewed the RPD analysis and conclusions in that regard, as well as the Appellant's submissions on appeal, I believe that the RPD correctly found that the Appellant would benefit from an IFA in all three cities suggested, as he failed to demonstrate that he possesses a profile that would prompt the police authorities of the IFA cities to communicate his location to the police authorities of Punjab. On this issue, I would like to add that the Appellant had reported no problems to board an international flight when travelling to Canada with his own passport, when the objective evidence shows that, if he were in a police database or on a wanted persons' list, he would have likely been spotted by the authorities, especially having allegedly been labelled as a terrorist.11 CONCLUSION [27] 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) Martine Durocher Martine Durocher August 6, 2021 Date MD/ag 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 National Documentation Package, India, 30 June 2021, tab 12.8: Situation of Sikhs outside the state of Punjab, including treatment by authorities and society; ability of Sikhs to relocate within India; treatment of Khalistan supporters or perceived supporters outside of Punjab (2017-October 2019). Immigration and Refugee Board of Canada. 16 December 2019. IND106294.E. 4 Transcription, p. 4. 5 National Documentation Package, India, 30 June 2021, tab 4.9: ?Treatment of political activists and members of opposition parties in Punjab; treatment of perceived supporters of Sikh militancy by authorities (2017-April 2018). Immigration and Refugee Board of Canada. 14 June 2018. IND106097.E. 6 Transciption, pp. 11-12. 7 Transciption, p. 12. 8 Senadheerage v. Canada (Citizenship and Immigration), 2020 FC 968 (CanLII). 9 Senadheerage v. Canada (Citizenship and Immigration), 2020 FC 968 (CanLII), at para 36. 10 Hercules, Pedro, Monge v. M.C.I. (F.C.T.D., No. IMM-1196-93), Gibson, August 25, 1993. 11 National Documentation Package, India, 30 June 2021, tab 14.10: ?Country Policy and Information Note. India: Internal Relocation. Version 1.0. United Kingdom. Home Office. January 2019. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC1-01340 RAD.25.02 (May 19, 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 (May 19, 2021) Disponible en français