TC1-07013

RAD File / Dossier de la SAR : TC1-07013 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 16, 2021 Date de la décision Panel Adam Doherty Tribunal Counsel for the person who is the subject of the appeal Tejinder Bhateja 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 who first came to Canada in 2017 to study. He returned to India in XXXX 2019 and, upon his re-entry to Canada in XXXX 2019, made a claim for refugee protection. The Appellant alleges a fear for his life from a man called XXXX XXXX, a Hindu fundamentalist, because the Appellant prepared and ate beef in 2017. Additionally, the Appellant alleges a fear of XXXX because the Appellant is unable to repay a loan that his family took out from XXXX so that he could study in Canada. [2] In a decision dated May 14, 2021, the Refugee Protection Division (RPD) denied the Appellant's claim. The RPD found the determinative issue in the claim to be credibility. The RPD found that the Appellant's evidence and testimony differed significantly between the hearing, his Basis of Claim (BOC) narrative, port of entry interview with the Canada Border Services Agency (CBSA) on September 18, 2019, and follow-up CBSA interview on November 25, 2019. The RPD relied on these inconsistencies, as well as his ability to live safely in India between XXXX and XXXX 2019, to find that he had not, on a balance of probabilities, established a serious possibility of persecution or a risk to life or of cruel and unusual treatment or punishment, or of torture, at the hands of XXXX or his associates. [3] The Appellant disagrees with the decision of the RPD and now appeals to the Refugee Appeal Division (RAD), where he argues that the RPD erred in finding that he faces a risk to life from XXXX and Hindu fundamentalists because of his beef eating. He submits that the RPD erred in failing to take account of his nervousness when being interviewed by CBSA officers and that any inconsistency between his testimony and CBSA interviews is because of this nervousness. DECISION [4] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention1 refugee nor a person in need of protection. NEW EVIDENCE [5] The Appellant has provided four pieces of new evidence on appeal, as follows: * Affidavit of XXXX XXXX dated XXXX XXXX, 2020; * Affidavit of XXXX XXXX dated XXXX XXXX, 2020; * Affidavit of XXXX XXXX dated XXXX XXXX, 2020; * Partial newspaper report (undated); * Excerpt from the Uttar Pradesh Prevention of Cow Slaughter Act, 1955. The evidence presented by the Appellant is rejected [6] According to the law,2 I can only accept evidence that: (i) arose after the RPD decision; or (ii) was not reasonably available at the time of the decision; or (iii) could not reasonably have been expected in the circumstances to be brought to the RPD before the decision. [7] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 [8] With respect to the affidavits of XXXX XXXX, XXXX XXXX, and XXXX XXXX, each are dated over a year prior to the date of the RPD hearing. Whilst the Appellant states in his memorandum that they "could not be produced in [the] RPD hearing as evidence," he does not explain why this is the case. In the absence of an explanation as to why they could not have been produced before the RPD decision, I find that they were reasonably available to the Appellant prior to the RPD decision. I also find, given that credibility is always at issue in any RPD hearing, that the affidavits, which support the credibility of the Appellant's allegations, could reasonably have been expected to be brought to the RPD before its decision. I find, as a result, that they do not meet the requirements of section 110(4) of the Act to be considered new evidence and I reject them as new evidence. [9] With respect to the newspaper article, I note the page was printed on July 26, 2021. However, the Appellant has provided only part of the article and has provided neither the headline nor the newspaper or website it is from. He provides the date of the article as being August 25, 2017 on page 28 of his Appellant's memorandum. [10] Accepting that the date of the article is August 25, 2017, I find that was published more than three and a half years before the date of the RPD decision. The Appellant has not explained why this article was not reasonably available to him prior to the RPD decision, nor why it could not reasonably have been expected to be submitted prior to that date. In the absence of such an explanation, I find that the Appellant has not established that this piece of evidence meets the requirements for acceptance under section 110(4) of the Act and I reject it as new evidence. [11] With respect to the excerpts from the Prevention of Cow Slaughter Act, 1955, I find this evidence was reasonably available prior to the RPD decision. I further find, however, that even if I accept that the Appellant could not reasonably have been expected to provide this evidence prior to the RPD decision, this evidence does not establish a new fact. That is to say, using the Singh/Raza factors, the existence of laws protecting cattle in India and, by extension, the reverence they are held in, is not a new fact that was unknown to the RPD. For this reason, I find that the excerpts of the Prevention of Cow Slaughter Act do not meet the criteria for acceptance as new evidence. [12] Having analysed the new evidence provided by the Appellant on appeal, I find none of it meets the criteria for acceptance, either under section 110(4) of the IRPA or under the Singh/Raza factors. It is therefore rejected. ANALYSIS [13] My role is to look at all the evidence and decide if the RPD made the correct decision.4 In doing so, I must independently assess whether the RPD was correct in relation to each alleged error of fact, law or mixed fact and law. I may defer to the RPD's finding on the credibility of oral testimony if the RPD had a meaningful advantage in assessing credibility in the circumstances. In the present appeal, I reviewed the RPD's decision on the standard of correctness and undertook an independent assessment of the evidence as I do not find that the RPD enjoyed a meaningful advantage in assessing the credibility of the oral testimony. The Appellant omitted a reference to eating beef in his port of entry (POE) interview [14] The RPD found that the Appellant had omitted any reference in his POE interview in September 2019 to a fear of harm in India from eating beef. The RPD relied on this omission to draw a negative inference respecting the Appellant's credibility. I agree. [15] In his September 18, 2019 POE interview, the Appellant was interviewed by CBSA with the presence of a Punjabi interpreter. The Appellant was asked if he intended to file an application for refugee protection and he confirmed that he did. When asked what his fears were, the Appellant stated "[b]ecause I spent all my money to study here and I was "on the bed" for a year."5 [16] In a second CBSA interview of November 25, 2019, the Appellant stated that his reasons for seeking protection were "one I borrowed money and that person is after me and other than that for religious reason because I'm involved in eating the cow meat. I'm accused of eating cow meat which is banned in India and I have been accused of killing a cow."6 [17] In his BOC narrative, the Appellant stated that during his senior year of high school he attended an Eid dinner at a Muslim friend's house and ate beef curry. He really enjoyed it and came home and told his mother, who was furious with him for eating beef. She told him not to mention this to anyone. After graduating high school, the Appellant cooked beef with some friends that one friend had procured. When they bought naan bread at a restaurant, one of the party told the restauranteur that they had cooked beef. It became known in the Appellant's village that they had eaten beef and the Appellant's friends blamed him. In order to escape the anger of the village, the Appellant decided to leave India and borrowed $XXXX XXXX XXXX from XXXX XXXX. Before he left India, a man came to the Appellant's home and told his father that the Appellant had killed a cow and cooked some of its meat. Because the Appellant left India, people now believe he is involved in the killing of a cow. [18] In his testimony at the hearing, the Appellant stated that in 2017 he borrowed XXXX XXXX XXXX XXXX XXXX rupees (XXXX lakhs) from XXXX and in the intervening months between the loan and his leaving for Canada, he made "one or two mistakes"7 that included eating beef at his Muslim friend's house and cooking beef. As a result, XXXX now wants to kill him because XXXX is a Hindu fundamentalist. [19] The RPD asked the Appellant why he had not mentioned any of his fears about XXXX to the CBSA officer during his POE interview. The Appellant responded that he was very fearful he would be sent home to India and he was nervous during the interview. He did not understand everything that was happening. [20] In its reasons the RPD rejected the Appellant's explanation for not referring to his fear of XXXX for owing him money or for having eaten and prepared beef. The RPD relied on the omission of this information from his POE interview to find that the Appellant's credibility was undermined. [21] On appeal, counsel for the Appellant submits that the reason he omitted any reference to XXXX in his POE interview was because he was nervous, he had been travelling for 20 hours, and he had a health condition. The Appellant did not refer to his health condition or his travel time as reasons for the omission before the RPD. I therefore reject those arguments. [22] I accept that the Appellant would have been travelling for a long time and would have been acutely nervous during the interview to determine his admissibility to Canada. It is for this reason, as well as their brevity, that I must exercise caution in drawing an adverse credibility finding from POE interviews. Nevertheless, I note in this instance that the Appellant had the benefit of an interpreter. Additionally, as noted in Ishaku,8 a person's first story is usually the most genuine and, therefore, the one to be most believed. [23] In that vein, I find it significant that the Appellant did not refer to any fear arising from having eaten beef, even though, in his BOC narrative and testimony, this was the issue that caused his flight from India. Instead, the Appellant referred to having spent all his money to study here because he had a health issue. For that reason, I find the Appellant's omission of any reference to XXXX, or a fear of being killed for a debt, or a fear of being killed for eating beef, undermines the credibility of his allegations in this regard. The Appellant provided inconsistent information respecting the identity of the agent of harm [24] The RPD found that the Appellant had omitted from his narrative that XXXXwas the person who came to his home to tell his parents that he had made a mistake by eating beef and killing a cow. It relied on this omission to draw a negative inference respecting the credibility of the Appellant's allegations. I agree. [25] In his XXXX 2019 CBSA interview, the Appellant stated that the first reason he was seeking refugee protection was because he had borrowed money and that creditor was after him. The second reason was because he was accused of killing a cow and eating cow meat. He stated that the Hindu community where he lived had accused him of this. In his BOC narrative, the Appellant stated that he was accused of killing the cow whose meat he prepared for his friends. He was very scared and felt the only way out was to leave India. As a result, he borrowed $XXXX XXXX XXXX from XXXX. [26] The Appellant further stated that "[o]ne day a man came to our house and informed my father that I had killed a cow and cooked some of the meat...The same man threatened to kill me if he found out that I was guilty of killing the cow. He also said that the day they find out the person/persons who were responsible for killing the cow, they will be killed." [27] In his testimony before the RPD, the Appellant stated that XXXXwants to kill him because he ate and cooked beef. He stated that when they prepared the beef, they went to a restaurant to buy roti and, as a result of this, news spread that they had prepared beef. Then XXXXcame to the Appellant's home and told his father that the Appellant had made a mistake, but it was not confirmed at that time if he was involved. The Appellant then told his parents everything that happened. After this incident, people would surround the Appellant on the street to tell him that he had done something wrong. Because he left to study in Canada, people believed that the Appellant was the one who cooked the beef. [28] The Appellant also testified that XXXX is a strict Hindu and will kill the Appellant if he returns because of his having eaten beef. XXXX also asked for his money back early because of this issue. [29] The RPD asked the Appellant why he had not stated in his narrative or POE interviews that XXXXwas the man who came to his home in order to inform his father that the Appellant had eaten beef, or that his fears regarding the loan and eating beef referred to the same person. The Appellant stated that in his BOC narrative he did not realize which things he had to mention. Additionally, the Appellant stated that, from his point of view, he gave the reasons, but he could not explain everything. [30] In its reasons, the RPD rejected the Appellant's explanations and found that the inconsistency between the Appellant's BOC narrative and testimony respecting the identity of the person who came to his home and threatened his parents undermined the credibility of his allegations. I agree. [31] I acknowledge the Appellant's submissions that he is a "simple person" who does not know the legal consequences of being casual in statements. However, I reject this explanation. The BOC narrative instructions are clear that everything that is important for the Appellant's claim should be included in the narrative, such as names, dates, and places, wherever possible. Like the RPD, I find it significant that the Appellant referred to XXXX as the person who agreed to help him by lending him sufficient funds to study in Canada, but in the next line of his narrative referred to "a man"9 coming to his house to inform his father about his having eaten meat. He also referred to this person as "[t]he same man" and "[h]e," but at no point identified this man as XXXX. I would expect, if the man who came to his house to threaten him for eating meat was XXXX, that the Appellant would have said so. This information is central to the Appellant's claim as it relates to the identity of the person who threatened him for eating meat, and from whom he allegedly fears death. As a result, I find it is a significant inconsistency that undermines the credibility of his allegations. [32] I further find it significant that the Appellant did not refer to XXXX in either of his CBSA interviews as the person who wanted to harm him because he ate beef. Indeed, it defies logic that XXXX would fund the Appellant's flight to Canada if XXXX was the agent of harm who came to threaten him for eating beef. I find these factors further significantly undermine the credibility of the Appellant's allegations that he is at risk of harm in India for having eaten beef. The Appellant's supporting documents do not establish that he is at risk of harm for eating beef [33] I also agree with the RPD that the affidavits and court documents the Appellant provided in support of his claim do not support his allegations that he is at risk of harm from eating beef. The loan receipt10 supports the Appellant's testimony that he borrowed XXXX lakhs from XXXX in XXXX 2017 in order to finance his studies in Canada. However, the XXXX XXXX, 2018 letter from the Appellant's father to the local District Magistrate11 states that the Appellant's father was the one who had borrowed the money from XXXX. Neither that letter, nor the XXXX 2019 letter from the Appellant's father12 to the Magistrate, states that the reason for the dispute was because the Appellant ate beef. They state instead that XXXX began demanding money ahead of time and threatened to kill the Appellant's father. Additionally, while the affidavit of XXXX XXXX13 dated XXXX XXXX XXXX 2019 states that XXXX approached the Appellant's father and demanded XXXX lakhs and threatened to kill him, again there is no mention of a dispute about the consumption of beef. [34] I find that these documents do not support the Appellant's allegations that XXXX wishes to kill him for his having eaten or prepared beef. The Appellant has not established that he is at risk of harm for having eaten or prepared beef [35] I have found that the Appellant gave inconsistent evidence at various points respecting whom he fears, and why. I have also found that he omitted certain pieces of evidence from his CBSA interviews and BOC narrative that were contained in his testimony. I rely on these findings, as well as the lack of any reference to a dispute about beef consumption in his supportive documents, to find that the Appellant has not credibly established that he is at risk of harm in India for having eaten or prepared beef. The Appellant has not established that he is at risk of harm from XXXX for having failed to repay his debt [36] I accept that the Appellant or his father entered into an agreement with XXXX for the purpose of borrowing XXXX lakhs so that the Appellant could pursue his third level education in Canada. I further accept, from the Appellant's consistent testimony respecting his being unable to finish his studies and owing this money, as well as the documentary evidence referred to above, that the Appellant's family is engaged in a dispute over the loan with XXXX. I also accept, from the application for receiving information,14 that the matter was set down for hearing before the Magistrate's Court in XXXX XXXX XXXX on XXXX XXXX, 2021. I do not accept, however, that the Appellant's life is in danger as a result of this dispute. My reasons follow. [37] The RPD asked the Appellant at the hearing what the outcome of the court hearing was, given that it had occurred three days prior to the RPD hearing and the Appellant had earlier testified that he had spoken to his father the day before the RPD hearing. The Appellant stated that he had not discussed the matter with his father because it was in process and, due to the COVID-19 pandemic, he was unsure if it had gone ahead. The RPD asked the Appellant why he had not asked his father about the court case. The Appellant responded that he was under stress because of the RPD hearing date. He stated that he was telling the truth. [38] In its reasons, the RPD rejected the Appellant's explanation for not being able to provide information on the court case respecting the monetary dispute. It considered it reasonable to expect that if the Appellant feared for his life at the hands of XXXX, and his family had a court hearing about the matter immediately before the RPD hearing date, the Appellant would have been interested in knowing about its outcome, considering that it might mean he would be able to return to India in safety. The RPD considered that either the dispute between the parties was purely financial and the Appellant was not worried enough to ask about the outcome, or the court decision was favourable to the Appellant's family, and thus not favourable to his refugee claim. The RPD relied on this evidence to find that the Appellant had not credibly established that he faces a risk to life or of cruel or unusual treatment upon his return to India. [39] On appeal, the Appellant submits again that he was fearful before his RPD hearing and so did not ask his father how the court case went. Like the RPD, I reject the Appellant's explanations. [40] I agree with the RPD that one would expect the Appellant to seek an update on how the court case went when he spoke to his father the day before his RPD hearing, particularly when the court case was between his family and the named agent of persecution. I also note that the Appellant has not sought to provide evidence of this court case to the RAD on appeal. Given that the outcome is potentially determinative of the Appellant's access to state protection, and thus his claim for refugee protection, I find it not credible that the Appellant would fail to find out about the result. [41] Because of its centrality to the Appellant's claim for refugee protection, I find the Appellant's lack of interest in the outcome of his family's court case against XXXX, the named agent of persecution in this claim, significantly undermines the credibility of his allegations that he is at risk of harm from XXXX. It also significantly undermines the Appellant's general credibility. [42] For this reason, even though the affidavit of XXXX XXXX states that the Appellant is at risk of harm from XXXX, I find it insufficient to overcome the numerous credibility concerns I have found in the Appellant's evidence and testimony. I find that the Appellant has not established, on a balance of probabilities, that XXXX wishes to harm him because of his XXXX-lakh debt towards him. The Appellant has not established a section 96 or section 97 risk [43] I have determined that the Appellant has not established that he is at risk of harm for having prepared and consumed beef in India. I have further determined that the Appellant has not established that he is at risk of harm because of his monetary dispute with XXXX. I rely on these findings to conclude that the Appellant has not established a serious possibility of persecution, nor a risk to life or of cruel and unusual treatment or punishment, as a result of these allegations. For that reason, I find he is neither a Convention refugee nor a person in need of protection. I therefore dismiss his appeal and confirm the decision of the RPD. CONCLUSION [44] 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) Adam Doherty Adam Doherty November 16, 2021 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, subsection 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 5 Page 50 of RPD Record. 6 Page 45 of RPD Record. 7 RPD Hearing Transcript (April 23, 2021), page 8, line 26. 8 Ishaku v. Canada (Citizenship and Immigration), 2011 FC 44 at par. 53. 9 BOC narrative, page 24 of RPD Record. 10 Page 361 of RPD Record. 11 Page 367 of RPD Record. 12 Page 365 of RPD Record. 13 Page 369 of RPD Record. 14 Page 371 of RPD Record. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-07013 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