VB9-02896

RAD File / Dossier de la SAR : VB9-02896 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision November 28, 2019 Date de la décision Panel Jillan Sadek Tribunal Counsel for the person who is the subject of the appeal Baldev S Sandhu Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant, XXXX XXXX XXXX, is a citizen of India. He alleges he may not return to India because he fears his relatives will kill him in order to obtain land currently owned by his father. [2] The Appellant is from the Punjab province of India. The Refugee Protection Division (RPD) rejected his claim due to the existence of a viable Internal Flight Alternative (IFA) of Delhi. For the reasons which follow, I have determined that the RPD was correct to reject this claim, the determinative issue being the existence of an IFA. The appeal is dismissed. ROLE OF THE RAD [3] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral testimony heard, which, in particular cases, may attract deference. Unless specifically stated below, I have applied a correctness standard. ANALYSIS [4] The RPD determined that an IFA of Delhi satisfied both prongs of the IFA test. The RPD concluded there was insufficient evidence to establish that the alleged persecutors would have the motivation or ability to find and harm the Appellant in the proposed IFA of Delhi. The RPD also determined that it would be reasonable for the Appellant to relocate to Delhi. [5] The Appellant contends that the RPD failed to observe the principles of natural justice as the Appellant was not afforded proper interpretation during the hearing. The Appellant also submits that the RPD erred in finding that the Appellant would be safe from persecution in Delhi. Finally, the Appellant alleges that the RPD failed to assess his claim under section 97 of the Immigration and Refugee Protection Act (IRPA). [6] I have attentively listened to the recording of the RPD hearing, and have carefully reviewed the entire record. I agree with the RPD's decision and find that the determinative issue is the existence of a viable and reasonable IFA. The RPD did not fail to observe the principles of natural justice [7] The Appellant, in his memorandum, states the following: The Appellant makes note that his counsel objected to the quality of the interpretation numerous times during the hearing. These objections, while not referenced in the RPD's reasons for decision, are noted in the audio recording of the hearing. Furthermore, the Member at the hearing told appellant's counsel not to interfere. This is in direct contrast to the principles of procedural fairness and natural justice. The Appellant's counsel was performing his duty and making clear objections to the quality of interpretation being provided to the Appellant, but the Member was telling counsel to refrain from interfering. (...) The RPD was made aware of the interpretation being deficient but chose not to take any action. In addition to not taking any action, the RPD also instructed counsel not to interfere in the hearing, which a breach of the principle of procedural fairness.2 [8] The Appellant did not submit any proof of these assertions such as a transcription of the recording showing any errors in interpretation, nor was an audit of the hearing recordings requested. [9] I have carefully listened to the recording of the hearing and have noted all references to issues with the interpretation made by Counsel; they are the following: a. At approximately minute 0h24 of the hearing, while the RPD Member was questioning the Appellant, the recording indicates the following: RPD (to the Appellant): How would the police get your information? Interpreter (interpreting the Appellant's words): If I try to study somewhere or rent a place they will ask questions about me. Then they have to enquire everything about me, whether this is the right person... Counsel: What? Interpreter (to Counsel): That he is the right person, that's what he was... Counsel: That is the wrong interpretation. Anyway... Member (to Counsel): OK, so remember we talked about this. You don't make the correction, you say there is a problem with interpretation and we'll ask it again. Counsel: But the member doesn't understand Punjabi, I understand Punjabi and it's my right to bring to notice of member but I shouldn't be sitting quiet. Member: I know. We've had this discussion. I never asked you to sit quiet. I want you to raise an objection [Counsel talking over member at this point - inaudible] I want to be quite clear sir. I want you to make an objection. I don't want you to do the interpretation. You say there was a problem with that answer, I'd like you to ask that question again. Counsel: I don't give interpretation but I don't understand what's going on. Member: If you don't do that then you are probably not acting in the best interests of your client by staying quiet. What I am asking you to do is note that there is an issue with interpretation and we'll ask the question again. So please note that. I am not asking you to sit quiet. Counsel: This is my last request to the panel. Just tell the interpreter to provide the complete interpretation and not to miss some part of it.3 b. At approximately minute 0h34 of the hearing, when Counsel was questioning the Appellant, the recording indicates the following: Counsel (to the interpreter/Member): What do you mean? Anyway. But he said.... It's OK. I don't say anything. Member: I don't know how many times I can repeat myself Counsel. If you have an objection and you think he missed something, then ask again. I never asked you to stay quiet. Counsel: I have objection again but I again ask him the question, rephrase it. To Mr. XXXX: When you say you are the only son of your parents, they will take your land, what do you mean? Can you tell us again, give use more explanation. More details.4 [10] After the above interjection, the hearing continued for another 30 minutes without further comments from Counsel regarding interpretation, including during Counsel's submissions. [11] The above notes demonstrate that Counsel, himself a Punjabi speaker, interjected where he felt the interpretation was inaccurate and then questions were asked a second time so that the interpretation could be fine-tuned. The above notes also demonstrate that the RPD invited Counsel to interrupt when he felt an interpretation error had been made, but was keen to make him understand that it was important he did not try fix any interpretation errors himself. The RPD never instructed Counsel not to interfere in the hearing as alleged in the Appellant's memorandum. [12] I note that the jurisprudence indicates that any objections to the quality of interpretation should be made at the first opportunity before the RPD and that in order to prove that interpretation is deficient, while it is not necessary for claimants to show they have suffered actual prejudice as a result of the breach of the standard of interpretation, an error in interpretation needs to have been identified which would be material to the tribunal's findings.5 [13] In this case, while the Appellant's Counsel interjected on two occasions, no clear objection to the overall quality of the interpretation was made and the Appellant has not identified any error made by the interpreter which was material to the determination of his claim. I am satisfied there was no breach of natural justice in this case and the RPD did not err. The RPD did not err in its IFA analysis [14] The Appellant argues that the first prong of the RPD's analysis was faulty. The Appellant submits that he will not be safe in Delhi because the landlords in Delhi must register their tenants with the nearest police station. The Appellant submits that the RPD also erred in failing to acknowledge the sworn statements he submitted which support his assertion that both XXXX XXXX and XXXX XXXX have strong political connections. The Appellant also notes that in the national documentation package (NDP) document 12. 8 it states that "legal counsel for the World Sikh Organization (WSO) of Canada explained that as the Universal Identification Card "Aadhaar" becomes more common, it will become "virtually impossible" to relocate without being traceable (WSO Canada 17 Apr. 2013)."6 The Appellant argues that these factors combined: the political connections of the persecutors, the tenant verification system and the use of the Aadhaar card, will mean that the Appellant will not be able to evade his persecutors in Delhi. [15] I do not agree with the Appellant. In its decision, the RPD made clear references to the material in the NDP with regards to the tenant verification system and communication between police forces. The RPD accepted that such mechanisms exist but that these mechanisms in and of themselves would not explain how the alleged persecutors would make use of the mechanisms in order to track down the Appellant, particularly as the mechanisms are designed to track criminals and there is no indication that the Appellant is wanted by any police force anywhere. Furthermore, in both the Appellant's testimony before the RPD and in his appeal memorandum he does not explain how the persecutors would have access to police tools in searching for the Appellant which could not be more than speculation in any event. [16] In terms of the Appellant's submission that the RPD ignored the sworn statements the Appellant presented from the Appellant's father, XXXX XXXX XXXX and XXXX XXXX, the Panch, stating that both XXXX XXXX and XXXX XXXX have strong political connections, I note that their evidence is extremely vague. In the affidavit from his father, it simply states: "That both XXXX XXXX and XXXX XXXX are more powerful than me. That they also have contacts with high politicians."7 In the statement from the Panch, it states: "XXXX XXXX S/O XXXX XXXX and XXXX XXXX S/O XXXX XXXX residents of XXXX: XXXX XXXX and District: Kapurthala, Punjab. India. They have strong relationship with high politicians."8 This phrase "high politicians" is not helpful in identifying what kind of contacts these men may have. [17] The RPD need not note every piece of evidence submitted in its decision, it is assumed that the RPD has reviewed the entire record. In the case of these sworn statements, as they add so little to the oral evidence of the Appellant, I find that the RPD was correct in not mentioning them in its decision. The RPD did not err on this point. [18] I agree with the RPD that Delhi would be both a reasonable and safe IFA for the Appellant. The RPD's finding with regards to both section 96 and section 97 of IRPA was correct [19] The Appellant submits that the RPD failed to evaluate his claim under section 97 of the IRPA. The Appellant notes that "the test to be applied to assess his claim under section 97 is the balance of probabilities or "more likely than not.""9 [20] With respect, the Appellant appears to be confused as to the category of his claim. There was no evidence in this case that the mistreatment the Appellant suffered in India met in any way the Convention Refugee definition, as there was no nexus to a Convention ground, nor was a nexus argued before the RPD. The Appellant's allegations only involved a property dispute among family members, thus a claim that would be assessed based on the definition of protected person in IRPA, which is described in section 97. [21] The RPD did not specifically mention that it was only viewing the case through a section 97 lens but that was evident from its analysis. This misunderstanding on the part of the Appellant is also evident form an earlier paragraph in his memorandum which states: "The appellant respectfully submits that the RPD did not apply the correct test and its conclusion was too stringent. There need not be more than a 50 per cent chance (i.e. a probability) of persecution; on the other hand, there must be more than a minimal possibility. The test is: is there a reasonable chance that persecution would take place if the applicant returned to his country of origin?"10 As can be seen from this paragraph the Appellant was asserting a section 96 standard of proof. [22] Ultimately, it is clear the RPD did assess the claim under section 97, as the RPD stated so in its decision at line 28-31 of page one of the decision. The RPD did not err on this point. CONCLUSION [23] I am not satisfied the Appellant has demonstrated that there is a serious possibility that he would be persecuted if he returned to India, specifically Delhi, nor that, on a balance of probabilities, he would be personally subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment should he return to India, specifically the IFA of Delhi. DETERMINATION [24] I dismiss this appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act. (signed) "Jillan Sadek" Jillan Sadek November 28, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 P-2, Appellant's memorandum, Appellant's record, p. 5 3 Minutes 0h24 to 0h26 of the recording of the hearing of March 7, 2019 4 Minutes 0h34-0h35 of the recording of the hearing of March 7, 2019 5 Aseervatham v. Canada (Citizenship and Immigration), 2018 FC 1006 6 P-2, Appellant's memorandum, paragraph 23, Appellant's record, p. 8 7 RPD-1, Affidavit of Paramjeet Singh, RPD record, p. 82 8 RPD-1, Statement of the Panch, RPD record, p. 83 9 P-2, Appellant's memorandum, paragraph 28, Appellant's record, p. 9 10 P-2, Appellant's memorandum, paragraph 25, Appelant's record, p. 8 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-02896 RAD.25.02 (April 04, 2019) Disponible en français 7 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français