TC0-07305

RAD File / Dossier de la SAR : TC0-07305 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 3, 2020 Date de la décision Panel Anderson, Colin Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mayoori Malankov Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION AND DECISION [1] The following reasons explain why I am allowing the appeal of XXXX XXXX XXXX (the Appellant). The Appellant has appealed the Refugee Protection Division's (RPD) February 20, 2020 decision that rejected his claim for refugee protection. The Appellant has asked that I substitute the RPD's decision with my own finding that the Appellant is a Convention refugee or a person in need of protection, or that I return the file to the RPD for redetermination. I find that the RPD erred and that the Appellant is a Convention refugee. BACKGROUND [2] The Appellant was designated a vulnerable person at the RPD. [3] The Appellant has made the following key allegations in his Basis of Claim (BOC) forms and at the RPD hearing: * That he is a citizen of India and no other country, and that he grew up in a Sikh household. * That he is a survivor of long-term sexual abuse at the hands of several extended family members. * That he is further a survivor of serious long-term physical and psychological abuse at the hands of his father, and that he also regularly witnessed his father similarly abusing his mother and sisters. * That he converted to Islam against his father's wishes, and that his father has vowed to kill or otherwise harm him. * That his father is a XXXX-XXXX XXXX XXXX in Pakistan, with connections and power throughout the country. [4] The RPD found that the Appellant's claim failed because he had a valid internal flight alternative (IFA) in Goa or Chennai. [5] The Appellant has argued on appeal that the RPD erred by improperly rejecting late evidence disclosure, by disregarding psychological evidence, by relying on the Appellant's establishment in Canada as evidence that he could re-establish himself in India, by ignoring evidence that the Appellant would be forced into hiding, and by impugning some of the Appellant's testimony without properly challenging it. PRELIMINARY MATTERS Some new evidence is admissible [6] The Appellant has proposed numerous new pieces of evidence in support of the appeal. This proposed new evidence is as follows: * I decline to admit the affidavit of Prof. Jauregui contained in Exhibit A of the Appellant's record.1 This is because it does not meet the statutory requirements of IRPA s. 110(4). While the affidavit was signed on XXXX XXXX, 2020, it refers only to country conditions and circumstances that arose well before the date of the RPD decision. I have no argument regarding why this affidavit could not reasonably have been presented in time for the RPD hearing. The Appellant has been represented by counsel throughout and counsel should have been reasonably aware that the issue of XXXX influence and power would be central since the main agent of persecution is a XXXX XXXX. I find I have no discretion to admit this evidence. * I admit the psychological reports contained in Exhibits B and C of the Appellant's record.2 These reports are dated XXXX XXXX XXXX 2020 and XXXX XXXX, 2020 and therefore post-date the RPD decision. The reports contain updated information on the Appellant's medical status, which is relevant to the reasonableness component of the IFA analysis. This updated information was not before the RPD and attracts no credibility concerns. This new evidence therefore meets the statutory requirements of IRPA s. 110(4) and the supplemental factors of newness, relevance, and credibility endorsed by the Federal Court in Singh.3 * I admit the letter from the Appellant's mother contained in Exhibit D of the Appellant's record.4 The letter is dated XXXX XXXX, 2020 and therefore post-dates the RPD decision. The letter contains new, recent allegations regarding the Appellant's father's ongoing abusiveness and threats against the Appellant. This information was not before the RPD and attracts no credibility concerns as it is in line with other credible evidence regarding the Appellant's father. This new evidence therefore meets the statutory requirements of IRPA s. 110(4) and the supplemental factors of newness, relevance, and credibility endorsed by the Federal Court in Singh. * I decline to admit the numerous country condition articles contained in Exhibit E of the Appellant's record.5 While the articles do post-date the RPD decision, they support only the Appellant's residual risk. I do not find them relevant given my analysis below. The role of the RAD [7] I have reviewed the entirety of the written record and have listened to the audio recording of the RPD hearing. The RPD had no meaningful advantage over me in assessing the credibility of oral testimony. I have therefore undertaken a review of the correctness of the RPD decision throughout. ANALYSIS The RPD correctly assessed the Appellant's identity [8] The RPD was correct to find that the Appellant's identity as a citizen of India was established by a certified copy of his Indian passport. I note that the Appellant has adduced various other pieces of supporting evidence including a household register and his Canadian temporary resident visa application. On a balance of probabilities, the Appellant's identity is established. The Appellant is credible [9] The Appellant benefits from a presumption that his sworn statements are true unless there are valid reasons to doubt their truthfulness. The RPD made no negative findings regarding the Appellant's credibility. In my independent analysis of the evidence and testimony, I see no inconsistencies, material omissions, or implausibilities that give me concern. I agree with the RPD that the Appellant is credible with respect to his history of abuse, his religious conversion, and the threats made against him. The RPD erred in dismissing late disclosure [10] I agree with the Appellant that the RPD erred in the way it rejected the Appellant's late disclosure of a minor basis of claim narrative update on the day of the RPD hearing. [11] I note RPD Rule 36, which states that RPD members must consider any late disclosure's relevance and probative value, any new evidence the document brings to the hearing, and whether the party, with reasonable effort, could have provided the document as required by Rule 34. The list of considerations is conjunctive. In this case, the record indicates that the RPD member only considered the timeliness of the disclosure and not the other items. The timeliness was further explained by counsel. As counsel credibly argued, the updates in the narrative only came to light shortly before the RPD hearing because of the Appellant's psychological state (which is extremely well documented and which the RPD accepted). For this reason, I disagree with the RPD's reasoning that the Appellant had months to amend the narrative. [12] In any event, I find this error to be quite minor. This is because the Appellant had the opportunity to introduce this information in his oral testimony regardless of its rejection as a Basis of Claim narrative amendment, and because the amendment itself forms part of the RAD record under RAD Rule 3(3)(c). The RPD erred in its IFA analysis [13] I find that the RPD erred in both prongs of its IFA analysis. The RPD erred in the first prong of its analysis because it mischaracterized the profile of the Appellant's primary agent of persecution. [14] The RPD wrote in its decision that the agent of persecution is simply "a XXXX." The RPD found that the fact that XXXX in India are organized on a state level meant that the agent of persecution would have no means to find the Appellant in other parts of the country. This is a mischaracterization of the evidence. I find this way because there is credible evidence on the record that the agent of persecution is a relatively XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX6 This XXXX would give the agent of persecution authority and influence over the majority of other XXXX XXXX XXXX XXXX. The evidence shows that the agent of persecution is a XXXX XXXX, with XXXX of time XXXX XXXX XXXX. There is credible evidence on the record that the agent of persecution has close relationships with other XXXX XXXX XXXX XXXX and political figures from around the country. There is credible evidence on the record that the agent of persecution, as the Appellant's father, has maintained a close interest in the Appellant during his time away. He has monitored the Appellant's activities and made numerous and recent inquiries through family, friends, and the Internet. There is credible evidence that the agent of persecution has continued to make threats against the Appellant during this time. In order to live safely in the IFA locations, the Appellant would need to avoid his entire family. Because the agent of persecution has access to state databases, the Appellant would also need to avoid any documented interaction with the state. [15] As a result of the above and given the specific facts of this case, I find that the agent of persecution would have the means and motive to find the Appellant in the proposed IFA locations. The IFA fails on the first prong of safety. [16] Even if this were not the case, I also find that the RPD erred in its second prong reasonableness analysis. This is because the RPD mischaracterized the medical and psychological evidence on the record. In its decision, the RPD wrote that the Appellant had successfully established a network of support for himself in Canada and inferred that he could do so again in India. The RPD further wrote that the psychological reports did not declare that a return to India would pose a serious harm to the Appellant. [17] I disagree on both counts. First, the evidence does indeed show that the Appellant has established a network of support in Canada. However, the evidence is also clear that it has been incredibly hard for the Appellant to do so, and he has done so at great peril - including a risk to his life. [18] At this point I would clarify that the medical and psychological evidence is extremely clear and thorough in this case. Many refugee claims include a single largely boilerplate psychological report that indicates a claimant has attended a one-hour interview. This is not one of those claims. The Appellant's evidence is highly probative of his deep traumatization and its ongoing medical after-effects. The evidence details numerous medical doctors, trips to emergency rooms, long-standing and ongoing treatment programs, and a deep network of counsellors, therapists, religious supports, and friends that are helping the Appellant stay alive here in Canada. The medical record spans years. The evidence states that a return to India would "jeopardize his personal safety"7 and be "potentially dangerous."8 [19] This case is distinguishable from one that would simply require the Appellant to find a new doctor or acquire the same medicine in a new locale. A return to any IFA location in India would require the Appellant to start his multi-layered, intensive medical interventions over from scratch. The evidence in this case shows that the isolation involved in doing so would render the Appellant's condition life threatening and therefore unreasonable. [20] As a result of my findings above, I find that the proposed IFA locations fail on both the prong of safety and the prong of reasonableness. No adequate state protection [21] The RPD made no findings with respect to state protection. In my independent review, and given the specific facts of this case, I find that the presumption of adequate state protection has been rebutted. This is because the primary agent of persecution is a XXXX XXXX XXXX XXXX XXXX who has a long history of abuse and violence against the Appellant. The Appellant could not engage the protection of the state without alerting the agent of persecution to his whereabouts. The agent of persecution has unusually high authority within the state protection mechanism, and its presumption of adequacy is therefore rebutted in this case. No need to analyze s. 97 or residual claim [22] The Appellant has made several arguments regarding his s. 97 risk and a residual claim based on the treatment of Muslims in India. As a result of my findings above, I do not need to address these concerns. CONCLUSION [23] The RPD erred in its IFA analysis, because it mischaracterized the agent of persecution's profile. The RPD further misapprehended the Appellant's medical evidence. The IFA fails in both safety and reasonableness. [24] The Appellant has shown that he faces a serious possibility of persecution on the Convention ground of religion should he return to India. Pursuant to IRPA s. 111(1)(b), I set aside the determination of the RPD and substitute my own determination that the Appellant is a Convention refugee. [25] The appeal is allowed. (signed) "COLIN ANDERSON" Anderson, Colin December 3, 2020 Date 1 Exhibit P-2, Appellant's Record, page 142. 2 Exhibit P-2, Appellant's Record, pages 152 and 155. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII). 4 Exhibit P-2, Appellant's Record, Exhibit 4, page 158. 5 Exhibit P-2, Appellant's Record, Exhibit 4, page 162. 6 Exhibit RPD-1, RPD Record, page 9. 7 Exhibit RPD-1, RPD Record, Exhibit 4, page 165. 8 Exhibit RPD-1, RPD Record, Exhibit 4, page 161. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (January, 2020) Disponible en français 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 (January, 2020) Disponible en français RAD File No. / N° de dossier de la SAR : TC0-07305