VC0-01428

RAD File / Dossier de la SAR : VC0-01428 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 April 29, 2021 Date de la décision Panel Susan Brown Tribunal Counsel for the person who is the subject of the appeal Munir Riasat 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 who fears harm from her aunt due to a property dispute and persecution on account of her gender and ethnicity. [2] The Refugee Protection Division (RPD) found that the Appellant did not establish a forward-looking risk under section 96 or 97 of the Immigration and Refugee Protection Act (IRPA). [3] The Appellant submits that the RPD erred in law by finding no evidence of a direct threat to the Appellant from her aunt. DECISION [4] 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. BACKGROUND [5] According to her Basis of Claim (BOC) form the Appellant is Sikh born in the Punjab in 1994. In 2014 she came to Canada on a student visa which expired on XXXX XXXX XXXX 2017. The Appellant says she tried to get into a work study visa program but was not successful because she did not have the funds to secure a lawyer. The Appellant was arrested by an Inland Enforcement officer on April 10, 2019 and her application for refugee protection was received on April 18, 2019. [6] The Appellant seeks protection in Canada on the basis of a property dispute about farm land that was adjacent to land that was owned by her father, who passed away in 2013. Apparently, the land was originally owned by the Appellant's grandfather and her father's ownership was disputed by the Appellant's aunt who filed a civil lawsuit to assert her claim. The claim was litigated for six years until the aunt withdrew her claim in 2019. The Appellant is concerned that she will be forced to marry the aunt's nephew to allow her aunt to lay claim to the land. [7] The Appellant also raised fears of persecution on the grounds of her gender and Punjab ethnicity at the RPD hearing on January 15, 2020.1 The RPD gave its negative decision on February 4, 2020. ANALYSIS [8] The RPD found that the Appellant identified two sources of risk: First, a risk of harm from her aunt on the basis of the property dispute. The RPD examined this claim under section 97 of the IRPA as the risk alleged did not have any nexus to a Convention ground. The second is a risk of persecution on the basis of her ethnicity and gender, which the RPD assessed under section 96 of the IRPA. The RPD found that the Appellant did not establish a forward-looking risk under either section 96 or 97. [9] The Appellant submits that the RPD erred in not taking into account evidence of threats made by her aunt and incorrectly concluded that she did not establish a forward-looking risk from her aunt. [10] The Appellant did not present any arguments in relation to the RPD's finding her ethnicity or gender would not, on a balance of probabilities, subject her to persecution. Following my own review, I see no reason to disturb the RPD's findings. [11] The determinative issue is whether the RPD was correct in finding that the Appellant did not establish that she faces a prospective risk from her aunt. I have reviewed the evidence on the record, including the transcript of the RPD hearing and assessed the Appellant's submissions and, for the reasons detailed below, I do not find that the RPD erred when it found that the Appellant does not face a prospective risk from her aunt. Prospective risk - law and evidence [12] The Federal Court is clear that the first step in the analysis is to identify the nature of the risk faced by the Appellant: First, the RPD must correctly characterize the nature of the risk faced by the claimant. This requires the Board to consider whether there is an ongoing future risk, and if so, whether the risk is one of cruel or unusual treatment or punishment. Most importantly, the Board must determine what precisely the risk is.2 [13] The Appellant gave the following evidence in her BOC about the nature of the risk she faces: 2(a) Have you or your family ever been harmed, mistreated or threatened by any person or group? "My aunt who is my fathers cousin sister threatened us after my father passed away that she will destroy our family. She came to our house and threatened to bring more people to threaten and disturb our lives." 2(b) If you returned to your country, do you believe you would be harmed, mistreated or threatened by any person or group? "if I returned to my country. I don't think I will be safe because, there a fight going about property which is getting bad and people involved in it might harm me to get it. Or marry me off to someone who is not suitable or nice. They might mistreat me, abuse me. Make me stay at home and leave. They will isolate me from everyone. My father cousin sister who is involved in the fight has already threaten my family that she will destroy us not leave us be." 2(c) Did you ask any authorities such as the police, or any other organization, in your country to protect or assist you? "It is because since my father died. My mother has been the power or attorney. She does not has any connection with police and other organizations and we don't have money for that as well. where as my aunt has connections and friends with the police. she will have the upper hand in these fights." 2(h) Give any other details that you think are important for your claim for refugee protection. "well my family does not have any stable means or financial stability. And i don't see any future going back to india. My mother already lives with her brother's place to support her-self. I don't think they will be able to support us both at the same time. I might be not welcomed there." [14] The Appellant gave the following testimony at the RPD hearing about the nature of the risk she faces: RPD Appellant ... Have you ever been directly threatened .... You were never directly threatened by your aunt? No3 Were you ever directly threatened by anybody? Not - not directly because I was here4 So did you ever have any violence or aggression towards you when you were in India? No5 And is it your aunt - like, who is - who are you afraid of here? My aunt ...6 And do you have anything to show that you - this fear is justified? Not like physical evidence7 Well, like what are you afraid of from her? Aside what you said, you're afraid that she will get you to marry her relative, you're afraid that she will force you to live on the property, but what else are you afraid of? Like, if I go back to India, I cannot like (inaudible) do something on my own because we do not have any, like, income or anything like that. If I go back, I have to, like, do a job and it's not the safest place right now to be for a single girl to go back there.8 [15] The Appellant presented the following documentary evidence about the nature of the risks she faces: Case summary "The suit was contested on number of grounds such as not maintainable, the suit has been file just to harass and put pressure upon the widowed [Appellant's mother] to extract money extract money and that the suit is false, frivolous and vexatious and that the Sale Deeds are genuine and purchasers are bona fide purchaser of the Suit Land etc...[the Appellant's aunt] finding no water in the suit which was likely to be dismissed on merits after harassing defendants for more than six years suffered a statement in the court on XXXX XXXX XXXX-2019 to the effect that she does not want to proceed with the present suit and the same may kindly be dismissed as withdrawn..."9 Mother's affidavit The Appellant's aunt threatened the Appellant's mother during the litigation which is still continuing that she will implicate her children, the Appellant and her brother in false cases to pressure her to transfer the property.The Appellant's aunt is an influential lady as she and her husband have contacts with High Officials and active members of the political party "Akai Dal." The Appellant's mother is being threatened through police officers and the threats are still continuing.10 Sarpanch letter "I know [the Appellant's mother] and her family had been and still under constant threats from [the Appellant's aunt] and her husbands due their influence and contacts with high ups being active member of political party and they are pressuring [the Appellant's mother] to part with the property in her name in favour of [the Appellant's aunt]. It was disclosed to me by [the Appellant's mother] that [the Appellant's aunt] and her husband had been and still threatening her through police officials for implicating her children in false criminal cases..."11 Prospective risk - analysis [16] The RPD found that the Appellant believes it would be unsafe for her to return to her home village because of the influential and harassing nature of her aunt over the dispute of land. [17] The RPD noted that the Appellant "quite forthrightly stated that she has never been directly threatened or felt at risk to her life from her aunt. Indeed, the [Appellant] herself has not been specifically targeted during the dispute over land. Furthermore, the evidence is that the aunt has now withdrawn the civil claim against the property so any risk to the [Appellant] while the suit was ongoing, has now disappeared."12 [18] On this basis the RPD concluded that the Appellant did not have a well-founded fear of the agent of harm, in this case, her aunt, as there is insufficient evidence that she faces a forward-facing risk of section 97(I) harm on a balance of probabilities because the lawsuit was withdrawn in XXXX 2019 and the Appellant did not describe any recent contact with her aunt. [19] The Appellant argues that the RPD erred in finding that there was no evidence of a direct threat against her citing the evidence in her Mother's affidavit and the Sarpanch letter that the aunt and her husband are threatening the Appellant's mother that police officials will implicate the Appellant and her brother in false cases. [20] I agree with the RPD that this is not a direct threat and that the Appellant's testimony clearly stated that she had never been directly threatened by her aunt. [21] I would add the following observations from the evidence given by the Appellant: * The property litigation started in 2013 before the Appellant left India months later on XXXX XXXX XXXX 2014 without being threatened by her aunt; * The Appellant's brother was living in India until XXXX 201913 allegedly under the threat from his aunt since the property litigation started in 2013 but without being implicated in any false cases during those six years; * According to her affidavit14 and the letter from the Sarpanch,15 the Appellant's mother lives in the village of XXXX where, according to the testimony of the Appellant,16 the disputed property is located one or two kilometres away; * According to the testimony of the Appellant, her mother no longer lives in the village of XXXX and lives with her brother around XXXX XXXX XXXX kilometres away;17 and * No evidence was presented that the Appellant's mother has been harmed by her aunt. [22] Furthermore, the Appellant testified that if she and her mother are not doing anything with the property, they are both safe from her aunt.18 The Federal Court and the Refugee Appeal Division (RAD) have confirmed that "[a] property rights claim is not the basis for a successful refugee application, and it is not unreasonable to expect an Appellant to give up property rights in order to find safety."19 [23] For all these reasons, I agree with the RPD that the Appellant did not demonstrate, on a balance of probabilities, that she has received any direct threats from her aunt or that her aunt poses a future risk of cruel or unusual treatment or punishment. It is important that a decision-maker finds that a claimant has a personal risk because if there is no personal risk to the claimant, then there is no need to do any further analysis of the claim; there is simply no risk.20 CONCLUSION [24] 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) "Susan Brown" Susan Brown April 29, 2021 Date 1 Transcript of hearing of January 15, 2020, page 8, lines 28-43. 2 Ortega Arenas v.Canada (Citizen and Immigration) (2013 FC 344) at para. 9. 3 Transcript of hearing of January 15, 2020, page 26, lines 11-31. 4 Ibid., page 26, lines 33-36. 5 Ibid., page 28, lines 21-24. 6 Ibid., page 28, lines 26-28. 7 Ibid., page 28, lines 30-32. 8 Ibid., page 28, lines 34-40. 9 RPD-1, RPD Record, page 77, Exhibit 4. 10 Ibid., page 78, Exhibit 4. 11 Ibid., page 79, Exhibit 4. 12 Ibid., page 7, RPD Reasons, para. 18. 13 Ibid., page 44, Exhibit 1. 14 Ibid., page 78, Exhibit 4. 15 Ibid., page 79, Exhibit 4. 16 Transcript of hearing of January 15, 2020, page 32, lines 25-47. 17 Ibid., page 21, lines 30-33, page 22, lines 6-12. 18 Ibid., page 29, lines 16-24. 19 X (Re), 2017 CanLII 84620 (CA IRB) at para. 59, Malik v. Canada (Citizenship and Immigration), 2019 FC 955 (CanLII), paras. 28-30. 20 Corado Guerrero v. Canada (Citizen and Immigration) (2011 FC 1210) at para. 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-01428 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français