TC2-04363

RAD File / Dossier de la SAR : TC2-04363 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 June 29, 2022 Date de la décision Panel Patricia Broad Tribunal Counsel for the person who is the subject of the appeal N/A 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. She claims that as a woman who experienced abuse, she is a Convention refugee and/or a person in need of protection. Having reviewed the record, I dismiss the appeal. The Refugee Protection Division (RPD) was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [2] The Appellant bases her claim on the following: [3] She was born on XXXX XXXX, 1998, and lived in a town in the Punjab state. In 2016, she became involved with XXXX XXXX (the ex-boyfriend). His father was a policeman in the Punjab. His family is involved in the drug trade. In XXXX, 2017, she and her boyfriend went to talk to her family about marriage. Her father refused to condone it. The boyfriend threatened the family. The Appellant and her father went to the police station to lodge a complaint; the police instead threatened to jail them. [4] In XXXX 2017, the ex-boyfriend tried to take the Appellant away from a marketplace. The Appellant's friend intervened, and her ex-boyfriend attacked her with acid. The Appellant and her father again went to the police. This time they detained her. With the payment of a bribe, she and her father were released. Her boyfriend found this out and threatened to kill the Appellant. [5] The Appellant came to Canada in XXXX 2017. She pursued her studies. In XXXX 2020, she applied for protection. The RPD held a hearing on January 5, 2022. The Appellant had the services of an interpreter and was represented by counsel. In a decision dated February 7, 2022, it found that the Appellant was not credible. [6] The Appellant has appealed to the Refugee Appeal Division (RAD). She is self-represented. On June,15, 2022, the RAD provided a notice to the parties indicating that it might consider state protection and an Internal Flight Alternative in its decisions. The parties were given 7 days to respond. After the seven days had passed, the Appellant contacted the tribunal to state that she would need another week. However, she was informed that it would not be necessary to provide submissions as these issues are not addressed in this decision. NEW EVIDENCE [7] The Appellant has provided two pieces of new evidence: a letter from the Appellant's father and an affidavit from the Appellant's father dated XXXX XXXX, 2022. [8] According to the law,1 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) that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. (iv) 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.2 The Appellant has provided a letter from her father and an affidavit from her father. The lack of evidence from the Appellant's father composed part of the reasons for the denial. Further, the RPD had questioned her about not having evidence from her father on record. She responded that she thought that evidence from her father would have less probative value as there could be a perception of bias. I find that it is more likely than not that she could not have anticipated that this would be an issue and that it would not be reasonable to have been expected her in the circumstances to bring it to the RPD before the decision. Arguably, the content is not new. But in this appeal, given the RPD's interest in this matter, I have found that the fact that the father has provided the information is, in that sense, new information. It is also relevant and credible for the purposes of admissibility. I have also considered the Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution3 which state that it can be difficult for women to acquire evidence. It is accepted onto the record. ANALYSIS [9] My role is to look at all of the evidence and decide if the RPD made the correct decision.4 In this case, I do not find that the RPD had a meaningful advantage in assessing the credibility of oral evidence, and I do not see any reason to depart from this standard in this case. [10] In this analysis, I have considered the Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution. [11] I have considered the record as part of my credibility analysis and in making independent credibility findings based upon the record before me. As stated by the Federal Court, in so doing I do not find that in this case I have to put them to the Appellant to provide an opportunity to provide submissions as the evidence is already on record.5 I note that the Appellant is fully aware of the contents of this record. This is not extrinsic evidence. Further, as the RPD does not have a duty to confront applicants with concerns regarding their own documents6, the same reasoning should apply to the RAD. There is insufficient credible evidence that the Appellant is a Convention refugee [12] Having performed an independent review of the evidence, I find that there is not sufficient credible evidence to find that the Appellant is a Convention refugee. [13] I note that the Appellant came to Canada XXXX, 2017. She did not apply for protection until XXXX 2020, a month after her student visa expired. She applied after a friend told her to apply. There was a delay in her applying for protection. However, I have not taken a negative inference on her credibility because of this delay. The Appellant had status in Canada and anticipated that it would continue for longer. Under these unique circumstances, it is not reasonable for her to have not applied for protection earlier. [14] However, I find that the cumulative effect of the issues with credibility are such that the Appellant's claim is not credible. There are aspects of the Appellant's break up that is not in her Basic of Claim (BOC). In this appeal, there are several omissions in the BOC. An omission in the BOC has been found to not be a sufficient basis to find that an Appellant is not credible. However, in this appeal, there are several omissions. Further, they relate to matters that are at the heart of the Appellant's claim. They relate to the breakup with the ex-boyfriend. In addition, the evidence is not consistent on central matters. The evidence regarding the threat of harm is not consistent [15] The Appellant's claim is based on the threat of violence should she return to India. In her BOC, she refers to physical violence and death threats. However, the RPD asked on three occasions about what would happen if she were to return to India, and the Appellant stated that she would be forced to marry the ex-boyfriend. She did not mention the threat of violence. When asked, the Appellant stated that he loves her and that she did not say violence earlier because it might have skipped out of her mind and it is something she forgot to tell the RPD earlier.7 In this appeal, I do not find that the explanation is reasonable. The threat of violence is the reason why the Appellant applied for protection. It is the central point of her claim and its omission in the testimony is, in the appeal, significant and material. It goes to the heart of her claim. It addresses the question of whether the agent of persecution presents a serious possibility of serious harm to the Appellant. I do not find that this is akin to a period of reconciliation. I have considered whether the Appellant cannot see a threat that actually exists. However, I find that this does not account for the inconsistency in the BOC and the testimony on this central and material point. [16] The Appellant has argued that she is suffering from the effects of the abuse which has interfered with her ability to express herself. Certainly, people who have been subjected to abuse can have significant challenges discussing it. The Gender Guidelines state that "women refugee claimants face special problems in demonstrating that their claims are credibly and trustworthy"; perhaps because of cross-cultural understandings. I have also considered the objective evidence in the National Documentation Package (NDP) that notes the existence of interpersonal violence against women in India.8 Further, in R v Lavallee, the Supreme Court of Canada noted that women who have been subjected to domestic abuse are reluctant to disclose information about it.9 However, this is not the only inconsistency in the evidence. It alone would not be sufficient to find that the Appellant's claim is not credible. But it is an additional flaw in the evidence. [17] There is insufficient evidence of any psychological or other barrier that would account for this inconsistency. While the Appellant has provided a medical noted that she was seeking treatment for XXXX for two months in 2017, I note that this treatment was years before the hearing in 2022. With the passage of time, the probative value of this documentation is lessened. Further, this medical report does not identify cognitive issues that could interfere with testimony, nor does it address any difficulties in testifying. While the Appellant states in the Appeal Record that she has been barely able to keep her sanity since the abuse, I also note that she has not provided evidence of any treatment since 2017. 10 While evidence of treatment is not necessary to take into account the effects of interpersonal violence on a person, it would corroborate her claim that she is not able to function normally. [18] Further, I have considered the Appellant's argument that she was nervous and not able to follow what was said at the RPD hearing. I recognize the inherent stress involved with testifying. She stated that she was not able to give detailed explanations of each question. However, the RPD asked appropriate questions. She was represented by counsel. There is not sufficient evidence of a psychological or any other type of barrier that would account for the brief and vague testimony. In this appeal, I do not find that the inherent stress of testifying would account for the difference in content. The evidence regarding the Appellant's father and the ex-boyfriend is not consistent [19] There are a significant amount of discrepancies regarding the evidence of the ex-boyfriend's relationship with the Appellant's father. At the hearing, the Appellant testified that her ex-boyfriend had threatened her father's life. This information was not included in the BOC or the BOC amendment. When asked about this, the Appellant testified that the BOC itself states that there would be more details later.11 However, this information is not also found in the father's letter or his affidavit. I find that a death threat is a significant omission. While an appellant can elaborate on information in the BOC, the Appellant's father played a significant role in the Appellant's claim. The level of persecution against him is an important element of her narrative. He was present when she was detained. I find that, in this appeal, the omission is material. While it, on its own, would not be sufficient to find that there is not sufficient credible evidence, there are other issues as well. [20] The Appellant testified that her ex-boyfriend was physically violent about two or three times against her father; that he pushed her father, held him by his collar, and slapped the Appellant's father.12 This information was omitted in the BOC. Given the significance of the events, and that the ex-boyfriend's threat of violence is a central issue, I find that this omission is a material and important omission in the BOC. When asked why it was not included in the BOC, the Appellant stated that she had testified to it.13 This answer does not address the fact that the information was not included in the BOC and I find that it is not sufficient or reasonable. Further, the father's affidavit and letter do not corroborate the evidence on these central issues. It is reasonable to expect that several physical attacks on the father would be included in his documentary evidence. It is information that he would have firsthand knowledge of, as he himself experienced it. It is not a question of a religious or a political principle. There is insufficient evidence that there is a cultural or psychological reason that this evidence is missing from the father's documentary evidence. This is not to say that the omission weighs against the likelihood that these events occurred; however, it does not corroborate the evidence that it did occur in light of the significant and material omission in the BOC. [21] I have considered the father's letter and the affidavit; I find that they do not, overall address the issues with the contradictory evidence. The letter is signed but it is not dated. It speaks to the ex-boyfriend's relation with the drug mafia and that the ex-boyfriend started to threaten the family when the father refused to let his daughter marry him. It does not provide information that he was personally threatened. I find that the letter is vague. Further, the father's affidavit is both brief and vague. It consists of 5 sentences. The affidavit does not indicate that there were threats to the Appellant or the family. It states that the "home environment has become very bad" and that his wife has become very mentally disturbed. It also states that the Appellant was in danger of losing her life. However, it does not indicate that there was a breakup, that there were threats, that there was an incident where acid was thrown at a friend, or why the Appellant's life is at risk in India. The evidence about the ex-boyfriend's brother is not consistent [22] At the hearing, the Appellant's testimony was different than her BOC. Her BOC contained statements that the Appellant did not testify about. In her BOC, the Appellant wrote that her ex-boyfriend's brother is a part of a gang in Punjab, or a "gangster". At the hearing, the Appellant did not mention that the ex-boyfriend had threatened her about his brother until later in the hearing. The RPD questioned the Appellant about this omission and the Appellant stated that she did not take this threat seriously.14 I find that the Appellant's explanation for the omissions is not reasonable. It is not plausible that she would not take a threat from a relative of a gangster seriously. Plausibility findings should be made in the clearest of cases and while taking with sensitivity to account cultural differences.15 However, I do not find that there is a reason why the Appellant would not take this threat about a gangster seriously. This is particularly the case after the ex-boyfriend had thrown acid at her friend. The evidence regarding the detention was vague [23] The evidence regarding the detention was also vague. At the hearing, the Appellant testified that after her ex-boyfriend threw acid at his friend, she and her father went to the police. The police took her thumb print and that of her father, they held her for two to three hours. After a bribe she was released.16 This is a cursory description of a significant event. The explanation in the BOC narrative is also very brief. I accept that an Appellant's testimony can elaborate on a brief BOC; however, in this appeal there was not a testimony that provided further details. There is not sufficient evidence to assess to make findings of fact that show that it is more likely than not that this occurred. Further, there is not any reference to this significant even in the father's letter or affidavit. It is reasonable to expect that it would be included, given the traumatic nature of the even and the Appellant's evidence that his thumb impression and signature on a blank paper was taken at the police station.17 The evidence regarding the acid attack is vague [24] I find that the evidence regarding the acid attack was vague. The evidence regarding the BOC attack was included in a BOC amendment. There is not other documentary evidence on record about it. Even though the Appellant testified about the attack, her account was brief and vague. There is not evidence about her friend's reaction when the acid was thrown on her and some of it hit her face, how she got to the hospital other than the Appellant made a call and the ambulance came, what the Appellant did afterwards other than that she and her father went to the police station, whether the Appellant yelled at her ex-boyfriend, what her ex-boyfriend did other than leave, whether people tried to catch him.18 [25] I also find that the testimony is not consistent with the BOC. The Appellant testified that a little bit of it fell on her face;19 in the BOC she stated that her ex-boyfriend poured acid on her face. There is a significant difference in how it fell on her face and the likely amount of damage her friend experienced. [26] There is not evidence from the friend who was attacked with acid. The Appellant testified that they were not on good terms. I have not taken a negative credibility inference from the lack of evidence from the friend. However, there is not corroborative evidence on record to address the flaws in the evidence. [27] The evidence regarding the acid attack is flawed. There is not sufficient evidence to make a finding of fact that it is more likely than not that this event occurred. The Appellant was represented by counsel and has had a full and fair opportunity to present sufficient evidence to support her appeal. The other documentary evidence is not sufficient to address the flaws in the evidence [28] The Appellant has provided a letter from her uncle which I find does not address the flaws in the evidence. It states that the ex-boyfriend started to threaten the family, but it does not say how he knows that information.20 At the hearing, the Appellant stated that he was there to witness incidents with her ex-boyfriend.21 However, I find that this explanation is too brief to provide a foundation to conclude that it is more likely than not that the events occurred. It is not clear which events he witnessed, how many of them, and the nature of the events. [29] There is another letter from another party. It is not clear who it is from. It is undated. It states that the Appellant left to save her life from her ex-boyfriend who is the son of a Punjab police. However, without knowing who the letter is from, it is not possible to assess their level of knowledge of the facts contained in the letter. I find that this letter has limited probative value. Summary [30] I have considered that the Appellant was self-represented upon appeal. I have given consideration to the credibility issues with this in mind. However, I find that there are too many contradictions and omissions on central and material elements to the claim. The evidence regarding other significant events is vague. I have weighed the cumulative effects of the evidence that is credible and that is not credible. I find that the cumulative effect of the issues with the evidence undermine the credibility of the Appellant's claim.22 [31] The RPD conducted a fair hearing. The questions were appropriate, and the Appellant was provided with a full opportunity to present her evidence. She was represented by counsel and has the burden of proof to demonstrate that she is a Convention refugee and/or a person in need of protection. In this appeal, I find that she did not provide sufficient credible evidence to do so. CONCLUSION [32] 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) Patricia Broad Patricia Broad June 29, 2022 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, subsection 110(4). 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 3 Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution - Immigration and Refugee Board of Canada (irb-cisr.gc.ca) [Hereinafter Gender Guidelines] 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 Akram v. Canada (Citizenship and Immigration), 2018 FC 785. 6 Akanniolu v. Canada (Citizenship and Immigration), 2019 FC 311. 7 RAD-1, Transcripts of the RPD Hearing, January 5, 2022, p. 44 8 See for Example the NDP India June 2020 item 5.2 9 [1990] SCR 852 10 Exhibit P2, Appellant Record, p. 2 11 RAD-1, Transcripts of the RPD Hearing, January 5, 2022, p. 27 12 RAD-1, Transcripts of the RPD Hearing, January 5, 2022, p. 44-45 13 RAD-1, Transcripts of the RPD Hearing, January 5, 2022, p. 45 14 RAD-1, Transcript of the RPD Hearing, January 5, 2022, 29 15 Lawani v MCI 2018 FC 924 16 RAD-1, Transcripts of the RPD Hearing, January 5, 2022, p. 22 17 Exhibit RPD-1, RPD Record, BOC p. 22 18 RAD-1, Transcripts of the RPD Hearing, January 5, 2022, p. 22 19 RAD-1, Transcripts of the RPD Hearing, January 5, 2022, p. 22 20 Exhibit RPD-1, RPD Record, p. 120 21 RAD-1, Transcripts of the RPD Hearing, January 5, 2022, p. 42 22 MTA v MCI 2019 FC 1508 --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC2-04363 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