TB5-05216

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 File No. / N° de dossier de la SAR : TB5-05216 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 5, 2015 Date de la décision Panel M. Pettinella Tribunal Counsel for the person(s) who is(are)the subject of the appeal Rodney L Woolf Barrister and Solicitor 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 [1] XXXX XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence and has not requested an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to send the matter back to the RPD for a redetermination by a different member. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he fears returning to India with his wife because his wife was a Muslim before she converted to Hinduism and because she is much younger than him. He further alleged that he fears returning to India with his son because his ex-wife and her family members believe that his son will inherit his property instead of them. [4] The Appellant's claim for refugee protection was heard on June 17, 2014, October 7, 2014 and March 24, 2015. By a decision of April 29, 2015, the RPD rejected the claim. The RPD found that the risk the Appellant faces in returning to India does not reach the level of more than a mere possibility of persecution. It concluded, on a balance of probabilities, that the Appellant failed to provide testimony and central documentation that gives him a nexus to a Convention ground or is consistent with an individual whom is at risk of persecution upon return to their home country. [5] The Appellant submits that the RPD erred in law by failing to consider him as a member of a particular social group, namely his family, and the persecution that he would suffer if he is returned to India, if that is indeed found to be his country of nationality which was not properly determined. [6] The joined claims of the Appellant's spouse and son, citizens of Uzbekistan, were heard on the same dates as the Appellant's claim. By the decision of April 29, 2015, the RPD accepted the claims of the Appellant's spouse and son finding that they established they are persons in need of protection. ANALYSIS Role of the RAD [7] What is the role of the RAD in considering an appeal against a decision of the RPD? Although the Appellant makes no arguments with respect to the role of the RAD in his Memorandum of Argument, the RAD notes, in Huruglica, the Court considered the appropriate relationship between the RAD and the RPD.1 It found that the RAD had erred in simply reviewing the RPD's decision on a standard of reasonableness, rather than conducting its own independent assessment of the Appellants' refugee claims. The Court held that the RAD's application of a reasonableness standard curtailed the tribunal's appellate role, contrary to the purpose of the RAD and the provisions of the IRPA. In the Court's view, the RAD should not even engage in a standard of review analysis; rather, it should consider the purpose of the appellate tribunal, the statutory provisions, comparable expertise, and comparative appellate regimes.2 [8] Justice Phelan stated the following in Huruglica: Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision.3 In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error."4 [9] Considering the Court's decision in Huruglica, the RAD will review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, recognizing and respecting the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD will substitute its own determination. The RPD's Findings and Appellant's Argument Risk in India [10] The RPD found that the risk for the Appellant in returning to India does not reach the level of more than a mere possibility. It noted that, during his time in Uzbekistan, the Appellant returned to India on an almost monthly basis to deal with issues for his business. It also noted that his travel to India continued even after threats from his ex-wife and his extended family and he even settled his family in India for approximately one year despite the threats. The RPD noted that the allegations of risk all relate to the Appellant's wife and child and concluded that the Appellant does not have a nexus to a Convention ground and is not at risk of persecution in India. [11] The Appellant submits that it is impossible to be satisfied that the RPD considered the evidence properly before it. He further submits that his fear of persecution is well-founded subjectively and objectively. The Appellant submits that India's human rights record with respect to mixed marriages is poor and this would indicate that he had a genuine need for protection. He argues that he and his wife and son are a close-knit unit and, even though the claims of his wife and son were accepted, if he were to be returned to India they would return with him. He goes on to indicate that they would be perceived as a mixed Hindu and Muslim family and would be subject to persecution. [12] The Appellant submits that the RPD erred by failing to consider the evidence that he may have been deprived of his Indian citizenship. He further submits that the RPD erred in law by failing to consider him as a member of a particular social group, namely his family, and the persecution that he would suffer if he is returned to India, if that is indeed found to be his country of nationality which was not properly determined. [13] The RAD notes that there is no indication in the Appellant's Basis of Claim Form (BoC) narrative that he faces a risk of persecution or harm in India if he were to return alone. He indicated at his hearing that he did not face a risk of persecution or harm in India if he were to return alone. When asked by the RPD if he believed he was at any risk in India if he returned without his family, the Appellant said that the only danger was that he would die without his kid. When asked what danger he would suffer in Mumbai, the appellant indicated that he would not face any danger if he went alone but his family would leave him. When asked if he would face any danger in Delhi, the Appellant said he would not if he was living alone but he was living for his son. [14] The RPD was not wrong in indicating in the reasons for its decision that it was not obliged to consider the risk the Appellant may face in India if he were to return with his wife and son. The Appellant's wife and son were determined to be persons in need of protection and their claims for refugee protection were accepted by the RPD. Even though the Appellant indicates that he would not like to return to India without his wife and son, the Federal Court has been clear in indicating that family unity is not a concept that exists in Canadian refugee law and the family as a social group for making a claim is based on the evidence of persecution of the family as a social group and not on the principle of family unity. The following are excerpts and notes from various Federal Court decisions on the matter: [15] Family unity is not a concept that exists in Canadian refugee law. It was clearly an error of law to rely on the concept of family unity and on paragraphs 181 to 185 of the UNHCR Handbook to support the claims of the respondents under IRPA, ss. 96 and 97.5 [16] The RPD did not err in failing to analyse the issue of the separation of the family unit. Family unity is not a concept recognized by Canadian refugee law. The family as a "social group" basis for seeking Convention refugee status is based on the evidence of persecution of the family as a social group and not on the principle of family unity.6 [17] The Court reiterated that the concept of family unity in refugee matters has been rejected. It also indicated that the documentary evidence on the general situation is not by itself sufficient to establish the well-foundedness of a claim; a real fear of persecution must be demonstrated.7 [18] In Greim, the Court had indicated that the concept of family unity did not appear in the Convention.8 [19] Persecution of one family member does not automatically entitle all other family members to Convention refugee status.9 [20] Considering the evidence in this case and the jurisprudence the RAD finds that the Appellant has not established that he has a nexus to one of the Convention grounds or that he personally has a well-founded fear of persecution in India. Consideration of the evidence [21] As noted above, the Appellant submits that it is impossible to be satisfied that the RPD considered the evidence properly before it. He argues that the RPD's reasons do not show that it considered the documentary evidence regarding the situation in India and its effect on persons in his particular social group as a result of his mixed marriage. [22] The RPD is presumed to have considered all of the evidence before it, and there is no requirement for the panel to refer to each document in the record.10 However, where there is evidence which is contrary to its decision, the RPD must analyze that evidence and provide reasons why it does not consider it relevant or trustworthy, or why it chose to disregard it.11 [23] In this case the Appellant testified that he would not face a risk of persecution or harm in India if he returned alone. It is not for the RPD or the RAD to impose on the Appellant a contrary view of the risk he believes he faces. The Appellant was born and raised in India. He resided in India for most of his 65 years. He is well travelled. He indicated at his hearing that he was familiar with the many places in India, including Delhi and Mumbai. It would be reasonable to assume that the Appellant is cognizant of the risk he faces in India, if any. If the Appellant had articulated a risk he faces in India, it would be reasonable to expect the RPD and the RAD to address it, including the documentary evidence supporting the allegation. However, in the RAD's view, since no personal risk was articulated, there is no obligation to address specific documentary evidence for an unknown or un-stated risk. Indian citizenship [24] The RPD indicates in the reasons for its decision that it accepted the Appellant's identity as a citizen of India. It noted that his Indian citizenship is supported by the documentary evidence on file, namely his Indian passport and Canadian visitor visa. As noted above, the Appellant submits that the RPD erred by failing to consider the evidence that he may have been deprived of his Indian citizenship. [25] The RAD finds it puzzling that the Appellant is alleging that he may have lost his Indian citizenship. He indicates in his Generic Application Form for Canada that he had Indian citizenship.12 He presented his Indian passport issued on XXXX XXXX, 2009 with an expiry date of XXXX XXXX, 2019.13 Citizenship and Immigration Canada (CIC) indicates in its notes that the Appellant is an Indian national who is a long-term businessman in Uzbekistan. Also indicated is that the Appellant presented numerous business documents for interests in Uzbekistan and India and was well-travelled (Asia, Europe, United States of America and Canada).14 The Appellant indicates in his BoC that he is a citizen of India by birth.15 The Appellant indicated at his hearing that he was born in Delhi, India. The RPD indicated at the hearing that his country of reference was India. The Appellant made no indication at his hearing that he may have lost his Indian citizenship. [26] Documentary evidence indicates that any citizen of India who acquires the citizenship of another country shall cease to be a citizen of India.16 The Appellant has provided no credible evidence that he has acquired the citizenship of any country besides India. Section 10 of the Indian Citizenship Act (1955) states the following regarding the deprivation of Indian citizenship: 10. Deprivation of citizenship.- (1) A citizen of India who is such by naturalisation or by virtue only of clause (c) of article 5 of the Constitution or by registration otherwise than under clause (b) (ii) of article 6 of the Constitution or clause (a) of sub-section (1) of section 5 of this Act, shall cease to be a citizen of India, if he is deprived of that citizenship by an order of the Central Government under this section. (2) Subject to the provisions of this section, the Central Government may, by order, deprive any such citizen of Indian citizenship, if it is satisfied that- (a) the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact; or (b) that citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution of India as by law established; or (c) that citizen has, during any war in which India may be engaged unlawfully traded or communicated with an enemy or been engaged in, or associated with, any business that was to his knowledge carried on in such manner as to assist an enemy in that war; or (d) that citizen has, within five years after registration or naturalisation, been sentenced in any country to imprisonment for a term of not less than two years; or (e) that citizen has been ordinarily resident out of India for a continuous period of seven years, and during that period, has neither been at any time a student of any educational institution in a country outside India or in the service of a Government in India or of an international organisation of which India is a member, nor registered annually in the prescribed manner at an Indian consulate his intention to retain his citizenship of India. (3) The Central Government shall not deprive a person of citizenship under this section unless it is satisfied that it is not conducive to the public good that the person should continue to be a citizen of India. (4) Before making an order under this section, the Central Government shall give the person against whom the order is proposed to be made notice in writing informing him of the ground on which it is proposed to be made and, if the order is proposed to be made on any of the grounds specified in sub-section (2) other than clause (e) thereof, of his right, upon making application therefor in the prescribed manner, to have his case referred to a committee of inquiry under this section. (5) If the order is proposed to be made against a person on any of the grounds specified in sub-section (2) other than clause (e) thereof and that person so applies in the prescribed manner, the Central Government shall, and in any other case it may, refer the case to a Committee of Inquiry consisting of a chairman (being a person who has for at least ten years held a judicial office) and two other members appointed by the Central Government in this behalf. (6) The Committee of Inquiry shall, on such reference, hold the inquiry in such manner as may be prescribed and submit its report to the Central Government; and the Central Government shall ordinarily be guided by such report in making an order under this section.17 [27] The Appellant has provided no credible evidence to indicate that he meets the criteria to be deprived of his Indian citizenship. He does not even meet the criteria of 10(2)(e) since he presented no credible evidence that he has been ordinarily resident out of India for a continuous period of seven years and not registered annually in the prescribed manner at an Indian consulate his intention to retain his citizenship of India. The Appellant indicated that he lived in India for most of his life and, after he moved to Uzbekistan, he made approximately 10 trips back to India each year. His current Indian passport was issued through the Embassy of India in Tashkent, Uzbekistan on XXXX XXXX, 2009.18 It would be reasonable to assume that the Appellant registered his intention to retain his citizenship of India in the prescribed manner at the Embassy of India in Tashkent, Uzbekistan before he was issued his passport. The Appellant has provided acceptable documentation to establish his identity as an Indian citizen. He has not established that he lost his Indian citizenship. The RAD finds that the Appellant is a citizen of India. DISPOSITION [28] The Appellant has alleged that the RPD erred by failing to properly determine his country of citizenship, failed to consider him as a member of a particular social group and failed to consider the persecution that he would suffer if he returns to India. However, upon review of the evidence, the RAD has reached the same conclusion as the RPD. The RAD finds that the Appellant is a citizen of India and he does not have a well-founded fear of persecution if he were to return to India. The RAD finds that the Appellant does not face a serious possibility of persecution in India and also finds that his removal to India would not subject him personally to a risk to life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. CONCLUSION [29] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. (signed) "M. Pettinella" M. Pettinella August 5, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Huruglica, para. 45. 3 Huruglica, para 54. 4 Huruglica, para 55. 5 M.C.I. v. Khan, Azmat Ali (F.C., no. IMM-7232-04), Gauthier, March 22, 2005; 2005 FC 398. 6 Gribovskaia, Elena v. M.C.I. (F.C., no. IMM-5848-04), Rouleau, July 11, 2005; 2005 FC 956. 7 Gjergo, Gjergji et al v. M.C.I. (F.C. no. IMM-4592-03), Harrington, March 1, 2004; 2004 FC 303. 8 Dumitrascu, Vitalian et al. v. M.C.I. (F.C.T.D., no. IMM-5626-01), Beaudry, November 26, 2002; 2002 FCT 1224. 9 Lakatos, Pal v. M.C.I. (F.C.T.D., no. IMM-24-00), Dawson, April 27, 2001. 10 Hassan v Canada (Minister of Citizenship and Immigration), [1992] FCJ No 946. 11 Nasufi v. Canada (Citizenship and Immigration) 2011 FC 586; Khan v Canada (Minister of Citizenship and Immigration), 2003 FC 1076; Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425. 12 Exhibit RPD-1, RPD's Record, at p. 75. 13 Exhibit RPD-1, RPD's Record, at pp. 102-125. 14 Exhibit RPD-1, RPD's Record, at p. 197. 15 Exhibit RPD-1, RPD's Record, at p. 40. 16 Exhibit RPD-1, RPD's Record, at pp. 323-352, item 3.4 at p. 13. 17 Exhibit RPD-1, RPD's Record, at pp. 323-352, item 3.4 at pp. 13-14. 18 Exhibit RPD-1, RPD's Record, at p. 102. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05216