TC1-00162

RAD File / Dossier de la SAR : TC1-00162 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 15, 2021 Date de la décision Panel L. Krajcovic Tribunal Counsel for the person who is the subject of the appeal Faiq Watan Yar 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 XXXX (Appellant) is a citizen of Pakistan. He appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. DECISION [2] 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 [3] The Appellant's allegations are as follows. The Appellant alleges that he fears persecution at the hands of a man, XXXX,1 due to the Appellant's refusal to sell him land, which resulted in a confrontation, following which XXXX filed a First Information Report (FIR) accusing him of blasphemy related to his Shia faith. As a result, the Appellant fears persecution from XXXX in addition to the Pakistani state. [4] The RPD heard the Appellant's refugee claim on November 18, 2020. On December 18, 2020, the RPD rejected the claim on the basis of credibility. The Appellant submits that the RPD erred in its credibility assessment by relying on assumptions and speculation rather than evidence and ignoring the totality of the evidence. The determinative issue on appeal is credibility. NO NEW EVIDENCE, NO ORAL HEARING [5] The Appellant does not request to submit new evidence on appeal, nor does he request an oral hearing. As there is no new evidence admitted on appeal, there can be no oral hearing pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [6] The RAD applies a standard of correctness for questions of fact, mixed fact and law, and law. I may defer to the RPD in assessing findings involving the credibility of oral testimony if I find that it had a meaningful advantage in the circumstances.2 In this case, I find that the RPD did not have a meaningful advantage. ANALYSIS The RPD's reasons are not based on assumptions or speculation nor do they rely on minor or peripheral inconsistencies [7] The Appellant submits that the RPD based its refusal on assumptions. The Appellant refers to the RPD's reasons stating that the Appellant did not establish that the FIR was issued against him or that he has a forward-facing threat. The Appellant submits that this statement ignores the fact that there is a copy of the FIR in evidence, that the Appellant refers to the FIR in his Basis of Claim (BOC) and testimony, and that the affidavits of family and friends mention the FIR. The Appellant refers to Federal Court jurisprudence stating that decisions in which findings of fact are made without regard to the evidence or that ignore evidence and are material to a credibility finding will generally be overturned. [8] The Appellant submits that the RPD raised issues that are not material to the claim. The Appellant refers to the RPD mentioning that the Appellant's friend's affidavit does not refer to his clothes being torn off. The Appellant refers to Federal Court jurisprudence for the proposition that adverse credibility findings must be based on real contradictions, be significant, and material to the claim. The Appellant refers to Federal Court jurisprudence for the proposition that minor or peripheral inconsistencies in a claimant's evidence should not lead to a finding of general lack of credibility where the documentary evidence supports the plausibility of a claimant's story. [9] I reject the Appellant's submission that the RPD's determination that he did not establish that the FIR was issued against him is based on assumptions or ignores the fact that there is a copy of the FIR in evidence and that it is referred to in other evidence, including the Appellant's BOC form and testimony and the affidavits. Contrary to the Appellant's submissions, the RPD acknowledged that there was a copy of the FIR on file and that it is referred to in other evidence, however noted that there were a number of issues regarding the FIR. [10] The RPD noted that the Appellant was unsure as to how and when his wife obtained the FIR. The RPD considered the Appellant's explanation for not knowing this information, namely that he was unsure how and when she obtained it and found his explanation unreasonable. The RPD noted that it is reasonable to expect that, if the FIR was given to the Appellant's wife on the date of the police visit on XXXX XXXX, 2019, she would have mentioned it to him when she spoke to him following the visit. The RPD found that it was reasonable to expect the Appellant to know how and when the FIR was obtained and drew a negative inference. The RPD noted that the FIR is central to the core of the Appellant's claim. [11] The RPD also found that the Appellant omitted subsequent police visits from his BOC narrative. The RPD noted that the Appellant testified that his wife and daughters remain in their home in Karachi and have not had any issues since January 2019 then later testified that the police have visited their home since XXXX XXXX, 2019 but that he did not know when. The RPD put the omission of these visits from his BOC narrative to the Appellant, to which he responded that he was not thinking logically. The RPD found the Appellant's explanation unreasonable as he alleges that there is an active FIR against him for which he is wanted by the police and noted that any subsequent visits by police searching for him are central to the core of the Appellant's claim. The RPD found it reasonable to expect the continued pursuit of police to be included in the BOC narrative if it occurred as alleged. The RPD found that the Appellant had not established, on a balance of probabilities, that the police continue to look for him in Karachi. [12] The RPD also noted that the Appellant testified that XXXX never contacted him after January 9, 2019 and that he was unaware of any visits thereafter. He testified that he never looked into the status of the FIR because he was not there and did not want to contact them. The RPD considered the objective documentary evidence which states that once an FIR is registered, police are bound to investigate unless they provide written reasons for not doing so and that cancelling an FIR is extremely difficult. Considering this, that the Appellant had not established an ongoing pursuit by police, that fraudulent documents, including FIRs, are readily available in Pakistan, the RPD assigned the FIR no weight and found, on a balance of probabilities, that he did not establish that an FIR had been issued against him, that he is wanted by police or that XXXX continues to look for him. The RPD found that the Appellant failed to establish a forward-facing risk as a result of the blasphemy allegations. [13] After reviewing the RPD's reasons, I find that it properly found that the Appellant did not establish, on a balance of probabilities, that an FIR had been registered against him or that there is a forward-facing risk. The RPD's reasons are based on the evidence in the record, namely the Appellant's lack of knowledge regarding the circumstances surrounding his wife receiving the FIR, the omission of subsequent police visits from his BOC narrative, the lack of further contact from XXXX and the objective documentary evidence regarding FIRs. I agree with the RPD's findings that the Appellant failed to provide reasonable explanations for the discrepancies in the evidence. Aside from the RPD's reference to the Appellant's friend's affidavit not referring to his clothes being torn off, as discussed further below, I agree with the RPD that the discrepancies are significant and central to the core of the Appellant's claim. [14] As pointed out by Appellant, the Federal Court has stated that it will not interfere with decisions where evidence, taken as a whole, supports its negative credibility assessment and where reasonable inferences are drawn from the evidence. I find that the RPD's determination that the Appellant did not establish, on a balance of probabilities, that the FIR was issued against him or that there is a forward-facing risk is correct and based on the evidence in the record. The RPD did not ignore evidence [15] The Appellant submits that the RPD ignored facts which add to the Appellant's overall credibility. The Appellant refers to Federal Court jurisprudence for the proposition that, when assessing credibility, all evidence, oral and documentary, must be considered, rather than just selected parts. [16] While I agree that in assessing credibility, the decision maker cannot be selective in its consideration of the evidence, I reject the Appellant's submission that the RPD ignored facts which add to the Appellant's overall credibility. Aside from the Appellant's assertion that the RPD ignored facts which add to the Appellant's overall credibility, the Appellant does not specify the facts that were ignored. I find that, contrary to rule 3(3)(g) of the RAD Rules, the Appellant has not provided full and detailed submissions regarding this assertion. I have reviewed the RPD's reasons as part of my independent assessment and fail to see facts that were ignored by the RPD. [17] Similarly, aside from setting out the proposition that all evidence must be considered in assessing one's credibility, rather than just selected parts, the Appellant does not specify how the RPD erred. I find that, contrary to rule 3(3)(g) of the RAD Rules, the Appellant has not provided full and detailed submissions regarding this assertion. [18] I have reviewed the RPD's reasons as part of my independent assessment and find that the RPD properly considered all the evidence. As outlined above, the RPD considered the Appellant's BOC narrative and testimony. The RPD's reasons also include detailed assessments of the affidavits from XXXX XXXX XXXX and the Appellant's wife. The RPD notes that there are inconsistencies contained in the Appellant's testimony and his supporting documents, to which the RPD provided an opportunity to respond. The RPD properly considered the Appellant's explanations and explained why it found his explanations unreasonable. [19] With respect to XXXX affidavit, the RPD found that, as a result of its failure to refer to the Appellant hiding at XXXX home for a month, the Appellant had not established, on a balance of probabilities, that he was in hiding. The RPD also notes that, contrary to the Appellant's account of his clothing being torn off in the incident, XXXX affidavit does not refer to the Appellant's clothing being torn off and only mentions that he was injured. [20] I agree with the Appellant's submissions that the RPD erred in relying on the affiant's omission of the Appellant's clothes having been torn off to undermine the weight that it assigned to the affidavit. I agree that this omission is not of sufficient significance to negatively impact the weight assigned to the affidavit. However, I find that the RPD was correct in assigning the affidavit little weight based on the affiant's failure to refer to the Appellant hiding at his home for over a month. I agree with the RPD that this relates to a core aspect of the claim, namely that the Appellant was in hiding after the September 18, 2016 incident. [21] The RPD assigned XXXX affidavit little weight based on an inconsistency regarding the Appellant's injuries contained in the affidavit and the Appellant's account of his injuries. The RPD properly considered the Appellant's explanation, which it found to be unreasonable, and noted that it relates to a core aspect of his claim, namely the violence the Appellant experienced at the hands of one of his agents of persecution. [22] The RPD assigned the Appellant's wife's affidavit little weight based on discrepancies in the affidavit compared to the Appellant's testimony regarding when the Appellant stayed at XXXXs and the affiant's failure to mention that the wife received a copy of the FIR as alleged by the Appellant. The RPD properly considered the Appellant's explanation, which it found to be unreasonable, and noted that the Appellant's time in hiding and the issuance of the FIR are central to the heart of the claim, namely whether the Appellant is wanted for blasphemy and whether he remained in hiding. The RPD found that, considering this affidavit and the one from XXXX omit the Appellant being in hiding, the Appellant did not establish, on a balance of probabilities, that he remained in hiding for a month before leaving Pakistan. [23] The RPD also considered the remaining documentation provided in support of the claim, including the Appellant's birth certificate, marriage certificate, and his family registration certificate, letters of support from his Shia temples in Pakistan, Canada and the US, photographs of him participating in various Shia events, a sale agreement for a plot of land and a Pakistan Federal Board of Revenue notice for XXXX XXXX. The RPD noted that these documents do not include any information regarding the allegations of this claim or any mistreatment the Appellant endured in Pakistan, so assigned them no weight in establishing the core aspects of the claim. [24] After reviewing the RPD's reasons, I find that it properly considered the totality of the evidence. Uncontested credibility findings [25] The RPD made credibility findings that are not contested by the Appellant. These findings relate to inconsistencies in the Appellant's BOC narrative and testimony regarding when XXXX first approached the Appellant regarding purchasing the property and the number of times that XXXX visited the Appellant. As a result of these discrepancies, the RPD found that the alleged incidents with XXXX and his friends did not occur as alleged. I also note that the RPD considered whether the mistreatment the Appellant suffered as a Shia Muslim would rise to a serious possibility of persecution and found that it did not. [26] The Appellant does not contest these findings on appeal. After my independent assessment, I find that the RPD did not err in these findings. They are correct and based on the evidence in the record. CONCLUSION [27] 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 pursuant to paragraph 111(1)(a) of the IRPA. L. Krajcovic L. Krajcovic July 15, 2021 Date 1 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157, at paras. 70, 103. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-00162 RAD.25.02 (May 19, 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 (May 19, 2021) Disponible en français