TB9-03239

RAD File / Dossier de la SAR : TB9-03239 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 Montreal, QC Appel instruit / entendu à Date of decision August 26, 2020 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Namunakulan Ponnambalam 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] I dismiss this appeal for the reasons that follow. [2] XXXX XXXX XXXX XXXX is a citizen of India. Mr. XXXX fears that, if he returns to India, he will be persecuted by thugs who work for the powerful owner of a XXXX company that was engaged on a project next to a project he used to manage. He alleges that the son of the XXXX company owner has political connections and connections to the police and that the son and his thugs will come after him due to a land dispute relating to the two XXXX projects. The owner of the other construction company charged Mr. XXXX and three of his co-workers with trespassing and abusing the other company's workers. However, Mr. XXXX and his three co-workers were found not guilty and acquitted of the charges against them in XXXX 2015. Mr. XXXX alleges that, following this judgment, the son of the XXXX company owner continues to come after him and threaten him. He also alleges that the son found out that he is bisexual and he fears that the son may use this information in order to get the authorities to persecute Mr. XXXX. Mr. XXXX left India for the United States where he stayed from XXXX 2016 to XXXX 2017, at which time he returned to his home in India. He alleges that the thugs he fears continued to threaten him and this led to his leaving India for Canada in XXXX 2017. [3] The RPD did not find Mr. XXXX allegations credible because he provided convoluted and non-responsive testimony on several points. The RPD found that Mr. XXXX failed to credibly establish that he is bisexual and that his alleged persecutors are as powerful or still interested in him as he alleges. The RPD also found that Mr. XXXX credibility was undermined by his failure to claim asylum in the United States in 2016, his return to his home in India in 2017, and his delay in claiming asylum in Canada. Mr. XXXX challenges the RPD's credibility findings. He also argues that the RPD member was biased against him due to her Indo-Canadian background. DECISION [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The RPD was correct to find that Mr. XXXX is neither a Convention refugee nor a person in need of protection. I do not agree with any of the arguments that Mr. XXXX and his representative make on appeal for why they believe that the RPD erred in this case. In my view, the RPD was correct not to find credible Mr. XXXX account of the events that led him to leave India and his account of the risk he would face if he returns. PROPOSED NEW EVIDENCE The evidence presented by Mr. XXXX is rejected [5] According to the law,2 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 the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [6] 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.3 [7] Mr. XXXX has submitted as new evidence letters from two of his friends that were signed after the RPD decision in this case. The letters confirm that the authors of the letters had a sexual relationship with Mr. XXXX while both he and they were married. Mr. XXXX also submitted an undated letter of welcome from the XXXX XXXX XXXX. These documents are not admissible as new evidence on appeal. They are clearly aimed at responding to issues raised by the RPD in its decision. It is well-established that claimants must put their best case forward before the RPD. It is not open to them to seek to introduce documents as new evidence on appeal that they could have, but failed to, present to the RPD before it decided their claim. I do not agree with Mr. XXXX that the letters are admissible because the authors were reluctant to provide them earlier. As for the letter from the XXXX XXXX XXXX, Mr. XXXX has provided no reasons to explain why he failed to provide the letter to the RPD. For these reasons, the letters are not admissible as new evidence. I note that, even if I had admitted the letters, they would not make up for the very significant credibility concerns that the RPD correctly noted in its decision. ANALYSIS OF MERITS Mr. XXXX alleged bisexuality not established [8] Mr. XXXX argues that the RPD made a number of errors as part of its determination that he failed to establish his bisexuality on a balance of probabilities (that is, that he is more likely than not bisexual). For the reasons below, I do not agree with Mr. XXXX arguments. Inconsistency in Mr. XXXX evidence about ongoing contact with same-sex partners [9] I do not agree with Mr. XXXX that the RPD erred in drawing a negative inference from his failure to file supporting letters, WhatsApp messages, phone call records and photos of same-sex partners in the circumstances of this case. [10] As noted by the RPD, Mr. XXXX alleged that he had sexual relations with two men while in India (XXXX and XXXX). He alleged that he had had sexual relations with XXXX since his adolescence. He was 39 years old at the time of the RPD hearing. He claimed to have ongoing contact with XXXX on WhatsApp. However, when the RPD examined the WhatsApp application on his mobile phone, there was little evidence in it of contact with XXXX. There was a message from XXXX 2018, one month before the RPD hearing, in which Mr. XXXX asked XXXX for a supporting letter saying that they had known each other for a long time. Nothing in the message suggested that Mr. XXXX and XXXX were in a sexual relationship. The message also revealed that Mr. XXXX did not know that XXXX had returned to India in XXXX 2018 from his job in the XXXX XXXX. [11] Mr. XXXX testified that he did not message or email XXXX and that they only spoke over WhatsApp. However, there were no phone calls logged in the WhatsApp application on Mr. XXXX phone, as would normally be the case when a call was made using the application. The claimant had no photos of either of his friends except for the photo that they used as profile photos. At the hearing, Mr. XXXX testified that his representative had asked him to get letters from XXXX and XXXX. He said he drafted letters for them to sign but they did not want to sign them. [12] In my view, the RPD was correct to draw a negative credibility inference due to the inconsistency between Mr. XXXX evidence that he messaged XXXX and called XXXX over WhatsApp but his phone showed little in the way of correspondence with XXXX and no call records for calls with XXXX. This raised serious concerns about the credibility of Mr. XXXX evidence about his alleged relations with XXXX and XXXX and also his alleged bisexuality. In this context, the RPD did not err in drawing a negative inference from the lack of supporting letters, WhatsApp messages, photographs or any other documentary evidence showing the ongoing contact that Mr. XXXX alleged and his failure to ask XXXX and XXXX to testify by telephone. [13] I do not agree with Mr. XXXX that the fact that he handed over his mobile phone when the RPD asked for it means that his evidence about the relationships is credible. In my view, an even stronger negative inference would have been appropriate if Mr. XXXX refused to allow the RPD to examine his WhatsApp application after he had testified to being in touch with XXXX and XXXX through WhatsApp. The fact that he agreed to hand over his phone does not overcome the lack of any evidence of the contact he claimed to have with the two individuals with whom he allegedly had same-sex relations. Knowledge Mr. XXXX bisexuality by persecutors [14] I do not agree with Mr. XXXX that the RPD erred in finding not credible his testimony about how his persecutors came to know that he is bisexual. [15] The RPD found that Mr. XXXX gave inconsistent testimony when he said that he kept his same-sex relations secret but then testified that his persecutors found out about his bisexuality from an old friend whom he had told about his bisexuality at a party and who in turn casually mentioned it to Mr. XXXX persecutors when they allegedly went around looking for him. I do not accept the argument made by Mr. XXXX counsel that, when Mr. XXXX testified that he kept his sexuality "secret", he meant that it is not known to many, not that nobody knows. I agree with the RPD that there was an inconsistency between Mr. XXXX evidence that he was very careful to only disclose his sexuality with close trusted friends and his evidence about his discussion of his bisexuality at a party with a friend who would later casually mention it to strangers who were going around asking about Mr. XXXX. Mr. XXXX alleged participation in the LGBTQ community in Canada [16] I do not agree with Mr. XXXX representative that the RPD erred in finding that he had not established the connections to the Canadian Lesbian Gay Bisexual Transgender and Queer (LGBTQ) community that he claimed to have. Given all of the RPD's valid credibility concerns in this case, it did not err in drawing a negative inference from Mr. XXXX failure to call as witnesses the two friends through which he claimed to have connected to LGBTQ events in Canada. While he claimed that one of the two was on vacation, he failed to provide a satisfactory explanation for not calling the other as a witness, or asking the one on vacation to testify by phone, or to submit letters or affidavits from them. Although corroborating evidence is generally not required, an absence of corroborating evidence is a valid consideration when there are good reasons to doubt a claimant's credibility and where corroborative evidence would have been reasonably available but the claimant made no effort to seek it.4 That is the case here. Given the RPD's valid credibility concerns and the availability of corroborative evidence from individuals in Canada, I do not find that it was an error for the RPD to draw a negative inference from Mr. XXXX failure to call as witnesses his two friends in Canada through whom he claimed to hear about and attend LGBTQ events. [17] I also do not agree with Mr. XXXX representative that the RPD erred in drawing a negative inference from Mr. XXXX vague and inconsistent testimony about a parade and an event he claimed to have attended. Mr. XXXX representative argues that Mr. XXXX only attended one event and his testimony was vague because of his limited knowledge. The issue was not with Mr. XXXX lack of knowledge of the LGBTQ community in Canada. It is possible that a claimant who is gay or bisexual may not seek out connections to the LGBTQ community in Canada. The problem in this case is that Mr. XXXX testified that he did seek to connect with the LGBTQ community, that he had attended a parade and also some kind of volunteering meeting at the XXXX XXXX XXXX. However, his testimony about attending the parade was extremely vague. He claimed the parade occurred in XXXX and, despite alleging that he marched in it, he could not describe the route it took. [18] Based on all of the above credibility concerns, the RPD did not err in finding that Mr. XXXX had failed to establish that he is bisexual on a balance of probabilities. Fear and risk of persecution by power people and police not credible [19] Mr. XXXX argues that the RPD made a number of errors as part of its determination that he failed to establish that his alleged persecutors are powerful people who are still interested in him. For all the reasons below, I do not agree with his arguments on this issue. No evidence of bias by RPD member [20] Mr. XXXX argues that the RPD member's finding that he failed to establish that his alleged persecutors were powerful people who were still interested in him arose from bias against him. The RPD member's last name is "Singh" and, because of this, Mr. XXXX representative argues that "she is either Indo-Canadian or has her root in India for certain". Mr. XXXX claims that the member reserved her decision when she had previously indicated that she wanted to render her decision on the day of the hearing. Based on this, he argues that she changed her position to render a decision later only after he criticized the level of democracy in India. [21] I find this claim is based on racist stereotypes and assumptions and lacks any merits whatsoever. Mr. XXXX has not provided any reason why the RPD member's race, ethnicity, or family background would have any relevance to her ability to make an impartial decision in this case. As for the RPD's decision to reserve judgment and render a written decision, the RPD advised Mr. XXXX and his counsel at the outset of the hearing that she would probably not be in a position to render an oral decision at the hearing and that the decision would be sent to Mr. XXXX by mail.5 She verified Mr. XXXX current address in order to ensure that he would receive the decision once it was mailed. While it is true that the RPD member told counsel that she preferred to receive oral submissions rather than written ones, she said nothing about rendering the decision the day of the hearing. [22] Perhaps most importantly, there is no basis whatsoever for the claim from Mr. XXXX representative that his criticism of democracy in India would cause the RPD member to change her opinion of the merits of the case. In fact, RPD had valid and correct reasons to find Mr. XXXX account of events in this case not credible. [23] The test for reasonable apprehension of bias is: what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude? Would they think that it is more likely than not that the adjudicator, whether consciously or unconsciously, would not decide fairly?6 [24] Applying this test, I find that an informed person, viewing the matter realistically and practically-and having thought the matter through- would find it more likely than not that the RPD member in this case decided the matter fairly. Alleged persecutors as powerful individuals not established [25] It is Mr. XXXX who bears the onus of proving the facts of his case, on a balance of probabilities, and also proving that he faces a serious possibility of persecution because of his sexual orientation. Although he claimed that his alleged persecutors were powerful politically connected people who could subvert the judicial and police process, the evidence showed that he and his co-workers were acquitted of the trespassing and other charges that had been made against them. Despite Mr. XXXX assertions that his alleged persecutors had influence over the police who might lay false charges against him, he testified that he was not facing any false charges and he alleged no physical harm from the police even if he said they had threatened him and grabbed him by the collar. [26] In addition, I find that the RPD did not err in drawing a negative inference from the fact that Mr. XXXX had not changed his phone number, that he left his phone on which he was allegedly being threatened with his wife while he was in the United States, and that he and his family did not move away from their home state. All of these actions were incompatible with the fear and risk of persecution, serious harm, and death claimed by Mr. XXXX in this case. [27] I agree with the negative inference drawn by the RPD in relation to Mr. XXXX failure to change his phone number. The RPD was correct to find that it is not a satisfactory explanation for Mr. XXXX to say that he did not want to lose all the contacts he had on his old phone. He could have easily noted down this information and transferred it to his new phone number. Mr. XXXX also gave as an explanation that he had a fancy phone number and his wife did not want to lose it. This too is not a satisfactory explanation for failing to take an action that might have reduced his risk of harm. It was also not a satisfactory explanation to say that his persecutors may be able to trace him through friends and relatives even if he had a new phone number as it was within his power to limit the number of people with whom he shared his new number. [28] I also find that the RPD correctly drew a negative inference from Mr. XXXX leaving his phone with his wife at a time when he claimed that his persecutors were threatening to reveal his bisexuality. This behaviour is incompatible with what one would expect of him given his allegation that his wife did not know about his bisexuality at the time and that his persecutors had been calling him and threatening him at the phone number for the phone he left with his wife. [29] Finally, Mr. XXXX claims to be shocked by the RPD's finding that his failure to move was incompatible with the level of fear and risk he alleged. In the appeal memorandum, Mr. XXXX counsel argues that as an orthodox Hindu, it was not in his sole discretion to sell the family home where his mother also lives. This does not explain why Mr. XXXX and his family would not move if it was necessary to save Mr. XXXX life or to save him from serious harm. When the RPD asked Mr. XXXX why he had not considered moving if his persecutors were continuing to threaten him as he claimed, Mr. XXXX explained that he believed that his persecutors would find him in other states and he said that he needed to return home for occasions like family gatherings and religious festivals. I agree with the RPD that this was not a satisfactory explanation for not moving as Mr. XXXX could not explain why he believed that his persecutors would be able to track him down all over India. When the RPD asked him about this, he gave vague testimony that they would eventually be able to find out where he was through friends, family and community members. He also could not provide a satisfactory explanation as to how his persecutors would even know that he was back in India. Overall, I do not find that the RPD erred in finding Mr. XXXX failure to seriously consider moving his family to be incompatible with the fear and risk he alleged in this case. In addition, even the reasons that Mr. XXXX gave for not moving, such as the need to return for festivals, etc, were incompatible with the serious risk to his life and well-being which he claimed to experience in India. [30] As a final point, having listened to the audio-recording of the hearing, I do not agree with Mr. XXXX claim that the RPD "questioned him like a criminal". The RPD's efforts to press Mr. XXXX in relation to many of his answers to its questions were justified especially due to his vague and speculative answers as well as the legitimate credibility concerns raised by the RPD. No basis on which to accept claim of persecution [31] I do not agree with Mr. XXXX that, even if the RPD was not satisfied with his evidence that he had experienced past persecution, it should still have accepted his claim. Mr. XXXX seeks to rely on Federal Court case law which has found that claimants do not have to establish past persecution but may instead found their claims on the treatment afforded to similarly situated persons in their country of origin.7 That case law does not assist Mr. XXXX in the circumstances of this case. If, as the RPD correctly found, Mr. XXXX account of his sexual orientation and his past persecution at the hands of the thugs and police are not credible, there is no evidence that he is similarly situated to any group of persons in India who face a serious possibility of persecution or a likelihood of the kind serious harm that would make them persons in need of protection. Fear of facing false charges not credible [32] Mr. XXXX did not challenge the RPD's finding that his alleged continuing fear of facing false charges from the police due to his bisexuality was not credible. The RPD found it not credible due to the fact that gay sex is no longer criminalized in India since 2018 and Mr. XXXX could not provide a satisfactory reason for why the police would want to lay false charges against him because of his sexual orientation. Although Mr. XXXX pointed to the treatment of the Hijra or transgender community by police, as noted out by the RPD, Mr. XXXX is not transgender or part of that community. Based on all of the above, the RPD correctly found that, even if Mr. XXXX had credibly established that he was bisexual (which he did not), he failed to establish that he would face false charges from the police due to his sexual orientation, on a balance of probabilities. Failure to claim asylum, return home, and delay in claiming in Canada [33] In his appeal memorandum, Mr. XXXX repeats the argument he made at the hearing that he did not claim refugee status in the United States during his visit in 2016 because he thought that the thugs would forget about him if he went away for a few months. Like the RPD, I do not find this explanation satisfactory on the facts of this case. Mr. XXXX claim that his persecutors might simply forget about him in a few months was inconsistent with his description of them as being powerful, politically connected, and determined to come after him through the police or any other means. I also agree with the RPD that his return to his family home in India was incompatible with the fear and risk he alleged that he faced in his home town. By doing so, he would have been putting both himself and his family at risk. [34] Mr. XXXX does not challenge the RPD's further finding about his failure to return to the United States if he faced further problems given that he had a ten-year multiple entry visa. He also does not challenge the RPD's finding regarding his delay in claiming asylum in Canada. Given that Mr. XXXX has not challenged the RPD's findings on this point, I will limit myself to stating that I agree with the RPD's reasoning on these issues at paras. 16-17 of its decision and find that the RPD was correct in drawing negative credibility inferences based on them. Overall credibility [35] For all the reasons above, I do not agree with the arguments Mr. XXXX has put forward for why he believes that the RPD erred in this case. In my view, all of the findings on which the RPD's credibility decision was based were correct. When considered cumulatively, these credibility concerns were sufficient to rebut the presumption of truthfulness in this case. As such, Mr. XXXX has failed to credibly establish that he would face a serious possibility of persecution or a likelihood of being subjected to any of the types of serious harm that would make him a person in need of protection in India. CONCLUSION [36] For the above reasons, 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) Jo-Anne Pickel Jo-Anne Pickel 26 August, 2020 Date JP/tm 1. Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Subsection 110(4) of the IRPA. 3 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 4 Guven v. Canada (Citizenship and Immigration), 2018 FC 38 at para. 38. 5 Transcript of RPD hearing at p. 3. 6 Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 SCR 369 at p. 386. 7 Salibian v. Canada (Employment and Immigration), [1990] 3 FC 250 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-03239 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