JUDGMENT

I. Overview

[1] The Applicant, Rupinderjit Singh, applied for refugee protection in Canada. The Refugee Protection Division (“RPD”) refused his claim, finding that he could safely and reasonably relocate to another part of India. Mr. Singh appealed. The Refugee Appeal Division (“RAD”) also found that Mr. Singh had a viable Internal Flight Alternative (“IFA”). Mr. Singh challenges the RAD’s decision on judicial review.

[2] Mr. Singh raises two issues on judicial review: i) the RAD’s evaluation of his new evidence; and ii) the RAD’s IFA assessment.

[3] I find the determinative issue to be the RAD’s evaluation of the new evidence. I have reviewed the RAD’s analysis and determination on this issue on a reasonableness standard (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 23; Singh v Canada (Minister of Citizenship and Immigration), 2016 FCA 96 at paras 29, 74; Mohamed v Canada (Minister of Citizenship and Immigration), 2020 FC 1145 at para 9).

[4] I find it unreasonable for the RAD to have refused to admit as new evidence the affidavit of Mr. Singh’s sister. As I also find that this new evidence may have impacted the RAD’s IFA analysis, the determinative issue of the claim, I find it unnecessary to evaluate Mr. Singh’s second argument on the RAD’s IFA analysis.

[5] I allow the judicial review.

II. Background to the Claim

[6] Mr. Singh is a citizen of India. Mr. Singh fears his former partner’s family and the police in India. Mr. Singh alleges that his former partner’s family was against their inter-caste relationship. Mr. Singh alleged that his former partner’s father vandalized his parents’ home, beat his father and sent the police to arrest him, Mr. Singh, on the false charge of rape. Mr. Singh claims that the police and “goons” affiliated with his former partner’s father and the Khap Panchayat (village council) regularly harassed his family. Mr. Singh’s parents have now also fled India and made refugee claims in Canada. Mr. Singh’s sister has left the Punjab area, where the family resided.

[7] The RPD heard the claim on August 17, 2022 and rejected it on September 14, 2022.

III. Analysis

[8] New evidence can be filed at the RAD only where the evidence arose after the RPD rejected the claim, or where the evidence was not reasonably available or the claimant could not have been reasonably expected to have filed the evidence prior to the rejection of the claim. The legal test for the admission of new evidence at the RAD is set out in subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]:

[9] The RAD correctly noted this statutory requirement and explained that in addition to these constraints, it also had to consider whether the evidence is credible as set out by the Federal Court of Appeal in Singh v Canada (Minister of Citizenship and Immigration), 2016 FCA 96 at paragraphs 38-49.

[10] Mr. Singh attempted to file new evidence on appeal, including an affidavit from his sister. In the affidavit, Mr. Singh’s sister states that she learned that Mr. Singh’s former partner had been killed and the Khap Panchayat was now looking for a way to find Mr. Singh and kill him. Mr. Singh’s sister describes events from August and early September 2022, involving being harassed and assaulted by “goons” affiliated with the Khap Panchayat. She also describes moving to Jammu and Kashmir in October 2022 and being visited by the police there.

[11] The RAD found that much of the information contained in the affidavit related to events that pre-dated the RPD’s decision without any explanation for why it could not have been provided sooner and therefore it could not be admitted under section 110(4) of IRPA.

[12] The RAD acknowledged that two paragraphs of the Mr. Singh’s sister’s affidavit related to events that post-dated the RPD’s decision. These paragraphs dealt with Mr. Singh’s sister’s relocation to Jammu and Kashmir, the visit from the police there, and her subsequent relocation in the Jammu and Kashmir region. The RAD also found Mr. Singh’s sister’s affidavit to not be credible and therefore, it was not accepting any of the evidence from the affidavit.

[13] The RAD found the affidavit not credible for two reasons: i) the first sentence of the affidavit indicates that she is “studying in Ludhiana, Punjab” which is inconsistent with the rest of the affidavit that states she is living in hiding in Jammu and Kashmir; and ii) Mr. Singh did not provide an identity document for his sister.

[14] I found both grounds on which the RAD found the affidavit not credible to be unreasonable. The affidavit begins:

I, [name of Applicant’s sister] R/O KREMSHORE BUDGAM [note this is a region of Jammu and Kashmir] through this affidavit states:

That I am the sister of Rupinderjit Singh and studying in Ludhiana, Punjab and living in rented house…

[15] The rest of the affidavit details the events that led to her brother and parents fleeing India and for her to move first to Haryana and then in October 2022 to Jammu and Kashmir. The affidavit is signed before a notary public who has stamped and signed the affidavit at the Jammu and Kashmir High Court.

[16] The RAD’s analysis misses the forest for the trees, unduly relying on a minor inconsistency without considering the overall content of the evidence (Lawani v Canada (Citizenship and Immigration), 2018 FC 924 at para 23). The RAD focused on the opening statement that could also be interpreted as identifying her as a student from the Punjab, rather than someone currently living in Punjab. To read the affidavit as the RAD does would be nonsensical with the rest of the affidavit, which detailed how she had to move from the Punjab and is currently living in hiding in Jammu and Kashmir. This is of course bolstered by the affidavit being notarized by a notary public at the High Court in Jammu and Kashmir and that the very first line of the affidavit indicates that the affiant is a resident of Kremshore Budgami, a region in Jammu and Kashmir.

[17] The lack of identification provided with the affidavit is also not a basis to find the affidavit not credible. There is no requirement for an identity document to be provided with the affidavit. If this was a concern for the RAD, it certainly could have asked the Applicant to provide it, instead finding the affidavit not credible enough to even be admitted for consideration.

[18] As I noted previously in Egenti v Canada (Citizenship and Immigration), 2023 FC 639 at paragraph 19, the requirement that credibility findings in refugee matters be made in clear and unmistakable terms (Hilo v Canada (Minister of Employment and Immigration), 1991 CanLII 14469 (FCA), [1991] FCJ No 228 (FCA) at para 6) does not disappear when making a determination about the admissibility of new evidence at the RAD. Making a determination that a document tendered by a refugee claimant is not credible is a serious one with consequences for the evaluation of their immediate asylum claim as well as possible future applications. The RAD’s credibility analysis of the new evidence does not stand up to scrutiny and must be set aside.

[19] The Respondent argued that even if I find that the RAD was unreasonable in its credibility determination, the new evidence of Mr. Singh’s sister was not sufficiently significant to have impacted the RAD’s IFA analysis. I do not agree. The RAD specifically relied on the lack of credible information before it regarding the police tracking down his sister in Jammu and Kashmir – the very subject of the new evidence that was not admitted. The RAD states:

The Appellant argues that the police are motivated to find him because they have tracked down his sister. He argues that if they can find her in Haryana and Jammu and Kashmir, where she moved to be safe, then they can find the Appellant anywhere. However, I have insufficient credible evidence that the police visited or found the sister in either of the above states.

[20] I am satisfied that, had Mr. Singh’s sister’s affidavit been admitted into evidence, it may have impacted the RAD’s IFA analysis, which was the determinative issue on appeal. As I have found that the RAD was unreasonable in its assessment of the credibility of this new evidence, I am granting the judicial review and sending the matter back to be redetermined. Neither party raised a question for certification.

JUDGMENT IN IMM-23832-24

THIS COURT’S JUDGMENT is that

1. The application for judicial review is granted;
2. The decision dated November 14, 2024 is set aside and sent back to be redetermined; and
3. No serious question of general importance is certified.

FEDERAL COURT

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