Docket: IMM-1240-21
Citation: 2022 FC 382
Ottawa, Ontario, March 21, 2022
PRESENT: The Hon Mr. Justice Henry S. Brown
| BETWEEN:
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| PUNEET ARORA
RAJNI ARORA
NANDITA ARORA
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| Applicants
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| and
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| THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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| Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1] This is an application for judicial review of a decision by the Refugee Appeal Division [RAD] of the Immigration and Refugee Board [IRB], which upheld the decision of the Refugee Protection Division [RPD]. The RPD determined the Applicants are neither Convention refugees nor persons in need of protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
II.
Facts
A.
Background Facts
[2] The Principal Applicant [PA], his wife [the Spouse] and their minor daughter [the Minor Applicant] are citizens of India. They allege they faced threats from members of a Hindu-nationalist paramilitary organization called the Rashtriya Swayamsevak Sangh [RSS] who sought to extort them, and they fear the police who purportedly support the RSS. The Applicants allege the RSS targeted merchants such as the PA, demanded they become members, and extorted significant amounts of money from them.
[3] The Applicants allege on account of the PA’s refusal to become a member of RSS and contribute funds to them, the PA faced threats, was blackmailed and extorted by police, had false charges and a First Information Report [FIR] registered against him, and had his shoe business burned down. The Applicants also allege the PA faced interrogations by intelligence police, was detained six times, and received beatings due to his involvement in human rights and community welfare activities.
[4] In January 2018 the Applicants left India for Canada. They filed their claims for refugee protection in November 2018. The PA allegedly fears if he is returned to India, he would be physically and mentally tortured, would face false charges, and his life would be in danger. The co-Applicants, who are his wife and child, rely on the grounds presented by the PA.
B.
RPD Decision
[5] In a decision dated February 4, 2020, the RPD denied these claims on credibility grounds based on numerous inconsistencies in their evidence and omissions from their Basis of Claim form [BOC].
[6] First, the RPD found an inconsistency regarding the ownership of the PA’s shoe business. The PA alleges in his BOC and testimony he was the sole owner of a shoe store and factory. However, the RPD noted the PA could not present a copy of his commercial lease, nor could he provide a reasonable explanation for why he could not obtain the landlord’s contact information. The RPD noted the PA could not explain why he mentioned in his BOC that his parents did not agree to become members of the RSS, if they had no interest in the PA’s shoe business and were not merchants. Thus, the RPD deduced the refusal of the PA’s parents to pay the RSS was likely because they had an interest in the shoe business.
[7] Second, the RPD noted the PA made inconsistent representations to Canadian authorities regarding his occupation and the presence of relatives in Canada. In his refugee claim, the PA stated he owned a shoe business from January 2008 to September 2017. However, in his application for a visitor’s visa dated October 2017, the PA made no mention of the shoe business and declared that from June 2011 to October 2017, he was the manager of Teckno Derm Mediequip Pvt. Ltd. [Teckno]. Moreover, the PA’s application for a visitor’s visa states prior to his job at Teckno, he was working at Computer Solutions from April 2005 to March 2011, while the PA’s refugee application indicates he was in secondary school from April 2004 to March 2006. Contrary to his claim, the PA testified he never worked at Teckno or at Computer Solutions. The visa application also stated the PA had a cousin in Surrey, British Columbia; however, the Applicants testified at the RPD they have no such cousin. The RPD noted this was contradicted by the fact the cousin made a joint declaration with her husband in September 2017 in which they referenced the names and passport numbers of each of the Applicants, declared the PA is the “cousin brother”
of the cousin, and undertook to be responsible for all of the expenses of the Applicants. The PA’s spouse testified at the RPD the inconsistencies between the visa and refugee applications are due to the work of an agent in India whose work they did not review. However, the RPD concluded the Applicants’ denial of any knowledge of their sponsors for their visa application is not accurate and credible, as no sufficient explanation was provided for why these sponsors would lie about such a crucial aspect of the claimants' applications, falsely represent on oath the existence of a familial relationship, and provide their undertaking to be responsible for the Applicants' expenses in Canada.
[8] Third, the RPD noted photos submitted by the Applicants of the fire allegedly set to the PA’s shoe business contain discrepancies and do not contain any indication the building is in fact the PA’s shoe business. The RPD was thus not satisfied the shoe business was destroyed by a fire.
[9] Fourth, the RPD found there were inaccuracies and a lack of evidence as to the Applicants’ claims of ethnic cleansing pogroms, extortion, and blackmail in his BOC and testimony. The Applicant testified before the RPD that he did not know the meaning of these words, but specified the RSS was asking him for donations, troubling him in his business, and causing him damage. However, the RPD noted the only evidence provided in support of these claims was an article titled “India Resists”
about a Bangladeshi immigrant to India allegedly trafficking in prostitution and spreading hate on behalf of a Hindu activist group called Hindu Jagran Manch, which the RPD found was insufficient to prove the Applicants’ assertions of widespread blackmail and extortion of businesses by the RSS.
[10] Fifth, the RPD placed no weight on the PA’s assertions of being attacked by RSS thugs and police, as the RPD had found his testimony not credible generally. The RPD further noted the hospital note submitted as evidence of an alleged beating had an illegible letterhead and mentions only a head injury, which failed to corroborate the alleged injury to his back and head.
[11] Sixth, the RPD found the PA failed to establish false charges and a FIR were made against him, as the evidence submitted by the PA in his testimony and in his BOC were contradictory. In his BOC, the PA wrote the police laid false charges on him at his house, while he acknowledged he had not been charged with an offence during his testimony. Similarly, the PA wrote there was a FIR registered against him in his BOC, while he stated in his testimony that he could not confirm whether this occurred.
[12] Seventh, the RPD held the PA’s alleged beatings, detainments and interrogations by intelligence police on account of his human rights and community welfare activities were falsehoods, because the PA stated in his testimony he did not know anything about these allegations written in his BOC, which were presumably made up by an agent.
[13] Finally, the RPD concluded the assertions by the PA’s spouse that she is sometimes followed by RSS members in the street who pose a threat to her bodily integrity were falsifications made up as the hearing progressed, because there is no reference to any such threat in the BOC.
[14] The RPD concluded the Applicants do not face a serious possibility of persecution in India and are not persons in need of protection, in light of the PA’s lack of credibility and the insufficiency of the supporting material provided.
C.
Decision under review
[15] The RAD confirmed the decision of the RPD that the Applicants are neither Convention refugees nor persons in need of protection. The RAD held the omissions from the BOC and the inconsistencies and contradictions in the evidence concern central elements to their claims, including the allegations related to the extortion, the assaults, the bribe paid to the police, and the false criminal charges, and therefore undermine their credibility.
(1)
Alleged extortion
[16] The RAD confirmed there were several inconsistencies in the Applicants’ allegations regarding their alleged extortion, including its timing and the question of whether the Applicants paid the extorted money to the RSS or to the police. As such, the RAD concluded these inconsistencies undermine the Applicants’ credibility, and the RPD did not err in concluding the RSS did not engage in blackmailing or extortion of the Applicants.
[17] First, the RAD found the Applicants provided inconsistent evidence on whether they were extorted by the RSS, as alleged in their testimony, or the police, as alleged in their BOC. The RAD noted when the RPD pointed out the inconsistency between his testimony and his BOC, the PA referred to the bribe paid to the police to secure his release. The RAD found this was not a reasonable explanation for the inconsistency, because the PA referred to both a “single”
bribe paid to police in the BOC and subsequently referred to a bribe paid to the police “time and time again”
.
[18] Second, the RAD found the PA’s testimony on the timing of the alleged extortion inconsistent with the BOC. The RAD noted in the BOC, the PA states he was receiving threats from police since 2016 that it went on for almost a year, and that he was paying the police “time and time again”
. However, in his testimony, the PA stated he had been paying 10,000 Indian rupees to the RSS since 2014, and the RSS demanded 30,000 rupees from him in 2017.
(2)
Alleged beatings
[19] The RAD concluded the omission from the BOC of alleged beatings by the RSS and police referred to in the Applicants’ testimony undermines the Applicants’ credibility. The RAD noted no specific incidents referred to in the PA’s testimony were mentioned in the BOC, and while the PA’s spouse testified the PA was beaten in Uttar Pradesh, there is no mention in the BOC they ever relocated to that state. While the BOC indicates the Applicants relocated only to Punjab state, their testimony stated they relocated to two additional states, Uttar Pradesh and Madhya Pradesh. The RAD found the PA failed to provide a reasonable explanation as to why the alleged incidents taking place in other states were not mentioned in the BOC. Moreover, the RAD confirmed the RPD was correct to place no weight on the hospital report to corroborate the beatings, as the report’s letterhead was illegible, the age of the PA listed on the report was inaccurate, and there were inconsistencies between the report and the PA’s testimony as to the injuries he sustained.
(3)
Alleged charges
[20] The RAD found the contradictions in the PA’s evidence regarding his alleged charges and interactions with police undermine the Applicants’ credibility, as these are central allegations through which the police were identified as agents of harm along with the RSS. Therefore, the RAD concluded the RPD was correct in drawing an adverse inference from the contradictory evidence as to whether the PA was ever charged.
(4)
Remaining documentary evidence
[21] The RAD held the remaining documentary evidence (a letter from the PA’s father containing limited information, three photographs of a building on fire, several news articles, and the National Documentation Package) does not help resolve the credibility findings based on the inconsistencies between the BOC and the testimony, nor does it independently establish the Applicants’ claims.
[22] Finally, the RAD upheld the RPD’s finding that the minor Applicant has not established she faces more than a mere possibility of persecution or a risk of harm, on a balance of probabilities, in India. The RAD acknowledged the RPD failed to expressly refer to Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues [Chairperson Guideline 3], when assessing the claim of the Minor Applicant; however, the RAD noted the Applicants have not identified anything in their memorandum that would establish the Minor Applicant’s likelihood of persecution or risk of harm is different from that of the two adult Applicants.
III.
Issues
[23] In my view the issues are:
Did the RAD make an unreasonable credibility finding?
Did the RAD unreasonably consider the documentary evidence submitted by the Applicants?
Did the RAD unreasonably assess the claim of the minor Applicant or the PA’s spouse?
Was it unreasonable for the RAD to omit to evaluate the adequacy of the state protection available to the Applicants in India?
IV.
Standard of Review
[24] The parties agree the standard of reasonableness applies to the questions at issue. I concur.
[25] With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued at the same time as the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[30] The Supreme Court of Canada in Vavilov at para 86 also states, “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision-maker to those to whom the decision applies.”
[31] Furthermore, Vavilov makes it clear this Court is not to reweigh and reassess the evidence unless there are “exceptional circumstances”
. The Supreme Court of Canada instructs:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
[Emphasis added]
[32] The Federal Court of Appeal recently reiterated in Doyle v Canada (Attorney General), 2021 FCA 237 that the role of this Court is not to reweigh and reassess evidence:
[3] In doing that, the Federal Court was quite right. Under this legislative scheme, the administrative decision-maker, here the Director, alone considers the evidence, decides on issues of admissibility and weight, assesses whether inferences should be drawn, and makes a decision. In conducting reasonableness review of the Director’s decision, the reviewing court, here the Federal Court, can interfere only where the Director has committed fundamental errors in fact-finding that undermine the acceptability of the decision. Reweighing and second-guessing the evidence is no part of its role. Sticking to its role, the Federal Court did not find any fundamental errors.
[4] On appeal, in essence, the appellant invites us in his written and oral submissions to reweigh and second-guess the evidence. We decline the invitation.
V.
Analysis
A.
Did the RAD make an unreasonable credibility finding?
[33] The Applicants argue the RAD erred in concluding the evidence of extortion presented by the Applicants was inconsistent. First, they submit there was no inconsistency as to whether the Applicants were extorted by the RSS or the police, because the Applicants testified he was blackmailed and extorted by the police and that he paid the RSS, who work hand in hand with India’s ruling party, the Bharatiya Janata Party. The Applicants assert the RAD failed to understand the relationship between these two entities. Second, the Applicants submit there was no inconsistency in their evidence with respect to the timing of the alleged extortion, as they allege the RAD failed to properly understand the PA’s testimony according to which the extortion continued for several years, with the RSS increasing their demands in 2017. Third, the Applicants submit the RAD erred in not accepting the testimony of the PA’s beatings by the RSS simply because the beatings were described with greater detail in their testimony than they were in the BOC. The Applicants assert this is not an inconsistency, but rather a difference in the level of detail. Fourth, the Applicants contend the RAD erred in finding there was an inconsistency in the Applicants’ evidence as to whether the PA was ever charged. According to the Applicants, the PA testified he was not charged after repeated questioning from the RPD, and because he did not have evidence showing he was charged. Finally, the Applicants assert the RAD erred in finding the evidence regarding who paid the bribe to the police was inconsistent, as the bribe was initiated by the PA and paid by his father.
[34] The Respondent submits the RAD’s findings with respect to omissions from the BOC and inconsistencies in the evidence are reasonable, because these findings are supported by the evidence before the RAD and concerned central elements of the Applicants’ claims.
[35] The Respondent rejects the Applicants’ assertion the RAD failed to understand the relationship between the police and the RSS, and argues it is evident from the evidence the PA did not identify the RSS as extortionists in his BOC but did so in his testimony.
[36] With respect to the timing of the alleged extortion, the Respondent submits the RAD identified clear inconsistencies between the PA’s BOC and his testimony. The Respondent further submits the Applicants’ claim that the RAD “did not understand”
the PA’s testimony regarding the timing is not a reviewable error, and that if it is the case the RAD misunderstood, then it was incumbent on the Applicants to elaborate and identify a reviewable error.
[37] Finally, the Respondent argues the negative inference drawn by the RAD regarding whether the PA was arrested, charged and paid a bribe cannot be found to be unreasonable simply because the Applicants allege that the RAD “did not understand”
the Applicants.
[38] In my respectful view, the RAD’s credibility findings are reasonable in that they respect the record and constraining law. The Federal Court of Appeal holds that credibility determinations lie within “the heartland of the discretion of triers of fact”
: see Giron v Canada (Minister of Employment and Immigration), [1992] FCJ No 481 (FCA) at para 1:
[1] The Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") chose to base its finding of lack of credibility here for the most part, not on internal contradictions, inconsistencies, and evasions, which is the heartland of the discretion of triers of fact, but rather on the implausibility of the claimant's account in the light of extrinsic criteria such as rationality, common sense, and judicial knowledge, all of which involve the drawing of inferences, which triers of fact are in little, if any, better position than others to draw.
[39] This Court recently decided findings regarding a claimant’s credibility and the assessment of the evidence command a high degree of deference from this Court: Vavilov at para 125; Zamor v Canada (Citizenship and Immigration), 2021 FC 672 [per Roussel J] at para 18.
[40] In my respectful view, the inconsistencies identified by the RAD related to critical aspects of the Applicants’ claim, such as the perpetrators and timing of the alleged extortion, the alleged beatings, and the alleged charges. In concluding these inconsistencies negatively impacted the credibility of the Applicants, the RAD provided a reasoned explanation and made reference to the evidence submitted by the Applicants. The Applicant’s assertion that elements of the Applicants’ evidence were not considered are without merit; these elements were considered, but without the success sought by the Applicants. I note this in relation to the hospital report, the father’s letter and the photographs in particular, and am not persuaded of unreasonableness in those assessments.
[41] Moreover, the Applicants’ bald assertions the RAD “failed to understand”
aspects of the Applicants’ claim are made without justification. Although the Applicants deny the existence of the inconsistences, the comparison between the BOC and the testimony carried out by the RAD seems to me conclusive against the Applicants.
[42] I reject the assertion by the Applicants that the differences between the BOC and the testimony with respect to the alleged beatings are differences in detail and not inconsistencies. As noted by the RAD, the BOC contains evidence about the Applicants’ relocation to another state in India, but makes no mention of relocation to the state where the Applicants allege the beatings occurred, nor does their BOC mention any specific incident of a beating, while several were raised in oral evidence. This is not mere detail, but in my view is an example of serious omission from the BOC of very important events which should have been addressed in the BOC.
B.
Did the RAD unreasonably consider the documentary evidence submitted by the Applicants?
[43] The Applicants submit the RAD ignored or afforded little weight to most of the Applicants’ documents, and simply concluded the RPD considered and attributed weight to these documents. The Applicants say the conclusions reached would have been different if the RAD had truly considered the voluminous documentation before it instead of simply dismissing these documents on credibility concerns. The Applicants submit the RAD’s consideration of the evidence is analogous to Tung v Canada (Minister of Employment and Immigration) (1991), 124 NR 388 (FCA) [per Stone JA] [Tung], in which the Federal Court of Appeal held the IRB erred in law by misconstruing the evidence before it. In particular, the Applicants point to the refusal of the RAD to consider the hospital report due to its appearance and its inaccuracy as to the age of the PA, and argue the RAD should have contacted the hospital to verify the report’s authenticity. The Applicants also raise concerns regarding the letter from the PA’s father, the photos of the alleged fire at the shoe business, and the country condition documents that were given no weight by the RAD, simply because of the RAD’s credibility concerns as to the Applicants. The Applicants argue regardless of their credibility concerns, the RAD was obligated to consider all of the evidence, and then make a credibility determination only after all of the evidence was considered.
[44] The Respondents say the RAD gave clear and comprehensive reasons for discounting the evidence in question, and rely on Adera v Canada (Citizenship and Immigration), 2016 FC 871 [per Russell J], at para 55 to submit the Court should not second guess the weighing of evidence by the RAD.
[45] In my respectful view, the RAD reasonably considered the documentary evidence submitted by the Applicants. The RAD provided intelligible reasons for discounting the evidence in question. As noted above, very considerable deference is owed by this Court to the RAD’s assessment of the weight of evidence; reviewing courts “must not”
interfere with such factual findings, absent exceptional circumstances: Vavilov at para 125. With respect, in this connection and once again, the Applicants ask the Court to reweigh evidence and reach a different conclusion from the RAD; however, this is not the role of a reviewing Court on judicial review.
[46] I should add that the Federal Court of Appeal’s decision in Tung, cited by the Applicants, is of no assistance. In Tung, the Tribunal failed to consider evidence pertaining to central parts of the applicant’s claim. This is not the case in the present matter.
C.
Did the RAD unreasonably assess the claim of the minor Applicant or the PA’s spouse?
[47] The Applicants argue the RAD incorrectly concluded there was no need to apply Chairperson Guideline 3 in their assessment of the Minor Applicant’s claim, because the child’s claim is connected to that of the PA. The Applicants assert the RAD nonetheless had a duty to apply this guideline, as well as Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution [Chairperson Guidelines 3] in relation to the claim of the PA’s spouse.
[48] The Respondent submits that a tribunal need not specifically mention Chairperson Guidelines 3 in its reasons to demonstrate that it was sensitive to a Minor Applicant’s interests. I agree. Chairperson Guidelines 3 in a case like this requires the appointment of a Designated Representative for the child. The PA was the child’s Designated Representative. I note the PA and child were represented by the same counsel both at the RAD and RPD hearings. Without more, there is no merit in the Applicant’s submission.
[49] Moreover, in my view it was reasonable for the RAD to confirm the Minor Applicant had not established she faces more than a mere possibility of persecution or a risk of harm on a balance of probabilities in India, given the Minor Applicant’s claim was based entirely on the PA’s narrative, which the RAD found lacked credibility.
[50] I also note Newton v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15385 (FC) [per Pelletier J] at para 18 determined Chairperson Guidelines 3 concerns the fair conduct of a hearing and not deficiencies in the claim itself. The Applicants have not shown the Minor Applicant was deprived of a fair hearing. Likewise, jurisprudence established Chairperson Guidelines 3 is to be taken into account in a procedural, not a substantive manner: Zidan v Canada (Citizenship and Immigration), 2021 FC 170 [per Little J] at para 40, citing Douillard v Canada (Citizenship and Immigration), 2019 FC 390 [per LeBlanc J as he then was] at paras 24-30 and Kim v Canada (Citizenship and Immigration), 2010 FC 149 [per Shore J] at paras 7-9.
[51] With respect to the spouse, the Applicants argued the RAD was under a duty to apply Chairperson Guidelines 4 to this case. With respect, there is no merit in this submission. Chairperson Guidelines 4 by their terms apply where “a woman claims to have a gender-related fear of persecution”
. There is no such allegation in this case. Instead, the spouse (like the child) relied entirely on the PA’s submissions. The Applicants rely on S.R.H. v Canada (Citizenship and Immigration), 2012 FC 1271 [per O’Keefe J], which involved a very different situation and is completely distinguishable. There, a mother’s claim was based on assault and rape by her husband. The daughter’s claim was based on sexual assault by the same man, her father. Clearly Chairperson Guidelines 4 applied to both, and therefore both had to receive separate consideration. No such circumstances apply here. I also note the PA and spouse were represented by the same counsel at both the RPD and RAD hearings where this issue was not raised.
D.
Was it unreasonable for the RAD to omit to evaluate the adequacy of the state protection available to the Applicants in India?
[52] The Applicants submit the RAD erred in not considering whether the Applicants could benefit from state protection in India. They contend the absence of such consideration renders the RAD’s credibility finding unreasonable.
[53] The Respondent submits a determination of state protection was not necessary given the finding the Applicants were not credible in their allegations. I agree. Such an inquiry would be without utility in the circumstances.
VI.
Conclusion
[54] In my respectful view, the Applicants have not established the decision of the RAD was not justified, transparent or unintelligible. Therefore, this Application will be dismissed.
VII.
Certified Question
[55] Neither party proposed a question of general importance for certification for appeal, and none arises.
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