Docket: IMM-16296-23
Citation: 2024 FC 2058
Ottawa, Ontario, December 18, 2024
PRESENT: Madam Justice Sadrehashemi
BETWEEN: |
HARVINDER SINGH |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Harvinder Singh, applied for refugee protection in Canada. He alleged that he was at risk from the Indian National Congress (“Congress”
) and the Punjabi police in India, his country of citizenship, because of his support during the Punjab state elections of the Shiromani Akali Dal party (“SAD”
) and the SADP-Bharatiya Janata Party (“BJP”
) alliance (“SAD-BJP”
). Mr. Singh alleged that he was falsely charged with fraud by the Punjabi police, who he believes were acting on the orders of the Congress and their leader.
[2] The Refugee Protection Division (“RPD”
) excluded Mr. Singh from refugee protection on the basis that he committed a serious, non-political crime in India. The Refugee Appeal Division (“RAD”
) overturned the exclusion finding determining that the Minister had not met their onus of establishing that the crime in question was “serious”
but determined that the claim should be refused because it did not find Mr. Singh’s allegations credible.
[3] Mr. Singh challenges the RAD’s decision on judicial review. Mr. Singh argues that the RAD ought to have sent the matter back to the RPD for redetermination and that the RAD made microscopic credibility determinations, peripheral to the claim, that were based only on an absence of corroborative evidence. I do not agree. I find that the RAD provided Mr. Singh with an opportunity to address the specific credibility issues raised in its decision. Further, I find the RAD’s credibility concerns are not minor, are not solely related to the absence of corroborative evidence, and go to the core of the persecution claim.
II. Procedural Background
[4] Mr. Singh’s hearing before the RPD spanned several days over a number of years. Exclusion under Article 1F (b) of the United Nations Convention Relating to the Status of Refugee (“Refugee Convention”
) and section 98 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] was raised and the Minister of Public Safety and Emergency Preparedness (the “Minister”
) intervened. The RPD found Mr. Singh to be excluded from refugee protection due to committing the crime of fraud. As such, the RPD did not evaluate Mr. Singh’s claim of persecution. It did, however, make negative credibility findings in relation to Mr. Singh’s claim that his fraud charge was false and politically motivated.
[5] Mr. Singh appealed the RPD decision to the RAD. In Mr. Singh’s submissions to the RAD, he asked that if the RAD was planning to make a determination on the merits of his persecution claim that either: i) his claim be sent back to the RPD for redetermination, or ii) the RAD give him the opportunity to provide further submissions.
[6] The RAD provided a detailed notice to Mr. Singh and the Minister explaining that it may decide the persecution claim and not limit its analysis only to the exclusion issue. In the notice, the RAD acknowledged that both parties had addressed the substance of the persecution claim in oral submissions at the close of the RPD hearing. The RAD also noted that Mr. Singh addressed the merits of his persecution claim years earlier in written submissions to the RPD, when the issue of exclusion had not yet been raised. The RAD instructed that “if the Appellant and the Minister are content to rely on their previous submissions, no further submissions are required.”
The RAD also described the following concerns that submissions could address:
The adverse credibility findings made by the RPD in its exclusion decision;
The Appellant’s alleged membership and profile in the SAD, his alleged profile and position within that party, and the absence of any corroborative evidence of his membership and role in that party;
Omissions of mention in the Basis of Claim (“BOC”
) narrative that he had been beaten by Congress Party members as he testified at the hearing, and that he had spoken out publicly against the police in India as he testified at the hearing; and
Testimony at the first sitting (December 17, 2019) that his friend, Samir Arora told him about the FIR about five months earlier and that Samir had mailed the FIR to him 3-4 days before the hearing, whereas he testified at the September 22, 2022 sitting that he last had contact with Samir in 2018. How did he know this information if he had no contact with Samir since 2018?
[7] Neither the Minister nor Mr. Singh provided any submissions in response to the RAD’s detailed notice of issues.
[8] The RAD overturned the RPD’s finding that Mr. Singh was excluded because the Minister had not established that the crime at issue, fraud in the amount of approximately $6000, could be considered “serious”
to meet the requirements of Article 1F(b) of the Refugee Convention.
III. Analysis
A. RPD should Address Inclusion Claim
[9] Mr. Singh asserts twice in his written arguments that it was unreasonable for the RAD to not have remitted the matter back to the RPD in order to fully address the inclusion claim. This argument was not pursued in oral submissions. In essence, though not framed this way by Mr. Singh, this argument is really about procedural fairness. Mr. Singh is arguing that the RAD’s approach in deciding the merits of the persecution claim where the RPD had not, was not appropriate. Mr. Singh does not elaborate as to why it is not appropriate or how it is unfair in these circumstances.
[10] I find in these circumstances there is no fairness problem with the RAD’s approach. The RAD explained that the RPD had heard evidence on both exclusion and inclusion. The RAD noted the parties’ submissions on the substance of the persecution claim, and set out its particular concerns with the evidence in great detail. Mr. Singh made no submission in response. This means that Mr. Singh did not substantively address the concerns raised, though given an opportunity to do so; nor did Mr. Singh raise any procedural fairness concern with the RAD’s procedure in considering the claim.
[11] I also note that Mr. Singh’s counsel contemplated this issue in their memorandum on appeal and asked if the RAD decided to address the merits of the persecution claim that it be sent back to the RPD or that he be provided with an opportunity to make further submissions. This is just what the RAD did. There is no merit to Mr. Singh’s process argument in the particular circumstances of this case.
B. Microscopic, Minor and Solely based on Absence of Corroborative Evidence
[12] Mr. Singh argues that the RAD’s credibility findings are microscopic, peripheral to the claim, and solely based on the absence of corroborative evidence. I do not agree. The RAD’s credibility concerns go to the heart of the claim and are not solely based on the absence of corroborative evidence.
[13] The RAD found that Mr. Singh had not credibly established that he was a long-time supporter of the SADB party, or that he occupied an important position of vice-president of the youth wing of the party. This was not a minor finding but went to the heart of Mr. Singh’s claim. As the RAD explained, “Since he alleges that he was persecuted, threatened, and subjected to false charges at the instigation of the Congress party because of his involvement and importance in the SADB party, his allegations of his membership and profile in that party are central to his claim.”
[14] The RAD went through a number of significant inconsistencies in Mr. Singh’s evidence, including significant omissions in the BOC about central events. The RAD carefully considered whether a reasonable explanation had been provided for these omissions. The RAD also identified inconsistencies within Mr. Singh’s hearing testimony about the nature of his involvement in the SADP and noted the lack of reasonable explanations for these inconsistencies.
[15] Absence of corroborative evidence was certainly not raised as a stand-alone basis for the RAD to dismiss the claim, as is claimed by Mr. Singh. The RAD followed the approach set out in Senadheerage v Canada (Citizenship and Immigration), 2020 FC 968 (CanLII), [2020] 4 FCR 617. After noting these inconsistencies in the evidence, the RAD considered the failure to produce corroborative evidence to establish the basic elements of his claim. Mr. Singh was on notice of this concern and failed to provide reasonable explanations for the lack of corroboration. There is no basis to disturb the RAD’s finding on this point.
[16] Mr. Singh has not raised any sufficiently serious shortcoming with the RAD’s credibility findings. I also do not find the process the RAD followed to be unfair considering all the circumstances. The application for judicial review is therefore dismissed.
JUDGMENT in IMM-16296-23
THIS COURT’S JUDGMENT is that:
The application for judicial review is dismissed; and
No serious question of general importance is certified.
"Lobat Sadrehashemi"
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