Date: 20211223
Docket: IMM-4177-21
Citation: 2021 FC 1464
Vancouver, British Columbia, December 23, 2021
PRESENT: Mr. Justice Diner
BETWEEN:
|
GURPREET SINGH
|
Applicant
|
and
|
THE MINISTER OF CITIZENSHIP & IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
[1] This case concerns the application for judicial review of Gurpreet Singh (the Applicant), made pursuant to section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act], concerning a decision (the Decision) of the Refugee Appeal Division (the RAD or the Member), dated May 28, 2021. In the Decision, the RAD dismissed the Applicant’s appeal of the Refugee Protection Division’s (the RPD) decision. The RAD held that the RPD had erred in finding that the Applicant has an internal flight alternative (IFA), but had nonetheless correctly concluded that the Applicant is not a Convention Refugee or a person in need of protection. For the reasons that follow, I find the Decision of the RAD to be reasonable.
I.
Background
[2] The Applicant is a single citizen of India, who claims that he was targeted by a gang of drug dealers known as Veeran Naal Sardari (VNS) based in the state of Punjab. According to the Applicant, VNS began its attempts to recruit him in 2014. When he refused, and advocated that others stay away, he alleges that he was threatened with violence and death. The Applicant further claims that when he reported the gang to the police, they arrested him at the behest of VNS, accused him of selling drugs, and beat him over several days until his father successfully freed him with a bribe to the police.
[3] The Applicant made his way to Canada, claiming that he cannot safely reside in any part of India because while hiding from both the police and VNS after the detention, (i) he received threats until his departure for Canada in May of 2018, and (ii) the police made inquiries with his parents since his departure, threatening to kill him if he ever returns.
[4] During his hearing before the RPD, the Applicant was asked about a letter (the Letter) he submitted in support of his claim, written by the village council’s leader, the Sarpanch. The Sarpanch stated in the letter that (i) he had known the Applicant for over 20 years; (ii) during the Applicant’s college years, he was an active VNS member; (iii) VNS provided social services, opposed drugs, and was opposed by the Punjab Police; and, (iv) the Applicant was twice arrested by the police, and although he intervened to secure release from detention, the Applicant’s life was still at risk from the police in India.
[5] At the first tribunal level, the RPD gave the Applicant the opportunity to respond to the significant inconsistencies between the Letter and his testimony. The Applicant responded that the Sarpanch could not read English and must have made a mistake. The RPD, in its refusal, found the IFA to be determinative, but also noted “significant credibility issues raised throughout the hearing”
. On appeal, the RAD raised the Letter with the Applicant once again, advising him of credibility issues arising from it, and inviting submissions and/or new evidence to address these concerns. The Applicant did not provide any further documentation, responding only with post-perfection submissions, and restating what he had at the RPD hearing, namely the writer’s English deficiencies and that the Letter must have been a mistake, and should not be given any weight.
[6] In its Decision, the RAD found that without any new evidence, s 110(6) of the Act precluded an oral hearing. It noted that credibility issues had already been canvassed by the RPD, and noted no meaningful advantage enjoyed by the RPD in assessing credibility, given the recording which the RAD member listened to. The RAD disagreed with the RPD, finding that even before getting to the IFA issue, the RPD was correct to raise credibility, but erred by failing to elaborate on those concerns. Thus, the RAD did so. The RAD then went on to address the Letter, noting that it was written in English, was not translated from an original source document and appeared on an English letterhead.
[7] The RAD found that the Letter appeared to be coherent and genuine, and completely contradicted the Applicant’s claim, specifically with respect to the Applicant’s membership in VNS, the nature of the group, and the relationship between the VNS and the police. The RAD found that the credibility concerns could not be overcome and the Applicant’s presumption of truthfulness was rebutted.
II.
Analysis
[8] The parties agree that the applicable standard of review for the decision of the RAD is reasonableness. A court conducting reasonableness review scrutinizes the decision maker’s decision in search of the hallmarks of reasonableness – justification, transparency and intelligibility – to determine whether it is justified in relation to the relevant factual and legal constraints that brought the decision to bear (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 99). Both the outcome and the reasoning process must be reasonable: Vavilov, at para 83.
[9] The issue in this judicial review is whether it was reasonable for the RAD, without convening a hearing, to conclude that the Applicant lacked credibility. The Applicant takes issue with the RAD’s finding for two reasons.
[10] First, he submits that the RPD had a meaningful advantage over the RAD in assessing credibility, which the RPD did not find to be determinative. He contends that if the RAD had doubts regarding the Applicant’s credibility, it ought to have either held a hearing, as requested by the Applicant, or remitted the matter to the RPD with instructions to hold a hearing on credibility. Second, the Applicant submits that the RAD’s finding on credibility is flawed.
[11] In Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 [Huruglica], at paragraph 70, the Federal Court of Appeal [FCA] acknowledged that while the RAD may sometimes exercise a degree of restraint before substituting its decision over that of the RPD, the circumstances must be considered on a case by case basis. The FCA instructed the RAD to determine whether the RPD is in an advantageous position in making findings of fact or mixed fact and law. Only where the RAD is of the opinion that is cannot provide a final determination without hearing oral evidence is the RAD to remit the matter to the RPD for redetermination (Huruglica at para 103).
[12] Here, the RAD reviewed the entire written record and the audio recording of the RPD hearing and reasonably found the RPD had have no meaningful advantage over the RAD in assessing credibility. This Court has repeatedly found that, where audio recordings of testimony were available and reviewed by the RAD in addition to the written record and the RPD’s conclusions, it is reasonable for the RAD to find no meaningful advantage in the assessment of credibility, and to make its own determination (Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 at paras 89-90; Odia v Canada (Citizenship and Immigration), 2018 FC 363 at para 5; Keqaj v. Canada (Citizenship and Immigration), 2020 FC 563 at para 30).
[13] It is also worth noting that here, the RAD did not substitute its own finding for that of the RPD on credibility. Both tribunals were in agreement that credibility was a concern, the RAD simply concluded the credibility issue to be determinative of the claim, rather than the IFA. Regarding an oral hearing, s 110(3) of the IRPA creates a general rule that the RAD is to proceed without a hearing on the basis of the RPD record, unless new evidence is submitted which inter alia, raises a serious issue with respect to credibility (see Annex A). Despite the two opportunities he was given to provide convincing evidence and explain the Letter’s inconsistencies, the Applicant did neither. The Decision was both fair and transparent.
[14] Second, the Applicant argues the RAD erred by basing its credibility finding solely on the absence of corroborative evidence, citing Ndjavera v. Canada (Citizenship and Immigration), 2013 FC 452 [Ndjavera]. The Applicant’s reliance on Ndjavera is misplaced. It is true that Ndjavera stands for the principle that there is no general requirement for corroboration. However Rennie J, as he then was, also states that where there are valid reasons to question the claimant’s credibility, the Board can draw a negative inference from a failure to provide corroborating evidence (Ndjavera at para 7).
[15] Here, it was not the mere absence of corroborating evidence that was found to be determinative by the RAD. Rather, the Letter tendered by the Applicant contradicted the basis of his claim. The RAD clearly noted this distinction in paragraph 27 of the Decision:
[27] The Appellant did not adduce any other documentary evidence of his own in support of his claim or his appeal, and he did not call on any witnesses. This is not a problem in and of itself, but it does mean that I do not have much other evidence that could overcome the credibility concerns described above. I have considered the package of information provided by the referring agencies and the country condition information. None of the other evidence causes additional credibility concerns, but in my opinion, it also does not overcome the serious problems discussed above.
(My emphasis.)
[16] In Lawani v. Canada (Citizenship and Immigration), 2018 FC 924 [Lawani], Justice Gascon explained that the presumption of truthfulness which attaches to refugee applicants is rebutted where the evidence is inconsistent with the Applicant’s sworn testimony. This is exactly the situation in which we find ourselves. Documentary evidence provided in support of the Applicant’s claim actually served to undermine his sworn testimony.
III.
CONCLUSION
[17] Since the Applicant twice failed to provide a satisfactory response to the concerns raised, the RAD reasonably refused the Applicant’s claim on the basis of negative credibility. I see no basis to interfere.
JUDGMENT in IMM-4177-21
THIS COURT’S JUDGMENT is that:
The application for judicial review is dismissed.
The parties raised no questions for certification and I agree that none arise.
No costs will be issued.
"Alan S. Diner"
Judge
ANNEX “A” to the Judgment and Reasons in IMM-4177-21
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FEDERAL COURT
SOLICITORS OF RECORD
|
Docket:
|
IMM-4177-21
|
|
STYLE OF CAUSE:
|
GURPREET SINGH v THE MINISTER OF CITIZENSHIP & IMMIGRATION
|
||
PLACE OF HEARING:
|
HEARD BY VIDEOCONFERENCE
|
||
DATE OF HEARING:
|
December 15, 2021
|
||
JUDGMENT AND REASONS:
|
DINER J.
|
||
DATED:
|
DECEMBER 23, 2021
|
||
APPEARANCES:
Aman Sandhu
|
For The Applicant
|
Peter Bell
|
For The Respondent
|
SOLICITORS OF RECORD:
Sandhu Law Office
Surrey, British Columbia
|
For The Applicant
|
Attorney General of Canada
Vancouver, British Columbia
|
For The Respondent
|