MB6-02287

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 File No. / N° de dossier de la SAR : MB6-02287 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision March 24, 2017 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the person who is the subject of the appeal Me Claude Whalen Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX (the Appellant), a citizen of India, appeals a decision of the Refugee Protection Division (RPD) rendered on April 19, 2016, denying his claim for refugee protection. [2] The Appellant does not request to submit new evidence in support of his appeal and does not request a hearing before the Refugee Appeal Division (RAD). [3] The Appellant requests that the RAD set aside the determination of the RPD and find the Appellant to be a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act (IRPA) or a person in need of protection pursuant to section 97 of the IRPA. II. DETERMINATION [4] Pursuant to ss. 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the decision of the RPD that XXXX XXXX is neither a Convention refugee nor a person in need of protection. III. BACKGROUND a. Basis of claim [5] According to his Basis of Claim (BOC) form, the Appellant is a Sikh XXXX from the village of XXXX in Punjab, India. He is a supporter of the local Congress party. [6] In June 2012, the Congress Party proposed that the Appellant run for village Sarpanch in the upcoming June 2013 election. [7] As the Appellant garnered support from his village, goons from the opposing Akali Badal Dal party [Badal Group] threatened the Appellant not to run. [8] In XXXX 2012, the police arrested and tortured the Appellant, accusing him of speaking out against the police and the government. He was released the following day with a warning not to run as Sarpanch in the June 2013 election. [9] Following this incident, the Appellant left his village, spending the next two months living surreptitiously with his relatives in XXXX in order to avoid the police. He returned to his village in XXXX 2012 when his relatives could no longer keep him and he had nowhere else to relocate. [10] Once he returned home, the Appellant resumed XXXX. Goons from the Badal group appeared on his XXXX, threatening to kidnap or kill the Appellant if he ran for Sarpanch in the upcoming election. The Appellant was advised by his lawyer and supporters that the Badal group has support from the police and that he should not go to his XXXX unaccompanied. The Appellant was advised to leave India as soon as possible. [11] The Appellant paid an agent to arrange his departure from India. The agent informed the Appellant that it would take time to obtain the visa. [12] While waiting for his visa, the Appellant continued going to his XXXX accompanied by his employees whom he continued to supervise. Meanwhile, the Appellant noted that support for the Badal group was on the rise in his village. He also observed that the police spent time at the home of his political rival from the Badal group. The Appellant was subjected to ongoing threats. [13] At the beginning of January 2013, the Congress Party continued to encourage the Appellant to stand as village Sarpanch in the election. The Appellant acceded to the request, publicly announcing his candidacy at the local Gurdwara. [14] On XXXX XXXX, 2013, three unknown men from the Badal group came out of a XXXX field and beat the Appellant to unconsciousness, leaving him for dead. The police arrived on the scene and the Appellant was brought to a doctor where he received treatment for three days. [15] Following the incident, the Appellant feared that he could be killed at any time. The police gave no assurance of protection. [16] On XXXX XXXX, 2013, the Appellant arrived in Ontario, relocating to Montréal in February 2015. Since then, unknown goons continue to enquire about his whereabouts. [17] The Appellant was arrested by Canadian immigration authorities on XXXX XXXX, 2016. The Appellant made his refugee claim on January 22, 2016.1 b. The RPD decision [18] On April 19, 2016, the RPD rejected the Appellant's refugee claim, concluding that he is neither a Convention refugee nor a person in need of protection. The RPD concluded that key aspects of the Appellant's evidence lacked credibility as his behaviour is not compatible with a person who fears persecution. The RPD considered that aspects of the Appellant's testimony is incoherent and a delay in making his refugee claim further undermined his credibility. Moreover, the RPD accorded no probative weight to documentary evidence submitted to corroborate the claim. [19] In the alternative, the RPD held that even if it had found the Appellant's evidence to be credible, he can avail himself of an Internal Flight Alternative (IFA) in Delhi or Mumbai. c. Grounds of Appeal [20] The Appellant submits the following issues on appeal: - Did the RPD err in the assessment of the Appellant's credibility? - Did the RPD err in finding that the Appellant has an IFA in Delhi or Mumbai? [21] I consider that the determinative issue on appeal is whether the Appellant benefits from an IFA. As such, it is unnecessary to assess whether the RPD erred in the appreciation of the Appellant's credibility.2 IV. SCOPE OF THE RAD APPEAL [22] The IRPA sets out grounds for appeal and possible remedies. However, it does not specify the standard by which the RAD is to review the decision of the RPD. [23] The Appellant has not made any submissions with respect to the role of the RAD on appeal. [24] In cases which raise no issue with respect to the credibility of oral evidence, the Federal Court of Appeal in Huruglica3 held that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in mixed fact and law. In such cases, the RAD is to apply the correctness standard of review.4 Gauthier, J. states as follows: "[A]fter carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination."5 [25] As noted above, I consider that the availability of an IFA is the determinative issue. In this case, the IFA analysis does not raise any issue with respect to the credibility of oral evidence so I will apply the correctness standard of review in the present appeal. V. ANALYSIS [26] After conducting my own analysis of the record, I find that the RPD did not err in concluding that an IFA is available to the Appellant in Delhi or Mumbai. Given the existence of an IFA, the Appellant is not a refugee or a person in need of protection. My reasons follow. The IFA test [27] Case law has established that the onus is on the Applicant to demonstrate that it is unreasonable to seek refuge in a different part of their country before resorting to international protection.6 [28] This assessment is based on a two prong test. First, the RPD must be satisfied on a balance of probabilities that there is no serious possibility of the Applicant being persecuted in the part of the country to which it finds that the IFA exists. Secondly, the conditions in that part of the country must be such that it would not be unreasonable in all the circumstances, for the Applicant to seek refuge there.7 First prong of the test: No serious possibility of persecution in the part of the country in which an IFA exists [29] At the RPD hearing, the Appellant testified that he cannot benefit from an IFA in Delhi or Mumbai given the existence of a tenant verification system in India which requires that he report to the police. He states that once he reports to the police in Mumbai or Delhi, they will communicate with the police back home in his village of XXXX. The XXXX police will inform the leader of the Badal Group of the Appellant's location and force his return to the village. [30] The RPD found that the Appellant's evidence did not establish that he is at risk of being found in Delhi or Mumbai nor did he establish that the Punjab police would be motivated to look for him outside Punjab. Therefore, the RPD held on a balance of probabilities that there is no serious possibility of the Appellant being persecuted if he returns to India and relocates to Delhi or Mumbai. [31] On appeal, it is submitted that the RPD erred in assessing the viability of the IFA for the following reasons: - If the Appellant relocates to Delhi or Mumbai, there is a serious possibility that he will be subjected to the tenant verification process which means that there is a risk that the police in Mumbai or Delhi will cross-check his identity with the police in Punjab. - The police in Punjab do not only pursue those involved in serious crimes. Rather, they can decide to pursue an individual for political reasons, financial issues or perceived criminal activities. As such, the Appellant is of interest to the police in Punjab. The fact that the police continue to harass the Appellant's family demonstrates that he is still a person of interest to the authorities in India. - The Badal group has influence over the police in Punjab. The Appellant was already stopped and mistreated by the police in Punjab where he is considered a rival of the ruling Badal group. Based on this context, he is at risk of being forcibly returned to Punjab. [32] With respect, my analysis of the record leads to the conclusion that the Appellant can avail himself of an IFA in India. [33] I will state at the outset that I accept that there is a tenant verification process in India requiring landlords to register tenants. [34] Indeed, this practice is confirmed in a Response to Information Request (RIR) dated May 9, 2013,8 which reveals that the tenant verification process in India usually consists of landlords registering their tenants at the nearest police station where the police keep records of tenant information. This process is considered mandatory in some cities including Delhi and Mumbai even though a lot of landlords do not register their tenants and compliance with the tenant registration process varies from State to State.9 Is there a risk that police in Delhi or Mumbai will cross-check the Appellant's identity with police in Punjab in the context of the tenant verification process? [35] I find that the tenant verification process will not lead the police in Delhi or Mumbai to communicate or cross-check information about the Appellant with the police in Punjab. I make this statement noting that a review of the documentary evidence reveals that there is minimal inter-state police communication in India except for cases of major crime. Most notably: - Information from the Home Office of the UK Border Agency10 points to the fact that each State in India has a separate police force which is unconnected. The document states: "India still lacks a nationwide crime database, leaving state police stations as virtually unconnected islands." - One RIR specifically examines the situation concerning communication between police officers across India.11 Information gleaned from this document reveals that there is no central police database at the local police station. It is considered to be extremely difficult, if not impossible, to locate an individual as a result of a security check, unless there is a match between a local police station and the subject of a security check.12 - Another RIR dated May 13, 2013, addresses the issue of police communication and collaboration between stations,13 noting that there is collaboration between the police in Punjab and Delhi to find persons of interest.14 More specifically, police communicate with each other across different cities or states to find criminal suspects, witnesses of crimes and potential threats to national security.15 - A more recent RIR dated May 10, 2016 (post-dating the RPD hearing), provides updated information as to whether police across India can locate individuals as a result of registration requirements for employment, housing, education, security checks and surveillance technology.16 - Appellant's counsel provided additional submissions with respect to this document,17 reiterating that the tenant verification system is real and continues to be in effect in India. It stands to follow that the Appellant stands a serious possibility of being subjected to the tenant verification process. Moreover, it is submitted that the police do not only track down people in cases of serious crime. People in India are subject to surveillance by the government. - My review of the May 10, 2016 RIR reveals that in India "there is little inter-state police communication except for cases of major crimes like smuggling, terrorism, and some high profile organised crime."18 Moreover, it is mentioned that "police stations across India are virtually unconnected islands in the case of crime and criminal tracking. There is no system of effective data storage [...] sharing and accessing data and there is no single system by which a police unit can talk to another directly."19 Moreover, programs aimed at linking databases have been stalled for years in India. Some information is shared on the Zonal Integrated Police Network (ZIPNET) however ZIPNET is focused on information related to heinous cases, most wanted criminals, missing and found children, unidentified dead bodies or persons found; and stolen, unclaimed vehicles.20 [36] In sum, my review of the documentary evidence points to the fact that the police in Delhi or Mumbai are not likely to contact the Punjab police in the course of the tenant registration process. Is the Appellant at risk of being tracked down by the Punjab police if he relocates to Delhi or Mumbai? [37] In order for the Punjab police to track suspects who move to other States in India, they must have the cooperation of the police in the other State. The documentary evidence is to the effect that the current practice in India is only to track down individuals across State lines in the most extreme cases.21 [38] In the present case, I find that the Appellant's profile does not correspond to the exceptional type of situation which would lead the Punjabi police to pursue him across State lines in Delhi or Mumbai. [39] There is no indication that the Appellant has a profile of sufficient gravity warranting the Punjab police to obtain inter-state cooperation. The Appellant's evidence is that he has not been formally charged with a serious crime; there is no indication that a police report (First Information Report) was issued against him and the police in XXXX did not falsely accuse the Appellant of any serious crime other than to allege that he has spoken against the government. [40] Moreover, the Appellant is a land owner and XXXX who is a non-card carrying supporter of the Congress party in a small village in the Punjab. He obtained a visa to Canada using his own identity and departed from India using his own passport. [41] In sum, I find that the Appellant's evidence does not establish that he is a serious threat or involved in a serious crime or perceived to be involved in a serious crime to the extent that he would be pursued anywhere in India. Is the Appellant at risk in Delhi or Mumbai given that the Badal group wields influence over the police in Punjab and act with impunity? [42] At the hearing, the Appellant also stated that he fears persecution in the proposed IFAs because the leader of the Badal group is jealous of the Appellant and will send his goons after him. The Appellant also says that the Badal group has influence over the police who act with impunity. However, I am unable to give any weight to this assertion. Rather, documentary evidence points to the fact that the influence of the Badal group is largely restricted to the state of Punjab.22 The Appellant did not provide any evidence to demonstrate that the Badal group had influence over the police in Mumbai or Delhi or that they can act with impunity in these cities. [43] Although the Appellant's evidence refers to a close relationship between the ruling Badal group and the police in Punjab, it is unlikely that the Badal group leader will wield his influence over the XXXX police to the extent that they will pursue the Appellant outside Punjab. Most notably, during the 9-month period preceding his departure from India, the XXXX police did not take any direct action against the Appellant. While the Appellant says that the police are unaware that he has left the country and continue to harass his family back in XXXX, there is no evidence to suggest that the XXXX police took action to locate the Appellant outside Punjab or that they have an interest in pursuing him to another State. [44] In sum, the Appellant has failed to demonstrate on a balance of probabilities that he faces a serious possibility of persecution in Delhi or Mumbai. Second prong of the IFA test: Is it objectively unreasonable or unduly harsh for the Appellant to seek refuge in the region of Delhi or Mumbai? [45] Next, the RPD considered the second prong of the IFA test, finding that the Appellant failed to prove on a balance of probabilities that it is objectively unreasonable for him to seek refuge in Delhi or Mumbai, having regard to all the circumstances of the case. [46] The onus is on the Appellant to demonstrate that the IFA is unreasonable or unduly harsh. In his Memorandum of Appeal, the Appellant did not provide any submissions to challenge this finding. [47] I note that case law has established a very high threshold when determining whether the proposed IFA is unduly harsh. In Thirunavukkarasu,23 the Federal Court of Appeal states the following: "[If] there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so." Almost every major city in India has a large and strong Sikh community. Sikhs throughout India face little discrimination.24 Several sources cited in the May 13, 2013 RIR reveal that Sikh minorities living in States outside Punjab have access to housing, employment, health care, education and have the freedom to practice their religion. They do not face difficulties when they relocate to other areas of India,25 although Sikhs without skills or education may have difficulty finding employment. [48] In the present file, I note that the Appellant's evidence is that he has limited education and speaks Punjabi and a little Hindi. He is a land owner who XXXX XXXX XXXX while maintaining a supervisory role towards his employees. This being said, he has not articulated any reasons why it would be unduly harsh for him to relocate to Mumbai or Delhi other than his past issue with the police and the Badal group. [49] In sum, I have considered the Appellant's personal situation and the documentary evidence including information about the country conditions that prevail for Sikhs who relocate in India. My analysis of the evidence leads me to conclude that the Appellant has failed to prove on a balance of probabilities that he would experience undue hardship if he seeks refuge in the proposed IFA. VI. REMEDIES [50] In conclusion, I have independently analyzed the record, listened to the audio recording, considered the Appellant's arguments and reviewed the RPD decision. On the whole, I find that the RPD did not err in reaching the conclusion that the Appellant benefits from an IFA. Simply put, I find on a balance of probabilities that there is no serious possibility of persecution or harm if the Appellant relocates to Delhi or Mumbai. Moreover, the Appellant did not demonstrate that it would be objectively unreasonable or unduly harsh for him to relocate to Delhi or Mumbai. This finding is determinative of the Appeal. [51] For all these reasons, I confirm the decision of the RPD in accordance with ss. 111(1)(a), namely that XXXX XXXX is neither a Convention refugee nor a person in need of protection. [52] The appeal is dismissed. Patricia O'Connor Me Patricia O'Connor March 24, 2017 Date /cos 1 The Appellant's BOC was received at the IRB on January 27, 2016. 2 Verma v. Canada (Citizenship and Immigration), 2016 FC 404, para 16, held that if it is determined that an IFA exists, this is determinative of the claim for refugee protection. See also Kanagaratnam v. Minister of Employment and Immigration, (1996) 36 Imm. L.R. (2d) 180 (F.C.A.). 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 [Huruglica]. 4 Huruglica, ibid., para 78. 5 Huruglica, ibid, para 103. 6 Momodu v. Canada (Citizenship and Immigration), 2015 FC 1365, para 6; Abdalghader v. Canada (Citizenship and Immigration), 2015 FC 581, para 22. 7 Thirunavukkarasu v. Canada (Minsiter of Employment and Immigration), [1993] F.C.J. No 1172, [1994] 1 F.C. 589 (F.C.A); Rasaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1256, [1992] 1 F.C. 706, 140 N.R. 138 (F.C.A). 8 National Documentation Package (NDP) for India, 17 July 2015, Tab 14.8: India: Requirements and procedures for tenant registration, including implementation, particularly in Delhi, Mumbai, Kolkata and Bangalore (2009-Apr 2013), Immigration and Refugee Board of Canada, 9 May 2013, IND104372.E. 9 Ibid., pp. 4-5 (RPD record, pp. 166-167). 10 NDP for India, 17 July 2015, Tab 1.13: Country information and guidance, India: Background information, including actors of protection, and internal location, United Kingdom, Home Office, February 2015, pp. 4, 15, 18. 11 NDP for India, 17 July 2015, Tab 10.2: Communication between police offices across the country; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks and technological surveillance, Immigration and Refugee Board of Canada, 14 May 2012, IND104065.E. 12 Ibid., Section 3.2. 13 NDP for India, 17 July 2015, Tab 10.6: Police communication and collaboration between stations; police communications technology; reasons for a state-wide or national search, inter-state arrests (2009-April 2013), Immigration and Refugee Board of Canada, 13 May 2013, IND104371.E. 14 Ibid., p. 1. 15 Ibid., p. 3. 16 NDP for India, 31 May 2016, Tab 10.2: India: Communication between police offices across the country, including the use of POLNET; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks, and surveillance technology (2013-May 2016), Research Directorate, Immigration and Refugee Board of Canada, Ottawa, 10 May 2016, IND105494.E. 17 Supplementary submissions submitted by Me Claude Whalen, 23 February 2017. 18 Ibid., p. 1. 19 Ibid. 20 Ibid., p. 2. 21 NDP for India, 17 July 2015, Tab 14.4: Situation of Sikhs outside the state of Punjab, including treatment by authorities; ability of Sikhs to relocate within India, inclding challenges they may encounter (2009-April 2013), Immigration and Refugee Board of Canada, 13 May 2013, IND104369.E, p 9. 22 NDP for India, 17 July 2015, Tab 4.3: Incidents of violence instigated by members of the Shiromani Akali Dal in Punjab and Haryana, including in Darar (2013-January 2015), Immigration and Refugee Board of Canada, 2 February 2015, IND105060.E, p. 1. 23 Thirunavukkarasu v. Canada (Minister of Employment and Immigration) (1993), [1994] 1 F.C. 589 (Fed. C.A.). 24 Supra note 20. 25 Ibid, p. 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB6-02287 2