MB8-08280

RAD File No. / No de dossier de la SAR : MB8-08280 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 / heard at Montréal, Quebec Appel instruit / entendu à Date of decision October 6, 2020 Date de la décision Panel Marie-Lyne Thibault Tribunal Counsel for the person who is the subject of the appeal Lakhwinder Sandhu Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX, is a citizen of India. [2] Should he return to India, he fears for his life at the hands of the political representative (MLA) for the district of Jalandhar, members of the same political party as that MLA, Punjab police officers who are under the MLA's influence and Sikh extremists, all because he preaches for Dera Sacha Sauda (DSS). [3] He is appealing the Refugee Protection Division (RPD) decision rejecting his refugee protection claim. He argues that the RPD erred in its analysis of an internal flight alternative (IFA) in New Delhi. [4] For the reasons that follow, the Refugee Appeal Division (RAD) concludes that the RPD erred in its analysis of the IFA. However, after conducting its own analysis, the RPD concludes that there is an IFA available to the appellant in New Delhi. [5] The appeal is dismissed. ANALYSIS [6] The RAD applied the correctness standard.1 The RAD conducted an independent analysis of the evidence, which included listening to the recording of the hearing. [7] The appellant argues that the RPD erred in disregarding the evidence and in concluding that he is not at risk of being persecuted in New Delhi. The Refugee Appeal Division concludes that there is an internal flight alternative available for the appellant in New Delhi [8] The test to determine whether there is an IFA is two pronged. For the first prong, the refugee protection claimant must establish a serious possibility of persecution or, on a balance of probabilities, a risk within the meaning of subsection 97(1) of the Immigration and Refugee Protection Act (IRPA) in the proposed IFAs. For the second prong, the refugee protection claimant must demonstrate that it would be objectively unreasonable to seek refuge in the proposed IFAs. The appellant did not demonstrate a prospective risk in New Delhi [9] The RAD concludes that the RPD erred in its analysis of the prospective risk in New Delhi. The RAD notes that the RPD unduly relied on the jurisprudential guide with regard to IFAs in India,2 which has since been revoked. Nevertheless, having conducted its own analysis, the RAD concludes that the appellant would not be subjected to a serious possibility of persecution in New Delhi or, on a balance of probabilities, a risk within the meaning of paragraph 97(1) of the IRPA. [10] The RAD accepts the appellant's argument that the RPD could not rely on the fact that he lived in New Delhi for XXXX months without any issues to then conclude that there is no risk of him being found there and persecuted. Although it is presumed that the RPD considered all of the evidence, it should have addressed in its reasons the fact that the appellant was living in hiding while he was in New Delhi. To conclude that there is an IFA available, the appellant must be able to live there freely, not in hiding. [11] The appellant argues that in concluding that all of the incidents had taken place in Jalandhar, the RPD disregarded the evidence that DSS practitioners had been arrested in New Delhi. He adds that the RPD, later in its reasons, contradicted itself because it states that arrests took place in New Delhi. [12] The RAD disagrees with those arguments. In its reasons, when the RPD states that all of the incidents took place in Jalandhar, it is referring to the appellant's allegations of the incidents he personally experienced.3 That conclusion is in line with the appellant's statements4 about the issues he experienced in Punjab as a DSS practitioner. As for the arrests in New Delhi, they were arrests of DSS practitioners in the wake of violent protests that took place after the appellant left India.5 The RPD did not disregard that evidence. It addressed it later on in its reasons when discussing the treatment of DSS practitioners in New Delhi.6 This is not a contradictory conclusion because the appellant does not allege to have had issues in New Delhi. [13] The appellant also argues that the RPD's reasoning is contradictory. He argues that since the RPD acknowledged that DSS practitioners in New Delhi were arrested after being involved in acts of violence, it is therefore established that the police will now target them. [14] The RAD disagrees with those arguments. In the RAD's opinion, that is speculation. The documentary evidence7 presented by the appellant states that a number of people were arrested in Punjab and Haryana states in the wake of violent protests after DSS's spiritual leader was convicted of rape. A young man allegedly died in detention under suspicious circumstances, possibly after having been tortured.8 According to the same documentary evidence, those incidents, which extended as far as Delhi, spanned a period of approximately one week in August 2017. The documentary evidence9 does not lead to the conclusion that DSS practitioners have been targeted by the authorities in Delhi since that time. [15] Furthermore, other than the arrests in August 2017 in the context of violent protests, the documentary evidence10 makes no mention of the issues DSS practitioners in New Delhi may have encountered. [16] As for the treatment of DSS practitioners in general, according to a Response to Information Request from 2012,11 in Punjab, political parties generally hope for support from the DSS, and the police, when there are incidents with Sikh extremists, have taken measures to protect DSS members. Another document states that in Punjab, militants who protest against DSS practitioners are "subject to monitoring and in some cases, detention and torture."12 Contrary to the appellant's allegations,13 there is nothing in the documentary evidence14 that leads to the conclusion that DSS practitioners are allegedly persecuted or systematically targeted by the authorities in India. The RAD accepts that certain DSS practitioners, such as the appellant, may have been targeted. However, those incidents, according to the evidence, are the exception and not the rule. The RAD concludes that the appellant did not establish that there is more than a mere possibility that he would be targeted because of his profile as a DSS practitioner. [17] As for the ablity of the MLA, Punjab police and Sikh extremists from Punjab to find the appellant in Delhi, the RAD is of the opinion that the jurisprudential guide on IFAs in India had undue influence on the RPD's analysis.15 In its reasons, the RPD states that it would adopt the analysis and conclusion in the guide with respect to Punjab and India.16 The RAD notes that the RPD specifically relied on the conclusions in this guide to the effect that the various police forces in India are not interconnected and thus concluded that the appellant's agents of persecution would not have the ability to find him in Delhi. As a result, the RAD has conducted its own analysis of the IFA. [18] The RAD considered the ability, interest and motivation of the MLA, Punjab police and Skih extremists from Punjab to find the appellant in Delhi. [19] It is worth noting that the appellant is not challenging the RPD's conclusions that they would not have the interest in or ability to find him in New Delhi. [20] At the RPD hearing, the appellant stated that the MLA would have an interest in finding him in New Delhi because on XXXX XXXX XXXX 2017, during the time when the protests were taking place, the police went to the appellant's home and arrested all of his family members.17 The police alleged that the appellant was responsible for the protests.18 His father has since disappeared.19 The other members of his family were released approximately XXXX or XXXX days later, after a bribe was paid. Since then, they have been living in hiding in another city in Punjab. [21] Three years have passed since the last incidents targeting the appellant's family in India. In the RAD's opinion, the appellant did not demonstrate that the MLA from his region, the Punjab police and the Sikh extremists from Punjab would still have an interest and the motivation to find him, nor that they would be motivated enough to want to find him in New Delhi. [22] Should they have the motivation to find him in New Delhi, the RAD concludes that the appellant did not demonstrate that they would have the ability to find him. The RAD notes that the renter verification system is mandatory in all states, including New Delhi.20 That being said, in the RAD's opinion, the fact that the principal appellant was able to navigate the rigorous controls at an Indian airport21 suggests that he is not in the police database. Consequently, even if his identity was verified in the police database through the renter verification system, the appellant did not demonstrate that his name appears there and, as a result, that his agents of persecution could find out where he is. Furthermore, New Delhi is approximately 400 kilometres from Jalandhar22 and more than 16 million people live there.23 Consequently, the RAD concludes that the appellant did not demonstrate that the MLA, the Punjab police and Sikh extremists have the ability to find him in New Delhi. [23] Considering the foregoing, the RAD concludes that the appellant did not establish a serious possibility of persecution or, on a balance of probabilities, that he would be subjected to a risk within the meaning of subsection 97(1) in New Delhi. The Refugee Appeal Division concludes that it is not unreasonable for the appellant to seek refuge in New Delhi [24] The appellant is not challenging the RPD's conclusion that he did not demonstrate that it would be unreasonable for him to seek refuge in New Delhi. [25] Nevertheless, since the RPD relied on the jurisprudential guide with respect to the IFA in India,24 which has since been revoked, the RAD conducted its own analysis on the reasonableness of the IFA. [26] At the RPD hearing, the appellant stated that he could not live in New Delhi since he does not speak Hindi, has little education, does not know how to farm and does not know anyone who could help him. [27] According to the documentary evidence,25 Punjabi is spoken in Delhi. Although the appellant has little education and no network in New Delhi, he is a young man (36 years old) who would have the ability to do manual labour and therefore take care of himself in New Delhi. [28] Consequently, the RAD concludes that the appellant did not demonstrate that it would be unreasonable for him to seek refuge in New Delhi. [29] Considering the foregoing, the RAD concludes that the RPD's conclusions are erroneous. However, the RPD's final determination is correct. The appellant did not establish that there is a serious possibility of persecution on one of the five Convention grounds, nor did he establish, on a balance of probabilities, that should he return to India, he would be personally subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment under subsection 97(1) of the IRPA, in New Delhi. DETERMINATION [30] The RAD dismisses the appeal. The RAD confirms the impugned decision that XXXX XXXX is not a Convention refugee or a person in need of protection. (signed) Marie-Lyne Thibault Marie-Lyne Thibault October 6, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Refugee Appeal Division (RAD) Jurisprudential Guide MB6-01059/60 (revoked). 3 SPR-1, Refugee Protection Division (RPD) record, Record of a decision, p. 5. 4 SPR-1, RPD record, Basis of Claim Form (BOC Form). 5 SPR-1, RPD record, newspaper articles, pp. 116-123. 6 Supra, footnote 3, Record of a decision, pp. 6-7. 7 Supra, footnote 5, newspaper articles. 8 Ibid, p. 119-121. 9 Supra, footnote 5, newspaper articles; National Documentation Package (NDP) on India, September 14, 2017. 10 Ibid, NDP on India. 11 Ibid, NDP on India, Tab 12.6: Treatment of Dera Sacha Sauda practitioners by political parties, society and government authorities (2009-April 2012). Immigration and Refugee Board of Canada (IRB). May 4, 2012. IND104064.E. 12 Ibid, NDP on India, Tab 12.4: Treatment of Sikhs in Punjab (2013-April 2015). IRB. May 12, 2015. IND105132.E. p. 2. 13 Supra, footnote 4, BOC Form, p. 22, para. 16. 14 Supra, footnote 5, newspaper articles; NDP on India, September 14, 2017. 15 Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration), 2019 FC 1126. 16 SPR-1, RPD record, Record of a decision under the IRPA, p. 6. 17 Recording of RPD hearing held on November 17, 2017, at approximately 00:42:40. 18 Supra, footnote 4, BOC Form, p. 23, paras. 17-18. 19 Supra, footnote 4, BOC Form, p. 23, paras. 17-18. 20 NDP on India, September 14, 2017, Tab 14.8: Requirements and procedures for tenant registration, including implementation, particularly in Delhi, Mumbai, Kolkata and Bangalore (2009-April 2013). IRB. May 30, 2013. IND104372.E. 21 NDP on India, September 14, 2017, Tab 14.9: Information on airport security screening procedures for passengers departing on international flights. IRB. April 28, 2017. IND105780.E. 22 NDP on India, September 14, 2017, Tab 1.1:? India. General Logistics and Planning Map. United Nations. Joint Logistics Centre. July 31, 2007. 23 NDP on India, September 14, 2017, Tab 1.12: ?Union indienne. L'aménagement linguistique dans le monde [Indian union. Language management in the world]. Jacques Leclerc. November 27, 2016., p. 3. 24 Supra, footnote 2, Jurisprudential Guide MB6-01059/60. 25 Supra, footnote 23, Tab 1.12, p. 4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-08280 RAD.25.02 (January 2020) Disponible en français 8 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.25.02 (January 2020) Disponible en français