MB7-07490

RAD File / Dossier de la SAR : MB7-07490 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 Montreal, QC Appel instruit / entendu à Date of decision June 26, 2019 Date de la décision Panel Max Wolpert 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 FOR DECISION OVERVIEW [1] These are my reasons for rejecting the appeal by Indian citizen XXXX XXXXof the Refugee Protection Division's June 19, 2017, decision that he is not Convention refugee nor a person in need of protection because he has a safe and reasonable internal flight alternative in India. Background [2] Mr. XXXXallegations were accurately summarised by the RPD member:1 The claimant is a priest in India. He has travelled to and from Canada to work in XXXXon two previous occasions. He comes from a farming family. The claimant used to live in a family compound of XXXXacres. The housing arrangement is composed of two houses divided by a wall - currently his brother and father live on one side of the wall, and the claimant's wife and children live on the other side. The claimant alleges that his problem started in XXXX2015. He states that his brother and father are under the assumption that he is making a lot of money in Canada and they think that he should be sharing more of the money with them. This has caused an argument within the family and the claimant's father and brother now refuse to give him any profits from the land or to share the land with him. He was expelled from the family home. This has caused hardship for his wife and children. The claimant states that his brother and father insult his wife and children. The claimant states that his brother has powerful links within the political party in power - the Bharatiya Janata Party (BJP) [2] - which has links to the police. The claimant tried to resolve this matter through the village Panchayat, but they declined to intervene. The claimant moved to New Delhi to work in a XXXX there. The claimant alleges that his brother tried to have him framed by sending people to pose as travellers to the XXXXand then sending the police from New Delhi and Uttar Pradesh in, to allegedly catch the claimant harbouring militants. The claimant was arrested and beaten by police. The claimant saw his brother hiding at the scene behind a police car. The XXXXcommittee had the claimant released. The claimant was called back to the police station in XXXX2016 and XXXX2016 to identify suspects. The claimant saw his brother entering the police station as he was leaving. Fearing a new problem or conspiracy, the claimant moved to a friend's house in another city and applied for an opportunity to work at a XXXXin Canada. He came to Canada on XXXX XXXX, 2017, and sought help at the XXXX. He was advised to apply for refugee protection in Montreal. [3] Mr. XXXX alleged that his brother wants to kill him and will go to great lengths to cause him harm. His wife's affidavit relates that the brother openly tells villagers that he wants to 'finish' Mr. XXXX because he wants to keep the latter's share of the farm.3 [4] The RPD member found credible that Mr. XXXX brother and father feel entitled to a share of the claimant's earnings from his XXXX work in Canada, that this has caused feelings of jealousy and that Mr. XXXX brother feels entitled to all XXXX acres of the family farm.4 [5] The member also accepted that Mr. XXXX is involved in a dispute with his brother over land and money related to the family farm.5 [6] The RPD found, however, that Mr. XXXX evidence was that the village Panchayat said his father, who lives and sides with the brother, can legally arrange the succession to the estate so that Mr. XXXX inherits no land.6 [7] The RPD also found that Mr. XXXX would have a safe and reasonable internal flight alternative (IFA) in Calcutta (now officially known as Kolkata) or Mumbai. Unlike most Indian IFA-based rejections, however, the RPD's reasoning was not based on simply finding that the alleged agent of persecution would not be able to find the appellant in the proposed IFAs. Rather, the member found that, were Mr. XXXX wife and children, and in particular his son who would ordinarily inherit his father's share of any land, to leave the family compound permanently to live in Calcutta or Mumbai, both several days driving distance away, Mr. XXXX could live in peace there with them.7 In other words, it was not a mere question of hiding from the brother; rather it would be ceding control of the land to him that would make the difference between risk of harm or safety. [8] Appeal counsel submitted arguments, based on the contents of the India National Documentation Package at the time of the RPD hearing, regarding the risk that Mr. XXXX new location, were he to resettle in Mumbai or Calcutta, would come to the attention of the Punjab police in his village, and then to his brother, due to the tenant verification systems in those cities.8 [9] Since the RPD hearing, there have been several updates to the IRB's India National Documentation Package, most recently on May 31, 2019. These contain documents indicating that the formerly low degree of telecommunication and online connectivity among India's police forces, which are almost all state, rather than federally, controlled, has increased. They also contain evidence that there is increasing enforcement of requirements that landlords present to local police stations identity documents of prospective tenants for police verification of their backgrounds, which verifications it is commonly argued would bring an appellant's new whereabouts to the attention of the police back in his home village (albeit that they also contain evidence that some urban police forces do not follow up on these applications). [10] Were these issues to be determinative, I would have notified appeal counsel and invited further submissions on these new documents. They are not, however, determinative in my decision. The determinative matter, instead, is an issue on which many questions were posed by the member and counsel at the RPD hearing, and on which hearing counsel delivered detailed submissions. It was also indicated in the RPD reasons as key to its decision: Can Mr. XXXX and his family take actions, which do not involve violations of their human rights, that would eliminate their risk of persecution or harm, as the case may be, or reduce those risks below the applicable threshold of qualification for protection? That action would involve ceding factual control of the disputed land share to the brother and renouncing, through a legally prepared and registered deed or similar document, any claim to that land. [11] In my opinion. Mr. XXXX can take such actions, and they would have that effect. Doing so, and also moving to Calcutta or Mumbai, would in my view enhance that protective effect and bring the risks to Mr. XXXX and his family further beneath the threshold required for Canada's protection. I will explain why below. ROLE OF THE RAD [12] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. As I find that the RPD had no meaningful advantage in its assessment of the evidence, I have not deferred to it in my analysis of its findings.9 [13] I have read all the documents on file. I have also listened to and closely annotated the audio recording of the RPD hearing. ANALYSIS Section 96 or 97 claim [14] Hearing counsel argued that Mr. XXXX claim fell under both sections 96 (Convention refugee) and 97 (person in need of protection) of IRPA. She submitted that the former was because of imputed political opinion from alleged connection to militants, while the latter flowed from Mr. XXXX alleged fear of his brother over the land dispute. Appeal counsel made no argument on this point. [15] In my opinion, Mr. XXXX had no viable section 96 claim. The evidence did not indicate that the police in India perceived Mr. XXXX, a man with no prior political involvement, as having militant or anti-national opinions. His evidence showed rather that his arrest at the XXXX by the police in Delhi on purported militant-linked grounds was a phony set-up at his brother's behest, corroborated by the brother's accompanying them to the scene. He added that the UP police acted upon his brother's wishes because he gave them money and alcohol.10 Neither Mr. XXXX nor the letter from the XXXX committee11 stated that any bribe was necessary to get police to release him. In addition, he was not detained by the police on either of the two occasions he reported to them after they released him. Further, Mr. XXXX did not use an agent to obtain his Canadian visa or get through airport security when he left India. He was sponsored by a Canadian XXXX with his true identity and passport and left freely and openly under his own name. All this would have been highly unlikely were he perceived by the police as a militant, much less were he to have been charged as such. As the RPD member remarked, correctly to my mind, there was no reason in the evidence for anyone in the police or any other government department to be looking for Mr. XXXX.12 [16] In the result, Mr. XXXX claim is that he faces a risk of death or other grievous harm at his brother's hand or behest because of their property dispute. That falls under section 97. He must thus demonstrate that he would probably be so harmed in the proposed IFAs.13 IFA first prong - Land solution - RPD correct [17] Mr. XXXX testified that his share of the XXXX-acre family farm was XXXX XXXX XXXX acres.14 The RPD member asked Mr. XXXX why, were he to move to a distant place in India and work in a XXXX there, as well as give up his claim to those XXXX XXXX XXXX acres as he had told his brother since XXXX 2015 [albeit under duress], that he was willing to do,15 his brother would have any motivation to come and find him and cause him harm. Mr. XXXX replied that his brother would still do so because, "Nobody trusts anybody when it comes to land." He added that many murders are committed [in India] because of land. He also asserted that once he would attempt to rent accommodation in an IFA city, the tenant verification system and the resultant transmission of his ID particulars to his village [police] would lead to his brother being alerted to his whereabouts, whereupon his brother would try to kill him.16 [18] But what, continued the RPD member, would be the brother's motivation to go after Mr. XXXX were he to give up the land? Mutual lack of trust, explained Mr. XXXX.17 Though he had relinquished his right to the land, he said, tomorrow his son could assert a claim to it18 (apparently describing the situation from his brother's point of view). [19] Could the situation not be resolved, the RPD member later asked, by a legal document in which Mr. XXXX and his son renounce any rights to the land? No, said Mr. XXXX. His brother would not leave him alone. The brother, he explained, called him a snake, who would give birth to another snake (i.e. his son). [20] If Mr. XXXX went back to India, continued the member, contacted the village Sarpanch, and signed a document prepared by a notary stating that he and his son were renouncing any interest in the property, would he be safe? No, I cannot be, replied Mr. XXXX, because [my brother] will not trust me. Today, he explained, there was a BJP government. Were that to change, his brother would think that the appellant would assert his rights to the land anew.19 [21] Finally, the RPD member asked: if you legally renounce your right to the property, how can you then assert it? I am not asking [to do that], replied Mr. XXXX, but this is what his brother is thinking. I told him I will leave the land, he recounted, but his brother said he did not trust him.20 [22] Hearing counsel pointed to articles she filed evincing that there are many land disputes and problems in Punjab, among the several million of which are before the civil courts of India as a whole, in large part because title records are inaccurate, opaque, not well kept and often stored in inaccessible places. She, as did appeal counsel,21 pointed to evidence acknowledged by the RPD that as a result it can take up to 25 or even 30 years to settle such matters.22 This lack of clarity and certainty in titles are reasons, she argued, that Mr. XXXX brother may still go after him even were he to sign over the land. For example, she submitted, the brother would fear Mr. XXXX return to India even were he to sign over his interest in the land, because the brother would know that the disarray in the land titles system could allow Mr. XXXX to try to resuscitate his claim to the family land. It would, however, be entirely within Mr. XXXX power, having resettled far away in Mumbai or Calcutta, to refrain from doing so. Further, a clear, accurate, professionally prepared and properly notarized and registered deed or cessation of interest from Mr. XXXX in favour of his brother, together with the vacation by his family of the property, would, even given the complexities and deficiencies of the Punjab Land Titles system,23 give the brother everything he could ask for. That conclusion is reinforced by the statement in the appellant's wife's affidavit that, "My brother in law wanted to have the control of the land and wanted my husband to leave the land in his favour."24 Leaving the land, both physically and legally, would accomplish that and close the matter. [23] Hearing counsel also referred to documentary evidence that incidents of grave violence and harm arising out of land disputes, usually perpetrated by family and neighbours, were not uncommon25 [albeit the numbers were small as a percentage of the sheer volume of such disputes26]. [24] Appeal counsel submits that, despite the brother knowing that Mr. XXXX was ready to renounce his rights to his XXXX XXXX XXXX acres, the brother continued to threaten and try to frame the appellant.27 He argues that, as the threats continued and nothing is settled in the dispute over the land, there is no basis to conclude that Mr. XXXX and his family would live in peace elsewhere in India.28 Hearing counsel also pointed out that, according to Mr. XXXX evidence, his brother, who accompanied him, had the police hunt Mr. XXXX down in Delhi, though that is a four-hour drive from their village. That, however, was when Mr. XXXX had simply told his brother verbally that he would cede the land to him, but had left his wife and children living on the property (as they still were at the time of the RPD hearing) and had taken no steps to sign legal documents to carry out his undertaking, coerced though it was. That would have left ample motivation for his brother, obsessed with taking over Mr. XXXX share of the property, to search for him and have him seriously mistreated by the police. This motivation would be eliminated by a professionally drafted and properly registered deed transferring Mr. XXXX share of the land to his brother and extinguishing his and his son's claim to it. [25] Hearing counsel also mentioned evidence of the existence in Punjab, as much as elsewhere in India, of a so-called land mafia who misappropriate land. They reportedly have strong connections to corrupt politicians, bureaucrats and police officers, who, for example grab land and sell it through forged documents and impersonation.29 I note, however, that despite the brother's alleged influence over the local Punjab police and his deep desire to have the property, this has not happened with Mr. XXXX land. This also speaks to the adequacy of registered deeds to safeguard property interest in the land in question. Mr. XXXX brother would be aware of that were he to be presented with such a deed to the land. [26] Taking all the above into account, I find that on a balance of probabilities neither Mr. XXXX brother, nor the Punjab police on his behalf or of their own accord, would take steps to have him killed or otherwise gravely harmed if Mr. XXXX resettles in Mumbai or Calcutta, but most importantly if he also cedes his interest in the family land, as he is willing to do, and has his wife and their children vacate the property and join him. [27] Mr. XXXX evidence was that his wife remained in his house on the farm, enduring the enmity of his father and brother, only because he had not wanted to give up the property.30 Since giving up the property would lower his risk below the threshold warranting Canada's protection, and is something he testified he was willing to do, it is reasonable to expect him to have her move out. [28] I thus find that the RPD member was correct in finding that Mr. XXXX would not be subject, on a balance of probabilities, to a risk to his life [or of torture or cruel and unusual treatment] were he to move to Mumbai or Calcutta, at least if he vacates and cedes the disputed property to his brother, and that he should be expected to do so rather than seek Canada's protection. IFA second prong - RPD correct [29] The RPD member also found that it would not be unreasonable or unduly harsh to expect Mr. XXXX to move to Mumbai or Calcutta.31 She noted that he is a trained Sikh religious officer who acknowledged that he could find work in Gurdwaras anywhere in India. Neither hearing counsel nor appeal counsel contested this finding. In my opinion, it was correct. Conclusion [30] The RPD was correct to find that Mr. XXXX could safely and reasonably find sufficient security in the IFAs of Mumbai or Calcutta. DECISION [31] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant XXXX XXXX is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) Max Wolpert Max Wolpert June 26, 2019 Date MW/bq 1 RPD reasons, paragraphs 3 to 5. 2 The BJP is no longer part of the state government of Punjab,the coalition of which it was part having been ousted by the Congress Party in the February 2017 elections for the Punjab legislature. 3 RPD record, page 191, paragraph 17. 4 RPD reasons, paragraph 7. 5 RPD reasons, paragraph 9. 6 RPD record, page 15, paragraph 4; RPD reasons, paragraph 9. 7 RPD reasons, paragraph 15. 8 Appellant's record, pages 10 to 12. 9 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. 10 Audio recording 1:04 to 1:05. 11 RPD record, page 16, paragraph 11 and page 194. 12 Audio recording 0:53 to 0:54. 13 Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1. 14 Audio recording 0:40. 15 Audio recording 0:37 to 0:39. 16 Audio recording 0:51 to 0:53. 17 Audio recording 0:55; also 1:06 to 1:07. 18 Audio recording 0:54 to 0:55. 19 Audio recording 1:09 to 1:10. 20 Audio recording 1:10. 21 Appellant's record, page 9, paragraph 12. 22 RPD record, pages 119 to 126. 23 RPD record, pages 120 to 121. 24 RPD record, page 191, paragraph 11. 25 RPD record, page 124, section 2.5. 26 Ibid. 27 Appellant's record, page 9, paragraph 13. 28 Appellant's record, page 9, paragraph 16. 29 RPD record, page 122. 30 RPD record, page 15, paragraph 4. 31 RPD reasons, paragraph 16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-07490 RAD.25.02 (April 04, 2019) Disponible en français 7 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 (April 04, 2019) Disponible en français