TB8-11670

RAD File / Dossier de la SAR : TB8-11670 TB8-11671 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX(a.k.aXXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision January 16, 2020 Date de la décision Panel Robert Bebbington Tribunal Counsel for the persons who are the subject of the appeal Dov Maierovitz Barrister and Solicitor Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX (Principal Appellant) and XXXX XXXX XXXX (Associate Appellant), citizens of Nepal, appealed a decision of the Refugee Protection Division (RPD), dated April 5, 2018, rejecting their claims for refugee protection. The Appellants have submitted new evidence with the appeal as referred to in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA).1 DETERMINATION [2] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees, nor persons in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. I find the Appellants have not provided sufficient persuasive evidence to establish that they face a serious possibility of persecution or risk to life, risk of cruel or unusual treatment or punishment or danger of torture in Nepal. BACKGROUND [3] The Appellants allege that they face a risk of harm from YCL Maoists in Nepal. Their full allegations are set out in the Basis of Claim (BOC) forms.2 NEW EVIDENCE [4] Subsection 110(4) of the IRPA provides that an appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected3 in the circumstances to have presented, at the time of the rejection. In addition, if the new evidence meets one of the explicit legislative factors in subsection 110(4), then the second step of the analysis is for the Refugee Appeal Division (RAD) to apply the adapted Raza factors endorsed in Singh.4 In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance and newness. [5] The Appellants provided three documents5 as proposed new evidence. The two news media articles post-date the issuing of the RPD decision and they will be admitted as new evidence in this appeal. The third item is a copy of an IRB RIR (NPL105360.E), which is contained in the current record and it is not new evidence in this appeal. ORAL HEARING [6] The RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection 110(3) of the IRPA that raises a serious issue with respect to the credibility of the person who is the subject of the appeal, is central to the decision with respect to the refugee protection claim, and, if accepted, would justify allowing or rejecting the refugee protection claim.6 [7] I find the two news articles are relevant to the appeal in that they do illustrate that there has been some activity by a Maoist faction in the proposed internal flight alternative (IFA) location. I note that the Maoists described in these articles are not directly linked to the YCL, the Maoist group that the Appellants have stated that they have had issues with in the past. Additionally, I note that the articles indicate that this group is associated with CPN(ML) Biplav faction. The group set off a "pressure cooker" type blast outside the Indian Consulate in Biratnagar. The Appellants' concerns in the past are centred around "extortion" and threats from members of the YCL. I find this article does not indicate any participation in extortion activities by this group or any other Maoist faction in in the IFA location. [8] The Appellants submit that these articles confirm that Maoist factions are active in the area. I have considered this submission and note, as much as this illustrates a single incident, the evidence confirms the nature of the activities of this group appears to be associated with terrorist activities attacking the Indian state. I find this does not align with the profile of the Appellants. [9] I further find that the articles confirm the police and other authorities were able to investigate and arrest those involved. This confirms that the state is active, involved and effective at providing protection for residents in the IFA area. [10] I note that, although new evidence has been admitted in this appeal, it must proceed without a hearing. I find the documents provide insufficient persuasive evidence to support the Appellants' allegation that the Maoists are very active in the proposed IFA and that they will cause them to be at risk of persecution or harm. Accordingly, the evidence lacks the materiality to justify either allowing or rejecting the refugee protection claim, and, as such, it does not meet the requirements of subsection 110(6) of IRPA. Each of the requirements in paragraphs 110(6)(a) through (c) have to be met, and in this case, none of the requirement have been met. As such, RAD has no discretion to hold a hearing. ANALYSIS [11] The RPD found that the Appellants have a reasonable IFA in Biratnagar. For the reasons that follow, in this case I am able to confirm the RPD's determination based on the availability of an IFA in Nepal. [12] In assessing an IFA, the RAD must apply a two-pronged test cited in Rasaratnam:7 1) the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or a risk of cruel and unusual treatment or punishment or a danger, believed on substantial grounds to exist, of torture in the IFA. 2) moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claim, for the claimant to seek refuge there. [13] Both prongs must be satisfied to find that the Appellant has an IFA. The burden of proof rests with the Appellant to show that he does not have an IFA. The finding of an IFA must be based on a distinct evaluation of a region, for that purpose taking into account the Appellant's identity. An IFA must be a realistic and attainable option. The Appellant cannot be required to encounter great physical danger or to undergo undue hardship in traveling there or staying there.8 [14] I note that the Appellant does not dispute the RPD's choice of Biratnagar as an IFA location. They submit that the Maoists are present there and hence, they would be at risk due to their past profile of being extorted by the Young Communist League (YCL) faction of the Maoists. Maoists in the IFA [15] The Appellants submit that the new evidence confirms the Maoists are active in the IFA location. I am not persuaded by the argument of the Appellants. I have addressed the new evidence previously and found that the evidence confirms there was a generalized attack (no personal targeting) by the break-away Maoist faction (the CPN-Biplav) on the Indian Consulate in the IFA city. There is no persuasive evidence of any additional activity in the area by this group. The documentary evidence confirms there are reports of crime in the area, as illustrated in the new evidence. Yet, the evidence indicates that overall security in the district has been improving, and police have increased their investigations into cases such as extortion over previous years.9 Further to this the evidence states, "Threats by Maoists are just one of several types of threats, and as such do not pose significant law and order problems as they did in the past [prior to 2006]". The researcher said that "the forces of the state remain present everywhere" and "are likely to be able to address such incidents, given the absence of formal political support [that] such [Maoist] factions have"10 [16] The evidence further notes: Biplav and Baidya factions have "mainly target[ed] the business community and some NGOs, mainly outside of Kathmandu in the Terai area ... and in some districts in the Western region of Nepal" for extortion.11 Whereas the proposed IFA location is some 400 km east (10 hours travel by vehicle) from Kathmandu. [17] I have further reviewed the documentary evidence in the record and find that there are a series of episodes of extortion that occurred in 2015. None of these events took place in any community close to the proposed IFA. [18] My review of the evidence in the record does not establish that the YCL have a significant presence in Biratnagar, nor that they are effectively networked with the YCL in other localities, nor that such politically motivated attacks and threats are ongoing problems in Biratnagar. The documentary evidence contains reports that indicate there has been a decrease in the incidents of extortion from the YCL, as well as Maoist violence against other political parties throughout the country.12 [19] I find there is insufficient persuasive evidence to support that the Appellants would face a serious possibility of being persecuted or harmed from any Maoist faction in the proposed IFA in Biratnagar. Risk Profile as a Nepali Congress Supporter [20] The Appellant submits that his past profile as a dedicated supporter of the Nepali Congress (NC) party and his refusal to co-operate with the Maoists would make him a target in the IFA. I am not persuaded by the argument of the Appellants. [21] I have reviewed the audio recording and the record and find that the Principal Appellant has simply held a membership card for the NC party for a number of years. He was not an active member of the NC while he lived in Nepal, only obtaining a membership card in 2009, after he left the country and worked in Dubai. The record confirms he had little active involvement in the party other than maintaining his party membership. He provided no evidence or testimony of being an organizer of any type of group or running for political office. The documentary evidence confirms, "targets for extortion are those with money, and targets are not identified as NC or monarchist"13. [22] I find the Principal Appellant's profile as a basic card-carrying NC member does not give rise to a profile that would lead him to be recognized or sought in the IFA location. The Appellants have not demonstrated significant or elevated political profiles, which could motivate the agents of persecution to pursue them across such distances. I find the Appellants' argument must fail. Tracked and Targeted [23] The Appellants argue that they would be tracked and targeted due to their past refusal to cooperate with the Maoists. I note that the Appellants previous problems with the YCL took place in the Nawalparasi district and Kathmandu, located in the central portion of Nepal. They confirmed longstanding associations and family members in those locations. They do not allege having any such existing relationships in Biratnagar, a city well distant in the eastern part of Nepal. Additionally, the Appellants have been absent from Nepal for a number of years. In order to be targeted in this region the agents of persecution would be required to: 1) Learn the Appellants have returned to Nepal; 2) Learn the Appellants have relocated to Biratnagar; and, 3) Determine the whereabouts of the Appellants in Biratnagar. [24] I have considered the documentary evidence and whether it demonstrates the strength of the connections between regions within the larger Maoist network. The documentary evidence on the record includes both the Board's National Documentation Package (NDP) and the Appellants' documentary evidence. The Board's objective evidence makes a statement that the Young Communist League (YCL) has a "nationwide network"14, but beyond that, the detailed information in this document addressing the actions of the YCL towards those associated with opposing political views, provides no additional information about the ability of various Maoist factions to communicate and share information throughout the country. [25] The Maoists in Nepal are described as a series of groups with various fragments or splinter offshoots. It states, "some of these groups are part of the government, while others are opposed to the government and are engaged in boycotts and violent activities".15 Many of these groups may have a youth branch (such as the YCL). The documentary evidence notes: "There are a number of Maoist factions who have rejected accommodation with the elected government and continue political activity beyond the mainstream Maoist party, elements of which may be involved in extortion." The evidence carries on to note: "that instances of kidnapping and extortion by Maoist groups "are increasingly rare occurrences from a political party perspective" and are "not common any longer"... The same source indicated that "organized human rights violations/abuses are not taking place in Nepal due to the Maoist party," although there may be involvement in some criminal activities by "former, frustrated combatants in certain parts of Nepal" 16 [26] Many of these splinter groups have broken away from the central "Maoist" identity and values. The documentary evidence does not make any mention of the ability of the numerous Maoist factions to communicate with each other or whether they would have any interest in sharing information due to opposing political viewpoints. [27] The review of the documentary evidence finds little evidence to demonstrate the strength of the connections between regions within the large number of Maoist groups and if/how the different regions coordinate and share information including in circumstances such as that of the Appellants. [28] I additionally note that much of Nepal's communication infrastructure was destroyed in the 2015 earthquake. The country's telephone communication system is described as "poor", its mobile- cellular network is described as "fair" and internet penetration is 17.6 percent of the population.17 The documentary evidence confirms that communication is limited. I find the singular statement in the documentary evidence in reference to the YCL, as well as the Appellants' statements about the Maoist "network" are vague and non-specific and they are not supported by any additional evidence before the RAD. There is insufficient persuasive evidence that the Maoist group feared by the Appellants, including any off-shoots, youth wing, or factions, have the ability and reach throughout Nepal to locate and identify them should they to relocate to Biratnagar. [29] Having considered all of the evidence I find the Appellants have not established, on a balance of probabilities, that they face a serious possibility of being persecuted or harmed in Biratnagar. Second Prong [30] The documentary evidence does indicate that there can be problems faced by some internally displaced persons and those relocating within Nepal. There are reports that difficulties exist in travelling within the country, finding residence, being without shelter, difficulty in finding employment, and problems with the class system in Nepal. The Appellants have not alleged that they would face such problems, were they to relocate. [31] Biratnagar is a major urban centre and an administrative capital. There is no evidence to establish that the claimants would not be able to physically travel there. With the exception of refugees in Nepal, the laws in Nepal provide for freedom of internal movement, foreign travel, emigration, and repatriation.18 [32] The Appellants are educated individuals, with the male Appellant having a university education culminating in a bachelor's degree, the female Appellant having 12 years of education. The male Appellant worked as a XXXX for six years prior to leaving Nepal, whereas the female Appellant worked in XXXX. They have demonstrated an ability to travel and resettle without problems in Dubai, Alberta, and Ontario. The Principal Appellant travelled to Dubai in the UAE, where he worked and resided from 2006 until 2014. He was joined by his wife there from 2011 until 2014. [33] Both Appellants speak Nepali, the official language, as well as English and Hindi. The evidence indicates that they are resourceful individuals able to find jobs and places to live in new locations. They have multiple family members in Nepal. Given the Appellants' personal circumstances, it would not be unreasonable to expect that they could relocate and establish themselves in Biratnagar without significant problems should they return to Nepal. [34] The RAD finds, after its own review and assessment of the evidence in the record, that it is reasonable in all of the particular circumstances of the Appellants' situation that they could return to Nepal and relocate to Biratnagar. [35] The Appellants submitted no other evidence to indicate that it would be a hardship to relocate to Biratnagar. The test for reasonableness is whether it would be unduly harsh to expect the Appellants to move to another, less hostile part of the country before seeking status abroad as per Thirunavukkarasu.19 This requires an evaluation of the conditions in the IFA, as well as the Appellants or similarly situated persons. Thirunavukkarasu sets a very high threshold for what makes an IFA unreasonable in all the circumstances. The hardship associated with dislocation and relocation is not the kind of undue hardship that renders an IFA unreasonable.20 However, it is not enough for the Appellant to say that he or she does not like the weather there, or that he or she has no friends or relatives there, or that he or she may not be able to find suitable work. [36] The RAD finds, on a balance of probabilities, that there are no serious social, economic or other barriers to the Appellants relocating to Biratnagar. The RAD agrees with the findings of the RPD and finds that it would not be unreasonable, in all the circumstances, including those particular to the Appellants, for them to seek refuge there. [37] For all of the reasons above, the RAD finds, on a balance of probabilities, that the Appellants have an accessible and viable IFA in Nepal. CONCLUSION [38] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees, nor persons in need of protection, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "Robert Bebbington" Robert Bebbington January 16, 2020 Date 1 Subsection 110(4), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 2 Exhibit RPD-1, RPD Record, Exhibits 2 and 3, pp.11- 44. 3 Subsection 110(4), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 4 Raza, Syed Masood v. Minister of Citizenship and Immigration (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, cited in Minister of Citizenship and Immigration v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 64. 5 Exhibit P-2, Appellants' Record, at pp.11-13. 6 Subsection 110(6), Immigration and Refugee Protection Act, (S.C. 2001. C. 27). 7 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minster of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), p. 710. 8 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.), pp. 596-599. 9 Exhibit RPD-1, RPD Record, Exhibit 4, National Documentation Package, Nepal, 31 March 2017, Item 7.2: Snapshots of Local Security and Justice Perceptions in Selected Districts of Nepal: District Assessment Findings. Forum for Women, Law and Development; Informal Sector Service Center; Institute of Human Rights Communications Nepal; International Alert; National Business Initiative; Saferworld. Ojaswi Shah; Charlotte Onslow. March 2013. 10 Exhibit RPD-1, RPD Record, Exhibit 4, National Documentation Package, Nepal, 31 March 2017, tab 4.7: Instances of kidnapping and extortion by Maoist groups and affiliated student groups, including targeting of the Nepal Congress (NC) party and pro-monarchists; instances of land capture by Maoist groups; availability and effectiveness of... Immigration and Refugee Board of Canada. 26 November 2015. NPL105360.E. 11 Ibid. 12 Exhibit RPD-1, RPD Record, Exhibit 4, National Documentation Package, Nepal, 31 March 2017, tab 4.6: NPL104890.E, Immigration and Refugee Board of Canada. 20 June 2014 and Item 4.7, NPL105360.E, Immigration and Refugee Board of Canada. 26 November 2015.. 13 Exhibit RPD-1, RPD Record, National Documentation Package, Nepal, 31 March 2017, Item 4.7, NPL105360.E: Immigration and Refugee Board of Canada. 26 November 2015.. 14 Exhibit RPD-1, RPD Record, exhibit 4, NDP for Nepal (31 March 2017), Item 4.6, RIR NPL105360.E, Immigration and Refugee Board of Canada, 26 November 2015. 15 Ibid., Item 4.8, RIR NPL105569.E, Immigration and Refugee Board of Canada: 8 August 2016. 16 Ibid., Item 4.7. 17 Ibid., Item 1.3: Nepal. The World Factbook. United States. Central Intelligence Agency. 12 January 2017. 18 Ibid., Item 2.1: Nepal. Country Reports on Human Rights Practices for 2016. United States. Department of State. 3 March 2017 19 Thirunavukkarasu, supra, footnote 17. 20 M.C.I. v. Ranganathan, Rohini (F.C.A., no. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. Reported: Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-11670 TB8-11671 RAD.25.02 (April 04, 2019) Disponible en français 2 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