VC0-00159

RAD File / Dossier de la SAR : VC0-00159 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 Ottawa, ON Appel instruit / entendu à Date of decision December 16, 2020 Date de la décision Panel John Helis Tribunal Counsel for the person who is the subject of the appeal Ghulam Murtaza 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, a citizen of India, alleges that he fears supporters of the Indian National Congress because he actively supported a different political party. The Refugee Protection Division (RPD) denied his claim after finding that he has viable internal flight alternatives (IFA) in India. The Appellant appeals to the Refugee Appeal Division (RAD), and requests that the RPD's decision be set aside, and substituted with a determination that he is a Convention refugee or a person in need of protection.1 DETERMINATION [2] The appeal is dismissed. I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.2 SUMMARY OF THE FACTS [3] The Appellant is a 29-year-old man from India who purportedly fears persecution because he supported a political party in the State of Punjab known as the Shiromani Akali Dal (SAD). His father was a long-time supporter of the SAD party and had managed to engage numerous followers and voters in his village and surrounding areas in Punjab. The Appellant began his involvement in the party in 2014 by attending meetings and rallies, and he worked on the local candidate's campaign in the 2017 election to the Punjab Legislative Assembly. [4] The Appellant's problems allegedly began after a man from a neighbouring village named XXXX XXXX, who was a "notorious smuggler and goon," tried to convince his father to join the Indian National Congress. When the Appellant's father refused, he was threatened with serious consequences unless he stopped his election activities in support of SAD's local candidate for the Punjab Legislative Assembly. The Appellant believes that XXXX XXXX was working on the instructions on the local candidate for the Congress Party. The Congress Party won the 2017 elections and formed the government in Punjab State. The local candidate from the SAD party which the Appellant supported lost his election bid to the candidate from the Congress Party. [5] XXXX XXXX allegedly began causing the Appellant and his father problems after the election. The Appellant believes that XXXX XXXX sent people to damage XXXX XXXX which his father planted on a road running through his family's agricultural land. On XXXX XXXX, 2017, several people came armed with farm equipment and a revolver and fired a shot over his father's head. The Appellant was out of town at the time, but his father and uncle were attacked and injured in the incident. [6] The Appellant and his father reported the incident to the police, but the police refused to file a First Information Report (FIR) against the assailants. Influential members of the SAD party that attempted to help the Appellant and his father were also unable to convince the police to register a FIR. The Appellant's father eventually obtained a court order requiring the police to investigate the incident, but the police only noted it in their daily diary and took no further action. [7] The Appellant allegedly experienced an incident on XXXX XXXX, 2017, while he was driving home to his village from the city of Amritsar. XXXX XXXX and several other men were waiting for him at a railway crossing and shot at his car as he drove past them. The Appellant escaped unharmed but decided to relocate and live with his uncle in Amritsar after the incident. [8] XXXX XXXX and another villager involved in the XXXX XXXX XXXX 2017, incident continued to harass and threaten the Appellant's family whenever they passed by their house, and even fired warning shots in the air on two occasions. XXXX XXXX also shot at the Appellant's family home while the Appellant was visiting his parents on XXXX XXXX, 2018. The Appellant's father called the police, but police officers did not attend the scene. He attempted to file a FIR the next morning, but the police refused. [9] The Appellant obtained a Canadian visa on XXXX XXXX, 2018, and left India on XXXX XXXX, 2018. He filed his claim for refugee protection on February 13, 2019. Since filing his claim, the Appellant alleges that he learned that the agents of harm filed a FIR against him on XXXX XXXX, 2017, in which they claim that he instigated the incident on XXXX XXXX, 2017. THE RPD DECISION [10] After applying the two-part test from Rasaratnam, the RPD held that the Appellant has viable IFA options in Delhi and Mumbai. On that basis, the RPD concluded that the Appellant was neither a Convention refugee nor a person in need of protection. THE ISSUES [11] The determinative issue in this appeal is the viability of IFAs in Delhi and Mumbai. [12] The Appellant has not submitted new evidence and is not requesting an oral hearing before the RAD. STANDARD OF REVIEW [13] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Huruglica.3 This requires an independent assessment of the refugee claim to determine whether the RPD was correct in its findings and determinations.4 While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case. ANALYSIS [14] After considering the Appellant's arguments and conducting an independent assessment of the entire record, which includes listening to the recording of the hearing before the RPD, I agree with the RPD's determination that the Appellant has viable IFAs in Delhi and Mumbai. [15] Refugee claimants are expected to seek protection in another part of their own country, if it is available, before they seek refuge in Canada.5 The notion of an IFA is inherent in the definition of a Convention refugee because refugee protection is a form of surrogate protection.6 Accordingly, the Appellant bears the onus of demonstrating that there is a serious possibility of persecution throughout the country, including the area identified as an IFA.7 [16] The analysis for assessing an IFA has two parts according to the Federal Court in Rasaratnam.8 I must first determine whether there is a serious possibility that the Appellant will be persecuted, or whether he will face, on a balance of probabilities, a danger of torture, a risk to his life, or cruel and unusual treatment or punishment in the proposed IFAs. Secondly, I must also be satisfied, after considering the Appellant's individual circumstances and the conditions in the proposed IFAs, that it would not be unreasonable to seek refuge in these locations. An IFA will only be viable if both criteria are met.9 There is no serious possibility of persecution or risk of harm in Delhi and Mumbai [17] The Appellant's problem concerns state-level politics in his village in Punjab, and the evidence does not establish that the agents of harm have the motivation to pursue him in other parts of India such as Delhi and Mumbai, as the proposed IFA locations. [18] The Appellant believes that Congress Party supporters targeted him after the Congress party candidate won the election in his village because they considered him a future political threat. According to his testimony, politics in India is a family affair whereby children often take on their parents' political role. His counsel described it in the following manner in closing submissions: "[s]o it goes -- political dynasty plays a very important role, and his political opponents believe that he is, since he is the only son, in his local - at least his local district he is the future of the politics, so they don't want him to be there one way or another." [19] Given the localized nature of his family's involvement in state-level politics in his village, however, the evidence does not establish that the agents of harm would be motivated to pursue the Appellant in either Delhi or Mumbai. According to the Basis of Claim form (BOC), his father was a long-time political organizer for the SAD party in their "village and surrounding areas." This was also the type of role that the Appellant pursued within the party when he began working with his father in 2014, and when he helped the local SAD candidate's bid in the 2017 election. While the Appellant submits that "the main goal" of the agents of harm "is to eliminate him as they see him as a rising political star and a threat to their own seats in legislature," he would be far removed from state-level politics in his village in Punjab in either Delhi or Mumbai which are located in other states. [20] I agree with the RPD that the agents of harm did not display a motivation to pursue him when he relocated to his uncle's house in Amritsar in XXXX 2017, despite his obvious links to that city and its close proximity to his village. According to his testimony, his village is only located XXXX kilometres from the city of Amritsar, and he used to make the commute daily because he XXXX XXXX XXXX XXXX and visited his friends. The RPD correctly observed that "while the claimant believes he saw people following him outside his uncle's house, the only incident since moving in with his uncle occurred when he returned to his family's home. The claimant's family remains in the village today." The Appellant has not challenged this finding in his memorandum, which is central to the question of whether the agents of harm have the motivation to pursue him outside of his village. [21] The focus of the Appellant's submission to the RAD is on the potential means available to the agents of harm to locate him in either Delhi or Mumbai. The Appellant submits that the agent of harm may have four possible means of locating him: XXXX XXXX is a smuggler and goon with underground connections; a FIR was filed against him and the agents of harm may use the corruption of the Punjab Police to their benefit by having them to search for him throughout India with the FIR; the agents of harm may discover his location through his public performances as a XXXX XXXX; members of the Sikh / Punjabi communities in the IFA locations may reveal his locations to the agents of harm. While these methods speak to the possible means available to the agents of harm to locate the Appellant, they do not establish that they have the motivation to pursue the Appellant outside of his village and Punjab state. [22] Lastly, while not expressly argued on appeal, I am not satisfied that the FIR that was allegedly registered against the Appellant demonstrates that the agents of harm have the motivation to pursue him outside of his village. The evidence the National Documentation Package (NDP), notes that a FIR is the first document prepared by the police when they receive a complaint about the alleged commission of a cognizable offence in which the information from the complainant is recorded "in an orderly sequence."10 While the Appellant believes that the FIR had been "registered in the court system," there is no indication in the NDP that FIRs are registered in the courts in this fashion. Instead, the purpose of a FIR is that "only after the FIR is registered in the police station that the police can start the investigation of the case."11 Since the FIR was filed with the Punjab Police on XXXX XXXX, 2017 - the day after the incident at his parent's home, it represents a continuation of his localized problem with the agents of harm in his village, and does not demonstrate their motivation to pursue him throughout India. [23] For the reasons outlined, above, I am not satisfied, on a balance of probabilities, that the agents of harm have the motivation to pursue the Appellant in either Delhi or Mumbai. There can only be a serious possibility of persecution if the agents of harm have both the "means and the motivation" to pursue and locate the Appellant.12 [24] Accordingly, I am satisfied that the first part of the Rasaratnam test has been met based upon my own independent review of the record. The Appellant has not shown that he faces either a serious possibility of persecution, nor, on a balance of probabilities, a danger of torture, a risk to his life, cruel and unusual treatment or punishment in Delhi and Mumbai. It is reasonable for the Appellant to relocate to Delhi or Mumbai [25] I do not accept the Appellant's arguments that the RPD failed to properly apply the second part of the IFA analysis, or that the RPD member did not consider that he has never lived in either Delhi or Mumbai, has no family or friends there, because he is a young and single man who eventually will get married, has limited education and work experience, or the fact that "the main goal of his political opponents is to eliminate him as they see him as a rising political star and a threat to their own seats in the legislature." [26] The RPD considered relevant factors which inform the analysis of whether the proposed IFA locations are reasonable in the Appellant's specific circumstances, including his language skills, his work experience and ability to secure employment, and the availability of housing, healthcare, education, and places of worship for Sikhs. The Appellant completed high school and has experience in agriculture, performing in a band, and working in the retail sector. The RPD also correctly considered the objective evidence in the NDP which establishes that Sikhs in India are economically and socially integrated, have the freedom to practice their religion, and can rely on local gurdwaras to access housing and other services.13 I have not identified any errors in the RPD's analysis based on my independent assessment, and find that its determination is correct. [27] The Appellant also argues that the RPD failed to consider factors such as the security situation and crime rate in the proposed IFA locations, but has not pointed to any evidence in the NDP or in his particular circumstances that it would make Delhi and Mumbai unreasonable cities because of these factors. The United States Department of State assesses both Delhi and Mumbai as being at a medium level of threat for crime, and that "being involved in a traffic accident remains more probable than being a victim of a crime, provided you practice good personal security."14 [28] The Federal Court in Adebayo explained that the high onus on the refugee claimant to demonstrate that a proposed IFA is unreasonable requires "nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area."15 The Appellant's circumstances do establish that his life and safety would be jeopardized if he relocates to either Delhi or Mumbai. [29] For all of the reasons outlined above, I am satisfied that the second part of the Rasaratnam test has been met and that it would not be objectively unreasonable in the circumstances for him to relocate to either Delhi or Mumbai. CONCLUSION [30] The RPD was correct in its determination that the Appellant has viable IFAs in Delhi and Mumbai. I therefore dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.16 John Helis John Helis December 16, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 111(1)(b) [IRPA]. 2 IRPA s. 111(1)(a). 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 4 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Canada (Attorney General) v. Ward, [1993] 2 SCR 689 at 752. 6 Thirunavukkarasu v. Canada ( Minister of Employment and Immigration ), [1994] 1 FC 589. 7 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 at 710. 8 Ibid. 9 Ibid. at 711; Calderon v. Canada (Citizenship and Immigration), 2010 FC 263 at para. 10. 10 RAD-1, National Documentation Package (NDP), India, 17 July 2020, tab 9.3: ?First Information Reports (FIRs), including procedures and time frames followed by police to inform complainants that an investigation will not be conducted (2015-May 2017). Immigration and Refugee Board of Canada. 1 May 2017. IND105779.E pp. 1 & 4. 11 Ibid. pp. 1 - 2. 12 Nimako v. Canada (Citizenship and Immigration), 2013 FC 540 at para. 7; Mayorga Gonzalez v. Canada (Citizenship and Immigration), 2012 FC 987 at para. 35. 13 RAD-1, National Documentation Package, India, 17 July 2020, tab 12.8: Situation of Sikhs outside the state of Punjab, including treatment by authorities and society; ability of Sikhs to relocate within India; treatment of Khalistan supporters or perceived supporters outside of Punjab (2017-October 2019). Immigration and Refugee Board of Canada. 16 December 2019. IND106294.E. pp. 1 - 3. 14 RAD-1, National Documentation Package (NDP), India, 17 July 2020, tab 7.6: ?India. 2020 Crime and Safety Report: Mumbai. United States. Overseas Security Advisory Council. 25 March 2020 p. 1; RAD-1, National Documentation Package (NDP), India, 17 July 2020, tab 7.5: ?India. 2020 Crime and Safety Report: New Delhi. United States. Overseas Security Advisory Council. 3 April 2020 p. 1. 15 Adebayo v. Canada (Immigration, Refugees and Citizenship), 2019 FC 330 at para. 53. Citing Rasaratnam, supra note 7. See also: Armando v. Canada (Citizenship and Immigration), 2020 FC 94 at para 62; Brahim v. Canada (Citizenship and Immigration), 2019 FC 503 at para. 27. 16 IRPA s. 111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-00159 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français