TC1-15392

RAD File / Dossier de la SAR : TC1-15392 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Date of decision February 2, 2022 Date de la décision Panel David Morris Tribunal Counsel for the person who is the subject of the appeal Yelda Zohal Anwari 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] I dismiss this appeal. [2] The Appellant, XXXX XXXX, is a citizen of India. [3] The Appellant ran a XXXX business in XXXX which is a coastal village in the state of Tamil Nadu. He fears being falsely accused of trafficking in narcotics and being targeted for extortion by a police inspector and a navy officer. [4] One day while he was fishing, the Appellant assisted a Sri Lankan boat that was in distress. He was then stopped by a navy boat. The navy officer on board demanded XXXX XXXX XXXX XXXX XXXX XXXX XXXX rupees, failing which the Appellant's boat would be seized and the Appellant would be charged with drug trafficking. Following this, the officer and a police inspector began coming to the Appellant's home demanding money and making threats to harm the Appellant and damage his fishing equipment. The inspector said he had received a complaint that the Appellant had been trafficking drugs and that he would pursue the false charges if the Appellant did not pay XXXX XXXX rupees. When the Appellant paid the money, the inspector told him to leave XXXX and that it would be best if the Appellant left India entirely. [5] The Appellant fled to Bangalore and then to Canada where he claimed refugee protection. Refugee Protection Division (RPD) findings [6] The RPD found the Appellant feared criminality and that there was therefore no nexus to a Convention ground. It assessed the Appellant's claim only with respect to subsection 97(1) of Immigration and Refugee Protection Act (IRPA). [7] The RPD found that credibility was determinative. It found there were significant discrepancies, inconsistencies, and omissions in the Appellant's evidence and testimony. It therefore found the Appellant had not established his core allegations on a balance of probabilities. Summary of the Appellant's arguments [8] The Appellant argues that the RPD breached procedural fairness by failing to raise nexus as an issue, thus depriving the Appellant of the opportunity to know the case to be met and to make submissions on this point. [9] He argues that the RPD's credibility findings related to minor issues and that the RPD was microscopic and overzealous in its credibility assessment. He submits that the credibility issues identified by the RPD do not go to the core allegations of the claim. He argues that the RPD did not assess the substance of his claim and that it misunderstood or misconstrued his evidence in an excessive desire to find contradictions where none existed. He argues that the RPD treated his testimony as a memory test and expected him to repeat verbatim in testimony what he had written in his Basis of Claim (BOC). [10] The Appellant does not seek to enter new evidence. I therefore have no jurisdiction to hold an oral hearing. ANALYSIS [11] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The Appellant has not established a nexus to the Convention [12] The Appellant argues that the RPD breached procedural fairness by not putting him on notice that nexus to the Convention was in issue. I agree that it would have been better for the RPD to state directly that nexus was in play - which it did not do. However, the Appellant provided submissions with respect to nexus in his Memorandum in this appeal. I find I am able to decide the issue of nexus based on the Record and the Appellant's submissions. Therefore, any breach of procedural fairness has been remedied. [13] The Appellant argues that he has established a nexus to the Convention ground of imputed political opinion. He argues, "... the police attributed a political opinion [to the Appellant] because he was seen to be engaging in illegal activities."2 I find no merit in this assertion. [14] First, it misstates the Appellant's own evidence which was that the agents of harm knew that he was not engaging in illegal activities but that he was threatened with false charges if he did not pay a bribe. There was no evidence that the police attributed any opinion to the Appellant, political or otherwise. [15] Second, even if the Appellant was perceived to be engaging in illegal activities, this, on its own, does not give rise to an imputed political opinion. [16] Finally, as I explain below, I find that the Appellant has a viable internal flight alternative (IFA) in Delhi. The existence of a viable IFA is determinative whether considered pursuant to section 96 or subsection 97(1) of IRPA. Therefore, even if a nexus to the Convention was established, the Appellant's claim fails. The Appellant's allegation that he was extorted by the navy officer and the police inspector is accepted [17] The Appellant testified that the navy officer came to his home, got angry when the Appellant could not pay the entire amount demanded and threatened the Appellant by saying, "Wait and see what I am going to do to you."3 In his BOC narrative the Appellant stated that, "He [the navy officer] left saying he would get the money out of me, and that he knew how to do it."4 The RPD asked the Appellant to explain the difference in the two versions of what the officer said, but found the Appellant's answers were vague and non-responsive. [18] The Appellant argues that the RPD's assessment was microscopic and that although he did make two different statements about what the officer said during this incident, both statements imply the same thing: that the officer was angry and threatened to find a way to obtain the money. He argues the statements were framed differently but were not inconsistent. [19] In my assessment, although there is an inconsistency, the inconsistency is minor. The Appellant testified as follows: MEMBER: What did he say? CLAIMANT: He said, "I have power over you. I can, I will use my power. Wait and see what is going to happen." MEMBER: What kind of power was he referring to? CLAIMANT: They are high officers. They can do anything. You know, they can arrest me, they can frame me for some other thing, they can arrest me, they can beat me. MEMBER: Did he say anything else? CLAIMANT: He said, "Wait and see what I am going to do." MEMBER: Now, why does your Basis of Claim Form say that he left saying that he would get the money out of you and that he knew how to do it. CLAIMANT: And he threatened me, yes, yes. He threatened me. MEMBER: When I asked you what he said, you just said that "I have the power. Wait and see what I am going to do to you." CLAIMANT: Yeah. INTERPRETER: "Can I tell you something?" he says. MEMBER: Yeah. CLAIMANT: Then, the inspector came around noon. MEMBER: No, no, you haven't, still haven't answered my question. Okay, somebody is saying "I have power. Wait and see what I am going to do to you" is different from somebody saying "I know how to get the money out of you, so I am going to get it out of you." CLAIMANT: Yeah, he threatened me. He said he knows how to get the money out of me and he threatened me and he left. MEMBER: So why didn't you say that before? CLAIMANT: I told that he threatened me. MEMBER: I asked you, "What did he say?" You only said, "He has power. He is going to use his power or wait and see what he is going to do." When I asked you if he said anything else, you said "No, he just said he is going to use his power." CLAIMANT: Yeah, so I was afraid when he said that he will use his power to do something. Yeah, I was afraid. [emphasis added]5 [20] I find significant confusion around the questioning on this point. For example, the RPD did not accurately restate the Appellant's testimony when it put this inconsistency to him (see my emphasis above). I find the RPD erred in drawing a negative inference from this part of the Appellant's testimony. [21] I find similar issues with several other of the RPD's credibility findings. For instance, the RPD found that, while the Appellant had testified that it was the navy officer who would cause him problems, his BOC narrative indicated that it was the police inspector who would cause problems. However, I find the BOC clearly indicates that both the navy officer and the police inspector threatened to cause problems for the Appellant. I see no basis for drawing a negative inference on this point. [22] Similarly, the RPD found that, although the Appellant testified that after he informed the inspector he had collected the money to pay their demand, it was the navy officer who came to pick up the money, this was not mentioned in the Appellant's BOC. In my view, the Appellant's basic assertion was that the officer and the inspector were acting together to extort him and that they both came to his home and threatened him and demanded money. It is also clear that the BOC does mention the navy officer coming to collect money. I find that there was an inconsistency, but, again, that this inconsistency was minor. [23] As well, contrary to the RPD, I see no clear inconsistency between the officer telling the Appellant to leave the area or he would file a complaint and the inspector indicating that the bribe they received would allow him to temporarily turn a blind eye to the complaint. [24] I have also considered the objective documentation. This shows that police corruption in India is endemic. Police officers are overworked, underpaid, lack accountability, and are subject to political pressure, bribery, and corruption.6 I find this supports the Appellant's basic allegations. [25] In summary, while I agree with the RPD that some of the Appellant's answers were vague, I find that overall, the RPD's credibility findings with respect to the Appellant's core allegations were inaccurate, overly microscopic and focussed on minor details that were, at best, of marginal relevance. [26] For purposes of my analysis, I am therefore prepared to accept that the Appellant operated a fishing boat and that he was extorted by the navy officer and the police inspector. The Appellant's allegation that the agents of harm have continued to search for him since he fled India has not been established on a balance of probabilities [27] However, in my view, the RPD was correct in finding the Appellant was not credible with respect to his allegations of continued threats after he departed from India. [28] On XXXX XXXX 2021, two weeks prior to the RPD hearing, the Appellant filed an amendment to his BOC indicating that the police had been to his home in India searching for him on two occasions after he fled. He states these incidents occurred in XXXX 2019 and XXXX 2020.7 The Appellant's wife provided a declaration in which she confirmed these two incidents.8 [29] However, at his hearing, the Appellant testified that the police had been coming to his home every month to search for him9 and that the last time they had come was three months prior to his hearing.10 The RPD asked the Appellant to explain the inconsistency between his testimony and his BOC amendment and wife's declaration.11 [30] The Appellant testified that he had made a mistake and had not explained well to the interpreter. He testified that his wife did not mention the monthly visits or the last visit in her declaration because maybe she was afraid.12 The RPD found these explanations were not reasonable and drew a negative inference with respect to the ongoing threats. [31] The Appellant argues that the Appellant's explanation that the wife was afraid is reasonable. He submits that the wife's declaration was very detailed, "... despite this one minor omission regarding the police officer's most recent visit." He argues the evidence must be considered as a whole and for what it says, not what it does not say. He also argues that the RPD's analysis of the evidence was microscopic and that even if the incidents were not mentioned in his narrative, there was no evidence to doubt its truthfulness. [32] However, I find that the RPD was correct in its assessment of this particular evidence. First, the Appellant has not explained why, if his wife was afraid to mention the monthly visits, she would mention the visits in XXXX 2019 and XXXX 2020. [33] Second, the RPD did assess the wife's declaration for what it said but found that it was significantly different from the Appellant's testimony. The wife clearly indicates only two visits by police. She does not mention monthly visits. The last visit she mentions would have occurred a year and a half before the RPD hearing, not three months as the Appellant testified. This was despite the fact that the wife's declaration was dated approximately two weeks prior to the RPD hearing. I find the version of events contained in the wife's declaration was inconsistent with the Appellant's testimony. [34] Finally, the RPD was not microscopic in its analysis of this evidence. I find that the allegations of continued interest in the Appellant are highly relevant to the Appellant's claim. The RPD correctly identified significant discrepancies between his amended BOC, his wife's declaration, and his testimony. It clearly identified its concerns and provided the Appellant a reasonable opportunity to explain. In my view, the inconsistencies were significant and were not adequately explained. Contrary to the Appellant's assertion, I find there was reason to doubt the truthfulness of the Appellant's evidence. The RPD's negative assessment of the credibility of the ongoing threats was correct. The Appellant failed to establish, on a balance of probabilities, that the police have been searching for him since he left the country. The determinative issue is IFA [35] I provided the Appellant and the Minster of Immigration, Refugees and Citizenship Canada (the Minister) with notice that I would be considering state protection and whether a viable IFA exists for the Appellant in Delhi.13 The Minister has not responded. The Appellant provided his written submissions.14 [36] The existence of an IFA is determinative of a claim for protection pursuant to subsection 97(1) of IRPA. In order to show that the proposed IFA is not viable, the Appellant bears the burden to demonstrate that: (i) on a balance of probabilities, he faces a subsection 97(1) risk in the proposed IFA; or (ii) that it would be unreasonable under all the circumstances for him to relocate there. For the reasons which follow, I find the Appellant has failed to discharge this burden. I therefore find Delhi is a viable IFA and dismiss this appeal. The Appellant has failed to establish, on a balance of probabilities, that the navy officer or the police inspector would have the means and motivation to pursue him to Delhi [37] The first part of the IFA analysis requires consideration of the profiles of the agents of harm, their motivation to search for the Appellant, and their ability to locate him in the proposed IFA location. The Appellant can only be a person in need of protection if the agents of harm have both the "means and the motivation" to locate him.15 [38] The Appellant argues that he is unable to relocate to Delhi as there is a case against him. He submits that he could be traced through his identification card or through police databases. [39] However, this runs contrary to the Appellant's testimony which was that since he had paid the money demanded by the extortionists, the case against him was not pursued: MEMBER: Right. So this case, has there been a false case filed against you? INTERPRETER: So what he is saying is... CLAIMANT: They are threatening to file a case. Yeah, they have filed a case. MEMBER: Okay, so did they threaten to file a case or did they, did they file a case against you? CLAIMANT: Yeah, they have filed a case, you know, but it has not proceeded further. Since I have paid the money, they are not continuing with that.16 [40] I find this is a clear indication of the agents of harm's lack of motivation to pursue the Appellant any further. As well, the Appellant does not explain how he would be traced using police databases given that they have not proceeded with the case. [41] The Appellant nonetheless argues that he could be located through the Crime and Criminal Tracking Network and Systems (CCTNS). CCTNS contains data that includes criminal charges and information on accused persons or suspects in criminal investigations.17 However, the CCTNS does not appear to be fully implemented such that a person can be tracked across the country. There is, "... no national data[b]ase of criminals or gangs against which suspects can be identified"18, but rather islands of technology within individual states.19 Therefore, even if the Appellant's information has been entered into CCTNS, which I find has not been established, on a balance of probabilities, the objective documentation does not support the Appellant's contention that his information would be available to the police of other states. [42] The Appellant argues that police use programs such as ZIPNET to share information between states. However, the Appellant has provided no documentation to show that a case has been filed. Indeed, his own evidence was that the case was discontinued after he paid the bribe. The objective evidence regarding CCTNS indicates that it is used to input First Information Reports (FIRs). FIRs serve as the first official record of a criminal complaint and activates a police investigation.20 In my assessment, the evidence does not establish, on a balance of probabilities, that a FIR or any other record with respect to the Appellant was documented by police or input into any database. [43] Further, as set out above, I find the Appellant is not credible with respect to his allegations that the police have continued to look for him since he fled India. [44] Considering all of the above, the Appellant has not shown, on a balance of probabilities, that the agents of harm have the motivation or the means to pursue him to the proposed IFA. Therefore, I find that the Appellant has not shown, on a balance of probabilities, that he would personally be subject to a danger of torture, or a risk to his life, or a risk of cruel and unusual treatment or punishment at the hands of the agents of harm in Delhi. [45] He therefore fails on the first part of the IFA analysis. The Appellant has not demonstrated that it would be unreasonable under all the circumstances for him to relocate to Delhi [46] I also find that relocation to Delhi would not be objectively unreasonable or unduly harsh for the Appellant under the circumstances. [47] The jurisprudence sets out a high threshold for the Appellant to meet in order to demonstrate that the proposed IFA is unreasonable under the second part of the IFA test: It 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. In addition, it requires actual and concrete evidence of such conditions. ... that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized."21 [48] The Appellant submits that since he is Tamil, was educated in the Tamil language, and speaks only Tamil, and not Hindi, which is the primary language spoken in Delhi, it would be difficult for him to communicate and work in Delhi. [49] However, while the documentation referred to by the Appellant does indicate that Tamils may face challenges in relocating outside of Tamil Nadu, these challenges will depend upon one's socio-economic status. It notes that there is a large Tamil middle class in Delhi and that Tamil professionals do well in all major cities.22 [50] The Appellant holds a XXXX XXXX XXXX from XXXX XXXX in XXXX XXXX. He was able to successfully relocate to Dubai where he spent 10 years working as XXXX XXXX XXXX at the XXXX XXXX. He has experience operating his own farm and fishing business. In my view, his background shows that he has the skills and experience to successfully relocate. While I accept that he would face challenges in Delhi, I find that relocation there would not be unreasonable solely due to his Tamil background and language ability. I also note that the objective evidence indicates that there is a "very significant proportion of Tamil-speakers" in Delhi.23 [51] Considering all of the circumstances, I find that the Appellant's Tamil ethnicity will not subject him to the sort of hardship in Delhi that would pose a threat to his life or safety. I therefore find the Appellant has not discharged his burden under the second part of the IFA test. [52] I therefore find that Delhi is a viable IFA for the Appellant. This is determinative of the Appellant's claim whether considered under section 96 or 97(1) of IRPA. CONCLUSION [53] I 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. (signed) David Morris David Morris 2 February 2022 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Exhibit P-2, Appellant's Record, p. 25, at para. 22. 3 Transcript of 10 August 2021 RPD Hearing, p. 12, at line 19. 4 Exhibit RPD-1, RPD Record, Exhibit 2, p. 25, at para. 16. 5 Transcript of 10 August 2021 RPD Hearing, p. 14, at lines 12-48; p. 15, at lines 2-13. 6 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for India (30 June 2021), item 2.1, United States Department of State, "India. Country Reports on Human Rights Practices for 2020", 30 March 2021. 7 Exhibit RPD-1, RPD Record, Exhibit 5, at pp. 32-33. 8 Exhibit RPD-1, RPD Record, Exhibit 6, at pp. 145-149 9 Transcript of 10 August 2021 RPD Hearing, p. 30, at lines 26-27. 10 Transcript of 10 August 2021 RPD Hearing, p. 30, at lines 15-17. 11 Transcript of 10 August 2021 RPD Hearing, p. 30, at lines 46-47; p. 31, at lines 3-23. 12 Ibid. 13 Exhibit RAD-1, Notice to Appellant and Minister, dated 7 January 31, 2022. 14 Exhibit P-3, Appellant's Submissions in Response, dated 21 January 2022. 15 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. 16 Transcript of 10 August 2021 RPD Hearing, p. 28, at lines 5-13. 17 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for India (30 June 2021), item 10.13, Response to Information Request (RIR) IND200626.E, Immigration and Refugee Board (IRB), "Police databases and criminal tracking, particularly the Crime and Criminal Tracking Network and Systems (CCTNS); relationship with the Aadhaar and tenant verification systems; capacity to track persons through these systems (2019-May 2021)", 26 May 2021, at p. 6. 18 Ibid., p. 1, at section 1. 19 Ibid. 20 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for India (June 30, 2021), item 10.6, IRB, RIR IND106120.E, "Surveillance by state authorities; communication between police offices across the country, including use of the Crime and Criminal Tracking Network and Systems (CCTNS); categories of persons that may be included in police databases; tenant verification; whether police authorities across India are able to locate an individual (2016-May 2018)", 25 June 2018, at p. 8. Also found in NDP for India (July 17, 2020). 21 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164, at para. 15. 22 Exhibit P-3, Appellant's Written Submissions in Response, dated 21 January 2022, p. 7, at para. 15. 23 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for India (30 June 2021), Item 13.5, IRB, RIR IND105526.E, "Ability of Indian Tamils to relocate outside of Tamil Nadu to areas such as Delhi, Bangalore, Mumbai or Chandigarh; treatment by society and access to housing, employment and social services (2012-May 26)", 20 May 2016, p. 3, at section 1. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-15392 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français