MC1-06427

RAD File / Dossier de la SAR : MC1-06427 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 December 23, 2021 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Jean Cantin 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 for the reasons that follow. [2] XXXX XXXX (Appellant) is a citizen of India. The Appellant fears that, if he were to return to India, he would be killed or seriously harmed by a drug dealer, XXXX, who he alleges is also a Congress Party congressman, and the Punjab police due to his anti-drug activities. The Appellant alleges that XXXX was involved in selling drugs to youth in his village and other surrounding villages. The Appellant alleged that he started filing complaints against XXXX with his village Panchayat and those of other villages. According to the Appellant, XXXX and his men beat him in October 2017 and December 2017 because he had opposed his selling of drugs to youth. The Appellant alleges that, in January 2018, the police raided his house, arrested and tortured him, and accused him of making false complaints. With the assistance of an agent, the Appellant left India for Canada in XXXX 2018. His wife and children remain in the same village he lived in in Punjab state where the above incidents took place. [3] The Refugee Protection Division (RPD) rejected the Appellant's claim on the basis that he was not credible. Although the RPD questioned the Appellant on whether he would have a viable internal flight alternative (IFA) in Mumbai, Delhi or Chennai, the RPD did not need to address this issue in its decision due to its finding that the Appellant was not credible. DECISION [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 In my view, the RPD had good reasons to find the Appellant's allegations not credible. Among other things, he provided only vague evidence about his anti-drug activities and could not provide details about the drugs being sold around his area. In my view, I do not need to address the issue of credibility as I find that the IFA issue is determinative in this case. Having reviewed all of the evidence in the case, I find that the Appellant has failed to establish that he does not have a viable IFA in Mumbai, Delhi, or Chennai. NEW EVIDENCE [5] I accept as admissible both the submissions Counsel made in response to the notice I sent raising the issue of IFA as well as the copy of the news article he submitted on the tenant registration system in India.2 [6] While admissible, I do not find that these materials the conditions for an oral hearing set out in subsection 110(6) of the Immigration and Refugee Protection Act as they does not raise an issue regarding the Appellant's credibility that is central to the decision regarding his claim and that would justify allowing or denying his claim. ANALYSIS OF MERITS No nexus to refugee Convention [7] The Appellant's allegations do not have a nexus to any of the grounds found in the refugee Convention. The Appellant's allegations are that he was targeted by XXXX and the police due to his anti-drug activism. This has no nexus to any Convention ground. Although the Appellant alleged in his narrative that XXXX was a congressman, he testified that XXXX was a "member of the Congress Party".3 Meanwhile, most of the affidavits he filed by others describe XXXX simply as a "drug dealer". In any event, the Appellant was clear in his allegations that XXXX and the police were after him due to complaints he made against their illegal activities selling drugs to youth in the Appellant's village and surrounding villages.4 As such, this claim has no nexus to any Convention ground. It must be determined under s. 97 of the Immigration and Refugee Protection Act, the section that addresses persons in need of protection. The standard of proof under that section is a balance of probabilities. That is, the Appellant must establish that it is more likely than not that either XXXX or the police would subject him to a danger of torture or else personally kill him or subject him to one of the forms of serious harm that would make him a person in need of protection. Appellant has a viable IFA in Mumbai, Delhi, or Chennai [8] I sent a notice to the Appellant's counsel to ask why the Appellant would not have a viable IFA in Mumbai, Delhi, or Chennai.5 Out of an abundance of caution and due to the Federal Court's decision in Alazar,6 I also sent the notice to the Minister of Immigration, Refugees and Citizenship. The Appellant's counsel replied to the notice but the Minister did not.7 [9] International refugee protection is surrogate (that is, substitute) protection that only comes into play if a claimant does not have an IFA in their country of citizenship. The onus is on the Appellants to demonstrate that they do not have a viable IFA in their home country-in other words, a location to which he could relocate where he could live without experiencing persecution or the kind of serious harm that would make him a person in need of protection. The IFA analysis contains two prongs.8 (1) the decision maker must be satisfied on the balance of probabilities that the appellant would not face a serious possibility of persecution in the internal flight alternative location or a likelihood that he would be subjected personally to one of the types of harm that would make him a person in need of protection there. (2) the conditions in the part of the country under consideration must be such that it would not be unreasonable, in all the circumstances, for the appellant to seek refuge there. The threshold for unreasonableness is a very high one and requires nothing less than the existence of conditions that would jeopardize the life and safety of a claimant.9 First prong of the IFA test [10] I do not agree with Counsel's submission that the Appellant would not have a viable IFA in India due to the tenant verification system, the existence of police databases, or the Central Monitoring System. [11] I must note that Counsel's submissions in response to my notice largely take the form of criticism of the RPD and Refugee Appeal Division's (RAD) case law (and by extension the Federal Court's case law) that has found claimants to have viable IFAs in cases similar to this one. In addition, Counsel has filed a news article on the tenant registration system and excerpted portions of the National Documentation Package (NDP) that he has highlighted. He made no detailed argument with respect to the excerpted materials other than asserting that the tenant registration system is mandatory and the RPD disregarded the portions of the materials that he highlighted. [12] As the Federal Court has made clear, the question of whether an IFA exists is a factual one and documentary evidence may be insufficient to substantiate a refugee claim if the claimant does not establish a connection between the evidence and their specific situation.10 As noted above, the Appellant alleges that XXXX and the Punjab police would track him down and seriously harm him in the IFA cities due to his anti-drug activities in 2017 and early 2018. When the RPD asked the Appellant whether he would have any problems if he were to relocate to Mumbai, Delhi, or Chennai, he replied that he would need to provide identification to rent a room and that XXXX and the police would be able to find him. He also alleged that XXXX or the police would get his information if he used an ATM card. [13] When the RPD asked the Appellant why XXXX or the police would track him to the IFA cities if he was never accused or charged with any crimes, the Appellant replied that the police took his fingerprints and his photograph and asked him to sign a blank piece of paper so they must have done something against him and that they could "make any charges against me and lock me down".11 The RPD then asked the Appellant why XXXX or the police would be motivated to track him to the IFA cities given that he was no longer taking action against XXXX or the police and he has been in Canada since 2018. To this, the Appellant replied that XXXX and the police would not spare him because the police had told him to report to them every month starting in March 2018 and he had damaged their drug business with his anti-drug activities.12 [14] In my view, the Appellant has not established that it is more likely than not that XXXX or the Punjab police would have either the motivation or the means to track him down and harm him if he returns to India today and relocates to one of the IFA cities. No likelihood of motivation to track Appellant [15] Counsel has made no arguments on the issue of what motivation, if any, XXXX or the Punjab police would have to track him down and torture, kill, or seriously harm the Appellant if he were to return to India and relocate to one of the IFA cities. [16] I find that the Appellant's assertions regarding the alleged motivation of XXXX or the Punjab police to track him down and kill or seriously harm him in the IFA cities were speculative. There was no evidence, beyond his own assertions, to support his claim that either XXXX or the Punjab police would have the motivation to expend the time and resources to track him down to the IFA cities if he were to relocate there today. As noted by the RPD, the Appellant has not undertaken any activities to oppose the illegal drug activities of XXXX or the Punjab police since early 2018. The Appellant did file affidavits from his wife and XXXX claiming that the police raided the family home on March 2, 2018, and continued harassing the Appellant's wife and searching for the Appellant.13 However, the affidavits provide no detail regarding this alleged continued harassment and continued searches, or when they occurred. Likewise, an affidavit from the Appellant's cousin claims that the police came to his home once in April 2018 looking for the Appellant.14 There was no evidence on record that the police searched for the Appellant after March and April 2018. I find that the very general assertions in the affidavits filed by the Appellant's wife, XXXX and cousin are insufficient to establish that it is more likely than not that either XXXX or the Punjab police would have the motivation to track down the Appellant in one of the IFA cities today, almost four years after the events in question. This is especially the case given that the Appellant has not engaged in any anti-drug activities in that period of time. [17] Moreover, the documentary evidence in the NDP for India indicates that there is minimal interstate police communication, except for cases of "major crime" like smuggling, terrorism and some high-profile organized crime.15 The evidence in this case, if accepted, would establish that the police illegally arrested and tortured the Appellant because he was interfering with XXXX illegal drug dealing activities. The evidence does not establish that the Appellant's case involves the kind of major crime that would motivate the police to engage in interstate communications to track down and seriously harm the Appellant in the IFA cities. [18] For these reasons, I find that the Appellant has failed to establish that it is more likely than not that XXXX or the Punjab police would have the motivation to track him down and seriously harm him in the IFA cities. No likelihood of means to track Appellant [19] I disagree with Counsel that it is more likely than not that XXXX or the Punjab police would have the means to track the Appellant down and kill, torture, or subject him to serious harm in the IFA cities. [20] I do agree with Counsel that the evidence in the NDP for India indicates that the Crime and Criminal Tracking Network and Systems (CCTNS) is in use in an increasing number of police stations and that there is a system of tenant verification in India that is mandatory.16 However, the evidence on both of these is mixed. For example, the evidence indicates that there are insufficient resources to follow up on all tenant verification forms due to the volume of internal migration within India.17 In addition, the evidence also states that police systems between districts and states are not integrated, thus creating "islands of technology" which can only communicate within a state or district.18 Moreover, the evidence in the NDP for India indicates that there is little interstate police communications except in cases of major crimes like smuggling, terrorism, and some high-profile organized crime.19 [21] Counsel argues that it is "pure logic" [translation] that a notice or arrest warrant would be registered in the police's database given that the Appellant failed to report to the police on March 1, 2018. I disagree. In my view, the evidence in this case does not establish that it is more likely than not that the police entered the Appellant's name and information in any police databases. [22] On one hand, I might agree with Counsel that, if the police were capable of arresting the Appellant illegally for his efforts to expose drug dealing in his area, they might also be capable of entering his name into the CCTNS database illegally. However, I am also mindful that the Executive Director of the South Asia Terrorism Portal and the Institute for Conflict Management is quoted in the research report contained at Tab 10.13 of the NDP as stating that "no official record of [extrajudicial] arrests is maintained" in official criminal databases.20 [23] In my view, all of the circumstances surrounding the Appellant's interactions with the police must be weighed in making a finding as to whether his name likely appears in police databases such as the CCTNS database. In this case, the police never charged the Appellant, nor is there any evidence that they filled out a First Information Report. Notwithstanding Counsel's argument that it would have been logical to do so, there was no evidence that the police issued an arrest warrant when the Appellant failed to report to the police station on March 1, 2018, as directed. [24] When all of this evidence is weighed, I do not find that the Appellant has made out his onus of establishing that it is more likely than not that the police entered his name into the CCTNS database. Therefore, he has not established that the police likely would have the means to locate him through the tenant registration process, as any likelihood of tracking the Appellant through that process would likely be linked to the CCTNS database. [25] As for the paragraph from a research report on the Central Monitoring System (CMS) that Counsel has cut and pasted into his submissions, I do not agree that the evidence establishes that it is more likely than not that the police or XXXX would track the Appellant down through the CMS.21 The documentation in the NDP indicates that (i) "no public documentation exists to explain the scope, functions and technical architecture of the CMS,"22 and (ii) only eleven government agencies have authorization to make intercept requests through the CMS, and none of the agencies listed are state police.23 Therefore, I find that the evidence does not establish that XXXX or the Punjab police would likely be able to use the CMS to track the Appellant in the IFA cities. [26] For all the above reasons, I find that the Appellant has failed to establish that it is more likely than not that XXXX or the Punjab police would have either the motivation or the means to track him down and torture, kill or seriously harm him in the IFA cities. As noted above, his allegations have no nexus to the Convention and therefore there is also no basis to find any serious possibility that XXXX or the police would track him down and persecute him in the IFA cities. Second prong of the IFA test [27] The Appellant's counsel did not make any submissions with respect to the second prong of the IFA test. In my view, the evidence does not establish that it would be unreasonable to expect the Appellant to relocate to Mumbai, Delhi, or Chennai. When the RPD asked the Appellant whether there were any reasons, other than his fear of being tracked by XXXX or the police, for why he could not move to the IFA cities, he replied in the negative.24 [28] For all of the above reasons, I find that the Appellant has not met his onus of establishing that it would be unreasonable in all the circumstances to expect him to relocate to one of the IFA cities. CONCLUSION [29] For the above reasons, I find that XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) Jo-Anne Pickel Jo-Anne Pickel December 23, 2021 Date JP/in 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Exhibit P-3, Letter from the Appellant's counsel to the RAD, December 20, 2021. 3 Transcript of RPD hearing of July 15, 2021, p. 4. 4 This was acknowledged by Counsel in his submissions to the RPD, Transcript of RPD hearing, pp.17-18. 5 Exhibit RAD-1, Notice from Refugee Appeal Division to Appellant, Appellant's representative, and Minister, December 7, 2021. 6 Canada (Citizenship and Immigration) v. Alazar, 2021 FC 637. 7 Exhibit P-3, Letter from the Appellant's counsel to the RAD, December 20, 2021. 8 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (CA). 9 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (CA). 10 See for example Singh v. Canada (Citizenship and Immigration), 2021 FC 341 at paras. 26 and 31 and cases cited therein. 11 Transcript of RPD hearing of July 15, 2021, p. 16. 12 Ibid. 13 Exhibit RPD-1, RPD Record, Exhibit 4, Affidavit from Appellant's cousin, documents R-6 and R-10. 14 Exhibit RPD-1, RPD Record, Exhibit 4, Affidavit from Appellant's cousin, document R-11. 15 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.2: ?Communication between police offices across the country, including the use of POLNET; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks... Immigration and Refugee Board of Canada. 10 May 2016. IND105494.E, p. 1. 16 Exhibit P-3; Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.13: 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). Immigration and Refugee Board of Canada. 26 May 2021. IND200626.E: National Documentation Package, India, 30 June 2021, tab 14.8: Requirements and procedures for tenant registration (or tenant verification), including implementation, particularly in Delhi, Mumbai, Kolkata and Bengaluru (2016-May 2019). Immigration and Refugee Board of Canada. 14 May 2019. IND106289.E. 17 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.6: 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... Immigration and Refugee Board of Canada. 25 June 2018. IND106120.E at p. 13. 18 Ibid. at p. 1. 19 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.2: Communication between police offices across the country, including the use of POLNET; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks... Immigration and Refugee Board of Canada. 10 May 2016. IND105494.E at p. 1. 20 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.13: 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). Immigration and Refugee Board of Canada. 26 May 2021. IND200626.E at p. 7. 21 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.6: ?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... Immigration and Refugee Board of Canada. 25 June 2018. IND106120.E, p. 1. 22 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.6: ?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... Immigration and Refugee Board of Canada. 25 June 2018. IND106120.E, p. 1. 23 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.2: ?Communication between police offices across the country, including the use of POLNET; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks... Immigration and Refugee Board of Canada. 10 May 2016. IND105494.E, p. 7. 24 Ibid. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC1-06427 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