MB9-12342

RAD File No. / No de dossier de la SAR : MB9-12342 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 Montréal, QC Appel instruit / entendu à Date of decision August 19, 2020 Date de la décision Panel Marie-Lyne Thibault 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] The appellant, XXXX XXXX, is a citizen of India. [2] The appellant preaches Sikhism. Should he return to India, he fears being killed by XXXX XXXX XXXX, his village's sarpanch, who wants the appellant to sell him his land. He also fears drug dealers who want to go after him because of his sermons against drug use. He also fears the police, who perceive his sermons as criticism of the state and who falsely accused him of having ties to pro-Khalistan militants. [3] He is appealing the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. He argues that the RPD erred in assessing his credibility and analyzing the internal flight alternative (IFA) in Mumbai and Delhi. [4] The determinative issue for the Refugee Appeal Division (RAD) is the IFA. The RAD is of the opinion that the RPD's analysis regarding the IFA is incomplete. However, after conducting its own analysis of the evidence, for the reasons set out below, the RAD concludes that the appellant has an IFA in Mumbai or Delhi. [5] The appeal is dismissed. THE APPELLANT'S APPLICATION UNDER RULE 29 IS ALLOWED [6] On June 15, 2020, the RAD sent a notice to the appellant informing him that he had 30 days to submit any document or written submission in support of his appeal, without an application. The notice stated that the other requirements under rule 29 of the Refugee Appeal Division Rules (Rules) and subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) would apply. [7] In this context, the appellant asks the RAD to submit the following new pieces of evidence, which were not previously provided: * Exhibit "A"- A statistical report on coronavirus cases in the world, Worldometer - Coronavirus update.1 * Exhibit "B"- A newspaper article on India's response to the coronavirus, How well is India responding to COVID-19.2 [8] The admissibility of new evidence before the RAD is based on the application of subsection 110(4) of the IRPA and the factors set out in Raza,3 as adapted in Singh.4 Furthermore, when new evidence is not submitted at the time the appeal is perfected, which is the case here, the RAD must consider whether the requirements of rule 29 have been met. The Refugee Appeal Division allows the appellant's application to use exhibits "A" and "B" for the purposes of the appeal [9] The RAD considered the various factors listed in subrule 29(4) in order to determine whether or not the application should be allowed. [10] The RAD accepts that the appellant was unable to submit this new evidence at the time of the appeal perfection because at that time, India had not yet been affected by COVID-19. In keeping with this line of thinking, the RAD accepts that this is new evidence. Furthermore, although the RAD questions the probative value of this evidence, it accepts that it is relevant because it is about the situation in India. [11] Consequently, the RAD allows, pursuant to rule 29, the appellant's application to use exhibits "A" and "B" for the purposes of his appeal. [12] What is more, considering that the new evidence deals with a situation that arose after the rejection of the refugee protection claim, the RAD accepts that it is admissible under subsection 110(4) of the IRPA. [13] As previously mentioned, the RAD accepts that it is new and relevant. The RAD is of the view that the new evidence is also credible. Exhibit "A" is dated and comes from a source that can be verified on the Internet. As for Exhibit "B," it is dated, its authors identified and their sources cited. [14] As a result, the RAD concludes that exhibits "A" and "B" meet the factors set out in Raza,5 as adapted in Singh.6 AN ORAL HEARING IS NOT REQUIRED [15] Considering that the new evidence does not raise a serious issue with respect to the appellant's credibility, the RAD concludes that there is no requirement for an oral hearing pursuant to subsection 110(6) of the IRPA. BACKGROUND [16] The appellant's allegations are in his Basis of Claim Form7 (BOC Form) and can be summarized as follows: * The appellant preaches Sikhism. * His problems in India started in 2005 when the village sarpanch XXXX XXXX XXXX wanted to annex the appellant's land to his. With help from drug dealers, the sarpanch forced the appellant to sell him part of his land. * Furthermore, some of his sermons speaking out against corruption were not appreciated by security forces in Punjab. * The village sarpanch had the appellant detained several times in 2005 because of his sermons and the police prevented him from being able to attend certain religious ceremonies. * People tried to kill him. He was threatened by drug dealers who did not like that he condemned drug use. * Between 2006 and 2016, the appellant lived in Canada to preach in Sikh temples. Whenever he visited India, the sarpanch would pressure him to sell him his land. * The appellant returned to live in India in XXXX 2016. On XXXX XXXX, 2016, after a visit from a friend, the appellant was arrested, detained, tortured and questioned about his ties to pro-Khalistan militants. The appellant was questioned in front of the sarpanch. He was released after a bribe was paid. * The appellant then learned from neighbours that the sarpanch had asked the police to kill him. * In XXXX 2016, the Punjab Kranti Dal, a drug trafficking organization, threatened the appellant in a written warning, when the appellant was supposed to preach in the XXXX district. * When he returned to India in XXXX 2017, after a trip to the United States, the appellant was questioned by the police about his ties to pro-Khalistan militants abroad. * In XXXX 2017, when he was supposed to preach in the XXXX district, the Punjab Kranti Dal threatened him in a written warning. * After filing a police complaint, the appellant received anonymous threats about how the police could not protect him. * After consulting a lawyer, he decided to leave India. ANALYSIS [17] The RAD applied the correctness standard.8 The RAD conducted an independent assessment of the evidence, which included listening to the recording of the hearing. [18] Because the determinative issue for the RAD is the IFA, the RAD will not analyze the appellant's arguments that it was unreasonable for the RPD to criticize him for the times he returned to India. [19] With regard to the IFA, the RAD agrees with the appellant. The RPD erred in its analysis by basing its decision solely on there being large Sikh communities in Delhi and Mumbai, and in failing to analyze the first prong of the IFA. The RPD's analysis is clearly insufficient. [20] However, after considering all of the evidence, including the appellant's arguments, the RAD concludes that the appellant has an IFA in Mumbai or Delhi. The appellant has a viable internal flight alternative in Mumbai or Delhi [21] The assessment of the IFA is based on a two-pronged test. With regard to the first prong, the refugee protection claimant must establish that there is a serious possibility of persecution or, on a balance of probabilities, a risk within the meaning of subsection 97(1) of the IRPA in the proposed IFAs. For the second prong, the refugee protection claimant must establish that it would be objectively unreasonable for him to seek refuge in the proposed IFAs, considering all of the circumstances, including those particular to the refugee protection claimant. The appellant did not establish a prospective risk in Mumbai or Delhi [22] The RAD concludes that the appellant failed to establish that he would face a serious possibility of persecution in the proposed IFAs or, on a balance of probabilities, a risk within the meaning of subsection 97(1) of the IRPA. [23] The appellant argues that the RPD erred in failing to determine whether he would face a serious possibility of persecution in the proposed IFAs. He adds that the Punjab police would be able to track him down in the proposed IFAs because to the tenant registration program. He maintains that even if he is not a notorious criminal, he established that he is known by the Punjab police. The Punjab police could notify the police in Delhi and Mumbai and request his return to Punjab. [24] According to the appellant's testimony before the RPD, he could be easily recognized in the proposed IFAs if he preaches in temples as he is well known in India because of his distinct physical appearance and because the drug dealers' last warning was mentioned in newspapers.9 He also explained that if he wanted to work in a temple in Delhi or Mumbai, the temple would perform checks with the temples he worked at in Punjab.10 With regard to why his agents of persecution would go after him, he explained that when one preaches against corruption, the latter feel targeted; that he became their target and that they abuse their targets.11 [25] The burden is on the appellant to prove that there is a prospective risk in the proposed IFAs. The RAD is of the opinion that this burden was not met. The appellant did not establish that his agents of persecution, the sarpanch XXXX XXXX XXXX, drug dealers in the Punjab and the Punjab police, are motivated and interested in seeking him out in the proposed IFAs. In the RAD's opinion, the evidence shows that XXXX XXXX XXXX, the Punjab police and the drug dealers had little, if any, interest in the appellant when he was not active in Punjab. [26] In 2005 and 2006, drug dealers forced the appellant to sell part of his land to XXXX XXXX XXXX. During this period, he was also detained several times by the police and escaped an attempted murder. However, according to his testimony, the appellant did not have any problems during his numerous trips back to India between 2006 and 2016.12 The appellant also stated that his ceremonies, held in Canada and the United States, were broadcast on various platforms and thus, were available in India.13 According to his refugee intake forms,14 he returned to India 11 times for stays that sometimes lasted a few weeks and sometimes lasted up to six months. At the hearing, he explained that he did not have any problems because he only went back to India for vacation, he stayed at his Amritsar residence and he did not preach in temples. However, the information in the appellant's refugee intake forms15 contradicts his testimony that he only stayed in Amritsar during his trips back to India. According to the forms, when he returned to India, the appellant instead stayed in his village, Langeri, in the Hoshiarpur district, and that he did so until 2016. According to his BOC Form,16 the only problem he had during his vacations in India was that the sarpanch tried to pressure him to sell him his land. His BOC Form17 also states that his problems in India started again in 2016 when he returned to live there and started preaching there again. Although the appellant was allegedly arrested and accused of having ties to pro-Khalistan militants, his testimony revealed that this was a false pretense used by police acting on behalf of the sarpanch.18 The appellant failed to establish that the Punjab police actually perceived him as having ties to pro-Khalistan militants. According to his testimony, the triggering event that led to his decision to leave India for good arose from threats he received from the Pundjab Kranti Dal, a drug trafficking organization in Punjab,19 when he was supposed to preach in two villages in Punjab. What is more, the appellant does not allege that his family, who stayed in India, 20 has been harassed by his agents of persecution since he left India in XXXX 2017. At the hearing, the appellant stated that he had preached in Delhi and close to Mumbai.21 The appellant did not allege having any problems there. In the RAD's opinion, even if the police had the ability, as he claims they do, to find him in the proposed IFAs, the appellant simply did not establish that his agents of persecution would devote their time and energy to finding him in the proposed IFAs. [27] With regard to the possibility of the appellant contracting COVID-19, he relies on exhibits "A" and "B" to argue that if he returned to India, he would be in contact with people infected with COVID-19. He adds that nothing supports a conclusion that the Indian health care system will be able to absorb and properly treat all of the new cases. [28] The RAD accepts that India is one of the countries most affected by COVID-19.22 The RAD also accepts that it might be difficult for the Indian health care system to respond to the situation23 and that the situation could get worse. With regard to the situation in Delhi, the evidence shows that it is the third most-affected Indian city in terms of COVID-19 infections.24 With regard to the situation in Mumbai, the evidence shows that the state of Maharashtra, where the city of Mumbai is located, has practically one third of all of the COVID-19 cases in India, and that the state of Maharashtra has carried out few tests compared to other states.25 The RAD does not have more specific information about the situations in Mumbai and Delhi, particularly in terms of access to medical care. However, a refugee protection claimant cannot be a person in need of protection if the threat or risk they would be subjected to is caused by the inability of a country to provide adequate medical or health care.26 What is more, the appellant is forty-seven (47) years old. He does not allege having any particular health problems. If he returned to the proposed IFAs in India and became infected with COVID-19, he failed to establish that the risk he would be subjected to is different than that faced by a large part of the population in Mumbai and Delhi, or that he would be refused health care on a Convention ground. [29] In light of the foregoing, the RAD concludes that the appellant failed to establish a serious possibility of persecution and that, on a balance of probabilities, he would be subjected to a risk within the meaning of subsection 97(1) of the IRPA in Mumbai or Delhi. The Refugee Appeal Division concludes that it is not unreasonable for the appellant to seek refuge in Mumbai or Delhi [30] The RAD concludes that it would not be unreasonable for the appellant to seek refuge in Mumbai or Delhi. [31] Apart from the argument that the RPD erred in basing its decision solely on there being large Sikh communities in Delhi and Mumbai, the appellant failed to present an argument regarding the second prong of the IFA. [32] During his testimony before the RPD, the appellant stated that because he only speaks Punjabi, he would not be able to find work outside of temples.27 The threshold for establishing that an IFA is unreasonable is very high. The conditions in the IFA would have to jeopardize the claimant's life and safety.28 The appellant did not meet this burden. [33] On the one hand, the appellant failed to establish that he could not work in Sikh temples in the proposed IFAs. As previously mentioned, the appellant did not establish that his agents of persecution were interested in or motivated to find him in the proposed IFAs. Consequently, even if he were recognized in those temples, the appellant failed to establish that this would cause him to face a serious possibility of persecution or, on a balance of probabilities, a risk within the meaning of subsection 97(1) of the IRPA. What is more, Punjabi is one of the languages spoken in Delhi.29 With regard to the risk of COVID-19 infection, other than the fact that Mumbai and Delhi are cities with high infection rates, the RAD does not have more specific evidence about the impact of COVID-19 in Mumbai and Delhi. The appellant did not provide any evidence that he would be particularly vulnerable to COVID-19. As previously mentioned, the appellant is forty-seven (47) years old and does not claim to have any particular health problems. As a result, the RAD concludes that he failed to demonstrate how the situation in India, with regard to COVID 19, would make an IFA in Mumbai or Delhi unreasonable. [34] The RAD concludes that the appellant failed to establish that it would be unreasonable for him to seek refuge in Mumbai or Delhi. [35] In light of the foregoing, the RAD concludes that the appellant failed to establish a serious possibility of persecution on one of the five Convention grounds or that, on a balance of probabilities, if he returned to India, he would be personally subjected to a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment pursuant to subsection 97(1) of the IRPA, in Mumbai or Delhi. DECISION [36] The RAD dismisses the appeal. The RAD confirms the determination of the RPD that XXXX XXXX is not a Convention refugee or a person in need of protection. Marie-Lyne Thibault Marie-Lyne Thibault August 19, 2020 Date IRB translation Original language: French 1 P-3, Exhibit A, Coronavirus Update (live):13,739,612 Cases and 587,919 Deaths from COVID-19 Virus Pandemic. Worldometer. 16/07/2020. 2 P-3, Exhibit B, How well is India responding to COVID-19? Brookings. July 2, 2020. 3 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 5 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 7 SPR-1, Refugee Protection Division (RPD) record, Basis of Claim Form (BOC Form) of XXXX XXXX, pp. 24-36. 8 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 9 Recording of the RPD hearing held April 25, 2019, at around 00:45:30 and 00:51:30. 10 Recording of the RPD hearing held April 25, 2019, at around 00:46:30. 11 Recording of the RPD hearing held April 25, 2019, at around 00:33:30. 12 Recording of the RPD hearing held April 25, 2019, at around 00:33:30. 13 Ibid. 14 SPR-1, RPD record, Schedule A - Background/Declaration, Address History, pp. 86-87. 15 Ibid. 16 Supra, endnote 7, BOC Form, written account, p. 30, at para. 6. 17 Supra, endnote 7, BOC Form, written account, pp. 30-31. 18 Recording of the RPD hearing held April 25, 2019, at around 00:51:30. 19 Recording of the RPD hearing held April 25, 2019, at around 00:56:00. 20 Supra, endnote 7, BOC Form, question 5, p. 33. 21 Recording of the RPD hearing held April 25, 2019, at around 01:05:40. 22 Supra, endnote 1, Exhibit "A." 23 Supra, endnote 2, Exhibit "B." 24 Supra, endnote 2, Exhibit "B." 25 Supra, endnote 2, Exhibit "B." 26 Immigration and Refugee Protection Act, S.C., 2001, c. 27, subpara. 97(1)(b)(iv). 27 Recording of the RPD hearing held April 25, 2019, at around 00:45:50 and 51:30. 28 Ranganathan v. Canada (Ministry of Citizenship and Immigration), 2000 (FCA), [2001], 2 FC, 164. 29 National Documentation Package (NDP) on India (December 4, 2018), Tab 1.14: Socio-economic profile of Bengaluru, Chennai, Delhi, Hyderabad, Kolkata, Ludhiana, Mumbai, including population, demographics and economy; tenant registration requirements (2016-April 2018) Immigration and Refugee Board of Canada. May 25, 2018. IND106101.E. p. 5. (The Refugee Appeal Division notes that this same document is available under Tab 1.9 in the NDP on India updated on July 17, 2020). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-12342 RAD.25.02 (January 2020) Disponible en français 10 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