VC0-00211

RAD File / Dossier de la SAR : VC0-00211 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 Toronto, ON Appel instruit / entendu à Date of decision April 26, 2021 Date de la décision Panel Colin Anderson Tribunal Counsel for the person who is the subject of the appeal Aman Sandhu 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 INTRODUCTION AND DECISION [1] The following reasons explain why I am dismissing the appeal of XXXX XXXX (the Appellant). The Appellant has appealed the Refugee Protection Division's (RPD) December 18, 2019 decision that rejected his claim for refugee protection. The Appellant has asked that I substitute the RPD's decision with my own finding that the Appellant is a Convention refugee or a person in need of protection, or that I return the file to the RPD for redetermination. I find that the RPD was correct to determine that the Appellant is not a Convention refugee and that he is not a person in need of protection. BACKGROUND [2] The Appellant has made the following key allegations in his Basis of Claim (BOC) forms and at the RPD hearing: * That he has drawn the ire of a criminal gang in his hometown of XXXX in the state of Haryana. The animosity was driven by caste conflict as well as a past relationship the Appellant had with a woman. * That the criminal gang has threatened to kill and otherwise harm the Appellant, and has sought to find the Appellant on several occasions. * That the criminal gang has connections throughout the country and has linkages with corrupt police officials. [3] The RPD found that the Appellant's claim failed because he had a valid internal flight alternative in Mumbai or Bengaluru that is both safe and reasonable in all the circumstances. The RPD also found that allegations that the gang had attempted to find the Appellant through friends and family lacked credibility. [4] The Appellant has argued on appeal that the RPD erred by being biased and denying the Appellant procedural fairness, by failing to properly assess the evidence, by making improper credibility findings, and by speculating in its conclusions. PRELIMINARY MATTERS No new evidence and no oral hearing [5] The Appellant has not requested the admission of any new evidence with respect to this appeal and has not sought an oral hearing at the Refugee Appeal Division (RAD). As no new evidence was admitted in this appeal, no oral hearing is permitted pursuant to IRPA s. 110(6). The role of the RAD [6] I have reviewed the entirety of the written record and have listened to the audio recording of the RPD hearing. The RPD had no meaningful advantage over me in assessing the credibility of oral testimony. I have therefore undertaken a review of the correctness of the RPD decision throughout. Internal flight alternative (IFA) as the determinative issue [7] As I will explain below, I find that the RPD was correct to determine that the Appellant has a valid internal flight alternative. This is the determinative issue in this appeal. Because allegations of bias and procedural unfairness can taint the entirety of a decision, I have also assessed these issues. ANALYSIS There was no bias or procedural unfairness at the RPD [8] The Appellant has argued that the RPD member had his mind made up prior to the conclusion of the hearing at the RPD, that he was biased in his decision-making, and that the Appellant was not afforded procedural fairness because he was unable to present his case. [9] Specifically, the Appellant complains that the RPD did not ask any questions on the danger he faces in India, that he was not provided with a compact disc (CD) version of the RPD hearing audio recording, that the RPD member questioned the Appellant on the written evidence of an interview conducted by a Canada Border Services Agency (CBSA) officer, and that the RPD member gave insufficient weight to a Facebook post in evidence because it was not presented in either English or French. [10] I disagree with the Appellant on all of the above. I have listened to the entirety of the audio recording of the hearing. The RPD specifically asked the Appellant to detail why he would be unsafe if he were to live in one of the IFA locations.1 He was asked why he thinks the gang has a presence in the IFA locations.2 The Appellant was also questioned by his own counsel, and was asked numerous detailed questions about his allegations and the dangers he faces. The Appellant submitted a detailed Basis of Claim and written narrative outlining his allegations of risk. The RPD member admitted late disclosure that was received by the RPD after the 10-day deadline, accepted further late disclosure that was made at the hearing itself, and then asked the Appellant an additional time if there was any other evidence he wished to bring forth. The Appellant indicated that there was not. I see no evidence that the Appellant was prevented in any way from bringing his complete case forth to the RPD. [11] I disagree that the Board's failure to provide a CD audio recording of the hearing results in any procedural unfairness. There is no legal requirement that the Board must provide a CD of the RPD hearing recording, though I recognize that the Board usually does do this. The Appellant has not described any way in which he was prejudiced or unable to mount a full appeal against the RPD's decision, of which he was provided a written copy, because of the lack of a CD. Further, the Appellant was in communication with the Board through counsel prior to the perfection of his appeal. He requested an extension of time to perfect the appeal, which was granted. At no time prior to the perfection of the appeal did the Appellant or his counsel make the Board aware that he had not received a CD or other audio recording of the RPD hearing or that this was problematic. I find it unreasonable that the Appellant would wait until the perfection of the appeal to raise this as an issue of procedural unfairness. [12] I do not see it as procedurally unfair that the RPD member questioned the Appellant on the CBSA officer's interview notes. The RPD has broad latitude to question claimants on evidence, and the Appellant has not described any way in which this was prejudicial or unfair. In any event, the RPD did not rely on the CBSA officer's notes in its decision, so this appears to me to be a moot issue. [13] Finally, I do not see the RPD's treatment of the Facebook post as procedurally unfair. The law is clear that the onus is on a refugee claimant to make their case and present all their evidence to the RPD. RPD Rule 32(1) is clear that all documents used by a claimant in a proceeding must be in English or French or, if in another language, be provided together with an English or French translation and a declaration signed by the translator. The RPD member noted on the record that only a few words in the Facebook post were in English, and the rest was in a third language. The Appellant complains that the RPD member could have asked the interpreter to translate the document in the hearing. This may be true, but requiring that the RPD do so is an inappropriate reversal of the onus described above and counter to the RPD's rules. It also ignores the fact that the Appellant or his counsel could equally have asked the interpreter to translate the document, and they did not do so. In any event, the Appellant has described the contents of the post in testimony, and placed its contents on the record in that alternative way. I see no way in which the Appellant was prejudiced and I see no procedural unfairness in the RPD's handling of this evidence. [14] Having taken all of the Appellant's arguments on procedural unfairness and bias into account, I find no evidence that the Appellant was unable to make his case or that he was treated unfairly. [15] I see no evidence that the RPD member made up his mind before the conclusion of the RPD proceedings. I find that an informed person, viewing the matter realistically and practically and having thought the matter through would conclude that there is no reasonable apprehension of bias in this case. The RPD correctly framed the two-pronged approach to IFA analysis [16] The RPD properly identified the cities of Mumbai and Bengaluru as proposed IFA locations at the RPD hearing. The RPD correctly noted that, once an IFA has been proposed, the onus is on the claimant (now the Appellant) to show that the IFA fails on either prong of safety or reasonableness. For clarity, the two prongs correctly identified by the RPD are as follows: ... the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted, or, on a balance of probabilities, a likelihood of a s. 97 risk, in the part of the country to which it finds an IFA exists. Moreover, 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 claimant, for them to seek refuge there. First Prong: Mumbai is a safe IFA [17] The RPD was correct to find that Mumbai meets the first prong test of safety, in that there is no serious possibility of persecution and no likelihood of a s. 97 risk to the Appellant on a forward-looking basis therein. [18] In coming to this finding, the RPD first decided that there was insufficient credible evidence that the gang or other agents of harm had both the means and the motivation to find the Appellant in the IFA. The RPD based this on the fact that, despite having received death threats since 2013, and an assault in 2016, the Appellant led a normal life near to the gang, in the original location, for over a year with no further encounters. The RPD found that the Appellant was not in hiding during this time - he finished his schooling and lived at home (aside from a vacation at a relative's house). [19] Second, the RPD found that the Appellant's testimony that the gang has approached members of the Appellant's family and friends about his whereabouts since his departure for Canada was significantly embellished and not credible. The RPD based this finding on the fact that the affidavits from family and friends are all imprecise and equivocal about the details of the visits. The RPD found that the family and friends should have been able to provide far more detail about the times the gang came looking for the Appellant than was provided. The RPD also found that the Appellant's testimony about these visits was overly vague. The RPD reasoned that since the Appellant testified that he is in very frequent contact with his family members, he should have far more knowledge about the gang's alleged ongoing threats. [20] Third, the RPD found that the Appellant's allegations that the gang has connections in the IFA locations was not based on evidence and was instead speculative. The RPD characterized these as mere assertions with no evidence to support them. The RPD noted that the news articles adduced in evidence stated that the gang was operational in several areas of Haryana but made no reference to activities outside of the state. The RPD noted that all the allegations of harm occurred in and around XXXX. The Facebook post made fleeting reference to other cities, but this was not probative of the gang's reach to the IFA locations. The RPD also found that the gang may be a part of the Jat caste community, but there was no evidence that members of the Jat caste would do the bidding of the gang in the IFA locations. [21] Fourth, the RPD found that there was no reliable evidence that the police were working in concert with the gang or its members. In contrast, the RPD noted that the primary agent of persecution and gang leader was in jail and had been for several years. The gang leader's brother is also in jail. The RPD found that the news articles adduced in evidence show that the police are actively working against the gang, not with them. The RPD noted that an adversary to the gang is noted as having been given police protection. While the Appellant has testified that he believes the police were bribed by the gang, there is no evidence of this. The RPD accepted that police corruption is a problem in India but found that there was nothing more than speculation behind the notion that the agents of harm could or would use the police to find him. [22] Fifth, the RPD found that it was speculative that various government databases, such as the tenant registration system and police databases, could or would be used to find him in the IFA locations. The RPD noted that police in India are not nationalized, they are local. The RPD found that there is no one system of database that could be used to track the Appellant across states, as police work is siloed. The RPD found that there was no reason to believe that the police would be interested in tracking the Appellant. [23] The Appellant has argued on appeal that the RPD erred by finding that the gang would not have the means and motivation to harm the Appellant in the IFA locations. He argues that the RPD ignored his legal presumption of truthfulness and that doubting his allegations is arbitrary. The Appellant argues that the Facebook post should be given weight because it shows that the gang leader is boasting about his reach across India. Finally, the Appellant has pointed to several documents in the National Documentation Package (NDP) that he argues the RPD erroneously ignored. The Appellant argues that these documents show that the various government databases do put him at risk in the IFA locations because he will be found. [24] I have read through all the evidence and considered the Appellant's arguments and I find that I agree with the RPD on all the points above. First, I agree with the RPD that the Appellant has not established that the agents of harm in the gang would have the means or motivation to find the Appellant in Mumbai. In consideration of this, I note that the Appellant has not challenged the RPD's finding that he was not in hiding for approximately one year prior to his travel to Canada. He finished his studies at the same school he was attending previously and continued living at the same address. He applied for a valid Canadian study permit and left the country via ordinary commercial means. This indicates to me a lower level of fear and risk. [25] Second, I agree with the RPD that the Appellant has not established with sufficient credible evidence that the gang members have visited his friends and family in an attempt to find the Appellant since he has left India. These allegations stem from the Appellant's narrative, which states only that "I still hear from my family that members of the gang are still asking my whereabouts."3 The Appellant adduced four affidavits in support of this allegation apparently from four different individuals. All four two-page affidavits are virtually identical to the point that they appear to have simply had the names of the affiants changed.4 Each of the affidavits simply states that "in 2018 their Gang still came to his house two /three time to look for him." The fact that each of the affidavits is identical suggests to me that each of the four authors did not write their own accounts in their affidavits. This lowers the reliability of the documents because it is unclear whether these affidavits reflect first-hand witness knowledge. The fact that all the affidavits are unclear on how many times the gang came to the house further reduces their reliability because I would expect people with first-hand knowledge of an event to be able to describe in greater detail who came where when, and how many times they did so. [26] In oral testimony, the Appellant was asked about the ongoing visits from the gang. The Appellant testified that he is in near constant contact with his family members in India, talking with them by telephone four to five times per week.5 The Appellant was asked if the gang was still looking for him in India. The Appellant stated, "yes, since 2018 they have come to my house two to three times. If they don't come on their own, they will send someone inquiring about my whereabouts or they would, you know, meet my friends somewhere and they will try to ask them about my whereabouts. And they will send someone to my house asking my parents about me."6 [27] The Appellant was asked specifically when the last time the gang came to his house was. The Appellant offered only a broad response, saying "they came to my house in 2018 but however they continue to, you know, ask my friends whenever they cross my friends." The Appellant offered no details regarding any specific times the gang encountered his friends. The RPD asked again for the Appellant to be as specific as possible about the times the gang came to the house in 2018. In response, the Appellant stated only "they came around XXXX of 2018 to my house and they questioned my parents. They asked my parents about my whereabouts and they were also abusive with my parents." [28] The RPD asked once again for the Appellant to be as specific as possible about who exactly came to the house. In response, the Appellant stated that he did not know who came to the house, but he did know that they were from the persecutor's village. It has not been made clear how the Appellant could know what village the visitors were from if he did not know their identities. The Appellant stated that the visitors threatened him and his parents. At this point the RPD asked if this was the only time in 2018 that the gang visited the house. The Appellant then stated that they had also visited in XXXX and XXXX of 2018. When asked for specific details of those incidents, the Appellant stated only that the same threats were issued. [29] I agree with the RPD that the Appellant has not provided sufficient reliable evidence to credibly establish that the gang has visited the house. The Appellant was able to discuss these allegations in very broad terms, but when pressed to provide specific information about each allegation he was not able to provide detailed information about the encounters. This is problematic, since the Appellant has testified that he speaks with the relatives that had the encounters very frequently. I would expect the Appellant to be able to explain exactly how many times the gang has come looking for him instead of saying "two to three times" and vaguely stating that his friends have also been approached without providing any further information. I would also expect the Appellant to be able to explain in detailed terms how many people approached his family or friends each time, what they looked like, and exactly what they said and to whom. This problem is compounded on appeal, since the RPD cited the Appellant's vague knowledge of his allegations in its decision yet the Appellant has not provided any further explanation or rebuttal to this finding of vagueness on appeal. [30] The Appellant is correct to point out that his allegations are presumed to be true unless there are valid reasons for doubting their truthfulness. In this case, the four identical affidavits combined with unreasonably vague testimony are valid reasons to doubt this portion of the Appellant's allegations. [31] Even if these allegations were true, the last alleged contact the gang has apparently made occurred approximately three years ago. The gang apparently has never known the whereabouts of the Appellant after he left town, and they have not allegedly sought the Appellant in years. This all suggests to me that the agents of harm lack both the means and the motivation to pursue the Appellant in an IFA location on a forward-looking basis. I see no reason that the Appellant would need to cut off communication with his family or friends in order to live safely in the IFA. [32] Third, I agree with the RPD that the Appellant's belief that the gang has a presence in the IFA locations is speculative. The Facebook post, in which the primary agent of harm allegedly boasts from jail about his gang's influence in various parts of India, refers to five different states.7 None of these states is in the IFA locations. [33] The news articles adduced refer to areas in which the gang is operational.8 None of these areas is outside the state of Haryana (where the allegations of harm all took place), which is well away from the IFA locations. [34] The Appellant has not provided any further evidence of the gang's recent activities or presence in the IFA locations on appeal. I have no evidence that anyone similarly situated has attempted an IFA to get away from the gang and has been harmed. I have no evidence that the Jatt caste community has any wide involvement with the gang or could or would be activated to help locate the Appellant in the IFA. [35] Fourth, I agree with the RPD that it is entirely speculative to suggest that the police are working or would work with the agents of persecution to find the Appellant. The Appellant's own news articles detail the police and court processes that have been activated to counter this gang, including jailing the top members. While it is theoretically possible that in the future a corrupt official could be contracted to find the Appellant, in this case it remains nothing more than a mere possibility. This is because the Appellant has not pointed to any actual link between the gang and the police and has further not pointed to any cases in which a similarly situated person has been tracked in this way in order to harm them. [36] The Appellant has pointed to several documents in the National Documentation Package that deal with police and other government databases, such as the "CCTNS" database to track crime, the tenant registration system, and the biometric national identification card. Again, while I recognize that national databases pose a theoretical risk to privacy and open the theoretical possibility of misuse and risk in an IFA situation, such considerations must rise above being merely theoretical in order to render an IFA invalid. The documents that the Appellant has pointed to do not recount a single instance of an ordinary law-abiding citizen having been tracked across the country in order to harm them through use of these systems, and they do not recount a single instance in which any criminal element (let alone this particular criminal element) has infiltrated a government system in this way. [37] The Appellant has provided no evidence that the state is in any way an agent of harm, has provided no evidence that the gang he fears has infiltrated the state or its systems, and has provided no evidence that the gang has ever done so or would posses the capability to do so in the future. Thus, while I agree with the Appellant that contemporary databases make anyone theoretically traceable, in this particular case I find that the risk does not rise above a mere possibility. [38] In summary, the IFA location in Mumbai meets the first prong test of safety because the Appellant has not shown that he would face a serious possibility of persecution or, on a balance of probabilities, a risk to life, risk of cruel and unusual treatment or punishment, or a danger of torture should he relocate there. This is because his agents of harm lack the means and motivation to find and harm him in the IFA location. Second Prong: Mumbai is a reasonable IFA [39] The RPD correctly found that Mumbai would be a reasonable IFA in all the circumstances, including those unique to the Appellant. [40] In its analysis, the RPD noted that the Indian constitution guarantees the right to move freely within the country. India is a vast territory with a huge population of approximately 1.3 billion people. The Appellant is a member of the Ror caste. The RPD found that the Ror caste is found throughout India and there was no evidence that members of this caste face discrimination amounting to persecution or a s. 97 risk. The RPD found that Mumbai is a large and flourishing city with a diverse population. The Appellant has a high school education, putting him on par with the Indian average. The Appellant speaks three languages, including the dominant languages spoken in the IFA locations. The Appellant has a history of finding gainful employment and was able to find work in Canada at various locations despite not knowing anyone here or having any connections. Finally, the RPD noted that the Appellant has a supportive family in India with whom he is in regular communication. [41] The Appellant has not challenged any of the RPD's findings on the reasonableness of the IFA in Mumbai and has raised no arguments related to the reasonableness of the IFA on appeal. [42] In my independent review, I see no characteristics of the IFA or of the Appellant that would render the IFA unreasonable on the high standard prescribed by the Federal Court. For this reason, I agree with the RPD that the IFA in Mumbai is reasonable in all the circumstances, including those unique to the Appellant. [43] As the IFA in Mumbai meets both prongs of safety and reasonableness, it is valid. The existence of a valid IFA for the Appellant is determinative of this appeal. As such, I need not assess other issues. CONCLUSION [44] The RPD did not breach procedural fairness and I found no evidence of bias in the RPD's decision-making process. The RPD was correct to find that the Appellant has a valid IFA in Mumbai. The IFA is safe because the agents of harm lack the means and motivation to find and harm the Appellant in the IFA location, and it is reasonable in all the circumstances. [45] The Appellant has not shown that he faces a serious possibility of persecution on a Convention ground, or, on a balance of probabilities, a risk to life, risk of cruel and unusual treatment or punishment, or a danger of torture should he return to India. [46] The Appellant is not a Convention refugee and is not a person in need of protection. The appeal is dismissed pursuant to IRPA s. 111(1)(a). (signed) "COLIN ANDERSON" Colin Anderson April 26, 2021 Date 1 RPD hearing audio at approximately 00:26:00. 2 RPD hearing audio at approximately 00:27:30. 3 Exhibit RPD-1, RPD Record, page 16. 4 Exhibit RPD-1, RPD Record, pages 92, 94, 96, and 98. 5 RPD hearing audio at approximately 01:16:00. 6 RPD hearing audio at approximately 01:14:30. 7 Exhibit RPD-1, RPD Record, page 100. 8 Exhibit RPD-1, RPD Record, page 80. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-00211 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