VC1-04967

RAD File / Dossier de la SAR : VC1-04967 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 November 23, 2021 Date de la décision Panel K. Qureshi Tribunal Counsel for the person who is the subject of the appeal Jeffrey Nadler 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] XXXX XXXX (Appellant) is a citizen of India. He alleges that he fears persecution from RS who is a member of the Bharatiya Janata Party (BJP) party and is a Member of Legislative Assembly (MLA) in Hyderabad, Telangana state. The Appellant says he was an active member of the Muslim community in his area. In XXXX 2018, he was summoned by RS and propositioned to join the BJP in order to help RS garner support among Muslims. When the Appellant did not accede, he was threatened by phone. The Appellant relocated to a friend's house and then a cousin's house and applied for a Canadian visa. He fled India in XXXX 2018 and claimed refugee protection in December 2018. He says since then, his family and a friend have been threatened or attacked by RS' men, Hindu extremists, and the police. He says Hindu extremists have accused him of being a terrorist to police and that his brother's attempts to seek police assistance have been rebuffed. The Appellant's family is now living in Aurangabad in Maharashtra state. [2] The Refugee Protection Division (RPD) rejected the claims on the basis of an internal flight alternative (IFA) in Aurangabad in Maharashtra state, Kasaragod or Thiruvananthapura in Kerala state, or Murshidabad or Kolkata in West Bengal state. The Appellant appeals to the Refugee Appeal Division (RAD). He does not present new evidence. DECISION [3] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. ANALYSIS [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 Appellant does not have a safe IFA [5] The test for assessing an IFA is two-pronged. First, I must be satisfied, on a balance of probabilities, that there is no serious possibility of the appellant being persecuted in the part of the country where the IFA exists and/or the appellant would not be personally subjected to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, or torture in the IFA. Secondly, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all of the circumstances, including those particular to the appellant, for an appellant to seek refuge there. Both prongs must be satisfied to find that an appellant has an IFA. Once the issue of IFA has been raised and the potential IFA(s) have been identified, the burden of proof rests with the appellant to show that they do not have an IFA. [6] The RPD concluded that RS and his associates would have the motivation to seek the Appellant in an IFA but determined that the Appellant did not establish they had the means to do so. I have conducted my independent assessment and agree with the RPD that RS has the motivation to seek the Appellant in an IFA. However, I find the Appellant has also established that RS has the means to do so and therefore that he does face a serious possibility of persecution in the IFAs, as follows. Standard of proof under the first prong [7] At the outset, I note the Appellant submits the RPD applied a higher standard of proof for whether he is at risk in the IFAs. Specifically, the Appellant submits the RPD conducted the assessment on a "balance of probabilities" as opposed to on the lower standard of "serious possibility." I note, however, that in the case of Bakare,2 the Federal Court disagreed with the claimants' argument that either the RPD or the RAD placed an elevated burden on them with respect to the risk of persecution. The Court noted "there is a distinction between the evidentiary standard on which facts are established, and the requisite legal standard for a finding of persecution. The former standard is that of the balance of probabilities, while the latter is that of a serious possibility of persecution. These differences were set out clearly by the Court of Appeal in establishing the test for an IFA, stating that the decision maker 'must be satisfied on a balance of probabilities that there is no serious possibility of the appellant being persecuted in the part of the country to which it finds an IFA exists.'" [emphasis added] The Court went on to state: it was open to the RAD on the evidence before it to conclude that the agents of persecution did not have the means to find them in Lagos. Contrary to the XXXX' arguments, the RAD did not apply the wrong standard of proof in assessing this issue. Rather, it appropriately considered the evidence on the evidentiary standard of a balance of probabilities, while applying the "serious possibility" standard in assessing risk of persecution.3 [emphasis added] The RPD had assessed the evidence and stated that the XXXX "have provided insufficient reliable and credible evidence to indicate, on a balance of probabilities, the perpetrators would locate the claimants in Lagos to persecute them." While the XXXX challenged the use of the words "would locate" before the RAD, I agree with the RAD that read in context, the RPD did not elevate the standard relevant to the possibility of persecution. Rather, it was simply making a statement regarding the lack of evidence to support, on the applicable balance of probabilities standard, the XXXX' assertion about their risk of persecution in Lagos at the hands of the elders.4 [emphasis added] [8] That is, the RPD and RAD are entitled to make findings on a balance of probabilities with respect to an agent of harm's means and motivation in the course of reaching a conclusion as to whether or not there is a serious possibility of persecution under the first prong of the IFA analysis with respect to section 96 claims. Wife was located by RS in Delhi [9] The RPD noted that, aside from an incident in Delhi, all of RS' attempts to seek the Appellant have been in Hyderabad, and that there have been no physical attacks or in-person threats in Aurangbad. Also, since the Appellant's wife and children relocated to Aurangbad in XXXX 2020, and his mother and brother located there in XXXX 2020, the only threats they received are a phone call to the wife's longstanding phone number earlier this year in XXXX. Based on my assessment, I find the RPD erred by concluding the foregoing would not support a finding that there is a serious possibility of the Appellant being persecuted in the IFA, as follows. [10] The RPD suggests that there is an "equal" possibility that the wife was located in Delhi "by chance" rather than as a result of a deliberate effort by RS.5 I disagree. There is evidence of a number of deliberate efforts by RS to locate the Appellant, with RS' men approaching his family and friend and calling his wife. For the wife to have been located randomly in a market by four BJP men who specifically asked for her husband "by chance" in a country of over 1.3 billion is not an equal possibility. Rather, I find that the Appellant's wife was deliberately sought and located in Delhi by RS. I find this suggests that RS does have the means to locate individuals in other parts of India, which supports that there is a serious possibility that the Appellant could also be located and persecuted in the IFAs. Notably, while the RPD indicates the proposed IFAs are not BJP territory, neither is Delhi which is ruled by the Aam Aadmi Party (AAP).6 Lack of in person threats or attacks in Aurangbad is not significant [11] I also do not find the lack of in-person threats or physical attacks in Aurangbad against the Appellant's family indicates that he does not face a serious possibility of persecution in an IFA on a forward-looking basis. First, the evidence indicates that RS is not after the Appellant's family; he is after the Appellant. Second, the wife's affidavit indicates she specifically informed the BJP assailants in Delhi that the Appellant is in Canada.7 I therefore do not find it is significant that, to date, RS's men have not physically confronted his family in Aurangbad in order to persecute the Appellant given that they are aware he is in Canada. Finally, while the wife moved to Delhi in XXXX 2019, it was not until over a year and half later, in XXXX 2020, that she was located. As of the date of this appeal, however, less time has elapsed since the Appellant's family relocated to Aurangbad, which further lessens the significance of the Appellant's family not being physically confronted there. Notably, the wife was called on her phone this year which demonstrates that RS continues to be interested in the Appellant. Therefore, based on the foregoing, I do not find the lack of in-person threats or attacks against the Appellant's family in Aurangbad suggests that he would not face a serious possibility of persecution in the IFAs. Evidence that RS does have connections with police [12] It was the Appellant's evidence that his brother complained about the local police to the police commissioner on XXXX XXXX XXXX 2020. Then, four days later, RS' men arrived at his family's home, broke items, and threatened his family. The Appellant suggests in his narrative that RS has strong influence over the police and that someone from the commissioner's office must have notified him of the brother's complaint. The RPD concluded however, that the Appellant "did not adduce sufficient evidence of a causal link between the two events."8 [13] Based on my assessment, I find that the foregoing does demonstrate a causal link between the police and RS. First, I find the timing of the BJP attack only four days after the brother complained to the police commissioner is significant. Secondly, the brother's affidavit indicates the police outright refused to name RS in his complaint, which also suggests a connection between RS and the police. Finally, the country condition evidence supports that police forces can be subject to political interference9 and, as RS is an MLA in the BJP, he would have a profile of an influential politician with respect to the local police. Therefore, in the event the Hyderabad police become aware of the Appellant's return to India and his location, I accept that there is a serious possibility that RS could be notified and therefore be able to persecute the Appellant in an IFA. [14] Finally, in terms of how the Hyderabad police could become aware of the Appellant's whereabouts in the IFAs in the first place, I note, first, that a complaint of terrorism was lodged against the Appellant which the police did investigate by attending at his family's home. According to information in a Response to Information Request (RIR), the CCTNS may record data from First Information Reports (FIRs), but also from the police's daily diary or the general diary.10 This suggests the Appellant could have been entered into the CCTNS. As of October 31, 2020, there was "connectivity" at 15,620 police stations out of 16,098 police stations in India (97 percent) and CCTNS software has been "deployed" at 15,263 of 16,098 police stations in India (95 percent).11 According to another RIR,12 while there is generally little inter-state police communication, there may be an exception in cases of terrorism, which is an allegation in the Appellant's case. Finally, according to another RIR,13 where the police, "put their minds to it" they are able to track persons of interest depending on the "heinousness of the crime and pressure from political authorities." [emphasis added]. In the Appellant's case, there are allegations of political interference in the police by RS. [15] Overall, I acknowledge there is much evidence in the National Documentation Package (NDP), as noted by the RPD, that suggests it is difficult to track persons to an IFA in India. However, in the particular factual circumstances of this case, those being that the Appellant is being sought by an MLA from a party that rules nationally, accusations of terrorism and his wife having been located in Delhi, I find the foregoing supports that there is a serious possibility of the Appellant being persecuted in an IFA. Lack of police follow up after XXXX XXXX, 2020 is not significant [16] Finally, the RPD noted14 that after the police visit to the Appellant's home on XXXX XXXX, 2020, there is no evidence that the police made "attempts to follow up on this incident." The RPD found that this indicated a lack of sufficient credible evidence to establish the police have "active interest" in the Appellant based on an alleged complaint made by a Hindu extremist. [17] I note, however, that the brother's affidavit indicates that during this police visit, he informed the police that the Appellant is in Canada and would not be returning.15 I therefore do not find the lack of police follow-up, knowing the Appellant to be in Canada, to be significant. Conclusion on means [18] Overall, in the circumstances of this case, I find RS would have both the means and motivation to locate the Appellant in an IFA. I therefore find the Appellant would face a serious possibility of persecution in the IFAs. As the first prong of the IFA analysis has been satisfied, I will not proceed to the second prong. CONCLUSION [19] The appeal is allowed. I substitute my own decision that the Appellant is a Convention refugee. (signed) K. Qureshi K. Qureshi November 23, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Bakare v. Canada (Citizenship and Immigration), 2021 FC 967, at para. 28. 3 Ibid., at para. 4. 4 Ibid., at para. 29. 5 Exhibit RPD-1, RPD Record, RPD Reasons, p. 8, at paras. 25. 6 National Documentation Package (NDP) for India (30 June 2021), Item 1.10: ?India: Status of political parties in different states (as of March, 2020), Maps of India, 7 June 2021. 7 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 81. 8 Exhibit RPD-1, RPD Record, RPD Reasons, p. 12, at para. 36. 9 NDP for India (30 June 2021), Item 10.10: ?Country Policy and Information Note. India: Actors of Protection. Version 1.0., United Kingdom Home Office, January 2019. 10 NDP for India, (June 30, 2021), Item 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 (IRB) of Canada, Response to Information Request (RIR), IND200626.E, May 26, 2021, p. 6. 11 Ibid., p. 2. 12 NDP for India (30 June 2021), Item 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 and surveillance technology (2013-May 2016), IRB of Canada, RIR IND105494.E, 10 May 2016. 13 NDP for India (30 June 2021), Item 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.; tenant verification; whether police authorities across India are able to locate an individual (2016-May 2018), IRB of Canada, RIR IND106120.E, 25 June 2018, p. 14. . 14 Exhibit RPD-1, RPD Record, RPD Reasons, p. 12, at para. 37. 15 Exhibit RPD-1, RPD Record, Exhibit 4, at p. 88. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC1-04967 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