MB7-20789

RAD File / Dossier de la SAR : MB7-20789 MB7-20790 / MB7-20791 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision April 3, 2019 Date de la décision Panel Susan Brown Tribunal Counsel for the person(s) who is(are) the subject of the appeal Maria Esposito Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellants, citizens of India, are a family consisting of XXXX XXXX XXXX (Father), XXXX XXXX XXXX (Mother) and XXXX XXXX XXXX (minor Son), who appeal a decision of the Refugee Protection Division (RPD), dated September 22, 2017, rejecting their claims for refugee protection. The Appellants are Sikhs from Punjab who fear persecution by the Punjab police who accuse them of being involved with militants. The RPD found that a viable internal flight alternative (IFA) is available to the Appellants in Mumbai or Delhi. The Appellants argue that the RPD erred in its IFA analysis. Following my independent review of the record, testimony and arguments of the Appellants, I dismiss the appeal and find that the RPD correctly identified a viable IFA for the Appellants in Mumbai or Delhi. BACKGROUND [2] According to their Basis of Claim Forms (BOCs),1 the Father was born in 1974, the Mother in 1986 and the Son in 2011. The Appellants claim that their problems started in XXXX 2014, when a friend of the Father came to visit them. The police had allegedly arrested the Father's friend and tortured him because they suspected him of helping militants. [3] The Father was arrested twice because of his friend. On XXXX XXXX, 2014, the Father was arrested, beaten and tortured, and the police accused him of working for militants. The Father was released after the intervention of his family and influential people in the area. The police asked the Appellant to report to the police station if he had news of militants or his friend. [4] On XXXX XXXX, 2014, the Father was arrested again, questioned about his friend and tortured in detention. He was released on XXXX XXXX, 2014, with the help of family and influential people. The Father was asked by the police to bring them his friend on XXXX XXXX, 2014. The Father fled to the city of Panchkula in Haryana, where some relatives took him in. [5] In the Father's absence the police arrested the Mother. She was detained for one night, beaten and sexually abused. The Mother was questioned about the Father, his friend and other militants. She was released with the intervention of the family and influential people. [6] After she received medical treatment, the Mother and the Son joined the Father in Panchkula. They found an agent who helped them leave India. The agent took the Appellants to the city of Chandigarh and arranged for them to come to Canada. [7] The police arrested and beat the Father's father. The Father's parents are living in hiding. After the Appellants left India, the police went to the relatives where the Father was staying in Panchkula to look for him. The police continued asking for him. [8] The Appellants left India on XXXX XXXX, 2015 via XXXX XXXX and arrived in Toronto on XXXX XXXX, 2015. The Appellants were refused an extension of their visitor visas on XXXX XXXX, 2016. The Appellants' claims for refugee protection were received on May 24, 2016, and heard on April 27, 2017, and June 20, 2017. The RPD designated the Father as the representative of his minor Son in accordance with section 167(2) of the Immigration and Refugee Protection Act (IRPA). The RPD rendered its decision on September 22, 2017. The RAD designated the Mother as the representative of her minor Son on October 31, 2017. STANDARD OF REVIEW [9] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing the oral testimony heard, which in particular cases attracts deference.2 Unless specifically stated below, I have applied the correctness standard. ANALYSIS [10] The determinative issue on this appeal in whether the RPD was correct when it found that the Appellants have a viable IFA in Mumbai or Delhi. RPD decision [11] A few weeks after the second hearing, on July 20, 2017, the Chairperson of the Immigration and Refugee Board identified a RAD decision3 as a jurisprudential guide on the availability of a viable IFA in Delhi or Mumbai for Sikhs from Punjab, pursuant to section 159(1) (h) of the IRPA. [12] The RPD disclosed the jurisprudential guide14 to the Appellants. In their response5 the Appellants questioned the retrospective application and scope of the jurisprudential guide and argued that the objective evidence cited in the jurisprudential guide did not form part of the National Documentation Package for India filed in their claims. [13] The RPD found that jurisprudential guide applied because an IFA was raised and discussed at the hearings, and the Appellants were given the opportunity to make further arguments when the jurisprudential guide was disclosed. The RPD also reviewed the objective evidence referenced in the jurisprudential guide and found that all the evidence contained therein was also available in the two NDPs disclosed for the claims.6 [14] The RPD found the jurisprudential guide applied to the Appellants' claims based on the following similar facts: the Appellants are from Punjab; their problems arose due to links with an individual accused by the police of being a militant; police detained, tortured and accused the Father of helping militants; the Father was released following the payment of bribes and required to report back to the police; the Father went to stay with relatives in another state; the Mother was detained by the police, beaten and sexually assaulted; and, the Mother joined the Father and escaped to Canada with the help of an agent. [15] The RPD relied on the objective evidence cited in the jurisprudential guide that interstate communications occur in the case of major crimes and noted there was no evidence that this was the Appellants' case. The RPD found that the reasoning of the jurisprudential guide applied to the Appellants' claims. As indicated in the jurisprudential guide, Sikhs do not generally face difficulties relocating in other areas of India, there are Sikh communities in almost every major city in India, the Appellants would have access to health care and education, and they would be able to practice their religion. [16] The RPD concluded that, by applying the jurisprudential guide, the Appellants have an IFA in either Delhi or Mumbai and the Appellants had failed to prove that it would be unreasonable for them to relocate in the proposed IFAs. Appellants' submissions [17] The Appellants submit that IFAs in Delhi or Mumbai are not reasonable and that the RPD erred because it did not take account of the threats, torture, and physical and sexual assaults they suffered. Specifically the Appellants argue that the RPD drew incorrect conclusions from some of the evidence without taking into account the following evidence:7 a) extreme acts of violence, detention and torture affecting the Sikh community in Indian cities adjacent to the Punjab, such as Mumbai or Delhi; b) the Father was arrested twice and the Mother was detained, beaten and raped. The risk of attacks continue as the police are looking for the Appellants and continue to pursue them; c) the Appellants have identified the Indian police as their agents of persecution; d) the Mother has the profile of a victim because she was sexually assaulted and also because she is on the police radar as the wife of the Father; e) the profile of the Appellants and their son; f) the threats against the Appellants come from an omnipresent power in India, the police, known for their acts of violence; g) the Appellants lived in hiding in Chandigarh for several days. The RPD conclusion is not reasonable because the Appellants cannot be expected to live in hiding for their whole lives; h) the rape that the Mother was subjected to, or the fact that "torture is widely practiced in India," in particular against Sikh women, requires a more profound analysis; i) the pain and suffering of the Appellants if they are obliged to leave Canada or consider the psychological suffering of the Appellants who were victims of torture; j) the adult Appellants' testimonies have sufficiently established the basis and reasons for their fear. They have also established, because they were considered credible, that the police are their agents of persecution who have the means at their disposition to find the Appellants; k) the RPD's finding of credibility requires that the Appellants be determined credible with respect to the persecution they would have received while in hiding; l) in so doing, it was erroneous for the RPD to conclude that the Appellants' agents of persecution do not have the capacity to find them in Mumbai or Delhi and that they would be safe; m) the Appellants have testified that the police in India can find them using lessors, neighbourhood merchants and neighbours; n) finally, the RPD justified its decision through the application of the jurisprudential guide instead of undertaking its own independent analysis. [18] A number of the submissions of the Appellants do not need to be addressed because they appear to be made in error: the RPD found that the Appellants had an IFA in Islamabad;8 the RPD did not made any findings about the Appellants' time spent in hiding in Chandigarh as asserted in submissions in (g) and (k); and, the RPD did not make any conclusions about the credibility of the Appellants as asserted in submissions in (j) (k), (l). [19] The Appellants do not cite any objective evidence to support submissions (a) and (h) made about the treatment of Sikhs generally, and specifically women, which is contrary to the objective evidence cited by the RPD through reference to the jurisprudential guide. [20] The Appellants did not present any medical evidence to support submissions (i) about the psychological effect of leaving Canada. [21] The RPD cited the jurisprudential guide, and the documentary evidence cited therein, to support its finding that the Appellants do not have the "major crime" profile which attracts interstate police communication, which responds to their submissions in (b) - (f), (j), (l) and (m). [22] Contrary to the Appellants' submission (n), I find that as of the date of the decision the RPD properly applied the jurisprudential guide: The ...[IRPA] requires the ...[IRB] to "...deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit." Ensuring the fair and efficient determination of refugee claims before the ...[RPD] and appeals before the ...[RAD] is of great importance to the ...[IRB] and is essential to dealing with a significant backlog in the refugee determination continuum. The identification of Jurisprudential Guides is meant to facilitate decision-making in both Divisions consistent with the IRB's statutory obligation as set out above. It is also meant to promote consistency and coherence in the treatment of factually similar cases. As indicated in the IRB's Policy on the Use of Jurisprudential Guides (Policy 2003-01, as amended on December 1, 2016) ("the Policy"), RPD and RAD members are expected to apply Jurisprudential Guides in cases with similar facts or provide reasoned justifications for not doing so. 9 RAD IFA analysis [23] As of November 30, 2018, the designation of the jurisprudential guide was revoked "as a result of developments in the country of origin information...such as information on connectivity between police databases across India."10 Therefore, I will undertake an independent review to confirm the IFA finding in that context. [24] The RPD complied with the procedural requirements to raise an IFA before or during the hearing. An IFA was raised as an issue at the outset of the first hearing, and Delhi as a potential IFA was canvassed with the Appellants at the second hearing.11 Once the issue of IFAs is raised, the onus is on the Appellants to show that they do not have an IFA. As detailed above, the RPD also provided the Appellants with the jurisprudential guide detailing the availability of IFAs in Mumbai and Delhi for Sikhs from the Punjab, and the RPD received their submissions. IFA Test [25] The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal decision in Rasaratnam:12 (1) The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA. (2) Moreover, the 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 claim, for him to seek refuge there. [26] Both prongs must be satisfied to find that an appellant has an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with the Appellants to show that they do not have an IFA. The finding of an IFA must be based on a distinct evaluation of the region for that purpose, taking into account the appellant's personal circumstances. An IFA must be a realistic and attainable option. The appellant cannot be required to encounter great physical danger or undergo undue hardship in traveling there and staying there. First prong-no serious possibility of persecution [27] With respect to the first prong of the test, the RPD relied on the jurisprudential guide to find that the Punjab police would not discover them in Mumbai or Delhi. I will assess that finding in the context of whether, on a balance of probabilities, the Punjab police would discover the Appellants in the proposed IFAs. [28] Following my own review of the record, I note that neither of the adult Appellants testified that they have been charged with or convicted of a crime, as confirmed by their immigration documents which state that they were "illegally detained by the police."13 [29] The most recent objective evidence says that the only police database that exists in India is the Crime and Criminal Tracking Network and Systems (CCTNS), "a database with information on crime and criminals that interconnect police stations across the country."14 There is not much specific information on categories of person that may be included in police databases; the objective evidence says that "tracking of persons of interest is difficult and police have a mixed record of success."15 According to one source: [i]f they put their minds to it, police authorities in India are able to track and locate persons of interest, depending on the heinousness of the crime and the pressure received from political authorities. For example, it is possible [for them] to locate a person of interest in cases of rape, murder or armed robbery. Social class also plays a vital role: the likelihood of prosecution is much greater if a case involves the murder of a politician's daughter versus the murder of a slum dweller.16 [30] There is no evidence to demonstrate that the Appellants qualify as persons of interest who could be tracked outside the CCTNS database. The Appellants do have criminal records and have not been charged with any crime. They are not suspected of being militants and are just being sought by the police because the Father's friend is a suspected militant. [31] On the specific issue of tenant verification, the most recent objective evidence cites the Mumbai Police Commissioner who stated, "it is impossible for the police to actually verify the identity of all those who rent property...the police force is not equipped to personally go and check all new tenants..."17 Another source cited by the objective evidence says that "the police is just ill-equipped and short-staffed to actually carry out such verifications when they get over 50 forms daily."18 [32] There is evidence that the Appellants are not in the CCTNS database. The Appellants left India using passports issued under their true identities. The Father testified that they were able to do so without any difficulties because their agent made arrangements and also testified that they went through an immigration check19. The objective evidence20 indicates that, at the international airport in Delhi, the Appellants would have undergone an immigration check by the Bureau of Immigration (BOI). The BOI reports that Indian nationals must fill a departure card at the time of departure, including their name, date of birth, passport number, and address in India. Air India states that "embarkation forms should be duly filled out and submitted to customs and immigration authorities before boarding the aircraft."21 [33] The objective evidence identifies four components to the immigration check: checking of passports/travel documents to identify the holder and to look out for cases of forgery; ascertaining the eligibility of the holder either to leave or enter India as per existing rules and regulations; computer confirmation in clearing passengers; and a health check.22 [34] Following my own review of the testimony and the objective evidence, I find, on a balance of probabilities, the Appellants would have been required to provide the required documentation when they went through the immigration check by the Indian immigration authorities prior to boarding their aircraft, and would have been stopped if their names were in the police database. [35] For all of these reasons, I find that the Appellants are not in the police database. The Punjab police would not, therefore, find out if the Appellants relocated to Delhi or Mumbai. Therefore, the Appellants do not, on a balance of probabilities, face a serious possibility of persecution in either IFA. Second prong-not objectively unreasonable (or unduly harsh) in the circumstances [36] As noted above the RPD canvassed a number of issues based on objective evidence as referenced in the jurisprudential guide, including: Sikhs do not generally face difficulties relocating in other areas of India; there are Sikh communities in almost every major city in India; the Appellants would have access to health care and education; and they would be able to practice their religion. This validity of this objective evidence is not affected by the revocation of the jurisprudential guide. [37] While the Appellants made submissions about the ill treatment of Sikhs generally, and specifically women, they did not cite any supporting evidence. I have addressed the issues raised by the Father about the tenant verification procedure. [38] I do not find that the Appellants have met their onus to show it would be objectively unreasonable or unduly harsh to them to relocate to Delhi or Mumbai. CONCLUSION [39] I have reviewed the evidence on the record, including the recordings of the two hearings, assessed the Appellants' submissions, considered the effect of the revocation of the jurisprudential guide and examined the most up-to-date objective evidence. Following my independent analysis I find that the Appellants have an internal flight alternative in Mumbai or Delhi. I am satisfied that there is no serious possibility of the Appellants being persecuted or, on a balance of probabilities, at risk of harm in Mumbai or Delhi and that it would not be objectively unreasonable in all the circumstances for the Appellants to live there. [40] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the IRPA. (signed) "Susan Brown" Susan Brown April 3, 2019 Date 1 RPD-1, RPD Record, pages 24-57, Exhibit 1. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII). 3 X (Re), 2017 CanLII 43112 (CA IRB). 4 RPD-1. RPD Record, page 152, Exhibit 11. 5 RPD-1, RPD Record, page 209, Exhibit 13. 6 RPD-1, RPD Record, pages 7-9; RPD Reasons, paragraphs 22-26; Exhibit 3, NDP for India 31 March 2017; and Exhibit 10, NDP for India 31 May 2017. 7 P-2, Appellants' Record, pages 24-26, Appellants' Memorandum, paragraph 35. 8 P-2, Appellants' Record, page 21, Appellants' Memorandum, paragraph 20. 9 IRB, Policy Note, https://irb-cisr.gc.ca/en/legal-policy/policies/pages/NoteTB7-19851.aspx. 10 IRB, Policy Note: Notice of Revocation of Jurisprudential Guide - India, https://www.irb-cisr.gc.ca/en/legal-policy/policies/Pages/revocation-guide-india.aspx. 11 RPD Hearing Audio Recording of June 20, 2017, 0:31:40. 12 Rasaratnam v. Canada (Minister of Employment and Immigration), 1992 1 FC 706. 13 RPD-1, RPD Record, pages 170 and 188, Exhibit 2. 14 RAD-1, RAD Record, National Documentation Package for India, 4 December 2018, document 10.6, IND106120.E, India: 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, page 3. 15 Ibid., page 14. 16 Ibid., page 14. 17 Ibid., page 12. 18 Ibid., page 13. 19 RPD Hearing Audio Recording of April 27, 2017, 2:15:00-2:19:00. 20 RAD-1, RAD Record, National Documentation Package (NDP) for India, December 4, 2018, document 14.4, IND105780.E, India: Information on airport security screening procedures for passengers departing on international flights, 28 April 2017. 21 Ibid., page 9. 22 Ibid., page 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-20789 MB7-20790 / MB7-20791 RAD.25.02 (September 18, 2018) 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 (September 18, 2018) Disponible en français