MB7-01214

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 File / Dossier de la SAR : MB7-01214 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montreal, Quebec Appel instruit / entendu à Date of decision August 8, 2018 Date de la décision Panel Me Miriam McLeod Tribunal Counsel for the person(s) who is(are) the subject of the appeal Baldev Singh Sandhu Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, citizen of India, appealed a decision of the Refugee Protection Division (RPD), dated November 22, 2016, rejecting his claim for refugee protection. The Appellant does not submit new evidence in support of his appeal nor does he request a hearing before the Refugee Appeal Division (RAD). The Minister did not intervene in the Appeal. DETERMINATION [2] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. BACKGROUND AND OVERVIEW OF APPEAL a. Basis of Claim (BOC) [3] The Appellant alleges that he will face persecution as well as a risk to his life, a risk of torture or cruel and unusual treatment or punishment in India due to his involvement with the Shiromani Akali Dal (Mann) political party in the state of Punjab. The Appellant began supporting the party in 2006 by voting for the party, driving their vehicles, and distributing their posters. He became a member in 2008. The Appellant alleges that he was targeted by a local rival party leader, XXXX XXXX XXXX, due to a land dispute as well as their membership in opposing political parties - Mr. XXXX was an XXXX XXXX of the Shiromani Akali Dal (Badal) party and the Appellant was an active member of the Shiromani Akali Dal (Mann) party. The Appellant claims to fear Mr. XXXX and the workers of the Shirmani Akali Dal (Badal) and BJP parties who have attacked and threatened him as well as the police who were implicated in mistreating and harassing him, who support the parties in power, and who laid false criminal charges against him at the behest of Mr. XXXX. The false criminal charges filed against him included robbery and assault causing bodily harm. The Appellant alleges that his land was forcibly taken from him in XXXX 2012 by Mr. XXXX and his associates as well as police, who beat him and threatened to kill him if he did not stop his support for the Akali Dal (Mann) party. The Appellant fled India in XXXX 2012 to settle in Singapore, however he could only stay there for a few weeks. He left and returned to India where he hired agents who smuggled him through South and Central America to the United States, where he claimed refugee status and then came to Canada to claim protection after his claim was refused in the US and US authorities began preparing to deport him to India. The Appellant claimed refugee status in Canada shortly after his arrival in XXXX 2016. b. RPD Decision [4] The Appellant's refugee claim was heard on November 22, 2016 and was rejected the same day. The RPD found the Appellant to be generally credible and found that he had a genuine fear of returning to India for the reasons he alleged, namely persecution as a member of the Shiromani Akali Dal (Mann) party. However, the RPD concluded that the Appellant's fear was not objectively well-founded for two reasons. First, the RPD found that the danger to him has stopped in that he left India in XXXX 2012 and aside from a court case filed in 2009 that proceeded in 2013 pursuant to which the Appellant is wanted for a continuation, nothing had arisen between 2012 and the present to establish an ongoing serious possibility of harm, since he has not been politically active during this time and he was never involved at a high level in the party. Second, the RPD found that the Appellant would benefit from state protection in India. The RPD noted that the Appellant alleged a fear of unfair, rigged prosecution. The RPD determined that the country conditions documentation indicates that while the Indian justice system is acknowledged to be corrupt, it has a high degree of independence from politics and the court case already in the works against him did not show signs of political motivation in its origin nor in its outcome. The RPD found that while the case took four years to get to court, the case was published, the proceedings were public, and the judge weighed both sides argumentation before exonerating the accused who were present. The RPD also noted that there was no documentation showing that Mr. XXXX interfered with or otherwise fabricated the criminal case against him. As such, the RPD concluded that the Appellant was neither a Convention refugee nor a person in need of protection. c. Grounds of Appeal [5] The Appellant argues that the RPD erred in fact, in law and in breaching the duty of procedural fairness. The Appellant alleges that state protection was never raised as an issue, either before or during the hearing before the RPD, indicating that the RPD only highlighted the issues of credibility and internal flight alternative (IFA). The Appellant further raises issues with the interpretation provided to him at the hearing. He alleges that while he raised the issue of poor interpretation with the RPD, the issue was not taken seriously and, as a result, he was not provided with a fair opportunity to present his claim due to poor interpretation services, which violated the principles of natural justice. The Appellant also argues that the RPD erred in not considering the documentary evidence that supported the Appellant's credible testimony to the effect that his fear of persecution in India was objectively well-founded. The Appellant therefore requests that the RAD grant the appeal and either recognize him as a Convention refugee or person in need of protection or return the file to the RPD with any instructions the RAD deems necessary in the circumstances. SCOPE OF THE RAD APPEAL [6] The Federal Court of Appeal in Huruglica1 indicates that the RAD must review the RPD decision on a correctness standard for questions of fact, mixed fact and law, and law which raise no issue with respect to the credibility of oral evidence. The RAD Three Member panel decision in X (Re)2 specifies that the RAD may show deference to the RPD where the RAD determines that the RPD had a meaningful advantage with respect to the assessment of oral evidence. In cases where the RAD shows deference to the RPD, the standard of RAD reasonableness will be applied. In the present case, where the RAD determines that deference is required, the reasons for showing deference will be explained. However, even where the RAD determines that the RPD had a meaningful advantage, the RAD will use the standard of correctness for the overall credibility finding and final determination. ANALYSIS [7] The RAD notes at the outset that the RPD found that the Appellant was credible and the RAD finds that the RPD did not err in making such a determination. The RAD has conducted an independent analysis of all of the evidence, including listening to the recording of the hearing in order to assess the RPD decision in light of the Appellant's arguments. The RAD will first address the Appellant's arguments with respect to interpretation issues before turning to the arguments that relate to the RPD findings relating to the merits of the Appellant's claim for refugee protection. Interpretation Issues [8] In its decision, the RPD mentions that it found the Appellant to be credible despite some vague answers and "despite counsel's interjections addressed at perceived errors in the translation"3. The Appellant argues on appeal that the RPD did not observe the principles of natural justice by failing to provide a competent interpreter to the Appellant during the hearing. The Appellant submits that the interpretation provided was "incomplete and incorrect and its quality was very poor"4. As a result, the Appellant maintains that the RPD erred. [9] The RAD notes that the Appellant provided no examples of where errors in translation occurred in support of his argument on this point. The Appellant did not provide a transcript or other evidence to indicate specifically where incomplete or incorrect interpretation occurred during the hearing nor indicate the impact, if any, of the errors on the overall interpretation of his testimony. [10] After listening to the recording of the hearing, the RAD finds that the Appellant's counsel interjected several times to highlight where the interpretation of the Appellant's testimony had not been accurate and clarified the Appellant's testimony or asked the RPD to confirm what the Appellant had actually said. Each time this happened, the RPD followed up on the lawyer's comments and rephrased the questions posed to the Appellant in order to give him a chance to answer the question and have his answer communicated correctly or otherwise accepted the Appellant's counsel's corrections, since he spoke the language. At one point in the hearing, the RPD reproached the lawyer for his interjections because the RPD indicated it was concerned that the lawyer was testifying on behalf of the Appellant rather than correcting interpretation errors.5 The lawyer indicated that he was interjecting because he had concerns about the interpretation, however the RPD did not find that there was a problem and the interpreter stated that what the lawyer had interjected at that moment was not, in fact, what the claimant had said.6 However, the RAD notes that after the RPD reproached the Appellant's counsel for interjecting, counsel interjected two or three more times where he indicated that the answer was not translated exactly as stated by the Appellant and each time the RPD rephrased the question or asked the Appellant to confirm whether he had said "X" or "Y". It is trite law that issues with interpretation should be raised at the earliest opportunity. The RAD concludes that, in the absence of specific examples of translation errors and in light of the fact that the Appellant's counsel did not formally request to the RPD that the interpreter be replaced nor ask that the hearing be postponed until a different interpreter could be found, the RAD finds that the RPD did not violate the principles of natural justice since it ensured that the Appellant was given an opportunity to clarify or repeat his testimony where there were concerns as to the interpretation provided over the course of the hearing before it. Availability of State Protection [11] In its decision, the RPD highlighted that where refugee protection is claimed against a democratic country, there is a presumption of state protection and that the Appellant must rebut the presumption with "relevant, reliable and convincing evidence."7 The RPD found that "the specific context of considering state protection in this claim is the allegation that the claimant is facing an unfair rigged prosecution".8 The RPD noted that the country conditions documentation showed that the justice system in India is corrupt, however shows a high degree of independence from political influence and that the court case in which the Appellant was implicated did not appear to show political motivation in its origin nor in its outcome.9 The RPD found that the Appellant had not submitted any documentation proving that Mr. XXXX had created or otherwise interfered with the case against him.10 The RPD considered that the hearing was not secret, the reasons for the decision were published, the defendants were permitted to make representations, the prosecution's allegations were tested against the evidence of witnesses and other sources and that the verdict was both reasonable and exonerated the Appellant's co-defendants.11 The RPD questioned the Appellant as to whether he would get a fair trial and he stated that he was the principal accused and indicated that the leader of his party, Simranjit Singh Mann, had been arrested many times.12 The RPD did not accept these explanations, finding instead that the court documents did not make him out to be the instigator of the violence in question and concluding that Mann has a very different profile from that of the Appellant since he was the leader of a party that wishes to secede from India, that he was accused of sedition, not criminal matters, and all but a few of the accusations against Mann had been dealt with.13 As a result, the RPD concluded that the Appellant had not rebutted the presumption of state protection.14 [12] The Appellant argues that the RPD erred in law by rendering its decision on the issue of state protection because the RPD never indicated that state protection was an issue that needed to be addressed. The Appellant submits that he was caught by surprise when the RPD refused his claim for protection based on the availability of state protection because the only issues identified by the RPD at the beginning of the hearing were credibility and IFA, and after the Appellant testified, the RPD accepted the issue of IFA was no longer alive.15 The Appellant maintains that he was found to be credible, that he had provided documentation proving he was implicated in a criminal case in which he was declared a proclaimed offender and consequently, would be arrested and detained upon his return, thereby establishing that he would be killed or unfairly prosecuted if he returned.16 As a result, the Appellant argues that by rendering its negative decision in large part on the issue of state protection without having identified nor raised it as an issue during the hearing, the RPD erred. [13] After listening to the recording of the hearing, the RAD finds that the RPD erred in violating the Appellant's right to procedural fairness by basing its decision on an issue that was not raised by the RPD over the course of the hearing. At the outset of the hearing, the RPD indicated that the issues in the Appellant's case were credibility and IFA.17 Then, over the course of the hearing, the RPD only asked the Appellant two questions that could be considered to have dealt with state protection - namely questions regarding whether the Appellant believed he would get a fair trial if he were to return to India to face the criminal charges against him. Then, after the Appellant completed his testimony, his counsel made oral submissions for which the RPD again did not ask for observations on state protection, and counsel submitted to the RPD that he did not believe that the Appellant had a viable IFA given his particular fears and the country conditions, to which the RPD responded "I agree"18. In the RAD's opinion, posing two questions that relate to state protection did not constitute sufficient notice to the Appellant that state protection was an issue to be addressed. While the Federal Court of Canada has consistently held that the issues to be addressed in a refugee claim need not be expressly highlighted to the claimant where it is clear by the line of questioning that a given issue has been raised, the RAD finds that in this case, the RPD did not give the Appellant sufficient notice of the issue of state protection. The RAD acknowledges that, while state protection is always an issue to be addressed in a claim for refugee protection, where the RPD has clearly identified a narrower focus on specific issues to be addressed by the Appellant, the RPD violates the Appellant's right to procedural fairness where it then renders its decision on an issue that was not clearly raised. [14] The RAD also finds that the RPD unduly limited its analysis of the availability of state protection to the Appellant's fear of unfair, rigged prosecution and that this was an error. The RPD stated in the decision that the Appellant feared an unfair rigged prosecution, however that was only one element of his fear that related to state protection. He indicated that he feared returning to India because the criminal charges against him and his status as a "proclaimed offender" meant that he would be arrested by police upon his return to India. He had indicated that he feared police as well as his agent of persecution and his associates since his agent of persecution had influenced the police to file false criminal charges against him and that prior to the laying of the criminal charges, the police had targeted him on a regular basis for threats, harassment and arbitrary arrest due to his support of the Akali Dal (Mann) party. He indicated that he feared that he would be killed or that other false charges would be filed against him upon his return because of his ongoing conflict with his persecutor and his membership in the Akali Dal (Mann) party. While the RPD stated in the decision that the Appellant had not provided documentary evidence to the effect that Mr. XXXX had created or interfered in the criminal case against him, the RAD notes that the RPD had the Appellant's testimony to that effect, which was determined by the RPD to be credible, and that given that the Maldonado presumption of truthfulness was therefore in full effect, further corroboration by documents was not necessary. The RAD therefore finds that by limiting its analysis of state protection to unfair, rigged prosecution, the RPD failed to consider the other elements of his fear that involved state protection - namely his fear of police and that this was an error. [15] The RAD also notes that the RPD inherently contradicted itself by finding that the Appellant would benefit from state protection in India while also accepting that there was no internal flight alternative for the Appellant in India. How can there be state protection if the Appellant cannot be safe from persecution anywhere else in the country? [16] Finally, the RAD considers that the RPD's error in rendering its decision on an issue that was not raised to the Appellant in itself is sufficient to grant the present appeal. However, since the RAD finds itself in a position to substitute the decision of the RPD with the one that, in its opinion ought to have been rendered, the RAD must address the RPD's finding that the Appellant did not establish that he has a well-founded fear of persecution in India. Evidence of a Well-Founded Fear [17] The RPD concluded that the Appellant had established his subjective fear of persecution, however that the danger has stopped because there had been no further incidents since 2012 that "would establish an ongoing serious possibility of harm".19 The RPD reasoned that he had received no threats, messages or calls since 2012 despite the fact that his agent of persecution, Mr. XXXX, was aware of the location of his residence in India and considered the fact that he had not been politically active in years and was never of particular significance within the Akali Dal (Mann) party.20 The RPD also noted that, while his wife was scared and moved in with her relatives after her husband fled the country, such was to be expected of a woman in her situation in the absence of her husband and that her fear was therefore not probative evidence.21 The RPD then turned its mind to the country conditions documentation and indicated that the Akali Dal (Mann) party still exists, is being monitored, and the leader has been arrested many times for sedition. The RPD concluded that the Appellant's evidence had not established that he faces serious ongoing threats or risks of harm from his agent of persecution and his associates.22 [18] The Appellant argues that the RPD erred in finding that danger to the Appellant had stopped since nothing arose between 2012 and now. The Appellant submits that the RPD failed to take into consideration the fact that the Appellant left India in 2012 and that is the reason that there were no further incidents since that time. The Appellant further highlights that his wife and son no longer live in the village because they are unsafe there.23 [19] The RAD finds that the RPD erred in finding that the Appellant had not established an ongoing, well-founded fear. Again, the RAD highlights that the RPD found the Appellant to be credible. The Appellant alleged that he had fled India in September 2012 due to ongoing threats and harassment from his agent of persecution, his associates and the police, whom he alleged had helped his persecutor to file false criminal charges against him.24 He testified that since his departure from India, his wife was facing threats and difficulties from his agent of persecution and his associates in the form of repeated threats, so she moved out of their home to live with family members.25 His wife provided the RPD with an affidavit in which she explained that after her husband left India, "I feel danger to my life from the opposite party Akali Dal Badal, BJP and the police and they also trying to occupy my plot illegally and forcibly in my village."26 As such, the RPD erred in fact in finding that the risk of harm to the Appellant was not ongoing since it found the Appellant to be credible and so the Maldonado principle of presumed truthfulness was in full force in the present case and he testified to the effect that threats against him and his family continued after his flight from the country until she moved away from their home to live with family. [20] The RAD further notes that the analysis of a claim for refugee protection is forward-looking. A refugee claimant is required to establish that if they return to their country in the future, they will face a serious possibility of persecution or that, on the balance of probabilities, they will face a risk of torture, a risk to their life or a risk of cruel and unusual treatment or punishment if they return to their country of nationality. The test to be applied is not one of proving a "serious ongoing possibility of harm" as stated by the RPD in the decision. Indeed, a claimant can present evidence of previous persecution in order to establish a serious possibility of future persecution, but such previous persecution does not necessarily have to be "ongoing", as stipulated by the RPD in this case. Similarly, a claimant can be recognized as a refugee even if they have never faced persecution before, as long as they can prove, on a balance of probabilities, that similarly situated individuals face the same risks of harm or a serious possibility of persecution. As such, the RAD finds that the RPD also erred in applying the wrong test in its assessment of the Appellant's claim for protection. [21] In his claim for protection, the Appellant indicated that he fears Mr. XXXX, his associates in both the Akali Dal (Badal) party and BJP, and the police. The Appellant explained that Mr. XXXX was and continues to be a member of the Akali Dal (Badal) party in the capacity of president of the village circle where the Appellant lived, explaining that each M.L.A. has a specific area they represent, that each area is composed of 25 to 30 villages that he refers to as a "village circle" and that Mr. XXXX was XXXX XXXX XXXX XXXX XXXX in his area, and had significant influence in that area.27 The Appellant was a member of the Akali Dal (Mann) party and Mr. XXXX had tried to steal his land. The Appellant explained that the land dispute and his membership in the Akali Dal (Mann) party were the reasons that he was targeted by Mr. XXXX. The Appellant explained that Mr. XXXX and the police had threatened and beaten him many times since he joined the Akali Dal (Mann) party, that he had been detained by police for that reason on several occasions, that he had tried to complain to higher officials in the police who refused to file his report nor help him and indicated that Mr. XXXX has connections to the police which was why they supported him.28 The Appellant also pointed to the fact that he was falsely implicated in a criminal case because of Mr. XXXX influence over the police.29 The Appellant insisted that he was not actually involved in any crime, but that Mr. XXXX had the police fabricate the case against him. The RAD further highlights that the Appellant provided documentary evidence proving that he is the subject of an F.I.R in India and that pursuant to his absence from the hearing of his criminal trial before the courts in 2013, the trial judge declared him a "Proclaimed Offender", communicated that information to the police and states in the decision that he will have to face the Court once he has been arrested by police or after surrendering himself in Court.30 The Appellant alleged that because of this, he would be arrested upon his return to India in order to face the criminal charges in Punjab. The RAD also notes in this regard that the court case went ahead against his co-accused and in the decision rendered, the witnesses that were called for the prosecution indicated that they could not identify their attackers because their faces were covered, that they had not given statements to police nor had the police taken their statements, and that the signatures on the statements that were entered into evidence were not theirs.31 The RAD finds that this corroborates the Appellant's claim that the criminal charges filed against him were false accusations. [22] The Appellant also provided the RPD with evidence that he would face mistreatment and harassment due to his membership in the Akali Dal (Mann) party and that members of his party also face similar mistreatment and harassment. In particular, he provided the RPD with a letter from the XXXX XXXX of the Akali Dal (XXXX) party indicating that the Appellant is a permanent member of the party.32 He states in the letter that "our party members are being persecuted and harassed by Congress, other Ruling Parties as well as police. He used to take part in Rallies and other permanent of the party. It is a well-known fact that our party members are routinely targeted by the police administration."33 [23] The Appellant also provided a letter of support from the XXXX of the Akali Dal (Mann) party, XXXX XXXX XXXX, indicating that the Appellant is a permanent party member and that he will face persecution if he returns to India. The letter highlights many problems faced by members of his party including: - "XXXX XXXX XXXX can also be falsely implicated in a criminal case, detained illegally and even eliminated in a fake police encounter, as has happened in the case of many a party worker."34 - "Every attempt to focus on the civil and political rights of the people of Punjab [sic] is perceived as a law and order problem and a sinister saga of retribution is started and all democratic and peaceful struggles are dubbed as fountains of terrorism."35 - "Many other political activists both from my party and from other groups during this period were detained and are facing charges of sedition."36 - "The lives of the Sikhs who demand Khalistan are always in danger of either being eliminated physically, or false criminal cases being registered against them, of illegal arrests, illegal detentions, tortures, humiliation and even disappearances."37 - "Despite the repression, my party continues to carry on the struggle for Sikh statehood. We seek the Right to Self-Determination".38 [24] The documentation in the National Documentation Package (NDP) for India similarly indicates that parties in opposition to the ruling coalition of Akali Dal (Badal) and BJP and their members face threats, harassment, intimidation, brutal force, and the filing of false criminal charges against them, particularly from the Akali Dal (Badal) party.39 The same documentation indicates that the Punjab State police arrest leaders and workers of opposition parties in anticipation of protests, rallies and other public events.40 [25] With respect to the specific treatment of Akali Dal (Mann) party members, the documentation in the NDP indicates that the leader of the Akali Dal Mann party, Simranjit Singh Mann, has been arrested over 50 times on charges of sedition and for advocating the establishment of Khalistan.41 However, it is not only the leader of the party that is targeted. For example, an Immigration and Refugee Board of Canada document regarding the treatment of members and supporters of the Akali Dal (Mann) party indicates that, "The Indian Express reports that, in November 2011, police arrested six youths "raising" pro-Khalistan slogans during the arrival of the senior leader of the BJP at a rally in Amritsar (16 Nov. 2011). Firstpost, a Mumbai-based online newspaper, reports that the police arrested a member of the "radical Akali Dal (Mann) groups" who was protesting during a BJP anti-corruption rally in Amritsar on 14 November 2011 ([Nov. 2011]). The Hindu reports that "[a]ctivists of the pro-hardline fringe Akali factions and radical Sikh organisations disrupted" a BJP rally in Amritsar by "raising pro-Khalistan slogans" (14 Nov. 2011). Mann, the leader of the protesters, was detained (The Hindu 14 Nov. 2011)."42 [Emphasis Added] [26] The same IRB document indicates that members of the Akali Dal (Mann) and other opposition parties are subject to surveillance as well as the filing of false charges by police. It states, "The WSO representative noted that members of the Akali Dal (Amritsar/Mann and Panch Pardhani) are subject to "surveillance" (1 Apr. 2012). In addition, "those Sikhs who are known to be advocates for Khalistan or suspected sympathizers of the militant movement are regularly monitored" (WSO 1 Apr. 2012). The WSO representative added that the police have "lists of individuals they believe are at risk of supporting Khalistan militants [and] [w]hen any activity is suspected, these individuals are interrogated and on occasion detained" (ibid.). The WSO representative also said that his group has anecdotal evidence that the monitoring is done through "calls from police officials to inquire about activities, [and] being called into police stations for questioning ..." (ibid.). The organization representative indicated that members of the Akali Dal (Panch Pardhani) are reportedly "implicated and detained for false terrorism-related cases" (ibid.)."43 [Emphasis Added] [27] Another IRB document in the NDP indicates that Sikhs in Punjab who express certain political opinions are mistreated by Punjab police. The document states, "When asked about how state authorities outside Punjab treat Sikhs, the WSO legal counsel added that 'Sikhs in general are not the target of specialized abuse on a frequent basis. That having been said, Sikhs with particularly political opinions or those who advocate for those opinions may be subject to harassment, detention and torture. This is however much more common in Punjab than outside of it.' (ibid.)"44 [Emphasis Added] [28] The same document also highlights that Sikhs in similar situations to the Appellant are often targeted by police and that persons who are wanted by police are likely to be tortured in detention. The document states, "The WSO legal counsel said that 'Sikhs who advocate for independence from India or oppose the ruling party have in the past been falsely implicated in terrorism cases and harassed' (17 Apr. 2013). He expressed the opinion that if a person is wanted by the police, it would 'be difficult to evade detention and the abuses that often accompany detention such as torture, harassment of family, etc.' (WSO Canada 17 Apr. 2013)."45 [Emphasis Added] [29] Based on the foregoing, the RAD finds that the RPD minimized the degree to which the documentation corroborated the Appellant's allegations of the mistreatment faced by members of the Mann party by indicating that the documentation only refers to the fact that the party is being monitored and that the leader has been arrested many times on charges of sedition.46 The documentation cited above indicates that the leaders and members of political opposition parties, particularly those in the Mann party as well as other parties and Sikhs who are actively pro-Khalistan, face numerous forms of mistreatment, harassment, threats and violence in India, both at the hands of the ruling party and at the hands of police. The RAD therefore finds that the RPD erred in fact in finding that the Appellant did not establish that he faced a well-founded fear of persecution in India. [30] The RAD further finds that the documentation cited above clearly establishes that state protection would not be forthcoming for the Appellant. The police are implicated in the violence, harassment and mistreatment of members of the Akali Dal (Mann) party, the Appellant alleged that he was previously subjected to that mistreatment by police, and the Appellant's testimony was deemed credible. The RAD finds that the fact that the Appellant has unresolved criminal charges against him for which there is an outstanding F.I.R that has been bolstered by the Court's designation of the Appellant as a "proclaimed offender" means that it is likely that he would be detained by police upon returning to India in order to face the charges against him in court. Indeed, the RAD notes that the final line of the judgement in State vs. XXXX XXXX, which was provided by the Appellant to the RPD, indicates that while the case was pending before the courts, "XXXX XXXX absented himself from proceedings of this case and was declared proclaimed offender vide order dated XXXX XXXX XXXX.2013"47 and that the file be "revived as and when accused XXXX XXXX is apprehended by the police or he surrender himself in the Court"48. The RAD further notes that the Appellant provided another document from the Court indicating that the Appellant did not appear for the hearing of the case, that the "proclamation against accused XXXX XXXX stands completed. A necessary intimation in this regard be sent to concerned Police Station for taking necessary action."49 [31] The RAD notes that the Appellant's principal agent of persecution is an influential member of the Akali Dal (Badal) party, he holds the position as XXXX XXXX XXXX XXXX XXXX in the Appellant's area and his ties to police are such that he was able to convince them to fabricate charges against him. The Appellant also testified that prior to the creation of false criminal accusations against him, due to his political affiliations and conflict with Mr. XXXX, the police used to pick him up regularly and take him to the police station where he was mistreated, but that the village panchayat and political leaders from his party used to help him get out of police custody.50 Further, the documentation in the NDP indicates that police in Punjab are known to resort to torture, specifically stating, "The WSO representative noted that human rights groups often indicate that torture is endemic to the Punjab Police and is routinely used. Those seen as being 'anti-national' are particularly subjected to brutal treatment and police are permitted to operate with impunity. (WSO 1 Apr. 2012)." 51 [32] Given the Appellant's credible testimony to the effect that he was being targeted by his agent of persecution, his associates and police due to his political affiliation with the Akali Dal (Mann) party and in light of the documentation he provided as well as the objective country conditions documentation indicating that members of the Akali Dal (Mann) party and those who are pro-Khalistan face mistreatment, violence, harassment and threats from police, the RAD finds that the Appellant has established that he has a well-founded fear of persecution in India due to his political opinions and that the State would be unwilling to protect him, given that the police are one of his alleged persecutors. Internal Flight Alternative (IFA) [33] The RAD notes that during the Appellant's counsel's oral submissions, the RPD acknowledged that there was no viable IFA in India for the Appellant.52 At the time of the RPD decision, the RAD Jurisprudential Guide MB6-01059/MB6-0106053 had not yet been rendered, however since the decision in the Guide was designated as a RAD Jurisprudential Guide in June 2017, the RAD is required to apply the principles outlined therein or otherwise explain why it does not apply in a particular case. The Guide identifies Delhi and Mumbai as possible IFA locations for Appellants from Punjab. The Appellant indicated in the hearing that he could not relocate to another part of India because he would have to register his identity cards to obtain lodging and employment which would lead the police to contact the Punjab police who have an F.I.R out against him.54 [34] While the RAD notes that the Jurisprudential Guide does not apply to the present case because the Appellant in the present appeal does not have the same profile as the Appellants in the Guide, the RAD may nonetheless rely on some of the same evidence and principles that are discussed in the Guide as it specifically deals with the ability of police in Punjab to locate persons with specific profiles, including mention of profiles similar to the Appellant. [35] Indeed, the NDP documentation cited in the Guide indicates that, "When asked specifically about police in Punjab, Andhra Pradesh, Tamil Nadu, Uttar Pradesh, and Delhi, sources stated that these police forces communicate and collaborate with police stations in different states to find persons of interest (CPA 15 Apr. 2013; Lawyer 2 May 2013; Associate Director 25 Apr. 2013). The Associate Director of the India Studies Program added that "all these and every other state collaborate frequently" (ibid.)."55 [36] The Jurisprudential Guide also confirms the Appellant's allegation that in India, the tenant registration system exists that subjects tenants to a police verification process, which requires tenants to provide their identity cards to their landlords who must then provide them to the local police station where they have come from a different state or region of India and that the police keep records of this information.56 Further, the Guide indicates that there is inter-state police communication in the case of major crime. More specifically, the Guide acknowledges that "police communicate with each other across different cities or States to find criminal suspects, witnesses of crimes and potential threats to national security."57 In the present case, the Appellant is the subject of an F.I.R due to criminal charges including robbery and assault causing bodily harm and the police have been informed of his designation by the Court as a proclaimed offender, which the RAD deems likely to be sufficiently serious to illicit interstate police communication. [37] Based on the foregoing, the RAD finds that the Appellant would not have a viable IFA in India because the tenant registration system would bring him to the attention of local police who would discover that the Appellant is the subject of an F.I.R for criminal charges and his status as a proclaimed offender, he would likely be returned to Punjab to face the criminal charges in court, which would expose him to a serious possibility of persecution since his principal agent of persecution is an influential political figure in that area and the police were previously implicated in harassing and mistreating him due to his political affiliations. CONCLUSION [38] The RAD therefore finds that the Appellant has established that he faces a serious possibility of persecution if he returns to India due to his political opinions as a member of the Akali Dal (Mann) party. The documentary evidence provided by the Appellant and the country conditions documentation available in the NDP for India indicate that state protection would not be forthcoming, given that the police are implicated in his allegations of persecution and the Appellant is the subject of an active F.I.R. The RAD further finds that the Appellant would not benefit from an internal flight alternative because of the nature of his particular profile. REMEDY [39] The appeal is allowed. Pursuant to section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its own determination that the Appellant is a Convention refugee. (signed) Miriam McLeod Me Miriam McLeod August 8, 2018 Date MM/dd 1 Canada v. Huruglica, 2016 FCA 93, at paragraphs 37, 48, 70, 78 and 103. 2 X (Re), 2017 CanLII 33034 (CA IRB). 3 Appellant's Record, RPD decision, page 3 at lines 1 - 4. 4 Appellant's Record, page 83 at paragraph 25. 5 RPD Hearing Recording at 59:22 (November 22, 2016). 6 RPD Hearing Recording at 59:22 - 1:01:50 (November 22, 2016). 7 Appellant's Record, RPD Decision, page 4 at lines 32 - 33. 8 Appellant's Record, RPD Decision, page 5 at lines 1 - 2. 9 Appellant's Record, RPD Decision, page 5 at lines 4 - 8. 10 Appellant's Record, RPD Decision, page 5 at lines 10 - 11. 11 Appellant's Record, RPD Decision, page 5 at lines 11 - 18. 12 Appellant's Record, RPD Decision, page 5 at lines 20 - 23. 13 Appellant's Record, RPD Decision, page 5 at lines 21 - 28. 14 Appellant's Record, RPD Decision, page 5 at lines 30 - 31. 15 Appellant's Record, page 80 at paragraph 11. 16 Appellant's Record, pages 80 - 81 at paragraphs 14 - 16. 17 RPD Hearing Recording at 6:48 (November 22, 2016). 18 RPD Hearing Recording at 2:07:59 (November 22, 2016). 19 Appellant's Record, RPD decision, page 4 at lines 6 - 7. 20 Appellant's Record, RPD decision, page 4 at lines 7 - 9. 21 Appellant's Record, RPD decision, page 4 at lines 16 - 18. 22 Appellant's Record, RPD decision, page 4 at lines 20 - 24. 23 Appellant's Record, page 81 at paragraph 18. 24 RPD Hearing Recording at 45:30 (November 22, 2018). 25 RPD Hearing Recording at 34:18 (November 22, 2018). 26 RPD file, page 156. 27 RPD Hearing Recording at 1:25:10 - 1:26:12 (November 22, 2016). 28 RPD file, pages 8 - 9. 29 RPD Hearing Recording at 45:30 (November 22, 2018). 30 RPD file, pages 159 - 181. 31 RPD file, pages 165 - 167. 32 RPD file, page 183. 33 Ibid. 34 RPD file, page 184. 35 RPD file, page 185. 36 Ibid. 37 RPD file, page 188. 38 RPD file, page 189. 39 NDP for India dated 31 July 2018, Tab 4.4, Treatment of members and supporters of the Shiromani Akali Dal (Amritsar/Mann) party, particularly those who speak publicly about the treatment of Sikhs by the Indian authorities or those who call for the creation of Khalistan..., Immigration and Refugee Board of Canada, IND104058.E, 30 April 2012. 40 Ibid. 41 Ibid. 42 Ibid. 43 Ibid. 44 NDP for India dated 31 July 2018, Tab 16.6, Situation of Sikhs outside the state of Punjab, including treatment by authorities; ability of Sikhs to relocate within India, including challenges they may encounter (2009-April 2013), Immigration and Refugee Board of Canada, IND104369.E, 13 May 2013. 45 Ibid. 46 Appellant's Record, RPD Decision, page 4 at lines 20 - 23. 47 RPD file, pages164 - 165 at paragraph 11. 48 RPD file, page 171 at paragraph 33. 49 RPD file, page 181. 50 RPD Hearing Recording at 51:12 (November 22, 2016). 51 NDP for India dated 31 July 2018, Tab 4.4, see footnote 39. 52 RPD Hearing Recording at 2:07:59 (November 22, 2016) 53 RAD Jurisprudential Guide MB6-01059/MB6-01060, available at: https://irb-cisr.gc.ca/en/decisions/pages/MB6-01059-60.aspx 54 RPD Hearing Recording at 1:38:31 - 1:40:15 (November 22, 2016). 55 NDP for India dated 31 July 2018, Tab 16.2, Police communication and collaboration between stations; police communications technology; reasons for a state-wide or national search, inter-state arrests (2009-April 2013), Immigration and Refugee Board of Canada, IND104371.E, 13 May 2013. 56 Please refer to NDP for India dated 31 July 2018, Tab 16.3, India: Requirements and procedures for tenant registration, including implementation, particularly in Delhi, Mumbai, Kolkata and Bangalore (2009-April 2013), Immigration and Refugee Board of Canada, IND104372.E, 9 May 2013. 57 RAD Jurisprudential Guide MB6-01059/MB6-01060, see footnote 53. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-01214 20 RAD.25.02 (March 7, 2018) Disponible en français