VB3-01511

RAD File No. / N° de dossier de la SAR : VB3-01511 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Vancouver, BC Appel instruit à In Chambers Date of decision October 22, 2013 Date de la décision Panel Philip MacAulay Tribunal Counsel for the person(s) who is(are) Birjinder P S Mangat Conseil(s) du (de la/des) the subject of the appeal Barrister & Solicitor personne(s) en cause Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX, (the "appellant"), a national of India, appeals the June 18, 2013 determination of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. Her claim was heard by the RPD on May 27, 2013 and a written decision was rendered on June 6, 2013. DETERMINATION [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA or the Act),1 the Refugee Appeal Division (RAD) confirms the determination of the RPD that the appellant is neither a Convention refugee pursuant to section 96 of IRPA nor a person in need of protection pursuant to section 97 of that Act. Her appeal is dismissed. BACKGROUND [3] The Minister has not intervened in this appeal, although he did so before the RPD by documents only. The appellants provided a transcript2 of the RPD hearing in the appellant's record (AR). [4] The following information is taken primarily from the RPD reasons,3 the appellant's Basis of Claim (BOC) form4 and the AR5. With respect to the AR, it is made up of both Exhibit 2 and 3. While Exhibit 2 contains the majority of the AR, for whatever reason the last 8 pages of the appellant's memorandum which is otherwise contained in the AR were apparently omitted from Exhibit 2. Exhibit 3 contains those missing pages. [5] The appellant is a 21 year old single woman from a small village of about 300 persons, called XXXX, located in Punjab State, India. The appellant's father has a small farm there. XXXX is near the larger local town of XXXX. Finally, XXXX is approximately 2-3 hours from Punjab's largest city, Ludhiana which has a population of about 3.5 million. The RPD ultimately found that the appellant had an internal flight alternative (IFA) in Ludhiana. [6] The appellant is of the Sikh religion. She speaks Punjabi, Hindi and English. She received her grade 12 certificate in India in 2011. She came to Canada on a study permit in XXXX 2011 and attended the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX She withdrew from XXXX in XXXX 2012 because she had learned that her father had become quite ill with heart problems and she wanted to return to India to see him. She did so in XXXX 2013. When she returned to Canada in XXXX 2013, she learned that she had been mistaken to believe that, because she had been told by XXXX that she could attend the XXXX 2013 term, she could simply return to classes under a study permit. As matters transpired, Canadian immigration officials advised her that she was not admissible to Canada. She sought advice, with the upshot being her filing a claim for refugee protection on March 25, 2013. Basis of the claim [7] In XXXX 2011, while she was still in high school, the appellant began to date a 23 year old man named XXXX XXXX XXXX XXXX XXXX They continued to date until XXXX 2011 when the appellant broke off the relationship, telling the man that they would talk later when she was not so busy, avoided him and then left to study in Canada in XXXX 2011, without telling him she was going. Reasons given by the appellant for discontinuing her relationship with XXXX included that he had had multiple relationships and that the appellant also learned that he was involved with drugs. The appellant testified that XXXX did not visit her village looking for her after she had left the country in 2011 until 2013. [8] In XXXX 2013, when she returned to India to see her father, she ran into XXXX at the XXXX market and he started to go to XXXX, looking for the appellant and asking neighbours about her whereabouts. After the first time he came, drunk and yelling, to the family home, the appellant was sent to stay at an aunt's house located in a village close to XXXX. The appellant was later told that, XXXX, together with 8-10 other men went to the home again on March 19, 2013, threatening to harm the appellant and her family, shooting guns into the air. At that time the appellant was living at her aunt's. The appellant testified that, while XXXX has never carried out his threats to harm her or her family, she fears that there is a serious possibility that he would do so if she returned to India and he discovered her whereabouts. [9] The appellant alleges that XXXX is a youth member of a ruling political party in Punjab, the Shiramani Akali Dai (SAD), a party the appellant states is corrupt, having criminal elements who carry out violent acts without fear of police or other authorities. A Canadian paternal uncle, who had last lived in XXXX 13 years ago, testified that when he travelled to India about the same time as the appellant to see his brother, XXXX banged on the family's door. Although this uncle had no personal knowledge about XXXX, he testified that he heard that XXXX was a member of SAD, perhaps the president of a local area in XXXX, having connections with an SAD MLA from that same area. Neither the appellant nor the uncle presented any documentary corroborative evidence of any SAD connections between the party and XXXX. RPD decision [10] The RPD found that the appellant was a credible witness. The RPD noted that it referred to the Chairperson's Gender Guideline 46 and medical reports which indicated that the appellant was taking medication and receiving treatment for emotional stress, depression and anxiety. Despite visible stress and anxiety, the RPD found that the appellant generally testified in a straightforward and candid manner and did not embellish the facts of her claim.7 [11] The RPD concluded that the appellant had established a nexus with a Convention ground (i.e. as a membership in the particular social group of women persecuted by reason of their gender) and that she would face more than a mere possibility of persecution at the hands of XXXX if she returned to XXXX, India. Because of her refusal to marry XXXX, the appellant has a genuine fear of reprisal from him by means such as rape, kidnapping, and acid throwing. [12] The RPD accepted the appellants' disclosures and country document evidence to the effect that sexual violence against women in India is one of the fastest-growing crimes in the country and that law enforcement efforts are ineffective in addressing the issue. The RPD did not rely upon state protection to reject the claim. [13] However, the RPD also found that internal flight alternative (IFA) was the determinative issue in the claim and that the appellant had a viable IFA in Ludhiana.8 [14] The RPD acknowledged that, with regard to a viable IFA, it must be satisfied on a balance of probabilities that (1) the appellant would not face a serious possibility of persecution or be subject personally to a risk to life or a risk of cruel and unusual treatment in the proposed IFA and (2) the conditions in that part of the country are such that it would be objectively reasonable, in all of the circumstances, including those particular to the claimant, for her to seek refuge there.9 [15] In coming to its conclusion on the first prong of the test, based on the totality of the evidence, the RPD found that XXXX was a low-level member of the SAD who may have localized influence and power to locate and harm the claimant within XXXX and surrounding villages such as XXXX, but not in Ludhiana, a city of 3.5 million located hours away from XXXX. The RPD found that, while high-level leaders in SAD have been convicted of corruption and other criminal offenses, this evidence of party corruption does not provide evidence that the agent of harm, XXXX has a significant role or influence within SAD such that he would be able to locate the claimant in Ludhiana or elsewhere in India. The RPD found that there was insufficient evidence to show that XXXX had the capacity or influence to harm the claimant or her family outside of XXXX or XXXX. 10 [16] With respect to the second prong of the IFA test, dealing with the particular circumstances of the appellant, the RPD found that the appellant was a young woman who spoke three languages and had one year of postsecondary education. While she had always lived with her immediate or close family, she is adaptable as demonstrated by her ability to successfully attend school in Canada. The RPD found that if the appellant was returning to India without any family support, her age and gender would work against an IFA. However, the RPD noted that her parents had moved to Ludhiana where they stayed with family friends had not been bothered there by XXXX. The evidence was that the appellants' father had been advised by his doctor to move to Ludhiana to get away from the stress of elections in the XXXX area and the appellant testified that the parents would return to XXXX, but only if everything was peaceful there and the father's doctor gave his approval. The RPD found that the appellant's testimony indicated that she would continue to receive the protection and support of her family in India, including housing, financial support and educational opportunities. The panel also found that there was insufficient evidence to conclude that the family could not continue to live in Ludhiana where XXXX had never gone to try to find them or that the support and assistance from a family friend there would be withdrawn.11 [17] The appellant's counsel had submitted that the IFA would be unreasonable in the appellant's circumstances given the vulnerability of women in India, including sexual violence, rape, kidnapping, honour killings and acid throwing as noted in the country documents. However, given the above factors indicating the support the appellant would have in Ludhiana, the RPD found that the appellant failed to discharge the fairly high onus of proof discussed by the Federal Court of Appeal in 2001 in Ranganathan12 on a claimant to show that an IFA is unreasonable, which requires nothing less than the existence of conditions that would jeopardize the life and safety of the claimant in relocating to the safe area. Actual and concrete evidence of adverse conditions is required to be shown and the RPD found that, in this case, the appellant had failed to do so.13 [18] Having found that the appellant had a viable IFA in Ludhiana, the RPD determined that the appellant was neither a Convention refugee under section 96 nor a person in need of protection under subsection 97(1) of the Act and therefore rejected her claim. Grounds of appeal [19] The grounds of appeal as listed by the appellant were generic, stated, in her words, as: * the RPD erred in law in this case; * the RPD based its decision upon erroneous finding of fact that it made in perverse or capricious manner or without regard to the material before it; and * the RPD failed to observe a principle of natural justice in this case. [sic]14 [20] The appellant followed this statement of general grounds with specific references to pages of the RPD decision where the appellant submits that the RPD was in error. As will be noted in more detail in the following, many of the specific complaints raised by the appellant with respect to the RPD decision concerned issues that were, in fact, resolved by the RPD in the appellants' favour when the RPD found that the appellant had established a Convention nexus and that there was more than a mere possibility that she would suffer persecution at the hands of XXXX if she returned to her home village. [21] I will deal with each of these complaints in the Analysis portion of these reasons. Remedy sought [22] The appellant included in her appellant's record her affidavit,15 submitted in the RAD appeal but stated in its last paragraph to have been made "in support of our Application For Leave and for Judicial Review and for no other or improper purpose". The affidavit includes some reiteration of alleged RPD evidence, without reference to specific testimony in the accompanying transcript of the RPD hearing, and some references to specific transcript passages. Also, representations or submissions concerning the RPD evidence are included in the document. [23] In paragraph 5 of the affidavit the appellant writes: I request for allowing of my appeal and or allowing me an oral hearing to be held under subsection 110(6) of the IRPA. [sic] [24] However, in the applicant's memorandum16 filed by her counsel, the only remedy sought is as is set out at page 232 and reads: In the case at bar it is respectfully submitted that Appellant's Appeal be allowed Appellant be found to be Convention Refugee and that she is a person in need of protection.[sic] [25] The memorandum neither requests that new evidence be considered by the RAD under subsection 110(4) of IRPA nor does it seek a hearing before the RAD under subsection110(6) of the Act. Rule 4(3)(g)(iii) and (v) of the RAD Rules stipulate that it is in the memorandum of the appellant's record where reasons why either new evidence should be accepted, or why there should be a RAD hearing, should be set out. No such reasons are included in the memorandum in this case. [26] In any event, nowhere does the appellant request that new documentary evidence be considered by the RAD. Based on my interpretation of subsection 110(4) and (6), an oral hearing will only be conducted by the RAD where new documentary evidence is admitted and the credibility of the appellant is an issue will regard to that evidence. [27] There being no such new evidence, there can be no hearing. STANDARD OF REVIEW [28] The appellants made no submissions as to the appropriate standard of review the RAD should apply when considering the determinations of the RPD. [29] When considering such standards with regard to the judicial review of administrative tribunal determinations, the Supreme Court of Canada in Dunsmuir17 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a specific issue before a review court is well settled by past jurisprudence, a reviewing court may adopt that standard of review. It is when that search proves fruitless that a reviewing court must undertake a consideration of factors comprising the standard of review analysis. [30] The RAD is a new appellate administrative tribunal about which, to the best of my knowledge, the Federal Court has yet to comment on the question of what standard of review the RAD should apply under various circumstances that might come before it. Accordingly, a standard of review analysis must be undertaken in this case. [31] While there are similarities between the role of the RAD vis-à-vis the RPD and a court of judicial review with respect to administrative tribunal determinations, there are number of important differences. Some of the more important of these are: * An appeal may be taken to the Federal Court only with leave of the court, while an appeal of right to the RAD from the RPD is available for those who fit one of the legislative categories of potential appellants, albeit with certain determinations of the RPD not being subject to appeal. * A judicial review by the court is not with respect to the substantive merits of a case but, rather, considers the legality of the tribunal's decision and process. While both a reviewing court and the RAD will consider questions of law, fact or mixed fact and law, the RAD also considers the substantive merits of the matter and may make final decisions as to whether or not an individual should have refugee protection. * With rare exceptions, new evidence is not permitted on a judicial review whereas there are provisions in the IRPA which provide limited circumstances whereby new evidence may be introduced before the RAD by an appellant and, in some specific situations, oral testimony may be taken by the RAD. The scope of new evidence which might be presented to the RAD by the Minister is not restricted. * The remedies available upon judicial review are, generally speaking, limited to a dismissal of the judicial review or, if successful, the referral of the matter back to the tribunal for a redetermination. In contrast, the RAD may confirm the RPD determination, set the determination aside and substitute its own determination, or, in limited situations, may refer the matter back to the RPD for redetermination with, or without, directions. [32] Although both the RPD and the RAD may make determinations on refugee protection, there are notable differences between the two Divisions. [33] A review of the legislation regarding the RAD makes it clear that an appeal from the RPD to that Division is not a de novo or new hearing. The appeal is based on the RPD record with restrictions on the new evidence that may be presented by a claimant, and there are oral hearings only in limited circumstances. Such an appeal is not a re-litigation of the entire case nor is it intended to duplicate the work of the RPD. In my view, this distinction provides a basis for the RAD, which does not generally conduct hearings, to show deference to the findings of the RPD, particularly with respect to findings of fact or of mixed fact and law. [34] Generally, the subject matter of such an appeal is party-driven. An appellant has the onus of demonstrating how and in what way the RPD might have erred. The RAD also plays the wider administrative function of promoting the consistency and quality of RPD decision-making by way of three-person panel determinations which have legislated precedential value over the RPD and single member RAD panels. [35] As the law has developed over the years with respect to the judicial review of determinations of tribunals, the courts have, generally speaking, determined that with respect to questions of fact and issues concerning mixed fact and law, the standard of review is "reasonableness". On questions of alleged errors of law (which includes questions of fairness and natural justice) the issue is not completely settled in all respects but, often, the courts will apply a standard of "correctness". [36] The SCC in Dunsmuir18 stated that any analysis of the standard of review must be contextual and is dependent on a number of relevant factors including: * the presence or absence of a privative clause; * the purpose of the tribunal as determined by the interpretation of the enabling legislation; * the nature of the question at issue; and * the expertise of the tribunal. [37] It is important to note the particular context of this appeal as the Supreme Court in Dunsmuir stated that it will not be necessary to consider all of the four factors in every case, as only some of them may be determinative in the application of the reasonableness standard in a specific case. [38] The nature of this appeal concerns the RPD's treatment of the issue of the finding of facts and of IFA. [39] Regarding judicial review, the courts have found that the determination of a viable IFA is a question of mixed fact and law. I find that there is no substantial reason why the RAD should not come to a similar conclusion. [40] As was set out in a brief synopsis of the law concerning IFA by Justice Heneghan in Fatoyinbo:19 [4] The determination of a viable IFA is a question of mixed law and fact, reviewable on the standard of reasonableness; see the decision in Agudelo v Canada (Minister of Citizenship and Immigration), 2009 FC 465 (CanLII), 2009 FC 465 at para 17 and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 (CanLII), [2009] 1 SCR 339. [5] The test for a viable IFA was set out in Rasaratnam v Canada (Minister of Employment and Immigration), reflex, [1992] 1 FC 706 (FCA) at 710-711. It is a two-pronged test, as follows: first, the Board must be satisfied that there is no serious possibility of a claimant being persecuted in the IFA and second, it must be objectively reasonable to expect a claimant to seek safety in a different part of the country before seeking protection in Canada. [6] In order to show that an IFA is unreasonable, the Applicant must provide evidence to show that conditions in the proposed IFA would jeopardize her life and safety in travelling or relocating to that IFA; see Thirunavukkarasu v Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589 (FCA) at 596-598. [41] The burden of proof on a claimant to demonstrate that they would be unsafe throughout their country and/or that it would be unreasonable to live in the IFA, is determined on a balance of probabilities which I find also attracts the standard of review of reasonableness. Justice de Montigny commented as follows in Garcia Guevara20 with respect to the onus on the claimant when a potential IFA is identified: [20] On the other hand, I am of the view that the panel could consider the possibility of an internal flight alternative for the applicant in Mexico City. It is settled law that the onus is on refugee claimants to establish that they cannot find refuge in their country of origin. For the purposes of this analysis, it is important to apply the two-stage test developed by the Court of Appeal in Rasaratnam v Canada (Minister of Employment and Immigration), reflex, [1992] 1 FC 706. The applicant therefore had the burden of proving, on a balance of probabilities, that she faced persecution everywhere in Mexico and that it was objectively unreasonable for her to avail herself of an internal flight alternative. [21] In this case, the panel noted that the applicant had always lived in the same city and that it would not be unreasonable for her to relocate to a large city like Mexico City. On the other hand, the panel found that there was nothing to indicate that she could not establish herself there; it is true that she has no family there, but she does not have any in Canada either. In this respect, it should be reiterated that it is important to adduce concrete evidence showing that it would be unreasonable to seek refuge in her own country: We read the decision of Linden J.A. for this Court as setting up a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. Ranganathan v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164 at paragraph 15. (my underlining) [42] In this case, is there any substantial reason why a similar standard of reasonability should not be applied by the RAD to the RPD determination on IFA regarding such matters as whether XXXX would find the appellant in Ludhiana, if he would have the motivation or means to do so or if the appellant's life or safety would be jeopardized by going to live in that city? As discussed below, I find there is no such reason. [43] The jurisprudence concerning the question of whether a correctness or reasonableness standard should be applied on judicial review turns on the amount of deference that should be given to the decision under appeal. With respect to findings of fact or mixed fact and law, deference is shown inasmuch as a tribunal, unlike the reviewing court (or, as noted above, the RAD in its legislative scheme) has had a full opportunity to directly hear the entire case, including the oral testimony of the claimant and apply their adjudicative and administrative expertise to the questions of fact before them. [44] In my assessment, the RAD must be differentiated from other administrative appellate tribunals which do hold de novo hearings where the courts have determined that a non-deferential approach by those appellate tribunal reviews of lower tribunal decisions is appropriate, i.e., a correctness standard is more likely applied.21 The RAD is not such a tribunal. [45] In considering the appropriate standard of review I should apply to RPD findings of fact or of mixed fact and law, I have considered the guidance offered by the Alberta Court of Appeal in Newton v. Criminal Trial Lawyers' Association22 with respect to an appellate administrative tribunal which has some similarities to the RAD. I find the discussion by that Court, including the way in which it tied into its determination the decision of the Supreme Court in Dunsmuir, to be helpful and instructive. [46] In Newton, the Court reviewed an administrative appeal tribunal's decision regarding a first-instance administrative body's ruling concerning the discipline of a police officer. This appellate tribunal was the Law Enforcement Review Board. The Court stated that: [1] This appeal concerns the basic structure and interrelationship of the tribunals in Alberta that review the conduct of police officers when that conduct is called into question in disciplinary proceedings under the Police Act, R.S.A. 2000, c. P-17. The specific issue is the extent to which the Law Enforcement Review Board may conduct a fresh hearing based on fresh evidence when an appeal is launched from the decision of a presiding officer in a disciplinary matter. [47] The Court's ultimate determination in Newton was as follows: [96] The appeal is allowed, and the decision of the Board set aside. The answers of [sic] the three questions on which leave was granted are as follows: 1) The Board did err in law by conducting a de novo hearing, and by allowing the Criminal Trial Lawyers' Association to call evidence which was called or available at the disciplinary hearing, without requiring it to meet the legal test for new evidence; 2) The Board did fail to apply the correct standard of review to the decision of the Presiding Officer; 3) The Board did err in failing to consider the exhibits tendered, including the transcript of the hearing before the Presiding Officer. [48] When assessing the appropriate standard of review for findings of fact or mixed fact and law made by the RPD, it is useful for the RAD to consider the factors outlined in Newton,23 which also have regard to the list of factors listed in Dunsmuir.24 The Newton factors include: * the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; * the nature of the question in issue; * the interpretation of the statute as a whole; * the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; * the need to limit the number, length and cost of appeals; * preserving the economy and integrity of the proceedings in the tribunal of first instance; and * other factors that are relevant in the particular context. [49] As mentioned earlier, the SCC in Dunsmuir noted that all of the factors it had listed would not necessarily feature in every case. As well, that same Court in Khosa25 noted that the factors used to decide the standard of review are not a checklist of criteria but that a contextualized approach is appropriate in deciding which factors are most relevant. In assessing the relationship between the RAD and the RPD in this case concerning the RPD's findings of fact having regard to the Newton factors, the following three are the most significant: * the respective roles of the RPD and RAD in the context of IRPA; * the nature of the question in issue; and * the expertise and advantageous position of the RPD member compared to that of the RAD arising from the RPD's full hearing of all issues and all of the evidence as compared to the RAD's more limited role on appeal. [50] All Divisions of the Immigration and Refugee Board (IRB) derive their jurisdiction from, and they interpret, the same statute: the Immigration and Refugee Protection Act (IRPA). Section 162 of IRPA gives each Division the same powers, (including the RPD and the RAD), "in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction." [51] While the powers of the RPD and the RAD are similar, their roles are not identical. The primary role of the RPD is to hear testimony, review evidence and determine a claim on its merits, while the RAD reviews those determinations based on, for the most part, the record of the RPD proceedings in light of the allegations of error formulated by the parties to the appeal. Even so, the fact that the RAD may substitute a different determination than that made by the RPD does make its role similar to the RPD in that both Divisions are engaged in refugee determination. [52] The mere presence of a right of appeal in and of itself does not warrant a correctness standard of review, given the proscribed relationship between the RPD and RAD, and the limits imposed on RAD in IRPA. [53] The RPD is a tribunal of first instance which has been given the authority under IRPA to make a decision to accept or reject a claim for protection.26 RPD members have expertise in interpreting and applying IRPA and, as well, expertise in assessing claims based on country conditions. The RPD must conduct a hearing27 and assesses the totality of the evidence, including evidence related to the credibility of the appellant and witnesses, after it has had an opportunity to see the claimant, hear their testimony and question them. The RPD has expertise in making findings of fact after evaluating, first hand, the testimony of witnesses and other evidence. [54] In contrast, IRPA limits the RAD's ability to gather and consider evidence. The RAD is not a tribunal of first instance and its primary role is to review the decision made by the RPD. As stated earlier, the RAD must generally proceed without a hearing and on the basis of the record, submissions by the parties, and, on occasion, new evidence.28 The RAD's authority to consider new evidence and hold hearings is limited to evidence that arose after the rejection of the claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.29 As well, oral hearings are limited to circumstances where the new evidence raises a serious credibility issue.30 [55] Given the RPD's role noted above, and the legislative limitations of the RAD process, I conclude that the RPD is in the best position to assess the credibility of the appellants and to make findings on issues of fact and mixed law and fact, related to a claim. This position is consistent with Newton where it found that, with respect to the appellate Board: "The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him".31 [56] Newton also concluded that: "a decision on such questions of fact by the presiding officer, as the tribunal of first instance, are entitled to deference. Unless the findings of fact are unreasonable, the Board should not interfere".32 [57] I consider that the analysis of the Alberta Court of Appeal is cogent, well reasoned and assists me in coming to my determination that, in the case before me, the errors alleged by the appellant are ones of fact or mixed fact and law and, in either case, the RPD determination on that question is to be given deference and be reviewed on a standard of reasonability. [58] In assessing reasonability, the Supreme Court of Canada (SCC) in Dunsmuir noted in paragraph 47 of its decision, In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [59] The SCC made clear that, on judicial review, a court should not lightly interfere with a decision, even when the decision may not have been the one which the reviewing court would have reached on its own. As the SCC noted further in its subsequent decision in Khosa: There may be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.33 ANALYSIS OF THE MERITS OF THE APPEAL [60] The appellant submits that the RPD misconstrued the evidence and drew unreasonable inferences. In particular, it is alleged that the RPD misunderstood and failed to appreciate credible evidence inasmuch as the threats and targeting of XXXX continued against the family in India, even after the appellant left the country. The appellant asserts that, therefore, the RPD decision was unreasonable, unfounded and constituted an error of law.34 [61] The first example alleged by the appellant of the RPD misconstruing the evidence was at paragraph 13 of the RPD decision when the RPD found "that at least on one occasion on XXXX XXXX, 2013" XXXX, with other men, went to the family home in XXXX, firing shots, yelling that the appellant had deceived him and that she had to marry him. He threatened that if he found the appellant he would make sure she would not be able to show her face to anyone. [62] The appellant states that the RPD was incorrect and that XXXX had come to the appellants' village on more than two occasions, going to the family home itself twice. The appellant cites portions of her BOC where she notes that, after seeing her in the local market XXXX XXXX XXXX XXXX "started going to the village, will drive and sometime park his jeep with friends" [sic]. The BOC then speaks of two visits by XXXX to the family home. [63] The appellant submits that the RPD failed to properly address these events in its decision and was confused as to the number of times XXXX went to the village. The appellant says that these failures led the RPD to not consider that "these serious acts may constitute persecution", that "the appellant's physical, psychological or moral integrity was threatened" and that the RPD failed to consider the medical evidence or that the appellant was on medication. [64] I find that, in fact, in paragraph 13 of its decision the RPD clearly found, based on the evidence, that the appellant does have a well-founded fear of persecution from XXXX should she return to her village, or the area near it such as XXXX. Given that conclusion by the RPD, I find it difficult to see where the RPD may have made the errors alleged. [65] Moreover, the RPD clearly noted in paragraph 9 of its decision that, after XXXX discovered her in the XXXX market, "he started going to her village, XXXX, looking for her and asking her neighbours about her whereabouts" [66] As well, in paragraph 11, the RPD clearly refers to two visits by XXXX to the family home. The first time was when, as a result, the appellant was sent to stay at her aunt's home and the second time, specifically XXXX XXXX, 2013, when XXXX and others arrived firing shots. The RPD's words in paragraph 13 of its decision that "at least on one occasion on XXXX XXXX, 2013" XXXX came to the house with others shooting and yelling threats is an entirely accurate statement which (a) does not preclude the earlier visit and (b), is the only one involving 8-10 men and shooting. [67] Finally, in paragraphs 3, 8, 14 and 19 of the decision, the RPD did acknowledge that the appellant was taking medication, suffering from emotional problems including stress, depression and anxiety, applied the Gender Guideline, acknowledged the support of the medical notes regarding her stress and anxiety and the appellants' vulnerability if she would not have family support in the IFA. The RPD found the appellant to be credible and that, absent an IFA, would face a serious possibility of persecution in her home area in India. I fail to see where the RPD made the errors alleged by the appellant or that the RPD's findings of fact regarding those matters was anything other than reasonable, based on all the evidence as "reasonability" is discussed by the Supreme Court of Canada in Dunsmuir. This first ground of appeal must fail. [68] In the second example of an alleged error35 the appellant, although acknowledging that at paragraph 13 of its decision the RPD did find that the appellant would face more than a mere possibility of persecution if she returns to XXXX, states that the RPD failed to consider that forcing a woman into marriage, threatening to rape her and throw acid on her constituted persecution, even if there was no physical harm or mistreatment, as "this element of psychological violence may be an element in persecution". [69] It is very difficult for me to conclude that the second example is either accurate or establishes any errors of fact or mixed fact and law in as much as a reading of the RPD decision, in its entirety or in its specifics, reveals that the RPD did find a serious future possibility of persecution. The RPD did note that, to date, XXXX had not managed to physically harm the appellant or family but did not at all discount the possibility that he would do so in the future if he could. [70] The RPD did base its findings of potential future persecution upon the specific testimony of the appellant about what she feared would happen and country documents which supported the RPD's findings that violence against women in India included rape, kidnappings, acid throwing and the like. [71] In attempting to give meaning to the second example, I surmise that what the appellant may be submitting is that, even if XXXX never actually caused physical damage, the fear alone that he might do so in the future, even if he would not, as was found by the RPD, likely be able to locate the appellant in the IFA, create psychological violence sufficient to constitute persecution. I find there is no merit in this allegation. [72] The RPD did find that if the agent of persecution found the appellant, there was a serious, objective, possibility that she would be physically harmed. (my underlining) [73] If the appellant should return to India and be safe in the IFA, she might continue to have very strong subjective fears that she might be found and suffer physical harm, but the very gist of the IFA finding is that, because of the safety there, the objective basis for the subjective fear is taken away. [74] It is a fundamental principle of refugee law under the Convention that a claimant must establish with credible and trustworthy evidence not only that she has a subjective fear of persecution but, also, that there is an objective basis for a serious possibility that the fears might be realized. Subjective fear alone is not sufficient and the finding of a reasonable IFA removes the objective element in this case. [75] I find the RPD did not err as alleged by the appellant in the second example. [76] In the third example,36 the appellant alleges that the RPD erred in concluding, after acknowledging corruption within SAD, that the evidence did not support a finding that XXXX role or influence in the party would enable him to locate the appellant in Ludhiana. This allegation of error must also be rejected. [77] The RPD clearly considered the objective evidence about SAD and its occasional criminal or corrupt activities. The RPD also considered the appellant's testimony that she had heard that XXXX "might" be a youth member of the local SAD and the uncle's testimony that he "heard" that XXXX "might" be XXXX of the local area party in XXXX and "might" have some unspecified connection with a SAD politician. He had no personal knowledge of these matters having lived in Canada the last 13 years and was only in India in XXXX 2013 on a visit to see his ill brother. No corroborative documentary evidence was presented to confirm that XXXX had any connection to SAD. The RPD also considered that, although XXXX had gone twice to the family home in XXXX looking for the appellant, he had never gone to Ludhiana after the parents moved 2-3 hours away to that city of over 3.5 million. I find that the RPD did not improperly speculate, but came to the reasonable conclusion that the appellant had failed to provide evidence that the agent of harm had a significant role or influence in SAD such that he would be able to find the appellant in Ludhiana. In my assessment, the RPD finding in this regard falls within the range of possible, acceptable outcomes, defensible in respect of the facts and the law. [78] By way of a fourth example of error, the appellant alleges that the RPD "picked and chose documents that supported its position while ignoring those supporting the appellant".37 The appellant alleges that the RPD failed to consider the following extract from a UK Operational Guidance Note said to be disclosed in the National Document Package for India (NDP) which was Exhibit 3 before the RPD. This NDP is dated May 3, 2013.38 Here is the extract set out in the memorandum of the AR: 3.13.18 According to sources consulted by the Immigration and Refugee Board of Canada, police are reluctant to register complaints of violence against women and sources also report that police have been the perpetrators of sexual abuse.... 3.13.20 For some women in India relocation will not be unduly harsh but this is only likely to be the case where the individual is single, without children to support, able to access safe accommodation and is educated enough to be able to support herself. Some single women may also be able to relocate to live with extended family or friends in other parts of the country. However, where these circumstances do not apply internal relocation is likely to be unduly harsh. 3.13.21 Where an Indian woman is able to show that she faces a real risk of domestic or other form of gender based violence amounting to torture or inhuman or degrading treatment, is unable, or unwilling through fear, to access protection and where internal relocation is unduly harsh, a grant of Humanitarian Protection will be appropriate. [79] Item 2.5 in the RPD Exhibit 3 NDP is a UK Operational Guidance Note dated April 17, 2008.39 When one reviews that document it is clear that the Note ends at paragraph 3. 11. 10., before moving on to paragraph 4. There are no paragraphs 3.13.18-3.13.21 in that document. [80] Upon further review of the UK Operational Guidance Note site, there is a Note dated March 30, 2012 which does contain the precise paragraph numbers and content cited in the AR as above. It seems that the short answer as to why the RPD did not reference the note in its decision, at least as it is quoted by the appellant in the AR, is that that Guidance Note was never disclosed to the RPD for its consideration. [81] There is an item 2.5 in the NDP that was Exhibit 3 in the RPD proceedings which is a UK Operational Guidance Note dated April 17, 2008 which bears some similarities to that quoted by the appellant: 3.10.7 Internal relocation. The law provides for freedom of movement and the government generally respects this in practice, however, in certain border areas the government requires special permits. The situation as regards internal relocation for single women, divorcees with or without children, and widows may differ from the situation for men as it may be difficult for women on their own to find secure accommodation. Although rents are high and landlords are often unwilling to rent to single women there are hostels particularly in urban areas where a large number of call centres provide employment. The situation for women with children is likely to be more difficult as children may not be accepted in hostels.80 Illiterate women from rural areas are likely to find it particularly difficult to obtain accommodation as a lone woman. For some women in India relocation will not be unduly harsh but this is only likely to be the case where the individual is single, without children to support and is educated enough to be able to support herself these circumstances do not apply internal relocation is likely to be unduly harsh. . Some single women may also be able to relocate to live with extended family or friends in other parts of the country. However, where these circumstances do not apply internal relocation is likely to be unduly harsh.. 3.10.8 Caselaw BK [2002] UKIAT03387 CG. The Tribunal found that it would be unduly harsh to expect a woman from a rural background to relocate to another part of India because in reality she would be destitute, without accommodation, without housing and with no one to turn to. 3.10.9 Conclusion. The position and treatment of women within the family in India is such that a significant percentage of women may be the victims of some kind of domestic violence. Women can seek protection from the authorities and legislation has been introduced to persecute perpetrators. However, some Indian women, such as those from rural areas or those who are illiterate, may be unable to access this assistance. The most recent information available on the situation of women in India does not support the view that women in India are a particular social group, in particular there is no evidence that the Indian government supports or condones the ill-treatment of women therefore a grant of asylum will not be appropriate. Where an Indian woman is able to show that she faces a real risk of domestic violence amounting to torture or inhuman or degrading treatment, is unable, or unwilling through fear, to access protection and where internal relocation is unduly harsh, a grant of Humanitarian Protection will be appropriate. Cases in this category should only be certified as clearly unfounded where it is unarguable that there is not a sufficiency of protection in the individual case or where it is unarguable that internal relocation is unduly harsh in the individual case. [82] The appellant argues that the RPD's omission to mention the Guidance Note in its decision indicates that the RPD was not reasonable and failed to consider the appellant as a vulnerable young woman, citing in support the 1998 Federal Court Decision in Cepeda-Gutierrez.40 [83] While it is true that the RPD does not specifically mention either of the above noted UK Operational Guidance Notes in her decision, a review of the transcript indicates that the appellant's counsel never made any submissions making reference to such documents in any event.41 [84] Moreover, in considering both of the Guidance Notes, it is clear that relocation is certainly not out of the question for a young single woman who can access safe accommodation, particularly where, as is stated in both Notes, they "may also be able to relocate to live with extended family or friends in other parts of the country". [85] In considering the RPD decision in this case, it is clear to me that the Member explicitly found that the appellants' family had moved to stay with friends in Ludhiana where they were not bothered by the agent of persecution. There is no indication that they have moved back to the family village. While the father has a farm there, the evidence was that it was being tended to by others, particularly since the father was medically unable to do so. The RPD found that the appellant would have the support, financial and otherwise of her family and friends in Ludhiana having determined that, without that support, the particular circumstances of this single woman (who had never lived independent of her extended family) would make an IFA on her own in India problematic. The RPD found that there was insufficient evidence to conclude that the support in the IFA would be withdrawn. Accordingly, while the RPD may not have referred to a Guidance Note (it never having been specifically drawn to her attention in any event) I find that, in the result, the Member considered the appropriate elements in coming to what I find to be a reasonable conclusion that a viable IFA exists for the appellant in Ludhiana. [86] The fifth alleged error was that the RPD improperly speculated that the friend in Ludhiana would not withdraw his support of the appellant and her family should he learn of XXXX association with SAD. I disagree. In reading the RPD decision at paragraph 20, it is clear that the Member was mindful of the evidence that other members of the appellants' family (such as her paternal aunt's family) had withdrawn their support because they did not want to get involved with XXXX, when the Member found, not only that the appellants' family could continue to live in Ludhiana where they had support from a friend but, also, that there was insufficient evidence to conclude that the friend would withdraw his support. [87] The evidence was that, after the XXXX 2013 shooting event at the family home, the appellants' family moved to Ludhiana to stay with the friend and that they were still there as at the time of the RPD hearing in May 2013. The appellant did not seek to introduce new evidence in this appeal to the effect that the parents had left Ludhiana or that the friend had withdrawn his support. My RAD reasons on the appeal are being written in October 2013. There is no evidentiary reason to consider that the situation in Ludhiana has changed. [88] There was no evidence before the RPD that the appellants' parents had kept secret what had happened to them in their village from the Ludhiana friend. In fact, I find that, in all the circumstances, it is the appellant who is engaging in speculation that the family friend will desert them. [89] Once a potential IFA has been identified as a place where it is not likely that the agent of persecution would locate the claimant, that claimant bears the responsibility to demonstrate why such a finding is unreasonable. In this regard, I find that the RPD properly weighed all the evidence before it when the RPD reasonably concluded that Ludhiana would be an IFA from XXXX and that there was insufficient evidence to conclude that support for the appellant there would cease. [90] Taking the totality of the RPD decision into account and based on the above noted considerations, I find that the RPD determination that the appellant has a viable IFA in Ludhiana was reasonable. CONCLUSION [91] For these reasons I confirm the determination of the RPD that XXXX XXXX XXXX is neither a Convention refugee, nor a person in need of protection within the meaning of sections 96 and 97 of the Act and her appeal is dismissed. (signed) "Philip MacAulay" Philip MacAulay October 22, 2013 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 RAD Exhibit 2 Appellant's Record (AR) pp. 126-220. 3 RAD Exhibit 2 pp. 5-13 4 RAD Exhibit 4 Refugee Protection Division Record (RPDR) pp. 13-26. 5 RAD Exhibits 2 and 3 taken together. 6 IRB Chairperson's Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa, Canada, March 1993, updated November 1996. 7 RAD Exhibit 2 AR, RPD reasons pp. 6 and 8, paras 3 and 8. 8 RAD Exhibit 2 AR, RPD reasons p. 11, paras. 14 and 15. 9 RAD Exhibit 2 AR, RPD reasons p. 11, para. 16. 10 RAD Exhibit 2 AR, RPD reasons pp. 11-12, para. 12 and 14. 11RAD Exhibit 2 AR, RPD reasons pp. 12-13, paras. 18-20. 12 Ranganathan v. M.C.I. 2001 FC 164 (CA). 13 RAD Exhibit 2 AR, RPD reasons pp. 12-13, paras. 18-20. 14 RAD Exhibit 2 AR, p. 224. 15 RAD Exhibit 2 AR pp.14-19. 16 The first 3 pages of which are numbered 222-224 and are found in RAD Exhibit 2 and the final 8 pages, numbered 225-232, found in RAD Exhibit 3. 17 Dunsmuir v. New Brunswick 2008 SCC 9. 18 Dunsmuir v, New Brunswick 2008 SCC 9. 19 Fatoyinbo v. M.C.I. 2012 FC 629. 20 Garcia Guevara v. M.C.I. 2012 FC 195. 21 For example, see Castellon v. MCI 2012 FC 1086 concerning the Immigration Appeal Division; Paul v. Bitish Columbia (Forest Appeals Commission) 2003 SCC 55; and Murphy v. Canada (Attorney General) 2007 FC 905 concerning the Veterans Review and Appeal Board. 22 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 23 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 44. 24 Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9. 25 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339. 26 IRPA, s. 107. 27 IRPA, s. 170. 28 IRPA, ss. 110(3). 29 IRPA, ss. 110.(4). 30 RAD Rule 57. 31 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 82. 32 Ibid, paragraph 95. 33 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para.59. 34 RAD Exhibit 2 AR p, 225. 35 RAD Exhibit 2 AR pp, 227-228. 36RAD Exhibit 2 AR pp, 228. 37 RAD Exhibit 4 AR pp 228-229. 38 RAD Exhibit 4 RPDR pp.56-74. 39 RAD Exhibit 4 RPDR p.58. 40 Cepeda-Gutierrez v. M.C.I. (1998) 157 F.T.R. 35. 41 see transcript RAD Exhibit 2 pp.205-218. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB3-01511 RAD.25.02 (April 9, 2013)