VC0-01300

RAD File / Dossier de la SAR : VC0-01300 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montreal Appel instruit / entendu à Date of decision March 25, 2021 Date de la décision Panel Me Martine Durocher Tribunal Counsel for the person who is the subject of the appeal Maria Esposito Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Appellant) is of Indian nationality and filed an appeal against the decision of the Refugee Protection Division (RPD) dated January 22, 2020 rejecting his request for refugee protection. [2] The Appellant is Sikh and speaks Punjabi. He fears XXXX XXXX XXXX, his former girlfriend's uncle, who was against their relationship. The uncle was powerful in the village and is alleged to have links with the police and politicians. In XXXX 2013, he had the Appellant arrested by the police who beat him and later released him after the payment of a hefty bribe. Since then, he never encountered any problems with the authorities. [3] The determinative isssue before the RPD was the existence of an internal flight alternative (IFA) in Delhi or Mumbai. In the procedings before the RAD, I will address the issue of IFA in Mumbai only. The Appellant was not represented by counsel before the RPD, but he benefits from legal representation before the RAD. DECISION [4] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. ROLE OF THE RAD [5] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.2 I have conducted my own independent assessment of all of the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. ANALYSIS [6] The RPD concluded that the Appellant failed to submit sufficient evidence to establish, on a balance of probabilities, that his former girlfriend's uncle exerts any control over anyone in Delhi or Mumbai, or that he had infiltrated the police in those cities. The panel also considered that the Appellant and his former girlfriend, XXXX, had not been in touch since early 2013 and it was probable that the agent of harm knew that they were no longer together. [7] On appeal, counsel for the Appellant submits that the RPD violated the rule of audi alteram partem by failing to attach any weight to the Appellant's evidence. The country conditions clearly support the Appellant's allegation that he would be exposed to a risk if he were to be in the Indian police's custody. The Appellant established that the police assaulted him in Delhi or Mumbai, while issuing death threats and attempting murder against him. He also reproaches the RPD for not having applied the test of section 96 of IRPA, as a Sikh living outside Pendjab. Finally, the RPD failed to articulate any analysis regarding the availability of state protection in the designated IFA cities. [8] I believe that the central issue in deciding this case is whether sufficient evidence was submitted to establish that the agents of harm would be able to locate the Appellant in Mumbai. [9] I note that aside from his Basis of Claim (BOC) and testimony, the Appellant did not submit any evidence in support of his claims, either before the RPD or the RAD. [10] In his testimony, the Appellant claims that the reason why the agent of harm would take revenge on him for having fallen in love with his former girlfriend was because he was from the same cast which was considered unacceptable to her family. In his BOC, the Appellant wrote that he was held responsible for "tarnishing" his girlfriend's reputation, but fails to explain why. I believe that there is insufficient evidence, on balance of probability, to link the allegations of the Appellant to a nexus of the Convention. [11] Contrary to the Appellant's allegations, the RPD attached full weight to the Appellant's testimony and allegations. Indeed, since the RPD considered that IFA was determinative issue, it follows that the Appellant's allegations were deemed credible. Since all of his allegations were considered, I must reject the Appellant's argument to the effect that the RPD violated the rule of audi alteram partem. [12] In an event, the Appellant did not detail how the agent of harm was able to locate him in his hiding place near Delhi, in XXXX. I note that, even before the RAD, the Appellants did not explain the alleged means the agent of harm could have had in finding the Appellant in Mumbai, aside from local influence in his region of Punjab state. I note that the Appellant failed to advance any allegations to support his claim that he would face a serious possibility of persecution or a risk to his life in Mumbai. It is well established that the country conditions alone are not sufficient as a legal basis for such allegation, without any argument linking them to the personal situation of the Appellant. [13] Consequently, I conclude that the RPD correctly found that the Appellant has not established that he would face a serious possibility of persecution or a risk as defined by section 97(1) of IRPA, if he were to return to India and relocate in Mumbai. It is therefore not necessary for me to address the Appellant's allegations regarding state protection in Mumbai. [14] As for the second prong of the IFA test, the RPD specifically considered the work experience of the Appellant, that he gained through his employment in Canada and his testimony to the effect that, apart from the agent of harm he alleges, he would not have any problem living in Mumbai or Delhi.3 I note that the objective document states that a majority of the Sikhs population live peacefully in India and do not experience societal discrimination, and that they are socially and economically well integrated in the communities in which they live outside Punjab.4 I therefore conclude that the RPD correctly found that it would be reasonable in all the particular circumstances of the Appellant's case, for him to seek refuge in Mumbai. [15] Consequently, I conclude that the RPD correctly found that there is a viable IFA available to the Appellant in Mumbai, and that he would not face a serious possibility of being persecuted, or, on a balance of probabilities, that he would face a danger of torture or be subjected to a risk to life or cruel and unsusual treatment in this IFA. CONCLUSION [16] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Me Martine Durocher Me Martine Durocher March 25, 2021 Date MD/dd 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Transcipts, p. 18. 4 National Documentation Package, India, 17 July 2020, tab 12.8: Situation of Sikhs outside the state of Punjab, including treatment by authorities and society; ability of Sikhs to relocate within India; treatment of Khalistan supporters or perceived supporters outside of Punjab (2017-October 2019). Immigration and Refugee Board of Canada. 16 December 2019. IND106294.E. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-01300 RAD.25.02 (January 14, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January 14, 2020) Disponible en français