TC1-05226

RAD File / Dossier de la SAR : TC1-05226 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision October 29, 2021 Date de la décision Panel M. Oh Tribunal Counsel for the person who is the subject of the appeal Keshab Prasad Dahal 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 a citizen of Nepal. He claims to fear persecution from the Communist Party of Nepal, led by Netra Bikram Chand ("Biplav faction"). The Refugee Protection Division ("RPD") rejected his claim. It found that his fears of persecution were not objectively well-founded and that there were viable internal flight alternatives ("IFA") in the cities of Kathmandu and Biratnagar. The Appellant disputes the RPD's assessment of both issues. [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act ("IRPA"),1 the appeal is dismissed. Though I do not agree with all of the RPD's findings, I determine that there is a viable IFA in Kathmandu. The Refugee Appeal Division ("RAD") therefore confirms the RPD's decision and determines that the Appellant is not a Convention refugee or a person in need of protection. BACKGROUND [3] The Appellant comes from the Sunsari district of Nepal. He joined the XXXX XXXX XXXX ("XXXX") in 2007 and he was actively involved in his party's local activities, including XXXX XXXX. At the time, the Comprehensive Peace Accord had just recently been signed, and the Communist Party of Nepal (Maoist) joined the political process and came to be the ruling party in the country for some time. The party's youth wing, known as the Young Communist League ("YCL") was still involved in committing extortion and using force to have people join their party. In 2010, a local YCL leader, Mr. XXXX, approached the Appellant and requested a donation for the training of YCL members. He also recognized the Appellant's involvement in the community and recommended that he join their party. The Appellant refused to join, but he says he was nonetheless forced to pay XXXX XXXX XXXX rupees to avoid problems. [4] The Appellant became frustrated with the situation in Nepal. He decided to leave the country. In XXXX 2010, he moved to Portugal, where it seems that he worked without status as a XXXX XXXX. Two years later, he went to Germany and made an asylum claim, which was denied. In XXXX 2013, the Appellant's party won the most seats in the Constituent Assembly elections, and the Appellant was hopeful that the political situation would improve. [5] In XXXX 2014, the Appellant returned to Nepal. He soon married, had a son, and XXXX XXXX XXXX XXXX. He became active with the XXXX once again. Around this time, however, the Biplav faction emerged, which was promising a new "People's War." It seems that the former local YCL leader, Mr. XXXX, had joined the Biplav faction. In XXXX 2016, he and two other Biplav members came XXXX XXXX XXXX, announcing that he had been appointed as local leader of the Biplav faction. He demanded payment of XXXX XXXX XXXX rupees, but the Appellant negotiated payment of XXXX XXXX XXXX rupees, fearing for his safety and his business. However, the problems with the Biplav faction continued. The next year, three Biplav members violently confronted the Appellant's election campaign team and threatened them. [6] In XXXX 2018, Mr. XXXX returned to the Appellant's XXXX and attempted to recruit him into their party, promising him a good position. He was threatened when he refused. The next month, the Appellant's truck was stopped on the road by Biplav members, who stole XXXX XXXX XXXX rupees worth of goods from the truck. The Appellant was slapped and told that this was a lesson for failing to comply with their demands. The Appellant reported this incident to the police and to his party, which resulted in the issuance of a press release by the local XXXX and a demonstration. This caused the Appellant to be threatened even further. In XXXX 2019, the Appellant was confronted by Biplav Maoists who assaulted him, requiring him to get stitches in the hospital. Because of this situation, the Appellant promptly closed his store and relocated to Kathmandu. An agent arranged for the Appellant to get a Canadian visa. As the Biplav Maoists were still harassing the Appellant's wife and seeking his whereabouts, the Appellant's wife and child relocated to Kathmandu in XXXX 2019. The Appellant left for Canada in XXXX 2019 and initiated his claim for refugee protection. [7] The RPD heard the Appellant's claim on March 17, 2021 and the panel rendered a written decision on April 22, 2021. The RPD found that the Appellant's fear of persecution was not well-founded, considering the absence of any recent political and community activities, the local and low-level nature of his involvement with the XXXX, and the overall security situation for members of different political parties. The RPD also determined that there were viable IFAs in Kathmandu and Biratnagar. The risk of persecution in these locations from the Biplav faction was low. There was little evidence to support the Appellant's perception that they had a large network throughout the country. Moreover, violent incidents involving the Biplav faction and other Maoist parties were increasingly rare. There was no impediment to internal relocation to the proposed locations. In addition, given the Appellant's education and background, there was little to indicate that his relocation to either city would be unreasonable. Accordingly, the RPD rejected the Appellant's claim. Role of the Refugee Appeal Division [8] The jurisprudence establishes that the RAD is required to undertake an independent assessment of the evidence and reach its own determination. Deference is owed to the RPD only where the RPD held a meaningful advantage in assessing evidence.2 In the present case, I see no reason to show deference to any of the RPD's findings. I have applied a correctness standard and arrived at independent findings based on the evidence before me. Admissibility of new evidence [9] The Appellant has submitted 19 pieces of new evidence in this appeal. They are all news articles about the country conditions in Nepal. Only three articles will be admitted: i. An article from Khabarhub, about the splitting of the Biplav faction, which was published on May 1, 2021;3 ii. A second article from Khabarhub, about statements made by Netra Bikram Chanda, published on May 22, 2021;4 and iii. An article from Online Khabar, which discusses the status of a peace deal between the Biplav faction and the Nepali government, published on June 3, 2021.5 [10] Subsection 110(4) of the IRPA states that, on appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their 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 claim's rejection. If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must then consider factors around the credibility, relevance, and newness of the evidence.6 [11] Items (i) through (iii) were all published after the rejection of the Appellant's claim. They are relevant to the issues in this appeal, with respect to the profile of the agent of persecution. They add new information that was not previously known, and the evidence is sufficiently credible. I have therefore admitted these three documents. [12] The remaining documents are inadmissible. They predate the rejection of the Appellant's claim, and the Appellant has not described why these were not reasonably available to him, or why he could not have been expected to provide these to the RPD. The Appellant merely states that the articles show the situation in the country and prove that his fear is well-founded. He says that these documents are also relevant to the existence of a viable IFA. However, the RPD identified both of these issues at the very outset of the hearing. The hearing focused on these issues and the Appellant did not seek an opportunity to submit further evidence to address them. A decision was rendered more than a month after the hearing. As I am not satisfied that the remaining documents meet any of the criteria under subsection 110(4) of the IRPA, they will not be admitted. ANALYSIS [13] The appeal raises the following two issues: a) Whether the RPD erred in finding that the Appellant's fears of persecution were not well-founded; and b) Whether the RPD erred in finding that there was a viable internal flight alternative. [14] Both issues are addressed below. a) Whether the RPD erred in finding that the Appellant's fears of persecution were not well-founded [15] I cannot agree with the RPD's determination on the well-foundedness of the Appellant's fears of persecution in his home area. [16] The RPD considered the Appellant's political profile and the country conditions in Nepal. It found that he had only a local, low-level involvement in the XXXX and in his community. His most recent political activities would have been in XXXX 2017 for an election campaign. The panel found that the security situation had greatly improved since the Maoist conflict years. The current political environment was such that people could actively and openly carry out political activities with various parties, and this was generally respected. To the RPD, the occasional instances of violence from the Biplav faction did not make the Appellant's fears well-founded. [17] As the Appellant points out, however, the RPD's analysis seems to ignore many of the allegations that form the basis of his claim. The RPD did not identify any reasons to doubt the Appellant's credibility. The analysis of the issues was premised on the acceptance of all of the allegations, including that the Appellant was subjected to extortion, threats, and violence from Biplav faction members from 2016 to 2019. The RPD implicitly accepted that the Biplav Maoists in the Appellant's area were actively looking for him, with the intent of punishing him for defying them and reporting them to the police and others. Therefore, regardless of what the RPD thought about the low-level and local nature of the Appellant's political activities, and regardless of the improvement in the overall security situation in the country, it was at least clear that the particular group of Biplav Maoists in the Appellant's area were motivated to pursue the Appellant in his village and subject him to harm. The RPD erred where it failed to recognize the serious risk of harm from the individuals in the Appellant's village and surrounding area. b) Whether the RPD erred in finding that there was viable internal flight alternative [18] With that said, I do not believe that the risk of persecution extends to the entire country. The Appellant disputes the RPD's IFA analysis, but I agree with the RPD's reasons on this issue, particularly with respect to the viability of Kathmandu as an IFA. [19] There is a two-prong test to determine whether a viable IFA exists. First, the decision-maker must be satisfied on a balance of probabilities, that there is no serious possibility of persecution in the part of the country where the proposed IFA is located. Second, conditions in the IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for them to seek refuge there.7 First prong: No serious possibility of persecution in Kathmandu [20] The RPD applied both prongs of the test. On the first prong, the panel considered that the Biplav faction did not have the means to locate the Appellant in either IFA. The Appellant's position, that the Biplav Maoists had a large network across Nepal, was unsupported. There was little evidence of any recent attacks by the Biplav faction against individuals, and there was little to establish that there was a risk of harm from any other Maoist groups. Kathmandu, the capital city, was over 350 kilometres away from the Appellant's home and it had a population of over one million people. Biratnagar was 25 kilometres away, and it was city of a significant size, with more than 240,000 inhabitants. The RPD found that either of these cities would provide the Appellant with a significant degree of anonymity, which would decrease the likelihood of being found by the agents of persecution. [21] The Appellant emphasizes that he does not need to establish that the agent of persecution will find him in the proposed IFA. He is only required to show that there is a serious possibility of persecution there. The Appellant argues that as Maoist groups are active in the proposed locations, it cannot be said that the risk threshold has not been met. The Appellant reiterates that his agent of persecution has a wide network across the country, and that their violent actions have been reported. [22] Specifically, the Appellant points to evidence indicating that the YCL had approximately one million cadres in 2011 and that coordination between the YCL and the United Communist Party of Nepal-Maoist ("UCPN-M") was generally strong.8 YCL cadres reportedly perpetrated violence in the 2013 election and afterwards, and continued to engage in extortion and political intimidation.9 The faction led by Mohan Baidya, known as the Communist Party of Nepal-Maoist ("Baidya faction") was involved in extortion and kidnappings along with the Biplav faction. There were incidents reported in 2014 and 2015 involving special donation squads, who contacted individuals for donations in a threatening manner. The Biplav faction also captured land in various municipalities in 2015, which the Appellant believes is evidence that the Maoists and the YCL continue their activities unabated.10 According to the Appellant, the country conditions clearly indicate that the Biplav faction is leading to another civil war in Nepal, as the faction carried out several attacks across the country in 2019. [23] I have carefully considered these arguments, but I have reached the same conclusion as the RPD on the risk of persecution in Kathmandu. [24] With respect to the applicable legal test, the Appellant raises an interesting issue, which was recently addressed by the Federal Court in Gomez Dominguez.11 In that case, the Honourable Mr. Justice Grammond observed that conclusions about the capacity or motivation of agents of persecution are essentially a risk assessment. Future events are not proven on a balance of probabilities. They are events that are feared. By segmenting the analysis and applying the higher standard of a balance of probabilities to questions around the forward-looking capacity and motivations of the agent of persecution, there is little left to be assessed on the standard of a "serious possibility".12 [25] However, even after applying a lower threshold of a "serious possibility" to the question of the Biplav faction's means and motivation to track the Appellant in Kathmandu, the outcome is unchanged. While the Biplav faction undoubtedly poses a security threat in Nepal, I do not agree with the Appellant's characterization of the risks that the group presents in Kathmandu. The Appellant's description of a countrywide network with the will and capacity to track him is not borne out by the evidence. [26] The Appellant seems to rely heavily on outdated evidence about the strength of the YCL and its "nationwide network."13 It is important to note that, despite the similarities in the names of various Maoist groups in Nepal, many of these groups are not the same entities that existed 10 years ago, nor are these groups cohesive or unified.14 The Communist Party of Nepal (Unified Marxist-Leninist), for instance, is a mainstream political party. This is in contrast to other groups, such as the Biplav and Baidya factions that have splintered from other parties, but do not enjoy the same influence or popular support. Though the Appellant's BOC narrative indicates that Mr. XXXX was once part of the Communist Party of Nepal (Maoist)-affiliated YCL, the narrative describes that Mr. XXXX joined the Biplav faction by at least 2016. The agents of persecution that have caused the Appellant problems in Nepal have all been from the Biplav faction. [27] Evidence about the number of YCL cadres in 2011 and their coordination under the UCPN-M is therefore not persuasive. The very same document relied upon by the Appellant indicates that the UCPN-M disbanded their YCL, and that due to the factional split in that party in 2012, there were different youth wings operating for the various parties.15 The evidence also indicated that since 2013, violent activity by youth wings had decreased significantly compared to previous years.16 This was consistent with an overall trend of decreasing political violence since the end of the Maoist conflict in 2006. By 2015 and 2016, kidnapping and extortion by Maoists groups were no longer common occurrences, and there were very few reports of threats from Maoist parties in Nepal.17 [28] The evidence does not support the Appellant's description of the Biplav faction's power and influence. The Biplav faction's power base is reportedly in the Rukum District in western Nepal, where the Nepali government had difficulty exerting its authority.18 Little is known about the faction's party structure and organization. The faction only formed in 2014, and it appears to be concentrated primarily in the western regions of Nepal.19 The faction has some presence in other parts of the country, and while it is true that there have been reports of violence, threats, and extortion from the Biplav faction across the country, the evidence indicates that the faction has mainly targeted areas with poor security, particularly those in rural municipalities without the presence of army and armed police forces.20 Other sources confirmed that instances of extortion by both the Biplav and Baidya factions were occurring mainly outside of Kathmandu, particularly in the Mid-West and Far-West regions, along with a few cases in the Western region. Sources also indicated that targets for extortion were not necessarily identified based on their political views, but rather on their business profile, such as those in the business community and non-governmental organizations, again mainly outside of Kathmandu.21 Violent incidents perpetrated by the Biplav faction in Kathmandu were sporadic, at best. [29] I acknowledge that the Biplav faction carried out several attacks across Nepal in 2019, including bombings, however the documentary evidence indicates that the party had gone underground by at least March 2019, following the government's declaration of the Biplav faction as a criminal group along with instructions for the arrest of the faction's leaders and cadres.22 More than 130 people affiliated with the party were arrested.23 The main political parties in Nepal, including the Appellant's party, the XXXX, wished to seek a solution through political talks, rather than through security measures.24 By March 2021, the Nepali government had signed a peace deal with the Biplav faction, though its leader gave confusing statements as to whether the Biplav faction was committed to "peaceful politics."25 [30] Whatever the Biplav faction's current intentions, the evidence does not establish that the group has a nationwide network that is used to track political targets or other targets for extortion and other harm. The incidents that occurred to the Appellant were all tied to his area and the local Biplav faction there. After he fled from his area, he did not have any personal encounters with any Maoist groups while he was in Kathmandu. Though the Biplav members contacted his mobile phone while he was in Kathmandu, they did not appear to know his whereabouts in the country, and they did not contact him again after he changed his phone number. They instead went around his village to inquire about his whereabouts, which indicates that they were not able to track him to Kathmandu. There is nothing to indicate that the Appellant's wife and son have since been located in Kathmandu. In short, the agents of persecution have not been able to locate the Appellant or his family, and the Appellant has not demonstrated how they might be able to do so if he were to join his wife and child in Kathmandu. [31] I am satisfied that the Appellant would be able to freely continue his political activities in the event of his return to Kathmandu. The evidence does not establish that there is a serious possibility of persecution against even actively involved XXXXmembers in Kathmandu from the Biplav faction or more generally from other Maoist parties. As stated by sources in the National Documentation Package, Nepal has enjoyed several years of political stability, which has allowed members of political parties to carry out their activities freely.26 The XXXXis now the ruling party in Nepal, and the Biplav faction is a marginalized splinter faction with relatively little support. Even though I recognize that cases of extortion from the Biplav faction are likely to be underreported, I cannot conclude from this that Kathmandu is one of the areas of the country in which the Appellant will be at risk. The evidence simply does not establish that Kathmandu is among the areas where the Biplav faction has a significant presence. Nor does the evidence show that incidents of extortion, violence, or other harm from the Biplav faction or other Maoist groups occur with such frequency that the Appellant would face a serious possibility of persecution in Kathmandu. Second prong: Reasonableness of relocation to Kathmandu [32] As for the second prong of the test, the RPD considered the Appellant's level of education, experience, and proven resourcefulness in traveling and working abroad. There was no impediment to the Appellant's relocation to the proposed IFA. As such, the RPD found that it was not unreasonable for the Appellant to seek refuge there. [33] The Appellant does not identify any particular error in the RPD's assessment of these factors. However, he relies on the Federal Court decision in Gurung,27 where the Court found that the RAD had unreasonably determined that an IFA was available in Kathmandu, in a situation where a businessperson was targeted after refusing to comply with the YCL's demands. The Appellant also argues that since there is no state protection available, there cannot be a viable IFA. [34] The findings in Gurung are highly fact specific. In that case, the RAD considered the risk to the Appellant from the YCL, during a period of time when the UCPN-M affiliated YCL was still involved in extortion and violence. Though the RAD in that case seemed to accept that the YCL had a nationwide network that was capable of being used to track the applicant - a finding that rendered the assessment of both prongs of the test unreasonable - in the present case, there is a different agent of persecution altogether, and I do not accept that the Biplav faction has the capacity or the willingness on an organizational level to pursue the Appellant in other parts of the country.28 [35] As for the issue of state protection, in my view this is more relevant to the first prong of the IFA test. In the present case, the RPD did not proceed to assess the availability of state protection in the IFA. There is no error in this. The RPD determined that the risk of persecution in the IFA was so low that it could not be said that there was a serious possibility of persecution there. Implicit in the RPD's finding was that the risk of any incident occurring that would necessitate approaching the police for protection was correspondingly low. [36] I agree with the RPD's analysis. It is important to recall that the jurisprudence places a very high threshold for the second prong. It requires nothing less than the existence of conditions that would jeopardize the life and safety of a claimant in traveling or relocating to a safe area.29 The RPD correctly considered the Appellant's individual circumstances. There were no obvious obstacles preventing the Appellant from relocating to Kathmandu. According to him, both his wife and child are currently living there. The Appellant has completed a high school level of education, and he has gained work experience in Nepal and internationally. I do not see any factors that would render the Appellant's relocation to Kathmandu objectively unreasonable. CONCLUSION [37] As both prongs of the IFA test are met, I agree with the RPD's conclusion. There is a viable IFA in Kathmandu. This is dispositive of the Appellant's claim for refugee protection. The Appellant is neither a Convention refugee, nor a person in need of protection. [38] The appeal is dismissed, pursuant to paragraph 111(1)(a) of the IRPA. (signed) M. Oh M. Oh October 29, 2021 Date 1 Immigration and Refugee Protection Act (IRPA"), S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; see also Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 3 Exhibit P-2, Appellant's Record, at p. 22. 4 Ibid., at p. 25. 5 Ibid., at pp. 26-27. 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 7 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 8 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package ("NDP") for Nepal (April 30, 2020), item 4.6, Response to Information Request ("RIR") NPL104890.E. 9 Ibid., items 4.6 and 4.7. 10 Ibid., item 4.7, RIR NPL105360.E. 11 Gomez Dominguez v. Canada (Citizenship and Immigration), 2020 FC 1098. 12 Ibid., at paras. 29-31. 13 Ibid., item 4.6. 14 Ibid., items 4.6, 4.7, and 4.8, RIR NPL105569.E. 15 Ibid, item 4.6. 16 Ibid. 17 Ibid., items 4.7 and 4.8. 18 Exhibit RPD-1, RPD Record, Exhibit 7, at p. 250. 19 Ibid., Exhibit 7, at p. 276 and 287-291. 20 Ibid., Exhibit 7, at p. 282. 21 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nepal (April 30, 2020), item 4.7. 22 Exhibit RPD-1, RPD Record, Exhibit 7, at pp. 276, 280, and 289. 23 Ibid., Exhibit 7, at p. 280. 24 Ibid., Exhibit 7, at p. 269. 25 Exhibit P-2, Appellant's Record, at pp. 26-27. 26 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Nepal (April 30, 2020), items 1.6 and 1.7. 27 Gurung v. Canada (Citizenship and Immigration), 2019 FC 622. 28 Ibid., at paras. 6-11. 29 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164, 2000 CanLII 16789 (FCA), at paras. 15-16. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-05226 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français