MC1-04348

RAD File / Dossier de la SAR : MC1-04348 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 January 7, 2022 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Tarlochan Singh 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] I dismiss this appeal for the reasons that follow. [2] XXXX XXXX XXXX (Appellant) is a citizen of India. The Appellant fears that, if he were to return to India, he would be killed or seriously harmed by the Punjabi police or members of the Congress or Akali Dal Badal parties. The Appellant was arrested for the first time in 2016 when he protested the sacrilege of the Sri Guru Granth Sahib. The police alleged that he had links to terrorists and they beat and tortured him. He was released upon payment of a bribe. The Appellant claimed to have been active for the Am Adami Party in 2017 and that he was threatened by members of the Akali Dal and beaten up by members of the Congress Party. After this attack he did not participate in any political activity. The Appellant alleged that he was arrested a second time in 2018 and again the police made up allegations that he was associated with terrorists. He was again beaten and tortured and released upon the payment of a bribe. With the help of an agent, the Appellant left India for Canada to claim refugee protection in or around December 2018. [3] The Refugee Protection Division (RPD) rejected the Appellant's claim on the basis that he has a viable internal flight alternative (IFA) in Mumbai or Bengaluru. DECISION [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 Having reviewed all of the evidence in the case, I agree with the RPD that the Appellant would have a viable IFA in Mumbai or Bangaluru. ANALYSIS Appellant has a viable IFAs [5] International refugee protection is surrogate (that is, substitute) protection that only comes into play if a claimant does not have an IFA in their country of citizenship. The onus is on the Appellants to demonstrate that they do not have a viable IFA in their home country-in other words, a location to which he could relocate where he could live without experiencing persecution or the kind of serious harm that would make him a person in need of protection. The IFA analysis contains two prongs.2 (1) the decision maker must be satisfied on the balance of probabilities that the appellant would not face a serious possibility of persecution in the internal flight alternative location or a likelihood that he would be subjected personally to one of the types of harm that would make him a person in need of protection there. (2) the conditions in the part of the country under consideration must be such that it would not be unreasonable, in all the circumstances, for the appellant to seek refuge there. The threshold for unreasonableness is a very high one and requires nothing less than the existence of conditions that would jeopardize the life and safety of a claimant.3 First prong of the IFA test [6] I do not agree with the submissions of the Appellant's representative as to why he believes the RPD erred in finding that the Appellant had a viable IFA in Mumbai and Bengaluru. [7] I do not accept the representative's argument that the RPD failed to take into account the Appellant's testimony that the police had raided his house to arrest him in XXXX 2019 and XXXX 2021. The Appellant's information about these alleged raids came from the village Sarpanch who swore an affidavit in which he essentially repeated the claims set out in the Appellant's Basis of Claim narrative and stated, "the police still looking for him to arrest him and raided on XXXX-XXXX-2019 and XXXX XXXX XXXX-2021."4 There is no information in the affidavit as to how the sarpanch became aware of these raids. In addition, I note that the Appellant gave inconsistent evidence about who he lived with in his home village before leaving India. He first testified that he lived with a friend and then said he lived with his father, mother, and brother.5 This despite the fact that, in his narrative, he claimed that his mother left his father due to abuse in 2015 and was never seen thereafter. In any event, even if I were to accept as credible for the purposes of this decision that the police decided to raid the Appellant's home over a year after his 2018 arrest and then two years later, these raids are not sufficient to establish that the Punjab police would have the motivation to track the Appellant down and persecute him in the IFA cities if he were to return there today. [8] I disagree with the representative's argument that the RPD ignored the fact that the Appellant is a supporter of Shiromani Akali Dal Mann, a party that supports the achievement of an independent Khalistan. In fact, the Appellant's evidence was that he had always supported the Akali Dal Mann party but that he supported the Am Adami Party in the 2017 Assembly elections and that he was not politically active after he was allegedly attacked by Akali Dal Badal members in 2017. Therefore, I do not accept that the fact that the Appellant may have been an Akali Dal Mann supporter sometime before 2017 is sufficient to establish that there is a serious possibility that the police or anyone else would have the motivation to track him down and persecute him if he were to return to one of the IFA cities today. [9] I also do not agree with the Appellant's representative that his allegations about being arrested twice, once in 2016 and again in 2018, are sufficient to establish that he cannot live safely anywhere in India. In a very large number of cases, both the RAD and the Federal Court have upheld RPD decisions in cases such as the present in which the Appellant has alleged being arrested, tortured by Punjab police and subjected to allegations of association with terrorists. In each case, it is necessary to examine all of the evidence to determine whether the Appellant has met their onus of establishing that there is a serious possibility that the alleged agents of persecution would track the appellant down and persecute them in the IFA cities. In this case, I do not agree with the Appellant's representative that the Appellant's arrests in 2016 and 2018 are sufficient to establish that the police or anyone from the Congress or Akali Dal Badal parties would have the means or motivation to track him down and persecute him in the IFA cities if he returns there today. [10] Likewise, I do not agree with the Appellant's representative that the RPD ignored the Appellant's testimony that he believes that the police would track him in the IFA cities if he were to relocate there. In almost every case, appellants testify to a subjective belief that their agents of harm would be able to track them down all over their country. However, such a subjective belief is insufficient to establish a serious possibility that the agents of persecution would objectively have the means and motivation to track them down and persecute them in the IFA cities if they returned there today. [11] The Appellant's representative goes on to repeat all of the arguments he made before the RPD about why he believes the agents of persecution in this case would have both the means and motivation to track the Appellant down in the IFA cities due to the tenant registration system, police and government databases, and the Appellant's identification card. The Appellant's representative repeats the arguments he made before the RPD and seeks to rely upon the many news articles he submitted to the RPD. The Appellant's representative argues that the RPD ignored his arguments and documentary evidence showing that tenant registration is mandatory and police stations are interconnected by databases to track criminals. [12] I see no sign that the RPD ignored the arguments made, or the evidence submitted, by the Appellant's representative. The RPD acknowledged that the tenant verification system exists but relied upon documentary evidence that indicated that the police do not have the resources to follow up on the number of tenant verification forms they receive. The RPD also noted that the tenant verification system is intended to locate criminals and terrorists, which is not the Appellant's case as there was never any warrant issued for his arrest or notice for him to appear in court. [13] In my view, the RPD was correct to conclude that the existence of the tenant registration system and police databases were insufficient to establish that there is a serious possibility that the Punjab police or members of the congress or Akali Dal Badal parties would track the Appellant and persecute him in the IFA cities today. However, I would note that the RPD did err in stating that "the tenant registration system does not allow the Mumbai or Bengaluru police to communicate with the Punjab police" and that "it similarly does not allow the Punjab police to find the Claimant in Mumbai and Bengaluru."6 Despite the lack of any argument by the Appellant's representative on this poin, it is worth pointing out that this wording by the RPD is inaccurate. It is not that the tenant registration system "does not allow," for police forces to communicate. Instead, the issue is that the existence of the tenant registration system and police databases do not, by themselves, establish a serious possibility that these police forces will be in communication about a particular appellant. [14] Evidence in the NDP for India indicates that the Crime and Criminal Tracking Network and Systems (CCTNS) is in use in an increasing number of police stations and that there is a system of tenant verification in India that is mandatory.7 However, the evidence on police datases and the tenant registration system is mixed. For example, the evidence indicates that there are insufficient resources for the police to follow up on all tenant verification forms due to the volume of internal migration within India.8 In addition, the evidence also states that police systems between districts and states are not integrated, thus creating "islands of technology" which can only communicate within a state or district.9 Moreover, the evidence in the NDP for India indicates that there is little interstate police communications except in cases of major crimes like smuggling, terrorism, and some high-profile organized crime.10 [15] In this case, the Appellant alleged that the police arrested him twice and alleged he was associated with terrorists. However, they released him upon the payment of a bribe both times and there was no evidence that the police ever registered a First Information Report against him or charged him with any crime. There was also no evidence to establish that his name appears in the CCTNS database or any other police or government database. When all of this evidence is weighed, I do not find that the Appellant has made out his onus of establishing that there is a serious possibility that the police would have the means to track him using the tenant registration system or the CCTNS database. [16] As for the Central Monitoring System (CMS) mentioned by the Appellant's representative, I do not agree that the evidence establishes that there is a serious possibility that the police or any members of the Congress or Akali Dal Badal parties would track the Appellant down through the CMS.11 The documentation in the NDP indicates that (i) "no public documentation exists to explain the scope, functions and technical architecture of the CMS,"12 and (ii) only eleven government agencies have authorization to make intercept requests through the CMS, and none of the agencies listed are state police.13 Therefore, I find that the evidence does not establish a serious possibility that the Punjab police or any members of the Congress or Akali Dal Badal parties would be able to use the CMS to track the Appellant in the IFA cities. [17] I do not accept the arguments made by the Appellant's representative based on the fact that the Sikhs make up only 2% of the population of India or his arguments based on the raid on the Golden Temple complex in 1982. Notwithstanding the army's raid on the Golden Temple forty years ago, Sikhs have been able to live peacefully since the late 1980s and 1990s. Even if Sikhs do make up roughly 2% of the population in India, the documentary evidence indicates that, in general, Sikhs are able to live safely despite instances of localized discrimination.14 [18] I also do not agree with the Appellant's representative that the RPD ignored the various online news articles submitted by the Appellant on a variety of subjects from police corruption, the drug trade in India, or instances in which Sikhs were attacked by Hindus, the police or others in India. The RPD did not ignore these online articles, instead it correctly preferred to accord more weight to the documentary evidence contained in the National Documentation Package (NDP) for India which indicates that Sikhs are generally able to relocate and live safely in cities outside Punjab. I would add that this finding has generally been upheld in the RAD and Federal Court's case law,15 absent evidence that is capable of establishing that a particular appellant faces a serious possibility of persecution due to their particular profile. The simple fact that there have been certain attacks on Sikhs in different parts of India is insufficient to establish a serious possibility that that the agents of persecution or anyone else will subject the Appellant to persecution if he were to relocate to the IFA cities today. [19] Finally, I do not agree with the Appellant's representative that the Appellant would face a serious possibility of persecution due to his support for an independent Khalistan. It is true that sources in the NDP for India indicate that Sikhs who advocate for an independent Khalistan may be the subject of attention or harassment by authorities.16 Although the Appellant testified that he supported an independent Khalistan, he has not been politically active for almost five years. Overall, I do not find that the evidence establishes a serious possibility that the Punjab police, members of the Akali Dal Badal or Congress parties or anyone else would track the Appellant down in the IFA cities and persecute him there due to any political opinion he may hold in support of an independent Khalistan. Second prong of the IFA test [20] The only argument that the Appellant's representative made with respect to the second prong of the IFA test was that the Appellant testified that the police and government would kill him due to "fake excuses of Coronavirus."17 The Appellant's representative is referring to the Appellant's assertion at the hearing that he believed that "on the name of Corona, my body parts will be taken out and the rest of my body will put in a bag and sent to my village."18 The Appellant provided no objective evidence to support this speculative belief about what the Indian authorities might do to him due to the coronavirus. Therefore, I do not agree with the Appellant that the RPD erred in finding that he had failed to establish that it would be unreasonable, in the circumstances, to expect him to relocate to the IFA cities. CONCLUSION [21] For the above reasons, I deny the appeal and confirm the RPD's decision that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) Jo-Anne Pickel Jo-Anne Pickel January 7, 2022 Date JP/tm 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (CA). 3 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (CA). 4 Claimant's documents C-9, RPD Record. 5 Transcript of RPD hearing, pp. 6-7. 6 RPD Decision, para. 12. 7 Exhibit P-3; Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.13: Police databases and criminal tracking, particularly the Crime and Criminal Tracking Network and Systems (CCTNS); relationship with the Aadhaar and tenant verification systems; capacity to track persons through these systems (2019-May 2021). Immigration and Refugee Board of Canada. 26 May 2021. IND200626.E: National Documentation Package, India, 30 June 2021, tab 14.8: Requirements and procedures for tenant registration (or tenant verification), including implementation, particularly in Delhi, Mumbai, Kolkata and Bengaluru (2016-May 2019). Immigration and Refugee Board of Canada. 14 May 2019. IND106289.E. 8 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.6: Surveillance by state authorities; communication between police offices across the country, including use of the Crime and Criminal Tracking Network and Systems (CCTNS); categories of persons that may be included in police databases... Immigration and Refugee Board of Canada. 25 June 2018. IND106120.E at p. 13. 9 Ibid. at p. 1. 10 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.2: Communication between police offices across the country, including the use of POLNET; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks... Immigration and Refugee Board of Canada. 10 May 2016. IND105494.E at p. 1. 11 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.6: ?Surveillance by state authorities; communication between police offices across the country, including use of the Crime and Criminal Tracking Network and Systems (CCTNS); categories of persons that may be included in police databases... Immigration and Refugee Board of Canada. 25 June 2018. IND106120.E, p. 1. 12 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.6: ?Surveillance by state authorities; communication between police offices across the country, including use of the Crime and Criminal Tracking Network and Systems (CCTNS); categories of persons that may be included in police databases... Immigration and Refugee Board of Canada. 25 June 2018. IND106120.E, p. 1. 13 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, tab 10.2: ?Communication between police offices across the country, including the use of POLNET; whether police across India can locate an individual, particularly as a result of registration requirements for employment, housing and education, security checks... Immigration and Refugee Board of Canada. 10 May 2016. IND105494.E, p. 7. 14 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, 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. 15 For recent examples, see Singh v. Canada (Citizenship and Immigration), 2021 FC 341; Kaur v. Canada (Citizenship and Immigration), 2021 FC 1219; Singh v. Canada (Citizenship and Immigration), 2021 FC 459. 16 Exhibit RAD-2, National Documentation Package, India, 30 June 2021, 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. 17 Exhibit P-2, Appeal memorandum, para. 58. 18 Transcript of RPD hearing, p. 24. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC 1-04348 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