VC3-07552

RAD File / Dossier de la SAR : VC3-07552 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 December 11, 2023 Date de la décision Panel Joshua M. Prowse Tribunal Counsel for the person who is the subject of the appeal Sohana Sara Siddiky 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, a citizen of India, appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] The appellant states that he fears returning to India because he had a sexual relationship with a girl in India and made her pregnant, and then her family, aided by local villagers, began threatening him with an honour killing because of this transgression of social norms. [3] The RPD rejected this claim, finding that the appellant has an internal flight alternative (IFA) in Mumbai and New Delhi. [4] I dismiss the appeal. The RPD was correct that the appellant has viable IFAs there. NEW EVIDENCE AND ORAL HEARING [5] The appellant does not submit new evidence on appeal.1 This Division cannot hold an oral hearing where it does not admit new evidence.2 [6] I provided notice to the appellant and Minister that state protection in the IFA locations would be considered on appeal and I disclosed an additional document related to charge rates in India for the crimes at issue. No reply was received. ANALYSIS [7] My role is to independently look at all the evidence and decide if the RPD made the correct decision.3 The RPD did not have any meaningful advantage in deciding this case as the issues that the RPD based its findings on are fully reproduced in the record, including the transcript and audio recording before me. INTERNAL FLIGHT ALTERNATIVE [8] The RPD correctly articulated the test for finding that a claimant has a viable Internal Flight Alternative. As defined in Ranganathan v. Canada, an IFA is viable if 1) the appellant does not face s. 97 harm or a reasonable chance of persecution there, and 2) conditions in the IFA are such that it would not be unreasonable for the appellant to seek refuge there.4 First prong of the IFA test: Risk of persecution or s. 97 harm [9] The RPD correctly found that the appellant does not face s. 97 harm or a reasonable chance of persecution in the IFAs. The principal reason for this is that this is not a case in which the police are agents of harm and, even if the police in his home area are not sufficiently protecting him, the appellant can avail himself of police protection in the IFAs if he is pursued there. Motivation and means of the agents of harm [10] The appellant faces threats from the family of the girl that he was in a relationship with, along with their allied hoodlums in his town. In 2017, after the relationship was uncovered, these individuals came to his family's home wielding hockey sticks and threatened him. They remain motivated to harm him - they have continued to ask after him and threaten him years after the fact. Their motivation to exact revenge was apparently strengthened after the girl that the appellant was in a relationship with had an arranged marriage fall apart once the groom learned of the way that (in his view) her honour had been besmirched by the appellant. [11] It is likely that if the appellant relocated to the IFAs, these individuals would learn of his new location. This is because the appellant is in daily telephone contact with his parents in his home village and these agents of harm could ask them where he is. That said, the appellant is not a Convention refugee or a 'person in need of protection' simply because the agents of harm have the means to locate him in the IFAs. This is because he could request assistance from the police in the IFA locations if he faced a problem there. Police are not agents of harm [12] The police in this case are not agents of harm. While the appellant submitted at the RPD that they were, he does not present any direct evidence of police impropriety or collusion with the agents of harm in this case. As a result, the RPD correctly found that "the Punjab police were not directly involved in the problems which the claimant faced in India."5 [13] It is true that the police came to the appellant's parents' home to ask after him along with some individuals of the girl's same caste. At that point, the police advised the appellant's parents of the threats that had been made by the girl's family and "community" and said that "there was no guarantee" of the appellant's safety.6 Police have also continued to inquire into the appellant's whereabouts since. [14] This police conduct is consistent with the fact that the appellant committed a crime in India and his ex-girlfriend's mother reported him to police.7 The girl that the appellant had sexual relations with was 17 at the time of their encounter. An adult having sexual relations with a minor is against the law in that country, as the age of consent is 18.8 The appellant's act would not be considered a crime in Canada, because of their close ages, and so he is not excluded from our refugee regime. That said, the fact that Indian police have apparently taken interest in this case is not sufficient to establish that they are engaging in improper persecution, as opposed to a legitimate prosecution. In contrast with many other laws in India, the reports before me indicate that this age of consent law is "enforced effectively".9 It is entirely appropriate that the police would search for and seek to question the appellant as part of such an investigation. As such, I accept the appellant's argument that it is likely that the police have taken investigative steps in this case regarding the crime of him having had sexual relations with a minor.10 [15] While the appellant speculates that the police could be bribed in order to commit misconduct, he presents insufficient evidence pointing to any past bribery in this case over the last six years. In the circumstances, this concern is speculative. The fact that corruption is common does not establish on a balance of probabilities that it is occurring in this case, especially given country conditions evidence indicating that a majority of those who approach the police do not pay bribes for assistance.11 [16] All that said, there is also insufficient evidence that the police in the appellant's village have taken effective actions to protect him from the persons that he fears, despite the fact that police became aware of their threats (indeed, warned him of them). Evidence on this point is limited, however, given that it does not appear that the appellant and his family ever registered a complaint regarding these threats that would produce documentation about the police response (or lack thereof).12 However, even if it is the case that the police in this town are not providing effective protection to the appellant, there is insufficient evidence that this holds true for the police in the major urban centres that have been identified as IFAs in this case, as discussed below. State protection in the IFA locations [17] If the appellant relocates to Mumbai or Delhi and faces problems, he can get police help. If state protection is available, then an applicant's fears cannot be considered well-founded. [18] The standard for state protection is adequacy at the operational level with regard to the country and the circumstances.13 In refugee law, states are presumed to be capable of protecting their citizens; a claimant who asserts that state protection is inadequate bears the burden of adducing evidence to that effect.14 The question is whether there is sufficient "clear and convincing" evidence of the state's failure to protect. I reach my conclusion about the adequacy of the state protection on offer after considering the following factors: 1) measures taken by the state and the efficacy of those measures, 2) evidence of similarly situated individuals, considering the particular circumstances of the claimant and his profile, and 3) the efforts made by the claimant to obtain protection.15 Measures taken by the state and the efficacy of those measures [19] There is voluminous, but mixed, evidence in the National Documentation Package for India on the nature and effectiveness of state protection by Indian authorities in relation to non-state threats and violence. It is well summarized by the UK Home Office Report "India: Actors of protection", which indicates that the evidence on point is mixed. As discussed in that report, while "there is a functioning criminal justice system for the detection, prosecution and punishment of acts constituting persecution or serious harm, which is generally accessible," it is also the case that "police effectiveness and conduct varies from state to state, undermined by inadequate training and equipment, limited resources, political influence and corruption."16 [20] Looking at the specific issue in this claim, a threatened honour killing, information before me in the National Documentation Package, largely stemming from media reports, indicates that police have arrested some perpetrators of these crimes in the past17 but also that at times police have not taken complaints about such threats seriously and some perpetrators have had effective impunity.18 [21] Indian Penal Code section 503 criminalizes "criminal intimidation," which would appear to fit the appellant's circumstances.19 Police register well over 100,000 cases for criminal intimidation ever year in India.20 Overall, convictions are secured in 47% of the cases registered under the Indian Penal Code.21 To put this number in some context, and while not strictly the same methodology, in Canada in 2021-22, 47% of criminal charges resulted in a guilty finding (including guilty pleas and cases where an absolute or conditional discharge was imposed).22 [22] In short, this is a case where applicable laws are in place, mechanisms to provide protection exist, and enforcement efforts are yielding tangible results in some cases, but not in others. Evidence of similarly situated individuals, considering the particular circumstances of the claimant and his profile [23] This appellant appears to be in an advantageous position because of his caste. One of the ways that the quality of state protection on offer varies is with the caste of the complainant. The information before me is that "often police will stand by and do nothing" to stop violence against Dalits,23 but it appears that the situation is comparatively better for those of a higher caste like this claimant who is part of a dominant Jat caste in his area of India24 and is facing violence from the Dalit community there.25 [24] State protection is also reported to be more effective in the IFA locations being considered in this claim. In rural areas (such as where the appellant was previously residing) police are said to tend to "collude" with the dominant communal group, whereas the situation is said to be better in cities (such as these IFA locations).26 Furthermore, Punjab in particular is an area where interfaith couples are said not to have "much support" from state authorities, whereas Delhi and Mumbai are not described this way.27 In a survey of crime victims who approached police in the IFAs of Delhi and Mumbai, most were satisfied with the police response.28 85% of respondents in Mumbai and 75% in Delhi thought that the police can be relied on when needed.29 [25] In short, this factor points against a finding that there is sufficient "clear and convincing" evidence of the state's failure to protect in these IFAs. The efforts made by the claimant to obtain protection [26] A claimant is required to approach their state for protection in situations in which protection might reasonably be forthcoming.30 It does not appear that this appellant has tested the state protection on offer to him in India. In his Basis of Claim form, the appellant indicates that he did ask the authorities in his country to protect or assist him (question 2(c)), but then when asked to provide details (dates, places, names) he simply indicates "read my typed narrative" which does not appear to make mention of any such request for assistance. Instead, his narrative indicates that he left his country soon after his problem developed. [27] This appellant indicates that he has been subject to threats of violence over a span of many years, indicating that he has had a substantial period of time during which to approach authorities and request assistance. He also indicates that there is very strong evidence of the illegal conduct at issue, including that there are a significant number of witnesses to this illegal conduct. Police reports may be made in a number of ways, including by friends, a phone call, or an email if need be.31 The government has also established a 24x7 helpline to receive and register complaints and to provide necessary assistance in these types of cases.32 [28] A claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.33 However, the appellant does not point to evidence that an email or phone request to the police for help would have. [29] It is clear that local police in the appellant's home area were aware of some of the threats that he had received, however failures of local protection do not themselves constitute "clear and convincing evidence" of the unavailability of state protection without more.34 In any event, I assign low weight to the appellant's past efforts to approach his state (or lack thereof) in this case where the state protection being assessed is that of the IFA locations, not his home area where he was previously residing. Conclusion on state protection in the IFA locations [30] Other decisions of this Board have affirmed that the presumption of state protection applies to India.35 In these circumstances, in my view the appellant has not provided "clear and convincing evidence" to rebut the presumption that he can avail himself of the benefit of India's state protection in the IFA locations. [31] For these reasons, I find that the appellant has not established that he faces a reasonable chance of persecution or a personal risk to life, risk of torture or risk of cruel and unusual punishment or treatment, on a balance of probabilities, in Mumbai or New Delhi. Second prong of the IFA test: Jeopardy to life or safety in the IFA locations [32] In order for an IFA to be viable, it must not be unduly harsh to expect an appellant to relocate to it. If there are conditions which would jeopardize the life or safety of an appellant in travelling to or temporarily relocating to the safe area, then it cannot be considered a viable IFA.36 In this case, the IFAs that the RPD proposed are reasonable ones. The appellant has not established that he is at risk because of his Sikh identity [33] I reject the appellant's argument that these IFAs are inappropriate given his Sikh religious practice. [34] The appellant placed this argument in the section of his submissions about the second prong of the IFA test. As a result, I have assessed whether the IFAs would be unduly harsh for this reason. I have also assessed whether he would face a reasonable chance of persecution for this reason, given that it involves a nexus to the Convention ground of religion. Finally, I have assessed whether the appellant would face the harms that make someone a 'person in need of protection' on this basis. [35] There is no reasonable chance of the appellant facing cumulative discrimination amount to persecution on the basis of his Sikh identity, let alone it being likely that he would face the harms that would make these IFAs inappropriate. While the evidence about country conditions for Sikh persons in India is mixed, when I look at all of it, I am satisfied that the RPD conclusion was correct. [36] Document 12.8 of the July 2023 National Documentation Package for India, that the appellant refers to, is a Response to Information Request from this Board's research unit. This RIR discusses, among other things, "treatment of Sikhs outside the state of Punjab by society and authorities; ability for Sikhs to relocate within India outside the state of Punjab". It cites a professor who states that while there might be "rare cases of religious discrimination," Sikhs "generally" do not face "systematic problems in India based on their identity".37 I am satisfied that this accurately captures the country conditions in India; it is consistent with other summaries in the National Documentation Package that "since the late 1980s, Sikhs living outside Punjab mostly do so safely and integrate economically and socially into their communities" and "Sikhs in India generally face a low level of official and societal discrimination and violence."38 [37] I acknowledge that the section of the RIR at 12.8 of the NDP on the "Treatment of Sikhs by Society" does indicate that there are instances of Sikh persons facing discrimination.39 However, it does not, in my read of the information, substantiate that there is a reasonable chance of the appellant facing discrimination in the IFA locations that rises to the level of serious harm as a result of his Sikh identity. First, the information in this section is either quite general, or it relates to other parts of India like Jammu and Kashmir, but is not specific to the IFA locations in any way. Second, the information does not contain sufficient details that would allow this panel to conclude that the appellant faces a reasonable chance of persecution, or, on a balance of probabilities s. 97 harm, as a result of his Sikh identity. [38] For example, while the RIR cites an emeritus professor as stating that "prejudice" against Sikhs has become "very deep rooted,"40 I assign low weight to this statement with respect to the question that I have to answer about these IFAs because the information does not allow me to assess how such prejudice manifests itself and whether it rises to the level of persecution or other serious harm. This statement can be read alongside the sentence in that same section that "The DFAT report states that religious minorities, including Sikhs, face 'varying degrees of socio-economic, cultural and legal discrimination'", which seems to imply that the extent of such discrimination can vary. [39] Similarly, I accept that, as the appellant argues, India's National Commission for Minorities received 1871 complaints, with Sikhs being one of the top three minority complainant communities.41 However, this is not specific to the IFA location in this case, and, in the context of India's 1.4 billion strong population, does not establish that this appellant has a well-founded fear of persecution or that he is more likely than not to face the other harms that would render these IFAs inappropriate. [40] While I accept that, as the appellant submits, the integration of Sikhs in areas without a Sikh community is challenging,42 both Mumbai (60,000+ Sikh persons43) and Delhi (570,000+ Sikh persons44) have sizable Sikh populations. [41] While I accept that, as the appellant submits, torture does occur within Indian detention facilities, for the reasons articulated earlier in these reasons, I am not satisfied that the appellant faces a reasonable chance of being detained and tortured by authorities. [42] I accept that, as the appellant submits, a Pew Research Center survey noted that 14 percent of Sikh respondents stated that Sikhs "face a lot of discrimination," 18 percent stated that they had personally faced "religious discrimination," and 78 percent stated that communal violence was a "major issue". Indeed, one wonders why the other 22 percent of respondents would not think that communal violence, wherever it occurs, is a "major issue". These statistics, on their own, say little about whether discrimination rises to the level of persecution for those similarly situated to this appellant who are living in these IFA locations. These survey results need to be considered with all of the other information before me. For example, the Pew Research Center carried out in-person interviews with 29,999 Indian adults, including 1,782 people who identify as Sikh, and 82 percent of Sikh respondents said they are "very free" to practice their religion. [43] Assessing the evidence before me cumulatively, and the appellant's submissions, I conclude that he has not established that he faces a reasonable chance of facing discrimination that rises to the level of persecution upon return to India by reason of his religion, let alone s. 97 harm or country conditions which would render this IFA unduly harsh. Conclusion on second prong of IFA test [44] The RPD reached other findings regarding the appellant's work and housing prospects in the IFAs that the appellant does not directly challenge, and which I uphold for the reasons the RPD offered. [45] I am therefore satisfied that the RPD properly applied both parts of the analysis as established in Rasaratnam, and correctly determined that the appellant has viable IFAs. The appellant has not shown that he faces either a reasonable chance of persecution, or, on a balance of probabilities, a danger of torture, a risk to his life, or cruel and unusual treatment or punishment in the IFAs, or that it would be objectively unreasonable in his circumstances to relocate to these IFAs. CONCLUSION [46] 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) "J. Prowse" Joshua M. Prowse December 11, 2023 Date 1 Appellant's Record, Written Declaration. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII), [2016] 4 FCR 230, at para. 71. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada, 2018 FC 1145. 4 Ranganathan v. Canada, (F.C.A., no. A-348-99), [2001] 2 F.C. 164 (C.A.). 5 Appellant's record, page 31. 6 BOC narrative, para. 9. 7 Appellant's record, page 31. 8 National Documentation Package, India, 7 July 2023, tab 2.1: ?India. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023, page 43. 9 National Documentation Package, India, 7 July 2023, tab 2.1: ?India. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023, page 43. 10 Appellant's record, page 35. 11 National Documentation Package, India, 7 July 2023, tab 10.14: ?India's Police Forces Turning Into Private Armies Of Elected Rulers. Article 14. Vipul Mudgal. 22 April 2021, page 3. 12 While the appellant's Basis of Claim form at question 2(c) indicates that he asked authorities in his country to protect or assist him, it directs the reader to his BOC narrative which does not appear to include any evidence of this. 13 Kovacs v Canada (Minister of Citizenship and Immigration), 2015 FC 337 at paras. 66-73. 14 Flores Carillo v. Canada (Minister of Citizenship and Immigration), [2008] 4 F.C.R. 636 (F.C.A.), 2008 FCA 94. 15 Immigration and Refugee Board of Canada, Interpretation of Convention Refugee and Person in Need of Protection in the Case Law, Chapter 6 - State protection, ???????????????December 31, 2020, <https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Pages/RefDef06.aspx>, at 6.1.7.3.2. 16 National Documentation Package, India, 7 July 2023, tab 10.10, at 2.3.2. 17 National Documentation Package, India, 7 July 2023, tab 12.5. Immigration and Refugee Board of Canada. 16 May 2019. IND106276.E, page 13; National Documentation Package, India, 7 July 2023, tab 5.10: ?Honour-based violence, including prevalence in rural and urban areas; legislation; state protection and support services available (2016-May 2020). Immigration and Refugee Board of Canada. 4 June 2020. IND200256.E, pages 10-11 and 13, in particular. 18 National Documentation Package, India, 7 July 2023, tab 12.5: ?Situation of inter-religious and inter-caste couples, including treatment by society and authorities; situation of children from such marriages (2017-May 2019). Immigration and Refugee Board of Canada. 16 May 2019. IND106276.E, page 14. 19 National Documentation Package, India, 7 July 2023, tab 5.12: ?Invisible Victims of Sexual Violence: Access to Justice for Women and Girls with Disabilities in India. Human Rights Watch. Nidhi Goyal; Shikha Silliman Bhattacharjee. 3 April 2018, page 39. See also: National Documentation Package, India, 7 July 2023, tab 9.12: ?The Indian Penal Code (amended 2019). ?India, page 117. 20 Document regarding criminal cases registered disclosed to parties by this RAD panel and obtained from https://ncrb.gov.in/uploads/nationalcrimerecordsbureau/post/1679649431TABLE12.pdf 21 National Documentation Package, India, 7 July 2023, tab 10.10: ?Country Policy and Information Note. India: Actors of Protection. Version 1.0. United Kingdom. Home Office. January 2019, page 12. 22 This statistic may be judicially noticed as it is reasonably unquestionable and easily verifiable. See this standard for judicial notice expressed in Cheng v Canada (Minister of Employment and Immigration), [1993] FCJ No 1036 at para. 6 (TD) as cited in Martin David Jones and Sasha Baglay. Refugee Law (Second Edition). Irwin Law, 2017, page 305. For the statistic, see Statistics Canada, Table: 35-10-0027-01, Adult criminal courts, number of cases and charges by type of decision, <https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510002701>. 23 National Documentation Package, India, 7 July 2023, tab 12.5, pages 16-17. 24 National Documentation Package, India, 7 July 2023, tab 5.4, page 11. 25 National Documentation Package, India, 7 July 2023, tab 5.21, page 16. 26 National Documentation Package, India, 7 July 2023, tab 12.5, page 16. 27 National Documentation Package, India, 7 July 2023, tab 12.18, page 25. 28 National Documentation Package, India, 7 July 2023, tab 7.5, page 10. 29 National Documentation Package, India, 7 July 2023, tab 7.5, page 12. 30 Gonzalez Camargo, Hernando v. M.C.I. (F.C., no. IMM-38-14), Gleeson, September 2, 2015; 2015 FC 1044. 31 National Documentation Package, India, 7 July 2023, tab 9.3: ?First Information Reports (FIRs), including procedures and time frames followed by police to inform complainants that an investigation will not be conducted (2015-May 2017). Immigration and Refugee Board of Canada. 1 May 2017. IND105779.E, page 4. 32 National Documentation Package, India, 7 July 2023, tab 2.4: ?National report submitted pursuant to Human Rights Council resolutions 5/1 and 16/21: India. India. 17 August 2022. A/HRC/WG.6/41/IND/1, page 16. 33 Aurelien, Eyon v. M.C.I. (F.C., no. IMM-10661-12), Rennie, June 26, 2013; 2013 FC 707. 34 Ruszo, Zsolt v. M.C.I (F.C. no., IMM-5386-12), Crampton, October 1, 2013; 2013 FC 1004, para. 49. 35 Singh v. Canada, 2021 FC 1410 (CanLII), at para. 14; X (Re), 2012 CanLII 99927 (CA IRB), at para. 14. 36 Ranganathan v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA). 37 National Documentation Package, India, 7 July 2023, tab 12.8, page 7. 38 National Documentation Package, India, 30 June 2022, tab 1.5: ?DFAT Country Information Report: India. Australia. Department of Foreign Affairs and Trade. 10 December 2020. 39 National Documentation Package, India, 7 July 2023, tab 12.8, page 8. 40 National Documentation Package, India, 7 July 2023, tab 12.8, page 7. 41 Appeallant's memorandum, page 36. 42 Appeallant's memorandum, page 36. 43 National Documentation Package, India, 7 July 2023, tab 1.15, pages 9-10. 44 National Documentation Package, India, 7 July 2023, tab 1.5, page 33. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC3-07552 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