MB8-04388

RAD File No. / No de dossier de la SAR : MB8-04388 MB8-04389 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision October 22, 2019 Date de la décision Panel Me Toni Jedid Tribunal Counsel for the person who is the subject of the appeal Me Marie-Josée Blain 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 principal appellant) and his wife XXXX XXXX (the female appellant), citizens of India, are appealing against the decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection on the grounds that the appellants have an internal flight alternative (IFA). [2] The appellants allege that they fear the Indian police authorities and an individual named XXXX who wanted to take possession of their land. They submit that the RPD's analysis is erroneous regarding the IFA. [3] The determinative issue is whether there is a viable IFA for the appellants in Delhi or Mumbai. [4] I conclude that the RPD's determination is correct and the appeal is dismissed. FACTUAL BACKGROUND [5] This is a refugee protection claim filed by XXXX XXXX XXXX and his wife XXXX XXXX. [6] In his story, the principal appellant states that between 2004 and 2015, he travelled to different Arab countries on business. During his absence, his family was harassed by an individual named XXXX who wanted to take possession of their land. In July 2014, he exerted physical violence toward the appellant's wife because of the land. His wife's brother, XXXX, intervened, but XXXX reported him to the police. In July 2015, the police arrested XXXX and falsely accused him of working alongside militants. Two days later, the police released XXXX after influential officials intervened and bribes were paid. The principal appellant returned to Punjab in August 2015 and was subsequently threatened and harassed by XXXX. In XXXX 2016, the police arrested and tortured XXXX. On XXXX XXXX XXXX 2016, XXXX went to the police station to abide by his imposed reporting condition, but he never returned. On XXXX XXXX, 2016, the police arrested the principal appellant, his wife, and her father. The principal appellant was tortured and his wife narrowly escaped sexual violence. They were all released after influential officials intervened and bribes were paid. Fearing for their safety, the appellants went to Delhi. They hired a smuggler who gave them shelter and helped them get to Canada. ROLE OF THE REFUGEE APPEAL DIVISION [7] The Refugee Appeal Division (RAD) reviews RPD decisions by applying the correctness standard after conducting its own analysis of the available evidence.1 The RAD can apply a standard of deferential review in some circumstances.2 I conducted my own assessment of all the evidence in this case, including the audio recording of the hearing, and I applied the correctness standard. REFUGEE PROTECTION DIVISION'S FINDINGS [8] The RPD considers that there are viable IFAs in Mumbai and Delhi and its findings can be summarized as follows: - The RPD has taken into account the possibility that the appellants' agents of persecution could track them down in the proposed IFAs, as well as the probability of them being pursued in Mumbai or Delhi. - The appellants did not present evidence showing how their agents of persecution in Punjab could find out that they sought medical treatment in the proposed IFAs. - If they were to eventually return to India, the RPD considers it reasonable to conclude that they would be subjected to security measures once they land in an airport in India. - The appellants did not establish that data verification on tenants in the proposed IFAs would, on a balance of probabilities, subject them to a serious possibility of persecution. - Concerning the agents of persecution's intent to find them in the proposed locations, the RPD considers that the appellants did not establish that it was likely for their persecutors to seek collaboration from the police in Mumbai or Delhi, or that those police forces would agree to collaborate. - Regarding the second prong of the IFA, the RPD considers that resettling in either of the two proposed IFAs, Delhi or Mumbai, would not be unreasonable. GROUNDS OF APPEAL [9] The appellants argue that they are credible, assuming that the RPD did not comment on their credibility. [10] The principal appellant argues that it is inaccurate to state that identity documents could be requested in order to obtain medical treatment. [11] The principal appellant argues that the IFA is not viable for a Sikh person suspected of having ties to militants. [12] Concerning their exits from the airport in India, the RPD did not take into account the written evidence or the testimony stating that their smuggler had contacts at the airport. [13] The RPD did not consider the appellants' limited schooling or the fact that they do not speak Hindi, and that it would be very hard for them to settle in Delhi or Mumbai. [14] The RPD did not assess the documentary evidence in its entirety. ANALYSIS Oral hearing request [15] In his memorandum of appeal, the principal appellant requests an oral hearing before the RAD. [16] The RAD may hold an oral hearing if, in its opinion, there is new evidence pursuant to subsection 110(3) of the IRPA. The principal appellant did not present any new evidence in support of his appeal and, as such, the RAD must proceed without an oral hearing. The oral hearing request is rejected. Internal flight alternative [17] After the panel raised the IFA, the appellants bore the burden of proving, on a balance of probabilities, that they would face a serious possibility of persecution if they were to take refuge in Mumbai or Delhi and that it was objectively unreasonable to seek refuge in another region of the country before calling on international protection.3 Identity documents required for medical treatment [18] The RPD considered that the appellants presented insufficient evidence to establish the need to show identity documents to get medical treatment. The RPD does not, therefore, have sufficient reasons to conclude that health professionals in Mumbai or Delhi would find out about the appellant's problems in Punjab. The appellants did not present evidence showing how their aggressors in Punjab could find out that they sought medical treatment in the proposed IFAs. [19] In their memorandum of appeal, the appellants argue that the RPD did not take into consideration the evidence4 presented, which notes that the authorities pay close attention to the areas surrounding educational institutions and hospitals. They add that it is inaccurate to state that identity documents could be requested in order to obtain medical treatment. [20] Our examination of this evidence revealed that the authorities' actions are aimed at foreigners who go to areas around hospitals, referring to foreign nationals from Bangladesh who came to India for treatment. There is evidence of police arresting two Bangladeshi nationals near the Thakurpukur Cancer Hospital and that one of them was suspected of being involved in terrorist activities. With all due respect, I consider that this evidence does not corroborate the appellants' allegations that they had to present an identity document to get treatment and that the authorities are informed accordingly. The appellants did not establish that their allegations are well founded and I am of the opinion that the RPD did not err. Tenant registration system [21] The RPD considered that the appellants did not establish that data verification on tenants in the proposed IFAs would, on a balance of probabilities, subject them to a serious possibility of persecution. The RPD gave weight to a research report dated May 10, 2016, rather than the one dated May 13, 2013, in accordance with the jurisprudential guide. [22] In his memorandum of appeal, the principal appellant argues that the evidence discloses that India implemented a crime and criminal tracking network (Crime and Criminal Tracking Network & Systems-CCTNS) to create a nationwide computer system that enables police stations to communicate directly with one another. With regard to the jurisprudential guide, he states that the guide is limited to a portion of the documentary evidence without taking into consideration the documentary evidence in its entirety, and it does not explain the reasons as to why it does not take into account the abundant documentary evidence concluding that refugee protection claimants in non-extreme cases could still be found in Mumbai or Delhi. He states that the IFA is not viable. [23] Before examining the evidence, and in light of the CARL5 decision, I want to point out that I examined the RPD's reasons to ensure that the language employed by the RPD does not reflect any undue influence, in keeping with the RAD's jurisprudential guide.6 The RPD applied the most recent report, dated May 10, 2016, according to the instructions of the guide in question. I consider that the RPD exercised its independence while incorporating the jurisprudential guide in its decision. I want to point out that I took into consideration the fact that the jurisprudential guide regarding India was revoked since the RPD's decision, but I conducted an independent analysis of all the recent evidence. [24] The documentary evidence indicates that there are a number of Sikhs who live in the two cities where the IFA is proposed, without persecution. At the hearing, when questioned about the police authorities' interest in tracking them down in Delhi or Mumbai, the female appellant stated that once they arrived at the airport in India, the police would be alerted and would, in turn, inform the Punjabi police of their arrival.7 Although the documentary evidence shows, as alleged by the appellants, that different police forces communicate with one another, I am of the opinion that the appellants did not demonstrate that the Punjabi police are in contact with the national police, nor that other police forces outside Punjab have any interest in looking for the appellants. The documentary evidence8 reveals that "there is little inter-state police communication except for cases of major crimes like smuggling, terrorism, and some high profile organised crime." The same source indicates that: ...police stations across India are "virtually unconnected islands in the case of Crime & Criminal Tracking. There is no system of effective data storage ... sharing and accessing data," and there is "no single system" by which a police unit can "talk to another directly" (India n.d.a). The source also indicates that: ..."CCTNS is being used, but not to the fullest"... According to the ZIPNET website, the project was introduced in 2004 in order to "share crime and criminal information in real-time" and provide "search engines to match information from [the] central repository in [an] online environment" (India n.d.b)... According to sources, the implementation of the NATGRID program has been stalled for several years...the "project exists only on paper"... [25] I am of the opinion that the appellants did not establish that they are being sought by the police or that they are persons of interest. The fact that a landlord must report the arrival of a new tenant to the police is insufficient to establish that the appellants have a well-founded fear of persecution if they were to move to Mumbai or Delhi. In this respect, it should be noted that the appellants did not present direct evidence establishing that the police have been looking for them or that they approached other police forces in India to track them down. I note that the appellants allege having refused to obey orders from the police9 after their last arrest; however, no arrest warrant was issued against them. [26] The documentary evidence shows that only persons of interest are being sought by the police, e.g. people having committed heinous crimes or who are specifically targeted by political authorities that exert pressure on the police. Moreover, according to this documentary evidence, the police do not have the necessary resources to identify tenants all over the country who have to register.10 [27] In his memorandum of appeal, the appellant writes as follows: [translation] ...A legal researcher from Voices for freedom (VFF), an international NGO with offices in India, the United Kingdom, Canada and the United States and whose mandate is to promote legal responsibility and defend human rights, stated that if the police want to track down a person who fled to another state, they will get in touch with family members and neighbours to ask about their whereabouts, then inform the local police station of their findings. ...According to the Associate Director of Asian Studies, when the local police are tracking a person, they go door to door or use other information, such as that provided by the person's colleagues and neighbours, because "the local police have contacts in all neighbourhoods and use them." [emphasis in the memorandum] [28] With respect to and in accordance with the appellant's testimony, and given that the agents of persecution did not question his brothers and sisters, I consider that the RPD accurately determined that the agents of persecution did not target the appellant's brothers and sisters with the purpose of gaining ownership of their land.11 Routine verification at the airports in India [29] The RPD considered that it is reasonable to conclude that the appellants would be subjected to security measures comparable to those noted in the documentary evidence, if they were to return to India. The RPD added that the appellants were able to get a Canadian visa using their own, genuine passports. They used their passports to leave India and did not describe the efforts made to circumvent the security measures at the airport. They did not state that Indian authorities had attempted to revoke their passports or impede their departure. [30] At the hearing, the appellants stated that the officers on duty at the airport (in India) could inform the agents of persecution about the appellants' arrival in India.12 In his memorandum of appeal, the appellant argues that the RPD did not take the written evidence into account,13 which reveals that he paid "$36,000" to a smuggler who had contacts at the airport. [31] I want to point out that I agree with the female appellant who described at the hearing the circumstances of their arrival at the airport. She testified that they were accompanied by their smuggler who told them to go to the counter where an officer was waiting to give them access and stamp their passports.14 I am of the opinion that the appellants did explain how they circumvented the security measures at the airport. However, I am of the opinion that the appellants' main allegation is directed at their return to India and the possibility of their agents of persecution being informed of their arrival in the country by the airport agents. Like the RPD, I consider that routine verifications at the airport target passengers coming back to the country, including the appellants if they were to return. I consider that the appellants did not prove, on a balance of probabilities, that they would be at risk if they were to return to India, and that their agents of persecution would be informed of their arrival. I am of the opinion that the RPD did not err. Second prong: the appellants' profile-education and language barriers [32] The RPD examined the second prong of the IFA and concluded that it was not unreasonable for the appellants to settle in the proposed locations. It therefore concluded that there are viable IFAs in those locations. [33] The principal appellant states that, in its analysis of the second prong of the IFA, the RPD did not take into account their limited schooling, language barriers and the difficulty of integrating in Mumbai or Delhi. [34] After examining the RPD's reasons and listening to the recording of the hearing, with all due respect, I consider that the RPD clearly took into consideration the appellants' profile before concluding that there is a viable IFA in the proposed locations. At the hearing and when examining the second prong of the IFA, the RPD gave the appellants' the opportunity to describe the difficulties of moving to one of the proposed locations, to which they answered that they are farmers with little schooling, who do not speak Hindi and who would find it difficult to live within a different culture. [35] In its decision, the RPD writes the following: [translation] "The panel clearly took into account the claimants' profile when evaluating the proposed IFA locations."15 I am of the opinion that there is a presumption that the RPD took into consideration the limited schooling, language barriers and the difficulty integrating to which the appellants refer and it is up to them to rebut this presumption. I am of the opinion that the RPD did not err. [36] When questioned about the difficulties surrounding medical treatment in IFA locations, the wife testified that an identity document is required and the police will then be alerted.16 When asked about the possibility of living in one of the IFA locations, the female appellant responded no because they breached the conditions imposed upon them by the police.17 With regard to the possibility of finding a job in the proposed locations, I consider, just like the RPD, that the principal appellant lived outside the country for a number of years, in different cultural environments,18 and that he worked in other fields besides agriculture. The evidence reveals that in India, including the large cities, a number of people of a humbler background, with little education, earn a living by doing small trades. Either way, insofar as these programs may apply to them, the Indian state offers mechanisms and services that help destitute persons, and it takes initiative to provide access to healthcare to everyone, including women and the elderly.19 I am of the opinion that the principal appellant's work history would allow him to find a job and provide for his family in the proposed locations. The appellants did not present any convincing evidence to the contrary. I consider that the RPD took into account the appellant's situation and correctly applied the second prong of the IFA. [37] Having analyzed the second prong of the IFA and taking into consideration the current situation in their country, I conclude that it is a viable option for the appellants. CONCLUSION [38] I have independently assessed all the evidence, listened to the recording of the hearing, considered the RPD's decision and the errors raised in the appellant's memorandum, and I conclude that the RPD's determination is correct. DECISION [39] The RAD dismisses the appeal and confirms the determination, namely, that the appellants are neither "Convention refugees" nor "persons in need of protection," pursuant to paragraph 111(1)(a) of the IRPA. Toni Jedid Me Toni Jedid August 22, 2019 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII). 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII) and supra endnote 1. 3 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 at pp. 709-711, 140 N.R. 138; Gomez Espinoza v. Canada (Citizenship and Immigration), 2009 FC 806 at paras. 20-21, 179 ACWS (3d) 906; X (Re), 2017 CanLII 94170, (CA IRB). 4 Refugee Protection Division (RPD) record, the claimants' list of documents, Exhibit R-11, at page 57. 5 Canadian Association of Refugee Lawyers (CARL) v. Canada (Citizenship and Immigration), 2019 FC 1126. 6 Jurisprudential Guide: Decision MB6-01059/60-India-The availability of an internal flight alternative in India for claimants from Punjab. 7 Audio recording of the hearing, 09:01:40. 8 National Documentation Package (NDP), India, May 31, 2019, 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. May 10, 2016. IND105494.E. 9 Audio recording of the hearing, 01:11:11. 10 NDP, India, May 31, 2019, 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)... Immigration and Refugee Board of Canada. June 25, 2018. IND106120.E. 11 RPD decision, written reasons, paragraph 35. 12 Supra, footnote 7. 13 Information package from the Canada Border Services Agency or Immigration, Refugees and Citizenship Canada, immigration form Schedule 12, question 7. 14 Audio recording of the hearing, 00:53:26 to 00:57:30. 15 RPD decision, written reasons, paragraph 40. 16 Audio recording of the hearing, 01:16:03. 17 Audio recording of the hearing, 01:11:11. 18 Audio recording of the hearing, 00:17:45. 19 NDP, India, May 31, 2019, Tab 2.4: National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21: India. India. February 23, 2017. A/HRC/WG.6/27/IND/1, at paragraphs 87 to 93 and 105 to 113. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-04388 MB8-04389 RAD.25.02 (April 4, 2019) Disponible en français 6 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 (April 4, 2019) Disponible en français