MB7-09133

RAD File / Dossier de la SAR : MB7-09133 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision October 1, 2019 Date de la décision Panel Max Wolpert Tribunal Counsel for the person who is the subject of the appeal Maria Esposito Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX, citizen of India, appealed a decision of the Refugee Protection Division (RPD), dated July 6, 2017, rejecting his claim for refugee protection because it found him not credible and also held that he had an internal flight alternative (IFA) within his country. These are my reasons for rejecting this appeal because I find the RPD was correct about the IFA. [2] Mr. XXXX is a 61-year-old XXXX from a village near Jalandhar, Punjab. He alleged that: [3] In April 2014, local Punjab Police officers raided his home, looking for his son whom they alleged was involved with militants, but who had just gone out. They accused Mr. XXXX and his family of feeding and sheltering militants linked to his son.1 [4] When Mr. XXXX denied knowing where his son was, police arrested him and took him to their local station. Meanwhile, his wife phoned the son to warn him not to come home. They never heard from or of him since. [5] At the police station, police tortured Mr. XXXX and beat him till he lost consciousness. Two days later, after representations by village councillors and payment of an 80,000-rupee bribe (˜ CA$1,600), he was released on condition that he report to them news about his son as soon as received.2 Mr. XXXX was treated in hospital for five days and convalesced at home. [6] Police then came to the XXXX home once or twice a month asking for the son. They pushed Mr. XXXX and his wife around and grossly insulted them. They would leave each time after Mr. XXXX gave them a bribe of at least 10,000 rupees.3 [7] Police summoned Mr. XXXX to the station on June 1 and August 1, 2014. They questioned him about militants and assaulted him. Both times4 they told him he had one last chance to bring his son to them within one month. Otherwise, they warned, "We will explain it to you another way."5 He understood that to mean they would detain and torture him.6 [8] On XXXX XXXX, 2014, Mr. XXXX fled 200 kilometres away to the home of a relative in Mohali, Punjab. The relative let him stay temporarily, but, afraid to keep him there, insisted on arranging with an agent to help Mr. XXXX leave India. [9] The agent got a new, genuine passport issued for Mr. XXXX in January 20157 and a 10-year Canadian visitor visa, based on a fraudulent application,8 a month later. He entered Canada in early XXXX 2015 and claimed refugee protection in September 2016. [10] Police have asked for him after his departure from India. ROLE OF THE RAD [11] When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. As I find that the RPD had no meaningful advantage in its assessment of the evidence, I have not deferred to it in my analysis of its findings.9 [12] I have read all the documents on file. I have also listened to and closely annotated the audio recording of the RPD hearing. ANALYSIS Request for oral hearing-denied [13] Counsel requested an oral hearing. As no new evidence has been filed with this appeal, the IRPA s.110(6) prerequisite for an oral hearing has not been met, and the RAD has no jurisdiction to hold one. The request is therefore denied. RPD decision Credibility [14] The RPD member found Mr. XXXX allegations not credible because: i. His Canadian visa application gave a different name and date of birth for his son (and daughter), which would have brought no advantage for the application. The Member indicated she would have given the benefit of the doubt, were that the only credibility problem.10 ii. Had Mr. XXXX been a person of interest to the police in connection with militants, they would not have released him, and they would have seized his passport.11 iii. Mr. XXXX delayed a year and a half after arriving in Canada before starting his refugee claim. Although he was issued a two-year work permit12 six months after entering Canada [i.e. at about the same time his original visitor entry status would ordinarily have expired13], he should have claimed protection if he actually feared for his life and, at any rate, violated the permit's terms by never working, thus leaving himself, inconsistently with such fear, open to deportation at any time.14 [15] In my opinion, the first two credibility reasons are debatable. The third, an 18-month delay, might arguably have been serious enough to have been determinative, but for the issuance of the work permit. The permit, in my opinion, even if not complied with, muddied the situation enough to bring the delay back into the usual context of not being determinative on its own. IFA [16] In any event, I have found the RPD member's conclusion that Mr. XXXX has a safe and reasonable IFA in Delhi or Mumbai, correct and determinative. I will confine the rest of my analysis to that issue. IFA first prong: safety from persecutors-RPD correct [17] Mr. XXXX said that he would not be safe from the Punjab police in either city because they would learn of his whereabouts through the mandatory tenant registration system there, which entails the landlord providing his ID to the local police, who would ask the Punjab police in his village to verify his background.15 [18] The RPD member held that the determinative factor on this issue was whether the Punjab police would have an interest in pursuing Mr. XXXX [outside their state]. She held they would not, because their releasing him after receiving a bribe demonstrated, consistent with the IRB documentary evidence, that their purpose had been extortion.16 She concluded that the Punjab police would not look for information about Mr. XXXX in Delhi or Mumbai because he does not have the profile of a person of interest to the police in India.17 [19] Appeal counsel argues that this conclusion was manifestly wrong. She asserts that Mr. XXXX evidence demonstrates that the Punjab police would chase him to Delhi or Mumbai, through physical aggression, death threats and efforts to carry them out.18 She submits that Mr. XXXX had explained why he believed that this would be so even if he is not a high-profile target.19 She adds that the RPD's conclusions were unclear and did not deal with the question of state protection raised by this case.20 [20] Counsel further contends that the evidence of past persecution establishes that it is directed against persons suspected of supporting militant Sikhs. By emphasizing a single incident of violence involving the Appellant, she avers, the RPD failed to consider the risks arising from the cause of that violence. Thus, the RPD's approach ignored the evidence of other violence against persons suspected of supporting the Sikh cause, experienced by Mr. XXXX, as well as the evidence on the current situation in Punjab.21 [21] Counsel also argues that Mr. XXXX profile, as a father of a Sikh militant sought by the Punjab police, corresponds to that of a person which would lead those police to search for him in other Indian states.22 [22] The India NDP has been updated several times since the RPD decision, most recently on May 31, 2019. The updated information there indicates that interstate police connectivity is increasing23 and that, when police do carry out a tenant verification, the process seems to involve their sending the tenant's ID details to the police in his home village. The research information in the most recent NDP, for example, confirms that tenant verification requirements in India could lead the police in one of the proposed IFAs to communicate or cross-check information with the police in Punjab, and that the verification process is supported by a digital portal, which enables citizens to "seek antecedent verification" of tenants.24 The sources cited in the new Tab 14.8 of the NDP also say that at least in Delhi, the police do send verification forms to the police station where the person previously lived. [23] For the purposes of this decision, then, I am prepared to assume, as appeal counsel argues,25 that police in Punjab and the proposed IFAs have the capacity to communicate with each other about Mr. XXXX, and that there is a reasonable chance that his attempt to rent housing for himself and his family would result in an inquiry reaching the Punjab police in his home village, indicating his whereabouts. It is thus not necessary to invite counsel to file further submissions on the updated NDP evidence on these issues. [24] In my opinion, however, the RPD's conclusion on insufficient police interest in Mr. XXXX remains correct, and is determinative: the Punjab police, even if notified of Mr. XXXX presence elsewhere in India, are highly unlikely to go get him or have him rounded up there. Further, my opinion is based on Mr. XXXX own evidence. [25] First, according to that evidence, the Punjab police do not seriously suspect Mr. XXXX of involvement in militant activity. Despite the gravity of such activity from the point of view of police,26 even a force tainted by corruption, they released him in April 2014 and never detained him during any of their subsequent visits to his home, nor on the two occasions he reported to them at their station. Even were one to speculate that they hoped to spy on any contact between Mr. XXXX and his son, there was none of the four and a half months after his release yet the police did not re-arrest him despite the fruitlessness of any such plan. There was also no evidence that the Punjab police at any time laid any charges or even issued a First Information Report against Mr. XXXX. [26] Second, there was much evidence that, while the police may have hoped that Mr. XXXX would give them information about his son, they were mainly motivated by money in their dealings with the Appellant. He testified that, following his release, when the police came to his home he gave them money and they left.27 He added that, once they had his cash, they would depart, telling him he had to pass on news to them as soon as he would have any.28 Further, after they gave him a "last chance" on June 1, 2014, they did so again the following August.29 [27] Mr. XXXX also explained that, although he had feared re-arrest if the police didn't find his son,30 he made the decision to leave home for Mohali in August 2014 because the police did not stop demanding money. He said he decided in that case that he hadn't enough money to keep doing so.31 This indicates that he perceived extortion as their main motivation. [28] Mr. XXXX filed an affidavit, signed by his relative in Mohali, Punjab a month after the Basis of Claim form, stating that police came to the deponent's house in January and June 2016 asking about the appellant and his son. The relative writes that to save himself, he told them that Mr. XXXX had been there but because of Mr. XXXX police problem he had sent him back, and paid the police a 10,000-rupee bribe.32 [29] This, however, would have been done by members of the same Punjab police force, either based in Mohali or from Mr. XXXX village just 200 kilometres away. That effort is a far cry from making arrangements with the police of another state to detain Mr. XXXX and then driving, in the case of Mumbai, about 60-hour round trip to collect him. [30] In summation, to my mind the RPD member was correct to find that Mr. XXXX does not have the profile to be of enough interest to the Punjab police to devote that level of resources to have him captured and collected in Delhi, and certainly not in Mumbai. I thus find her first prong IFA conclusion to be correct. IFA second prong: reasonableness-RPD correct [31] For an IFA to be considered unreasonable, conditions there, apart from any harm feared from the agents of persecution, must jeopardize a claimant's life or safety. The RPD member held, correctly in my view, that Delhi and Mumbai were both reasonable in Mr. XXXX case. [32] Mr. XXXX testified that, although he had lived from 2006 to 2010 in Dubai, he could not live outside Punjab in India, because no one knows him there, and there are few Sikhs. He said his situation was different in Dubai, where he worked as a crane operator,33 because he was there under contract.34 [33] The RPD member disagreed, saying Mr. XXXX is educated [grade 1035], resourceful and experienced, as shown by his working for a XXXX XXXX in India [sic; actually Dubai],36 where he lived and supported himself without problem for four years. She also noted evidence that there are large Sikh communities in Indian cities.37 [34] Appeal counsel's arguments under the IFA second prong heading referred only to the risk that the Punjab police were willing and able to find him in Delhi or Mumbai.38 She made no argument directed to the IFA second prong. I agree with the RPD member's conclusions on the second prong and find them correct. [35] I thus find that the RPD member was correct in her decision on both prongs of the IFA test; Mr. XXXX has both a safe and viable IFA in India, especially in Mumbai. CONCLUSION [36] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). Max Wolpert Max Wolpert October 1, 2019 Date MW/lp 1 RPD record, page 30, paragraph 2; Audio recording 0:25 to 0:26, 0:30. 2 Audio recording 0:35. 3 Audio recording 0:44 to 0:45. 4 Audio recording 0:41; cf. RPD record, page 31: "In August 2014". 5 Audio recording 0:46. 6 Audio recording 0:47. 7 RPD record, page 31, paragraph 2, and page 215, question 5. 8 Audio recording 1:15 to 1:17; RPD record page 201. 9 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. 10 RPD reasons, paragraph 10. 11 RPD reasons, paragraphs 11 to 14. 12 RPD record, page 244. 13 RPD record, page 202. It is striking that this happened, given that Canadian immigration authorities had four months earlier cancelled the visa for fraud (RPD record, page 201). As there was no evidence, however, that Mr. XXXX had been told this, it apparently played no significant part in the RPD's credibility assessment, nor does it affect my decision. 14 RPD reasons, paragraphs 15 to 20. 15 Audio recording 0:52 to 0:54. 16 RPD reasons, paragraphs 26 and 27. 17 RPD reasons, paragraph 28. 18 Appellant's record, page 23, paragraph 7. 19 Appellant's record, page 25, paragraph 32. 20 Appellant's record, page 26, paragraph 37. 21 Appellant's record, page 26, paragraph 38; also page 27, paragraph 42. 22 Appellant's memorandum, page 28, paragraphs 46 and 47. 23 National Documentation Package, India, 31 May 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); categories of persons that may be included in police databases... Immigration and Refugee Board of Canada. 25 June 2018. IND106120.E. ; National Documentation Package, India, 31 May 2019, 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. 24 See NDP for India, May 31, 2019, Tab 14.8: India: Requirements and procedures for tenant registration (or tenant verification), including implementation, particularly in Delhi, Mumbai, Kolkata and Bengaluru (2016-May 2019), IRB RIR IND106289.E dated May 14, 2019, p. 1 of 24. 25 Appellant's record, pages 27 to 28, paragraphs 43 to 45. 26 RPD reasons, paragraphs 12 and 13. 27 Audio recording 0:42. 28 Audio recording 0:44. 29 Audio recording 0:41. 30 Audio recording 0:45. 31 Audio recording 0:43 (although he paid $30,000 to the agent to enable him to leave India: RPD record, page 216, question 7). 32 RPD record, page 253. 33 Audio recording 0:18. 34 Audio recording 0:53 to 0:55. 35 RPD record, pages 207 and 211, question 3; cf. audio recording 1:18 "to the 8th". 36 RPD record, page 211; Audio recording 0:18 and 1:18. The RPD member wrote inaccurately that Mr. XXXX, who operated a crane as an employee, operated a construction company. 37 RPD reasons, paragraphs 30 to 32. 38 Appellant's memorandum, pages 28 and 29, paragraphs 49 to 50. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-09133 RAD.25.02 (April 04, 2019) Disponible en français 8 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 04, 2019) Disponible en français