TB9-10495

RAD File / Dossier de la SAR : TB9-10495 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision July 29, 2020 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the persons who are the subject of the appeal Deryck Ramcharitar Conseil des personnes 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] Mr. XXXX is a citizen of India. He fears that he would be killed or seriously harmed by an individual, XXXX XXXX XXXX XXXX, of whom he knows very little except that the latter has begun living in the family home that Mr. XXXX jointly owns with his siblings in Delhi. Mr. XXXX believes that XXXX XXXX XXXX XXXX has gained influence over his sister through a loan, an extra-marital affair, or by some other means. With the support of Mr. XXXX's sister, XXXX XXXX XXXX XXXX began construction on the family house without Mr. XXXX's consent, including taking over the half-floor area that belonged to Mr. XXXX. Mr. XXXX alleges that XXXX XXXX XXXX XXXX threatened his life over the telephone when he was living in Singapore with his wife in November 2017, and he fears that XXXX XXXX XXXX XXXX would kill him if he returned to India. [3] Mr. XXXX has been married to his wife since 2009 and lived in Singapore with her from 2010 to 2018, except for occasional visit back to India. He owns XXXX XXXX XXXX XXXX XXXX XXXX XXXX business in India, which he ran from Singapore. His wife sponsored him for yearly long-term stays in Singapore until she quit her job in February 2018. Mr. XXXX and his wife traveled to Canada in XXXX 2018 for a visit. Mr. XXXX alleges that, after he arrived in Canada, things started getting worse in India. Meanwhile, according to Mr. XXXX, he and his wife felt comfortable in Canada as they felt that it was a place they could live together in peace. Mr. XXXX alleges that the couple would be persecuted if they were to live together in India since he is Hindu and his wife is a Christian of Filipino descent. Mr. XXXX claimed refugee status in Canada in August 2018, but his wife did not. [4] While the Refugee Protection Division (RPD) noted that it had several credibility concerns with Mr. XXXX's testimony, it found that the determinative issue in this case was the issue of internal flight alternative (IFA). The RPD found that Mr. XXXX would have a viable IFA in Mumbai. DECISION [5] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The RPD was correct to find that Mr. XXXX is neither a Convention refugee nor a person in need of protection. I agree with the RPD that there were several reasons to doubt the credibility of Mr. XXXX's account of what caused him to claim refugee status. However, I agree with the RPD that the IFA issue is determinative. I agree with the RPD that Mr. XXXX would have a viable IFA in Mumbai. PROPOSED NEW EVIDENCE The evidence presented by Mr. XXXX is rejected [6] According to the law,2 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [7] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 [8] Mr. XXXX has submitted as new evidence two articles showing that a Central Monitoring System has been operational in Mumbai since 2016. The articles pre-date the RPD's decision in this case. I do not agree with counsel that Mr. XXXX could not reasonably have been expected to present the articles to the RPD before the hearing because he was self-represented at the time of the hearing and the RPD failed to provide him with notice and instructions on the IFA issue. For the reasons set out below, I find that the RPD provided Mr. XXXX with proper notice and instruction on the IFA issue. In addition, the relevant date for the assessment of new evidence is not the date of the hearing but the date of the RPD decision. There is no reason why Mr. XXXX could not reasonably have included the articles on the Central Monitoring System with the written submissions and materials that he filed following the hearing. For all these reasons, the articles are not admissible as new evidence. REQUEST FOR IN-PERSON HEARING [9] Mr. XXXX's request for an in-person hearing is rejected. [10] The RAD has the power to hold an in-person hearing in some circumstances if it admits new evidence. Since I have not admitted any new evidence, I do not have the power to hold an in-person hearing. ANALYSIS OF MERITS No breach of procedural fairness [11] Mr. XXXX's counsel argues that the RPD breached procedural fairness by failing to provide Mr. XXXX with proper notice of the IFA issue especially given that he was self-represented at the time of the RPD hearing. I disagree. [12] The RPD member informed Mr. XXXX at the hearing that he had the right to counsel and confirmed with him that he intended to represent himself. At the outset of the hearing, the RPD listed the relevant issues in this case which included the IFA issue. The RPD explained to Mr. XXXX what an internal flight alternative was and also confirmed that he understood what the RPD member had said.4 The RPD member also provided Mr. XXXX with ample opportunities to explain to her all the reasons why he believed that he would not be able to safely relocate the Mumbai.5 Therefore, I do not agree that the situation in this case was at all analogous to the situation in the cases cited by counsel in which the RPD did not properly explain its process to self-represented claimants.6 [13] The RPD member told Mr. XXXX that she would provide him with the opportunity to make submissions after the hearing. She did so because Mr. XXXX had indicated that, while he had gone through the National Documentation Package for India, he had not had a chance to review the National Documentation Packages for Singapore and the Philippines, countries to which he had a connection even if he was not a citizen of those countries. I do not agree with counsel that it was an error to limit Mr. XXXX to making submissions in relation to the National Documentation Packages for Singapore and the Philippines since he himself had indicated that he had reviewed the National Documentation Package for India. Also, he did not ask for more time to review the National Documentation Package for India. In addition, I note that Mr. XXXX ended up submitting excerpts from the National Documentation Package for India in his post-hearing submissions and the RPD in fact reviewed these documents and addressed portions that were relevant. Overall, I agree with the RPD that nothing in Mr. XXXX's post-hearing documents or submissions altered the determination that he had a viable IFA in Mumbai. Mr. XXXX has a viable IFA in Mumbai [14] The onus is on Mr. XXXX to establish that he does not have a viable internal flight alternative in India. The two-pronged test to establish an internal flight alternative is the following.7 (1) the decision-maker must be satisfied on the balance of probabilities that the Appellants would not face a serious possibility of persecution in the internal flight alternative location or a likelihood that they would be subjected personally to one of the types of harm that would make them persons 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 Appellants 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.8 No error in analysis under first prong of IFA test [15] Counsel argues that the RPD ignored crucial evidence and failed to consider the totality of the evidence when it found that Mr. XXXX had not advanced sufficient credible evidence to establish that XXXX XXXX XXXX XXXX had the capacity, interest, and motivation to track him down in Mumbai. I disagree. [16] I must begin by noting that, in the appeal memorandum, counsel has advanced several reasons for why Mr. XXXX could not safely relocate to Mumbai which Mr. XXXX himself did not provide when the RPD asked him about this at the hearing. When the RPD asked Mr. XXXX why he could not relocate to another city in India, such as Mumbai, he gave the following reasons: that he would not be comfortable in another city, that he did not have the financial means to establish himself fully in another city, that he and his wife would not be able to live peacefully and might even be tortured because they are of a different religion, that XXXX XXXX XXXX XXXX would likely be able to find him in another city because he had connections to government authorities and the construction lobby, and the high level of crime in Mumbai.9 He later added that he also could not live in Mumbai due to India's infrastructure and the pollution.10 [17] In the appeal memorandum, counsel argues that, if Mr. XXXX were to move to Mumbai, he would have to provide his personal information to live his life and that he would be easily located as this information is stored in government databases. Counsel argues that the evidence in the National Documentation Package indicates that local and federal authorities in India have technology in the form of the Central Monitoring System that would permit the Indian authorities to track Mr. XXXX down. Counsel argues that this is crucial because Mr. XXXX testified that XXXX XXXX XXXX XXXX had influence over the police and government officials. [18] I do not agree with these arguments. Even if it were true that local and federal authorities would have information about Mr. XXXX's new address in its databases, I agree with the RPD that there was insufficient credible evidence to establish that XXXX XXXX XXXX XXXX had connections with police or government authorities that would permit him to track Mr. XXXX down all over the country. [19] In the appeal memorandum, counsel argues that there was sufficient evidence from which the RPD could infer that XXXX XXXX XXXX XXXX had the kind of connection to authorities that would provide him with the capacity to track Mr. XXXX down in a city like Mumbai. Counsel seeks to rely upon the following: the fact that Mr. XXXX testified that XXXX XXXX XXXX XXXX said he had such connections and had referred to someone named "Rana" who he claimed to be a government official, that XXXX XXXX XXXX XXXX had threatened Mr. XXXX and his family, that the police released XXXX XXXX XXXX XXXX after calling him in after Mr. XXXX's niece filed a complaint against him, that corruption is rampant in India and the Indian justice system is very slow. [20] To begin, I fail to see how the fact that XXXX XXXX XXXX XXXX had threatened Mr. XXXX and his family, that corruption is rampant in India and that the justice system is slow have any probative value in terms of establishing that XXXX XXXX XXXX XXXX has the kind of connections to authorities that would permit him to track Mr. XXXX all over India. This leaves XXXX XXXX XXXX XXXX saying he had high-level connections and naming an unknown person named "Rana" as well as the fact that the police released him after they had called him in for questioning. In my view, this evidence is insufficient to establish that XXXX XXXX XXXX XXXX has the kind of connection to any state authorities or construction organizations that would even permit him to know that Mr. XXXX had returned to India let alone track him down in Mumbai. All of this evidence is speculative. The police may well have released XXXX XXXX XXXX XXXX because of a lack of reasonable grounds to believe that he had committed any criminal offense especially given the support he appears to have from Mr. XXXX's sister. As for XXXX XXXX XXXX XXXX allegedly saying he has high-level connections, the fact that he said this does not make it so. At the end of the day, Mr. XXXX admitted that he knows little to nothing about XXXX XXXX XXXX XXXX except that he has a connection and perhaps influence over his sister. This is not sufficient to establish on a balance of probabilities that XXXX XXXX XXXX XXXX has the capacity to track Mr. XXXX all over India in order to kill or harm him if he returns to that country. [21] With respect to the issue of motive, counsel argues that the RPD erred in finding that the evidence did not establish that XXXX XXXX XXXX XXXX would likely have the motive to look for Mr. XXXX. Counsel argues that this motive can be inferred, first, from the fact that XXXX XXXX XXXX XXXX threatened Mr. XXXX and other family members in different locations and he said he could come after Mr. XXXX in Singapore. Second, counsel argues that Mr. XXXX is one of the rightful owners of the land that XXXX XXXX XXXX XXXX is seeking to take over illegally and has every reason to ensure that Mr. XXXX does not take action against him. I disagree that these factors provide sufficient evidence to establish on a balance of probabilities that XXXX XXXX XXXX XXXX would have the interest and motivation to track Mr. XXXX all over India. [22] To begin, although XXXX XXXX XXXX XXXX allegedly threatened Mr. XXXX over the telephone when he called to ask his sister to remove the construction on the portion of the house that belonged to him, that is insufficient to establish an interest or motivation to track Mr. XXXX and kill or seriously harm him in Mumbai. While Mr. XXXX testified that XXXX XXXX XXXX XXXX also threatened his younger sister who lives in Agra when she came to visit the house in Delhi, there was no evidence that XXXX XXXX XXXX XXXX has physically harmed this sister or Mr. XXXX's brother who continues to live in the house that is at the center of this dispute. Although Mr. XXXX testified that XXXX XXXX XXXX XXXX tried to assault his niece once, there was no evidence of any kind of ongoing harm to his niece. XXXX XXXX XXXX XXXX's failure to kill or seriously harm Mr. XXXX's family members who live in the same house or nearby weighs against the likelihood that XXXX XXXX XXXX XXXX would have the motivation to track down and kill or seriously harm him Mr. XXXX if he were to return to India and live in Mumbai. [23] In addition, as noted by the RPD, Mr. XXXX has not commenced any kind of action to regain his portion of the house and there was no evidence that anyone else in his family who remains in India has commenced such an action. Therefore, it is speculative to argue that XXXX XXXX XXXX XXXX would be motivated to expend the time and resources to try to track Mr. XXXX down in Mumbai due to the mere possibility that he could take action to reclaim his portion of the house in the future. At the very least, Mr. XXXX's assertion to this effect does not establish such a motivation on a balance of probabilities. [24] I disagree with counsel that the RPD made an illogical statement by saying that Mr. XXXX had failed to establish that XXXX XXXX XXXX XXXX is looking for him all over the country since Mr. XXXX was living in Singapore. The RPD did not in fact state that Mr. XXXX failed to establish that XXXX XXXX XXXX XXXX is looking for him all over the country. In fact, what it said is that there was no serious possibility that XXXX XXXX XXXX XXXX would be looking for him all over the country if he were to return. [25] For these reasons, I disagree with all of the arguments made by counsel as to why he believes that the RPD erred under the first prong of the IFA test. I find that the RPD was correct to find that Mr. XXXX failed to establish that he would face a serious possibility of persecution in Mumbai 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. No error in analysis under second prong of IFA test [26] Counsel argues that the RPD erred in finding that it was not unreasonable to expect Mr. XXXX to relocate to Mumbai in all the circumstances. According to counsel, the RPD failed to consider Mr. XXXX's personal circumstances. I disagree. [27] I disagree with counsel that it was unreasonable to expect Mr. XXXX to restart his XXXX XXXX business in Mumbai because registering his business would leave him vulnerable. I note that Mr. XXXX did not raise this fear at the hearing as a reason why he could not move to Mumbai and therefore the RPD did not err in not specifically addressing it in its decision. In any event, I reject the argument that registering his business would leave Mr. XXXX vulnerable for the reasons set out in paragraphs 15-23 above. [28] Counsel also argues that the RPD erred in finding that it would not be unreasonable for Mr. XXXX to live in Mumbai even if his spouse continued to live in Singapore where she continues to have permanent resident status. In my view, it was unnecessary for the RPD to make this finding since the evidence did not support Mr. XXXX's contention that the couple would suffer such persecution in Mumbai as to make it unreasonable for them to live in that city together. As noted above, 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. I disagree with counsel that the evidence in the National Documentation Package supports Mr. XXXX's claim that he and his wife might be "tortured", killed, seriously harmed or persecuted as a result of being an interfaith or interracial couple. [29] The research report contained at Tab 12.5 of the National Documentation Package for India addresses the situation of inter-religious and inter-caste couples. The report indicates that interreligious marriages are "frowned upon" in India. However, this is especially the case in rural areas and for marriages between Hindus and Muslims.11 The research report also indicates that interreligious couples generally seek to relocate to a large city and the difficulties they face often originate from their families. There was no evidence of any family members having an issue with Mr. XXXX's interfaith or interracial relationship. While couples may face some discrimination in finding employment and housing even in large cities, these problems are mostly faced by Muslims and Dalits (lower-caste Hindus). I agree with counsel that Mr. XXXX and his wife are identifiable as an interfaith couple due to the fact that she is of Filipino origin. However, even if it is possible that their marriage would be frowned upon by members of the public, even in Mumbai, the evidence does not establish on a balance of probabilities that any discrimination or harassment that Mr. XXXX and his wife would face as a Hindu-Christian couple would be of such significance as to place their lives in jeopardy. CONCLUSION [30] For the above reasons, 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) Jo-Anne Pickel Me Jo-Anne Pickel July 29, 2020 Date 1.Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Subsection 110(4) of the IRPA. 3 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 4 RPD, hearing, February 28, 2019. Audio-recording, 24:10 - 28-30. 5 RPD, hearing February 28, 2019. Audio-recording, 1:31:10-1:37:25. 6 Kerqeli v. Canada (Citizenship and Immigration), 2015 FC 475; Love v. Canada (Citizenship and Immigration), 2015 FC 835. 7 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). 8 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (CA). 9 RPD, hearing February 28, 2019. Audio-recording, 1:31:10-1:37:25. 10 RPD, hearing February 28, 2019. Audio-recording, 1:49:00. 11 RAD-1National Documentation Package for India (July 17, 2020) Tab 12.5, at section 4 and 6.?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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-10495 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français