MB7-13180

RAD File / Dossier de la SAR : MB7-13180 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 December 21, 2020 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the person who is the subject of the appeal Marie-José 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] I dismiss this appeal for the reasons that follow. [2] XXXX XXXX XXXX is a citizen of India. Mr. XXXX alleged that he is at risk of being the victim of an honour killing by the brother of his former fiancée. He began dating his former fiancée in XXXX 2013. Initially, her parents did not support their union but eventually came to accept it. Mr. XXXX and his former fiancée became engaged in XXXX 2014 but just over a year later the brother of the fiancée returned from Dubai and became angry at the engagement. He threatened and severely beat Mr. XXXX. Mr. XXXX filed a complaint against his fiancée's brother with the police who urged the families to settle amicably, which they did. Following the settlement, Mr. XXXX did not see his fiancée again. The brother continued to threaten Mr. XXXX and the police refused to help. The police raided Mr. XXXX home in XXXX 2015 and arrested him. They falsely accused him of associating with XXXX and XXXX him. They released him upon the payment of a bribe on certain conditions and told him to stay away from his fiancée's family. When Mr. XXXX was released, his sister who lives in Canada as well as an agent assisted him to come to this country in XXXX 2015. He unsuccessfully tried to obtain a visa to the United States and, when he had difficulty extending his visa to Canada, he claimed refugee status in XXXX 2017. [3] The Refugee Protection Division (RPD) found that Mr. XXXX was credible about his relationship with his former fiancée as well as the threats and beating he received from her brother. The RPD also appeared to accept as credible that the Punjab police falsely accused Mr. XXXX of associating with XXXXs that they continued to harass his parents who pay them to be left alone, and that the brother of Mr. XXXX former fiancée saw his parents in XXXX 2016 and alleged to them that Mr. XXXX had XXXX the former fiancée. However, the RPD found that Mr. XXXX had a viable internal flight alternative in New Delhi, Mumbai and Calcutta. [4] Mr. XXXX appealed the RPD's decision to the Refugee Appeal Division (RAD). The RAD denied his appeal and upheld the RPD's finding that Mr. XXXX had a viable internal flight alternative in New Delhi, Mumbai and Calcutta. In particular, the RAD found that Mr. XXXX did not present an extreme criminal case and that he had not established that the police in his village were interested enough to search for him outside of the village, let alone in other states. The RAD also found that Mr. XXXX had not established that the police in New Delhi, Mumbai or Calcutta who would take his tenant registration would be in contact with the Punjab police. With respect to Mr. XXXX fear of his former fiancée's brother, the RAD found that he failed to establish that the brother would go out of his way to search for him in other parts of India especially given that Mr. XXXX engagement to his fiancée had been publicly endorsed by her parents and they assured him that the brother would eventually get over his anger. [5] Mr. XXXX then sought judicial review of the RAD's decision. The Federal Court granted judicial review and set aside the RAD's decision. The Court found that three errors undermined the reasonableness of the RAD's decision. First, the Court held that, even if it may be the case that interstate communications between police forces are limited to serious charges, it was wrong for the RAD to suggest that the charges made against Mr. XXXX in this case were not serious. According to the Court, the brother of Mr. XXXX ex-fiancée accused Mr. XXXX of being a XXXX and of XXXX the ex-fiancée which, the Court noted, are among the most serious of charges. Second, given the evidence that the brother of Mr. XXXX ex-fiancée had contacts within the police and the police's targeting of Mr. XXXX, it was unreasonable not to conclude that the brother was using his contacts with the police to pressure them to locate Mr. XXXX. Third, the Court found that it was speculative of the RAD to find that the brother would eventually accept Mr. XXXX relations with his ex-fiancée because her parents had publicly approved of their union. Due to these errors, the Court found that the RAD failed to provide a transparent, intelligible, and reasonable analysis and referred the matter back to the RAD for reconsideration. DECISION [6] My role is to look at all the evidence, including the recording of the RPD hearing, and decide if the RPD made the correct decision in light of the evidence in the case, the Federal Court's decision on judicial review, and all other relevant case law.1 Having carefully reviewed all of the evidence and submissions in this case, including the audio-recording of the RPD hearing, I find that the RPD erred in relying upon the opinion of the former fiancée's parents that the brother would eventually accept Mr. XXXX relationship with his former fiancée. I also find that the RPD and the first RAD member failed to provide a fulsome review of all of the evidence that supported their conclusions. Upon my full review of the evidence, I find that the RPD was correct to find that Mr. XXXX is neither a Convention refugee nor a person in need of protection. Specifically, I find that the RPD was correct in concluding that Mr. XXXX would have a viable internal flight alternative in New Delhi, Mumbai, and Calcutta. In reaching this conclusion, I have had careful regard to the Court's findings on judicial review. Below, I provide more detailed reasons and references to the evidence, to explain why Mr. XXXX has failed to establish that he would not have a viable internal flight alternative in New Delhi, Mumbai and/or Calcutta. NEW SUBMISSIONS [7] By notice dated October 2, 2020, I advised Mr. XXXX counsel that the National Documentation Package (NDP) for India was updated on July 17, 2020. I provided Counsel with the opportunity to make submissions in relation to the new NDP for India, especially Tab 10.13 which addresses police databases and criminal tracking including the relationship with the Aadhar systems and tenant verification.2 Mr. XXXX counsel responded to the RAD's notice by letter dated XXXX XXXX, 2020, in which she made fulsome submissions on the issue of internal flight alternative taking into account the evidence contained in the most recent NDP for India.3 [8] I accept these new submissions as they meet the conditions set out in Rule 29 of the RAD Rules since the new submissions respond to my notice on the internal flight alternative issue. Therefore, they could not reasonably have been filed with the appeal record. I address Counsel's submissions below. ANALYSIS [9] The onus is on Mr. XXXX to demonstrate 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.4 (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.5 First prong of internal flight alternative test [10] Mr. XXXX counsel argues that the RPD erred in finding that Mr. XXXX would not face a serious possibility of persecution in New Delhi, Mumbai and Calcutta. In her appeal submissions, Counsel argues that the serious allegations against Mr. XXXX suggested that the police might carry out a search for him. However, she also stated that she was not arguing that Mr. XXXX profile was significant enough for the police to carry out a complex interstate search for him. Instead, Counsel argued that, in light of the evidence on the tenant registration system and the Crime and Criminal Tracking Network and Systems (CCTNS), the Indian authorities would have all the tools necessary to find him and, given their past actions, they would more likely than not track him down to either extort money from him or to persecute him. [11] I disagree with this argument. Based on my own independent review of the evidence in this case against the background of the most recent NDP for India, I find that Mr. XXXX has not established a serious possibility that, if he returns to India, either the police from his district in Punjab or his former fiancée's brother would track him down and persecute him in New Delhi, Mumbai or Calcutta. Summary of the evidence that is relevant to the internal flight alternative issue [12] In my view, neither the RPD's decision nor the first RAD decision set out a sufficiently comprehensive review of the evidence that supported their conclusion that Mr. XXXX had failed to establish that his problems with the brother and the police extended beyond being a local matter. The RPD also failed to detail all of the evidence that supports the conclusion that Mr. XXXX failed to establish that the brother and/or the police from his district continue to have the kind of interest or motivation to search for him all over India, specifically in New Delhi, Mumbai, or Calcutta. [13] When the RPD asked Mr. XXXX why he would not be able to safely relocate to New Delhi, Mumbai or Calcutta, he replied that he has no family in those cities. He then pointed to the tenant registration system and said that, if he relocated to one of the proposed internal flight alternative cities proposed by the RPD, the police in that city would contact the local police in his district in Punjab who would learn of his whereabouts in one of the three internal flight alternative cities. It is important to note that Mr. XXXX himself did not allege that the Punjabi police and/or his fiancée's brother would carry out a country-wide search for him. In fact, when the RPD asked Mr. XXXX why, at the time of the hearing in 2017, he believed the police would follow him to the proposed internal flight alternative cities, his counsel pointedly corrected the RPD member saying that this was not his testimony and that he had not said the police would follow him to the internal flight alternative locations.6 [14] The RPD member rephrased the question to ask Mr. XXXX why he believed that the police would still have an interest in him in 2017. Mr. XXXX replied that the police went to his parents' home and harassed them. When the RPD noted that Mr. XXXX had testified at the start of the hearing that he had last spoken to his parents shortly before the hearing and they were fine, he acknowledged this testimony but said that the police asked his parents for money every 3-4 months and arrested his father once.7 He also added that his former fiancée's brother had harassed his parents when he saw them on the road one day in XXXX 2016.8 Despite being represented by the same counsel throughout these proceedings, Mr. XXXX has not submitted any new evidence raising any additional problems being experienced by his parents at the hands of the police or his former fiancée's brother. Tenant registration process [15] Having reviewed the most recent NDP for India dated July 17, 2020, I disagree with Counsel that Mr. XXXX likely would come to the attention of the Punjab police through the tenant registration process. [16] To begin, the documentary evidence found in the NDP for India continues to indicate that there is no national police force in India. Each state in India has a separate police force and there is minimal interstate police communication except in cases of major and high-profile crime.9 The new research report found at Tab 10.13 of the NDP cites sources who indicate that there is no centralized registration system in place to enable police to check the whereabouts of inhabitants in their own state, let alone in other states.10 Another source cited in the report indicates that police systems between districts and states are not integrated thus creating "islands of technology" which can only communicate within a state or district. [17] While India does have laws requiring the registration of new tenants, the most recent evidence in the NDP for India indicates that the actual verification of tenant backgrounds with the police in their home state is very limited. A professor of criminal justice quoted in the research report indicated that, since a national Indian database does not exist, tenant verification is "extremely limited" due to the volume of workers who have migrated to large cities.11 The research report also reproduces a quote from a former deputy Delhi commissioner of police in an India Today article in which they stated that tenant verification is "done for the psychological satisfaction, nor for actual background check.... The cops don't make any effort to follow up with the concerned police station of other states."12 [18] The research report does reproduce a quote from a Station House Officer speaking anonymously to the Indian Express newspaper who said that that they sent information sheets to the area Station House Officer and that they receive replies from some neighbouring states such as Punjab and even New Delhi. However, I prefer the information set out above from the professor of criminal justice and the former Delhi police commissioner of police over the anonymous Station House Officer quoted in the Indian Express article. This information indicates that tenant background checks with police from other states are "extremely limited." [19] Based on a weighing of all of the evidence in the NDP for India, including the most recent evidence in Tab 10.3, I find that that the evidence does not establish a likelihood that Mr. XXXX would come to the attention of the Punjab police through the tenant registration system if he relocated to New Delhi, Mumbai or Calcutta. Interest and motivation in tracking Mr. XXXX not established [20] As noted above, Counsel stated that she was not arguing that Mr. XXXX's profile was significant enough for the police to carry out a complex interstate search for him. Instead, Counsel argued that, in light of the evidence on the tenant registration system and the Crime and Criminal Tracking Network and Systems (CCTNS), the Indian authorities would have all the tools necessary to find him and, given the serious allegations of XXXX and XXXX made against him. [21] I do not agree with Counsel that the evidence establishes that the police from Mr. XXXX's district or the brother of Mr. XXXX's former fiancée have the kind of interest or motivation to expend the resources and effort to track Mr. XXXX down if he were to return to India today and relocate to New Delhi, Mumbai or Calcutta. While the evidence in the NDP indicates that there is increasing evidence that police stations are connected through the CCTNS, as noted above, the evidence in the NDP also indicates that there is little interstate police communication except for major cases like terrorism, or high-profile organized crime.13 [22] I begin first by addressing any risk posed by the brother of Mr. XXXX's fiancée himself. As noted by the Federal Court, the brother appears to have told the police that Mr. XXXX was connected to XXXXs, which led the police to XXXX and XXXX Mr. XXXX. According to Mr. XXXX, the police falsely accused him of working for XXXX and threatening his fiancée's family. The police ended up releasing him on the payment of a bribe with a warning to stay away from his fiancée's family. The XXXX allegation was an allegation that the former fiancée's brother made against Mr. XXXX to his parents when he ran into them on the road one day in XXXX 2016. There is no evidence that the brother has had any contact with Mr. XXXX's parents since he saw them on the road that day. The brother lives in the village next to the village in which Mr. XXXX's parents live. There is no evidence that the brother has had any contact with Mr. XXXX's parents for the last five years, either to harass them, threaten them, or pressure them for information about Mr. XXXX's whereabouts. There was no evidence as to how the brother of Mr. XXXX's fiancée would even know that Mr. XXXX had returned to India and relocated to New Delhi, Mumbai or Calcutta now over five and a half years after he left India. There was also little to no evidence that could support an inference that the brother of the fiancée has a continuing interest and motivation to take the steps that would be necessary to persecute or harm Mr. XXXX in any of the internal flight alternative locations. [23] Of course, that is not the end of the matter. It is necessary to examine the evidence that supports the proposition that the brother is using, or would use, the police to do his bidding to track down and persecute Mr. XXXX if he returns to India today and relocates to New Delhi, Mumbai, or Calcutta? It is true, as noted by the Federal Court, that the evidence suggested that the brother of Mr. XXXX's fiancée had used his contacts within the local police to pressure them to locate Mr. XXXX to harass, detain and mistreat him before he left India. However, that does not mean that either the brother or the police continue to have the interest and motivation to track Mr. XXXX down all over India over six years after he left. [24] Even if there was evidence that would reasonably lead to an inference that the brother used his contacts within the police to accuse Mr. XXXX of having connections to XXXXs, there was no evidence that the police accused Mr. XXXX of having XXXX his former fiancée. However, even if one were to assume, for the purposes of analysis, that the brother told the police that Mr. XXXX was involved with XXXXs and that he had XXXX his sister, there was no evidence that the police were treating these accusations as the kind of serious case that would lead them to search for Mr. XXXX all over India. The fact remains that the police detained Mr. XXXX and mistreated him but they never charged him with any offence. They ended up letting him go upon the payment of a bribe and a warning to stay away from the family of his former fiancée. The police laid no formal charges against Mr. XXXX; there are no warrants for his arrest; there is no evidence that he is on a list of wanted persons or that the police from his district continue to actively search for him. For example, I note that Mr. XXXX was able to get through all of the security and immigration checks imposed at international airports in India without any problems using his own personal passport, which he filed with the RPD. [25] It is true that Mr. XXXX testified, at the time of the hearing, that the police were going to his parents' house to harass them every 3-4 months. However, he also testified that they would pay them and they would go away and that they were fine at the time of the hearing. I agree with the RPD that this evidence suggests that, unfortunately, the police are using Mr. XXXX's parents as a source of extra money by harassing them every now and then. When considered against the background of the rest of the evidence, such visits are insufficient to support an inference that the police have an ongoing interest and motivation to track down Mr. XXXX in another state in order to persecute or extort him. [26] Even taking into account the serious allegations made against Mr. XXXX by the brother of his former fiancée and the local police in his district, this evidence must still be considered against the rest of the evidence in this case and the evidence contained in the NDP for India. The available evidence would suggest that the motivation of the brother and the police was to ensure that Mr. XXXX had no further contact with his former fiancée and her family, hence the warning the police gave to Mr. XXXX when they released him to stay away from the former fiancée's family. At the very least, I find that Mr. XXXX has failed to meet his onus of establishing that either the brother or the police from his district has the interest and motivation to track him down all over India, and specifically in the internal flight alternative cities, if he were to relocate there today. Risk due to Central Monitoring System not established [27] I do not agree with counsel that the existence of a Central Monitoring System in India leads to a serious possibility that Mr. XXXX would be tracked down and persecuted in New Delhi, Mumbai or Calcutta. While the research report at Tab. 10.6 of the NDP for India does indicate that the Indian government has put in place a Central Monitoring System to intercept and monitor telephone and internet communications, the research report does not provide information on when government authorities are likely to consult the system. The research report quotes the Minister of Telecommunications who indicated that the system would be used in "serious desirable cases of national security and allied matters."14 The evidence in this case did not establish that the Indian police would be likely to consider Mr. XXXX to be of such a high degree of interest that the government would undertake the steps necessary to review all the data in the Central Monitoring System in an attempt to track him down if he were to relocate to New Delhi, Mumbai, or Calcutta. Conclusion on first prong [28] Based on my independent review of all of the evidence in this case, I find that the RPD was correct to find that Mr. XXXX has not established that he would face a serious possibility of persecution or likelihood of serious harm if he relocates to New Delhi, Mumbai, or Calcutta for the more detailed reasons provided above. Second prong of internal flight alternative test [29] Counsel has made no arguments as to why it would be unreasonable to expect Mr. XXXX to relocate to New Delhi, Mumbai, or Calcutta. As noted by the RPD, Mr. XXXX is a young man who worked in a factory for several years before leaving India. There was no evidence to support any finding that it would be unreasonable to expect him to relocate to any of the three internal flight alternative cities. CONCLUSION [30] For the above reasons, I dismiss the appeal and confirm the decision of the RPD that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) Jo-Anne Pickel Me Jo-Anne Pickel December 21, 2020 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 Letter from RAD to Mr. XXXXXX counsel, October 2, 2020 (Exhibit RAD-1). 3 Letter from Mr. XXXXXX counsel to the RAD, October 16, 2020 (Exhibit P-3). 4 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). 5 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (CA). 6 Audio-recording of the RPD hearing, 1:31:48. 7 Audio-recording of the RPD hearing, 1:32:21. 8 Audio-recording of the RPD hearing, 1:35:01. 9 Tabs 10.2, 10.6 and 14.4 of the NDP for India (July 17, 2020). 10 Tab 10.13 of the NDP for India (July 17, 2020), p. 1. 11 Ibid., p. 9. 12 Ibid. 13 Tab 10.2 of the NDP for India (July 17, 2020), p. 1. 14 Tab 10.6 of the NDP for India (July 17, 2020), p. 2. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-13180 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