MB8-09901

RAD File / Dossier de la SAR : MB8-09901 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 Ottawa, ON Appel instruit / entendu à Date of decision September 16, 2020 Date de la décision Panel John Helis Tribunal Counsel for the person who is the subject of the appeal Lakhwinder Sandhu 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 Appellant), a citizen of India, appeals a decision of the Refugee Protection Division (RPD), dated January 18, 2018, rejecting his claim for refugee protection. The Appellant purportedly fears a group called the Satkar Committee and the police who threatened him and attempted to prevent him from attending a Sikh temple in his village. The RPD denied the claim based on the viability of Internal Flight Alternatives (IFA) in Mumbai and Delhi. [2] The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that he is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be referred back to a different panel of the RPD for redetermination.1 DETERMINATION [3] The appeal is dismissed. I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.2 SUMMARY OF THE FACTS [4] The Appellant is a 39-year-old man from the Indian state of Punjab. The narrative in his Basis of Claim form (BOC) is limited to the following: Police and Satkar Committee threatened me and pressurized (sic) me from entering village Shahid Sikh temple. I opposed them so police turned against me and told me to come to the police station on 18-9-2016. I got scared so come to Canada with agent. I have my original passport with me which I will submit to CBSA before my hearing. [5] He elaborated in testimony that the Satkar Committee was trying to break-up the congregation at the Shahid Sikh temple and impose their own religious beliefs. They specifically tried to prevent people from attending the temple, did not want people bowing down to a specific religious image, and indeed did not want any religious imagery in the temple. [6] The Appellant could not recall his first encounter with the Satkar Committee, but claims that as a member of the congregation he was threatened approximately 3 to 4 times. He recounted one incident in which Satkar Committee members slapped him, pushed him, and threatened him outside of the temple. As a result of these incidents, the Appellant reduced his visits to the temple and attended only when the Satkar Committee members were not present. [7] The Appellant further alleges that the police supported the Satkar Committee. He recalled that during one of the incidents at the temple with the Satkar Committee the police told him that they can bring him to the station and beat him. [8] The Appellant's parents encouraged him to leave India after he was asked to attend the police station on September 18, 2016. He obtained documents with the help of an agent, and left for Delhi on XXXX XXXX XXXX 2016, where he spent two days before departing for Canada on XXXX XXXX, 2016. He filed his claim for refugee protection on September 26, 2016. THE RPD DECISION [9] The RPD determined that the Appellant is neither a Convention refugee nor a person in need of protection because he has viable IFAs in Mumbai and Delhi. ISSUES [10] The determinative issue in this appeal is the viability of IFAs in Mumbai and Delhi. [11] The Appellant has not submitted new evidence and is not requesting an oral hearing before the RAD. STANDARD OF REVIEW [12] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Huruglica.3 This requires an independent assessment of the refugee claim to determine whether the RPD was correct in its findings and determinations. While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case. ANALYSIS [13] I agree with the RPD that the Appellant has viable IFAs in Mumbai and Delhi where he does not face persecution or harm. As will be outlined below, the dispute which the Appellant described is localized to his village in Punjab state, and concerns attendance and religious adherence at a local temple. The evidence does not establish that the agents of harm are motivated to search for him or pursue him in other parts of India. I reached this determination after conducting an independent review of the entire record, including listening to the recording of the proceeding before the RPD. [14] Claimants are expected to seek protection in another part of their own country, if it is available, before they seek refuge in Canada.4 The notion of an IFA is inherent in the definition of a Convention refugee because refugee protection is a form of surrogate protection.5 Accordingly, the Appellant bears the onus to demonstrate that there is a serious possibility of persecution throughout the country, including areas identified as IFAs.6 [15] The analysis for assessing an IFA has two parts according to the Federal Court decision in Rasaratnam.7 I must first determine whether there is a serious possibility that the Appellant will be persecuted, or whether he will face, on a balance of probabilities, a risk to his life, torture, cruel and unusual treatment or punishment in the proposed IFA. Secondly, I must also be satisfied, after considering the Appellant's individual circumstances and the conditions in the proposed IFA, that it would not be unreasonable to seek refuge in the IFA. An IFA will only be viable if both criteria are met.8 A high threshold of "nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area", applies equally to both parts of this test.9 For the reasons that follow, I find that the Appellant failed to meet the onus of proof under either prong. There is no serious possibility of persecution or risk of harm in Mumbai and Delhi [16] The Appellant has viable IFA options in Mumbai and Delhi where he does not face a serious possibility of persecution or a risk of harm. An IFA analysis requires a contextual approach, looking at the profile of the agents of harm, their motivation to search for the Appellant, and their ability to find the Appellant. [17] The evidence does not establish, on a balance of probabilities, that the agents of harm have the motivation to search for the Appellant throughout India, a country with a population of almost 1.3 billion inhabitants, or, more specifically in Mumbai or Delhi as the proposed IFA locations.10 There can only be a serious possibility of persecution if the agents of harm have both the "means and the motivation" to locate the Appellant.11 [18] The Appellant's problem with the Satkar Committee is limited to his village in Punjab state. According to his account, the Satkar Committee was formed by local members of the community that want to prevent congregants from attending the temple and ensuring that their religious convictions are followed. They threatened the congregants to "go away from this place, and listen to what we want you to do, and believe in what we are telling you". He knows of 10 to 12 people who comprise the Satkar Committee, but is unaware of whether the Satkar Committee operates in other parts of India, or even whether it has a broader membership in his village. [19] The specific threats which the Appellant received were also meant to prevent him from attending the local temple. He testified that Satkar Committee members stopped him on the way to the temple and threatened "stop going there, if you do not understand in the normal language, then we will have to use some other tactic to pressurize you". As a result, the Appellant reduced his visits to the temple, and only attended when the Satkar Committee members were not present. [20] The Appellant's evidence about the support the police provided to the Satkar Committee is similarly limited to preventing congregants from attending the temple. He described the involvement of the police in the following manner: "Satkar Committee was using police pressure as a matter of their tactic so that we stop going to the gurdwara [temple]. There was no other reason for the police to call me". [21] Aside from the forgoing, the Appellant tesfied that "I don't know much details (sic) about this organization, but I know this much, that these people used to come and visit the gurdwara [temple] that we would go to and they would threaten us". He did not point to any evidence in the National Documentation Package (NDP), for India about the Satkar Committee, and I did not identify any in my independent assessment of the record. The RPD correctly noted that the Appellant stayed at a temple for two days before leaving for Canada without any indication that the Satkar Committee was active in Delhi. [22] The fact that the police wanted to speak to the Appellant on September 18, 2016, does not establish that they are motivated to pursue him throughout India. He did not present evidence which demonstrates that the Satkar Committee or the police have searched for him since he left India, even within his own village in Punjab state. The Appellant testified that he lost touch with his parents approximately six months prior to his RPD hearing. However, in the ten-month period that he maintained contact with his parents after arriving in Canada they did not inform him of any incidents with the Satkar Committee or the police. While the Appellant insists that his parents sounded frightened during their conversations, and that he subsequently lost touch with them, this does not demonstrate that the Satkar Committee or the police were actively searching for him. [23] The Appellant submits that the RPD member "rejected the appellant's evidence that he can be found in New Delhi or Mumbai due to tenant registration", but does not make any arguments beyond this assertion. Contrary to this submission, the Appellant did not provide evidence about tenant registration, as it was RPD that canvassed the issue, stating that "[w]hile it was not specifically raised as an issue l have considered the landlord and tenant registration system". Since I have found that the agents of harm lack the motivation to search for the Appellant, it is unnecessary to consider whether the tenant registration system is a method by which they can locate him Mumbai or Delhi. [24] For all of the reasons outlined above, based upon my own independent review of the evidence, I am satisfied that the first part of the Rasaratnam test has been met, and that the Appellant has not shown that he faces either a serious possibility of persecution, or, on a balance of probabilities, a danger of torture, a risk to his life, cruel and unusual treatment or punishment in Mumbai or Delhi. It is reasonable for the Appellant to relocate to Mumbai or Delhi [25] The Appellant's submission in his memorandum on the second prong of the test for finding a viable IFA is limited to the assertion that the PRD ignored his testimony that he had never left his village in Punjab state, and that the work experience he gained in Canada should not have been weighed against him. [26] There is no merit to the Appellant's submission. The RPD expressly considered the Appellant's argument that relocating to either Mumbai or Delhi was unreasonable because he had never been outside of his village, and weighed it against both the evidence specific to his individual circumstances and the objective evidence in the NDP. The RPD considered that the Appellant completed secondary school, attended post-secondary college, speaks Punjabi and English, and has held employment in both agriculture and in automotive repair. The RPD correctly found that the Appellant's work experience in Toronto in automotive repair displays his ability to adapt and seek employment in field other than agriculture in a large city. [27] The RPD also correctly considered the objective evidence in the NDP which establishes that there are significant Sikh communities throughout India, including a large community in Delhi.12 There is little discrimination against Sikhs in India aside from "localized conflict or harassment by Hindu nationalists", and they are economically and socially integrated in communities outside Punjab.13 They have freedom to practice their religion, and can rely on local gurdwaras to access housing and other services.14 [28] I am therefore satisfied that the second part of the Rasaratnam test has been met, and that it would not be objectively unreasonable in the circumstances for the Appellant to relocate to either Mumbai or Delhi. CONCLUSION [29] The RPD was correct in its determination that the Appellant has viable IFAs in Mumbai and Delhi. [30] I therefore 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.15 (signed) John Helis John Helis September 16, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 111(1)(b) & 111(1)(c) [IRPA]. 2 IRPA s. 111(1)(a). 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 4 Canada (Attorney General) v. Ward, [1993] 2 SCR 689 at 752. 5 Thirunavukkarasu v. Canada ( Minister of Employment and Immigration ), [1994] 1 FC 589. 6 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 at 710. See also: Okechukwu v. Canada (Citizenship and Immigration), 2016 FC 1142 at para. 35. 7 Ibid. 8 Ibid. at 711; Calderon v. Canada (Citizenship and Immigration), 2010 FC 263 at para. 10. 9 Adebayo v. Canada (Immigration, Refugees and Citizenship), 2019 FC 330 at para. 53. 10 RAD-1 National Documentation Package, India, 17 July 2020, tab 1.7: ?India. The World Factbook. United States. Central Intelligence Agency. 17 June 2020 p. 3. 11 Nimako v. Canada (Citizenship and Immigration), 2013 FC 540 at para. 7; Mayorga Gonzalez v. Canada (Citizenship and Immigration), 2012 FC 987 at paras. 30-31. 12 RAD-1 National Documentation Package, India, 17 July 2020, tab 12.8: Situation of Sikhs outside the state of Punjab, including treatment by authorities and society; ability of Sikhs to relocate within India; treatment of Khalistan supporters or perceived supporters outside of Punjab (2017-October 2019). Immigration and Refugee Board of Canada. 16 December 2019. IND106294.E. p. 1. 13 Ibid. pp. 2 & 5. 14 Ibid. p. 3. 15 IRPA s. 111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-09901 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