MB8-15634

RAD File / Dossier de la SAR : MB8-15634 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision November 2, 2020 Date de la décision Panel Ayanna Roberts Tribunal Counsel for the person who is the subject of the appeal Lorne Waldman 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 allow this appeal. XXXX XXXX XXXX XXXX (Appellant) is citizen of India. a. The Appellant claims that he was targeted by two brothers because he helped farmers challenge the seizure of their lands under a government land acquisition initiative. The facts as alleged are as follows. The two brothers are members of the Bhartiya Janata Party (BJP) and were tasked with launching the acquisition project. The Appellant was threatened by the brothers after a court session in XXXX 2013. He was prevented from leaving the country in XXXX 2013, having been held back from the airport and prevented from boarding a flight to the United States. One of the brothers later took credit for the action. The Appellant received threatening texts and messages from BJP members and the harassment intensified after Narendra Modi's May 2014 election as prime minister. In XXXX 2014, a known BJP terrorist called him to a meeting, informed him that the farmers have XXXX months to get off the land or be kicked off, and warned the farmers to stay away from the courthouse. He was the victim of a petrol-attack in XXXX 2014. Though he went to the police several times throughout the period of harassment, nothing was done. In XXXX 2014, he moved his family to a friend's house in Mumbai where Shiv Sena members asked a neighbour about them and slipped a threatening letter under their door. Shiv Sena is linked to the BJP. The Appellant applied for a Canadian tourist visa in XXXX 2014, arriving in Canada on XXXX XXXX, 2014. Since leaving India, the power to his house was cut and his wife, who is still in India, has been followed and has received threatening calls on his old cellular phone number. As a result, his wife has relocated to her mother's house. b. The RPD found that the Appellant's agents of persecution could not locate him in Chennai, Bangalore, or Delhi. The Appellant alleges that the RPD erred in its analysis of the brothers' connection to the ruling BJP party and their ability and motivation to use that party connection to locate him anywhere in India. c. The determinative issue is whether the Appellant's persecutors have the ability to locate him in Delhi, Chennai or Bangalore. d. The RPD erred when it found that the agents of persecution could not locate the Appellant in the proposed IFAs. I find that the agents of persecution have ties to government authorities that are sufficiently powerful so as to access information that would allow them to locate the Appellant anywhere in India. DECISION [2] The appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. NEW EVIDENCE The evidence presented by the Appellant is accepted [3] On July 15, 2020, the Appellant requested that the RAD consider new evidence in the form of his statutory declaration.1 In the affidavit, the Appellant explains that his wife and children moved back into the family home in XXXX or XXXX 2019 since their neighbours had not reported seeing any activity for some months. He explains that in mid-XXXX 2020, one of the agents of persecution came to the house accompanied by party members, looked in the window and saw the children. He explains that his wife and children felt terrorized and fled to a friend's home about XXXX kilometers away where they have been since XXXX 2020. [4] 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. [5] 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 [6] The evidence is new since the incident occurred in XXXX 2020. The evidence is relevant to the determinative issue of whether the agents of persecution are motivated to locate the Appellant. I find that the Appellant's declaration is credible. ANALYSIS [7] My role is to look at all the evidence and decide if the RPD made the correct decision.4 Natural Justice [8] In its decision, the RPD relied upon the Jurisprudential Guide (JG) for India (MB6-01059-MB6-01060). The Appellant argues that the RPD's reliance upon the JG is inconsistent with natural justice because he did not receive prior notice that the JG would be used, and because the Immigration and Refugee Protection Act (IRPA) does not authorize the Chairperson to issue a JG a question of fact. [9] The RPD is not required to issue prior notice to an Appellant about the use of a JG. The Policy on the Use of Jurisprudential Guides indicates that parties and their counsel are expected to know which decisions have been identified as JGs. The JG in question was identified by the Chairperson on July 18, 2017, prior to when the RPD considered the Appellant's request for protection. [10] The Federal Court has found that the Chairperson has the authority to identify jurisprudential guides on questions of fact.5 However, the Federal Court found that the statement of expectation in the Jurisprudential Guide for India "reduces the freedom of [RPD and RAD members] to make their own factual determinations in cases with similar facts, unless they provide reasoned justifications for not applying the JG."6 [11] The JG adopted by the RPD to bolster its analysis was revoked prior to the Federal Court issuing its decision because the objective documentary evidence relied upon in the JG changed. The RPD noted that it was relying upon the JG primarily with respect to its analysis of policing, the ability to locate individuals in other regions of the country, the tenant registration system, other registration systems and minority group relocations. [12] The documentary evidence related to the connectivity between police databases referred to in the India JG is no longer valid. My analysis of the availability of an IFA in India will rely on the most recent objective documentary evidence available to the Board. Internal Flight Analysis (IFA) [13] The RPD accepted the credibility of the Appellant's claims and concluded that he had IFAs in Chennai, Bangalore, and Delhi. It incorrectly determined that the agents of persecution could not locate the Appellant in these areas. [14] The Appellant alleges that the RPD erred by making five findings: a. The RPD found that there was insufficient evidence as to the brothers' roles in the Bhartiya Janata Party (BJP), or any ability or influence that they might have to exploit party resources to locate the Appellant in the proposed IFAs. b. Despite having received a threatening letter from Shiv Sena when he sought refuge at his friend's home in Mumbai, the RPD found that there was insufficient evidence that the group has the ability to track him down in another distant and populous region of India, primarily because the group is based in Mumbai. c. There is insufficient evidence that any of the Appellant's persecutors would have access to his Aadhaar number or have the ability to use it to locate him in another region. d. The Appellant could fly directly to an airport located in one of the proposed IFAs because he was able to fly out of Mumbai using his own name, and despite that he was previously stopped from leaving India when he attempted to fly out from the Gujarat region. e. The Appellant could live safely as a Muslim in India because he testified that if not for the troubles that he has experienced, he could safely live in any of the IFAs. [15] I find that the RPD correctly determined that the Appellant is credible. After considering the Appellant's testimony and evidence, I find that the facts related to his claim have been established on a balance of probabilities. [16] I find that the RPD erred when it found that there was insufficient evidence as to the brothers' roles in the BJP or their ability to exploit party resources to locate the Appellant in the proposed IFAs. [17] Among the credible claims that I have accepted is the link between the brothers and well-placed government authorities. The Appellant testified that these brothers are real estate tycoons in Gujarat who have been tasked with acquiring the land necessary to build a highway facilitating travel between the Gujarat and Maharashtra states. The Appellant's documentary evidence confirms that the project is underway, but that there are challenges from farmers related to the land acquisition.7 [18] The Appellant has established that the brothers, supported by various henchmen, have threatened him and his family because he helped farmers challenge the land expropriation plan. These agents of persecution physically and verbally attacked the Appellant and some of the farmers after the first hearing near the district courthouse in 2013. The Appellant and his wife were attacked on XXXX XXXX XXXX 2014 when two men on a motorbike threw a bottle of petrol at them during XXXX XXXX XXXX. The Appellant and his wife moved to Mumbai to stay at a friend's apartment. In Mumbai, members of Shiv Sena, a radical nationalist group that is powerful in the state of Maharashtra, asked neighbours about them and slipped a letter under their door asking them to go to the Shiv Sena office at 6pm. They left the Mumbai residence the same day. [19] The Appellant testified that he was prevented by one of the brothers from boarding a flight to the United States from the Admedabad airport in XXXX 2013. He testified that he received a call from that brother where he was told that they will not let him go until he convinces the farmers to give up the court case. [20] The police were called to intervene at least twice without result. According to the Appellant, the police told him the BJP party could do what they wanted. [21] The Appellant has indicated that his wife continued to receive threatening phone calls on his old cellular phone after he left India in XXXX 2014. He has also testified that his home is the only one in the neighbourhood that has seen its electricity cut. New evidence indicates that his wife tried to move back into their home, which attracted the attention of local party members. [22] On a balance of probabilities, I find that the Appellant's troubles are linked to the land dispute with government authorities. The Appellant has credibly established that he has been attacked for reasons related to this case. For this reason, it is difficult to separate the actions of the agent of persecution from the will of the government authorities responsible for the project. However, I do not find that the Appellant has been targeted for his political opinion. The evidence does not lead me to conclude that he has or will be prevented from his right to support the Congress party, or parties other than the BJP, on a balance of probabilities. I find that there is no nexus to the Convention. [23] On a balance of probabilities, I accept that as wealthy businessmen who have been tasked with acquiring land for a large-scale government project, the brothers have ties to important political decision-makers that are stronger than those that the average local party member would have. I find that one brother's ability to interfere with the Appellant's ability to board a flight at the Ahmedabad airport demonstrates that the brothers do have the ability to engage the authorities to carry out their will, and demonstrates that they are willing to use this authority against the Appellant. [24] However, the evidence also indicates that each of the incidents has occurred in locations near to his family home, the site of the land dispute. The recent evidence submitted by the Appellant establishes that his wife and children were able to live undisturbed at her parents' home for months, and that they were only contacted by the agents of persecution once they returned to the family home. [25] A question to be considered is whether the agents of persecution will be interested in the Appellant if he abandons his family home and establishes himself elsewhere. [26] The Appellant received a threatening letter from Shiv Sena in Mumbai. Shiv Sena is a Hundi nationalist group that has exhibited anti-Muslim sentiment according to sources.8 The RPD accepted that Shiv Sena had contacted the Appellant but noted that Shiv Sena is predominately based in and connected to Mumbai and the Maharashtra region. The RPD found that there was insufficient evidence to conclude that Shiv Sena had the ability to locate the Appellant in the proposed IFAs. [27] The RPD did not comment on whether Shiv Sena and their actions are connected to the agents of persecution and the land expropriation dispute, or whether Shiv Sena contacted the Appellants because they are Muslim. The Appellant contends that Shiv Sena has deep political links with the BJP. The objective documentary evidence confirms that currently, Shiv Sena is part of the BJP's National Democratic Alliance that secured a dominant electoral victory.9 Given the high-profile nature of the land expropriation dispute, I find that Shiv Sena contacted the Appellant for reasons related to that dispute, on a balance of probabilities. [28] The Appellant testified that there are many Hindu nationalist parties that are spread out through India, and that there is a chance that he could be tracked down. He referenced the fact that he was tracked down in Mumbai using Shiv Sena, though nobody knew where he was staying. He believes that he can be tracked using data, such as his Aadhaar number, which is linked to his phone number and bank accounts in India. [29] The RPD noted that the Appellant believes that he could be located through his Aadhaar number, but also that the Appellant conceded that his persecutors do not know his Aadhaar number. The RPD found the Appellant's belief that his persecutors could find it out through the BJP to be speculative. [30] While I agree with the RPD that it is speculative that the agents of persecution could discover and use the Appellant's Aadhaar number, I find that the agents of persecution could locate the Appellant using the tenant verification system. [31] In India, it is mandatory that residents of a city register with the local police who then validate within a police database whether the resident has criminal antecedents or is being sought out by the police in a different state.10 This is referred to as tenant verification. India has implemented the Crime and Criminal Tracking System (CCNTS) for the purposes of criminal investigation, analytics and citizen services, including tenant verification.11 The objective documentary evidence indicates that Karnataka (where Bangalore is located), Delhi, Gujarat and Tamil Nadu (where Bangalore is located) have among the highest levels of compliance with the CCNTS infrastructure.12 High compliance means that a high number of police stations within the state have deployed the hardware and software related to the CCNTS, have mechanisms in place to support its use by police personnel.13 On a balance of probabilities, I find that the Appellant will be required to register with the police as a result of the tenant verification system in the proposed IFAs. I find that the high level of compliance with the system in Gujarat means that the police station in the area where he was harmed will be informed of his whereabouts. [32] The evidence before me indicates that the land expropriation dispute is ongoing. Given that the brothers have influence with government authorities in Gujarat, I find that they will have the motivation and ability to locate the Appellant in India. No IFA is available to him. CONCLUSION [33] The appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. (signed) Ayanna Roberts Ayanna Roberts November 2, 2020 Date AR/dd 1 P-3. Statutory Declaration of Mohmed Faiz Farukh Nalla. July 15, 2020. 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 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Canadian Association of Refugee Lawyers v. Canada (Citizenship and Immigration), 2019 FC 1126. At para 223. 6 Idem. At para 225. 7 RPD Record. Articles relating to the Mumbai-Vadodara Expressway. Pages 151-154. 8 Archive - National Documentation Package, India, 30 April 2018, tab 4.10: The Shiv Sena, including the group's activities and areas of operation within India; whether the Shiv Sena is involved in criminal activity; if so, the nature of these activities (2009-March 2011). Immigration and Refugee Board of Canada. 29 April 2011. IND103728.E. 9 National Documentation Package, India, 17 July 2020, tab 4.12: Republic of India. Election for Lok Sabha (Indian People's Assembly) of 11 April 2019. International Foundation for Electoral Systems. Election Guide. 10 National Documentation Package, India, 17 July 2020, 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. 11 National Documentation Package, India, 17 July 2020, 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. 12 National Documentation Package, India, 17 July 2020, tab 10.11: Status of Policing in India Report 2019: Policing Adequacy and Working Conditions. Common Cause; Lokniti Programme of the Centre for the Study of Developing Societies (CSDS). 2019. 13 Idem. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-15634 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