TB4-10185

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 File No. / N° de dossier de la SAR : TB4-10185 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 10, 2015 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal N/A Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX (the Appellant) appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and refer his claim back to the RPD for redetermination or, in the alternative, find him to be Convention refugee or person in need of protection DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD and dismisses the appeal. Background [3] The Appellant alleged before the RPD that as the result of an arranged marriage, he was engaged to marry the daughter of a former senior officer with the intelligence division of the police in India. The Appellant broke off the engagement after he realized her family was overbearing and controlling. Her family was very upset with him due to his decision not to proceed with the marriage. After breaking off the engagement, the Appellant obtained a religious worker visa for the US and joined a monastery there. The Appellant was unhappy about his treatment in the monastery. He left the monastery and surreptitiously crossed the border into Canada. [4] Prior to his engagement, the Appellant worked as a volunteer with Sri Lankan Tamils in a refugee camp near his home in XXXX, India. The Appellant learned that the police went to his home in India looking for him and alleged that he was involved with the Liberation Tiger Tamils of Islam. The Appellant alleges that the father of his former fiancé was behind the allegations. He fears that he will not be safe anywhere in India due to the influence and reach of his former fiancé's father. [5] The Appellant claimed refugee protection on March 29, 2014. [6] The Appellant's application for refugee protection was heard on July 16, 2014. In a decision of October 3, 2014, the RPD rejected the Appellant's claim, finding that the Appellant was not credible and that there is a viable Internal Flight Alternative (IFA) for the Appellant in Bangalore or Bombay (Mumbai), India. [7] The Appellant submits that the RPD erred in its credibility findings by failing to take into consideration his fragile state of mind and the impact that it had on his ability to provide fulsome and accurate testimony. The Appellant also submits that the RPD's findings on IFA are flawed. For the purposes of this appeal, the RAD has focused on the determinative issue of IFA. ROLE OF THE RAD [8] The Appellant has not made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision in Huruglica1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [9] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau in Alyafi2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [10] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person is need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [11] As provided for in s. 110(3) of IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and the Appellant. Subsection 110(4) of IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] The Appellant has tendered a medical report produced after the rejection of his claim which provides an assessment of the current status of his injured ankle. [13] The Appellant submits that the proposed new evidence ought to be admitted because it corroborates that he has been suffering from an injured ankle. He has argued in his memorandum that the RPD's concern with the problems in his testimony and allegations can be explained by the impact of the pain he was suffering because of his injured ankle. [14] The RAD finds that although the Appellant is self-represented in this appeal, the Appellant was represented by competent counsel for his RPD hearing. The Appellant and his counsel knew the issues raised by RPD and could have sought to provide this evidence at the RPD hearing or as post-hearing documents. However, there is no indication in the record that any efforts were made by the Appellant to provide this evidence. The RAD finds that the evidence contained in this report could reasonably have been expected to have been submitted to the RPD prior to the rejection of the claim. Therefore, the RAD finds that the medical report is not admissible under ss. 110(4). [15] Even if the RAD were to find that the report meets the test in 110(4), the RAD finds the report lacks materiality and has limited probative value. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD err in its IFA determination? [16] In the pleadings, the Appellant essentially argued that the RPD made errors of mixed fact and law in the IFA analysis. The primary argument he makes is that the RPD failed to recognize that the agent of persecution has great influence in all parts of the country and that he would be able to locate him anywhere in the country including the proposed IFA cities. [17] The RAD is not persuaded by the Appellant's argument in this regard. The RAD agrees with the RPD's finding that there is a viable IFA available to the Appellant in Mumbai or Bangalore. The RAD finds, after reviewing the complete record, including the recording of the testimony, that there is sufficient evidence in the record to support the RPD's findings on IFA and that the RPD appropriately applied the correct test. [18] In assessing an IFA, the RPD must apply a two-pronged test cited in Rasaratnam3 suitably modified to take account of section 97 of the IRPA. the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or a risk of cruel and unusual treatment or punishment or a danger, believed on substantial grounds to exist, of torture in the IFA. ...moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claim, for him to seek refuge there. [19] Both prongs must be satisfied to find that the Appellant has an IFA. The burden of proof rests with the Appellant to show that he does not have an IFA. The finding of an IFA must be based on a distinct evaluation of a region for that purpose, taking into account the Appellant's identity. An IFA must be a realistic and attainable option. An Appellant cannot be required to encounter great physical danger or to undergo undue hardship in traveling there or staying there.4 [20] The Appellant essentially argues that the RPD does not have the evidential foundation to draw the conclusion that he will not be located there by the agent of persecution. The Appellant alleges that the agent of persecution has great influence and the ability to initiate false charges being laid against him and to locate him anywhere in India. [21] The RAD finds that the Appellant failed to provide persuasive evidence to establish that the agent of persecution has the profile he alleges. The RPD appropriately determined that it would be reasonable to expect that, given the alleged profile of the agent of persecution as an influential former member of the police, the Appellant could have tendered documents to establish his profile. However, there was insufficient persuasive evidence before the RPD and none tendered in support of this appeal which corroborates the alleged profile of the agent of persecution. [22] Furthermore, the RAD notes that there is insufficient persuasive evidence in the record which demonstrates that the alleged agent of persecution has the ability or interest to pursue the Appellant outside of his home city and state. The RAD notes there is nothing in the objective evidence that corroborates that retired members of the police have the ability to influence police activities across the country. [23] The RAD finds that the Appellant did not adequately explain how the agent of persecution would come to know he had moved to either of the proposed IFA cities. Furthermore, the RAD notes that the Appellant did not offer persuasive evidence that the agent of persecution had the means or interest to locate and pursue him there. The RAD notes that the Appellant testified that after he broke off the engagement, he went to stay with friends in XXXX and that no attempts were made by the police or other authorities to locate him there. While it is true that the documentary evidence states that the police in different states have the ability to communicate with one another through a police records system,5 there is insufficient persuasive evidence that the Appellant's name has been entered into the police records system. The RAD notes that the Appellant testified that he was able to leave the country using his own passport without issue at a time when his former fiancé's father was already angry with him for breaking off the engagement. The RAD finds that the problems faced by the Appellant were local in nature. [24] The RAD has considered the affidavit of the Appellant's father which states that the police in XXXX went to his home to inquiry the whereabouts of the Appellant. The Appellant's father stated in his affidavit that the police informed him that they had received information that the Appellant has been helping the LTTE in India. However, the RAD finds there is insufficient persuasive evidence that the investigation being carried out by the police is as a result of the influence of his ex-fiancé's father. The RAD finds that the Appellant's fear that the police interest in him is due to the influence of his former fiancé's father is speculative. The RAD notes that the Appellant has testified that he was working with Tamil refugees as a volunteer. The RAD finds that the police interest in him could easily be explained by his work with Tamil refugees. [25] The Appellant has failed to provide sufficient evidence as to why he believes he would be discovered and/or harmed at either of these locations, and therefore there is no reason to believe that he would be harmed, either on a balance of probabilities or on the less stringent serious possibility test. [26] The RAD finds that the record contained sufficient evidence to support the RPD's finding that there is not a serious possibility of persecution of the Appellant in either of the proposed IFA cities. The record also supports the finding that the Appellant would not be personally subject to a risk to his life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture in the IFA cities. Therefore, the RAD agrees with the RPD's finding on the first prong of the test for finding an IFA. [27] The RAD considered the RPD's findings on the reasonableness of the IFA in the proposed IFA. The test for reasonableness is whether it would be unduly harsh to expect the claimant to move to another, less hostile part of the country before seeking status abroad, as per Thirunavukkarasu.6 This requires an evaluation of the conditions in the IFA as well as the circumstances of the Appellants or similarly-situated persons. Thirunavukkarasu sets a very high threshold for what makes an IFA unreasonable in all the circumstances. The hardship associated with dislocation and relocation is not the kind of undue hardship that renders an IFA unreasonable.7 It is not enough for the Appellant to say that he or she does not like the weather there, or that he or she has no friends or relatives there, or that he or she may not be able to find suitable work there.8 [28] The Appellant has not made any submissions on the reasonableness of the proposed IFA. The RPD found that it would not be objectively unreasonable or unduly harsh for the Appellant to live in the proposed IFA. [29] The RAD notes that the RPD took into account the personal circumstances, education level, and resourcefulness of the Appellant as well as the Appellant's psychological report in assessing the reasonableness of the IFA. The RPD noted that the Appellant has no dependents, has considerable work experience as a school teacher and counselor, and is well-educated and fluent in English. The RPD further notes that the Appellant has lived and studied outside his home city in India and abroad in the past, and there is evidence in the record that he has made friends and contacts in many places over the years, including the US and Canada. [30] The RAD notes that the report of Dr. XXXX states that the Appellant suffers from significant XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX problems and that he would benefit from XXXX XXXX treatment. However, there is insufficient evidence to indicate that the Appellant would not be able to get the support he needs in the proposed IFA cities. [31] The RPD finds that the Appellant did not provide sufficient evidence that it would be objectively unreasonable for him to relocate to the IFA cities. There is no evidence which suggested that adequate employment and housing for the Appellant would not be available. The RAD agrees with the RPD's finding that the Appellant has not established that it would be objectively unreasonable for him to re-establish himself in the proposed IFA cities. [32] Once the issue of an IFA is raised, the onus is on the Appellant to show that the option does not exist, by establishing that either of the two tests cited in Rasaratnam9 criteria is not met. The RAD finds that the Appellant has failed to show that the IFA option is not available to him. [33] The RAD finds that the RPD considered the totality of the evidence and made clear and coherent findings related to the both prongs of the IFA test. [34] Given the finding above, the RAD finds that the Appellant has an IFA in India. The RAD also finds that the Appellant does not face a serious possibility of persecution there and, also finds, on a balance of probabilities, that his removal to India would not subject him personally to a risk to his life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. DISPOSITION [35] The RAD finds that there is an IFA for the Appellant, and since IFA is a determinative issue, the RAD finds that the RPD's decision to reject the Appellant's refugee claim is reasonable. [36] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. (signed) "L. Favreau" L. Favreau February 10, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. 3 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991; [1992] 1 F.C. 706 (C.A.) at 710. 4 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993; [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.) at 596-599. 5 Exhibit RPD-1, National Documentation Package for India, 30 May 2014, Item 10.6, IND104371.E, dated 13 May 2013. 6 Supra, Footnote 4. 7 Ranganathan, Rohini v. M.C.I. (F.C.A., no A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 8 Supra, Footnote 4. 9 Supra, Footnote 3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-10185