TB5-01794

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 : TB5-01794 TB5-01795 TB5-01796 TB5-01797 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision June 03, 2015 Date de la décision Panel Robert Bebbington Tribunal Counsel for the person(s) who is(are)the subject of the appeal Karina Thompson 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 (Appellant), XXXX XXXX (Second Appellant), XXXX XXXX (Minor Appellant) and XXXX XXXX (Third Appellant) are citizens of India. They appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. They have submitted new evidence in support of their appeal. The Appellant argues that, if the RAD does not find the Appellant to be a Convention refugee, it should hold an oral hearing pursuant to Section 110(6) of IRPA. [2] The Appellants ask that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute a decision with its own determination that the Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the RAD refer the matter back to the RPD for re-determination with a differently-constituted panel. DETERMINATION [3] 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 [4] The Appellant alleged before the RPD that his family was facing threats at the hands of XXXX who is the ex-husband of the Second Appellant and the father of XXXX and XXXX(the minor and Third Appellants). In summary, the Appellant alleged that he and his family were harassed and threatened by XXXX. The Appellant alleged that the second Appellant was given sole custody of her children, XXXX and XXXX in 2002. The Appellant alleged that the children's father did not want custody of the children. The Appellant and the second Appellant were married on XXXX XXXX, 2003. The Appellant is Hindu and the second Appellant and the children are Sikh. While there were some initial misgivings due to their interfaith marriage, it was eventually accepted by the Second Appellant's family. The Appellant assumed the role of the father of the children and supported them. [5] The Appellant alleged that XXXX is jealous of the success of the Appellant. He alleged that XXXX has threatened and harassed the family. He alleged that XXXX wants to take his daughter (minor Appellant) back and bring her into the Sikh religion and marry her off to a Sikh man. The Appellant alleged that XXXX has accused him of tarnishing the Sikh faith. [6] The Appellant and his wife state that the primary focus is the minor Appellant; XXXX wants her to support him. He wants her to marry into the Sikh religion. They fear that he will not stop until he gets his way. The Appellant alleged XXXX has threatened the family with harm if he does not get his way. The Appellant alleged that he could go to any extent to get his way. He alleged that they cannot go to the police as they have done nothing in the past to help them. [7] The Appellant had a refugee determination hearing on December 2, 2014. In a decision of January 27, 2015, his claim was rejected by the RPD. The RPD found that the Appellants were neither Convention Refugees nor persons in need of protection. [8] The Appellant submits that the RPD's determination is flawed. [9] The Appellant submits the following issues: a) There is new evidence, which directly contradicts the Board's Central finding. b) The RPD erred by rejecting the Appellants' supporting documents and breached procedural fairness by failing to advise the Appellants about concerns it had with their documents. c) The RPD did not consider the application of The Chairperson's Gender Guidelines1 to the Appellant's claim. d) The RPD erred in its analysis of an internal flight alternative (IFA). ROLE OF THE RAD [10] Counsel has 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 Huruglica,2 provides the RAD with guidance in relation to the appropriate standard that must be applied by the RAD to decisions of the RPD. 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".3 [11] 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 in 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. Application to Submit Documents Not Previously Provided [12] The Appellant submitted an application under Rule 29(2) of the Refugee Protection Division rules. In his application, the Appellant submits documents, which he argues provide evidence that the second Appellant (XXXX XXXX) has psychiatric problems and that her mental state has deteriorated and she has become distressed since becoming aware of the negative decision in respect of her refugee claim in Canada. The Appellant states that submissions have already been made about the relevance of her psychiatric report with respect to a decision in her claim. The Appellant has submitted the following document with his application: i. A psychiatric report from Dr. XXXX XXXX dated XXXX XXXX, 2015, which indicates that XXXX XXXX and Dr. XXXX XXXX referred the second Appellant for assessment on this date. She complained of a sense of helplessness in coping with the traumatic events she endured in India. She explained she was experiencing sleep disturbance, increased anxiety, including shortness of breath, increased heart rate, confusion and chest tightness. She described that if her refugee claim is denied she may not have the will to continue living. ii. The second Appellant reported that she has been provided with a prescription for Seratraline 25 mg., Cipralex 10 mg and Trazodone Hydrochloride 50 mg. The RAD notes the report from Dr. XXXX addresses the prescription of Seratraline and Trazodone, but not the Cipralex. [13] The RAD has considered these documents, pursuant to the factors in Rule 29(4). Section 29(4) of the RAD rules states that: (4) In deciding whether to allow an application, the Division must consider any relevant factors, including (a) the document's relevance and probative value; (b) any new evidence the document brings to the appeal; and (c) whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record, respondent's record or reply record. [14] The RAD in reviewing the Rule 29 Application notes the Second Appellant states that she was referred to Dr. XXXX as a result of her deteriorating mental state and distress exacerbated by the negative decision in her refugee claim. [15] The RAD finds the proposed new evidence does meet the requirements of s. 110(4) as it is relevant to the assessment of the IFA in this claim. The RAD will assess this report along with the psychotherapist's report below. [16] On May 6, 2014, the Appellant submitted a further application4 under Rule 29(2) of the Refugee Protection Division rules. In his application, the Appellant submits documents, which he argues provide evidence that is relevant to the assessment of the Second Appellant's Internal Flight Alternative (IFA) in reference to the psychological evidence submitted in this claim. [17] The RAD in reviewing this submission finds it is a copy of a Federal Court proceeding issued by the Honourable Mr. Justice Noel in Abdalghader et al v. M.C.I. 2015 FC581, issued May 5, 2015. The RAD further notes in considering the decision of Mr. Justice Noel that the case law utilized in his decision, S.O. v Canada (Minister of Citizenship and Immigration), 2011FC 1002 at para 13, citing Cartagena v Canada (Minister of Citizenship and Immigration), 2008 FC 289 at para 11, was reasonably available to the Appellants at the time of the RPD decision in their claim and most certainly available at the time of submission of the Appellant record. [18] The RAD has considered that as new evidence the Appellant's application to submit this document would fail under the provisions of Rule 29(4) because this document does not pass the tests set out in 29(4). As such the RAD recognizes its obligation to consider all applicable case law in arriving at a decision in the claim and the RAD will give consideration to the noted Federal Court decisions in its analysis. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [19] 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 refugee claimant. 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 present, at the time of the rejection. [20] The Appellant has tendered two new documents as proposed new evidence in support of his appeal: a) A DNA report dated XXXX XXXX XXXX XXXX XXXX from the Forensic Genetics Centre5 b) A report from SIFS Forensic Science Organization India6 [21] In a review of the record in the case at hand, the RAD finds that despite the submission of this new evidence that notwithstanding the findings of the RPD and the allegations of error in the RPD credibility analysis by the Appellant, there was evidence before the RPD of the existence of an accessible internal flight alternative (IFA). The RAD finds that the new evidence does not impact on the alternative IFA finding. IFA is a determinative issue and the RAD finds that review of the IFA decision, if upheld is sufficient to dispose of this appeal. [22] The issue was fully canvassed at the RPD hearing and the Appellant had the opportunity to make submissions at the RPD hearing with respect to it. The RPD assessed this evidence and provided an alternative decision in its Reasons. For the reasons that follow, in this case the RAD can confirm the RPD's determination by conducting a full fact based review of the IFA decision and making its own findings on the IFA issue. Therefore, because the RAD is able to fairly dispose of this appeal by making a decision on the IFA issue, it is unnecessary to decide if the new evidence is admissible and is relevant to the errors alleged by the Appellant. [23] Furthermore, in making a determination on the viability of an IFA, the RAD will review and assess the credibility findings made by the RPD, which have applicability to this determination. Accordingly, the RAD accepts the Appellants' identity. [24] The Chairperson's Gender Guidelines7 were taken into account when considering the facts in this appeal. The RAD considered all relevant factors, such as the social and cultural context in which the Appellant's allegations arose. In addition, issues of country conditions were examined with consideration of the Chairperson's Gender Guidelines.8 Internal Flight Alternative (IFA) [25] The RPD found there was an IFA for the Appellant in Mumbai, Kolkata or Bangalore. The Appellant submits that the RPD erred in its analysis of the internal flight alternative. The RAD finds the argument of the Appellant is without merit. In assessing an IFA, the RPD must apply a two-pronged test as cited in Rasaratnam9 suitably modified to take account of section 97 of the IRPA. 1) 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. 2) 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. [26] Both prongs must be satisfied to find that the claimant 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.10 [27] The RAD considered whether it would be unreasonable to expect the Appellant to relocate in the proposed IFAs. 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.11 This requires an evaluation of the conditions in the IFA as well as the Appellant or similarly-situated persons. Thirunavukkarasu12 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.13 However, 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.14 [28] The RAD finds that there is a reasonable and viable internal flight alternative available to the Appellant in Mumbai, Kolkata or Bangalore or any other major centers in India. [29] The law provides for freedom of internal movement, foreign travel, emigration and repatriation and the government generally respected these rights.15 The United Kingdom Home Office Operational Guidance Note for India16 states that internal relocation can be relevant in both cases of state and non-state agents of persecution, but in the main it is likely to be most relevant in the context of acts of persecution by localized non-state agents. Documentary evidence reports: The population of India is described as diverse and differentiated by language, religion, caste and class. According to the EIU Country Profile, "Hindi is the national language and primary tongue of 30% of the population. There are 14 other official languages: Bengali, Telugu, Marathi, Tamil, Urdu, Gujarati, Malayalam, Kannada, Oriya, Punjabi, Assamese, Kashmiri, Sindhi and Sanskrit. English is widespread in business circles and as a second language.17 The Ex-Husband [30] The Appellant testified that they could not move to the proposed IFA, as "XXXX" (the Second Appellant's ex-husband) would be able to find them. The RAD in reviewing the record notes that the Appellants submitted an affidavit from a lawyer18 in India who attests to the background of XXXX, stating that he is drunk, unemployed and worthless. The RAD in its review of the audio recording of the hearing notes both the Appellant and Second Appellant testified to the reason that they feared XXXX was that he was looking for his children to support him financially. The RAD finds this is not evidence of the type of individual who has the ability to locate the Appellants among millions of people in major centres and that are long distances from his home area. [31] The Appellant further speculated that using advanced technology instruments such as Facebook, he could locate them. The Appellant testified that XXXX had contacted him on his cellular telephone and speculated that he had located the telephone number because it is listed on his website. The RAD having reviewed the audio recording of the hearing notes that the Appellant testified that the second Appellant's brother-in-law had contact with the ex-husband and shared information about the Appellants. This information is further confirmed in the Appellant's Basis of Claim (BoC) form narrative.19 The RAD finds it reasonable to believe that this might also be a source of the Appellant's telephone number. The RAD further finds the Appellant's testimony in this respect is purely speculative and that no persuasive evidence was adduced to establish that XXXX has utilized any advanced technology tools in pursuit of the Appellants. [32] The RAD further notes that it may be prudent for the Appellant to refrain from posting his cellular telephone number or other personal information on his website, in order to continue doing business. The RAD notes the test for an IFA does not require that a refugee claimant be able to continue in the same business that they were in, in an IFA. In a given set of circumstances, it might be reasonable to expect them to change businesses or jobs so that they do not have to maintain an online presence. [33] The RAD has additionally considered that there is no persuasive evidence in the record which suggests that the agent of persecution has the ability to influence the police actions in India, and/or has the ability to access resources of police or any other authorities in order to locate the Appellants if they were to move elsewhere in India, a country of 1.25 billion people. Sikh Fundamentalists [34] The Appellants submit that the agent of persecution XXXX has connections to Sikh fundamentalists. The RAD has reviewed the record as well as the audio recording of the hearing and finds the Appellants' BoC narrative at paragraph 19 states they do not believe XXXX has become a religious Sikh, according to what we have heard". As well review of the various documents submitted by the Appellant describe "Sikh people"20, "people of Sikh community"21 attending the school and "XXXX with six other men wearing turbans, long beards and small swords".22 The RAD in assessing the evidence in the record finds that it describes individuals who associate with XXXX as having the appearance of members who dress in the traditional garb of the Sikh faith. The RAD finds that there is no documentation in evidence that indicates that all members of the Sikh faith are radicals nor has persuasive evidence been adduced that the agent of persecution is associated with Sikh fundamentalists. The RAD finds the argument of the Appellant is based in speculation and must fail. The ex-husband has located the Appellants [35] The RAD has considered that the Appellants' testimony that XXXX was able to locate them in 25 days in Delhi, a location they had moved to in 2003 because XXXX had been harassing them. The RAD notes this home is located approximately 60 kilometres from the Appellants' and XXXX original locale. The RAD further notes the Appellants were able to live in the Delhi area for approximately ten years without contact from XXXX. The RAD reviewed the record and the audio recording of the hearing finds that the evidence reveals as discussed previously, that the Appellants attended a family wedding in their home area. The Appellant's narrative describes that the Second Appellant's brother-in-law contacted XXXX following the wedding and gave him information about the Appellants, their family situation and their financial status. The RAD's review of the record indicates, on a balance of probabilities, that it was the Second Appellant's family member who provided XXXX with the information needed to locate the Appellants in Delhi. [36] The RAD finds the ability of the Appellants' persecutor to find them in an obvious location or a location disclosed by a family member does not establish that he has the ability to locate them elsewhere in the country. The RAD finds if the Second Appellant cannot trust her family members to keep her location a secret she is under no obligation to communicate that information with them. The RAD further notes that the Appellant was questioned on the record as to how the agent of persecution would be aware that the Appellants had returned to India and he was unable to provide any explanation. In summary, the RAD finds that the problems faced by the Appellants with the Second Appellant's ex-husband are local in nature. [37] The RAD notes the record confirms the Appellants are not unsophisticated. The Appellant has 22 years of education with both a Master's and a XXXX XXXX. The Second Appellant has 15 years of education culminating in a Bachelor's degree. [38] The Appellant testified that he felt it would be difficult to relocate to another city in India, but it would be possible. When asked why, he responded that it would be hard to establish a business, but added that it would be difficult anywhere. The RAD in its review of the record finds the main concern identified by the Appellant in relocating aside from being discovered by the agent of persecution centred on economic issues. The RAD notes that the Appellants did not provide any further persuasive evidence that it would be objectively unreasonable to relocate to any of the proposed IFA locations. The Appellants have travelled to Canada and successfully relocated the family, learning a new culture and establishing a support network. The Appellants provided no persuasive evidence that they would be unfamiliar with cultural issues and norms in the proposed IFA locations. Therefore, the RAD is satisfied that it would be reasonable for the Appellants to adapt to new surroundings in any of the cities identified and be able to obtain employment. [39] In considering the viability of the IFA, the RAD has given consideration to the Chairperson's Gender Guidelines23 specifically as it relates to IFA. The Guidelines state in part: In determining the reasonableness of a woman's recourse to an internal flight alternative (IFA), decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship. [40] The RAD considered all relevant factors, such as the social and cultural context in which the Appellant's allegations arose. In addition, issues of country conditions were examined with consideration of the Chairperson's Gender Guidelines.24 [41] The RAD takes note that the Second Appellant is married and will be accompanied to the IFA location by her husband (Appellant). Her testimony and her BoC narrative indicate her husband has provided support and assistance in respect of the problems arising from her ex-husband in the past. There is no evidence before the RAD that her husband would not continue to provide assistance to the Appellant. Psychotherapist Report [42] The RPD assessed the Psychotherapist report25 submitted in reference to the Second Appellant and assigned it little evidentiary weight based on its content and the lack of credibility demonstrated by the Appellant. The Appellant submits that the RPD did not assess the document and rejected it based solely on its prior credibility findings. The RAD is not persuaded by the Appellant's argument in this regard. [43] The RAD notes a review of the record confirms that the RPD Reasons acknowledge the expertise of Ms. XXXX and it does not dispute the clinical impression provided. The RAD has reviewed and considered the report, which indicates the assessment consisted of a clinical impression based upon a single 60 -90 minute interview. The clinician bases her findings on self-reporting by the Second Appellant and it does not detail the application of any additional clinical testing. Ms. XXXX clinical impression is that the female Second Appellant suffers from post-traumatic stress disorder, generalized anxiety and a major depressive disorder. [44] The conclusion reached by the clinician is that treatment and guaranteed freedom from the threat of removal to India will result in recovery. She also notes that it will be impossible for the Second Appellant to feel safe anywhere in India, causing her psychological and emotional state to deteriorate, but offers no explanation of how she has come to these opinions. Ms. XXXX also states that the minor female Appellant's condition will deteriorate if returned to the chaos and danger of India, but she again fails to state on what medical basis she has come to this opinion. Without an explanation of the clinical basis on which these opinions were formed, the RAD finds that Ms. XXXX opinions amount to speculation based on what the female Appellants have related to her. The Psychiatric Report Admitted as New Evidence [45] The RAD in reviewing the document submitted26, finds that the evidence itself does not raise a new issue that was not addressed in the report from the psychotherapist. The RAD notes: a) Dr. XXXX in her report states she was unable to complete her assessment of the second Appellant because it was terminated early at the request of Mrs. XXXX, hence the RAD concludes it is a clinical impression made without a full review of the Second Appellant's situation. b) Dr. XXXX further states that she reviewed the comprehensive report of the psychotherapist,27 which provided a clinical impression that Mrs. XXXX presented with post-traumatic stress disorder, generalized anxiety disorder and a major depressive disorder. The diagnosis provided by Dr. XXXX is the same as that provided in the report28 submitted during the Appellants' hearing for refugee protection. c) Further to this, the RAD in finds the report tendered from Dr. XXXX was based on the Second Appellant's self-reporting and an incomplete examination devoid of any additional independent clinical studies. [46] The RAD is sympathetic to the anxiety caused by a negative determination in the Appellants' claim for refugee protection and it finds the issues that caused the Second Appellant to seek further medical intervention are not necessarily the direct result of her problems encountered in India. The RAD has reviewed and considered the psychiatric report from Dr. XXXX and finds it can place little evidentiary weight on this report. [47] The RAD has considered the case law addressed by the Appellant and the implications of the statements made in the Psychotherapist report as well as the report of Dr. XXXX, in reference to the Appellants' return to India. The RAD finds the Appellant has not provided persuasive evidence that she is unable to obtain psychological treatment recommended by Ms. XXXX in the IFA location. The RAD finds it cannot give the reports significant weight in assessing the viability of the IFA.29 The RAD finds there is no compelling psychological or psychiatric evidence to lead it to conclude that the two female Appellants would be unable to return to one the proposed IFA locations. The RAD in conducting its own review of the evidence supports the finding of the RPD in this matter. State Protection [48] The RAD has considered that the Appellants in their testimony allege that when they sought assistance from the police in India, regarding the agent of persecution, they were unwilling to assist. The RAD has reviewed the Appellant's narrative at paragraph 20 and 26 where the Second Appellant alleges she has contacted the police on two separate occasions. The RAD having reviewed the record and the audio recording of the hearing, finds that despite the Second Appellant's allegation that the police did not seem interested in assisting her, she reveals in her testimony that the police attended her daughter's school and acted appropriately. They spoke to both her and her ex-husband, gathered information and informed her if there were any additional problems she should attend the police station and open a First Information Report (FIR). In the second incident, the Appellant testified that the police attended the family home, but by the time they arrived XXXX had left. The Appellant testified that the family was not happy with the police response. When the RPD inquired if the Appellant had contacted a higher authority in the police department and sought to complain, he answered in the negative, stating that he thought the police were too busy. The Appellants' subjective reluctance to seek state protection does not rebut the presumption it exists. They provided no clear and convincing evidence that if they were to lodge a complaint against XXXX that state protection would not be available to them. [49] The RAD finds the Appellants' allegations that the police were indifferent and unable to protect them from the agent of persecution is lacking in credibility. The RAD has considered the objective evidence on state protection in India is mixed, and does not fully rebut the presumption of state protection. The Appellants' own evidence does nothing to rebut that presumption either. The RAD finds this finding is relevant to the ability of the Appellants to relocate to the cities addressed as IFA locations. The Appellant submits that the psychological report indicates that returning the Second Appellant to India will elevate her stress because it places her in physical danger. Should the Appellants require police assistance in the location in which they settle the RAD finds the claimants' own testimony indicates it would be available to them. IFA Conclusion [50] The RAD is aware of the fact that an individual has to remain in hiding to avoid problems is not evidence of an IFA30 and that large urban areas cannot be assumed to be IFAs by virtue of their population size alone.31 The RAD notes that the cities are large and located at a substantial distance from the Appellants' home state. The RAD's finding of an IFA is not dependent singularly on the size of these cities, but is made in consideration of the totality of the evidence. The RAD finds that the Appellants did not adduce persuasive evidence to indicate that they would have to live in hiding in these cities. [51] The RAD has considered the psychological implications as well as the availability of state protection in respect to residing in the IFA location. In addition the RAD has considered the profile and influence of the agent of persecution in relation to the IFA. Further to this the RAD has considered that the Appellants did not submit evidence that they have a high profile in India. Therefore, the RAD finds that the Appellants could live in any of the proposed IFA cities without fear or the need to hide. [52] Based on the totality of the evidence, the RAD finds that the record contains sufficient evidence to support a finding that an IFA in Mumbai, Kolkata or Bangalore or another major city in India is accessible to the Appellant. [53] The RAD finds, on a balance of probabilities, that there is not a serious possibility of persecution of the Appellants in these cities, that their removal to India would not subject them personally to a risk to their life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. The Appellants have failed to provide a reasonable explanation as to why they believe they would be discovered and/or harmed at any of these locations, and therefore there is no reason to believe, on a balance of probabilities, that they would be harmed. [54] Once the issue of an internal flight alternative is raised, the onus is on the refugee claimant to show that the option does not exist, by establishing that either of the two tests cited in Rasaratnam32 criteria is not met. The Federal Court of Appeal in Thirunavukkarasu33 stated that an applicant need only show that there is a serious possibility of being persecuted in the new location or that their removal to India would not subject them personally to a risk to life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. The RAD finds that the Appellants have failed to show that the IFA option is not available to them. [55] The RAD finds that the Appellants could live in any of the three cities proposed as IFA locations in India. Given the finding above that the Appellants have an internal flight alternative in India, the RAD finds that the Appellants do not face a serious possibility of persecution there and also finds that their removal to India would not subject them personally to a risk to life, or of cruel and unusual treatment or punishment, or a danger, believed on substantial grounds to exist, of torture. REQUEST FOR AN ORAL HEARING [56] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in section 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [57] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [58] In respect of the DNA evidence34 submitted by the Appellant, the RAD finds that if the documents were admitted and accepted in the appeal, they would not justify holding a hearing in respect of this evidence because the RPD's decision can be upheld on the basis of its IFA finding. [59] In respect of the Federal Court case law35 submitted by the Appellant, the RAD has considered the Appellant's new evidence in support of his appeal. The RAD finds that this case law does not raise a new issue or a serious issue with respect to credibility, which is capable of changing the outcome of the claim. As such, the RAD must proceed without a hearing on the basis of the RPD's record, and the Appellant's application for an oral hearing is denied. [60] The RAD has admitted the Appellant's psychiatric report as new evidence in support of his appeal. However, the RAD finds the new evidence does not raise a new issue or a serious issue with respect to credibility, which is capable of changing the outcome of the claim. As such, the RAD must proceed without a hearing on the basis of the RPD's record and the Appellant's application for an oral hearing is denied. Summary a) The Appellant has failed to provide a reasonable explanation as to why he or the other Appellants believe they would be discovered and/or harmed at any of these locations, and therefore there is no reason to believe, on a balance of probabilities, that they would be harmed. b) The problem faced by the Appellants in regards to the Second Appellant's ex-husband is local in nature. c) The Appellants have not provided any persuasive evidence how the Second Appellant's ex-husband would come to know that they were living elsewhere in India. d) The Appellants could live in any of the three cities proposed as IFAs. DISPOSITION [61] The RAD finds that there is an internal fight alternative for the Appellants, and since IFA is a determinative issue, the RAD supports the RPD's decision to reject the Appellants' refugee claims. [62] Pursuant to ss. 111(1)(a) of IRPA, the RAD confirms the determination of the RPD and dismisses the appeal. (signed) "Robert Bebbington" Robert Bebbington June 03, 2015 Date 1 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 2 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 3 Ibid., paras 54 and 55. 4 Exhibit P-2, Appellant's record, Rule 29 Application, May 6, 2015 5 Exhibit P-2, Appellant's Record pp. 15,16. 6 Exhibit P-2, Appellant's Record pp. 17-52. 7 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 8 Ibid. 9 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. 10 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at 596-599. 11 Ibid. 12 Ibid. 13 Ranganathan, Rohini v. M.C.I. (F.C.A., no A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 14 Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (C.A.) at 596-599. 15 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for India (20, May 2014), Item 2.1. 16 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for India (May, 2013), item 1.9, United Kingdom Home Office, UK Border Agency, Operational Guidance Note: India, May 2013. 17 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for India (20, May 2014), Item 2.4. 18 Exhibit RPD-1, RPD Record, pp. 367-368. 19 Exhibit RPD-1, RPD Record, pp. 399. 20 Exhibit RPD-1, RPD Record, pp. 373. 21 Ibid, p. 400. 22 Exhibit RPD-1, RPD Record, pp. 26. 23 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act. 24 Ibid. 25 Exhibit RPD-1, RPD Record, pp. 363-366. 26 Exhibit P-2, Appellant's Record, Rule 29 Application April 14, 2015. 27 Exhibit RPD-1, RPD Record, Psychotherapist Report, pp. 363-366. 28 Ibid. 29 Saha, Gobinda Chandra v. Canada (Minister of Citizenship and Immigration), (F.C., no. IMM-5193-08), Phelan, March 23, 2009; 2009 FC 304. 30 Sabaratnam, Thavakaran v. M.E.I. (F.C.A., no A-536-90), Mahoney, Stone, Robertson, October 2, 1992. 31 Reynoso, Edith Isabel Guardian v. M.C.I. (F.C.T.D., no. IMM-210-94), Muldoon, January 29, 1996. 32 Rasaratnam, Sivaganthan v. M.E.I., [1992] 1 F.C. 706 (C.A.), at 710. 33 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) at 596-599. 34 Exhibit P-2, Appellant's Record pp. 15, 16 and pp. 17-52. 35 Ibid., Rule 29 Application, May 6, 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-01794 TB5-01795 TB5-01796 TB5-01797