Jurisprudential Guides - Decision MB6-01059 / MB6-01060

Private Proceeding

Reasons and Decision

Person(s) who is(are) the subject of the appeal:

  • XXXX XXXX XXXX XXXX
  • XXXX XXXX
 

Appeal considered / heard at:

Montréal, Quebec

 

Date of decision:

February 6, 2017

 

Panel:

Me Patricia O’Connor

 

Counsel for the person(s) who is(are) the subject of the appeal:

Maria Esposito

 

Designated representative:

N/A

 

Counsel for the Minister:

N/A

 

Reasons and Decision

I.  Introduction

[1] XXXX XXXX XXXX and XXXX XXXX (the Appellants), citizens of India, appeal a decision of the Refugee Protection Division (RPD) rendered on February 1, 2016, denying their claim for refugee protection.

[2] The Appellants do not request to submit new evidence in support of their appeal nor do they request a hearing before the Refugee Appeal Division (RAD).

[3] The Appellants request that the RAD set aside the determination of the RPD and find that they are Convention refugees pursuant to section 96 of the Immigration and Refugee Protection Act (IRPA).

II.  Determination

[4] Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD, namely that XXXX XXXX XXXX and XXXX XXXX are neither Convention refugees pursuant to s. 96 of the IRPA nor persons in need of protection pursuant to s. 97 of the IRPA.

[5] The appeal is dismissed.

III.  Background

a.  Basis of claim

[6] According to the Basis of Claim (BOC) form, the Appellants are a married couple who hail from the district of XXXX, Punjab, India.

[7] The Appellants own both a farmhouse and a home in the village. On occasion, they have allowed friends and people connected to their friends to stay at their farmhouse, in their absence.

[8] On XXXX XXXX, 2014, some people were staying at the Appellants’ farmhouse in their absence when it was raided by the police. The people managed to escape during the raid but left behind a black bag containing weapons and ammunition which was found by the police. Later, the police apprehended the male Appellant at his home in the village. He was brought to the police station where he was detained, tortured and accused of helping militants. He was released on XXXX XXXX, 2014, following the payment of a bribe. The police told the male Appellant that he must collaborate with them by obtaining further information about the militants.

[9] Following his release, the male Appellant sought medical treatment for 7 days. Once he returned home, the police subjected him to ongoing harassment and searched his home.

[10] On XXXX XXXX, 2014, four men presented at the Appellants’ village home demanding to retrieve the black bag. Upon learning that the police were in possession of the black bag, the men beat the male Appellant and demanded that he recover the bag or pay them a substantial amount of money.

[11] On XXXX XXXX, 2014, two of the men returned to the Appellants’ home to retrieve the black bag but fled once the police arrived. Once again, the male Appellant was detained and his village home was raided. He was released on condition that he remain in the vicinity, report to the police on a monthly basis and pay a bribe.

[12] Following his release, the male Appellant was hospitalized for one week. Once he returned home, he was subjected to police surveillance. On XXXX XXXX, 2014, the male Appellant went to stay with his cousin in XXXX, Uttar Pradesh.

[13] On XXXX XXXX, 2015, the police raided the Appellants’ home. They detained the female Appellant who was tortured and subjected to sexual assault. The female Appellant was released on XXXX XXXX XXXX 2015, upon payment of a bribe and both of the Appellants’ passports were seized. She then joined her husband in XXXX.

[14] The Appellants’ cousin contacted an agent to make the necessary arrangements for them to leave Canada. The agent retrieved the Appellants’ passports which were held by the police, after paying a bribe.

[15] As per the instruction of the agent, the Appellants relocated to XXXX on XXXX XXXX, 2015. They remained in XXXX until the agent facilitated their departure to Canada on XXXX XXXX, 2015.

b.  The RPD decision

[16] On February 1, 2016, the RPD rejected the Appellants’ refugee claim, concluding that they are neither Convention refugees nor persons in need of protection. The RPD concluded that the Appellants’ evidence lacked credibility based on omissions, vague and changeable testimony and implausibilities. Moreover, the RPD accorded no probative weight to documentary evidence submitted by the Appellants.

[17] In the alternative, the RPD held that even if it had found the Appellants’ evidence to be credible, they can avail themselves of an Internal Flight Alternative (IFA) in Delhi or Mumbai.

c.  Grounds of Appeal

[18] The Appellants submits the following issues on appeal:Footnote 1

  • Did the RPD err in the assessment of the Appellants’ credibility?
  • Is the finding that there is no objective fear supported by the evidence?
  • Did the RPD err by not proceeding with an analysis of State protection?
  • Did the RPD err in finding that the Appellants have an IFA in Delhi or Mumbai?

[19] I consider that the determinative issue on Appeal is whether the Appellants benefit from an IFA. As such, it is unnecessary to assess whether the RPD erred with respect to the other issues raised by the Appellant.Footnote 2

IV.  Scope of the RAD Appeal

[20] The IRPA sets out grounds for appeal and possible remedies. However, it does not specify the standard by which the RAD is to review the decision of the RPD.

[21] The Appellants submit that the RAD has authority to intervene in the present appeal based on a reasonableness standard of review.Footnote 3

[22] In cases which raise no issue with respect to the credibility of oral evidence, the Federal Court of Appeal in HuruglicaFootnote 4 held that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in mixed fact and law. In such cases, the RAD is to apply the correctness standard of review.Footnote 5 Gauthier, J. states as follows:

“[A]fter carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination.”Footnote 6

[23] As noted above, I consider that the availability of an IFA is the determinative issue. In this case, the IFA analysis does not raise any issue with respect to the credibility of oral evidence so I will apply the correctness standard of review in the present appeal.

V.  Analysis

[24] After conducting my own analysis of the record, I find that the RPD did not err in concluding that an IFA is available to the Appellants’ in Delhi or Mumbai. Given the existence of an IFA, the Appellants are not refugees or persons in need of protection.

[25] I turn now to explain my reasons for reaching this conclusion.

The IFA test

[26] It is settled law that the onus is on the Applicant to demonstrate that it is unreasonable to seek refuge in a different part of their country before resorting to international protection.Footnote 7

[27] This assessment is based on a two prong test. First, the RPD must be satisfied on a balance of probabilities that there is no serious possibility of the Applicant being persecuted in the part of the country to which it finds that the IFA exists. Secondly, the conditions in that part of the country must be such that it would not be unreasonable in all the circumstances, for the Applicant to seek refuge there.Footnote 8

First prong of the test: No serious possibility of persecution in the part of the country in which an IFA exists

[28] At the RPD hearing, the Appellants’ argued that they cannot benefit from an IFA in Delhi or Mumbai because the Punjab police will kill them upon their return to India. They submit that this threat extends throughout India, given the existence of a tenant verification system requiring landlords to register their tenants at the nearest police station. If they relocate to a different part of India, the landlord will ask for their identification to be verified and during this process the police will “find out where [they] are” and will “send the information to the other police.”Footnote 9

[29] After examining the evidence, the RPD held on a balance of probabilities that there is no serious possibility of the Appellants being persecuted if they return to India and relocate to Delhi or Mumbai.

[30] In reaching this conclusion, the RPD considered the following:

  • While the Appellants maintain that the Punjab police will kill them upon their return to India, they have not established that the police in Punjab would pursue them to Mumbai or Delhi;
  • Police in Punjab have the ability and authority to track suspects who move to other states. However, this occurs only in extreme cases. The Appellants’ evidence is that the police in Punjab released the male Appellant from custody on two occasions. Each time, he was expected to gather information about militants with whom he was imputed to be involved. There is no evidence to suggest that the male Appellant is the primary target of an investigation by the Punjab police.
  • When the female Appellant was arrested, the Punjab police seized the passports belonging to both Appellants. When the agent later paid a bribe to the police, the passports were released. In such circumstances, the police were reasonably aware that the Appellants were planning to leave but there is no evidence that they did anything to intervene.
  • After fleeing their home, the Appellants lived with a relative in XXXX XXXX for three months and then spent six months living in XXXX while waiting for the agent to make arrangements for their departure to Canada. During this period, there is no evidence to suggest that the police made efforts outside of Punjab to locate them or that they had an interest in pursuing them to another State.
  • There is also no indication that the Appellants have a profile warranting the Punjab police to obtain interstate cooperation.
  • The Appellants state that the tenant registry system in India requires house owners to submit tenant information to local police. However, source information points to the fact that records are checked and cross-checked only in cases of serious crimes. This does not correspond to the Appellants’ situation because there is no evidence that they have been formally charged with serious crimes, there is no indication that a First Information Report (FIR) was made, and there is no evidence that police in Punjab informed Federal authorities about their suspected militant involvement.
  • The Appellants obtained visas to Canada using their own valid passports in a transparent manner. They left India without any problem.
  • The Appellants have provided no evidence to suggest that their names appear on a wanted list or that they are suspected of serious crimes. There is insufficient evidence to conclude that the police in Delhi or Mumbai would contact the police in Punjab. As such, the Appellants have not proven that the tenant verification system will place them at risk.
  • Although the Appellants provided evidence pointing to the fact that Punjab is experiencing an increased level of unrest, the evidence does not establish that individuals from Punjab face increased scrutiny when they relocate to other States in India.
  • The Appellants were asked if the militants pose a risk to them if they relocate to Mumbai or Delhi. The male Appellant stated that he did not know. Counsel representing the Appellants pleaded that the militants could locate the Appellants as they have land and children in Punjab. The RPD found this submission speculative as it did not form part of the evidence.

[31] On appeal, it is submitted that the RPD erred in assessing the viability of the IFA. It is argued that since the agent of persecution is the police in India which has executive authority, it stands to follow that an Internal Flight Alternative is non-existent for the Appellants in India.Footnote 10

[32] Having reviewed the record and listened to the audio recording of the RPD hearing, I conclude that this submission has no merit.

India does not have a National police force

[33] I begin my analysis by noting that contrary to the Appellants’ submissions, India does not have a National police force. Rather, information gleaned from the Home Office of the UK Border Agency points to the fact that each State in India has a separate police force which is unconnected.Footnote 11

The tenant registration system in India does not result in a serious possibility of persecution for the Appellants

[34] The Appellants’ have provided cogent documentary evidence establishing that landlords are under the obligation to register tenants in India.Footnote 12 This practice usually consists of landlords registering their tenants at the nearest police station where the police keep records about tenant information.Footnote 13 This process is considered mandatory in some cities including Delhi and Mumbai even though a lot of landlords do not register their tenants and compliance with the tenant registration process varies from State to State.Footnote 14

[35] As such, I agree that the Appellants will be subject to a police verification process if they lease a dwelling in Delhi or Mumbai.

[36] However, my review of the documentary evidence also leads to the conclusion that in the present case, the tenant verification process will not lead the police in Delhi or Mumbai to communicate or cross-check information with the police in Punjab. More specifically, a review of the documentary evidence reveals that there is minimal inter-state police communication in India except for cases of major crime. I make this statement based on the following:

  • Information gleaned from sources in a Response to Information Request (RIR) addressing the situation of Sikhs outside the State of Punjab and their ability to relocate,Footnote 15 reveals that Sikhs do not generally face difficulties relocating to other areas of India. In order for the Punjab police to track suspects who move to other States in India, they must have the cooperation of the police in the other State. Police would likely only collaborate and track someone in extreme cases.Footnote 16
  • I note that another RIR specifically examines the level of communication between police officers across India,Footnote 17 revealing that there is no central police database at the local police station. It is considered to be extremely difficult, if not impossible, to locate an individual as a result of a security check, unless there is a match between a local police station and the subject of a security check.Footnote 18
  • Another RIR dated May 13, 2013, addresses the issue of police communication and collaboration between stations,Footnote 19 noting that there is collaboration between the police in Punjab and Delhi to find persons of interest.Footnote 20 More specifically, police communicate with each other across different cities or States to find criminal suspects, witnesses of crimes and potential threats to national security.Footnote 21
  • Information from the Home Office of the UK Border AgencyFootnote 22 states that “India still lacks a nationwide crime database, leaving State police stations as virtually unconnected islands.”

[37] A more recent RIR dated May 10, 2016, provides updated information as to whether police across India can locate individuals as a result of registration requirements for employment, housing, education, security checks and surveillance technology.Footnote 23 This RIR post-dates the RPD hearing in the present case.  Therefore, the Appellant was given the opportunity to present submissions with respect to the information found in the document.

[38] On January 19, 2017, the Appellants’ counsel submitted that the information contained in the RIR is simply an opinion expressed by the people who were contacted by the Research Directorate. This is not conclusive information on which to base a refugee claim and should be given low probative value. It is also argued that the Appellants’ are suspected of terrorist involvement.  According to the RIR, there is inter-state communication between police in India for cases involving serious crime.

[39] I note that information gleaned from the May 10, 2016 RIR reveals that in India, “there is little inter-state police communication except for cases of major crimes like smuggling, terrorism, and some high profile organised crime.”Footnote 24 Moreover, it is mentioned that “police stations across India are virtually unconnected islands in the case of crime and criminal tracking. There is no system of effective data storage […] sharing and accessing data and there is no single system by which a police unit can talk to another directly.”Footnote 25 Moreover, programs aimed at linking databases have been stalled for years in India. Some information is shared on the Zonal Integrated Police Network (ZIPNET) however ZIPNET is focused on information related to heinous cases, most wanted criminals, missing and found children, unidentified dead bodies or persons found; and stolen, unclaimed vehicles.Footnote 26

[40] It is plain to see that the documentary evidence points to the fact that the police in Delhi or Mumbai would not contact the Punjab police in the course of the tenant registration process.

[41] I also consider that the Appellants’ profile is not of sufficient gravity to lead the police in Punjab to want to pursue the Appellants across State lines in Delhi or Mumbai. To reiterate, documentary evidence points to the fact that the current practice in India is only to track down individuals across State lines in the most extreme of cases.Footnote 27 This type of exceptional situation does not correspond to the Appellants’ profile since there is no indication that the Appellants’ are a serious threat or involved in serious crimes or perceived to be involved in serious crimes to the extent that they would be pursued anywhere in India.

[42] All things considered, the Appellants’ have failed to demonstrate on a balance of probabilities that they face a serious possibility of being persecuted in Delhi or Mumbai notwithstanding the existence of the tenant registration process in India.

Second prong of the IFA test: Is it objectively unreasonable or unduly harsh for the Appellants’ to seek refuge in the region of Delhi or Mumbai?

[43] Next, the RPD considered the second prong of the IFA test and concluded that the Appellants failed to prove on a balance of probabilities that it is objectively unreasonable or unduly harsh for them to seek refuge in the region of Delhi or Mumbai, having regard to all the circumstances of the case.

[44] The Appellants’ did not articulate any submissions to challenge this finding.

[45] I begin my analysis by noting that case law sets out a very high threshold when determining whether the proposed IFA is unreasonable or unduly harsh. In Thirunavukkarasu,Footnote 28 the Federal Court of Appeal states the following:

“[If] there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.”

[46] In the present file, the Appellants’ evidence is that they are a married Sikh couple. Upon questioning at the hearing, they did not identify any particular problems relocating to Delhi or Mumbai other than their past experience with the police.

[47] Objectively speaking, I note that information gleaned from the May 13, 2013 RIR indicates that almost every major Indian city has a large and strong Sikh community.Footnote 29 Sikhs throughout India face little discrimination. Several sources cited in the May 13, 2013 RIR reveal that Sikh minorities living in States outside Punjab have access to housing, employment, health care, education and have the freedom to practice their religion. Moreover, they do not face difficulties when they relocate to other areas of India.Footnote 30

[48] In sum, I have considered the personal situation of the Appellants’ and the documentary evidence including the country conditions that prevail for Sikhs who relocate in India. My analysis of the evidence leads me to conclude that the Appellants’ have failed to prove on a balance of probabilities that it would be unreasonable or result in undue hardship if they seek refuge in the proposed IFA.

VI.  Remedies

[49] In conclusion, I have independently analyzed the record, listened to the audio recording, considered the Appellants’ arguments and reviewed the RPD decision. On the whole, I find that the RPD did not err in reaching the conclusion that the Appellants’ benefit from an IFA. Simply put, I find on a balance of probabilities there is no serious possibility of persecution or harm if the Appellants’ moves to Delhi or Mumbai. Moreover, the Appellants’ did not demonstrate that it would be objectively unreasonable or unduly harsh for them to relocate to Delhi or Mumbai. This finding is determinative of the appeal.

[50] For all these reasons, I confirm the decision of the RPD in accordance with ss. 111(1)(a) of the IRPA, namely that XXXX XXXX XXXX and XXXX XXXX are neither Convention refugees nor persons in need of protection.

[51] The appeal is dismissed.

Signed:

Me Patricia O’Connor

 

Date:

February 6, 2017