Docket: IMM-5081-22
Citation: 2023 FC 1715
Montréal, Quebec, December 18, 2023
PRESENT: Mr. Justice Gascon
BETWEEN: |
JARNAIL SINGH ANSHPREET SINGH PARWINDER KAUR |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The applicants, Mr. Jarnail Singh, his wife, Ms. Anshpreet Singh, and their minor son, Parwinder Kaur, are seeking judicial review of a decision dated May 5, 2022 [Decision], whereby the Refugee Appeal Division [RAD] dismissed their appeal and confirmed the Refugee Protection Division’s [RPD] decision denying their refugee claim. Mr. Singh and his family’s claim for refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] was rejected because the RAD identified viable internal flight alternatives [IFA] in Chandigarh and Delhi in their country of citizenship, India.
[2] Mr. Singh and his family submit that the RAD erred in its determination of a viable IFA in Chandigarh and Delhi, notably by improperly considering various facts of their claim as well as the documentary evidence.
[3] For the reasons that follow, I will dismiss this application for judicial review. In my view, the RAD’s Decision was responsive to the evidence, and its findings regarding the IFA locations in Chandigarh and Delhi have the qualities that make the RAD’s reasoning logical and consistent in relation to the relevant legal and factual constraints. Mr. Singh and his family simply failed to discharge their onus to convince the RAD that the IFAs are not viable.
II. Background
A. The factual context
[4] Mr. Singh and his family are from the city of Jalandhar in the state of Punjab. Their refugee claim was based on a fear of persecution at the hands of the local police and Mr. Singh’s cousin (referred to as H.S. by the RAD [H.S.]), who is a police informer and member of the Congress party in Punjab. They claim that, at the behest of H.S. (who wants to seize and appropriate desirable farming land that belongs to Mr. Singh and his family), the local Jalandhar police have accused Mr. Singh of being a Khalistan militant.
[5] The series of events leading to their refugee claim began in 2017 when Mr. Singh refused to give part of his farming land to his cousin H.S., who subsequently verbally abused him and beat him. The local police refused to hear Mr. Singh’s complaint following these events and threatened him. In 2018, Mr. Singh was informed that H.S. had conspired with the local police to have him killed. Mr. Singh fled his home and moved to a village nearby. The police then raided and searched his home and mistreated his wife until a neighbour intervened.
[6] Mr. Singh and his family left India shortly thereafter, with the assistance of an agent, and came to Canada where they claimed refugee protection upon arrival.
[7] In November 2019, the RPD rejected Mr. Singh and his family’s claim and determined that viable IFAs exist for them in Chandigarh and Delhi. To come to this conclusion, the RPD found that the Punjab police have limited resources and that Mr. Singh had not established that his case was serious enough to warrant an interstate search. The RPD similarly found that, since Mr. Singh was never arrested or detained, he would not be traceable in India’s Crime and Criminal Tracking Network and Systems [CCTNS], the only country-wide police database. The RPD further noted that Mr. Singh and his family had not established that H.S. or the local Jalandhar police had any influence outside their village and therefore did not have the means to locate them in either of the proposed IFAs. Finally, even though Mr. Singh and his family might face some employment challenges in the proposed IFAs, the RPD determined that these difficulties would not reach the threshold to make the proposed IFAs unreasonable.
[8] In 2021, some three years after their departure from India, Mr. Singh’s mother in India received a summons for Mr. Singh to appear before the local Jalandhar police. The summons alleged that Mr. Singh was involved in Khalistan militancy.
B. The RAD Decision
[9] On appeal, the RAD confirmed the RPD’s decision. In its Decision, the RAD rejected Mr. Singh and his family’s contentions and, upon conducting its own IFA test, agreed with the RPD that two viable IFAs existed for them in Chandigarh and Delhi. The RAD similarly determined that the agents of persecution — namely, H.S. and the local Jalandhar police — lacked both the motivation and means to search for Mr. Singh and his family in the proposed IFAs.
[10] With respect to motivation, the RAD determined that any potential pursuit by H.S. could be pre-emptively defused by transferring the remainder of Mr. Singh’s currently unseized lands to his cousin. The RAD noted that those who are able to make reasonable choices to free themselves of a risk of harm must be expected to pursue those options. If H.S. no longer had a motivation to look for Mr. Singh and his family, neither would the local Jalandhar police.
[11] With respect to means, the RAD determined that the two agents of persecution could not locate Mr. Singh and his family in the proposed IFAs based on its reading of the documentary evidence within the National Documentation Package for India [NDP]. The RAD noted that the tenant verification system in the proposed IFAs is inadequate and not updated regularly. Concerning the CCTNS, the RAD observed that the summons from the local Jalandhar police was unlikely to have been entered into the CCTNS and, even if it were, that it would not amount to a serious enough crime to attract the attention of authorities in other states.
[12] Finally, the RAD determined that the hardships to be experienced by Mr. Singh and his family in relocating to one of the proposed IFAs would not amount to the level of hardship necessary to find an IFA unreasonable. In this regard, the RAD found that Mr. Singh and his family’s Sikh profile would not jeopardize their life or safety in Chandigarh or Delhi. The RAD also noted that despite some possible difficulties in finding employment, Mr. Singh and his wife’s work experience in manual labour in Canada would make it possible for them to find employment. Finally, the RAD concluded that the absence of a familial network in the proposed IFAs does not rise to the level of unreasonableness where their lives or safety would be jeopardized.
C. The standard of review
[13] It is not disputed that the standard of reasonableness applies to the Decision under review and to findings regarding the existence of a viable IFA (Khosla v Canada (Citizenship and Immigration), 2023 FC 1557 at para 16; Valencia v Canada (Citizenship and Immigration), 2022 FC 386 at para 19; Adeleye v Canada (Citizenship and Immigration), 2022 FC 81 at para 14; Ambroise v Canada (Citizenship and Immigration), 2021 FC 62 at para 6; Singh v Canada (Citizenship and Immigration), 2020 FC 350 [Singh 2020] at para 17). This is confirmed by the Supreme Court of Canada’s landmark decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], where the Court established a presumption that the standard of reasonableness is the applicable standard in judicial reviews of the merits of administrative decisions (Mason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason] at para 7).
[14] Where the applicable standard of review is reasonableness, the role of a reviewing court is to examine the reasons given by the administrative decision maker and to determine whether the decision is based on “an internally coherent and rational chain of analysis”
and is “justified in relation to the facts and law that constrain the decision maker”
(Vavilov at para 85; Mason at para 64). The reviewing court must therefore ask whether the “decision bears the hallmarks of reasonableness — justification, transparency and intelligibility”
(Vavilov at para 99). Both the outcome of the decision and its reasoning process must be considered in assessing whether these hallmarks are met (Vavilov at paras 15, 95, 136).
[15] Such a review must include a rigorous and robust evaluation of administrative decisions. However, as part of its analysis of the reasonableness of a decision, the reviewing court must take a “reasons first”
approach and begin its inquiry by examining the reasons provided with “respectful attention,”
seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion (Mason at paras 58, 60; Vavilov at para 84). The reviewing court must adopt an attitude of restraint and intervene “only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process”
(Vavilov at para 13), without “reweighing and reassessing the evidence”
before it (Vavilov at para 125).
[16] The onus is on the party challenging the decision to prove that it is unreasonable. Flaws must be more than superficial for the reviewing court to overturn an administrative decision. The court must be satisfied that there are “sufficiently serious shortcomings”
(Vavilov at para 100).
III. Analysis
[17] The only issue raised in this application for judicial review is whether the RAD’s findings on the viability of the IFAs are reasonable.
A. The applicable test on IFA determinations
[18] The test to determine the existence of a viable IFA comes from Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA) and Thirunavukkarasu v Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (CA) [Thirunavukkarasu]. Those decisions from the Federal Court of Appeal state that two criteria must be established, on a balance of probabilities, in order to find that a proposed IFA is reasonable: 1) there must be no serious possibility of the claimant being subject to persecution in the part of the country in which the IFA exists; and 2) it must not be unreasonable for the claimant to seek refuge in the IFA, upon consideration of all their particular circumstances.
[19] In Singh 2020, the Court reminded that “the analysis of an IFA is based on the principle that international protection can only be offered to refugee protection claimants in cases where the country of origin is unable to provide to the person requesting refugee protection adequate protection everywhere within their territory”
[emphasis added] (Singh 2020 at para 26). If a refugee claimant has a viable IFA, this will negate a claim for refugee protection under either section 96 or 97 of the IRPA, regardless of the merits of other aspects of the claim (Olusola v Canada (Citizenship and Immigration), 2020 FC 799 at para 7).
[20] When an IFA is established, the onus is on the refugee claimant to demonstrate that the IFA is inadequate (Thirunavukkarasu at para 12; Salaudeen v Canada (Citizenship and Immigration), 2022 FC 39 at para 26; Manzoor-Ul-Haq v Canada (Citizenship and Immigration), 2020 FC 1077 at para 24; Feboke v Canada (Citizenship and Immigration), 2020 FC 155 at paras 43–44).
B. First prong of the IFA test: the serious possibility of persecution or risk in the IFA locations
[21] Mr. Singh and his family claim that the RAD failed to consider various factual circumstances and various passages of the documentary evidence, which render its Decision unreasonable.
[22] First, they submit that the RAD erred in assuming it would be reasonable for them to cede their farmland, given Mr. Singh’s limited education and the fact that he has worked on this farm to provide for himself and his family for his entire adult life in India. Mr. Singh and his family contend that the RAD did not provide any explanations as to the reasons why it concludes they would not be deprived of their “general ability to make a living,”
considering their personal circumstances.
[23] Second, Mr. Singh and his family allege that the RAD erred in determining that India’s tenant verification program is inadequate in the proposed IFAs, given a passage in the NDP that says it can be used in Chandigarh. Mr. Singh and his family further argue that the RAD similarly erred in determining that Mr. Singh would not be listed in the CCTNS. Relying again on the NDP, Mr. Singh submits that an official charge sheet or criminal record is not necessary to be located in the CCTNS.
[24] Third, Mr. Singh and his family maintain that the ongoing enquiries made to their family members by the local Jalandhar police as to their whereabouts indicate a motivation in locating them, and that the RAD thus erred in determining there was no motivation outside H.S.’s interest in their land. Mr. Singh and his family further contend that the RAD erred in its IFA analysis by failing to analyse the possibility of them being located through their family and friends.
[25] Each of these arguments will be considered in turn.
(1) The farmland
[26] With respect to the farmland, I am not persuaded that the RAD omitted to provide adequate reasons for its conclusion that ceding the land would not hamper Mr. Singh and his family’s general ability to make a living.
[27] In the Decision, the RAD noted that it would not be unreasonable for Mr. Singh to abandon his remaining property so that he could eliminate any future risk posed by H.S. The RAD relied on Sanchez v Canada (Citizenship and Immigration), 2007 FCA 99 [Sanchez] to conclude that those who are able to make reasonable choices to free themselves of a risk of harm must be expected to pursue those options, so long as doing so would not engage a principal of fundamental human rights or dignity (Sanchez at para 18). The RAD then determined that property ownership is not a fundamental right that would make it unreasonable for Mr. Singh and his family to abandon their farmland.
[28] The RAD also observed that if Mr. Singh and his family were to rid themselves of their land, there would no longer be any risk posed by H.S. and, consequently, by the local Jalandhar police. As the RAD noted, if H.S. were to acquire the land, he, and the police, would no longer be motivated to locate the Singh family. Furthermore, the RAD specifically assessed Mr. Singh’s work experience on his farm and in manual labour in Canada, and determined that he would not be at a disadvantage to find work in either of the proposed IFAs. The RAD’s explanation was perhaps succinct, but I am not persuaded that it lacked justification, rationale, or logic, nor that it was unreasonable for the decision maker to infer that giving up the farmland will not adversely affect Mr. Singh’s general ability to make a living.
(2) The tenant verification system and CCTNS
[29] Mr. Singh and his family allege that the RAD erred in its assessment of the police’s ability to locate them in the proposed IFAs via the CCTNS and the tenant verification system by improperly considering the documentary evidence in the NDP.
[30] I disagree.
[31] In its detailed Decision, the RAD advanced multiple reasons to conclude that there is no serious possibility of persecution or risk for Mr. Singh and his family in the proposed IFAs. Notably, the RAD concluded that Mr. Singh and his family failed to prove that they are people of interest to the police in India and that their agents of persecution — H.S. and the local Jalandhar police — do not have the means or motivation to locate them in the proposed IFAs.
[32] In its analysis, the RAD first considered the specific evidence relating to Mr. Singh. It noted that Mr. Singh has not committed any crimes in India, much less any major crimes that would solicit the interest of police forces in other Indian states, and that he has never been arrested or detained. Furthermore, the RAD acknowledged that no legal action was undertaken after Mr. Singh’s failure to appear before the local Jalandhar police pursuant to the summons his mother received in 2021. Finally, the RAD observed that the CCTNS only includes information for serious crimes where a First Information Report or some form of document is generally generated — which is not the case here. Moreover, even then, the tracking of registered criminals is difficult for police between states. As such, the RAD concluded that, on a balance of probabilities, Mr. Singh was not likely to be listed in the CCTNS.
[33] A reading of the Decision leaves no doubt that, in reaching its determination, the RAD relied heavily on Mr. Singh’s particular situation and on the documentary evidence found within the NDP.
[34] The RAD also made many factual findings pertaining to India’s tenant verification system that were grounded in its assessment of the objective documentary evidence in the NDP. For example, the RAD concluded that the tenant verification system in the proposed IFAs is inadequate and not updated regularly, and that because Mr. Singh will not appear in the CCTNS, he will not be flagged by the tenant verification system. The RAD further said that police systems between districts and states are not integrated, creating “islands of technology”
which can only communicate within their specific district or state.
[35] The RAD, and the RPD before it, both acknowledged that there appeared to be an infrastructure in place that would allow the police to track individuals. However, the RAD found that there was insufficient evidence demonstrating that Mr. Singh’s name would be in that database or that the Punjab police would have the motivation to track him down.
[36] After assessing the conclusions of the RAD and the documentary evidence it relied on, I am satisfied that it was reasonable for the RAD to select and accept parts of the evidence that it considered to be the most persuasive to support its findings (Arora v Canada (Citizenship and Immigration), 2021 FC 1270 at paras 22–26). Indeed, as the Court noted in Singh 2020, “it is well established that an administrative decision maker is presumed to have weighed and considered all of the evidence presented to it, unless the contrary is established”
(Singh 2020 at para 38). Furthermore, a failure to mention a particular piece of evidence does not mean that it was ignored or excluded by the decision-maker (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16).
[37] It is true that, when an administrative decision maker does not properly deal with evidence squarely contradicting its findings of fact, the Court may intervene and infer that the decision maker overlooked the contradictory evidence when reaching its conclusion (Ozdemir v Canada (Minister of Citizenship and Immigration), 2001 FCA 331 at paras 9–10; Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL) at para 17). However, the failure to consider specific evidence must be viewed in context, and it is only when the evidence is critical and squarely contradicts the decision maker’s conclusion that the reviewing court may determine that the tribunal disregarded the material before it (Torrance v Canada (Attorney General), 2020 FC 634 at para 58). I have not been convinced that such evidence has been disregarded in the present case.
[38] I am mindful of the fact that certain extracts of the NDP may be more favourable to Mr. Singh’s position. I further acknowledge that the personal history of a claimant may be enough to be listed in certain Indian databases. Nevertheless, here, the RAD relied on other parts of the NDP and on Mr. Singh’s personal profile to determine that, on a balance of probabilities, he was unlikely to be listed in India’s databases as he was neither a criminal nor a militant. It is true that an official charge sheet or criminal record is not “necessary”
to insert a person’s information in a national database like the CCTNS. However, when, as was the case for Mr. Singh, a claimant only has a “personal history”
at a police station with no official record of his extra-judicial arrest and detention, I do not find it unreasonable for the RAD to determine that it is unlikely that such a person would be listed in India’s CCTNS database.
[39] As to the summons issued against Mr. Singh in March 2021, the police never followed up or acted upon it, despite the fact that Mr. Singh did not report for questioning as requested. Indeed, no charges were laid in relation to the summons. In these circumstances, it was open to the RAD to infer that the summons was not sufficiently serious to justify the inclusion of Mr. Singh’s information in the CCTNS database.
[40] In this case, the RAD did refer to the objective evidence extensively, and Mr. Singh and his family are simply expressing their disagreement with the RAD’s assessment of this evidence. However, on judicial review, it is not the role of a reviewing court to reweigh the evidence. The RAD’s IFA findings were essentially factual and based on its assessment of all the evidence, including the documentary evidence, which contains more than the passages on which Mr. Singh and his family rely. These findings are within the RAD’s area of expertise and they deserve a high degree of deference from the Court. It is not the role of this Court to reassess the evidence to reach a conclusion more favourable to an applicant. The role of this Court is to assess whether the Decision bears the hallmarks of reasonableness (Vavilov at paras 99, 125; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59). Here, with respect to the tenant verification system and the CCTNS, the RAD assessed the entirety of the NDP evidence and simply weighed the evidence differently from what Mr. Singh and his family would have preferred.
[41] I underline that the issue before the Court is not whether the interpretations proposed by Mr. Singh and his family might be defendable, acceptable, or reasonable. Rather, the Court has to look at this issue in respect of the interpretation made by the RAD in the Decision. The fact that there may be other reasonable interpretations of the facts does not mean that the RAD’s interpretation was unreasonable. The exercise of reinterpreting the RAD’s Decision would amount to indirectly applying the correctness standard, which the Supreme Court in Vavilov has expressly instructed reviewing courts not to do.
(3) Family and friends
[42] Mr. Singh and his family further submit that the RAD erred in its IFA analysis by failing to analyze the possibility of them being located through their family and friends. Relying on this Court’s decisions in Ali v Canada (Citizenship and Immigration), 2020 FC 93 [Ali] at paragraphs 49–50, AB v Canada (Citizenship and Immigration), 2020 FC 915 [AB] at paragraphs 20–24, and Zamora Huerta v Canada (Citizenship and Immigration), 2008 FC 586 [Zamora Huerta] at paragraph 29, the Singh family claim that it is unreasonable to expect family members to place their own lives in danger by having to deny knowledge of their whereabouts, or by having to deliberately mislead the authorities.
[43] Again, I am not persuaded by the Singh family’s arguments.
[44] First, as correctly pointed out by counsel for the Minister, this argument was not raised before the RAD. The submissions made on behalf of Mr. Singh and his family mentioned the fact that family members in India continued to be harassed by the police because of Mr. Singh’s alleged involvement with the Khalistan movement. However, no arguments were made to the effect that the police encounters with their extended family in India would allow the local police to trace Mr. Singh and his family, or that Mr. Singh and his family would effectively have to live in hiding. As this Court has concluded on a number of recent occasions in similar circumstances, judicial review of an argument that could have been put before the RAD, but was not, will generally not be granted (Singh v Canada (Citizenship and Immigration), 2023 FC 996 at paras 18–19, citing Singh v Canada (Citizenship and Immigration), 2023 FC 875 at paras 2, 23–58, Kumar v Canada (Citizenship and Immigration), 2023 FC 839 at paras 5, 18, 26–29, and Kodom v Canada (Citizenship and Immigration), 2023 FC 305 at paras 5, 12).
[45] In this case, Mr. Singh and his family referred to the police visiting his extended family in their arguments to the RAD, but only argued that the visits demonstrated the police’s motivation to pursue them. The RAD considered these arguments and responded to them. There was no argument before the RAD that they would have to live in hiding in the IFA because the police could locate them through their extended family members. The RAD cannot be faulted, on judicial review, for failing to address an issue that was not put to it and that did not emerge perceptibly from the evidence (Guajardo-Espinoza v Minister of Employment and Immigration, [1993] FCJ No 797 (QL) (FCA) at para 5; Eyitayo v Canada (Citizenship and Immigration), 2020 FC 1072 at para 27; Akintola v Canada (Citizenship and Immigration), 2020 FC 971 at paras 29–32; Dhillon v Canada (Minister of Citizenship and Immigration), 2015 FC 321 at para 23).
[46] This suffices to reject Mr. Singh and his family’s arguments pertaining to their ability to be located through their family and friends.
[47] In any event, the cases relied upon can be distinguished from the present matter. In Ali, AB, and Zamora Huerta, there were dire and serious threats of harm and violence made against the family members themselves. There was evidence that the applicants’ relatives would be in danger themselves if they lied to the persecutors about the applicants’ whereabouts; there was also evidence that the persecutors had the capacity and willingness to pursue the applicants in their new locations based on their acquired information. There is no such evidence here. As noted above, the RAD reasonably determined that there is no evidence of any capacity of the local Jalandhar police to locate Mr. Singh and his family outside of Jalandhar.
[48] As noted by the Court in Singh v Canada (Citizenship and Immigration), 2023 FC 1151, the holdings in these three cited cases are fact-specific and cannot be generalized to every IFA situation. In the current case, there was insufficient evidence that the agents of persecution had the motivation to locate Mr. Singh and his family. The Jalandhar police’s mere knowledge of the latter’s whereabouts, assuming the families would disclose it, does not establish a serious possibility of persecution or risk in the proposed IFA cities if the Jalandhar police have neither the means nor the motivation to act on it.
(4) The alleged complaint to the police
[49] Mr. Singh and his family also contend that the RAD failed to properly consider their risk of persecution at the hands of the local Jalandhar police, as Mr. Singh allegedly made a complaint directly against them.
[50] With respect, I disagree. Further to my review of the record, I found no evidence supporting the existence of an alleged additional narrative referring to a complaint against the police itself. As pointed out by counsel for the Minister at the hearing, the evidence only shows that M. Singh made several attempts to make a complaint to the police but that, in the end, he never made one.
[51] According to the evidence, Mr. Singh went to the local Jalandhar police to file a complaint. In November 2017, he approached the local police station but could not get any help as they would not accept to receive his complaint and forced him out of the station. Later in December 2017, he went to file a complaint with the Deputy Commissioner’s office, but the officer was on vacation and the complaint could not be filed. Mr. Singh was told to return two weeks later when the Deputy Commissioner would have returned from his vacation. However, before he could make the complaint, Mr. Singh received word that his cousin H.S. meant to kill him, causing him to flee India. In the end, Mr. Singh never formally submitted his complaint against the Jalandhar police to the Deputy Commissioner.
[52] There is therefore no evidence of a formal police report being filed by Mr. Singh against the police.
[53] In his submissions before the Court, counsel for Mr. Singh relied on my decision in Bhuiyan v Canada (Citizenship and Immigration), 2023 FC 410 [Bhuiyan] and on the Court’s decision in Mittal v Canada (Citizenship and Immigration), 2023 FC 1270 [Mittal]. Both can be distinguished from the present case. In Bhuiyan, the applicant had raised two grounds of persecution, namely, the repossession of the farm and the sexual orientation of the applicant’s daughter. There, the RAD had failed to consider the second ground. Here, however, there is no issue of a second ground of persecution being ignored, as no evidence supports an alleged ground of persecution flowing from a complaint made against the police itself.
[54] In Mittal, the Court found the RAD’s decision was unreasonable for two primary reasons: first, the RAD engaged in speculation that was entirely unsupported in the record (pertaining to the facts of the case and the risk the applicant faced at the hands of his political opponent). Second, the RAD failed to explain how the continued pressure by the police on the applicants’ family was considered in its assessment of the risk they face in the IFA. According to Justice Pentney, the RAD failed to explain how the continued pressure by the police on the applicant’s family was considered in its assessment of the risk they face in the IFA. In that case, the Court emphasized that it was not open to the RAD to draw its conclusion without explaining its analysis of the affidavit evidence about ongoing police visits to the principal applicant’s father and the neighbours, including the threats they faced from police (Mittal at para 24).
[55] In this case, I am satisfied that the result reached by the RAD is reasonably explained in light of the paucity of the evidence on an alleged complaint to the police. It is not a situation where the RAD engaged in speculation that was entirely unsupported in the record, something that the jurisprudence of this Court has determined is unreasonable (Hernandez Cortez v Canada (Citizenship and Immigration), 2021 FC 1392 at para 36). Instead, I am satisfied that the RAD meaningfully grappled with the key issues and central arguments raised by the parties (Vavilov at para 128).
[56] Moreover, as discussed above, the argument made by Mr. Singh and his family of having to hide their location from their family was not raised before the RAD.
(5) Conclusion on first prong of the IFA test
[57] Following Mason and Vavilov, the reasons given by administrative decision makers have taken on a greater importance and are now the starting point for the analysis on an application for judicial review. They are the primary mechanism by which administrative decision makers show that their decisions are reasonable, both to the affected parties and to the reviewing courts (Vavilov at para 81). They serve to state “how and why a decision was made,”
demonstrate that “the decision was made in a fair and lawful manner,”
and shield against “the perception of arbitrariness in the exercise of public power”
(Vavilov at para 79). In short, it is the reasons that establish the justification for the decision, and reviewing courts must read them “holistically and contextually”
in “light of the record and with due sensitivity to the administrative regime in which they were given”
(Vavilov at paras 97, 103; Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157 at para 15).
[58] Here, the RAD’s reasons provide a transparent and intelligible justification for the Decision (Vavilov at paras 81, 136). At paragraph 102 of Vavilov, the Supreme Court held that the reviewing court “must be satisfied that ‘there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived’.”
In this case, it is easy to trace and to follow the RAD’s line of analysis and the Decision does bear the hallmarks of reasonableness, which are justification, transparency, and intelligibility (Vavilov at para 99).
[59] It was therefore reasonable for the RAD to conclude that Mr. Singh and his family will not face any serious possibility of persecution or risk in the proposed IFA locations.
C. Second prong of the IFA test: the reasonability of the proposed IFAs
[60] With respect to the second prong of the IFA test, the Singh family alleges that the proposed IFAs are unreasonable given their profile as Sikhs and the continued rise in religious violence targeted towards Sikh minority communities in India.
[61] I am not convinced by these arguments and find that the RAD’s conclusions on the second prong of the IFA test are also reasonable.
[62] In the Decision, the RAD specifically considered the situation of Sikh minorities in India and, following a thorough analysis, preferred the documentary evidence stating that Sikhs are generally safe and incorporated into social and economic communities in India, and that this is especially true where a significant Sikh community already exists, as is the case in Chandigarh and Delhi. The RAD discussed the situation of Sikhs outside of Punjab, as well as the rise in religious violence in India, and thus addressed the concerns raised by Mr. Singh and his family. Once again, Mr. Singh and his family are asking this Court to reweigh the evidence considered by the RAD, a task it cannot do.
[63] Furthermore, this Court has determined on numerous occasions that, even though being Sikh outside of Punjab can be a challenge in itself, it is not sufficient “to satisfy the stringent second prong of the [IFA] test”
((Major) Singh v Canada (Citizenship and Immigration), 2020 FC 277 [Major Singh] at paras 25–26). In other words, Mr. Singh and his family’s disagreement with the assessment made by the RAD cannot be equated with a failure to take their profile as Sikhs into account. This is particularly true given the RAD explicitly considered their profile as Sikhs in its analysis of the second prong of the IFA test.
[64] The RAD was also alive to the fact that Chandigarh and Delhi are, generally speaking, safe and viable IFA locations where Mr. Singh and his family would be able to secure housing and live without fear of persecution. The RAD also considered the particular situation of the Singh family and noted that Mr. Singh and his wife will be able to secure work based on their previous work experience. As to the absence of a familial network, the RAD reasonably concluded that this absence does not put their lives or safety in jeopardy.
[65] To satisfy the second prong of the test and determine that an IFA is unreasonable, there must be actual and concrete evidence of conditions that would jeopardize an applicant’s life and safety in travelling or temporarily relocating to the proposed safe area (Ranganathan v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 at para 15, citing Thirunavukkarasu). Here, the only evidence submitted by Mr. Singh and his family in this regard is the general documentary evidence that Sikhs face persecution and challenges across India. However, this is far from being sufficient to satisfy their burden under the second prong of the IFA test (Major Singh at paras 25–26).
[66] Again, the RAD’s conclusions on the existence of an IFA are essentially factual and go to the very heart of its expertise in matters of immigration and refugee protection. It is well established that the RAD relies on the specialized knowledge of its members to assess evidence relating to facts that fall within its area of expertise. In such situations, the standard of reasonableness requires the Court to show great deference to the RAD’s findings (Mason at paras 57, 73). It bears reminding that it is not the task of a reviewing court to reweigh the evidence on the record, or to reassess the decision maker’s findings of fact and substitute its own (Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31 at para 55). Rather, the Court must consider the reasons as a whole, together with the record (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53), and limit itself to determining whether the conclusions are irrational or arbitrary.
IV. Conclusion
[67] For the reasons set forth above, this application for judicial review is dismissed. The RAD’s Decision is based on an internally coherent reasoning that is both rational and logical. The RAD provided multiple conclusions supporting its determination that the local Jalandhar police and H.S. would not have the motivation or means to locate Mr. Singh and his family in the proposed IFAs upon ceding their farmland, such that the first prong of the IFA test is satisfied. The RAD also provided coherent reasons explaining how the proposed IFAs in Chandigarh and Delhi are not unreasonable to the extent that neither Mr. Singh nor his family’s lives or safety would be in in jeopardy. Thus, the second prong of the IFA test is also satisfied. Consequently, the Decision was responsive to the evidence, and its findings regarding the IFA locations are defensible based on the facts and the law.
[68] No question for certification was proposed, and I agree that none arises.
Email this Content