Docket: IMM-12414-23
Citation: 2024 FC 1837
Toronto, Ontario, November 18, 2024
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
SURJIT SINGH SUKHJIT KAUR |
Applicants |
and |
MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB] rejected the Applicants’ claims for refugee protection, because it concluded that they had a viable internal flight alternative [IFA] in Delhi, India. The Refugee Appeal Division [RAD] confirmed this decision and dismissed their appeal. The Applicants now seek judicial review of that decision.
[2] For the reasons that follow, I believe this application for judicial review should be dismissed. The RAD’s decision was reasonable.
II. BACKGROUND
A. Facts
[3] The Applicants – Surjit Singh [the Principal Applicant or PA] and his wife, Sukjit Kaur [the Associate Applicant or AA] – are both citizens of India. They are supporters of the Bahujan Samaj Party [BSP] and allege a well-founded fear of persecution based on their political opinions. They fear certain individuals affiliated with other political parties, namely the Akali Dal Party [SAD] and the ruling political party in India, the Bhartiya Janata Party [BJP].
[4] Around 2016 and 2017, the PA became popular in his community for offering social support and social services, especially to people of lower castes. As a result, he was pressured to join a BJP/Akali Dal Party alliance. He refused, and faced a protracted period of harassment, threats and assaults.
[5] In 2017, this harassment caused him to flee from his home village. In 2018, SAD and BJP members assaulted Mr. Singh and one of his workers at his shop. As a result, the Applicants obtained visitor visas and came to Canada in November 2018. However, they did not want to overstay their visas and hoped that the situation in India had improved, so they returned to India on June 7, 2019. The situation did not improve.
[6] In August of 2021, approximately 20-25 BJP supporters attacked the Applicants at home. They tied Mr. Singh up in one room and beat him, and “misbehaved”
with Ms. Kaur and tore her clothes. The attackers threatened Mr. Singh to stop all BSP activities or his wife would be raped the next time. They also slapped the Applicants’ son. The PA reported the incident to the village headman and to the authorities, but the police only told him to join the SAD-BJP alliance and took no action to protect the Applicants.
[7] As a result, the Applicants moved to Delhi at the end of August 2021 and stayed with a friend. They then moved to Ms. Kaur’s family home in Kala Sanghian, but could not reside there long-term, so the Applicants left their two children in hiding at Ms. Kaur’s brother’s house and subsequently fled to Canada, where they made a claim for refugee protection.
B. The RPD Decision
[8] The RPD refused the Applicants’ claim, finding that they had a viable IFA in Delhi. In coming to that conclusion, the RPD questioned whether the alleged agents of persecution could locate the Applicants in Delhi. The tribunal noted that no First Information Report [FIR] was ever filed against the Applicants and therefore there is no evidence that they are recorded anywhere as persons of interest in India’s policing central database.
[9] Further, the RPD noted the mixed country conditions evidence regarding the use of the Crime and Criminal Tracking Network System [CCTNS] and found that even if Mr. Singh is on a police list, the objective evidence does not establish that the police are able to communicate with other police stations or access information in databases. The RPD acknowledged and agreed with the documentary evidence that police in India can track and locate persons of interest, depending on the nature of the crime and pressure from political authorities. However, the RPD found that Applicants have not demonstrated that their situation is such a case, as they have not been accused of any major crimes and no official or legal recourse has been taken against them.
[10] Similarly, the RPD considered the Applicants’ argument that they could be located via alternative methods, such as the tenant verification system or through their Aadhaar cards. It concluded, based on the IRB’s National Documentation Package for India that, like the CCTNS, the bulk of the documentary evidence indicates the tenant verification process does not function efficiently or routinely and that the police do not have access to Aadhaar data.
[11] Finally, the RPD considered the Applicant’s allegations that the agents of persecution are members of the governing party, and that they have been assisted by police in Punjab and would therefore be able to locate them anywhere in India. However, it concluded that even if these individuals are affiliated with the ruling party, there is no evidence that the Punjab authorities would have the means to locate the Applicants outside of their local jurisdiction.
[12] On the second prong of the IFA test, the RPD found that the police verification and Aadhaar card do not prevent the Applicants from finding work or create conditions of undue hardship that make Delhi unreasonable as an IFA. The RPD also found that it would not be unreasonable, based on the Applicants’ personal circumstances, for hem to relocate to Delhi.
C. Decision under Review
[13] In dismissing their appeal, the RAD first rejected the Applicants’ general argument that an IFA is not viable where the state is the agent of persecution. It noted instead that an IFA can be viable where there is clear evidence that the persecuting authority has no reach outside its own region, and found that this was such a case – as the evidence indicated that the Punjab police do not have reach outside their local region, to the extent alleged by the Applicants.
[14] Next, the RAD considered the Applicants’ submission that the RPD erred by applying the ‘balance of probabilities’ standard rather than the ‘serious risk’ standard. It found, per Orrego Suarez v Canada (Citizenship and Immigration), 2023 FC 14, that there is a distinction between the burden of proof with respect to a fact in support of the means and motivation of an agent of persecution, and the standard to be considered in assessing the risk faced by the applicant. Here, the RAD concluded, the RPD applied the ‘balance of probabilities’ standard to a fact in support of the means/motivation analysis and not to the calculus as a whole – which was properly done.
[15] Third, the RAD turned to the Applicants’ contention that the RPD had failed to identify the police as agents of persecution. It found that this was not the case. The RPD acknowledged that the Applicants asserted a fear of the police, and considered the capacity of the local police to locate the Applicants in its IFA analysis. The RAD further acknowledged that the police were amongst those claimed as agents of persecution, but clarified that this was only through their alleged affiliation with the ruling political party. As such, the RAD confirmed that the primary agents of harm in the case were the BJP members who had targeted them, and while the police were also implicated, it was solely through their BJP affiliations. In other words, the police had not targeted the Applicants because of suspected criminal activity, a distinction it returned to later in its analysis.
[16] Having characterized the agents of harm feared by the Applicants, the RAD proceeded to affirm the RPD’s finding that these parties had neither the means nor the motivation to locate the Applicants in Delhi. The RAD agreed with the RPD’s findings regarding the unlikelihood that the Applicants could be tracked via the tenant verification process or the Aadhaar card, given the lack of a FIR or criminal charges. It acknowledged that police can track suspects accused of major crimes through the CCTNS, but found that it was merely speculation that BJP or SAD members could use the police to access these systems and find the Applicants in Delhi.
[17] The RAD then considered the other possible avenues by which the agents of persecution could, at least in theory, locate the Applicants, but ultimately concluded that they had simply not demonstrated that these individuals had an ongoing motivation to track them to a different city.
[18] On the second prong of the IFA test, the RAD adopted the RPD’s findings that it would not be unreasonable for the Applicants to relocate to Delhi.
III. LEGAL FRAMEWORK
[19] Refugee protection is a surrogate, or backup, form of protection for individuals who cannot obtain it within their own country of nationality. Consequently, those seeking refugee protection must be found to face an identified risk in every part of their country of origin. The possibility of a safe and viable internal flight alternative will therefore negate a claim for refugee protection, regardless of the merits of other aspects of the claim: Olusola v Canada (Citizenship and Immigration), 2020 FC 799.
[20] The two-prong test to determine the existence of a viable IFA is well established: Rasaratnam v Canada (Minister of Employment and Immigration) (C.A.), 1991 CanLII 13517 (FCA), [1992] 1 FC 706 and Thirunavukkarasu v Canada (Minister of Employment and Immigration) (C.A.), 1993 CanLII 3011 (FCA), [1994] 1 FC 589. In order for a proposed IFA to be considered reasonable, two criteria must be met: 1) There must be no serious possibility of the claimant being persecuted, or subject to a risk of torture, risk to life, or risk of cruel and unusual punishment in the part of the country where the IFA exists; and 2) It must not be unreasonable for the claimant to seek refuge in the IFA, considering all of their particular circumstances.
[21] A serious possibility of persecution can only be found if it is demonstrated that the agents of persecution have the probable means and motivation to search for an applicant in the suggested IFA: Saliu v Canada (Citizenship and Immigration), 2021 FC 167 at para 46, citing Feboke v Canada (Citizenship and Immigration), 2020 FC 155 at para 43.
[22] In addition, in all the circumstances, including the Applicant’s particular circumstances, the conditions in the proposed IFA must be such that it is not unreasonable for the Applicant to seek refuge there: see Ranganathan v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164 (FCA) at para 15 [Ranganathan].
[5] It is a refugee claimant, and not a respondent or the RAD, who bears the onus of demonstrating that the IFA is unreasonable: Jean Baptiste v Canada (Citizenship and Immigration), 2019 FC 1106 at para 21.
IV. ISSUES
[23] The Applicant raises a number of issues, all of which I believe can be subsumed into the question of whether the RAD’s decision was reasonable.
V. STANDARD OF REVIEW
[24] The parties do not dispute that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 23 [Vavilov]. In conducting a reasonableness review, a court “must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified”
(Vavilov at para 15). It is a deferential standard, but remains a robust form of review and is not a “rubber-stamping”
process or a means of sheltering administrative decision-makers from accountability (Vavilov at para 13).
VI. ANALYSIS
A. The RAD did not apply the incorrect legal test
[25] The Applicants submit that the RAD erred in applying the incorrect legal test to its IFA analysis. They submit that the RPD and the RAD both applied the standard of “a risk of persecution on a balance of probabilities”
to their analysis, when the correct standard is that of “serious risk.”
This, they argue, is an impermissibly higher standard, which this Court has held to constitute a reviewable error. I disagree.
[26] First, I would note that in the section of their argument that addresses these issues, the Applicants have referenced the wrong decision. They reference paragraph 31 of the RPD’s decision, which they quote as saying:
Taking all the evidence into account, I find on a balance of probabilities that the claimant would not be located or harmed by ISV in Mumbai or Kolkata, and I find that the first prong of the IFA analysis is therefore met.
[27] I do not know where this quotation comes from, as it does not relate to this case. It references the incorrect agent of persecution and proposed IFA locations. Paragraph 31 of the RPD decision in this matter deals with the evidence regarding background checks. Paragraph 31 of the correct RAD decision addresses the RPD’s findings regarding the CCTNS and the means of the agents of persecution.
[28] Counsel is reminded that it is of no service to their clients to borrow language from a different matter that has no bearing on the case at bar.
[29] With this in mind, I presume the sections of the RAD decision that the Applicant intended to impugn in this case are paras 16-22, wherein the RAD considered whether the RPD had incorrectly held the Applicants to a higher standard of proof than required, and concluded that the RPD had not done so.
[30] As the RAD noted, the Applicants did not indicate which relevant evidence the RPD ignored and how it related to the application of an incorrect standard of proof. Nonetheless, the RAD conducted an independent assessment of the facts and the relevant jurisprudence, and determined that the RPD had properly applied both the legal test and the standard of proof.
[31] Put a slightly different way, the RAD found that the RPD had properly considered the distinction between the legal standard for the IFA test (which is a standard of serious risk or serious possibility) and the standard of proof for the facts tendered in support of that serious risk (which are assessed on a balance of probabilities). It determined that:
In its decision, the RPD found that there is no serious possibility of persecution or risk to life in Delhi, because there is insufficient evidence to establish, on a balance of probabilities, that the perpetrators have the capacity to locate and harm the Appellants in Delhi. This is a correct application of the legal test and standard of proof.
[32] The RAD’s reasons on this point demonstrate a rational chain of analysis that can be followed without encountering any overarching flaws in its logic. In the above passage, the RPD correctly referred to the applicable legal standard (the “serious possibility”
of persecution), and proceeded to find that the Applicants had failed to adduce sufficient evidence to establish that risk.
[33] I acknowledge that there is some ambiguity in the RPD’s reasons, as it referred to the ability of the agents of persecution to locate and harm the Applicants. On one reading of this passage, it could be argued that in assessing the likelihood of harm on a balance of probabilities, the RPD did conflate the legal and evidentiary thresholds. However, I find that the RAD took an appropriately holistic approach to its assessment of the RPD’s reasons and reasonably concluded that the RPD had properly considered the distinction between the thresholds. Moreover, regardless of the RPD’s findings, the RAD correctly noted that it could conduct its own assessment of the evidence and “make the appropriate findings using the appropriate wording.”
B. The RAD did not err in its assessment of the evidence
(1) Means and motivation
[34] The Applicants additionally argue that the RAD erred in finding that the agents of persecution would not have the means or the motivation to track the Applicants to the IFA location. With respect, the Applicants fail to point to a reviewable error and their submissions simply amount to a request to re-weigh evidence already assessed by the decision-maker, which is not the role of this Court on judicial review.
[35] The RAD considered all the evidence before them and reasonably concluded that the Applicants had failed to establish that they would be pursued to Delhi, because a) they are not persons of interest to the police, as the police are agents of persecution only through their alleged affiliation with the BJP-SAD and not due to their own motivations; and b) there is insufficient evidence that the BJP or SAD members could utilize police resources to find them.
[36] In coming to this determination, the RAD considered the evidence regarding CCTNS and acknowledged that the police are able to track individuals accused of major crimes. However, it found that that was not the case here. There were no FIRs, arrest warrants, or criminal charges filed against the Applicants such that they would be listed on a national database. The RAD further found insufficient evidence of the identities of the BJP/SAD assailants to conclude that those individuals could access police resources to track the Applicants. This reasoning is rational, intelligible and justified, and is responsive to the evidence before the decision-maker. There are no reviewable errors warranting judicial intervention.
(2) Agents of persecution
[37] Related to the above argument, the Applicants submit that RAD erred in its characterization of the agents of persecution in two ways. First, the Applicants argue that the agents of persecution are national level politicians, who are motivated and able to use the police to locate the Applicants in Delhi. Where the agents of persecution are state agents, they argue, the case law is clear that an IFA is not an option.
[38] While that may be true in certain cases, the RAD reasonably concluded that such was not the case in this matter. Here, the RAD reasonably found that the Applicants do not specifically know the identities of the people who attacked them on the three incidents in question. The RAD stated:
While not diminishing the impact these attacks had on the Appellants, it was clear from the Appellant’s testimony that he believes the attackers were BJP members simply due to the BJP stickers on their bicycles. He further testified that the calls and threats his family receives are from unknown callers and unknown numbers.
Therefore, the RAD concluded that:
The Appellants testified that these unknown people have threatened to kill them if they ever return, and I do find that the Appellants would be at risk if they returned to Kapurthala particularly if the Principal Appellant resumed his political activities. However, without further evidence as to the identities of these individuals, it is difficult to ascertain where their sphere of influence lies and what means they might have to track the Appellants.
[39] I find these observations to be reasonable. Absent evidence of the actual identities of the BJP-SAD members who attacked the Applicants and their levels of influence, the RAD reasonably found that it could not conclude that the BJP-SAD agents of persecution were state agents who could use the police to locate the Applicants in the IFA.
[40] Second, the Applicants submit that the RAD erred in failing to characterize the police as agents of persecution. This is simply untrue, and appears again to be a result of counsel referring to the wrong RAD decision. The Applicants refer to paragraph 25 of the RAD decision, which they claim states that “the police are not the agents of persecution in this claim and IFA is available to the claimant.”
However, this quote does not correspond with paragraph 25 of the correct RAD decision.
[41] Furthermore, and as noted above, the RAD clearly accepted that the police in this matter were agents of persecution, albeit subsidiary ones to the BJP/SAD members who had targeted them.
VII. CONCLUSION
[42] For the foregoing reasons, this application for judicial review is dismissed. The parties did not propose a question for certification and I agree that none arises.
Email this Content