Docket: IMM-9264-23
Citation: 2025 FC 439
Ottawa, Ontario, March 10, 2025
PRESENT: Mr. Justice Pentney
BETWEEN: |
DEEPAK ARORA MONIKA ARORA JAGDISH ARORA
|
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] Although there are three Applicants listed in the style of cause in this matter, in reality this case only concerns the claim of the Principal Applicant, Deepak Arora [the “PA”
]. As will be explained below, the refugee claims of the Associate Applicants, Monika Arora and Jagdish Arora, were accepted by the Refugee Appeal Division [RAD] and that aspect of the decision is not under review.
[2] The PA seeks judicial review of the RAD’s decision dismissing his appeal from the negative decision of the Refugee Protection Division [RPD]. He claimed asylum in Canada based on his fear of persecution by the police and gang members in his local community in Punjab.
[3] The RAD agreed with the RPD’s finding that the PA had a viable internal flight alternative [IFA] in India, and therefore it dismissed his appeal. The Applicant seeks judicial review of this decision.
[4] For the reasons set out below, this application for judicial review will be dismissed.
I. Background
[5] At the outset, it is important to point out that the PA and Associate Applicants submitted two separate claims, relating to different incidents that occurred at different times.
[6] The Principal Applicant alleges that in 2012, he saw a video of his female classmate being raped by a gang member who is the son of a police officer. He alleges that he started to receive threats after assisting his classmate lodge a police complaint against the gang members. The police did not do anything after the complaint was made. The PA states that he and the classmate were attacked and threatened by the gang members outside the police station. The PA alleges that after his classmate fled the country, the police and the gang came looking for him, accusing him of helping the classmate hide and stating that she was involved in prostitution and drug trafficking.
[7] The PA fled India for the United States in 2013. The Applicants allege that following his departure, the police kept bothering his father (the male Associate Applicant) until the father paid a bribe to stop them. The police also raided the father’s workplace twice to seek the whereabouts of his ex-employee, who they said was affiliated with drug gangs and mafia. The police threatened that they would keep an eye on the father.
[8] In August 2018, the father was brought to the police station and questioned about his ex-employee. The police also searched the Associate Applicants’ home and questioned the mother. After the police discovered that the Associate Applicants had contacted a lawyer concerning their issues with the police, they arrested and tortured the Associate Applicants. They once again inquired about the ex-employee’s whereabouts. The police also took the Associate Applicants’ fingerprints, photos and signatures. After paying bribes to the police, the Associate Applicants were released and told to report to the police station periodically and to bring information about the ex-employee and other gangs. The Associate Applicants thereafter received medical treatment and fled the country. They allege that since leaving, the police have been looking for them because they did not respect the release conditions.
[9] The RPD rejected their claims on January 5, 2023, finding that the Applicants had an IFA in Kolkata. On June 27, 2023, the RAD overturned the RPD’s decision with respect to the Associate Applicants and upheld the RPD’s decision with respect to the PA.
II. Decision Under Review
[10] The RAD found that the RPD failed to consider evidence that supports that the agents of persecution have the means and motivation to pursue the Associate Applicants anywhere in India. The RAD agreed with the Associate Applicants that the RPD erred in not distinguishing between their interactions with the police as opposed to the PA’s contact with the authorities. The RAD considered the Associate Applicants’ evidence that the police took their fingerprints, photos, and signatures and that after they fled, the police continued to look for them because of their failure to comply with the release conditions. The RAD found that contrary to the RPD’s finding, the evidence establishes that it is likely that the police entered information on the Associate Applicants in the Crime and Criminal Tracking Network and Systems database.
[11] The RAD also found that while the RPD was correct in noting that the use of national identification cards to conduct criminal investigations is prohibited under Indian law, the evidence also shows that police corruption is widespread and that police use these cards to create their own databases of blacklisted individuals. The RAD concluded that the Punjab police therefore could pursue the Associate Applicants with little effort. It noted that having found that the Associate Applicants met the first prong of the IFA test, it did not need to consider the second prong.
[12] The RAD concluded that state protection was not available for the Associate Applicants because the agent of persecution was the police. Based on this analysis, the RAD allowed the appeal in respect of the Associate Applicants.
[13] Turning to the claim of the PA, the RAD focused its analysis on the IFA question because that was the determinative issue for the RPD and it was the focus of the appeal submissions. The RAD reviewed the RPD’s findings that the PA’s interactions with the police were limited to his status as a complainant, noting that unlike the Associate Applicants, the PA was not detained, arrested or charged.
[14] The RAD reviewed the evidence about police tracking of individuals through the tenant’s registration system and concluded that this was not systematic or effective. It also found that the evidence showed that inter-state police communication was limited, and did not support the conclusion that the local police would have the means or motivation to pursue the PA in Kolkata. Noting that Kolkata has a population of over 15 million and is located 1,800 kilometers away from Punjab, the RAD found that it was a viable IFA for the PA.
[15] The RAD agreed with the RPD’s conclusion that the PA could reasonably locate to Kolkata without facing undue hardship since neither education, religion or language would pose a barrier to him. The RAD noted that the PA is educated (he completed high school) and had studied towards a Bachelor of Commerce degree. He is Hindu, and thus a member of India’s predominant religion, and speaks Hindi, English and Punjabi, all of which are spoken in Kolkata. In light of this, the RAD found that the PA could relocate to Kolkata without jeopardizing his life or safety.
[16] Based on this analysis, the RAD dismissed the PA’s appeal. The Applicants seek judicial review of this decision.
III. Issues and Standard of Review
[17] The only issue in this case is whether the RAD’s finding that the PA had a viable IFA in Kolkata is unreasonable.
[18] This question is assessed under the framework for reasonableness review set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], and confirmed in Mason v Canada (Citizenship and Immigration), 2023 SCC 21.
[19] In summary, under the Vavilov framework, a reviewing court is to review the reasons given by the administrative decision maker and determine whether the decision is based on an internally coherent chain of reasoning and is justified in light of the relevant legal and factual constraints (Vavilov at para 85). The onus is on the Applicants to demonstrate that “any shortcomings or flaws … are sufficiently central or significant to render the decision unreasonable”
(Vavilov at para 100). Absent exceptional circumstances, reviewing courts must not interfere with the decision-maker’s factual findings and cannot reweigh and reassess evidence considered by the decision-maker (Vavilov at para 125).
IV. Analysis
[20] The test to determine whether a claimant has a viable IFA has two prongs: Rasaratnam v Canada (Minister of Employment and Immigration) (C.A.), 1991 CanLII 13517 (FCA) at 710–711; Thirunavukkarasu v Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589 at 592. The first branch considers whether the person would be subject to a serious possibility of persecution or a risk of harm, under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. An important aspect of this is whether the agent(s) of persecution have both the means and motivation to locate the claimant in the proposed IFA.
[21] The second branch of the IFA test asks whether it would be reasonable, in all the circumstances, to expect the claimant to seek refuge in the IFA location. The test is difficult to meet; the claimant must show that moving to the IFA would expose them to a risk to their life or security.
[22] Once an IFA is proposed, the onus is on the claimant to prove that it is not a viable place of refuge for them.
[23] In this case, the Applicants submit that the RAD ignored and misconstrued evidence relating to the means and motivation of the agents of persecution. They submit that the RAD failed to consider that the police have informers and technology to find the PA and overlooked evidence and events that occurred before and after he fled India.
[24] The Applicants argue that the RAD did not raise any credibility issues about the Principal Applicant’s supporting evidence and testimony. They say that the RAD erred in finding that the police were motivated to find the Associate Applicants, but not the PA, who was the cause of their harassment.
[25] The Applicants also contend that the RAD failed to consider that the Indian police commonly locate a person of interest through family and friends. They argue that the IFA is unsafe for the PA because the only way he would not be located is if he conceals his whereabouts from his family and friends. The Applicants cite Ali v Canada (Citizenship and Immigration), 2020 FC 93 [Ali] and AB v Canada (Citizenship and Immigration), 2020 FC 915 [AB] for the proposition that it would not be reasonable to require the PA to hide and cut off communications with family and friends.
[26] The Applicants submit that the RPD and RAD did not provide a reasonable explanation for why the agents of persecution lacked the motivation to pursue the PA, other than implying that the evidence about the threats was insufficient. They also posit that the concept of the IFA is “antiquated”
and that the RAD failed to consider that in today’s age, basic internet search tools and social media platforms can be used to locate people.
[27] In my view, the Applicants do not raise a reviewable error in the RAD’s assessment of the first prong of the IFA test. The RAD’s conclusion rested on an insufficiency of evidence. It found that the Applicants did not establish that there was a serious possibility that the PA will face persecution in the IFA location since there was insufficient evidence that the Indian police would be motivated or able to track him in the IFA location.
[28] The Applicants’ reliance on Ali and AB is misplaced as the Court’s observations in those cases rested on each case’s particular facts. In Ali, the Court found that the RAD unreasonably concluded that there was no evidence that the police had an ongoing interest in the applicants, despite the police threatening the applicants (after they fled to Canada) that they would be killed if they returned to Pakistan. Given this continued interest, the Court found that the RAD could not have required family and friends to conceal the applicants’ return and whereabouts if they were directly asked. Similarly in AB, the Court found that the RAD ignored evidence of the agent of persecution’s ongoing, persistent search for the applicants and their continued targeting of family members for information on the applicants’ whereabouts.
[29] In contrast, in the present case, the Applicants failed to establish any continued effort by the police to search for the PA, including by targeting his family or friends. In the absence of a continued interest or effort, the RAD reasonably did not analyze whether the police can ascertain the PA’s whereabouts through his family and friends.
[30] Additionally, no reviewable error arises from the RAD’s failure to consider the use of the internet to locate the PA. Evidence of Indian police’s use of the internet to locate persons of interest (or related evidence) was not presented before either the RPD or the RAD. Moreover, the Applicants did not raise this issue in their appeal submissions before the RAD. It is well established that arguments not before the RAD cannot be raised on judicial review: Kumar v Canada (Citizenship and Immigration), 2023 FC 839 at para 24.
[31] Overall, the RAD’s conclusion that the police are not motivated or able to locate the PA was based on multiple findings, all supported by the evidentiary record: (i) the Punjab police did not arrest, detain, or charge the PA (unlike the Associate Applicants); (ii) the PA’s interactions with the police were limited to his role as a complainant; (iii) the evidence demonstrates that the police are not able to verify the identity of all those who rent property; (iv) the evidence demonstrates that the police do not follow up with police stations in other states, and that tenant verification is only for “psychological satisfaction;”
(v) police departments in each Indian state appear to be isolated, and there is a lack of coordination between the police across states; and (vi) Kolkata has a dense population and is located far away from Punjab.
[32] Ultimately, there was no evidence to show that the PA was recorded in any system such that the police would have the means to locate him in the IFA location. As a result, there was insufficient evidence to demonstrate a serious possibility that he will be persecuted in Kolkata: Kumar v Canada (Citizenship and Immigration), 2024 FC 288 at para 37. This, coupled with the fact that the PA could not establish the police’s continuing interest in him beyond being a complainant, supports the RAD’s conclusion of a lack of motive and means to pursue him.
[33] Here, the RAD reasonably considered the Applicants’ evidence and determined that it was insufficient to prove, on a balance of probabilities, that the Punjab police would be motivated or able to track the PA in Kolkata. In effect, the Applicants are asking the Court to reassess and reweigh evidence already weighed and assessed by the RAD, which is not the role of a reviewing court: Vavilov at para 125.
[34] The RAD’s assessment of the second prong of the IFA test was reasonable. The Applicants’ arguments regarding the RAD’s second prong analysis have no evidentiary basis and, as such, raise no reviewable error on the part of the RAD. Moreover, the Applicants’ assertion that the RPD and the RAD failed to consider the conditions in New Delhi and Mumbai does not undermine their conclusions on a viable IFA in Kolkata. In evaluating the PA’s circumstances against the conditions in Kolkata, and establishing that Kolkata was a viable IFA, the RAD did not need to consider the viability of other potential IFA locations.
V. Conclusion
[35] For these reasons, I reject the Applicants’ argument that the RAD’s decision is unreasonable. The application for judicial review is dismissed.
[36] There is no question of general importance for certification.
[37] One final procedural point. The style of cause is amended, on consent of the parties and with immediate effect, to name the Minister of Citizenship and Immigration as the Respondent.
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