Docket: IMM-10648-23
Citation: 2025 FC 459
Ottawa, Ontario, March 12, 2025
PRESENT: The Honourable Mr. Justice Régimbald
BETWEEN: |
SUKHPREET SINGH |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Refugee Appeal Division [RAD] dismissed the Applicant’s refugee claim because he had an internal flight alternative [IFA]. On judicial review, he alleges that the RAD’s decision was unreasonable. I disagree. For the following reasons, this application is dismissed.
II. Context
[2] The Applicant is an Indian citizen of Sikh faith, who resided in Punjab. He claims to be a firm believer an independent Khalistan, and to have been persecuted by the Punjab police for his political beliefs.
[3] In 2015, the Applicant was stopped and questioned by the police after participating in a pro-Sikh protest. He was also questioned by them in November 2015, January 2016, June 2016, and November 2018, about his alleged involvement with antinational elements, drug trafficking, and various other criminal activities. The Applicant alleges that he was arrested twice, in October 2018 and in January 2019, and was both times released upon payment of a bribe by his family. From November 2016 to September 2018, his home was also raided.
[4] The Applicant came to Canada in July 2019. More than a year later, in September 2020, he claimed refugee protection. He claims that the police still ask his family about his whereabouts.
[5] The Refugee Protection Division determined that he was neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], because he had a viable IFA. On appeal, the RAD reached the same conclusion. The Applicant now challenges that decision on judicial review.
III. Issues and Standard of Review
[6] The sole issue is whether the decision under review is reasonable.
[7] The standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 25 [Vavilov]; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at paras 7, 39–44 [Mason]). To avoid judicial intervention, the decision must bear the hallmarks of reasonableness—justification, transparency, and intelligibility (Vavilov at para 99; Mason at para 59). A decision may be unreasonable if the decision maker misapprehended the evidence before it (Vavilov at paras 125–126; Mason at para 73). Reasonableness review is not a “rubber-stamping”
exercise, it is a robust form of review (Vavilov at para 13; Mason at para 63). The party challenging the decision bears the onus of demonstrating that the decision is unreasonable (Vavilov at para 100).
IV. Analysis
[8] A two-pronged test determines the viability of an IFA (Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 FC 706 at 711, 1991 CanLII 13517 (FCA); Thirunavukkarasu v Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 1993 CanLII 3011 (FCA) at 592). The first prong considers whether a claimant would be subject to a serious possibility of persecution under section 96 or to a risk of harm under subsection 97(1) of the IRPA in the proposed IFA. Under this prong, one considers the agent of persecution’s “means”
and “motivation”
to locate the claimant in the proposed IFA (Singh v Canada (Citizenship and Immigration), 2023 FC 996 at para 8 [Singh]; Adeleye v Canada (Citizenship and Immigration), 2022 FC 81 at para 21 [Adeleye]). The second prong assesses whether it would be reasonable, in all the circumstances, to expect the claimant to seek safety in the IFA (Singh at para 10; Olusola v Canada (Citizenship and Immigration), 2020 FC 799 at para 8 [Olusola]). The threshold to establish unreasonableness is very high, requiring “nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area”
(Ranganathan v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164, 2000 CanLII 16789 (FCA) at para 15). Once an IFA is proposed, the onus is on the claimant to prove that they do not have a viable IFA (Adeleye at para 20; Olusola at para 9).
[9] The Applicant submits that the RAD’s decision is unreasonable with respect to the first prong of the IFA test, raising four arguments to this effect. The Applicant contends that the RAD erred by (1) discounting his prior support of an independent Khalistan, (2) expecting his family to deliberately mislead authorities as to his whereabouts, (3) departing from the conclusions reached in an analogous RAD case, and by (4) finding that the Punjab police would not use India’s Crime and Criminal Tracking Network and Systems [CCTNS] as a means to track him down in the proposed IFA. I will address each argument in turn.
[10] With respect to the first argument, the RAD concluded that the Applicant had “failed to adduce sufficient credible evidence to establish that he is a genuine supporter of Khalistan, that he has any kind of public profile as an advocate or active supporter of the Khalistan movement, nor […] that he has provided sufficient evidence to establish that he would have any kind of public profile as an active Khalistan supporter if he were to return to India”
(RAD Reasons at para 50). The Applicant argues, however, that the RAD erred in its finding that he “never alleged that he was a public supporter of an independent Khalistan in Punjab”
(RAD Reasons at para 48), as he explicitly noted in his Basis of Claim that he was a “firm believer of self-determination for the Sikhs”
and that his problems with the Punjab police had begun after participating in a pro-Sikh protest (Certified Tribunal Record at 75).
[11] While erring on an evidentiary issue can undermine the reasonableness of a decision under review (Vavilov at para 126), the RAD’s conclusion on the significance of the Applicant’s pro-Khalistan views is reasonable in this case when read “holistically and contextually”
(Vavilov at para 97). The question is not whether the Applicant has genuinely supported the existence of an independent Khalistan, but whether the Applicant established a political profile that would put him at risk in a proposed IFA. I see no reason to intervene with the RAD’s finding in this regard. The RAD carefully reviewed the evidence submitted before it, noting that there was no evidence of the Applicant “participating in any rallies or protests, or other public events relating to the Khalistan movement”
(RAD Reasons at para 46). It further noted that the Applicant had made no effort to participate in the Khalistan independence vote in Canada (RAD Reasons at para 46). The Punjab police did not charge him with any offence nor issue any First Information Report to that effect (RAD Reasons at para 47). All these factors can be weighed by the RAD in its assessment of the first prong, and it was certainly open to the RAD to conclude that that the Applicant lacked the kind of political profile that would motivate the Punjab police to target him or search for him in a proposed IFA location.
[12] With respect to the second argument, the Applicant relies on Bhuiyan v Canada (Citizenship and Immigration), 2023 FC 410 [Bhuiyan] and Ali v Canada (Citizenship and Immigration), 2020 FC 93 [Ali] in arguing that relatives of refugee claimants cannot be reasonably expected to place their own lives in danger by either denying knowledge of the claimants’ whereabouts or deliberately misleading the agents of persecution.
[13] The Applicant’s reliance on Bhuiyan and Ali is misguided. As this Court has now repeatedly held, the holdings in these two cases are fact-specific and cannot be generalized to every IFA situation. In Bhuiyan and Ali, there was evidence that the applicants’ relatives would be in danger 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 the acquired information. In this case, the fact that the Punjab police is willing to visit the Applicant’s family does not demonstrate that they would be motivated to and capable of locating him outside of the state of Punjab, which is what the Applicant has to demonstrate to meet the IFA test. The fact that an agent of persecution acquires knowledge of a claimant’s whereabouts does not establish a risk if the agent is unable or unwilling to act on it (Singh v Canada (Citizenship and Immigration), 2023 FC 1211 at paras 32–37; Bassi v Canada (Citizenship and Immigration), 2024 FC 910 at para 26 [Bassi]; Nijjar v Canada (Citizenship and Immigration), 2024 FC 1501 at paras 32–34; Chatrath v Canada (Citizenship and Immigration), 2024 FC 958 at paras 26-29 [Chatrath]; Singh v Canada (Citizenship and Immigration), 2024 FC 1290 at para 22; Kodom v Canada (Citizenship and Immigration), 2023 FC 305 at para 13; Aulakh v Canada (Citizenship and Immigration), 2023 FC 1176 at para 26; Singh v Canada (Citizenship and Immigration), 2023 FC 1151 at para 17).
[14] With respect to the third argument, the Applicant suggests that the RAD erred by failing to reach the same conclusion as that reached in a prior RAD decision with similar facts. Although he concedes that the RAD operates on a case-by-case basis, he claims that an unjustified departure from a previous decision is unreasonable.
[15] I disagree. Although the RAD should be concerned with the “general consistency”
of its decisions (Vavilov at para 129), the RAD’s “justificatory burden of explaining [a] departure in its reasons”
applies to departures from “longstanding practices or established internal authority”
(Vavilov at para 131). Administrative decision makers are not bound by stare decisis (Vavilov at para 129). A single decision does not make for a “longstanding practice”
or an “established authority.”
The case-by-case nature of the RAD’s administrative mandate is such that it is entitled to weigh and assess the relevant evidence independently of its prior decisions. It made such an independent assessment here, and the fact that it came to a different outcome in a different case does not warrant this Court’s intervention.
[16] Finally, the Applicant contends that the RAD erred in concluding that the Punjab police would not have the means to locate him, because the police would be able to learn of his whereabouts through the tenant verification system and the CCTNS.
[17] The Applicant’s final argument must fail. This Court is well acquainted with the CCTNS and its effects on the lives of those who fear persecution in India. In this case, as in many others, the Court refers to the evidence that the CCTNS does not contain information on extrajudicial arrests, that there is little interstate police communications (with the exception of major crimes), and that the police is prohibited by law to use biometric data from the tenant verification system for criminal investigations (see for example Chatrath at para 32; Bassi at paras 23–24; Sandhu v Canada (Citizenship and Immigration), 2024 FC 262 at paras 17, 21–22; Singh v Canada (Citizenship and Immigration), 2023 FC 1758 at paras 30–31). The Applicant is essentially asking the Court to reweigh the evidence in order to arrive at a different conclusion regarding the Punjab police’s capacity to locate him in a proposed IFA. This is something the Court will not do on judicial review absent exceptional circumstances, which do not arise here (Vavilov at para 125).
V. Conclusion
[18] For the reasons set out above, this application for judicial review is dismissed. There is no question to certify.
[19] I thank counsel for their detailed and able submissions.
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