Docket: IMM-4831-24
Citation: 2025 FC 1960
Ottawa, Ontario, December 12, 2025
PRESENT: Mr. Justice McHaffie
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BETWEEN: |
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KAMAL GUPTA |
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Applicant |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Kamal Gupta’s refugee claim was refused on the basis that he could safely and reasonably seek refuge within India, that is, that he had an “internal flight alternative”
[IFA] in his country of citizenship. On this application for judicial review, Mr. Gupta asks the Court to set aside that finding. He contends that the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada [IRB] breached its duty of procedural fairness by raising new issues, and that its decision on the merits was unreasonable in light of the evidence.
[2] As set out in greater detail below, I conclude that Mr. Gupta has not established that the procedure leading to the RAD’s decision was unfair, or that the RAD’s decision was unreasonable. With respect to the procedural fairness issue, I conclude that despite using some imprecise language, the RAD did not make new credibility findings requiring notice to Mr. Gupta. Rather, it assessed whether the evidence before it was sufficient to establish that the agents of persecution identified by Mr. Gupta, namely local police in the state of Haryana and the National Intelligence Agency [NIA], were motivated to locate him in one of the IFA cities. This was not a new issue that required further notice to Mr. Gupta. With respect to the merits of the decision, Mr. Gupta’s arguments do not convince me that the RAD fundamentally misapprehended the evidence or engaged in speculation regarding the conduct of an agent of persecution.
[3] As Mr. Gupta has not met his onus to establish that the RAD’s decision was unfair or unreasonable, this application for judicial review must be dismissed.
II. Issues and Standards of Review
[4] Mr. Gupta raises the following issues on this application:
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Did the RAD breach the duty of procedural fairness by raising new issues on appeal without giving Mr. Gupta notice and an opportunity to respond?
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Was the RAD’s decision unreasonable, by virtue of having (1) misapprehended the evidence as to the agents of persecution; (2) engaged in unreasonable speculation regarding the actions of the agents of persecution; and/or (3) misapprehended Mr. Gupta’s status as a “person of interest”
?
[5] With respect to the first issue, the question for this Court is whether the process was fair having regard to all of the circumstances and, in particular, whether the parties knew the case they had to meet and had a full and fair chance to respond: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54–56; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35. Whether described as engaging a correctness standard of review or no standard of review at all, the ultimate question is whether or not the duty of procedural fairness has been met.
[6] The second issue pertains to the merits of the RAD’s decision and is to be reviewed on the reasonableness standard: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25; Momi v Canada (Citizenship and Immigration), 2023 FC 1714 at para 19. When applying this standard, the Court reviews the decision made and the reasons given by the decision maker in light of the record and the administrative context to determine whether the decision is internally coherent and is transparent, intelligible, and justified in light of the relevant factual and legal constraints: Vavilov at paras 15, 82–101, 125–128; Momi at paras 20–21. To succeed in demonstrating that a decision is unreasonable, a party challenging a decision must show that there are sufficiently serious and central shortcomings in the decision that it cannot be said to exhibit the requisite degree of justification, intelligibility, and transparency: Vavilov at para 100.
III. Analysis
A. The RAD did not breach the duty of procedural fairness
[7] Mr. Gupta argues the RAD raised new credibility issues that the Refugee Protection Division [RPD] did not address, and that the duty of procedural fairness required the RAD to notify him of these issues and give him a chance to respond. In particular, he refers to the RAD’s findings regarding (a) the evidence of ongoing motivation by the agents of persecution; and (b) psychological reports addressing Mr. Gupta’s mental health. Assessing these arguments requires consideration of Mr. Gupta’s claim and the manner in which the RPD and the RAD addressed the IFA analysis.
(1) Mr. Gupta’s refugee claim
[8] Mr. Gupta worked as a seaman on commercial tankers for many years. In the summer of 2019, he was at home in Haryana for a vacation when he was visited by members of the NIA, who took him to a detention centre. The NIA officers accused him of smuggling drugs and gold. They tortured him to try to elicit a confession before releasing him the next day. When Mr. Gupta tried to go to Delhi to consult a lawyer, he was pulled over by local police, who arrested him and tried to get him to admit to smuggling. He was released after two days on payment of a bribe and on the pretext that Mr. Gupta would act as an informant for them with respect to smuggling operations. Fearing for his safety, he fled to Canada.
[9] After Mr. Gupta left India, the police started to harass his family, asking where he was, and demanding that his family present him at the police station. The police alleged he was involved with militants and anti-national elements. They also arrested and beat Mr. Gupta’s brother, accusing him of helping anti-national elements, while the NIA interrogated him about Mr. Gupta’s whereabouts.
[10] In addition to his own testimony, Mr. Gupta presented affidavits from a neighbour, a friend, and a relative; a letter from his wife; photographs and a medical report regarding his injuries; and medical reports and records from Canada, including psychological reports with a diagnosis of post-traumatic stress disorder [PTSD]. He also provided a variety of documentation regarding conditions in India, including information regarding the ability of police to locate individuals.
(2) The RPD’s decision
[11] The RPD rejected Mr. Gupta’s refugee claim. It concluded that his allegations did not have a nexus to a Convention ground, so he was not a Convention refugee under section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. It therefore limited its assessment to whether Mr. Gupta was a person in need of protection pursuant to section 97 of the IRPA, as someone facing a danger of torture or a risk to life or to cruel and unusual treatment or punishment.
[12] The RPD referred to “considerable credibility concerns”
regarding Mr. Gupta’s claim, citing in particular his delay in leaving India; his delay in claiming protection in Canada; the considerable substantive changes to his claims in an update to his narrative; and his wife’s return to India despite his allegations of serious risk of harm. However, the RPD found it unnecessary to make any adverse credibility findings given its conclusion that Mr. Gupta had a viable IFA within India.
[13] In assessing the availability of an IFA, the RPD applied the accepted two-prong test for an IFA, namely (1) whether Mr. Gupta faced a serious possibility of persecution or a risk described in section 97 in the IFA location; and (2) if not, whether it would be reasonable in all the circumstances for Mr. Gupta to seek refuge in the IFA location: see Thirunavukkarasu v Canada (Minister of Employment and Immigration), 1993 CanLII 3011, [1994] 1 FC 589 (CA) at pp 595–597; Rasaratnam v Canada (Minister of Employment and Immigration), 1991 CanLII 13517, [1992] 1 FC 706 (CA) at pp 710–711; Olusola v Canada (Citizenship and Immigration), 2020 FC 799 at paras 7–9.
[14] On the first prong, the RPD did not accept that Mr. Gupta remained of interest to Indian authorities. It found that if he had been truly suspected of drug smuggling or another serious offence, he would not have been released after being detained prior to his departure and would not have been able to exit India on his own passport. The RPD also noted that there was no evidence that an arrest warrant or a first information report [FIR] had been issued against Mr. Gupta. It concluded that Mr. Gupta was not and is not wanted by authorities in India for any reason. This being so, the RPD found that he had not established on a balance of probabilities that Indian intelligence, police or any other authorities had the motivation to seek him out in the IFA cities to cause him harm. The RPD also noted the difficulty in tracking individuals within India, even if authorities did have a continued interest in him.
[15] On the second prong of the IFA analysis, the RPD found that Mr. Gupta had not established that it would be unreasonable for him to seek refuge in the identified IFA cities, given the high threshold established in the caselaw for finding an IFA unreasonable: Thirunavukkarasu at pp 597–599; Ranganathan v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA) at paras 14–15.
(3) The RAD’s decision
[16] On appeal to the RAD, Mr. Gupta argued the RPD should not have conducted an IFA analysis at all, since the agent of persecution was the state. He relied on this Court’s pronouncement in Buyuksahin that “an IFA analysis is appropriate only when the agent of persecution is not the state”
: Buyuksahin v Canada (Citizenship and Immigration), 2015 FC 772 at para 29. He also raised a number of alleged errors in the RPD’s analysis of the evidence going to each prong of the IFA test.
[17] Mr. Gupta asked the RAD to substitute its own determination for that of the RPD, and find he was a Convention refugee or a person in need of protection. In making these latter submissions, Mr. Gupta briefly addressed the credibility of his own evidence and the corroborative evidence he filed. He also argued that since he had been accused of having ties to militants, his claim had a nexus to a Convention ground, such that it should be assessed under both sections 96 and 97 of the IRPA.
[18] In a decision dated February 27, 2024, the RAD dismissed Mr. Gupta’s appeal.
[19] The RAD accepted Mr. Gupta’s argument that there was a nexus to the Convention ground of political opinion given that the amendments to his narrative raised allegations that the police accused him of involvement with militants and anti-national elements. It therefore assessed the claim under both sections 96 and 97 of the IRPA. Nonetheless, the RAD, like the RPD, concluded that Mr. Gupta had a viable IFA within India, and that this was determinative of his refugee claim.
[20] The RAD found that the RPD was correct to undertake an IFA analysis. It referred to this Court’s decision in Vartia, where the applicants had similarly cited Buyuksahin in arguing that an IFA analysis was inappropriate when the agent of persecution is the state of India: Vartia v Canada (Citizenship and Immigration), 2023 FC 1426 at paras 8–18; Buyuksahin at para 29. In Vartia, Justice Rochester, then of this Court, reviewed the jurisprudence and concluded that an IFA analysis remained appropriate in respect of state authorities in India. She observed that Buyuksahin and similar cases addressed situations where the persecution was a country-wide issue, whereas state police in India have frequently been recognized as not having national reach: Vartia at paras 11–18.
[21] The RAD noted that in the case before it, there was no objective evidence to indicate that the Haryana police, who were alleged to have persecuted Mr. Gupta, operate nationally. As for the NIA, the RAD concluded that the evidence did not indicate that they had searched for Mr. Gupta outside his area. Citing this Court’s decision in Malik Yamah, the RAD found that even if the police in question were state actors, the onus remained on Mr. Gupta to establish they would have the means and motivation to track him nationally: Malik Yamah v Canada (Citizenship and Immigration), 2021 FC 406 at paras 14–15.
[22] Turning to the first prong of the IFA test, the RAD found there was insufficient evidence to establish that either the NIA or the local police believed Mr. Gupta to be a supporter of anti-national terrorism, or that he was being sought for a serious crime that would motivate police to pursue him throughout India. The RAD referred to Mr. Gupta’s release without charges after his brief detention on two occasions, and the absence of any formal criminal justice action such as an arrest warrant or an FIR.
[23] The RAD considered the evidence with respect to ongoing visits by the police, including the targeting of family and neighbours, which Mr. Gupta had relied on as showing ongoing motivation. The RAD found itself “unable to place much weight”
on this evidence as showing a forward-looking interest and motivation to seek Mr. Gupta in the IFA cities, since it found the evidence vague, with few specific details. The RAD considered in particular the allegation that Mr. Gupta’s brother had been arrested and interrogated about Mr. Gupta. After reviewing the amendment to Mr. Gupta’s narrative and his testimony at the hearing, the RAD noted that Mr. Gupta himself had pointed to other motives for the police’s interest in his brother. It therefore found that “it is not credibly established that the police interest in [Mr. Gupta’s] brother was due solely to reasons related to their interest in [Mr. Gupta].”
[24] The RAD concluded that people who know Mr. Gupta in India would not be required to put themselves in harm’s way by lying about or concealing his location in an IFA city. It found that, overall, there was “insufficient credible evidence”
that Mr. Gupta’s family or friends had been harmed, threatened, or compelled to provide information about him.
[25] The RAD accepted that motivated police could track “persons of interest”
through various means. However, it found that Mr. Gupta had not established either that he was a “person of interest”
for reasons related to militancy or that he had been charged with a major crime such as smuggling. The RAD again referred to the lack of any official action regarding the smuggling accusation. It also noted that police had not initiated any formal steps against him either in connection with the accusations of militancy, or for having violated the reporting conditions imposed on him after the incidents in 2019 since being in Canada. The RAD concluded that the police releasing Mr. Gupta and not taking any formal steps against him indicated that he was arrested extrajudicially, and that the police did not consider him a person of interest in relation to a crime.
[26] Overall, the RAD found that the agents of harm were not motivated to pursue Mr. Gupta to the identified IFA cities, and that he would therefore not face a reasonable chance of persecution or a section 97 risk in those cities.
(4) The obligation to provide notice of “new issues”
[27] Unlike many appellate bodies, the RAD is tasked with undertaking its own analysis of the record to determine whether the RPD erred in the manner alleged by the appellant: IRPA, ss 110(1), (3), 111; Huruglica v Canada (Citizenship and Immigration), 2016 FCA 93 at para 103. In doing so, the RAD generally applies a correctness standard, even on issues of fact, and is not bound by or limited to the RPD’s findings: Huruglica at paras 70–74, 103, 106; Singh v Canada (Citizenship and Immigration), 2024 FC 291 at para 17. The only exception to this general rule—where the RPD conducting the hearing gave it a “meaningful advantage”
in making its findings—did not apply in this case: Huruglica at para 70.
[28] In performing its functions, the RAD may conclude that there is an issue that needs to be determined that has not been addressed by the parties or the RPD. Like other appellate bodies, including courts, it is entitled to do so, provided the parties are notified of the issue and given the opportunity to address it: Ching v Canada (Citizenship and Immigration), 2015 FC 725 at paras 65–76, citing R v Mian, 2014 SCC 54 at paras 30, 41, 50–52, and Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 at paras 23–28; Savit v Canada (Citizenship and Immigration), 2023 FC 194 at paras 11–18; Singh at para 17.
[29] In Mian, the Supreme Court of Canada described a “new issue”
requiring notification of the parties as one that (a) raises a new basis for potentially finding error in the decision beyond the grounds of appeal as framed by the parties; and (b) is legally and factually distinct from the grounds of appeal and cannot reasonably be said to stem from the issues as framed by the parties: Mian at para 30; Ching at para 67; Savit at para 13.
[30] Applying these principles, this Court has held that it is unfair for the RAD to make new adverse credibility findings against an applicant, without notifying the applicant and giving an opportunity to address the question: Savit at paras 15–16; Nooristani v Canada (Citizenship and Immigration), 2024 FC 99 at para 17; Canada (Citizenship and Immigration) v Alazar, 2021 FC 637 at paras 75–78; Collins v Canada (Citizenship and Immigration), 2024 FC 665 at paras 20–27. At the same time, the Court has recognized that where the issues raised and considered by the RAD are linked to the parties’ submissions or the RPD’s findings, the RAD is entitled to independently assess the evidence or make credibility findings: Zhang v Canada (Citizenship and Immigration), 2019 FC 870 at para 13; Collins at para 21.
[31] The RAD may also make additional credibility findings arising from the record where an applicant’s credibility was already in question before the RPD, or where the applicant has themself drawn attention to a document: Oluwaseyi Adeoye v Canada (Citizenship and Immigration), 2018 FC 246 at paras 11–15; Savit at paras 17–18. On this approach, an adverse credibility finding with respect to a document considered by the RPD may not be a new issue, but simply a case of the RAD coming to “a more definitive conclusion”
than the RPD on that issue: Zhang at para 14; Akcay v Canada (Citizenship and Immigration), 2020 FC 950 at paras 54–59.
(5) The RAD was not obliged to give notice
[32] As noted above, Mr. Gupta claims that the RAD raised new credibility issues regarding (a) the evidence of ongoing motivation on the part of the agents of persecution; and (b) psychological reports about Mr. Gupta’s mental health. I will address each in turn.
(a) Evidence of ongoing motivation
[33] Mr. Gupta argues the RAD made adverse credibility findings regarding his testimony and supporting evidence describing police targeting of his brother and other family members. He claims that the RAD’s characterization of his testimony on these issues as “vague”
and its references to “insufficient credible evidence”
indicate that the RAD made credibility findings not made by the RPD. Mr. Gupta asserts this evidence was central to his claim since it addressed the ongoing interest of the agents of persecution, and thus, their motivation to pursue him to the IFA locations. He therefore argues it should not have been the subject of new credibility findings without notice.
[34] I conclude that the RAD was not required to give notice to Mr. Gupta before making its findings.
[35] Although the RAD does refer to “insufficient credible evidence,”
the RAD’s reasons indicate that its conclusion was based on the evidence being insufficient to establish that the police had an ongoing interest, rather than on the credibility of Mr. Gupta’s evidence. The RAD found that both Mr. Gupta’s evidence regarding these incidents and the supporting affidavits and letters he filed were vague, with “minimal specific details in terms of dates and specific police actions taken.”
This included a lack of details as to how the raids and the incidents of harassment transpired or the reasons for them; the lack of allegations that Mr. Gupta’s spouse had experienced any harassment for reasons related to him since January 2022; the absence of detail in an affidavit from a neighbour and in Mr. Gupta’s testimony; and Mr. Gupta’s testimony regarding the reasons his wife moved cities. In this discussion, the RAD appears to accept the evidence as far as it goes, but notes that it does not provide sufficient detail to draw any conclusions from it.
[36] Mr. Gupta is right that the vagueness of evidence may be a ground on which to question its credibility: Mosavat v Canada (Citizenship and Immigration), 2011 FC 647 at para 13. However, it may also simply go to the sufficiency of the evidence, as vague evidence may be insufficient to establish on a balance of probabilities that an event occurred, even without questioning its credibility: Adeleye v Canada (Citizenship and Immigration), 2020 FC 640 at paras 10–13; Nnabuike Ozomma v Canada (Citizenship and Immigration), 2012 FC 1167 at paras 55–58; Ibrahim v Canada (Citizenship and Immigration), 2022 FC 1424 at paras 11–13. The RAD’s reasons indicate that its findings were directed at the sufficiency of the evidence rather than its credibility.
[37] In the present case, the RAD found that the evidence put forward to show ongoing interest by the police was too vague to demonstrate that interest. This was not a new issue, as the question of whether Mr. Gupta had filed sufficient evidence to demonstrate the agents of persecution’s ongoing interest in him to the extent that they would be motivated to pursue him to the IFA cities was central to the RPD’s reasons. The RPD found that Mr. Gupta had not shown that he was of ongoing interest to Indian authorities despite the evidence regarding harassment of his family and the arrest of his brother. The duty of procedural fairness did not require the RAD to give notice and provide a further opportunity to Mr. Gupta to address this question before making its conclusions.
[38] Similarly, in discussing the arrest of Mr. Gupta’s brother, the RAD appears to have accepted Mr. Gupta’s statement that the police were interested in his brother because they believed his brother had helped anti-national elements. While the RAD did find that it was “not credibly established”
that police interest in the brother was “due solely to reasons related to”
Mr. Gupta, this conclusion was based on the RAD’s acceptance of Mr. Gupta’s narrative rather than a general adverse credibility finding.
[39] I reach this conclusion in part because the RAD expressly stated that it was not making a credibility finding in respect of Mr. Gupta’s evidence regarding his brother. The RAD noted there was no evidence from Mr. Gupta’s brother to support the assertions regarding his arrest and mistreatment, but underscored that it made “no credibility finding.”
While the particular words used by the RAD are not determinative, it appears that the RAD directly considered whether a credibility finding ought to be drawn and concluded that it should not. In this case, the nature of the RAD’s analysis of the evidence supports its assertion that it was not making a credibility finding, but rather concluding that the evidence as presented was insufficient to establish the ongoing interest of the police.
[40] Mr. Gupta makes a related argument based on the RAD’s observation that he had not established that his brother’s arrest was linked solely to the police’s interest in him. He contends that it does not matter whether his brother was arrested solely due to him; what matters is that the questioning showed that the authorities, and in particular, the NIA, remained interested in him. However, the RAD’s statement must be viewed in context. The RAD was addressing Mr. Gupta’s own evidence that his brother had become involved in the situation because police were specifically looking for Mr. Gupta, and that the “only problems”
his brother had were because of Mr. Gupta. Given Mr. Gupta’s evidence, the RAD’s focus on whether the evidence did establish that his brother was arrested solely because of him was understandable and raises no issues of either procedural fairness or reasonableness.
(b) Psychological reports
[41] The RAD did make a credibility finding regarding an aspect of the two psychological reports Mr. Gupta filed, dated respectively in February and September 2023. The RAD noted that the two reports were identical but for a few additions at the end of the September 2023 report. Although the September 2023 report says that it is based on both the interaction with Mr. Gupta that led to the February 2023 report and a follow-up assessment in September, the report does not describe what occurred in the follow-up assessment. The RAD also noted that the September report described an increase in intensity of symptoms during the follow-up assessment, without any reference to such intensity of symptoms anywhere else in the report. The RAD therefore had concerns about the validity and reliability of the reports and put less weight on them.
[42] The RAD further referred to a new recommendation added to the September report, recommending that Mr. Gupta not be deported, owing to the difficulty and cost of accessing PTSD therapy in India. The RAD was uncertain why this recommendation had been added in September, given that the majority of the report was simply a duplication of the February 2023 report, with no indication of how the follow-up assessment was incorporated into the September report. It also found that what evidence or expertise the psychologist was relying on in making the recommendation was unclear. This caused the RAD to have concerns about the validity and reliability of the psychological evidence and the credibility of the additions made to the September 2023 report. It therefore gave no weight to the psychologist’s conclusions.
[43] Mr. Gupta again argues that this finding amounted to a “new issue”
requiring notice, although counsel did not strenuously pursue the argument in oral submissions. In my view, this argument cannot be sustained as the RAD’s assessment of the psychological reports did not raise a new issue requiring notice.
[44] While the RPD referred to the psychological reports only briefly, Mr. Gupta made extensive reference to the reports and his mental health in his submissions to the RAD, relying on the reports to argue that it would be unreasonable to require him to relocate to the identified IFA cities. The section of those submissions entitled “Credibility”
also expressly points to the corroborating “medi[c]al documents”
that he filed. As this Court has previously found, “if the applicant draws the RAD’s attention to certain documents, the RAD may assess their credibility”
: Savit at para 18. In the circumstances, Mr. Gupta cannot contend that he was not aware that the reliability and credibility of the psychologist’s recommendations would be in issue before the RAD. This is particularly so given that Mr. Gupta himself sought to file new evidence before the RAD, in the form of a letter from the psychologist, which was written “[f]ollowing [his] reading of several RPD and RAD rejection documents.”
The credibility of the psychologist’s recommendations was thus not an issue that was “legally and factually distinct from the issues raised on the appeal”
: Mian at para 30; Ching at para 67; Savit at para 13.
[45] I therefore conclude that the RAD did not raise a new issue of credibility that required it to notify Mr. Gupta and give him an opportunity to respond.
B. The RAD’s decision was reasonable
[46] Mr. Gupta contends that the RAD’s decision was unreasonable because it (1) misapprehended the evidence as to the agents of persecution; (2) speculated as to how the agents of persecution would act; and (3) misapprehended the evidence in concluding he was not a “person of interest”
to the authorities. For the following reasons, I conclude that Mr. Gupta has not demonstrated that the RAD’s decision was unreasonable.
(1) The RAD did not misapprehend the evidence regarding the agents of persecution
[47] Mr. Gupta alleges that the RAD erred in understanding the agents of persecution to be limited to the Haryana police. He says that while the Haryana police were involved in a number of the incidents, the NIA was the “central actor”
and that the only logical inference was that the Haryana police were working at the behest of the NIA. He further argues that had the RAD properly concluded that the NIA was the central agent of persecution, it would have had to conclude that an IFA analysis was inappropriate, since the NIA is an agent of the Indian state with national reach.
[48] I cannot accept this argument. The RAD clearly understood that Mr. Gupta was alleging persecution at the hands of both the Haryana police and the NIA. Indeed, it expressly identified the NIA as being the entity that Mr. Gupta “states is the central agent of persecution.”
The RAD directly addressed each alleged agent of persecution and considered whether they had the motivation to pursue Mr. Gupta in the identified IFA cities.
[49] The RAD also directly considered Mr. Gupta’s argument that an IFA analysis was inappropriate, both in respect of the Haryana police and in respect of the NIA. With respect to the latter, the RAD referred to Mr. Gupta’s evidence that he had only interacted with the NIA once, and that they had not accused him of being a militant, an anti-national, or a terrorist. It also noted that there was no evidence that the NIA had searched for Mr. Gupta outside his local area. Given that the evidence indicated that Mr. Gupta had only dealt with agents of the NIA at a local level, it was reasonable in the circumstances for the RAD to conclude that the onus remained on him to show that they had the means and motivation to track him to the IFA locations, even though they were agents of the state: Malik Yamah at paras 14–15.
[50] Finally, in contending that the RAD should have concluded that the Haryana police was working with or for the NIA, Mr. Gupta ignores the RAD’s finding that the evidence does not establish an ongoing motivation on part of any of the agents of persecution. The RAD considered the evidence regarding the mandate of the NIA, Mr. Gupta’s profile, and the incidents that Mr. Gupta described, and concluded that there was insufficient evidence to support the allegation that he met the profile of someone of interest to the NIA. Consequently, regardless of whether the Haryana police and the NIA worked together, Mr. Gupta failed to demonstrate an ongoing interest from the agents of persecution.
[51] In short, the RAD fully considered the evidence and allegations put forward by Mr. Gupta in respect of the NIA and found that they did not establish that he would be at risk in the IFA cities. While Mr. Gupta claims that the RAD “fundamentally misapprehended”
the evidence, his arguments do not establish any misapprehension. Rather, they amount to an argument that different conclusions should be reached on the evidence. Such an argument does not demonstrate unreasonableness: Vavilov at paras 125–126.
(2) The RAD did not engage in speculation regarding the agents of persecution
[52] This Court has frequently noted that foreign agents of persecution cannot be assumed to be rational actors, and that assuming that they will act rationally in a particular circumstance can therefore amount to unjustified and unreasonable speculation: Mittal v Canada (Citizenship and Immigration), 2023 FC 1270 at para 18; Senadheerage v Canada (Citizenship and Immigration), 2020 FC 968 at paras 18–19; Hernandez Cortez v Canada (Citizenship and Immigration), 2021 FC 1392 at para 36; Soos v Canada (Citizenship and Immigration), 2019 FC 455 at paras 12–16.
[53] Mr. Gupta contends that the RAD fell into this error by relying on the lack of formal judicial processes to conclude that the Indian police do not believe that he is a smuggler or a supporter of anti-national terrorism. I disagree. There is a difference between speculating that any given agent of persecution will act rationally and relying on objective evidence indicating that the identified agent of persecution has and uses particular methods to pursue those it wishes to find. The latter constitutes a reasonable, logical inference based on non-speculative evidence: Soos at para 14; Mirzayev v Canada (Citizenship and Immigration), 2024 FC 449 at paras 7–8.
[54] Justice Norris of this Court addressed this distinction in his decision in Engenlbers v Canada (Citizenship and Immigration), 2022 FC 1545. There, the RPD found that the applicants had an IFA within Honduras based on a lack of motivation on the part of their agents of persecution, the criminal gang known as MS-13. Justice Norris rejected the applicants’ argument that the RPD had engaged in unreasonable speculation in assessing the conduct of MS-13:
I do not agree with the applicants that the RPD’s analysis on this point is speculative or that it presumed unreasonably that the agents of harm would act rationally. Rather, given the evidence in the record of how MS-13 typically operates, I agree with the respondent that the absence of such efforts by the agents of harm reasonably could suggest a loss of interest in the applicants. A decision maker may rely on logic and common sense to draw rational inferences from clear and non-speculative evidence or from established facts: […]. Thus, if there had indeed been no efforts to pursue the applicants, it would not be unreasonable for the RPD to consider this fact in determining whether the applicants had met their onus under the first part of the IFA test.
[Emphasis added; citations omitted; Engenlbers at para 14.]
[55] While Justice Norris ultimately concluded that on the record before him, the RPD had ignored relevant evidence that MS-13 had in fact made efforts to pursue the applicants, his conclusion that a decision maker may reasonably rely on evidence of how an agent of persecution “typically operates”
is applicable in the present case.
[56] It is also worth recognizing that this Court has frequently held that it is reasonable for the RAD to rely on the lack of judicial steps in reaching a conclusion that police in India lack motivation to pursue an individual: see, e.g., Kumar v Canada (Citizenship and Immigration), 2024 FC 288 at paras 12, 37; Sandhu v Canada (Citizenship and Immigration), 2024 FC 262 at paras 8–9, 20–21; Vishist v Canada (Citizenship and Immigration), 2024 FC 1908 at paras 30–32; Khosla v Canada (Citizenship and Immigration), 2023 FC 1557 at paras 36–37; Athwal v Canada (Citizenship and Immigration), 2024 FC 672 at paras 32–33. This does not mean, as Mr. Gupta argues, that an Indian national should never be granted refugee status if he invokes persecution by the Indian police without being able to produce an FIR. Each case will depend on its facts and the assessment of the decision maker with respect to the motivation of the agent of persecution.
(3) The RAD did not misapprehend the evidence regarding persons of interest
[57] The RAD recognized that police in India could track persons of interest and, when motivated, have access to various means to do so. However, it concluded that the evidence did not establish that Mr. Gupta was a person of interest to the police for reasons related to militancy or due to being charged for a major crime. It found, in other words, that the police and the NIA did not have the motivation to find Mr. Gupta in the IFA cities, even if they might have had the means to do so.
[58] Mr. Gupta claims that in reaching its findings on motivation, the RAD fundamentally misapprehended the evidence regarding the police and the NIA’s interest in him. He again refers to the evidence regarding his arrests, the ongoing harassment of his family, and the arrest of his brother. He also proposes two possible definitions of the term “persons of interest.”
The first, from an online dictionary, is “a person who is believed to be possibly involved in a crime but has not been charged or arrested.”
The second, which appears to come from the website of an American law firm, is “a person who may have been involved in a crime and who the police are interested in finding out more about. However, if they don’t have enough evidence to call them a suspect, they are not able to take action.”
Mr. Gupta asserts that he falls within these definitions and that it was unreasonable for the RAD to conclude that he was not a person of interest to the police and the NIA.
[59] I am not persuaded that the RAD fundamentally misapprehended or failed to account for either the evidence with respect to Mr. Gupta’s interactions with the police and/or the NIA, or the objective evidence regarding the ability of those organizations to locate persons of interest.
[60] What is relevant in this context is not how third parties, even dictionaries, might use the term “person of interest,”
but how the RAD used the term. The RAD uses the term a number of times in its decision, effectively as a form of shorthand to refer to someone the police and/or the NIA would be motivated to locate. This usage can be seen in the following passage from the RAD’s decision:
I agree with the Appellant that the police can track persons of interest, those who are charged with a major crime across states and that there are various means available to motivated police to track and find persons of interest. However, in the Appellant’s case he has not established that he is a person of interest to the police for reasons related to militancy or that he has been charged with a major crime such as smuggling.
[61] However, the important aspect of this passage, and of the RAD’s decision generally, is not the RAD’s particular use of the term “person of interest,”
but its underlying conclusion that the police would not be motivated to search for him in the IFA cities. The RAD fully explained this conclusion in its reasons, both in its assessment of the evidence presented by Mr. Gupta and in its discussion of what it inferred from this evidence regarding the police and the NIA’s ongoing motivation to pursue him.
[62] In some places, the RAD is clearly using the term as it is used in the National Documentation Package [NDP] for India, published by the IRB. The NDP includes a Response to Information Request [RIR] cited by the RAD (item 10.13), that provides information regarding the ability of state authorities in India to use databases to track individuals. The RIR quotes several sources who use the term “persons of interest”
in describing the extent to which police enter information into databases (particularly a database known as the CCTNS) and are able to track and locate people. The RAD relied on and quoted this part of the RIR, compared it to Mr. Gupta’s evidence of his interaction with police, and ultimately concluded that Mr. Gupta would not be considered “a person of interest such that his information would be included in the CCTNS.”
Again, the RAD clearly explained the nature and basis of its conclusion, which was directed at whether Mr. Gupta’s information would be in the CCTNS.
[63] While focusing on the term “person of interest,”
Mr. Gupta’s argument is effectively that the RAD should have concluded based on the evidence that the police and/or NIA are motivated to find him. The argument is again founded on Mr. Gupta’s reading of the evidence and not the RAD’s, which decided that the evidence was insufficient to establish that the police or the NIA has a forward-looking interest in Mr. Gupta. This amounts to no more than disagreement over the assessment of the evidence and the inferences to be drawn from it. It does not establish that the RAD’s decision is unreasonable.
IV. Conclusion
[64] As Mr. Gupta has not persuaded me that the RAD’s decision was either unfair or unreasonable, the application for judicial review must be dismissed.
[65] Neither party proposed a question for certification pursuant to paragraph 74(d) of the IRPA, and I agree that no serious question of general importance is raised in the matter.
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