Docket: IMM-9805-23
Citation: 2024 FC 1908
Montreal, Quebec, November 27, 2024
PRESENT: Mr. Justice Gascon
BETWEEN: |
MANJOT SINGH VISHIST |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The applicant, Manjot Singh Vishist, is seeking judicial review of a decision dated July 9, 2023 [Decision] whereby the Refugee Appeal Division [RAD] dismissed his appeal and confirmed the Refugee Protection Division’s [RPD] decision. Mr. Vishist’s claim for refugee protection under both sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] was rejected because the RAD identified a viable internal flight alternative [IFA] in the Indian cities of New Delhi, Mumbai, Bengaluru, and Jaipur.
[2] Mr. Vishist submits that the RAD erred in its determination of a viable IFA. More specifically, he asserts that the RAD erred in finding that the Punjab police were not motivated to track and harm him in the IFA locations, notably by improperly considering various facts of his claim as well as the documentary evidence.
[3] For the reasons that follow, Mr. Vishist’s application for judicial review will be dismissed. Further to my assessment, I find that the RAD’s Decision was responsive to the evidence and that its findings regarding the IFA locations have the qualities that make the RAD’s reasoning logical and consistent in relation to the relevant legal and factual constraints. Mr. Vishist failed to discharge his onus to convince the RAD that the Punjab police had the necessary motivation to pursue him in New Delhi, Mumbai, Bengaluru, or Jaipur.
II. Background
A. The factual context
[4] Mr. Vishist is a young Sikh from the Indian state of Punjab, where he lived with his parents. His refugee claim was based on his fear of persecution at the hands of the Punjab police.
[5] In April 2016, Mr. Vishist was stopped at a police checkpoint and taken to an unknown location, where he was detained, interrogated, and beaten by the Punjab police. He was accused of supporting Sikh terrorists and the Khalistan referendum movement and of being involved in the killing of a Hindu leader.
[6] The next day, Mr. Vishist was transferred to the Dhuri police station — a city near his hometown —, where he was fingerprinted and photographed. He was then released with a requirement to report to the police.
[7] In June and August 2016, Mr. Vishist was summoned by the police and questioned further, but he was not detained.
[8] In November 2016, Mr. Vishist was taken to the nearby town of Sangrur and detained by the police. He was again interrogated on his involvement with Sikh terrorists, beaten, and threatened to be killed. The police released him the following day upon payment of a bribe by his family.
[9] In December 2016, Mr. Vishist hid in New Delhi until he boarded a flight to Canada.
[10] In January 2017, the police went to the home of Mr. Vishist and his parents to search for him. They accused him of involvement in the murder of another Hindu leader.
[11] In the meantime, Mr. Vishist arrived in Canada on a student visa in January 2017. When his visa expired, he remained in Canada without status for about three years, after which he applied for refugee protection.
[12] On December 13, 2022, the RPD rejected Mr. Vishist’s claim as it found that he could avail himself of several viable IFAs in India.
B. The RAD’s Decision
[13] Mr. Vishist appealed the RPD’s decision to the RAD, arguing that the RPD erred in its IFA analysis. No new evidence was submitted on appeal.
[14] The RAD conducted its own IFA analysis and dismissed the appeal. It ruled that the RPD was correct in finding that valid IFAs exist in New Delhi, Mumbai, Bengaluru, and Jaipur.
[15] Regarding the first prong of the IFA test, the RAD found that the Punjab police had the means to find Mr. Vishist through his family. However, the RAD determined that the Punjab police had no evidence about Mr. Vishist’s involvement in serious crimes and that the police would thus not be motivated to pursue him outside of their local jurisdiction. First, the police detained him twice but never arrested him, even though he was living in plain sight with his parents for over eight months. Second, he was not arrested because the police would have been required to bring him before a magistrate judge and provide evidence to formalize a charge. Third, despite accusing him of involvement with anti-national organizations and terrorist activities, the police never invoked India’s National Security Act to detain him longer. Fourth, the police would not have released him after payment of a bribe if they genuinely believed that he was guilty of the serious crimes (i.e., murder and terrorism) of which he was accused.
[16] Turning to the second prong of the IFA test, the RAD agreed with the RPD that Mr. Vishist had not successfully proven that the four IFA locations would be objectively unreasonable or unduly harsh based on his personal characteristics. The RAD found that Mr. Vishist’s job prospects are good, as he is well educated and is qualified to drive large vehicles, that he does not face language barriers in any of the IFAs since he speaks both Punjabi and English, and that he could draw on the support of a sizable Sikh community in New Delhi and Mumbai.
C. Standard of review
[17] 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 (Singh v Canada (Citizenship and Immigration), 2023 FC 1554 at para 18; 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 at para 17 [Singh 2020]). 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 at para 7 [Mason]).
[18] 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).
[19] Such a review must include a rigorous 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).
[20] 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
[21] Mr. Vishist contends that the RAD erred in finding that the Punjab police lacked the motivation to track and harm him in the IFA cities. First, he claims that the absence of formal charges or of a First Information Report [FIR] and his release after payment of a bribe is not indicative of the police’s lack of motivation to pursue him. Second, he accuses the RAD of improperly relying on Mukhal v Canada (Citizenship and Immigration), 2020 FC 868 [Mukhal] to conclude that he was not a person of interest to the police. Third, he maintains that the fact that the Punjab police continue to enquire about his whereabouts and return date to India serves as evidence of their persisting motivation to pursue him throughout the country.
[22] Despite the able submissions made by his counsel, I am not persuaded by any of the submissions advanced by Mr. Vishist.
[23] As observed by the respondent, the Minister of Citizenship and Immigration [Minister], the RAD correctly applied the two-prong IFA test and reasonably concluded that Mr. Vishist has a viable IFA in New Delhi, Mumbai, Bengaluru, and Jaipur. Mr. Vishist has failed to establish that the Punjab police are interested in tracking him to the IFA locations and he did not challenge that he could reasonably relocate to any of the IFA locations.
A. The applicable test on IFA determinations
[24] The test to determine the existence of a viable IFA comes from Rasaratnam v Canada (Minister of Employment and Immigration), 1991 CanLII 13517 (FCA), [1992] 1 FC 706 (FCA) and Thirunavukkarasu v Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589 (FCA) [Thirunavukkarasu]. These 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.
[25] 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).
[26] 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).
[27] Mr. Vishist does not contest the RAD’s analysis concerning the second prong of the IFA test. I am satisfied that the RPD and the RAD properly concluded that it would not be unreasonable for him to relocate to one of the four IFA cities. The RAD also found that the Punjab police had the means to find Mr. Vishist by questioning his family. Therefore, the only issue before the Court is the reasonableness of the RAD’s first-prong analysis that the Punjab police would not be motivated to find Mr. Vishist in the IFA locations.
B. There is no serious possibility of persecution or likely risk of harm in the IFA locations
[28] It is well established “that there is a difference between a persecutor’s ability to pursue an individual throughout a country and his desire to do so or interest in doing so. The fact that a persecutor is able to pursue an individual is not decisive evidence that he is motivated to do so. If the persecutor has no desire or motivation to find, pursue and/or persecute an individual, or interest in doing so, it is reasonable to conclude that there is no serious possibility of persecution”
[emphasis in original] (Leon v Canada (Citizenship and Immigration), 2020 FC 428 at para 13; see also Fuentes Hernandez v Canada (Citizenship and Immigration), 2024 FC 1682 at paras 22, 24 and Cely Tiria v Canada (Citizenship and Immigration), 2024 FC 422 at para 30).
[29] In this case, the RAD recognized that the Punjab police had the means or ability to trace Mr. Vishist to the IFA locations through his family members. However, it reasonably determined that Mr. Vishist had not successfully proven the police’s desire or interest to do so.
[30] In the Decision, the RAD provided detailed reasons for its conclusion that the Punjab police had no evidence of Mr. Vishist’s alleged crimes and would hence not be motivated to pursue him outside of Punjab. As the RAD notes, the police detained him twice, but they released him without arrest within the required 24-hour detention period. According to the country condition evidence, the Indian criminal justice system sets out a specific procedure to carry out an arrest. For instance, a police officer must prepare a memorandum of arrest, show the accused the arrest warrant, and then bring the accused before a magistrate judge within twenty-four hours to present evidence and formalize the charges. The police never followed this procedure. Yet, they had more than eight months to do so, or at least to prepare a FIR.
[31] Mr. Vishist argues that the RAD erred in finding that the lack of formal charges supports the Punjab police’s lack of motivation to pursue him. He asserts that the accusations made against him did not require the police to file charges and cites India’s Unlawful Activities Prevention Act, which authorizes detentions for up to 180 days without charge in cases related to insurgency or terrorism. I am not convinced by this argument.
[32] Recently, Justice Ekaterina Tsimberis and I found that, where police persecution is alleged, the absence of formal charges against refugee claimants may point to a lack of motivation by the police to pursue them in the IFA locations (Athwal v Canada (Citizenship and Immigration), 2024 FC 672 at paras 32–33; Khosla v Canada (Citizenship and Immigration), 2023 FC 1557 at paras 36–37).
[33] In the case of Mr. Vishist, after both his detentions, he was released without arrest before the end of the maximum 24-hour detention period. The police clearly did not see fit to invoke neither the Unlawful Activities Prevention Act nor the National Security Act in order to detain Mr. Vishist longer. This is not a situation in which the police detained a refugee claimant without formal charges for weeks or months.
[34] Further, I agree with the RAD’s reasoning that the Punjab police would not have released Mr. Vishist after the payment of a bribe if they truly believed that he was a terrorist supporting anti-national elements and involved in a murder. The objective documentary evidence supports that the Indian authorities (including the Punjab police) take terrorist-related activities very seriously. Even though bribery is endemic in Indian police forces, it is highly unlikely that they would knowingly agree to release someone who they think is a murderer and a terrorist, even if the release was subject to reporting conditions. A similar reasoning was also recently adopted by Justice Guy Régimbald (Singh v Canada (Citizenship and Immigration), 2023 FC 1211 at para 26).
[35] Moreover, I agree with the Minister that the Punjab police’s willingness to locate Mr. Vishist within his own village via his parents does not automatically establish their motivation to pursue him outside of the state of Punjab. It is important to distinguish between the motivation to pursue someone locally and the motivation to do so outside of the local jurisdiction (Verma v Canada (Citizenship and Immigration), 2024 FC 1061 at para 22; Bassi v Canada (Citizenship and Immigration), 2024 FC 910 at para 27; Singh v Canada (Citizenship and Immigration), 2023 FC 1151 at paras 15–16). In other words, the RAD rightly acknowledged that Mr. Vishist could be at risk of harassment if he returns to his village, but not outside the local police’s jurisdiction.
[36] Mr. Vishist’s agent of harm is the local Punjab police (instead of a federal police agency), whose jurisdiction is limited to the state of Punjab and who has only shown an interest to harm Mr. Vishist in his village, as well as the neighbouring towns of Dhuri and Sangrur. It is true that, in her affidavit, Mr. Vishist’s mother states that the local police specifically asked her when her son would return to India. However, this alone is not enough to demonstrate an interest in searching for Mr. Vishist throughout India.
[37] Finally, I fail to see how the RAD improperly relied on Mukhal. As in Mukhal, Mr. Vishist provided no evidence indicating that he is a person of interest in a criminal activity or a terrorist organization (Mukhal at paras 43, 65). Mr. Vishist does not also explain how the factual distinctions he makes between Mukhal and this matter have any impact. For example, he states that Mukhal relies on objective evidence that has since been updated, but does not point out how the newly updated evidence substantially differs from its previous version.
[38] In sum, I am satisfied that the Decision is based on an internally coherent reasoning that is both rational and logical. The RAD provided clear conclusions supporting its finding that the Punjab police would not be motivated to pursue Mr. Vishist in the IFA locations. Indeed, it reasonably found that the police had no evidence of Mr. Vishist’s alleged crimes and would not find it worthwhile to track him down. Consequently, the RAD’s findings regarding the IFA locations bear the hallmarks of justification, transparency, and intelligibility required under the standard of reasonableness.
IV. Conclusion
[39] For the reasons set forth above, this application for judicial review is dismissed. I am satisfied that the RAD reasonably considered the evidence in concluding that Mr. Vishist had a viable IFA in New Delhi, Mumbai, Bengaluru, and Jaipur. There are no grounds for the Court to intervene.
[40] There are no questions of general importance to be certified.
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