Docket: IMM-7610-23
Citation: 2024 FC 1910
Ottawa, Ontario, November 28, 2024
PRESENT: The Honourable Madam Justice Ngo
BETWEEN: |
HARVINDER SINGH SANDHU |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Harvinder Singh Sandhu [Applicant], is a citizen of India who alleges a fear of persecution in his country of origin. He seeks judicial review of a decision dated May 26, 2023, where the Refugee Appeal Division of the Immigration and Refugee Board of Canada [RAD] rejected his refugee claim [Decision] on the grounds that he is not a refugee or person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The RAD confirmed the previous decision by the Refugee Protection Division [RPD] and found that the Applicant has a viable Internal Flight Alternative [IFA] in India.
[2] For the reasons that follow, this application for judicial review is dismissed. The Applicant has not met his onus of demonstrating that the Decision is unreasonable.
II. Background and Decision Under Review
[3] The Applicant claimed to be at risk from members of the Congress Party, the police and an ex-Sarpanch because he is a member of the Shiromani Akali Dal (Badal) [SAD-Badal], a political party in India. He claimed that after the Congress Party won the February 2017 election, he began receiving anonymous threatening phone calls. The Applicant also criticized his village Sarpanch, which resulted in his Sarpanch threatening him. He also alleged that the police detained and accused him of sheltering anti-nationals who were drug dealers. In January 2019, the Applicant arrived in Canada.
[4] On October 7, 2022, the RPD accepted that the Applicant was a local supporter of the SAD-Badal party limited to his local constituency and district and held that the particulars of his case did not have nationwide scope. The RPD further found that, on a balance of probabilities, the Applicant is unlikely to be a person of interest necessitating interstate police communications, given the circumstances and the extrajudicial nature of his arrest. Hence, the Applicant has a viable IFA in other Indian cities.
[5] On May 26, 2023, the RAD confirmed the RPD’s decision on the IFA. The RAD found that the Applicant did not establish that the Congress Party or the local police in Punjab would have the means or motivation to pursue him in the IFA, nor that relocating would be unreasonable in his circumstances.
III. Issues and Standard of Review
[6] The issue on judicial review is whether the RAD’s Decision was unreasonable as it relates to the analysis of the IFA test.
[7] The parties submit that the standard of review with respect to the merits of the Decision is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 25). I agree that reasonableness is the applicable standard of review.
[8] To avoid intervention on judicial review, a decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility (Vavilov at para 99). A reasonable decision will always depend on the constraints imposed by the legal and factual context of the particular decision under review (Vavilov at para 90). A decision may be unreasonable if the decision maker misapprehended the evidence before it (Vavilov at paras 125-126). The party challenging the decision bears the onus of demonstrating that the decision is unreasonable (Vavilov at para 100).
IV. Analysis
[9] I cannot agree with the Applicant’s arguments that the RAD erred in its assessment of the IFA. The crux of the IFA related to a reasonable assessment and findings on the Applicant’s profile, in that he did not meet the type of profile that would support a fear of persecution or risk of harm throughout the entire country.
[10] A claimant has an IFA when (1) they will not be subject to a serious possibility of persecution nor to a risk of harm under section 96 and section 97 of the IRPA in the proposed IFA location and (2) it would not be objectively unreasonable for them to seek refuge there, taking into account all the circumstances. Both prongs need to be satisfied to conclude that a claimant has an IFA (Bassi v Canada (Citizenship and Immigration), 2024 FC 910 [Bassi] at paras 15-16, citing Rasaratnam v Canada (Minister of Employment and Immigration), 1991 CanLII 13517 (FCA), [1992] 1 FC 706, and Thirunavukkarasu v Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589 (FCA) at pp 597-598) [Thirunavukkarasu].
[11] With respect to the first prong of the IFA test, an applicant must demonstrate that the proposed IFA is unreasonable because they fear a possibility of persecution throughout their entire country. An applicant must establish that the agents of persecution have both the means and the motivation to cause harm on a prospective basis (Bassi at para 17, other citations omitted).
[12] The threshold on the second prong of the IFA test is a high one. There must be “actual and concrete evidence”
of conditions that would jeopardize the applicant’s life and safety in travelling or temporarily relocating to a safe area. Once the potential for an IFA is raised, the claimant bears the onus of establishing that it is not viable (Olusola v Canada (Citizenship and Immigration), 2020 FC 799 at para 9 [Olusola], citing Ranganathan v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), [2001] 2 FC 164 at para 15 and Thirunavukkarasu at pp594-595).
[13] If a claimant has a viable IFA, this will negate a claim for refugee protection under either sections 96 or 97 (Olusola at para 7).
[14] The Applicant alleges that the RAD failed to take into account that the agents of persecution are agents of the state itself. This means that an IFA is not an option (citing Canada (Minister of Employment and Immigration) v Sharbdeen, [1994] FCJ No 371 (FCA) at para 5; Li v Canada (Minister of Citizenship and Immigration), 2014 FC 811 at para 27). However, the mere fact that the agents of harm are police is not sufficient to establish that they are acting as agents of the state, such that the Applicant would risk persecution throughout India (Singh Anand v Canada (Citizenship and Immigration), 2024 FC 1717 at para 5 [Singh Anand] citing Kumar v Canada (Citizenship and Immigration), 2024 FC 881 at para 33).
[15] The RAD also considered the Applicant’s evidence and testimony, finding that it was unlikely that the police would be able to locate him using the Crime and Criminal Tracking Network Systems national database, as described in the National Document Package. The RAD found that his profile would not be such that police would pursue him outside of his home state. This is not an unreasonable conclusion based on the evidence before the RAD that there were no charges laid, no arrest warrant issued and that the Applicant was able to leave India without issue, among others - even if he had been fingerprinted by police (Singh Anand at para 7 citing Singh v Canada (Citizenship and Immigration), 2023 FC 1554 at paras 31-36).
[16] Furthermore, the RAD’s conclusions related to the police’s ability to locate the Applicant through his family are findings that were not unreasonable. The fact that the local police occasionally inquired with the Applicant’s family about his whereabouts does not establish that the agents of persecution have the means and motivation to locate the Applicant to the IFA (Bassi at paras 26-28). Here, the evidence also does not demonstrate that the Applicant’s family put their security at risk in the course of their interactions with police.
[17] A finding with respect to the means and motivation of the agents of harm is highly factual. In the Applicant’s case, the RAD engaged in an independent analysis to assess the involvement of the local police as well as their means and motivation to seek the Applicant across state lines in India. Their reasoning is in line with the applicable case law, as well as the record before the RAD.
[18] Furthermore, I cannot find that there is a reviewable error with respect to the Decision because the RAD had found the Applicant to be generally credible. This Court’s jurisprudence is clear that rules relating to the credibility and probative value of evidence are different. A decision maker may believe the truthfulness of the claimant’s claims or testimony, yet determine that the claimant failed to provide sufficient evidence to support the inferences he or she seeks to draw from the evidence (Rahman v Canada (Citizenship and Immigration), 2020 FC 138 at para 69 citing Magonza v Canada (Citizenship and Immigration), 2019 FC 14). I find that this is the case. The Decision reasonably described the limited propositions for which the evidence was submitted.
[19] Finally, I note that the Applicant raised an error with respect to one of the footnotes in the Decision, which did not cite the correct reference. However, reading the Decision holistically, including the fact that the correct reference is in the National Documentation Package and that it also appears as a reference elsewhere in the Decision, I cannot find that this error in citation is so central that it renders the Decision unreasonable or unintelligible.
V. Conclusion
[20] The RAD’s Decision is transparent, intelligible and justifiable in light of the legal and factual constraints that bear on it. As such, I cannot find that the Decision is unreasonable. The application for judicial review is dismissed.
[21] The parties do not propose any question for certification and I agree that in these circumstances, none arise.
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