Date: 20241209

Docket: IMM-5398-23

Citation: 2024 FC 1993

Ottawa, Ontario, December 9, 2024

PRESENT: Mr. Justice McHaffie

JUDGMENT AND REASONS

I. Overview

[1] The applicants seek judicial review of the refusal of their refugee claim. The Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada accepted the applicants’ allegations of detention, torture, and sexual abuse at the hands of police in Punjab, but upheld the finding of the Refugee Protection Division [RPD] that the applicants could safely and reasonably seek refuge in Bengaluru or Mumbai. Since the existence of such an internal flight alternative [IFA] is fatal to a refugee claim, the RAD concluded the applicants were not Convention refugees or persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

[2] The applicants argue that the RAD’s finding that they would not be at risk in the proposed IFAs was unreasonable. In particular, they challenge the RAD’s conclusion that the Punjab police would not be motivated to track them down to the other locations in India, as well as its related conclusions that the police do not genuinely believe they are involved in militancy, and that the police’s continued enquiries as to their whereabouts were primarily motivated by the opportunity to obtain bribes.

[3] Factual findings such as these are based on the RAD’s assessment of the evidence before it. Such findings are entitled to deference and will generally only be set aside if the RAD fundamentally misapprehended or failed to account for the evidence. Having considered the applicants’ arguments, which were largely raised for the first time on this application for judicial review, I conclude they have not met their onus to demonstrate that the RAD’s decision is unreasonable. The RAD reasonably considered the evidence surrounding the police’s conduct, both before and after the applicants left India, and its conclusions regarding the police’s motivation were open to it on the record.

[4] As the applicants have not established that the RAD’s decision is unreasonable, this application for judicial review must be dismissed.

II. Issue and Standard of Review

[5] A finding by the RAD that an applicant has an IFA is essentially a factual finding, reviewable on the reasonableness standard: Singh v Canada (Citizenship and Immigration), 2020 FC 350 at paras 17–19, 32; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25. In conducting reasonableness review, the Court does not reweigh the evidence and determine whether it would come to its own conclusions. Rather, the Court’s task is limited to assessing whether the RAD’s factual findings are reasonable and that its decision is justified in light of the evidence before it: Singh at para 32; Vavilov at paras 83, 125–126.

[6] The analysis of whether a person has a viable IFA has two parts or “prongs.” The first considers whether the person would face in the IFA a serious possibility of persecution on a Convention ground (under section 96 of the IRPA) or a likely danger of torture, risk to life, or risk of cruel and unusual treatment or punishment (under section 97 of the IRPA). The second considers whether it would be reasonable in all the circumstances for the person to seek refuge in the IFA: Rasaratnam v Canada (Minister of Employment and Immigration), 1991 CanLII 13517, [1992] 1 FC 706 (CA) at pp 710–711; Thirunavukkarasu v Canada (Minister of Employment and Immigration), 1993 CanLII 3011, [1994] 1 FC 589 (CA) at pp 594–595.

[7] There is only a viable IFA if both of these prongs are met, that is, if the person would not face such a risk and it would be reasonable for them to seek refuge there. If an applicant has a viable IFA, then they do not meet the definition of a Convention refugee under section 96 of the IRPA or a person in need of protection under section 97 of the IRPA: Barragan Gonzalez v Canada (Citizenship and Immigration), 2015 FC 502 at paras 45–46.

[8] On this application for judicial review, the applicants only challenge the RAD’s findings with respect to the first prong of the IFA test. The sole issue is therefore whether it was reasonable for the RAD to conclude that the applicants would not face a serious possibility of persecution or a section 97 risk if they relocated to one of the two cities proposed as an IFA, namely Bengaluru and Mumbai.

III. Analysis

A. The applicants’ claim for refugee protection

[9] The applicants’ refugee claim arises from events in Punjab in 2017 and 2018. The principal applicant, Amrish Dutta, and his brother were employed as taxi drivers. In August 2017, his brother was driving two passengers when the taxi was stopped at a police checkpoint. The passengers fled. Police searched the taxi and claimed to have found a bag containing explosives. Mr. Dutta’s brother was arrested and questioned about his involvement with the two passengers who are alleged to be militants. He was released several days later on payment of a bribe.

[10] The brother was again arrested and interrogated in December 2017, and again released on payment of a bribe. After this, the brother left Punjab for Haryana. The police continued to search for the brother, coming to Mr. Dutta’s home, and extracting further bribes. In April 2018, the police raided Mr. Dutta’s home, still looking for his brother. They arrested Mr. Dutta, took his fingerprints, photograph, and signature, and seriously beat him, asserting that his brother was involved with militants. Mr. Dutta was forced to reveal his brother’s whereabouts, but was again released after a few days upon payment of a bribe, with instructions to report to the police station on a monthly basis. He left Punjab for New Delhi.

[11] A month later, in May 2018, Mr. Dutta’s spouse, Neha Mehta, was arrested because Mr. Dutta had not reported to the police station. The police told her they suspected Mr. Dutta of being involved with militants, detained her, took her fingerprints and signature, and sexually assaulted her. She was released the following day on payment of a bribe. Ms. Mehta and their child joined Mr. Dutta in New Delhi. They left for Canada in September 2018. Since then, the police have visited Mr. Dutta’s parents at the family home every few months, claiming he is involved with militants and demanding a bribe. The applicants have no knowledge of the brother’s whereabouts since 2018, when he evaded arrest in Haryana.

B. The RPD’s decision

[12] The RPD accepted the applicants’ narrative regarding the abuse they had faced at the hands of the Punjab police. It nonetheless concluded that the evidence did not show that the police would be motivated to pursue the applicants to the proposed IFA cities.

[13] An assessment of whether a person would continue to face a risk from an agent of persecution in a different location within their country often entails a consideration of whether the agent would have the “means” and “motivation” to pursue them: Adeleye v Canada (Citizenship and Immigration), 2022 FC 81 at para 21. If the evidence does not show that the agent of persecution would be motivated to pursue the person to the IFA, or that they would not have the ability or means to do so, then this will tend to indicate that the person would not face a risk from that agent in the IFA.

[14] The RPD accepted that Mr. Dutta’s brother was a person of interest to the police and that the police continued to look for him on the basis that they suspect he is involved with militants and could reveal the identity of the two passengers. However, it found that there was insufficient evidence to establish that the police would be motivated to seek out the applicants to assist in locating the brother. Although the police had claimed to believe that Mr. Dutta was involved with militants, the RPD found that the evidence did not show this to be a genuine belief. Rather, the RPD found that the police’s motivation in continuing to ask after the applicants was to obtain bribe money. This did not establish that the police would be motivated in pursuing them beyond the state of Punjab. The RPD noted that no charges had been laid against the applicants, no warrants of arrest had been issued against them, and no First Information Report had been prepared that might activate a police investigation.

[15] In the absence of sufficient evidence demonstrating a motivation to pursue the applicants beyond their local area in Punjab state, the RPD was not satisfied that they would be at risk from the agents of persecution in the proposed IFAs.

[16] The RPD further found it would be reasonable for the applicants to seek refuge in Bengaluru or Mumbai. As both prongs of the test were met, the RPD concluded the applicants had an IFA and that they were not Convention refugees or persons in need of protection.

C. The applicants’ appeal to the RAD

[17] On appeal to the RAD, counsel for the applicants (who was neither counsel before the RPD nor counsel on this application) filed a memorandum of argument that challenged the reasonableness of the RPD’s decision. The thrust of the applicants’ arguments appears to have been related to the credibility of the applicants, their subjective fear, the RPD’s finding regarding the motivation of police, and the lack of an analysis of state protection. That said, the arguments were not very clearly stated, to the extent that the RAD described them as “unintelligible.”

[18] Nonetheless, the RAD undertook a review of the evidence to determine whether the RPD’s decision was correct. It noted that the RPD had correctly identified the two-pronged test for an IFA, had accepted the applicants’ allegations as credible, but had nonetheless found that there was insufficient evidence to show that the Punjab police had the necessary motivation to find the applicants in the proposed IFA cities.

[19] The RAD agreed with the RPD, finding that the evidence did not show the Punjab police were motivated to locate and persecute the applicants in the IFAs. This finding was based on the RAD’s conclusion that the police did not in fact view the applicants as militants, but simply made false accusations against them with the goal of obtaining bribes. The RAD supported this finding through reference to a number of aspects of the evidence: (i) the fact that the police had not attempted to find them when they were in New Delhi for about five months in 2018; (ii) the fact that the family members were never arrested, but simply paid a bribe at each visit; (iii) the objective evidence of omnipresent corruption in the Indian police force, due in part to low police salaries; (iv) the expectation, based on the objective evidence, that if Mr. Dutta were truly suspected of militant activities, authorities would have taken much more repressive and violent measures than those he had experienced, such as being interrogated by those in charge of terrorism matters, and would not have released him after one or two days of detention. The RAD also noted that Mr. Dutta had not made any specific arguments against the RPD’s conclusions on this issue.

[20] The RAD also found the RPD’s conclusions regarding the second prong of the IFA test to be reasonable. It therefore upheld the RPD’s decision that the applicants were not Convention refugees or persons in need of protection and dismissed the appeal.

D. The RAD’s decision was reasonable

[21] The applicants raise four primary arguments challenging the reasonableness of the RAD’s decision.

[22] First, they argue it was speculative for the RAD to conclude that the police’s interest in the applicants was motivated by obtaining bribes rather than because of their alleged involvement in militancy. They point to the serious nature of the allegations against the brother, their arrest and detention, and the ongoing enquiries by police, suggesting that these are indicative of a genuine concern about the possible connection between the applicants and the militants. I do not accept that the RAD engaged in speculation. Rather, it reached a reasoned conclusion based on the evidence before it, which included reference to the objective evidence and consideration of the circumstances of the police’s ongoing visits. I agree with the respondent that the applicants are effectively asking the Court to reweigh the evidence and reach a different determination, which is not this Court’s role on judicial review.

[23] On this issue, the applicants claim it was unreasonable for the RAD to find that the detention and torture they faced was not repressive. However, the RAD did not make such a finding. It simply found that even more repressive measures than those faced by the applicants would have been expected had they truly been suspected of militancy, citing the objective evidence. The applicants have not satisfied me this was an unreasonable factor for the RAD to consider in reaching its conclusion.

[24] Second, the applicants challenge the RAD’s reliance on the lack of police efforts to find them in New Delhi before their departure for Canada. They argue that this does not take into account the fact that the police have continued to enquire about their whereabouts, even since their arrival in Canada, which they argue demonstrates a high level of motivation. I disagree. The RAD very clearly considered the continued enquiries being made to Mr. Dutta’s parents, and considered those enquiries in the context of the other evidence. Again, the applicants are doing little more than seeking a different conclusion from this Court based on the evidence that was before the RAD.

[25] Third, the applicants argue that an analysis of a potential IFA must consider whether the agent of persecution could locate a claimant through their family and friends, citing this Court’s decisions in AB v Canada (Citizenship and Immigration), 2020 FC 915 at paras 24–26; Mittal v Canada (Citizenship and Immigration), 2023 FC 1270 at paras 20–25; and Ali v Canada (Citizenship and Immigration), 2020 FC 93 at paras 49–50. I cannot accept this argument for two reasons. First, it was not raised in any way before the RAD and it is generally inappropriate for a party to raise a new issue for the first time on judicial review: see, e.g., Bhullar v Canada (Citizenship and Immigration), 2023 FC 1136 at paras 24–26, dealing specifically with raising arguments based on the principle in Ali for the first time on judicial review. Second, the question in Ali and AB was primarily whether extracting information from family members could be used as a means of locating the applicants, in circumstances where it had been established that the agents of persecution had the motivation to not only harass family members but to locate, pursue, and persecute the applicants in the IFA: Ali at para 49; AB at para 24. In Mittal, the Court was concerned that the RAD had not considered the ongoing pressure from police at all: Mittal at para 20. That is not the case here. The RAD expressly considered the ongoing visits from the police and concluded that it evidenced a motivation to obtain bribes rather than to pursue and persecute the applicants beyond Punjab.

[26] Finally, at the hearing of this application, the applicants raised a further argument that had not been raised in their memorandum of fact and law. They contend it was inconsistent for the RPD and the RAD to accept that the brother was a person of interest to the Punjab police, but to conclude that the applicants were not persons of interest, when the evidence regarding each was similar. Again, this argument must be rejected because it was not put before the RAD. An applicant cannot fail to put an argument to the RAD for consideration and then contend that it was unreasonable for the RAD not to have addressed it. Indeed, the RAD did not refer to or adopt the RPD’s finding that the brother was a person of interest, since that finding was not raised by the applicants’ appeal. As a result, there cannot have been any inconsistency in the RAD’s findings as between the brother and the applicants. In any event, having reviewed the evidentiary references made by the applicants, I am not satisfied that the evidence shows that the brother was in the same legal or factual situation as Mr. Dutta so as to justify the argument that the two should have been equally considered persons of interest.

IV. Conclusion

[27] For the foregoing reasons, the applicants have not met their onus to demonstrate that the RAD’s decision was unreasonable. The application for judicial review is therefore dismissed.

[28] Neither party proposed a question for certification. I agree that none arises in the matter.

JUDGMENT IN IMM-5398-23

THIS COURT’S JUDGMENT is that

1. The application for judicial review is dismissed.

“Nicholas McHaffie”

FEDERAL COURT

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