Date: 20250304

Docket: IMM-8026-23

Citation: 2025 FC 386

Toronto, Ontario, March 4, 2025

PRESENT: Mr. Justice Pentney

JUDGMENT AND REASONS

[1] The Applicant, Vishal Malhotra, seeks judicial review of the decision of the Refugee Appeal Division [RAD], dismissing his appeal from the negative decision of the Refugee Protection Division [RPD].

[2] The Applicant left India and claimed refugee status in Canada based on his fear of persecution by two associates and from the Punjab police. He also claimed that his activities in Canada put him at risk of persecution if he returned to India. The RAD upheld the RPD’s finding that the Applicant had a viable Internal Flight Alternative [IFA], and also concurred with the RPD’s credibility findings as well as its conclusion that he had failed to establish a sur place claim based on his support for Khalistan in Canada.

[3] The Applicant submits that the RAD decision is unreasonable, because it failed to consider that the agent of persecution is the state and therefore, he is not safe anywhere in India. He also says that the RAD erred in its assessment of the means and motivation of the Punjab police because it failed to appreciate the gravity of the crimes he was alleged to have been associated with.

[4] This case underlines the importance of raising all issues of fact and law before the RPD, and on appeal to the RAD. In this case, the Applicant’s judicial review cannot succeed, largely because he failed to make submissions to the RAD on the issues he raises before me. For the reasons that follow, this application for judicial review will be dismissed.

I. Background

[5] The Applicant is a citizen of India. He fears persecution by brothers Radhe Soni (RS) and Kuldeep Soni (KS), as well as the Punjab police. The Applicant says that the brothers are involved in politics and have influence over the police. He made a business deal with RS, and invested money in the business which RS promised to repay. When the Applicant tried to collect the money that RS owed, he was assaulted by goons associated with RS and KS. The Applicant reported this incident to the police but they did not investigate it. The following month, goons returned to the Applicant’s home and beat him again, saying that he had tried to ruin the reputation of RS and KS. They threatened to kill him.

[6] In August 2019, four police officers forced their way into the Applicant’s home. One of them was carrying a bag of weapons. The police took him to the police station where he was beaten. The police tried to force the Applicant to admit that the bag of weapons belonged to him and that he was a militant. Three days later, the Applicant’s family secured his release with the payment of a bribe. The Applicant was forced to sign papers and give his fingerprints before he was released from custody. His family took him to a clinic for medical treatment.

[7] A few days later, RS and KS came to the Applicant’s home with goons and threatened to kill him. The Applicant was beaten, and the goons tried to abduct him, but neighbours intervened and saved him. He was taken to a clinic for treatment. Following this attack, the Applicant left India and came to Canada, where he claimed asylum.

[8] The RPD dismissed the Applicant’s claim, finding that he had a viable IFA in Kolkata or Bengaluru because the agents of persecution did not have the means or motivation to find him there. The RPD also rejected the Applicant’s sur place claim, finding that his testimony about his involvement in the Khalistan movement in Canada was lacking in credibility. The RPD found he added this allegation at the last minute to bolster his claim, and that his testimony was lacking in detail regarding the nature of the movement and his involvement in it.

[9] The Applicant appealed the negative RPD decision to the RAD. He did not seek to bring forward new evidence and made brief submissions. The Applicant argued that he was still learning about the Khalistan movement and his limited knowledge should not have precluded a finding that he was a supporter. He also argued that the agents of persecution could find him anywhere in India because he was previously “blame[d]” by the police and because the agents of persecution have connections outside of Punjab. The RAD rejected the Applicant’s appeal, finding that he had a viable IFA in Kolkata and Bengaluru, and agreeing with the RPD’s negative credibility findings.

[10] The Applicant seeks judicial review of the RAD decision.

II. Issues and Standard of Review

[11] The Applicant raises two issues:

1. Did the RAD err in its assessment of the means and motivation of the agents of persecution?

2. Did the RAD err in its assessment of his credibility in regard to his claim to be a supporter of the Khalistan movement?

[12] These questions are to be assessed under the framework for reasonableness review set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], and confirmed in Mason v Canada (Citizenship and Immigration), 2023 SCC 21.

[13] In summary, under the Vavilov framework, a reviewing court is to review the reasons given by the administrative decision maker and determine whether the decision is based on an internally coherent chain of reasoning and is justified in light of the relevant legal and factual constraints (Vavilov at para 85). The onus is on the Applicants to demonstrate that “any shortcomings or flaws … are sufficiently central or significant to render the decision unreasonable” (Vavilov at para 100). Absent exceptional circumstances, reviewing courts must not interfere with the decision-maker’s factual findings and cannot reweigh and reassess evidence considered by the decision-maker (Vavilov at para 125).

III. Analysis

A. The RAD did not err in assessing the means and motivation of the agents of persecution

[14] The Applicant submits that the RAD erred in its assessment of the means and motivation of the agents of persecution because it failed to account for the fact that the agents of persecution were agents of the state itself, not non-state actors. He says that the case-law confirms that where a state participates in the persecution, an IFA is not an option, citing Canada (Minister of Employment and Immigration) v Sharbdeen, [1994] FCJ No 371 (FCA) at para 5; and Li v Canada (Citizenship and Immigration), 2014 FC 811 at para 27.

[15] Considering that the RPD accepted the Applicant’s narrative regarding the threats he faced and treatment he endured at the hands of the police in India, the Applicant submits that it must have accepted that he is wanted in India on fabricated charges of being a militant. He claims that he, therefore, faces a significant risk that he will be hunted down by police and detained if he returns to India. This risk is increased because of the nature of the charge he faces: being a militant. This is not simply a case where corrupt Punjab police harassed and extorted him; rather, the police allege that he committed a serious crime. Since the crime is a matter of national concern, the Applicant contends that he will not be safe anywhere in India.

[16] Furthermore, the Applicant argues that the RAD erred in concluding that the police would not be able to locate him in India. He says that the RAD ignored the documentary evidence which indicates that the criminal tracking system in India includes information that goes beyond criminal charges. The Applicant points out that he was detained, registered and fingerprinted, and his picture was taken. The police have accused him of a very serious crime. He believes that it is likely that his information is recorded in the criminal tracking database and therefore he is easily tracked no matter where he goes in India. The Applicant submits that the RAD should have applied the benefit of the doubt principle to infer that his information is likely recorded in the criminal records database, citing Chan v Canada (Minister of Citizenship and Immigration), [1995] 3 S.C.R. 593, 128 DLR (4th) 213.

[17] I cannot accept these arguments because the Applicant did not raise them in his submissions before the RAD. As mentioned earlier, the Applicant’s submissions to the RAD were quite brief. On the IFA point, the following passage contains the substance of the Applicant’s argument:

11. It is submitted that if the claimant relocate (sic) to any other part of the country then [KS] with help of police will be easily able to track him because police previously also tried to blame him for keeping weapons at home.

12. It is submitted that [KS] may have connections outside of his area as being into politics in India gives you tremendous connections and power which is not limited to certain area and as per declared by testimonies of appellant.

[18] The Applicant did not argue that the RAD should find that the RPD erred by failing to appreciate that the agent of persecution was the state, who could locate him anywhere in India. Nor did he raise any issue regarding the extent of information recorded in the criminal tracking database. He cannot now argue that the RAD erred by failing to consider arguments that he could have – but did not – advance before it.

[19] The RAD Rules make it clear that the Applicant was required to submit “a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal [and] (ii) where the errors are located in the written reasons for the [RPD’s] decision…” (RAD Rules, s. 3(g)). This Court has held on to numerous occasions that judicial review of an argument that a claimant chose not to put before the RAD will generally not be granted: Singh v Canada (Citizenship and Immigration), 2023 FC 1715 at para 44, and the cases cited therein. That is the situation here. The RAD cannot be faulted for failing to consider the submissions advanced by the Applicant on judicial review, because it was never given the chance to consider them.

[20] I can find no basis to question the RAD’s analysis of the IFA question. It applied the appropriate legal test to the evidence in the record, and explained its conclusion in a clear manner. The RAD’s decision on this point bears the hallmarks of a reasonable decision (Vavilov at para 99).

[21] The Applicant submits that the RAD failed to consider the evidence that the police had continued to visit his family home in India, which he says is an indication that they perceive him to be a militant and therefore he faces risk. I am not persuaded by this argument. The RAD is presumed to have considered all of the evidence in the record. The RPD and RAD both noted that the Applicant’s arrest and detention had been extra-judicial, and he was released after the payment of a bribe. No charges were subsequently filed against him. Moreover, the Applicant did not raise this argument in his RAD submissions.

B. There is no basis to disturb the RAD’s credibility assessment

[22] In his RAD submissions, the Applicant argued that the RPD speculated about his risk of harm from the police as a Khalistan supporter, mentioning the presumption that his statements are true. The core of his argument on this point is set out as follows:

8. Claimant is being influenced by gurudwara members and people involved in the Khailstan (sic) movement and wishes to join them and be a part of it. Claimant is learning about this movement, and his limited knowledge does not preclude him from being a Khalistan supporter; after attending rallies and meeting those people, he is being influenced by them and wanted to support his Sikh brothers.

[23] The RAD found that the Applicant had provided insufficient evidence to establish that he is a genuine supporter of Khalistan. He had failed to include it in his original or amended Basis of Claim narrative. The RPD found that the Applicant’s testimony about the Khalistan movement was confusing, vague, inconsistent and evolving, which diminished his credibility. Noting that his evidence indicated extremely limited involvement in, and knowledge of, the movement, the RPD found that the Applicant’s evidence did not support his sur place claim based on his activities in Canada.

[24] The RAD noted that the Applicant did not contest many of the RPD’s credibility findings and stated that it agreed with them. Based on the Applicant’s testimony at the RPD hearing, the RAD found that he had “demonstrated that his involvement with and knowledge of the Khalistan movement in Canada had been very limited.” While acknowledging that “a lack of knowledge may not, in itself, preclude the [Applicant] from being a Khalistan supporter…” the RAD found that his demonstrated lack of knowledge together with his limited involvement in the movement while in Canada was insufficient to establish his sur place claim.

[25] The Applicant submits that the RAD erred by giving too much weight to his limited knowledge of the Khalistan movement, while at the same time failing to recognize that he faced a risk because he was perceived by the authorities to be a supporter. This perception gives rise to the risks that the Applicant says he faces, and the RAD failed to grapple with this.

[26] Once again, much of the Applicant’s position on this point raises new arguments that were never advanced before the RAD. He did not challenge the RPD’s findings regarding his limited knowledge or involvement, but rather focused on the point that this in itself did not mean he was a supporter of the Khalistan movement. The RAD expressly dealt with this submission, finding that the Applicant’s evidence considered as a whole was insufficient to establish this aspect of his claim. The RAD’s conclusion on the sur place claim, like that of the RPD, rests on its analysis of the totality of the evidence, not only on the Applicant’s lack of knowledge. The RAD explains its findings in clear terms, that reflect its assessment of the evidence. I can find no basis to disturb the RAD’s decision on this point.

[27] It bears repeating that on judicial review under the Vavilov framework, a reviewing court is not to re-weigh the evidence unless there are “exceptional circumstances” (Vavilov para 125). In this case, no such circumstances are present. The Applicant had a full opportunity to present his case to the RPD, and then to argue his appeal before the RAD. Both the RPD and RAD weighed the evidence, and the Applicant did not challenge several of the RPD’s negative credibility findings. To the extent the Applicant is arguing that he faces a risk because he is perceived by authorities to be a Khalistan supporter, the RAD decision deals with this point and finds it unpersuasive. It is not my role to second-guess that determination, which was based on a thorough review of the evidence.

[28] For these reasons, I am not persuaded that there is any basis to find the RAD’s credibility findings to be unreasonable.

IV. Conclusion

[29] Based on the analysis set out above, the application for judicial review is dismissed.

[30] There is no question of general importance for certification.

JUDGMENT in IMM-8026-23

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed.

2. There is no question of general importance for certification.

"William F. Pentney"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: