Docket: IMM-15767-23
Citation: 2025 FC 896
Ottawa, Ontario, May 16, 2025
PRESENT: The Honourable Madam Justice Saint-Fleur
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BETWEEN: |
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GURWINDER SINGH |
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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] This is an application for judicial review of a decision by the Refugee Appeal Division [RAD] of the Immigration and Refugee Board, dated November 17, 2023 [Decision].
[2] The RAD upheld the decision of the Refugee Protection Division [RPD] finding that the Applicant is neither a Convention refugee nor a person in need of protection under sections 96 and 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] due to Internal Flight Alternatives [IFAs] in Mumbai and New Delhi.
[3] For the reasons below, this application for judicial review is dismissed.
II. Background Facts
[4] The Applicant is a 43-year-old Sikh citizen of India. Prior to his arrival in Canada, he resided in the state of Punjab. In 2017, he was hired to construct a house for a client of his masonry business. He hired V, an electrician, to install the wiring for the house.
[5] The Applicant claims that police came to his home in December 2017 to question him about weapons found at the construction site. The Applicant states that he told the police the weapons likely belonged to V.
[6] The Applicant reports that, shortly afterward, he received threatening calls warning him not to provide evidence against V to the police. He claims that the police also threatened him during this time, stating that they would accuse him of being an “anti-national”
agent and a supporter of an independent Khalistan unless the Applicant presented V and his associates to the police.
[7] The Applicant states that he was arrested on December 27, 2017. He claims that the police recorded his fingerprints and signature and subjected him to torture, seeking to extract a confession that the Applicant was involved in V’s illicit activities.
[8] The Applicant claims that he fled to the home of his maternal uncle, JS, in the state of Haryana in March 2018. He states that he departed a few weeks later, and that police came to JS’s home in search of the Applicant shortly after he had left.
[9] The Applicant and his wife eventually fled to Canada on August 29, 2018. The Applicant did not immediately seek protection, applying for refugee status in December 2020.
[10] By this time, the Applicant’s wife had returned to India to care for their children. The Applicant claims that she was accosted by police upon her return. He further states that his relatives in Haryana were asked about him by police in 2021.
[11] On June 30, 2023, the RPD denied the Applicant’s refugee claim. The RPD found the Applicant’s allegations to be not credible. The RPD determined that IFA was the determinative issue and denied the Applicant’s claim based on viable IFAs in the cities of Mumbai and of New Delhi.
[12] The Applicant appealed the RPD’s decision. On appeal, the Applicant sought to adduce an additional affidavit from JS as new evidence under subsection 110(4) of the IRPA.
III. Decision Under Review
[13] The RAD held the RPD was correct in finding the Applicant has viable IFAs in Mumbai and New Delhi. The RAD agreed with the RAD that the determinative issue was IFA.
[14] The RAD declined to admit the Applicant’s new evidence. Although the new evidence “arose after the rejection of [the Applicant’s] claim,”
the RAD found that it was not credible, as it was “remarkably fortuitous”
and produced shortly after the negative RPD decision, contained passages that repeated almost verbatim an affidavit previously provided by the Applicant’s father, and included identifying information from JS that did not match the information in a previous affidavit sworn by JS in the Applicant’s record.
[15] The RAD then applied the two-pronged test for an IFA set out in Rasaratnam v Canada (Minister of Employment and Immigration) (CA), 1991 CanLII 13517 (FCA) [Rasaratnam], finding: (1) “there is no serious possibility of the [Applicant] being persecuted”
in the proposed IFAs; and (2) “it would not be unreasonable, in all the circumstances, for the [Applicant] to seek refuge”
at the IFAs (Durani v Canada (Immigration, Refugees and Citizenship), 2025 FC 653 at para 7; Rasaratnam at 711).
[16] On the first prong of persecution, the RAD found that neither V nor the police in Punjab state have the means or motivation to locate the Applicant in the IFAs.
[17] Noting that the Applicant did not dispute the RPD’s findings with respect to V, the RAD simply observed that V had not contacted the Applicant since 2017, “which indicated a lack of interest in the Applicant.”
[18] With respect to the police, the RAD found that the police would not be able to locate the Applicant outside the state of Punjab, as “[p]olicing in India is divided by state.”
The RAD further determined that the Applicant’s name and fingerprints had likely not been entered into the Crime and Criminal Tracking Network & Systems [CCTNS], India’s national criminal database, following his December 2017 arrest, as the arrest was extrajudicial and illegal. Consequently, the Applicant would not be traceable through the CCTNS or the associated tenant verification system. The Applicant would be similarly unlikely to be located through his family, as his family had been approached — but not threatened — by the police. Consequently, the RAD found the police did not have the means to locate the Applicant in the IFAs.
[19] The RAD further determined that the police do not genuinely suspect the Applicant of being engaged in major crime or “anti-national”
activities and would therefore not be motivated to search for the Applicant in the IFAs. The RAD accepted the RPD’s negative credibility determinations concerning the Applicant’s claim of being sought by police outside of Punjab in 2018 and 2021, noting that these allegations were not mentioned in the Applicant’s basis of claim Form or were supported by insufficient evidence. As a result, the RAD found the police lacked the motivation to locate the Applicant in the IFAs.
[20] On the second prong of the reasonableness of the IFAs, the RAD first noted that the Applicant did not challenge the RPD’s findings on appeal. The RAD nonetheless assessed this issue, confirming the RPD’s determination that it would not be unreasonable for the Applicant to relocate to the IFAs. The RAD found that the Applicant could support himself financially at the IFAs, that there would be no serious possibility of religious persecution against Sikhs in the IFAs, and that any caste-based discrimination would not be “sufficient to render the IFA unreasonable.”
The RAD made further determinations specifically with respect to Mumbai, finding the Applicant would not face a language barrier or difficulty adjusting to Mumbai and that Mumbai is sufficiently populous to support relocation.
IV. Issues and Standard of Review
[21] The following issues are raised in this application:
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Did the RAD err by refusing to admit the Applicant’s new evidence?
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Was the RAD’s finding that the Applicant has two viable IFAs in Mumbai and New Delhi reasonable?
[22] The parties agree and I concur that the merits of the RAD’s decision are to be reviewed on the standard of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16-17, 23-25, 85, 99, 101-4, 115-26 [Vavilov]).
V. Relevant dispositions
[23] Subsection 110(4) of the IRPA establishes the requirements for admitting new evidence on appeal by the RAD:
Evidence that may be presented
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Éléments de preuve admissibles
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(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.
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(4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet.
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[24] If the new evidence meets the requirements of subsection 110(4) of the IRPA, the RAD must determine whether it also satisfies the Singh/Raza factors of credibility, relevance, newness, materiality, and express statutory conditions (Raza v Canada (Citizenship and Immigration), 2007 FCA 385 at para 13 [Raza]; Singh v Canada (Citizenship and Immigration), 2016 FCA 96 at para 49 [Singh]).
VI. Submissions
A. New Evidence
[25] The Applicant submits that the RAD unreasonably declined to admit the new evidence.
[26] The Applicant argues that the RAD undertook a microscopic assessment of the affiant, citing several decisions of this Court (Chen v Canada (Citizenship and Immigration), 2012 FC 510 at para 68; Hamdar v Canada (Citizenship and Immigration), 2011 FC 382 at para 58; Gill v Canada (Minister of Citizenship and Immigration), 2004 FC 921 at para 13; Mohacsi v Canada (Minister of Citizenship and Immigration), 2003 FCT 429 at para 20.)
[27] The Applicant submits that the discrepancies observed by the RAD with regards to the new affidavit were clearly immaterial and peripheral. For example, the RAD observed that the new affidavit appeared to have been sworn by JS, the Applicant’s maternal uncle. Comparing it to a previous affidavit sworn by JS, the RAD noted that the new affidavit was translated from Hindi, rather than Punjabi, and described the affiant as the Applicant’s “relative,”
rather than his “uncle”.
[28] The Applicant further submits that the RAD erred by stating that the affiant’s identification information had not been appended to the new affidavit, as the new affidavit includes a stamped and sealed copy of JS’s identity card number.
[29] The Respondent argues that the RAD reasonably held that the affidavit of JS was inadmissible, as the timing of the affidavit, its source, and its language raised serious issues of credibility. (IRPA, s 110(4); Raza at para 13; Singh at para 49).
[30] Since the affidavit was sworn two years after the last alleged attempt by police to locate the Applicant, but just 10 days after the refusal of the Applicant’s refugee claim by the RPD, the Respondent submits that the RAD reasonably characterized this timeline as “an extraordinary coincidence that is suspiciously convenient”
(Jiang v Canada (Citizenship and Immigration), 2021 FC 572 at para 44.)
[31] The Respondent further submits that the RAD’s attention to discrepancies in the new evidence compared to a prior affidavit sworn by JS in the Applicant’s record does not constitute a microscopic assessment, as Raza instructs decision-makers to consider the source in assessing the credibility of new evidence (at para 13).
[32] According to the Respondent, the reasonableness of the RAD’s concerns relating to the source of the new evidence is reinforced by duplicate language in the affidavit of JS and the affidavit of the Applicant’s father. Several phrases from the Applicant’s father’s affidavit appear to have been copied verbatim in the affidavit of JS.
[33] The Respondent submits that the RAD’s refusal to admit the new evidence was reasonable in light of the record, and the Applicant’s submissions to the contrary amount to a request to reweigh the evidence before the decision-maker (Vavilov at para 125).
B. IFAs
[34] The Applicant does not bring substantive submissions on the reasonableness of the RAD’s IFA analysis.
[35] The Applicant submits that the unreasonableness of the RAD’s refusal to admit the new evidence is determinative of this application for judicial review. According to the Applicant, the new affidavit of JS was “the most crucial and relevant piece of documentary evidence”
on the record. The Applicant submits that the RAD’s failure to consider this evidence renders its IFA determination unreasonable.
[36] The Respondent first notes that the Applicant has not brought submissions challenging the RAD’s IFA assessment. The Respondent submits that the Applicant’s silence on this point is sufficient to find that the RAD’s IFA assessment was reasonable.
[37] The Respondent further submits that the RAD made no reviewable error in determining that the Applicant has two viable IFAs in Mumbai and New Delhi. The Respondent summarizes the factual findings cited by the RAD under each prong of the test in Rasaratnam. Referring to these facts, the Respondent argues that the RAD provided a rational chain of analysis for its findings and the Applicant has failed to establish a reviewable error in the Decision. (Vavilov at para 85).
VII. Analysis
A. New Evidence
[38] I agree with the Respondent that the Applicant fails to challenge a significant reason for which his new evidence was refused. I find that the duplicate language in the affidavits of JS and the Applicant’s father, combined with the fortuitous timing of the new evidence and the discrepancies observed by the RAD, is sufficient to demonstrate the reasonableness of its refusal to admit the affidavit of JS because it lacked credibility.
[39] I also agree with the Respondent that it was open to the RAD to find that the timing of the JS affidavit was fortuitous. The event described in the affidavit, namely police pushing and threatening the Applicant’s uncle with detainment, occurred only ten days after the RPD’s decision, in which the RPD found that the Applicant had failed to credibly establish that the police have been harassing his family or neighbours in a manner that they would learn of the Applicant’s whereabouts should he return to India.
[40] This Court has consistently held that when the timing of events amount to an extraordinary coincidence that is suspiciously convenient, the RAD can reasonably regard such evidence as dubious (see Meng v Canada (Citizenship and Immigration), 2015 FC 365 at para 22; Jiang v Canada (Citizenship and Immigration), 2021 FC 572 at para 44; Malik v Canada (Citizenship and Immigration), 2022 FC 1097 at para 26; Idugboe v Canada (Citizenship and Immigration), 2020 FC 334 at paras 21-25; Elmi v Canada (Citizenship and Immigration), 2020 FC 296 at paras 32-36; Yusuf v Canada (Citizenship and Immigration), 2023 FC 1032 at para 9; Ilyas v Canada (Citizenship and Immigration), 2024 FC 1940).
[41] With respect to the source of the affidavit, the RAD provided several examples in which the language used in the new affidavit and the language used by the Applicant’s father in his affidavit previously submitted before the RPD is identical. The RAD found it unlikely that two individuals, living in separate states, would independently use the exact same language in their affidavits. Thus, in my opinion, it was reasonable for the RAD to find that this undermines the credibility of the source of the new affidavit.
[42] I disagree with the Applicant that the RAD’s analysis was microscopic or overzealous.
[43] The RAD further questioned whether the JS affidavit was sworn by the same person who swore the prior affidavit because of discrepancies between the two documents. Even if he speaks both languages, the affiant did not explain why he used different languages when swearing his declaration for each affidavit. The reference to the relationship between the Applicant and the affiant lacks clarity as it differs from “relative”
to “uncle”.
While the first affidavit was identified with the affiant’s Aadhaar card number and photo, no identification has been provided by the affiant of the new affidavit. The RAD did not base its decision solely on these discrepancies but rather considered that it was an accumulation of these several concerns regarding the circumstances and source to conclude that the new affidavit, the new evidence, is not credible.
[44] As pointed out by the Respondent, the Court of Appeal in Raza provides clear guidance that the sources and circumstances in which the new evidence came into existence is part of the credibility analysis. I agree that this is exactly the analysis that was conducted by the RAD in this case.
[45] The RAD’s assessment of the credibility of the new evidence is reasonable. The RAD reasonably rejected the new evidence as per subsection 110(4) of the IRPA.
B. IFAs
[46] Contrary to the Applicant’s submissions, the admissibility of the new evidence is not, in my view, determinative of the reasonableness of the RAD’s IFA findings. The RAD found that the Applicant has two viable IFAs based on several factors, including the negative credibility determinations of the RPD, the low likelihood that the Applicant’s fingerprints were recorded on the national criminal database, and the absence of a link between the Applicant and major criminal organizations and “anti-national”
movements.
[47] Even if the Applicant had persuasively demonstrated that the RAD erred by refusing to admit the new evidence, which he has not, I find admitting the new affidavit of JS would not justify overturning the RAD’s IFA assessment. The Applicant’s failure to address the full scope of the RAD’s IFA findings demonstrate that this application for judicial review should be dismissed.
VIII. Conclusion
[48] The Decision complies with the requirements of justification, transparency and intelligibility imposed by the Supreme Court in Vavilov. The application for judicial review is dismissed.
[49] Neither party proposed a question for certification, and I agree none arises.
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