Date: 20060607
Docket: IMM-5848-05
Citation : 2006 FC 709
Ottawa, Ontario, June 7, 2006
Present:
The Honourable Mr. Justice Simon Noël
BETWEEN:
SUKHPAL
SINGH
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under section 72 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision by the
Refugee Protection Division (RPD) dated September 1, 2005. In this decision,
the RPD denied the refugee claim of Sukhpal Singh (applicant). According
to the RPD, the applicant was not a refugee, or a person in need of protection
within the meaning of sections 96 and 97 of the IRPA because he had an internal
flight alternative (IFA) and because the extortion he alleges to have suffered
is not a ground of protection provided under the United Nations Convention Relating to the
Status of Refugees,
R.T. Can 1969, No. 6 (Convention).
I. Issues
-
Did the
RPD err in determining that extortion is not a Convention ground and that,
accordingly, the applicant is not a refugee?
-
Did the
RPD err in fact or in law in deciding that the applicant had an IFA and that he
was therefore not a refugee or a person in need of protection?
[3]
In his written
submissions, the applicant argued, inter alia, that a person in danger
of being subjected to torture cannot be excluded by relying on the fact that
this person has an IFA, considering the wording of paragraph 97(1)(a)
of the IRPA. The applicant abandoned this argument at the hearing. It is
therefore not necessary to consider it.
II. Conclusion
[4]
The
application for judicial review is allowed.
III. Facts
[5]
The
applicant is a native of Punjab, India.
[6]
His father
owned a trucking company. As a member of his village’s council, he always
opposed the authorities’ abuses against young Sikhs. The applicant alleges that
for that reason, the authorities targeted his father, accusing him of
collaborating with Sikh activists.
[7]
In August
2003, the police arrested the applicant’s father, on the grounds that
explosives had been found in one of his company’s trucks. The applicant’s
father was arrested, roughed up and released. After being arrested and tortured
once again, the applicant’s father fled.
[8]
The
applicant and his brother took over the trucking company. The police began to
target the two young men, allegedly in order to elicit admissions from them
regarding their father and one of the company’s employees, Mohinder Singh, who
was also suspected of conspiring with Sikh activists.
[9]
The
applicant and his brother were arrested and tortured by the police on two
occasions, namely in April 2004 and in November 2004. On both occasions, the
applicant and his brother were released after paying bribes. The applicant left
India on January 3, 2005, and filed a refugee claim on January 10, 2005.
IV. Analysis
[10]
The RPD
first determined that the applicant had been an extortion victim, and that a
Convention refugee claim could not be based on extortion allegations.
[11]
This was
an error in characterizing the facts. The Personal Information Form (Tribunal
record, pages 19 and 20) and the applicant’s testimony (RPD’s record, pages 237
and 240) refer to the torture that the applicant and his brother alleged
to have suffered in detention. Nevertheless, the RPD emphasized a secondary
aspect of the facts, namely the allegations to the effect that the applicant’s
family paid money to secure the release of the applicant and his brother. In
other words, the RPD appears to have considered that the applicant sought
protection from Canada because of the money extorted for the release of the
applicant and his brother. This aspect is certainly part of the relevant facts,
but it is not a basis of the applicant’s claim. The applicant did not seek
protection from Canada because he fears that he will be the victim of
extortion, but rather because he says that he fears he will be tortured.
[12]
In Abarajithan
v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No.
54 (F.C.A.), MacGuigan J.A. explains
that a misunderstanding of a significant aspect of the evidence may, in some
cases, vitiate the decision:
In our view
the Refugee Division was clearly in error in the few words in which it chose to
set out its reasoning. (Appeal Book at 88):
In the
panel's opinion, the claimant does not have good grounds to fear persecution
should he return to Sri Lanka. According to his own testimony, he can obtain a
job in any of the Distribution Centres in northern and eastern Sri Lanka. In
places that are far away from the village where the claimant's family lived,
nobody knows that his father was acting as an interpreter for the local Tamil
population in their dealings with the IPKF. As the documentary evidence
indicates, the IPKF has left Sri Lanka. In north-eastern Sri Lanka, there is
now peace and co-operation between LTTE and the Sri Lankan Army. In the south,
the Sri Lankan army has defeated the JVP. C-4, “Old Tigers in new skins” The
Economist (31 March 1990).
As we read
it, the appellant's testimony was not that he would have no problems as things
then stood in obtaining a job as an electrical engineer in Sri Lanka, but only
“if things were peaceful in Sri Lanka” (Appeal Book at 31). Not every such
misunderstanding of evidence by a tribunal is fatal to its decision, but in
this case the Refugee Division itself made this erroneous view of the evidence
the centrepiece of its reasoning. The decision cannot, therefore, stand.
[Emphasis added.]
[13]
As noted
by MacGuigan J.A., a significant error does not necessarily warrant referring
the matter back to the RPD. The error must be key in the reasoning.
[14]
The error
in this case is certainly at the heart of the decision because it relates to
the very basis of the refugee claim. However, the existence of an IFA for the
applicant can nevertheless justify the dismissal of the refugee claim.
[15]
In Fedonin
v. Canada, [1997] F.C.J. No. 1684 (F.C.), at paragraph 2, Mr.
Justice Pinard writes in obiter:
¶ 2 When
she began her argument, counsel for the applicants stated that she was unable
to invalidate the portion of the panel's decision finding that the applicants
had an internal flight alternative in the north of Kazakhstan. As I told her at
the hearing, she thereby eliminated any chance that the application for
judicial review had of succeeding. Counsel nevertheless tried to persuade
me that the panel had made such a flagrant error in assessing the evidence and
in how it distinguished between persecution and discrimination that this Court
had to intervene.
[Emphasis added.]
[16]
In the
recent decision Afolabi v. Canada, 2006 FC 468, at paragraph 7,
Mr. Justice Kelen states, in obiter, that the issue of the IFA
is decisive:
The applicant did not challenge a number
of the Board's findings, including its determination that an internal flight
alternative exists for the applicant in southern Nigeria. The Court finds that
the IFA finding is not unreasonable. Accordingly, the Board did not err in
concluding that the applicant is not a refugee or a person in need of protection.
This issue is conclusive of the case.
[17]
Finally, I
think that it is important to point out that the Federal Court of Appeal
decided, in Kanagaratnam v. Canada (Minister of Employment and Immigration),
[1996] F.C.J. No. 75, that the RPD is not bound to determine whether a
person’s fear of persecution is well-founded within the meaning of
section 96 of the IRPA when it determines that there is an IFA:
¶3 The Trial
Judge then found that the Board's decision respecting the IFA was proper and
dismissed the motion. The Trial Judge, nevertheless, certified the following
question for this Court:
Is a
determination of whether a claimant has a well founded fear of persecution in
the area from which he or she originates a prerequisite to the consideration of
an internal flight alternative?
¶4 The answer to this
question is “NO”. In assessing whether a viable IFA exists, the Board, of
course, must have regard to all the appropriate circumstances. This was done
in this case. Since an IFA existed, therefore, the claimant by definition
could not have a well-founded fear of persecution in her country of
nationality. Thus, while the Board may certainly do so if it chooses, there
was no need as a matter of law for the Board to decide whether there was persecution
in the area of origin as a prerequisite to the consideration of an IFA.
[18]
That
decision by the Federal Court of Appeal in Kanagaratnam v. Canada (Minister
of employment and Immigration) persuades me of the determinative nature of
the issue of the existence of an IFA on the outcome of a refugee claim. Also, I
share my colleagues’ opinion to the effect that an application for judicial
review cannot be allowed when the refugee claimant has an IFA, even if the RPD
has indeed made errors of fact. That said, I think that this rule should be
applied carefully. In certain circumstances, a critical error in characterizing
the facts may affect the overall analysis, including the RPD’s findings bearing
on the issue of the IFA. In such a case, the analysis of the IFA issue would
itself be tainted by an error resulting from the mischaracterization of the
applicant’s factual situation. When dismissing the application for judicial
review, the Court should then explain how the RPD’s analysis of the IFA issue
is no longer valid or persuasive considering the error of fact made. The
process could also consist in establishing that the error is “the centrepiece
of [the RPD’s] reasoning”, as was the case in Abarajithan v. Canada
(Minister of Employment and Immigration), supra. The context and the
decision must be considered as a whole in determining whether the application
for judicial review should be granted when there has been a fundamental error
in the characterization of the facts and the RPD has dismissed the refugee
because an IFA exists.
[19]
In this
case I believe that the overall situation justifies allowing the application
for judicial review for the following reasons.
[20]
First, the
RPD’s error in characterizing the facts was fundamental, as explained above
[see paragraphs 10 to 14 of this decision].
[21]
Furthermore,
I do not have any evidence I can rely on to determine whether the RPD’s
analysis on the IFA issue was carried out correctly. I explain this in the
following paragraphs.
[22]
The
appropriate test for determining whether a person can avail himself of an IFA
is summarized by Mr. Justice Mosley, in Kumar v. Canada (Minister of
Citizenship and Immigration), 2004 FC 601, at paragraph 20:
In order for the Board
to find that a viable and safe IFA exists for the applicant, the following
two-pronged test, as established and applied in Rasaratnam v. Canada
(Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) and Thirunaukkarasu,
supra, must be applied:
(1) the Board must be
satisfied on a balance of probabilities that there is no serious possibility of
the claimant being persecuted in the proposed IFA; and
(2)
conditions
in the proposed IFA must be such that it would not be unreasonable, upon
consideration of all the circumstances, including consideration of a claimant's
personal circumstances, for the claimant to seek refuge there.
[Emphasis added.]
The part of the RPD’s decision dealing with the IFA issue is
at pages 5 and 6 of the decision (RPD decision, pages 5-6):
The tribunal
concludes that the claimant, who will be 18 years old on October 16, 2005, is
not a high profile individual in Punjab and can relocate and live elsewhere in
India.
In Exhibit
A-1 , section 2.1, subsection 6.137 of the Montreal Regional Binder for India,
dated July 2004, UK Country Assessment, it is written that Punjabi Sikhs are
able to relocate in another part of India and, since they are a mobile
community, there are Sikhs all over India.
In section
6.138 of the same UK report, it is stated that there are no checks on a
newcomer to any part of India arriving from another area of the country, not
even for Punjabi Sikhs, contrary to what the claimant’s testimony suggested.
Local police
forces have neither the resources nor the language abilities to perform
background checks on people arriving from other parts of India. There is no
system of registration of citizens.
In section
6.139, it is said that it would be possible for a low-profile person to move
elsewhere in India. This document also states that someone who has or has had problems
in Punjab should have no problems residing elsewhere in India. It is also
reported that authorities in New Delhi are not informed about people wanted in
Punjab.
The tribunal
concludes that, since an Internal Flight Alternative (IFA) is reasonably
accessible, the claimant can relocate elsewhere in India.
[Footnotes
omitted.]
[23]
The first
branch of the test summarized in Kumar v. Canada (Minister of Citizenship
and Immigration), supra, is not problematic in this case,
since the RPD’s decision addressed it thoroughly. The RPD’s analysis is centred
on the question of whether the applicant could move from one place to another
once he was in India.
[24]
The second
branch, however, is addressed in a much less detailed and personalized manner.
On that point, I note that the RPD did not refer to the passage of the British
report explaining how refugee claimants sent back to India are treated, in
particular upon their return (see Country Information & Policy Unit,
Immigration and Nationality Directorate, Home Office, United Kingdom, India
Country Report, April 2004, subsections 6.320 to 6.322, attached to the
affidavit of Geneviève Cadotte). The applicant alleged that in each case the
RPD is bound to assess whether a refugee claimant would be intercepted at the airport.
The respondent argued rather that the RPD has no such obligation.
[25]
In my
opinion, the reasonableness of an IFA must be addressed in detail, as appears
from the case law on the issue. In the matter of Rasaratnam v. Canada
(Minister of Employment and Immigration), [1992] 1 F.C. 56 (F.C.A.), at
paragraph 10, Mr. Justice Mahoney writes:
In my
opinion, in finding the IFA, the Board was required to be satisfied, on a
balance of probabilities, that there was no serious possibility of the
Appellant being persecuted in Colombo and that, in all the circumstances
including circumstances particular to him, conditions in Colombo were such
that it would not be unreasonable for the Appellant to seek refuge there.
[Emphasis added.]
[26]
In some
cases, the manner in which the applicant is at risk of being treated when he
arrives at the airport in his native country may be included in the
circumstances which must be taken into consideration in the second branch of
the test as set out in Kumar v. Canada (Minister of Citizenship and
Immigration), supra. The applicant must also allege that he could
be at risk at the airport or his counsel must refer to it in his arguments.
[27]
On June 1,
2005, noting that certain important evidence had not been attached to the
tribunal record, the undersigned issued a direction, the relevant passage of
which reads as follows:
[translation]
On reviewing the transcript of
the hearing in docket IMM-5848-05, I note that the applicant’s counsel before
the Refugee Protection Division (RPD), Mr. Bertrand, states that the day
before he had prepared submissions on the issue of an available flight
alternative and that he filed documents on that point (Tribunal record,
page 265; transcript of hearing, page 50):
A.
The last point was IFA. We discussed at length on this yesterday, so I don’t
really have more to say than what I said yesterday on these issues. I think we
went around the lot of it yesterday. And…
-
Even had a copy.
A.
Yeah.
-
Right here.
A.
Right, and…
-
In my left hand.
A.
I will take a few minutes after the hearing to highlight those portions of the
decision that I referred to yesterday.
-
Yeah, but I’ve noted the pages.
A.
Yeah, that’s right. As you remember from my citing the page numbers, they’re
all together.
-
Yeah.
A.
At the… it’s a very short decision, so I mean it’s very easy to spot. Thank you, Mr. President.
Where are these submissions
and these documents in the tribunal record?
…
[28]
The
respondent’s counsel responded to the direction in a letter dated June 2, 2006.
In this letter, she explained that she consulted the applicant’s RPD counsel
and that the observations and the documents in question had been filed on June
14, 2005, in the record of another refugee claimant. The applicant’s counsel
also contacted the applicant’s RPD counsel and arrived at the same findings of
fact. The tribunal record is therefore incomplete.
[29]
The Court
does not know whether the applicant drew the RPD’s attention to the risk that
he could face at the airport if he were to be returned to India, as it did not
have the opportunity to review all of the applicant’s arguments before the RPD.
It is true that the refugee claimant has the responsibility of establishing
that he cannot avail himself of an IFA: he has the burden of proof. However, in
the event that the RPD chooses to deny a refugee claim on the grounds that an
IFA exists, it is nonetheless bound to address the two branches of the test
summarized in Kumar v. Canada (Minister of Citizenship and
Immigration), supra. The absence of certain documents in the record
precludes me from assessing whether the applicant was the one who failed to
raise the risk that he could face at the airport if he were to be removed or if
it was rather the RPD that failed to address the argument made by applicant’s
counsel.
[30]
This is
not a matter of obliging the RPD to assess in each case whether or not a
refugee claimant will be intercepted at the airport. However, if such an
argument is raised by a refugee claimant, it seems to me that the RPD could be
bound to address it in its analysis in the second branch of the test set out in
Kumar v. Canada (Minister of Citizenship and Immigration), supra.
The state of the record does not indicate whether such an argument was made
before the RPD by the applicant’s counsel.
[31]
The RPD’s
decision is vitiated, considering the RPD’s error in characterizing the facts
and the absence of certain essential documents from the record to assess
whether the RPD’s analysis of the IFA issue was carried out correctly. The
application for judicial review is therefore allowed.
V. Questions for certification
[32]
The
parties were invited to propose questions for certification. The applicant
proposed the following question:
[translation]
Once the panel determines that the
applicant has a viable internal flight alternative available in his country, it
that sufficient to decide his refugee claim when the issue is address from the
perspective of section 96 or section 97 of the Act or must the panel consider
the risks of returning to the airport or to the borders of his country in the
event the applicant were to return to his country?
[33]
This
question has two distinctive parts. The first part involves the issue of
whether the existence of an IFA is sufficient to dismiss an application for
judicial review. The second part involves the issue of whether in every case
the RPD is bound to address the manner in which a claimant will be treated upon
returning to his native country when it applies the IFA test.
[34]
To
determine whether a question must be certified, we must refer to the criteria
established in Canada (Minister of Citizenship and Immigration) v.
Liyanagamage, [1994] F.C.J. No. 1637, at paragraph 4. The question
must transcend the interests of the parties to the litigation, contemplate
issues of general application, and be determinative of the appeal.
[35]
The first
part of the question need not be certified, since a question bearing on this
first part would not transcend the interests of the parties to the litigation,
since the case law clearly establishes that the existence of an IFA may be
sufficient to dismiss an application for judicial review (see paragraphs 14 to
18 of this decision).
[36]
The second
part of the question would not transcend the interests of the parties to the
litigation, either. In fact, the applicable test before the courts for
determining whether an IFA is available in a given case is very well
established in the case law (see paragraphs 21 to 25 of this decision). The RPD
is not bound to assess the risk of returning to the airport under the second
branch of the test in the case law unless the applicant raises an argument to
that effect and the facts can reasonably support it.
[37]
For these
reasons, no question is certified.
JUDGMENT
THE COURT ORDERS THAT:
-
The
application for judicial review be allowed and the matter referred to the RPD
to be reviewed by a differently constituted panel;
-
No
question is certified.
“Simon
Noël”
Certified true
translation
Kelley A. Harvey, BCL,
LLB
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