Date:
20060629
Docket:
IMM-7008-05
Citation:
2006 FC 829
Ottawa, Ontario, June 29, 2006
PRESENT: The Honourable Mr. Justice
Shore
BETWEEN:
HARDISH
SINGH NIJJAR
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] A
decision of a first-instance decision-maker must not be dissected piece by
piece, but should rather be examined in its entirety. If, as a whole, it is
coherent, that decision must stand.
NATURE OF THE JUDICIAL PROCEEDING
[2] This is an application for judicial
review under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act) of the decision of the Refugee Protection Division of
the Immigration and Refugee Board (Board), dated October 27, 2005, holding that
the applicant is not a Convention refugee or a person in need of protection.
FACTS
[3] The applicant, Mr. Hardish Singh
Nijjar, is a citizen of India who is seeking Canada’s protection on the basis
of the mistreatment he allegedly suffered for participating in a number of
demonstrations.
[4] Mr. Nijjar and his two brothers
were members of the political party Shiromani Akali Dal. In September 2000,
after a number of arrests and incidents in the course of which he was tortured,
his older brother left India. Mr. Nijjar and his family have had no contact
with his older brother since that time.
[5] On April 15, 2003, Mr. Nijjar
participated in a demonstration demanding an increase in the price of wheat and
a reduction in the price of manure. On August 20, 2004, Mr. Nijjar participated
in a demonstration demanding an increase in pensions for widows and elderly
persons. During these two demonstrations, a number of individuals, including
Mr. Nijjar, were arrested, detained and tortured. Thanks to the assistance of
certain influential persons, Mr. Nijjar was released after two or three days.
He required medical treatment as a result of his injuries.
[6] The police continued to harass Mr.
Nijjar’s family concerning the whereabouts of his older brother. Mr. Nijjar
participated in some demonstrations to prevent the construction of a canal that
would decrease the water supply for the farmers’ crops.
[7] Later, a friend of Mr. Nijjar
disappeared after having been arrested by the police. In August 2004, Mr.
Nijjar, fearing for his life, moved to his aunt’s home in the village of
Diwali. The police raided his aunt’s home on September 25, 2004, but Mr. Nijjar
escaped because he was in the fields. He then went to an uncle’s home at
Pandheran, where he was refused permanent shelter. He then decided to leave
India.
[8] With the help of an agent, he left
India on October 16, 2004, and arrived in Toronto the next day, where he
immediately claimed refugee status. He was detained until November 2004 by
reason of issues of identity.
[9] After his arrival in Canada, he
learned, as he spoke with his family, that his father and younger brother had
been arrested and tortured by the police because his father had sought to sue
the police.
IMPUGNED DECISION
[10] The Board ruled that Mr. Nijjar was
neither a Convention refugee nor a person in need of protection since his
return to India would not subject him to a serious possibility of persecution
or a risk to his life or cruel and unusual punishment. The Board based this
ruling on the fact that it was satisfied that an internal flight alternative
(IFA) was available.
[11] The Board did not cast doubt on the
fact that Mr. Nijjar had been arrested, detained and mistreated by the police.
However, it was not persuaded that Mr. Nijjar was especially targeted by the
police or that the police would still have some special interest in his family.
POINTS AT ISSUE
[12] Did the Board commit a reviewable
error in rejecting Mr. Nijjar’s refugee claim?
ANALYSIS
Statutory framework
[13] Under section 96 of the Act, a
person is a refugee if that person fears being persecuted because of his or her
race, religion, nationality, membership in a particular social group or
political opinion:
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
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96.
A qualité de réfugié au sens de la Convention – le réfugié – la
personne qui, craignant avec raison d’être persécutée du fait de sa race, de
sa religion, de sa nationalité, de son appartenance à un groupe social ou de
ses opinions politiques :
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(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
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a) soit se trouve hors de tout pays dont elle a la nationalité and
ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de
chacun de ces pays;
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(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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b) soit, si elle n’a pas de nationalité and se trouve hors du pays
dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette
crainte, ne veut y retourner.
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[14] Subsection 97(1) of the Act reads as
follows:
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97.
(1) A person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
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97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada and
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
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(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
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a) soit au risque, s’il y a des motifs sérieux de le croire, d’être
soumise à la torture au sens de l’article premier de la Convention contre la
torture;
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(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
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b) soit à une menace à sa vie ou au risque de traitements ou peines
cruels and inusités dans le cas suivant :
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(i)
the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
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(i)
elle ne peut ou, de ce fait, ne veut se
réclamer de la protection de ce pays,
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(ii)
the risk would be faced by the person in every
part of that country and is not faced generally by other individuals in or
from that country,
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(ii)
elle y est exposée en tout lieu de ce pays
alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le
sont généralement pas,
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(iii)
the risk is not inherent or incidental to
lawful sanctions, unless imposed in disregard of accepted international
standards, and
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(iii)
la menace ou le risque ne résulte pas de
sanctions légitimes – sauf celles infligées au mépris des normes
internationales – and inhérents à celles-ci ou occasionnés par elles,
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(iv)
the risk is not caused by the inability of
that country to provide adequate health or medical care.
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(iv)
la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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Standard of review
[15] When credibility is an issue, the
applicable standard of review is that of patent unreasonableness. This Court
can intervene only if the decision is patently unreasonable, even if it does
not agree with the findings or the inferences drawn by the tribunal below. (Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315
(F.C.A.), [1993] F.C.J. No. 732, at paragraph 4; Thamotharem v. Canada
(Minister of Citizenship and Immigration), 2006 FC 16, [2006] F.C.J. No. 8
(QL), at paragraph 16; Umba v. Canada (Minister of Citizenship and
Immigration), 2004 FC 25, [2004] F.C.J. No. 17 (QL), at paragraph 31; Kathirgamu
v. Canada (Minister of Citizenship and Immigration), 2005 FC 300, [2005]
F.C.J. No. 370 (QL), at paragraph 41; Trujillo v. Canada (Minister of
Citizenship and Immigration), 2006 FC 414, [2006] F.C.J. No. 595 (QL), at
paragraph 12; Chowdhury v. Canada (Minister of Citizenship and Immigration),
2006 FC 139, [2006] F.C.J. No. 187 (QL), at paragraph 12; N’Sungani v.
Canada (Minister of Citizenship and Immigration), 2004 FC 1759, [2004]
F.C.J. No. 2142 (QL), at paragraphs 6 and 12; Bankole v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1581, [2005] F.C.J. No. 1942 (QL), at
paragraph 6.)
[16] As to the question of the internal
flight alternative (IFA), this is a question of fact and the appropriate
standard of review is also that of patent unreasonableness (Chorny v. Canada
(Minister of Citizenship and Immigration), 2003 FC 999, [2003] F.C.J. No.
1263 (QL), at paragraph 5).
Did the Board make a reviewable
error in rejecting Mr. Nijjar’s refugee claim?
[17] The Board linked Mr. Nijjar with the
Shiromani Akali Dal party (Reasons for decision, at pages 1 and 2). While it
later used the expression “Akali Dal”, this is probably a careless error. In
his Personal Information Form (PIF), Mr. Nijjar clearly identified the political
party to which he said he belonged, the Shiromani Akali Dal. However, later, he
referred to the party by other names, especially “Mann party”. In the articles
that are included in the panel record, the appellations given to the two
political parties vary.
[18] More important than the precise
appellation given to the party by the Board is the issue of whether Mr. Nijjar
was a member of a dissident political party in India and whether that
membership jeopardized his possible return to India. The Board examined this
question closely and seems to have found that Mr. Nijjar was a member of a
dissident political party. However, in its opinion, he was not a highly placed
member and his membership as a rank-and-file member and his participation in
certain demonstrations did not make him a wanted person who would be at risk of
persecution, torture or cruel and unusual treatment.
[19] The Board’s error about the name of
the party does not affect the final ruling. It does not make the decision
patently unreasonable. As Mr. Justice François Lemieux stated, in Anandasivam
v. Canada (Minister of Citizenship and Immigration), 2001 FCTD 1106, [2001]
F.C.J. No. 1519 (QL), at paragraph 25, there is no need to over-scrutinize the
Board’s reasons for decision; the Board’s reasons will be adequate if they
reveal a proper review of the points at issue and of the evidence:
It is also well to recall Justice Laskin’s,
as he then was, admonition in Boulis v. The Minister of Manpower and
Immigration, [1974] S.C.R. 875 at 885 that “the Board’s reasons are not to
be read microscopically; it is enough if they show a grasp of the issues that
are raised ... and of the evidence addressed to them, without detailed
reference. The record is available as a check on the Board’s conclusions”.
[20] Similarly, in Jarada v. Canada
(Minister of Citizenship and Immigration), 2005 FC 409, [2005] F.C.J. No.
506 (QL), at paragraph 22, Mr. Justice Yves de Montigny stated:
… It is well-settled case law that the
reasons of an administrative tribunal must be taken as a whole in determining
whether its decision was reasonable, and analysis does not involve determining
whether each point in its reasoning meets the reasonableness test (see in
particular Stelco Inc. v. British Steel Canada Inc., 2000 CanLII 17097 (F.C.A.),
[2000] 3 F.C. 282 (F.C.A.); Yassine v. M.E.I., [1994] F.C.J. No. 949
(F.C.A.)). …
[21] The findings of fact made by the
tribunal respond to all the other concerns of Mr. Nijjar. He was not the
subject of an arrest warrant (Reasons for decision, at page 5). An affidavit
did mention that Mr Nijjar was being sought shortly after the disappearance of
his brother in September 2000 and that his brother and his father had been
arrested more recently. However, the Board was of the view that Mr. Nijjar should
have amended his PIF to include the visit the police had made to his parents in
regard to him (Reasons for decision, at page 4). This visit, which Mr. Nijjar
mentioned in his testimony at the hearing, would have indicated that the
authorities were still looking for him and was thus important. Mr. Nijjar’s
failure to amend his PIF to include this visit was significant, in the Board’s
view.
[22] It should be mentioned that Mr.
Nijjar knew almost nothing about the political party he alleges he belonged to,
and that he admitted being only a rank-and-file member. His membership, in
itself, cannot have caused him the problems he alleged (Reasons for decision,
at pages 4-5). If Mr. Nijjar did participate in two demonstrations demanding
greater social justice, he was arrested in the same capacity as all the other
participants in the demonstrations (Reasons for decision, at page 4). The
connection between all these factors is the crux of the Board’s decision, which
found that “There I[sic], however, no reason to believe that the claimant was
particularly targeted by the police” and that “He has failed to credibly
establish that he was singled out by the police — rather he was arrested along
with many others and, while treated badly, not targeted.” (Reasons for decision,
at pages 4-5).
[23] Applying sections 96 and 97 of the
Act, the Board found that Mr. Nijjar had not established the existence of a
risk if he were to return to India (Reasons for decision, at page 5). In
addition to the factors we have just discussed, the Board did take into account
the existence of an IFA.
[24] In Ahmad v. Canada (Minister of
Citizenship and Immigration), 2004 FC 808, [2004] F.C.J. No. 995 (QL), at
paragraphs 21-22, Mr. Justice Paul Rouleau made the following comments about
the test under section 97 of the Act, according to which it can be determined
whether the claimant will personally be exposed to a risk:
First of all, I wish to point out that the
relevant test under section 96 is in fact quite distinct from the test under
section 97. A claim based on section 97 requires the Board to apply a different
criterion pertaining to the issue of whether the applicant’s removal may or may
not expose him personally to the risks and dangers referred to in paragraphs
97(1)(a) and (b) of the Act. However, this criterion must be assessed in light
of the personal characteristics of the applicant.…
Thus the assessment of the applicant’s fear
must be made in concreto, and not from an abstract and general
perspective. The fact that the documentary evidence illustrates unequivocally
the systematic and generalized violation of human rights in Pakistan is simply
not sufficient to establish the specific and individualized fear of persecution
of the applicant in particular. Absent the least proof that might link the
general documentary evidence to the applicant’s specific circumstances, I
conclude that the Board did not err in the way it analyzed the applicant’s
claim under section 97.
[25] Contrary to what Mr. Nijjar argues,
the Board did take into account the factors that are traditionally applicable,
that is, the serious possibility of a risk in other parts of the country and
the reasonableness of the IFA finding (Reasons for decision, at page 5).
Although it observed that the second test was not required by subparagraph
97(1)(b)(ii) of the Act, it held that the IFA finding was, in Mr.
Nijjar’s case, completely reasonable (Reasons for decision, at pages 7-8).
[26] In its review of the relevant
documentary evidence, the Board was not selective. It did not need to mention
the part of the evidence according to which Indians suspected of insurrection
or incitement to insurrection against the State would be persecuted, since it
had already found that Mr. Nijjar was not sought by the Indian authorities. The
Board had no reason either to examine the situation of rejected asylum seekers who
are sought, who return to India, since that is not Mr. Nijjar’s case. For
the same reasons, it is irrelevant that Indian police stations have been
connected by an electronic network or that the Indian police engage in
“tracking” Sikhs. In view of both the general documentary evidence and the
particular situation of Mr. Nijjar, the Board found that there was an IFA. This
conclusion was not patently unreasonable.
[27] The Board may determine that an
applicant is not credible on the basis of contradictions or inconsistencies in
his testimony. In Anandasivam, supra, at paragraph 24, Mr.
Justice Lemieux stated:
The tribunal’s finding that the applicant
was not wanted for questioning was based, as noted, on what the tribunal found
to be an inconsistency and two implausibilities. Aguebor v. Minister of
Employment and Immigration (1994), 160 N.R. 315 is authority for the
proposition the tribunal, a specialized one, has complete jurisdiction to
determine the plausibility of testimony provided that plausibility findings are
reasonably drawn on the evidence. Also, there can be no doubt the tribunal may
base its findings on internal contradictions or inconsistencies which are at
the heartland of the discretion of triers of fact.
[28] The Court may intervene only if Mr.
Nijjar demonstrates that the Board erred in law or in fact in its decision. The
Court cannot intervene simply because it (or the applicant) disagrees with the
Board’s decision. In Nxumalo v. Canada (Minister of Citizenship and
Immigration), 2003 FCTD 413, [2003] F.C.J. No. 573 (QL), at paragraph 7,
Mr. Justice Simon Noël said:
With regard to the applicant’s credibility,
I believe that the applicant is trying to get the Court to substitute its
opinion to the one of the Board. As Justice Blanchard held in Hosseini v.
Canada (M.C.I.), [2002] F.C.J. No. 509 (F.C.T.D.):
The assessment
of the value of the applicant’s explanations, like that of the other facts, is
entirely within the jurisdiction of the Refugee Division, which also has
recognized expertise in weighing the merits of testimony on the situation in
various countries. This being so, I agree with the respondent’s arguments,
namely that the applicant could not simply repeat on judicial review an
explanation already given to the specialized tribunal and dismissed by it. In Muthuthevar
v. M.C.I., [1996] F.C.J. No. 207, on line: QL, Cullen J. was entirely of
this opinion at para. 7 of his reasons:
While the
applicant seeks to “explain away” testimony that the Board found implausible,
it must not be forgotten that these same explanations were before the Board and
were not accepted as credible. The applicant has not directed to this Court
evidence that was ignored or misconstrued, and in the absence of such a
finding, the Board’s conclusions on credibility must stand.
CONCLUSION
[29] Mr. Nijjar was not an active member
of any political party in India. His participation at demonstrations did not
make him a person of interest to the Indian authorities. He was not wanted and
he had an IFA if he were to return to India, notwithstanding the events he had
experienced and that the Board took as proved.
[30] Past
events may be relevant in the assessment of the risk (Oyarzo v. Minister of
Citizenship and Immigration), [1982] 2 F.C. 779 (C.A.), at paragraph 5; Canada
(Minister of Citizenship and Immigration) v. Satiacum (1989), 99
N.R. 171 (F.C.A.), [1989] F.C.J. No. 505 (QL)) but they are not decisive since
the fear is assessed prospectively on the day of the hearing (Longia v.
Canada (Minister of Citizenship and Immigration), [1990] 3 F.C. 288 (C.A.),
[1990] F.C.J. No. 425 (QL), at paragraph 3).
[31] The Board ruled that the facts of
this case did not warrant granting Canada’s protection and the Board did not
make any patently unreasonable error in this regard. This Court will not
intervene, therefore, and the Board’s decision will stand. This application for
judicial review must be dismissed.
JUDGMENT
1. The application for judicial review
is dismissed;
2. No serious question of general
importance is certified.
“Michel M.J. Shore”
Certified true translation
Francois Brunet, LL.B., B.C.L.
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