Date: 20061108
Docket: IMM-1951-06
Citation: 2006 FC 1352
Vancouver, British Columbia, November
8, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
JOGINDER
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Joginder
Singh’s refugee claim was dismissed by the Refugee Protection Division of the
Immigration and Refugee Board, which found that he had a viable internal flight
alternative (or IFA) within India. Mr. Singh seeks judicial review of the
Board’s decision, asserting that the Board made a number of errors in its
decision.
[2]
For
the reasons that follow, I am not persuaded that the Board erred as alleged by
Mr. Singh, and, as a result, his application for judicial review will be
dismissed.
Problems with
Interpretation
[3]
Mr.
Singh asserts that he was denied procedural fairness in this matter as a result
of the inadequate interpretation provided by the Board. In support of this
argument, Mr. Singh has provided an affidavit from his former counsel which states
that, at the conclusion of the hearing Mr. Singh advised him that the
interpreter had not allowed him to complete his evidence and “was not
interested in listening to him”.
[4]
Counsel
further deposes that when the presiding member returned to the hearing room to
deliver her decision, counsel put his hand up twice in an effort to convey his
client’s message. Nevertheless, the presiding member simply went ahead and
delivered her decision.
[5]
Mr.
Singh did not himself file an affidavit in support of his application, and thus
there is no direct evidence from him that there was in fact a problem with the
interpretation. Nor is there any evidence from Mr. Singh as to when it was
during the hearing that he was limited or precluded from testifying fully.
[6]
There
is no question that a refugee claimant is entitled to continuous, precise,
competent, impartial and contemporaneous interpretation at his or her refugee
hearing: see Mohammadian v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 191.
[7]
An
applicant need not demonstrate actual prejudice resulting from deficiencies in
interpretation. However, as a general rule, any objection to the quality of the
interpretation must be raised at the first reasonable opportunity: see Mohammadian,
at ¶ 27.
[8]
Having
carefully considered the matter, I am satisfied that if there were indeed
problems with the interpretation at the hearing, Mr. Singh has waived his right
to object. He was represented by counsel at the hearing. His counsel states
that he was made aware of the problem with the interpretation by Mr. Singh
before the presiding member delivered her decision in this matter. Counsel says
that he tried to raise the matter by raising his hand. This type of effort
would not appear on the transcript, and thus there is no independent
confirmation that this in fact occurred.
[9]
Moreover,
even if I accept at face value that counsel did try addressing the issue of the
interpretation by raising his hand, I am not satisfied that he took reasonable
steps to apprise the Board of his concerns. There is no suggestion in counsel’s
affidavit that the presiding member even saw counsel’s raised hand prior to
delivering her decision. When the presiding member did not call on counsel in
response to his raised hand, it would surely have been a simple matter for
counsel to address the Board verbally, indicating his concern with respect to
the quality of the interpretation.
[10]
As
a consequence, I find that Mr. Singh’s counsel failed to act reasonably in
raising a clear objection to the quality of the interpretation at the first
opportunity during the refugee hearing. Mr. Singh is bound by the actions of
his counsel, and must be deemed to have waived his right to object.
Internal Flight
Alternative
[11]
Mr.
Singh alleged that he feared persecution by Sikh militants who had threatened
and extorted him while he was residing in the Punjab area of India. While
accepting that the events relied upon by Mr. Singh in support of his claim took
place, the Board’s decision turned on its finding that Mr. Singh had an
internal flight alternative (or IFA) available to him in either Uttar Pradesh
or Tamil Nadu.
[12]
Mr.
Singh asserts that the Board erred in coming to this conclusion by ignoring
relevant evidence. In particular, Mr. Singh points to evidence with respect to
ethnic tensions and police corruption in Punjab.
[13]
I
am not persuaded that the Board erred as alleged by Mr. Singh. The evidence
relied upon by Mr. Singh relates to conditions within Punjab, and is not
therefore of particular relevance to the question of whether he could safely
and reasonably live elsewhere in India.
[14]
Moreover,
it is clear from Mr. Singh’s own testimony that he had lived in Uttar Pradesh
for a couple of years, without incident. As a consequence, I find no error in
the Board’s conclusion that it was reasonable to expect him to live there in
the future.
[15]
Finally,
Mr. Singh’s own testimony confirms that his reluctance to move to either Uttar
Pradesh or Tamil Nadu stemmed from personal preference, and not from any
concern as to his safety. This is confirmed by the following exchange which
took place at Mr. Singh’s refugee hearing:
Q: If
you returned to India, is there anything to prevent you from moving somewhere
outside Punjab?
A: I don’t know
anybody. Where will I go? I want to stay here.
Q: Knowing
somebody isn’t a requirement when it comes to protecting your safety. I’m
asking are there any legal impediments to your relocating to another part of India?
A: The
first thing is we speak Punjabi and out of Punjab people speak Hindi and other
languages. But there we don’t have any relatives, link of relatives at other
places. I’m living here because I think this is a peaceful country and my
brother and sister are here. I feel myself relieved and safe here.
Q: We’re
talking about India, not staying
here. What about going back to [Uttar Pradesh] where you appear to have lived
safely for a couple of years? Why can’t you go back there?
A: It is not easy to
live there because we were helpless, that’s why we had to live there.
Q: So
would there be anything preventing you from going back there? You have
relatives; you already are familiar with the place.
A: I don’t feel like
going there. [My emphasis.]
[16]
For
these reasons, I am satisfied that the Board’s finding that Mr. Singh had a
viable IFA available to him in India was one that was reasonably open to the
Board.
Conclusion
[17]
The
Board’s finding that Mr. Singh had a viable IFA available to him is dispositive
of this case, and it is therefore unnecessary to address the remaining issues
raised by Mr. Singh.
[18]
For
these reasons, the application for judicial review is dismissed.
Certification
[19]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No
serious question of general importance is certified.
“Anne
Mactavish”
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