Date: 20030806
Docket: IMM-5318-02
Citation: 2003 FC 954
BETWEEN:
MASIHUDDIN MOHAMMED
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LAYDEN-STEVENSON, J.:
[1] Despite the able argument of counsel for the applicant, I have not been persuaded that the Refugee Protection Division (RPD) committed any error in determining that the applicant is not a Convention refugee or a person in need of protection.
[2] The applicant, a 48 year old Muslim, is a citizen of India and resident of Hyderabad, Andhra Pardesh, India. He claims a well-founded fear of persecution by reason of his religion and claims to be a person in need of protection because he would be subjected personally to a risk to life or to a risk of cruel and unusual treatment or punishment or to a danger of torture at the hands of Hindu fundamentalists, particularly the Rashtriya Swayamsevak Sang (RSS), a Hindu extremist group. The applicant claims to have suffered harassment in nearly all aspects of his life as a Muslim. In 1992, his business was burned by the RSS. In the years following his nomination as secretary of a local mosque, he was threatened and attacked by RSS gangsters. The police failed to assist him. His family was also threatened. Following an attack by the RSS in June, 2001, he decided to leave India.
[3] The RPD accepted that the applicant was a national of India and a follower of the Muslim faith. It concluded, however, that Mr. Mohammed had a viable internal flight alternative (IFA) in Delhi. The panel concluded that there was no serious possibility of persecution or torture if the claimant were to relocate in Delhi and that it was not unreasonable, in all of the circumstances, for him to seek refuge there.
[4] The sole issue on this application is whether the RPD erred in determining that the applicant has an IFA. The standard of review applicable to that determination is patent unreasonableness: Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.); Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. The test with respect to an IFA is two-pronged and is articulated in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) and Thirunavukkarasu v. Canada (Minister of Citizenship and Immigration), [1994] 1 F.C. 589 (C.A.). The RPD must be satisfied, on a balance of probabilities, that there is no serious possibility of the applicant being persecuted in the proposed IFA and that, in all the circumstances, including the circumstances particular to him, the conditions in the proposed IFA are such that it is not unreasonable for the applicant to seek refuge there.
[5] Regarding the first prong of the test, the applicant relies on his testimony that the RSS are throughout India and that they control India (Transcript, page 7) and that as a Muslim, he would be targeted by police as being a terrorist or supporter of the Kashmir (Transcript, pages 21, 22). He submits that this uncontradicted evidence demonstrates that Delhi is not a viable IFA. With respect to the second prong, the applicant refers to his statements that there is a language barrier and that he could not get a job in Delhi (Transcript, page 21) and submits that it was therefore not reasonable for him to seek refuge there.
[6] An applicant who seeks to establish that an IFA is unreasonable must meet a very high threshold: Ranganathan v.Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.). It is correct that an applicant's sworn testimony is presumed to be true unless there is reason to doubt its truthfulness: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). However, the presumption is always rebuttable and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention:Adu v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 114 (T.D.).
[7] The RPD considered the applicant's evidence in its decision. It wrote a detailed and comprehensive analysis in relation to whether there exists a serious possibility that the applicant would be at risk in Delhi. Documentary evidence respecting the current situation of Muslims in India and the operations of the RSS and other Hindu extremist groups was reviewed. In considering the totality of the evidence, the RPD made the following findings:
- documentary evidence indicated no restrictions on the ability of Indian citizens to relocate to other states or cities, except in some border areas where permits are required for security reasons;
- there is an absence of documentary evidence that the RSS or other Hindu fundamentalist groups are targeting Muslim activists or leaders in Delhi;
- in relation to the incidents complained of, the local RSS members were responsible for each of the incidents;
- the applicant was not wanted by police or other authorities in India;
- the applicant's profile and personal situation as a Muslim activist and secretary of his religious organization were of a localized nature and he would not be known or targeted by extremist groups in Delhi;
- there was no evidence that the applicant had ever been involved in any Muslim extremist group or had ever travelled to Jammu and Kashmir, regions where there were problems;
- the applicant's evidence that the president of his religious organization was not subject to the same threats as the applicant because of his elderly age resulted in a finding that it was implausible that the applicant would be pursued by RSS members if he were to relocate outside Andhra Pradesh;
- the applicant was well-educated, held a Bachelor of Science degree, had some computer training, spoke Urdu and English and his employment experience and abilities presented no serious economic or social barriers such that relocation would be unduly harsh.
[8] In my view, the applicant's arguments constitute an attempt to reweigh the evidence. That is not the Court's function. The finding that an IFA exists was open to the RPD and cannot be considered to be patently unreasonable. The applicant has not met the threshold referred to in Ranganathan, supra.
[9] The application for judicial review will be dismissed and an order will so provide. This matter raises no serious question of general importance.
"Carolyn Layden-Stevenson"
JUDGE
Calgary, Alberta
August 6, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5318-02
STYLE OF CAUSE: Masihuddin Mohammed v. The Minister
of Citizenship and Immigration
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: Tuesday, August 5, 2003
REASONS FOR ORDER : LAYDEN-STEVENSON, J.
DATED: August 6, 2003
APPEARANCES:
Mr. Satnam S. Aujla FOR APPLICANT
Mr. W. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Yanko Merchant Law Group
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
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