Date: 20051124
Docket: IMM-3341-05
Citation: 2005 FC 1588
Ottawa, Ontario, November 24, 2005
PRESENT:
THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
JARNAIL
SINGH
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BEAUDRY J.
[1]
This is
an application pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act), for judicial review of a decision
by the Refugee Protection Division of the Immigration and Refugee Board (the Board)
delivered on May 9, 2005, in which the panel found that the applicant did not
meet the section 96 definition of “Convention refugee” or the section 97
definition of “person in need of protection”.
ISSUES
[2]
The issues
are the following:
1. Did the Board err in its
assessment of the applicant’s credibility?
2. Did the Board fail to properly
examine the documentary evidence submitted at the hearing?
3. Did the Board commit a
patently unreasonable error in finding that the applicant had an internal
flight alternative (IFA)?
4. Did the Board err in applying
section 97 of the Act?
FACTUAL BACKGROUND
[4]
The
applicant is an Indian citizen who resided in Punjab and is a member of the
Sikh minority. He alleges that he was arrested on four occasions by the police
on suspicion of collaborating with militants from Jammu and Kashmir. During
his detentions, he was allegedly interrogated, beaten and then released when
people from his village bribed the police.
[5]
After he
consulted with a lawyer about dealing with police intimidation, the police
allegedly searched his home in his absence on March 10, 2004. The applicant
obtained a passport in April 2004 and a visa on July 5, 2004. He arrived
in Canada on August 9, 2004.
IMPUGNED DECISION
[6]
The Board
found that the applicant was not credible because he had managed to obtain a
passport, whereas the documentary evidence showed that police authorities in
India conduct careful background checks on applicants before issuing
passports. The Board also noted that the applicant had waited six months after
receiving his passport before leaving India, which does not reflect the
behaviour of a person with a subjective fear of persecution in his country.
Furthermore, the Board found that, even if it did not doubt the applicant’s
credibility, his application for refugee status should be dismissed because he
had an IFA elsewhere in India.
ANALYSIS
1. Did the Board err in its
assessment of the applicant’s credibility?
[7]
The
standard of review applicable to judicial review of findings relating to
questions of fact and credibility is patent unreasonableness. It has now been
clearly established that the Board is a specialized tribunal fully qualified to
assess the credibility of testimony. Thus, as long as the Board’s findings as
to an applicant’s credibility are not so unreasonable as to warrant the
interference of the Court, they are not open to judicial review (Aguebor v.
Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732
(C.A.) (QL)).
[8]
The
applicant relies on the following passages from the Board’s written reasons for
decision in arguing that the Board committed a patently unreasonable error
warranting this Court’s intervention:
The claimant, a dairy farmer, testified
that there is no arrest warrant against him, and that he was never a political
activist in Punjab. He obtained a passport in April 2004 and a visa on July 5,
2004. The claimant was confronted by the tribunal with section 6.163 of the UK
Report, which states that according to the Danish Immigration Service
fact-finding report 2000, regarding application for a passport, a very thorough
check is made by local police. The individual’s status and whether there was a
case against him is researched before a passport is issued.
Confronted, the claimant testified that
the police have no right to intervene against him. Furthermore, he gave an
incomprehensible answer about his brother, who had accompanied him to New
Delhi, who went back to his village to pick-up the passport which had arrived
by mail to his house, and returned with it to Delhi to deliver it to the
claimant. The tribunal concludes that the claimant’s explanation is not
acceptable and affects his credibility. [Emphasis added.]
[9]
The
applicant asserts that, by listening to the tapes from the hearing, it is clear
that he was never told that his explanations were unacceptable or asked to
provide additional information on how he obtained his passport in New Delhi,
which constitutes a breach of the audi alteram partem rule and the rules
of natural justice.
[10]
Moreover,
the applicant asserts that he was referring not to his brother who accompanied
him to New Delhi, but to his brother-in-law.
[11]
Moreover,
the applicant argues that he was never challenged on the matter of the delay
between obtaining his passport and leaving India and that, consequently, he
never had an opportunity to explain himself, which constitutes another breach
of the audi alteram partem rule.
[12]
After
reading the stenographer’s notes, I find that the panel erred in referring to
the brother, when it was the brother-in-law who went to pick up the passport.
The same holds true for the panel’s criticism that the applicant waited at
least six months after obtaining his passport before leaving the country. He
had to obtain a visa, which was done the month before his departure. This
criticism is unwarranted.
[13]
With
respect to the allegations of a breach of natural justice, I believe that they
are unfounded. The applicant was represented by counsel, who declined to ask
him questions. The panel is under no obligation to indicate its findings on
credibility before delivering its decision (Sarker v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 987 (F.C.T.D.) (QL)).
[14]
In this
case, the applicant’s credibility was not a decisive factor as the panel, in
fact, mentioned.
2. Did the Board fail to
properly examine the evidence submitted at the hearing?
[15]
It is
admitted that the Board is not required to refer in its reasons to the
documentary evidence presented to it. Moreover, there is a presumption that
all the documentary evidence has been considered (Florea v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL)).
Moreover, given its role and expertise, the Board has leeway in selecting the
evidence that it considers most relevant (Tawfik v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 835 (F.C.T.D.) (QL)).
[16]
With
respect, it appears that the documentary evidence submitted by the applicant is
not very relevant in terms of his personal situation. The news clippings
submitted by the applicant describe the political unrest in Punjab and the fact
that Indian authorities have arrested Sikh militants in other regions of India
than Punjab. These facts were not denied by the Board.
[17]
The Board
also relied on other documents to find that the applicant, who was not the
subject of an arrest warrant and had a relatively low profile, should be able
to move elsewhere in India without being sought by the police.
[18]
I
accordingly find that the Board did not fail to properly consider the
documentary evidence submitted in the hearing.
3. Did the Board commit a
patently unreasonable error in finding that the applicant had an internal
flight alternative (IFA)?
[19]
The onus
of proof rests on the applicant to show, on a balance of probabilities, that
there is a serious possibility of persecution in his country and that it is not
reasonable to seek refuge there (Thirunavukkarasu v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.)).
[20]
The
Federal Court of Appeal developed a two-pronged test in that case. First, the
Board must be satisfied on a balance of probabilities that there is no serious
possibility of the applicant being persecuted in the place proposed as the
IFA. Second, taking into account all the circumstances (including
circumstances particular to the applicant), conditions in the place proposed as
the IFA have to be such that it would not be unreasonable for the applicant to
seek refuge there.
[21]
The
applicant relies on the remarks of Gibson J. in Kahlon v. Canada
(Immigration and Refugee Board), [1993] F.C.J. No. 811 (F.C.T.D.) (QL) and
McKeown J. in Sran v. Canada (Minister of Employment and Immigration),
[1997] F.C.J. No. 1047 (F.C.T.D.) (QL), to argue that the Board committed a
patently unreasonable error in concluding that he had an IFA. At
paragraph 9 of Sran, supra, McKeown J. writes:
Again, the Board did not review all the
evidence. The only evidence that the panel had on the subject of the police
searching for militants and their supporters indicated that it was virtually
impossible for a person to hide anywhere in India if police in the Punjab were
looking for them. Although there are no formal communication methods
available, it appears that there are many informal agreements which enable the
police in the Punjab to hunt down anyone they are seeking. Because the Board
ignored the applicant's evidence that the police were looking for him as a
supporter of the militants, I am not in a position to know what the Board's
finding would be on an IFA . . . .
[22]
The
standard of review applicable to a finding on an IFA is patent unreasonableness
(Mohammed v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 1217 (F.C.T.D.) (QL); Sivasamboo v. Canada (Minister of
Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.). The
passage from the Board’s decision concerning the applicant’s IFA reads as
follows:
The claimant declared that he was not a
well-known or high-profile person in Punjab.
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 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 who 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.
This tribunal considers that, even if the
claimant’s story had been found credible, since an Internal Flight Alternative
(IFA) is reasonably accessible, the claimant can relocate elsewhere in India.
[23]
After
reviewing the record, I find that the Board did not commit a patently
unreasonable error with respect to the applicant’s IFA. The Member based his
findings on credible, serious documentary evidence, and I can see in his
finding concerning the IFA no error that would warrant the intervention of this
Court.
4. Did the Board err in
applying section 97 of the Act?
[24]
Section 97
reads as follows:
|
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
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(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,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
(2)
A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
|
|
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
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 :
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;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(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,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes -- sauf celles
infligées au mépris des normes internationales -- et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d'une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
[25]
The
applicant asserts that the Board erred in applying section 97 of the Act and
that it should have considered the conditions prevailing in India in order to
establish the degree of risk that the applicant would face.
[26]
With
respect, I cannot endorse that argument. The fact that the Board chose to base
its decision on documentary evidence whose conclusions differed from the
allegations made and documents filed by the applicant does not mean that the
Board failed to assess the risk that the applicant would face. In this case,
the applicant lived with his sister and in New Delhi without being sought.
[27]
The
Board’s finding concerning an IFA for the applicant within India renders
section 97 inapplicable, since a person having an IFA is not a person in need
of protection within the meaning of the Act (Zalzali v. Canada
(Minister of Employment and Immigration), [1991] F.C. 605 (C.A.)).
[28]
The
parties declined to submit questions for certification, and this case contains
none.
ORDER
THE COURT ORDERS that the application for judicial
review be dismissed. No question is certified.
“Michel
Beaudry”
Certified true
translation
Michael Palles
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