Date: 20040809
Docket: IMM-5897-03
Citation: 2004 FC 1089
Ottawa, Ontario, this 9th day of August, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
GURWINDER KAUR JUDGE
(a.k.a.: GURVINDER KAUR JUDGE)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, a citizen of India, came to Canada in 2002 and claimed refugee protection pursuant to section 97 of the Immigration and Refugee Protection Act on the basis that she feared for her life or that she would face cruel and unusual treatment. The Applicant claims that, while working as a receptionist for Chawala Import/Export, a firm in India, she was informed by her manager that the company _dealt with smuggling drugs_ and that she was expected to prostitute herself, and if she did not do so, she would be killed. The Applicant did not go to the police because she believed they were closely connected to and working with the people for whom she worked.
[2] In its decision dated June 25, 2003, a panel of the Immigration and Refugee Board, Refugee Protection Division (the _Board_) denied the Applicant's claim. The Applicant seeks judicial review of the decision of the Board.
[3] The key findings in the Board's decision may be summarized as follows:
· The Board concluded that the Applicant's story was fabricated because the events forming the basis of her claim occurred too conveniently at the same time she sought to come to Canada. Further, the Applicant did not present any objective evidence with respect to her employment or the company for whom she claims to have worked.
· Alternatively, the Board concluded that state protection is available to the Applicant. The Board noted that India has a longstanding parliamentary democracy with an independent judiciary and concluded that the _objective evidence does not reveal that the police target young women who turn in criminals that are involved in a large drug smuggling operation._ In the Board's opinion, the evidence presented with respect to some human rights violations by police and poor conditions after arrest were incidents involving suspected criminals, militants and alleged terrorists. This in and of itself was insufficient to demonstrate that the state is unwilling or unable to protect the Applicant or that it would be unreasonable for the Applicant to seek police protection in the future.
Issues
[1] The Applicant raises the following issues:
1. Did the Board err in concluding that the Applicant had failed to discharge the onus of attempting to access state protection?
2. Did the Board breach the principles of natural justice by directing that the determinative issue would be state protection, by only hearing questions on state protection and then disbelieving the Applicant's claim?
Analysis
[2] In this case, the issue of state protection is determinative. Accepting, without deciding, that there was a breach of the rules of natural justice in the Board's credibility finding, such an error is not necessarily fatal. While, normally, a breach of natural justice would result in a successful application for judicial review, referral back is not necessary if the outcome of the matter is _inevitable_ in that the decision maker would be bound in law to reject the application of the Applicant (Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 (F.C.A.) at para. 9).
[3] In this case, the Board determined that there was no clear and compelling evidence that the state is unwilling or unable to protect the Applicant and that, should she return to India, she could access state protection. This conclusion, if not made in error, leads inextricably to a failure of the Applicant's claim under s. 97(1)(b), as she has failed to satisfy one of the statutory requirements of that subsection. In that case, there would be no purpose in sending the matter back.
[4] The Applicant submits that there was a link between the finding of the Board on credibility and on the conclusion regarding state protection. I do not find such a link. The Board accepted the Applicant's story for purposes of assessing the availability of state protection but, on this issue, the lack of documentary evidence to support her allegations was determinative. Accordingly, I will proceed to an analysis of the issue of state protection.
Did the Board err in law in concluding that the Applicant had failed to discharge the onus of attempting to access state protection?
[5] The Applicant submits that she was not obliged to seek state protection if there is evidence that it would not be forthcoming (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). She asserts that her belief that the police were working with the agents of persecution is a sufficient explanation for her failure to seek police protection.
[6] The issue of whether state protection is available is a finding of fact to which the standard of patent unreasonableness applies (Czene v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 912 (F.C.) (QL) at para. 7); Charway v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 701 (F.C.) (QL) at para. 10; Doka v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 554 (F.C.) (QL) at paras. 9-10; Alli v. Canada (Minister of Citizenship and Immigration) (2002), 20 Imm. L.R. (3d) 252 (F.C.T.D.)).
[7] In some cases, the facts necessarily invite consideration of whether it is reasonable to expect the claimant to have sought state protection prior to their flight from a particular country. This analysis can entail an adverse credibility finding based on the failure to make this effort. The factual analysis and weighing of evidence that gives rise to this finding of a reasonable expectation is similar, in my view, to a prospective analysis of state protection. It, therefore, merits application of the same standard of review, namely, patent unreasonableness.
[8] The onus is on the Applicant to lead evidence to rebut the presumption that adequate state protection exists. The test is an objective one and involves the Applicant _showing that [she] is physically prevented from seeking [her] government's aid or that the government is in some way prevented from giving it_. (Canada (Minister of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232 at 234 (F.C.A.)).
[9] In Ward, supra at 724, the Supreme Court of Canada held that, when state protection _might reasonably have been forthcoming_, the Board is entitled to draw an adverse inference based on a claimant's failure to approach state authorities for assistance:
Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
[10] In this case, it is clear that the Board heard and understood the Applicant's testimony that she believed that the police were in _cahoots_ with the people for whom she worked. This is a subjective belief; as noted above, the test for whether state protection _might reasonably be forthcoming_ is an objective one. It is not sufficient for the Applicant to simply believe that she could not avail herself of state protection.
[11] In my view, the Board properly considered the evidence before it and came to the conclusion that the Applicant did not present clear and convincing evidence that would rebut the presumption of state protection. While the documentary evidence presented may have noted the difficulties of women in India in obtaining police assistance or the reports of human rights violations by police with respect to suspected criminals and alleged terrorists, it does not appear, as noted by the Board member that the _police target young women who turn in criminals that are involved in a large smuggling drug operation_. There was sufficient evidence in the record for the Board to come to the conclusion that the documentary evidence did not corroborate the Applicant's belief that state protection was not available. As a result, it is not a patently unreasonable finding. Nor, having regard to the Board's conclusion with respect to the documentary evidence, was it patently unreasonable for the Board to have concluded that the Applicant could seek state protection if she returned to India.
Conclusion
[12] In conclusion, while the Board may have breached the rules of natural justice in the process of assessing the Applicant's credibility, that error did not impact on the determinative issue before the Board. In my view, there was no error with respect to the finding of the availability of state protection. The Application will be dismissed.
[13] Neither party requested that I certify a question. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The Application is dismissed; and,
2. No question of general importance is certified.
_Judith A. Snider_
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5897-03
STYLE OF CAUSE: GURWINDER KAUR JUDGE
(a.k.a.: GURVINDER KAUR JUDGE) v. THE M.C. & I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 28, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Snider
DATED: August 9, 2004
APPEARANCES:
Mr. Lorne Waldman FOR APPLICANT
Ms. Pamela Larmondin FOR RESPONDENT
SOLICITORS OF RECORD:
Waldman and Associates FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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