Date: 20100122
Docket: IMM-2688-09
Citation: 2010 FC 58
Ottawa, Ontario, this 22nd
day of January 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Sukhwinder
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Mélanie Raymond, a
member of the Refugee Protection Division of the Immigration and Refugee Board
(the Board) dated April 29, 2009 wherein she determined that the applicant was
neither a “Convention refugee” nor a “person in need of protection” pursuant to
sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27.
* * * * * * *
*
[2]
Mr.
Sukhwinder Singh, the applicant, was born in Ismilepur, in the state of Punjab
in India. He is a
Sikh of Indian nationality. His brother and uncle were members of the Akali
Dal, a political party, since 1993. On June 6, 1994 the applicant’s brother
gave a speech condemning the government and other political parties. He spoke
openly about police dictatorship. The police responded to this criticism by
searching the applicant’s house, where he lived with his brother. He and his
brother were arrested June 6, 1994 and held separately for two days. Their
release was arranged with a payment of a bribe. Sometime after his first arrest
the applicant became an active member of the Akali Dal party.
[3]
The
second arrest was on March 20, 1997 when he, his uncle and his brother were
arrested and detained for three days. They were stopped at a police roadblock
during their return from attending a religious ceremony in remembrance of a
high profile member of the Sikh community. All three were released because a
bribe was paid. The applicant was arrested a third time on June 6, 1999; he was
detained for questioning regarding his brother’s connection to militants.
During that time his brother had also been detained by the police. When the
applicant was released he was told that his brother had run away from custody
and his whereabouts were unknown.
[4]
The
applicant and his uncle sought the advice of a lawyer in Jalandhar in regard to
the brother’s disappearance and the police conduct. The applicant’s statements
were taken by the lawyer and the applicant was to appear as a witness in the
court proceedings. However, the complaint came to the attention of the police
in his village. The police surrounded the applicant’s house on February 18,
2000 and arrested the applicant and his uncle. They were kept until March 5, 2000
and again, as in all previous arrests the applicant’s release was secured
through payment of a bribe.
[5]
The
condition imposed on the applicant’s fourth release from detention was that he
would leave the country. The applicant went into hiding at his uncle’s house in
another village but the police were able to force his wife to reveal his
location. The applicant went to New Delhi in the hope of meeting with an agent
who could arrange his trip to the United States.
[6]
With
the help of an agent, the applicant left India in September
2001; he arrived in Vancouver and quickly travelled to the United
States
(the U.S.) to seek
asylum. He remained in the U.S. until March 2007. He was denied asylum in
that country but appealed that decision. Before he received the decision on the
appeal he returned to India to visit his sick mother.
[7]
While
visiting his mother he was again arrested by the local police. The police were
allegedly now targeting the applicant’s cousin, claiming he had links to
terrorism. The police interrogated the applicant because his cousin had come to
visit him while he was in the village. He was released after what appears to be
a few months on the payment of a bribe and fled to New Delhi. He did not
return to the United States but claimed refugee status in Canada on June 21,
2007.
[8]
The
applicant alleges that he was tortured during each period of detention.
* * * * * * *
*
[9]
The
Board made a negative finding against the applicant’s credibility and found
that he did not successfully demonstrate, on a balance of probabilities, that
he would be personally exposed to torture or to cruel and unusual punishment.
In the alternative, the Board found that there was a possible Internal Flight
Alternative (“IFA”) in Mumbai.
[10]
This
matter raises the two following issues:
1.
Is
the decision unreasonable because the Board member misapprehended or ignored
the evidence before it?
2.
Did
the Board improperly assess the evidence of an IFA for the applicant?
* * * * * * *
*
[11]
The
standard of review for both issues is reasonableness (Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190; Canada (Citizenship and
Immigration) v. Khosa, [2009] 1 S.C.R. 339). More specifically, when
this Court is called to review a decision by an administrative tribunal bearing
on the issue of an IFA, the appropriate standard of review is reasonableness as
it is a matter of applying recognized legal principles to a set of facts, which
is a question of mixed fact and law.
[12]
Dealing
first with the issue of a viable IFA, I note that the Board sets the test for
an IFA as follows:
[14] L’analyse de la
possibilité de refuge intérieur doit se faire en deux temps. Le tribunal doit
déterminer s’il existe une autre partie du pays où le demandeur ne serait pas
exposé à de la persécution ou à un risque à sa vie. Le demandeur a le fardeau
de démontrer qu’il ne pouvait bénéficier d’aucune possibilité de refuge
intérieur dans une autre partie de son pays. Le tribunal doit aussi se demander
s’il serait objectivement déraisonnable de s’attendre à ce que le demandeur
déménage dans une autre partie de son pays avant de demander l’asile à
l’étranger. Lorsqu’il s’agit de déterminer ce qui est déraisonnable, la barre
doit être placée très haute et il faut une preuve réelle et concrète de
l’existence de conditions qui mettraient en péril la vie et la sécurité du
demandeur tentant de se relocaliser en lieu sûr.
[13]
The
Board specifically suggested to the applicant that he would be able to seek
refuge in a large urban centre like Mumbai during the testimony. The applicant
was put on notice that IFA was a concern for the Board. I note that the Board
may have muddled its articulation of the burden of proof which is placed on the
applicant later in its reasons:
. . . À la lumière des informations
citées précédemment, le tribunal conclut que le demandeur n’a pas établi qu’il
ne peut bénéficier d’une possibilité de refuge intérieur au sein de son pays,
en s’établissant par exemple à Mumbai. . . .
[14]
The
applicant need not prove that he or she is at risk everywhere in the country
but rather only refute the particular IAFs if identified by the Board. In Thirunavukkarasu
v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589, Justice Linden stated at
pages 595 and 596:
On the one
hand, in order to prove a
claim to Convention refugee status, as I have indicated above, claimants must
prove on a balance of probabilities that there is a serious possibility that
they will be subject to persecution in their country. If the possibility of an
IFA is raised, the claimant must demonstrate on a balance of probabilities that
there is a serious possibility of persecution in the area alleged to constitute
an IFA. I recognize that, in some cases the claimant may not have any personal
knowledge of other areas of the country, but, in all likelihood, there is
documentary evidence available and, in addition, the Minister will normally
offer some evidence supporting the IFA if the issue is raised at the hearing.
On
the other hand, there is an onus on the Minister and the Board to warn the claimant
if an IFA is going to be raised. A refugee claimant enjoys the benefit of the
principles of natural justice in hearings before the Refugee Division. A basic
and well-established component of the right to be heard includes notice of the
case to be met (see, for example, Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105, at page 1114).
The purpose of this notice is, in turn, to allow a person to prepare an
adequate response to that case. This right to notice of the case against the
claimant is acutely important where the claimant may be called upon to provide
evidence to show that no valid IFA exists in response to an allegation by the
Minister. Therefore, neither the Minister nor the Refugee Division may spring
the allegation of an IFA upon a complainant without notice that an IFA will be
in issue at the hearing. As was explained by Mr. Justice Mahoney in Rasaratnam,
supra, at pages 710-711:
[A]
claimant is not to be expected to raise the question of an IFA nor is an allegation
that none exists simply to be inferred from the claim itself. The question must
be expressly raised at the hearing by the refugee hearing officer or the Board
and the claimant afforded the opportunity to address it with evidence and
argument.
These
two very different obligations, therefore, should be carefully distinguished.
[15]
Of
course, the Board could have made a general finding of the availability of
state protection for the applicant. The effect of either is to render the fear
not well-founded. It is clear that the Board only considered Mumbai, a
populated centre reasonably removed from the Punjab, as the
possible IFA and thus, I cannot discern a reviewable error in regard to the
application of the test.
[16]
The
applicant submits that there was significant evidence provided to the Board
demonstrating the lack of reasonable IFA for Sikhs from the Punjab in Mumbai
but does not state what evidence was ignored or misapprehended. The applicant’s
testimony is that he is traceable by the Punjab police anywhere in India as he will
have to register himself with the local police when he finds a place to live.
This information will bring him to the attention of the Punjab police and
he will be tortured as he was before. However, the evidence of the National
Documentation Packages is that Sikhs who relocate from the Punjab do not have
to register themselves with the police when they relocate unless there is an
outstanding warrant for their arrest. The National Documentation Packages also
state that the likelihood of prosecution of Sikhs outside of the Punjab is dependent
on the profile of the person rather than their faith.
[17]
Furthermore,
it appears clearly from the testimony of the applicant himself that his alleged
problems were with the local police, and that there is no warrant, formal
charge or criminal record against him. There is no evidence that would indicate
that the applicant is or was considered a high profile individual who would be
tracked down no matter where he lives.
[18]
In
the circumstances, as there was undisputed evidence in support of the Board’s
finding of the existence of an IFA, it is not incumbent upon this Court to
substitute its own appreciation of the facts to that made by the Board, and the
intervention of the Court is not warranted (see, for example, Singh v. The Minister
of Citizenship and Immigration, 2009 FC 644).
[19]
The
Board’s conclusion of the existence of an IFA is dispositive of the claim. As I
affirm this conclusion is reasonable, the existence of an IFA is similarly
dispositive of the application for judicial review. Thus, it will not be
necessary to deal with the other issue raised in this matter.
* * * * * * * *
[20]
For
all the above reasons, the application for judicial review is dismissed.
[21]
The
applicant proposed the following question for certification:
Is
it correct in law to find that there is an Internal Flight Alternative when a
victim of persecution, in this case a victim of torture, is fleeing from the
police or other state agents? Is there not a legal presumption that no Internal
Flight Alternative exists when the persecution emanates from the state or from
agents of the state?
[22]
I
agree with the respondent that the question ought not be certified as it is
related to an issue which is already settled by the Federal Court of Appeal and
this Court (see Thirunavukkarasu, supra; Barrionuevo v.
Minister of Citizenship and Immigration, 2006 FC 1519; and Ranganathan
v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.)). In addition, it is a
purely factual issue within the expertise of the Refugee Protection Division.
[23]
Consequently,
the question proposed for certification does not meet the criteria enunciated
by the Federal Court of Appeal in Canada (M.C.I.) v. Liyanagamage
(1994), 176 N.R. 4 and, therefore, is not certified.
JUDGMENT
The application for judicial
review of the decision of the Refugee Protection Division of the Immigration
and Refugee Board dated April 29, 2009 is dismissed.
“Yvon
Pinard”
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