Date: 20100603
Docket: IMM-5608-09
Citation: 2010
FC 601
Montreal, Quebec,
June 3, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
BALWANT
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Unless
otherwise demonstrated, an internal flight alternative is a reasonable
conclusion for an applicant.
Unless an applicant can show
on a balance of probabilities that a serious possibility of persecution exists to
his or her person in every part of his or her country of origin, an applicant
has an internal flight alternative.
[2]
In the
recent decision of Jakhu v. Canada
(Minister of Citizenship and Immigration), 2009 FC 159, [2009] F.C.J.
No. 203 (QL), Justice Yves de Montigny wrote:
[26] Counsel for the applicant also faulted the officer for
having misunderstood the objective country documentation, and for having found
that the situation for Sikhs in India has improved over the last 10 to 15 years. Relying mostly
on outdated evidence, he claims that the situation in India is much grimmer
than that painted by the officer. Once again, a careful reading of that
documentation, and in particular of the U.S Department of State Country Reports
on Human Rights Practices and of the Home Office (U.K.) Operational Guidance
Note for the year 2007 has persuaded me that the officer’s analysis of the
situation is fair and balanced, and accurately reflects the current condition
of Sikhs in India. To be sure, the officer was not blind to the
shortcomings of the human rights record in India, and noted, for example, that Amnesty International found
that torture and violence in police custody continued to be regularly reported.
The officer also reported that some human rights groups claim the NHRC is
hampered by numerous organizational and legal weaknesses. However on the whole,
he found that Sikhs could find protection in India, that ordinary members
(as opposed to high-profile militants) of Akali Dal party do not generally face
risk because of their political affiliations, and that Sikhs can relocate
anywhere in India. While counsel for the applicant may disagree with that
finding, it is well supported by the evidence that was before the officer,
which he no doubt consulted as is made clear by his numerous references to it. (Emphasis added).
II. Judicial Procedure
[3]
This is an
application for judicial review of a decision rendered by the Refugee
Protection Division (RPD) of the Immigration and Refugee Board, dated September
30, 2009, which found the Applicant not to be a Convention refugee or a person
in need of protection.
III. Background
[4]
As stated
by the RPD, the Applicant, Mr. Balwant Singh, was 49 years old and had earned
his living as a farmer and as a truck driver. Mr. Balwant Singh alleged that he
was arrested in 2004, when a friend of his brother-in-law, who had links with
the militants, visited his home. He was released two days later. Mr. Balwant
Singh was also arrested in July 2006 when he consulted a lawyer to obtain the
release of his brother-in-law who had been arrested for a second time in June
2006. Mr. Balwant Singh was released a few days later on condition that he
report to the police station every month; this was subsequent to his family’s
promise to take no legal action by which to have his brother-in-law released.
[5]
The RPD
found that Mr. Balwant Singh was neither a refugee nor a person in need of
protection. It concluded that Mr. Balwant Singh has an internal flight
alternative (IFA) in Delhi.
IV. Analysis
[6]
Mr.
Balwant Singh was not a member of a militant movement; neither was he
politically active, nor was he ever suspected of being a militant. It was noted
by the RPD that he was neither known to have been in favour nor opposed to the
creation of Khalistan.
[7]
Subsequent
to his arrest, Mr. Balwant Singh was released without conditions in 2004. His
arrest in 2006 was to pressure him to abandon legal action for the release of
his brother-in-law.
[8]
Mr.
Balwant Singh abandoned his legal actions against the police and, thus, the RPD
concluded that he was of no interest to police outside of the Punjab.
[9]
Mr.
Balwant Singh left India on his own passport without
any apparent fear of the Central Indian Authorities. This was a surprise to the
RPD as Mr. Balwant Singh’s brother-in-law had been arrested at the airport and
transferred to the Punjab authorities.
[10]
The RPD
reasonably concluded that the fact that Mr. Balwant Singh used his own passport
to leave India demonstrated that he did not
fear the central authorities. (Choque v. Canada (Minister of Citizenship and Immigration) (1997), 73 A.C.W.S. (3d) 308,
[1997] F.C.J. No. 1017 (QL); Ccanto v. Canada (Minister of Employment and
Immigration) 1994, 73 F.T.R. 144, 46 A.C.W.S. (3d) 309; Singh v. Canada
(Minister of Citizenship and Immigration), 2009 FC 958, [2009] F.C.J. No.
1169 (QL)).
[11]
The documentary
evidence demonstrates that Sikhs who fear local police and who are of no
interest to the central authorities can relocate to other parts of India.
[12]
The RPD concluded
that Mr. Balwant Singh could relocate to Delhi, as he had lived there for a
period of ten months prior to coming to Canada.
[13]
To qualify as a
Convention refugee, Mr. Balwant Singh had to demonstrate that he had no IFA (Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1172
(QL), [1994] 1 F.C. 589 (F.C.A.)).
[14]
To succeed, Mr.
Balwant Singh would have to demonstrate a serious possibility of persecution
throughout India.
[5] In
Rasaratnam, supra, this Court also addressed and settled the
question of who bears the burden of proof with respect to an IFA. In Rasaratnam,
it was argued unsuccessfully before this Court that the onus is not on the
claimant to disprove an IFA once the claimant has shown a well-founded fear of
persecution in one part of a country. Mahoney J.A. held that, since the
question of whether or not there is an IFA is simply part and parcel of whether
or not the claimant is a Convention refugee, the onus of proof rests on the
claimant to show, on a balance of probabilities, that there is a serious
possibility of persecution throughout the country, including the area which is
alleged to afford an IFA.
(Thirunavukkarasu,
above).
[15]
An IFA is clearly
within the expertise and purview of the RPD. This Court does not intervene unless
an applicant demonstrates that the conclusion of the RPD was unreasonable (Singh
v. Canada (Minister of Citizenship and
Immigration), 2008 FC
158, [2009] F.C.J. No. 202 (QL); Singh v. Canada (Minister of Citizenship and
Immigration), 2008 FC
494, 167 A.C.W.S. (3d) 372). Mr. Balwant Singh had to demonstrate that he would
be at risk in every part of India, which he did not demonstrate, as he lived in
Delhi for ten months prior to coming to Canada;
and, it is recognized, that he also left India with his own passport from an airport
under the control of the central authorities.
[16]
The RPD reasonably
found Mr. Balwant Singh to have an IFA in Delhi. The Federal Court has upheld decisions
which found that Sikhs from the Punjab would not be at risk in India outside of the Punjab (Singh, 2009 FC 158, above; Singh
v. Canada (Minister of Citizenship and
Immigration), 2009 FC
644, [2009] F.C.J. No. 745 (QL).
[17]
In the recent
decision of Singh v. Canada (Minister of Citizenship and
Immigration), 2009 FC
1304, [2009] F.C.J. No. 1679 (QL), at paragraphs 19 to 22, Justice Richard
Boivin reached a similar conclusion to that of Justice de Montigny in Jakhu,
above.
V.
Conclusion
[18]
The Court finds that
the RPD reached a reasonable conclusion in its decision. Recent decisions of the
Federal Court have recognized, through objective evidence, the possibility of an
IFA in India (Singh v. Canada (Minister of Citizenship and
Immigration), 2010 FC 58,
[2010] F.C.J. No. 115 (QL), of Justice Yvon Pinard; Singh, 2009 FC 158,
above, of Justice Michel Beaudry).
[19]
For all of the above
reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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