Date: 20120110
Docket: IMM-3054-11
Citation: 2012 FC 30
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 10, 2012
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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VARINDER KUMAR
ARUNA VERMA
ANCHAL VERMA
HANISH CHANDER VERMA
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I.
Introduction
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001 c 27 (IRPA), of the decision by the
Immigration and Refugee Board (IRB) dated April 7, 2011, that Varinder Kumar, his
spouse, Aruna Verma, and their children, Anchal Verma and Hanish Chander Verma
(the applicants), are not Convention refugees or persons in need of protection
according to sections 96 and 97 of the IRPA.
[2]
For
the following reasons, the application for judicial review is dismissed.
II. Facts
A. Background
[3]
The
applicants are all citizens of India. Mr. Kumar alleges that he is of Hindu
origin but is of the Sikh faith.
[4]
In
India, Mr. Kumar
owned a tire sales business and held the position of part-time journalist for
his community’s newspaper. Also, he claims that he was involved an international
human rights protection organization.
[5]
In
2007, Mr. Kumar supported the release of Sukhdev Singh. This person was
arrested, illegally detained and tortured, before being released by the police
in the State of Punjab. Following his release, Mr. Singh received other
threats from the police, which led to his and his family’s suicide.
[6]
Mr.
Kumar wrote an article on this tragic event, denouncing police brutality. Mr.
Kumar in turn was arrested by Punjabi police on July 27, 2007, for his
participation in the demonstrations against police brutality and because of his
article published in the newspaper Ramgarhia Awaz.
[7]
Mr.
Kumar was tortured. His fingerprints were taken, he was forced to sign a blank
document and he was required to give his personal information to the police. He
was then released on July 29, 2007.
[8]
He
immediately went to the hospital for treatment. He was hospitalized until
August 2, 2007. It was then that he made the decision to seek refuge in New Delhi, and he left
his home that very day, leaving behind his spouse and two children.
[9]
In
August 2007, the Punjabi police went to the applicants’ home and threatened Mr.
Kumar’s family.
[10]
Mr.
Kumar left India on September
26, 2007, for the United States of America. He sought admission into
Canada as a visitor
on October 27, 2007, and filed his refugee protection claim in Montréal on
November 6, 2007.
B. The IRB
decision
[11]
The
IRB did not question Mr. Kumar’s credibility and acknowledged that he had
adduced evidence of some of the alleged facts. The IRB was satisfied that Mr.
Kumar had written the article denouncing police brutality in Mr. Singh’s case.
The IRB also considered that Mr. Kumar had been held in custody by Punjabi
police because of his participation in demonstrations against police brutality
and the publication of his article in the local newspaper.
[12]
The
IRB came to the conclusion that there was an internal flight alternative (IFA)
for Mr. Kumar and his family. At paragraph 31 of its decision, the IRB wrote: “it is not objectively unreasonable to
believe, or too severe to expect, that the claimant could move to Bombay and New Delhi. The claimant stated that he did not have any problems
returning to India and relocating to one of these
locations, aside from the fear he expressed of Punjab police officers”.
[13]
Consequently,
the IRB found that the applicants were not Convention refugees or persons in
need of protection.
III. Legislation
[14]
Sections
96 and 97 of the IRPA read as follows:
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Convention
refugee
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Définition de
« réfugié »
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96. A Convention refugee is a person
who, by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
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96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
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(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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Person
in need of protection
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Personne à
protéger
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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
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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 :
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(a) to a danger, believed
on substantial grounds to exist, of torture within the meaning of Article 1
of the Convention Against Torture; or
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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;
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(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
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b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
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(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
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(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
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(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,
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(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
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(iv) la menace ou le
risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux
ou de santé adéquats.
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Person
in need of protection
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Personne à protéger
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(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.
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(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.
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IV. Issue
and standard of review
A.
Issue
[15]
This
application for judicial review raises a single issue:
·
Is
the IRB’s decision that there is an internal flight alternative for the
applicants reasonable?
B. Standard of
review
[16]
In
Diaz v Canada (Minister of
Citizenship and Immigration), [2008] FCJ No 1543 at para 24, the Court
specified that the standard of review applicable to issues relating to an
internal flight alternative is reasonableness. Thus, the Court must determine
whether the IRB decision falls within a range of “possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick,
2008 SCC 9 at para 47).
V. Positions of
the parties
A. Position of
the applicants
[17]
The
applicants contend that the IRB is imposing an excessive burden of evidence on
them, namely, establishing the persecutors’ intention to pursue Mr. Kumar
throughout India, when they
need only raise a reasonable fear of persecution.
[18]
In
addition, Mr. Kumar wrote in his affidavit: “at different times, that different
policemen threaten to me that they will teach me lessons in the future because
I was doing help to detained people that it is why the problems is not just
with my village police” (see the affidavit of Mr. Kumar, page 27 of the
Applicant’s Record, paragraph 11.2). The applicants also cite the Human Rights
Report for India, which specifies that Indian police forces “sometimes make
arrests in retaliation for complaints of police abuse, in return for bribes, or
due to political considerations or the influence of powerful local figures” (see
page 116 of the Applicant’s Record). Thus, they assert that the Human Rights
Watch report applies to them and that Mr. Kumar’s fear extends to all of India. According
to them, there is no internal flight alternative in India.
[19]
The
IRB also mentioned that “the
chief of police was suspended and transferred to another location as a result
of these incidents (arbitrary detention, torture and extortion of Sukhdev Singh
by the local police)” (see paragraph 22 of the IRB decision). Given
these facts, the applicants assert that the chief of police could move in order
to find Mr. Kumar. Since the IRB failed to consider the possibility of a future
threat by the chief of police in his community, the decision must be reviewed,
according to the applicants.
[20]
The
applicants also rely on the documentary evidence filed before the IRB to
establish that the Indian police forces have the means they need to find Mr.
Kumar throughout India. This document specifies that the various police
forces collaborate with each other, thanks to [TRANSLATION] “protected
databases that can be shared at police stations at the district, state and national
levels” (see the Applicant’s Record at page 135). This piece of documentary
evidence also mentions the Polnet network and the dangers it represents for Mr.
Kumar and his family. The applicants argue that if they move to Bombay or New Delhi, they will
need to give their personal information to the new landlord of their building,
or to the children’s school, and they could pass this information on to the
police.
[21]
According
to the applicants, “… the Board has an obligation to comment on the
information and why it rejected it, especially if it supports the applicant's position”
(see Waheed v Canada (Minister of
Citizenship and Immigration), 2003 FCT 329 at para 18).
[22]
In
addition, the IRB wrote, at paragraph 21 of its decision, that the respondent “replied…that he had not
been threatened while he was in New Delhi”. Nevertheless, Mr. Kumar argues that he gave
a version that was fundamentally different from that related by the IRB. In his
affidavit dated June 3, 2011, Mr. Kumar wrote: “I clearly stated that during my
stay in Delhi, I was all
the time in hiding life. The panel wrote that during that time I was there ‘without
being found or threatened by his agents of persecution’. It is true but the
panel could not forget that during that period policemen again came to my home
to find me, that they used abusive language for my wife and kids and threatens
them”. The applicant notes that he had to hide throughout his stay in New Delhi.
Consequently, there is no internal flight alternative, according to the
applicants.
B. Respondent’s position
[23]
The
respondent contends that there is an internal flight alternative and that the
applicants did not establish why it is impossible for them to seek refuge
elsewhere in India.
[24]
The
respondent states that, according to Mr. Kumar’s testimony, the IRB noted that
he does not fit the profile of an active wanted militant and that the local
police simply wanted to reprimand him for his participation in the
demonstrations and for his article denouncing police brutality. The respondent
also notes the fact that Mr. Kumar sought refuge in New Delhi for nearly
two months without being threatened or persecuted there and without an arrest
warrant being issued against him.
[25]
The
IRB found that there was an internal flight alternative for Sikhs who are not known
militants or those who allege a fear of local police outside the State of
Punjab (see Singh v Canada (Minister of Citizenship and Immigration),
2010 FC 601 (Singh)). Based on that decision, the respondent alleges
that the IRB decision is reasonable.
[26]
The
applicants also claim that the panel failed to consider Mr. Kumar’s personal
situation, as well as certain pieces of documentary evidence. In reply, the
respondent contends that the IRB considered and analyzed the applicants’
allegations. It clearly responded to them by carefully referring to the important
elements of Mr. Kumar’s account, his testimony at the hearing and the objective
documentary evidence on the situation of Sikhs in India.
[27]
The
respondent also notes that the IRB is presumed to have considered all of the
documentary evidence and that it is not obliged to comment on it specifically
(see Singh v Canada (Minister of
Citizenship and Immigration), 2008 FC 408 at paras 17-19). Thus, the
IRB may accept the evidence that applies in Mr. Kumar’s case (see G.E.N.O. v
Canada (Minister of Citizenship and Immigration), 2005 FC 367; A.V. v
Canada (Minister of
Citizenship and Immigration), [1995] FCJ No 900; and Tekin
v Canada (Minister of
Citizenship and Immigration), [2003] FCJ No 506). That is what the IRB
did in this case.
[28]
The
respondent states that the applicants did not succeed in showing that the IRB
erred in finding that there was an internal flight alternative for them in India.
VI. Analysis
·
Is
the IRB’s decision that there is an internal flight alternative for the
applicants reasonable?
[29]
The
IRB’s conclusion that there is an internal flight alternative for the
applicants in Bombay or New Delhi is reasonable.
[30]
The
Federal Court of Appeal in Rasaratnam v Canada (Minister of
Employment and Immigration), [1992] 1 FC 706 (CA) (Rasaratnam), set
out the test that applies for determining whether there is an IFA. This test is
reiterated at paragraph 12 of Thirunavukkarasu v Canada (Minister of
Employment and Immigration), [1994] 1 FC 589:
…In
my opinion, in finding the IFA, the Board was required to be satisfied, on a
balance of probabilities, that there was no serious possibility of the
appellant being persecuted in Colombo and that, in all the circumstances
including circumstances particular to him, conditions in Colombo were such that
it would not be unreasonable for the appellant to seek refuge there….
[31]
An
applicant cannot be a Convention refugee if there is an internal flight
alternative in his or her country of origin (see Rasaratnam at page 710 and
Zalzali v Canada (Minister of Employment and Immigration), [1991] 3 FC
605 (CA) at pages 614-615).
[32]
At
the hearing, the IRB gave Mr. Kumar the opportunity to make submissions on the
internal flight alternative. Mr. Kumar answered “that the police officers would look for him
everywhere in India. He would have to
enroll his children in school and find a place to live. The police would be
able to find him very easily as a result” (see paragraph 25 of
the IRB decision).
[33]
In
their memorandum, the applicants argue that Mr. Kumar had to hide during his
stay in New
Delhi.
They also allege that the police have the means to find them anywhere in India. The
applicants also contend that the chief of police, Mr. Shivdev Singh Kahlon, could
possibly wish to take revenge and try to find them if they were to return to India.
[34]
The
Court is of the opinion that the IRB did not err in finding that the applicants
did not provide sufficient evidence to establish that the internal flight
alternative is unreasonable. Thus, even if there is documentary evidence
clearly showing that the police have the means to find a person anywhere in India, the
applicants had to demonstrate that the local police had sufficient interest in
trying to find them, even in Bombay or New Delhi. In this
case, the applicants did not submit any objective evidence to support their
claim that the local police were looking for them and that it will use the
signed blank document to build a case against the applicant.
[35]
As
for their allegation that the chief of police in their community would possibly
wish to find them, no evidence was submitted to establish this malicious
intent. This is pure speculation on the part of the applicants, especially
since the chief of police was reprimanded because of the treatment of Sukhdev
Singh and not because of the publication of the applicant’s article.
[36]
Once
the IRB establishes an internal flight alternative, the burden of proof is then
on the applicants. In this case, they did not submit evidence showing that it
would be unreasonable for them to seek refuge in New Delhi or Bombay (Mumbai).
[37]
The
Court is of the opinion that the IRB’s decision is reasonable and the internal
flight alternative is a logical option under the circumstances.
[38]
The
IRB correctly cited Singh because it is analogous to this case. In that
decision, the Court specified, at paragraphs 11 and 12, that “[t]he 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. 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”.
[39]
Counsel
for the applicants pointed out, at the hearing, the IRB’s failure to comment on
the documentary evidence that shows that the police have access to means for locating
the applicants anywhere in India. The applicants claim that, given the
importance of this evidence, the Court should intervene, based on Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1425. We
do not agree, because this evidences established the existence of means that
the local police officers could have access to, and not the intention of those
same local police officers to use these means specifically against the
applicants. The case law of this Court is clear: the IRB is not obliged to
comment on each piece of evidence submitted by the applicants (see Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ No 598).
[40]
The
IRB’s finding falls with the range of possible outcomes in the circumstances.
The Court sees no reason to intervene.
VII. Conclusion
[41]
The
application for judicial review is dismissed because there is an internal
flight alternative in Bombay (Mumbai) or New Delhi for the
applicants. The applicants are therefore not Convention refugees or persons in
need of protection under sections 96 and 97 of the IRPA.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that
1.
the
application for judicial review is dismissed; and
2.
there
is no question of general interest to certify.
“André
F.J. Scott”
Certified
true translation
Susan
Deichert, LLB
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