Date: 20120614
Docket: IMM-8730-11
Citation: 2012 FC 734
Ottawa, Ontario, this 14th
day of June 2012
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
SUKHWINDER SINGH MULTANI
GURMEET KAUR MULTANI
PARABHNOOR KAUR MULTANI
GURNOOR SINGH MULTANI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION CANADA
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
On
November 25, 2011, the applicants filed the present application for judicial
review of
the decision of Haig Basmajian, member of the Refugee Protection Division of
the Immigration and Refugee Board (the “Board”), pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“Act”). The Board dismissed the applicants’ claim for refugee protection,
concluding the applicants were not Convention refugees or persons in need of
protection under section 96 and subsection 97(1) of the Act.
[2]
Sukhwinder
Singh Multani (the “principal applicant”), his wife Gurmeet Kaur Multani and
their two minor children, Parabhnoor Kaur Multani and Gurnoor Singh Multani
(together, the “applicants”) are citizens of India. The applicants allege their troubles in India arose as a result of
their family ties with the principal claimant’s cousins who were supposedly
involved with smugglers and militants and who have been in hiding.
[3]
On
January 2, 2005, the principal applicant claims the police arrested him because
they were looking for his cousins and that his wife was also arrested since she
intervened during the arrest.
[4]
In
February 2005, the cousins supposedly visited the applicants at their home. As
a result, the police would have begun frequently visiting and searching the
applicants’ home. On February 26, 2008, the principal applicant claims
that his cousins returned to his home asking for money, but that he would have
turned them away. On February 27, 2008, the principal applicant was supposedly
arrested because his name was found in his cousins’ agenda. As a result, the
principal applicant claims to have been tortured and questioned about his
involvement with the militia. He alleges to have been released on February 29,
2008 because his family had paid the police, on condition that he return to the
police station once a month. Fearing for his safety, the principal applicant
left town, leaving his family behind and moving to New Delhi.
[5]
On
April 4, 2008, the principal applicant claims that his wife was arrested
because he never reported to the police station. While she was detained, she
would have been beaten, questioned and raped. Afterwards, she also fled with
her children to join her husband in New Delhi.
[6]
On
June 27, 2008, with the help of an agent, the applicants managed to leave
India, arriving in Canada the same day. On July
14, 2008, they sought refugee protection.
[7]
The
applicants’ claim for refugee protection was heard by the Board on May 25 and
October 17, 2011. In its decision dated November 9, 2011, the Board
rejected the applicants’ claim, finding the principal applicant lacked
credibility and there being an Internal Flight Alternative (“IFA”).
[8]
At
the hearing before me, the applicants raised the following issues:
1.
Did the Board
err in finding that the applicants had an IFA in India?
2.
Did the Board
err in its assessment of the applicants’ credibility?
[9]
Dealing
first with the applicants’ argument that the Board erred in concluding that
they had an IFA in India, I find that the
argument is without merit.
[10]
The
Board’s determination of whether the applicants had a viable IFA is a question
of mixed fact and law subject to reasonableness (Rahal v. Minister of
Citizenship and Immigration, 2012 FC 319 at para 22 [Rahal];
Agudelo v. Minister of Citizenship and Immigration, 2009 FC 465 at para 17
[Agudelo]; Khokhar v. Minister of Citizenship and Immigration, 2008
FC 449; Ramos v. Minister of Citizenship and Immigration, 2011 FC 15 at
para 20 [Ramos]). Thus, while there might be more than one reasonable
outcome, this Court must determine whether the Board’s decision is justified,
transparent and intelligible, falling within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 at para 47).
[11]
The
onus at the hearing before the Board was on the applicants to prove that, based
on a balance of probabilities, they faced a serious possibility of persecution
throughout India, including Mumbai, Delhi and Bangalore (Thirunavukkarasu v.
Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.)
at paragraphs 4 and 9 [Thirunavukkarasu]; Ranganathan v. Canada (Minister
of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.) at para 13 [Ranganathan]).
The Board reasonably concluded that the applicants did not establish a risk of
persecution throughout the country, being unable to provide any reason why they
would be at risk, other than because the police had an interest in them. The
Board outlined in its decision the reasons for which it did not believe the
police had an interest in them, specifically the ease with which they left the
country, the absence of any association with militant groups, their lack of
communication with their cousins, their absence from India since 2008, the lack
of formal charges against them and the prominence of bribes. While this Court
may have come to a different conclusion, the Board’s reasoning and conclusion
are justified, transparent and intelligible and this Court cannot substitute
its own view of a preferable outcome (Agudelo, above at para 17). The
Board’s reasons are not to be read hypercritically and the Board was not
required to mention every piece of evidence (Rahal, above at para 38).
While it is not determinative that the applicants’ other relatives may not have
had similar problems with the authorities in India because of their family
ties, it was open to the Board to consider this factor, in addition to the
other reasons it relied on to support its conclusion that the Indian
authorities were mainly interested in the applicants for financial reasons,
having paid bribes.
[12]
The
applicants further argue that the Board erred in concluding that New Delhi was a viable IFA
because while the principal applicant resided in New Delhi for three months, he was in hiding. An IFA
cannot be speculative or theoretical. Rather, it must be a realistic safe
option (Thirunavukkarasu, above at para 14). Thus, the applicants cannot
be compelled to remain in hiding (Thirunavukkarasu, above at para 14).
It is not a matter of convenience or attractiveness, but whether it is
unreasonable for the applicants to relocate elsewhere in India for they would remain
at risk of persecution. However, it should be reminded that when it comes to an
IFA, there is always some hardship and, as asserted by the respondent, the
threshold is very high to prove unreasonableness (Ranganathan, above at
para 15). Rather, the applicants had to establish the existence of conditions
which would jeopardize their life and safety by means of concrete and actual
evidence (Ranganathan, above at para 15). They failed to meet this burden.
[13]
While
the principal applicant may only have been safe in New Delhi because he
remained in hiding, the applicants failed to explain why the other proposed
IFAs were unreasonable, besides merely asserting that the police would track
them down anywhere in India. Considering the
reasons given by the Board and the lack of actual and concrete evidence, the
Board’s IFA finding is reasonable. This finding was sufficient to dismiss the
applicants’ claims (see Del Real v. Minister of Citizenship and Immigration,
2008 FC 140 at para 12) and is therefore determinative of this application for
judicial review. Consequently, there is no need to address the issue of
credibility.
[14]
The
application for judicial review is dismissed.
[15]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review of the decision of a member of the Refugee Protection Division of the
Immigration and Refugee Board determining that the applicants were not
Convention refugees or persons in need of protection under section 96 and
subsection 97(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, is dismissed.
“Yvon
Pinard”
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