Docket: IMM-5811-11
Citation: 2012 FC 751
Ottawa, Ontario, June 14, 2012
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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SHRI CHANDRA
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Applicant
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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
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the
decision rendered by the Refugee Protection Division of the Immigration and
Refugee Board (the Board) dated July 18, 2011, which refused the applicant’s
claim to be deemed a Convention refugee or a person in need of protection under
sections 96 and 97 of the Act.
[2]
The
applicant seeks an order setting aside the decision and remitting the matter
for redetermination by a differently constituted panel of the Board.
Factual
Background
[3]
Mr.
Shri Chandra (the applicant) is a citizen of India. The
applicant states that he fears returning to India as the Bochasanwasi
Shri Akshar Purushottam Swaminarayan Sanstha (BAPS) may harm or kill him.
[4]
The
applicant submits that he was duped, along with others, to provide free labour
to the BAPS organization in India on the promise of being given an
employment opportunity in Canada.
[5]
The
applicant alleges that the BAPS temple arranged a work visa for him and
counselled him to lie to Canadian Immigration authorities. The applicant
falsely affirmed to Immigration authorities that he would work in a temple in Toronto as a
religious worker (a Mukhia).
[6]
On
January 18, 2008, the applicant arrived in Toronto, Canada, on
a work visa valid for a period of four (4) years.
[7]
The
applicant alleges that, after arriving in Canada, he learned that he would not
be working in the temple but rather in the Sayona food factory affiliated with
the BAPS temple, he was forced to hand in his passport and was not permitted to
leave the factory. As well, the applicant’s working and living conditions were
abusive: he worked long hours, the work was difficult and his meagre salary was
paid in Indian currency.
[8]
In
February 2009, the applicant explains that he and another worker, Surendra
Prasad, decided to leave the factory and took refuge in a Gurdwara (Sikh
temple), located approximately four (4) to five (5) kilometres from the
factory. The two then travelled to another Gurdwara temple located in Montreal.
[9]
In
Montreal, the
applicant filed for refugee protection. The applicant was aided by Mr. Daljit
Singh, a paralegal and translator. The applicant maintains that Mr. Singh
completed the applicant’s IMM 5611 form (Certified Tribunal Record, pp
122-129), where he was advised to lie to immigration authorities during his
eligibility determination interview on May 4, 2009. The applicant explains that
several modifications were made to his IMM 5611 form during the interview and
the final version was translated to him by Mr. Haider Nami. The applicant
affirms that he signed the declaration without the knowledge that Mr. Nami had
not translated the entirety of the document to him. The applicant states that
Mr. Singh also completed his Personal Information Form (PIF) for him and the
applicant signed the form without any knowledge of its contents.
[10]
The
applicant explains that once he became aware of the scope of the
misrepresentations in his paperwork, he promptly changed counsel, rescinded the
falsehoods contained therein and recounted the true grounds of his refugee
claim in a new PIF.
[11]
Moreover,
the applicant states that his wife and children residing in India have been
questioned by BAPS employees. To avoid further harassment, his wife and
children moved to a different village in 2010.
[12]
On
February 11, 2011, the applicant and two of his colleagues, Surendra Prasad and
Ramdev Saini, filed a Statement of Claim in the Superior Court of Ontario
against BAPS and Sayona for unpaid wages, and damages for shock, depression,
fear and anxiety.
[13]
The
applicant’s refugee claim was heard by the Board on May 9, 2011.
Decision under Review
[14]
The
Board concluded that the applicant was not a Convention refugee or a person in
need of protection as it had concerns regarding the applicant’s credibility and
it found that an Internal Flight Alternative (IFA) existed.
Issues
[15]
The Court finds that the issues in the present case are the
following:
Did
the Board err in its evaluation of
1)
The applicant’s credibility?
2)
The existence of an IFA in Bombay
or Calcutta?
Statutory Provisions
[16]
The
following provisions of the Immigration and Refugee Protection Act are
applicable in these proceedings:
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Refugee
Protection, Convention Refugees and Persons in Need of Protection
Convention refugee
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
(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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Notions
d’asile, de réfugié et de personne à protéger
Définition de « réfugié »
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;
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
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
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or to a
risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that
risk, unwilling to avail themself of the protection of that country,
(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,
(iii) the risk is not inherent or incidental
to lawful sanctions, unless imposed in disregard of accepted international
standards, and
(iv) the risk is not caused by the inability
of that country to provide adequate health or medical care.
Person
in need of protection
(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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Personne à protéger
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 :
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;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(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,
(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,
(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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Personne à
protéger
(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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Standard of Review
[17]
With
respect to the Board’s credibility findings, it is trite law that such findings
are fact-based and are therefore to be reviewed on a reasonableness standard (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 S.C.R. 190 [Dunsmuir];
Aguebor
v Canada (Minister of Employment and Immigration) (FCA) [1993] FCJ No 732, 160 NR 315; Owochei v Canada (Minister of Citizenship and
Immigration),
2012
FC 140 at para 20, [2012]
FCJ No 165). As well,
such findings are entitled to a high degree of deference. Moreover, the standard
of reasonableness also applies to the finding of an IFA (De
Toro v Canada (Minister of Citizenship and
Immigration), 2012 FC 245 at para 17, [2012] FCJ No 272).
[18]
Thus,
“reasonableness” is concerned with the “existence of justification,
transparency and intelligibility within the decision-making process” as well as
“whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, above,
at para 47).
Analysis
[19]
The
Court concludes that this judicial review application must be
dismissed for the following reasons.
Credibility
[20]
While
the Board found that the applicant’s allegations of being overworked and
underpaid and concerning his substandard living conditions to be credible, the
Board did not find the applicant to be a reliable witness on the subject of his
prospective fear as well as his reasons for seeking refugee protection in
Canada. The Board noted the following issues:
·
The
applicant misrepresented himself as a Mukhia to the Visa Officer although he
knew that he could not work in that capacity in Canada. The Board noted that this first lie to
Immigration authorities affected the applicant’s credibility;
·
The Board
concluded that the applicant’s behaviour suggested that he had planned to come
to Canada regardless of the
circumstances of his employment;
·
The Board
drew a negative inference from the fact that the applicant lied when he stated
that he was illegally detained and linked to militants in India in his
Immigration IMM 5611 form signed on March 4, 2009 and his original PIF signed
on April 1, 2009;
·
Though the
applicant submitted a new PIF on January 17, 2011 wherein he corrected his
narrative to reflect his true story, the Board concluded that the applicant’s
explanation for the false refugee claim was not satisfactory. Specifically, the
Board found that the explanation did not clarify why the applicant had been
prepared to lie to the Immigration official on March 4, 2009;
·
Though the
applicant argued that the Board should consider the refugee claims of the four
other workers, the Board noted that it is well established in law that a
Tribunal is not bound to grant status to one applicant merely because this
status was granted to another individual who based his claim on the same facts
(even if the claimants are related).
[21]
It
was reasonable, in these circumstances, for the Board to find that the
applicant was not credible and his story was not plausible. As mentioned by the
Board, the applicant lied to the Immigration authorities in March 2009 when he
filed his refugee claim and he lied again in April 2009 when he signed his PIF.
These facts are not contested by the applicant. The Court further observed that
the applicant waited two (2) years – which can be considered a considerable
delay – before he turned around and amended his PIF in order to tell the true
story. The Court reminds that these facts were before the Board.
[22]
However,
the applicant opines that the Board member failed to consider the central
aspect of his claim – human trafficking – despite the fact that the applicant
alleged that he was a victim of human trafficking who has taken a stand against
the abuse and exploitation that he suffered at the hand of his agent of
persecution: the BAPS. The applicant strongly argued that (i) this
allegation was mentioned by the applicant; (ii) it is central to the claim and,
(iii) it was ignored by the Board as there were no consideration and analysis
of this issue in the Board’s reasons.
[23]
While
the applicant is correct in advancing that the information was communicated to the Board (Certified
Tribunal Record, pp 371, 375 and 376) and while the Court is of the view that it
would perhaps have been preferable for the Board to address this issue
directly, the evidence supports the Board’s finding and the lack of specific
reference to the allegation of human trafficking by the Board is not fatal for
the following reasons.
[24]
It
is clear from the Statement of Claim filed in the Superior Court of Ontario on
February 1, 2011, that the claim does not refer to human trafficking. Indeed,
the Statement of Claim does not support that contention as the plaintiffs claim
for unpaid wages, damages, shock, depression, fear and anxiety (Certified
Tribunal Record, p 224). At hearing before the Court, the applicant’s arguments
failed to convince the Court that paragraph 39 is an “implicit” reference to
human trafficking in the sense that it “exposes human trafficking” (Certified
Tribunal Record, p 223). The Statement of Claim contains allegations pertaining
to unpaid wages and no evidence was provided to the Court confirming the
allegations of human trafficking put forth by the applicant.
[25]
On
that point, a reading of Mr. Chandra’s and Mr. Patel’s testimony does not
support the applicant’s arguments and the Board was allowed to reject the
inferences drawn by the applicant on this question, as they were speculative in
nature (Certified Tribunal Record, pp 457-459) (Prasad v Canada
(Secretary of State), [1994] FCJ No 1499).
[26]
The
Court is also of the view that the documentary evidence does not point to human
trafficking as alleged by the applicant. For instance, documents P-12 and P-13
(Certified Tribunal Record, pp 331 and 333) indicate that the BAPS is a large
and influential Non-Governmental Organisations (NGOs) and amongst the top
receivers with donations. However, the documentary evidence does not make
reference to human trafficking and the applicant’s allegations are farfetched
as they are not supported by documentary evidence (Sellan
v Canada (Minister of Citizenship and Immigration), 2008
FCA 381,
[2008] FCJ No 1685).
[27]
In
light of the above, the Board was entitled to use a common-sense approach and
to take into account the apparent discrepancies and omissions (Shahamati v Canada (Minister of Employment and Immigration) (FCA), [1994] FCJ No 415; Sheikh v Canada (Minister of Employment and Immigration) (CA), [1990] 3 FC 238, [1990] FCJ No 604 [Sheikh]; Gill v Canada (Minister of Citizenship and Immigration), 2005 FC
34, [2005] FCJ No 58; Gudino v Canada (Minister of
Citizenship and Immigration), 2009 FC 457, [2009] FCJ No 560; Aguebor,
above).
[28]
Further, the Supreme Court of Canada in the
recent decision Newfoundland and Labrador Nurses' Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at para 16, [2011] 3 SCR
708, has provided the following guiding principle in the context of judicial
review which finds application in the case at bar:
[16] Reasons may not include all the arguments, statutory
provisions, jurisprudence or other details the reviewing judge would have
preferred, but that does not impugn the validity of either the reasons or the
result under a reasonableness analysis. A decision-maker is not required to
make an explicit finding on each constituent element, however subordinate, leading
to its final conclusion (Service Employees’ International Union, Local No.
333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p.
391). In other words, if the reasons allow the reviewing court to understand
why the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes, the Dunsmuir criteria
are met.
[29]
In
the present case, the Board’s reasons, when read in their context and as a
whole, adequately explain the bases of its decision and the Court is of the
view that, based on the evidence, the Board’s findings are reasonable.
Internal Flight
Alternative
[30]
The
Board’s finding on an IFA is also reasonable.
[31]
As
noted above by the Court, although the BAPS is a large organisation, there is
no convincing evidence that the applicant “is in the process of exposing
lucrative and illegal operation that implicated many senior officials”
(Applicant’s memorandum, para 89) and that the BAPS has the motivation and the
capacity to locate the applicant upon entry into India.
[32]
For
instance, the Court agrees with the respondent that two (2) phone calls made to
the applicant’s wife in India do not amount to harassment by the BAPS.
[33]
Also,
based on the evidence, the Court agrees with the respondent that the Board’s
findings at paragraph 24 of its decision are reasonable :
If, in fact, BAPS had the motivation to
use their powerful connections to find the claimant, they would likely have
found him when he was 4-5 kilometres away in the Gurdwara in Toronto, or in Montreal. It is now two years and
three months since the claimant left the BAPS temple in Toronto – BAPS has also
had ample time to track down his wife who is living a short distance from his
former village. BAPS had not harmed his wife of children – they have made a
total of two phone calls the claimant is aware of in the last two years and
three months. The Tribunal concludes that BAPS does not have the motivation
or interest to track the claimant and that he would be able to live safely in
Mumbai or Calcutta. Furthermore, if
the claimant were to purchase an airline ticket without the assistance of BAPS
to Mumbai or Calcutta, given the huge volume of
passengers to and from India from all over the world on a
daily basis, it is highly unlikely that BAPS would have the interest or ability
to maintain a twenty-four hour tracking system on the claimant. The tribunal
concludes that the claimant would be able to safely re-locate in Mumbai or Calcutta.
[Emphasis
added]
[34]
Finally,
at hearing before the Court, the applicant referred to documents listed at pp
386-389 of the Certified Tribunal Record and argued that the Board should have
referred to these documents. However, while these documents make reference to
the existing corruption of the Indian police and the state apparatus, there is
no link or evidence between the said corruption and the BAPS. The argument that
the BAPS
could induce state agents to act on its behalf again remains
speculative.
[35]
The
applicant thus failed to demonstrate, on a balance of probabilities, that there
was a serious possibility of persecution throughout India (Thirunavukkarasu
v Canada (Minister of Employment and Immigration) (CA), [1994] 1 FC 589,
[1993] FCJ No 1172). The Court is of the view that the Board’s findings are
reasonable in the sense that they “fall within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above).
[36]
For all of these reasons, and despite able
argument by the applicant, the application for judicial review will be
dismissed.
[37]
The parties have not proposed any questions for
certification and none arise.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1)
The
application is dismissed.
2)
There
is no question for certification.
“Richard Boivin”
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