Date: 20101108
Docket: IMM-646-10
Citation: 2010 FC 1103
Ottawa, Ontario, November 8,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
ASHA
RANI
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 the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated January 13,
2010, wherein the Applicant was determined to be neither a convention refugee
nor a person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, R.S. 2001, c. 27 (IRPA).
[2]
Based
on the reasons below, this application is dismissed.
I. Background
A. Factual
Background
[3]
Mrs.
Rani, the Applicant, is a citizen of India who claims Convention
refugee status based on her membership in a particular social group, namely
that of women. The Applicant allegedly fears persecution at the hands of her
brother, the police and society at large for bringing dishonour onto her family
by living unmarried with a man, Pawan Kumar, for eight years. In a further
affidavit the Applicant also claims to fear persecution from this ex-boyfriend,
Mr. Kumar, for leaving with another man without his consent.
[4]
After
the Applicant divorced her first husband she met and fell in love with Mr.
Kumar. The Applicant claims that he promised to marry her, so against the
wishes of her family and without their permission, she moved with him from Ludhiana, Punjab, India to Patiala, Punjab where they
lived together for eight years, from 1999 until 2007. The promise to marry was
never realized and Mr. Kumar began to drink heavily and abuse the Applicant,
cumulating in efforts to have her sleep with his friends for money.
[5]
The
Applicant testified that during this time her family did not want to have any
contact with her, and her brothers refused to let her see her sick mother prior
to her death. Her brother threatened to kill her.
[6]
In
2007 the Applicant met Mr. Amarjit Singh, one of Mr. Kumar’s friends. At this
time the Applicant decided to leave Mr. Kumar. Since she could not return to
her family, the Applicant decided to flee to Canada with the
help of Mr. Singh.
[7]
The
Applicant arrived in Canada on April 13, 2007 and filed her refugee
protection claim on May 1, 2007. She did not inform her family that she was in
Canada.
[8]
In
preparation for her first hearing, the Applicant contacted Mr. Gurdeep Singh, a
family friend. At this time the Applicant learned that after her departure Mr.
Kumar contacted her brother to inform him that the Applicant was a “bad
character lady” as she had lived with Mr. Kumar for eight years without being
married, and had left him for another man. In June 2007 her brother went to
the police and gave them a notice to publish in the local newspaper. The
notice stated that the police were looking for the Applicant and offered a
50,000 rupee prize for information.
B. Impugned
Decision
[9]
The
Board found that the Applicant had a viable internal flight alternative (IFA)
and failed to provide sufficient credible and trustworthy evidence in support
of her claim. Consequently the Board found that the Applicant is not a
Convention refugee or a person in need of protection.
II. Issues
[10]
The
issues raised in this application are best summarized as follows:
a) Was
the Board’s IFA finding reasonable?
b) Were
the Board’s negative credibility findings reasonable?
c) Did
the Board consider all of the evidence?
III. Standard
of Review
[11]
The
issues brought before the Court by the Applicant require a deferential standard
of review.
[12]
Recent
case law has reaffirmed that the standard of review for determining whether the
applicant has a valid IFA is reasonableness: Arechiga Pierres v. Canada (Minister of
Citizenship & Immigration); 2010 FC 539, (F.C.) at para. 5. Similarly,
decisions of the Board as to credibility, the weight assigned to evidence and
the interpretation and assessment of evidence are also all reviewable on a
standard of reasonableness: Aguebor v. (Canada) Minister of
Employment and Immigration (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.)
at para. 4; N.O.O. v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1045, [2009] F.C.J. No. 1286 at
para. 38.
[13]
As
set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190;
and Khosa v. Canada (Minister of
Citizenship and Immigration), 2009 SCC 12; [2009] 1 S.C.R. 339
reasonableness requires consideration of the existence of justification,
transparency, and intelligibility in the decision-making process. It is also
concerned with whether the decision falls within a range of acceptable outcomes
that are defensible in respect of the facts and law.
IV. Argument
and Analysis
A. The
Board’s IFA Finding was Reasonable
[14]
The
Applicant submits that the Board’s finding that she has a viable IFA in Mumbai
or Delhi is not
reasonable. As a woman who has been exposed as having “bad character”, the
Applicant claims that she would not be able to live anywhere in India free of the
threat of persecution from either the police, or society at large.
Furthermore, she claims that her brother sometimes visits Mumbai for meetings,
and that she has relatives in Delhi, later identified as her brother’s
in-laws, making both of them unreasonable IFAs.
[15]
The
Respondent submits that the Board made no reviewable error in this
determination as the Board completed a proper IFA analysis and made a factual
determination based on the evidence before it.
[16]
The
test laid out in Rasaratnam v. Canada (Minister of
Employment & Immigration) (1991), [1992] 1 F.C. 706, 140 N.R. 138 (C.A.) essentially
requires the Board to do three things in order to find a valid IFA:
(1) the
Board must identify the location of the IFA;
(2) the
Board must be satisfied on a balance of probabilities that there is no serious
possibility of the applicant being persecuted in the part of the country to
which it finds an IFA exists; and
(3) conditions
in the part of the country where the IFA is found to exist must be such that it
would not be unreasonable, in all the circumstances, for the applicant to seek
refuge there.
[17]
The
onus is on the Applicant to show that there is more than a mere possibility of
persecution in the area proposed to be an IFA. Failing that, the Board must go
on to assess the reasonableness of the IFA. This test is an objective one, and
again the onus is on the Applicant to show that relocation within the home
country would be unduly harsh (Thirunavukkarasu v. Canada (Minister of
Employment & Immigration), [1994] 1 F.C. 589, 109 D.L.R. (4th) 682
(C.A.)). There is a very high threshold to surpass in order to meet the
unreasonableness test. In Ranganathan v. Canada (Minister of Citizenship
& Immigration), [2001] 2 F.C. 164, 266 N.R. 380 (C.A.) the Court
determined that in order to find undue hardship it “requires nothing less than
the existence of conditions which would jeopardize the life and safety of a
claimant… In addition it requires actual and concrete evidence of such
conditions.” (at para. 15)
[18]
In
this matter, the Board identified Mumbai and Delhi as two
possible IFA alternatives. The Board satisfied itself that on a balance of
probabilities the likelihood of the Applicant either running into her brother
or in-laws by chance, or being tracked down by police due to a notice placed in
local newspaper in the Punjab was so remote as to be implausible and
certainly did not signify a serious risk of persecution. The Board also
considered and referred to the documentary evidence before it in determining
that it would not be unduly harsh to expect the Applicant to relocate. Though
the Board admitted to being aware of the difficulties that the Applicant might
face, the Applicant’s assertion that people in India “will not
let me live my life” falls far short of showing the required jeopardy to the
Applicant’s life and safety with concrete evidence.
[19]
That
the Applicant disagrees with the conclusion of the analysis and endeavours to
have this Court re-weigh evidence properly before the Board is of no effect on
judicial review and provides no basis with which to disturb the Board’s
determination. The Board’s decision that the Applicant had a viable IFA is
reasonable.
[20]
Where
an IFA is found, the Applicant is not a refugee or a person in need of
protection. The Board’s IFA finding is dispositive of this application for
judicial review and it is not necessary to consider the Applicant’s other arguments.
However, if my conclusion with respect to the existence of an IFA is incorrect,
I would still dismiss this application as the Board made reasonable credibility
findings that would have disposed to the Applicant’s claim, as discusses below.
B. The
Board’s Credibility Findings were Reasonable
[21]
The
Board did not find that the Applicant’s fear of her brother was well-founded,
and on a balance of probabilities real. Nor was the Board persuaded that the
Applicant’s fear of the police was well-founded as the Applicant failed to
adduce any evidence that she would be charged with a crime for living with a
man unmarried for eight years.
[22]
It
is well established that “credibility is the heartland of the Board’s
jurisdiction” (Lubana v. Canada (Minister of
Citizenship & Immigration), 2003 FCT 116, 228 F.T.R. 43 (Fed. T.D.),
at paras 7-8). The Board has judicially affirmed expertise in determining
questions of fact, and specifically in evaluating the credibility of the
Applicant. Unless the Applicant can show that the Board made an erroneous
finding of fact in a perverse or capricious manner without regard for the
material before it, this Court cannot intervene and substitute its own decision
for that of the Board’s.
[23]
In
the present matter the Applicant has again failed to provide any persuasive
argument that would allow this Court to disturb the Board’s finding. The
Applicant failed to show that the Indian Penal Code provided that living
unmarried is a crime for which a woman can be charged. Furthermore, there was
confusion as to the source and purpose of the published notice which the
Applicant was not able to clarify during the hearing. It was open to the Board
to assign little weight to this piece of evidence based on the Applicant’s
inconsistent testimony concerning it.
[24]
Again,
the Applicant’s written submissions amount to a disagreement with the
conclusion of the Board’s reasoning. The Applicant did not establish that she
faces more than a mere possibility of persecution. The Board made a decision
open to it on the basis of the evidence.
C. No
Evidence was Ignored
[25]
The
Applicant spends much time in her written submissions outlining case-law and
documentary evidence concerning state-protection and domestic abuse in India. Her
consternation with the Board’s decision seems to be that they did not consider
these elements of her gender-based persecution and her ability to seek state
protection.
[26]
With
respect, the Applicant seems to have forgotten that she told the Board that her
fear was not related to her ex-boyfriend, Mr. Kumar. The Board Member
questioned and re-questioned her explicitly on this point. There was no
ambiguity in the Applicant’s answer, that no, she was not afraid of Mr. Kumar.
The Applicant’s fear was limited to that of her brother, the police and society
at large.
[27]
The
Applicant has not lived with her brother in over a decade. It is impossible to
classify this fear as related to the unfortunate prevalence of domestic abuse
in India. Therefore
the documentary evidence concerning domestic abuse is irrelevant to the
Applicant’s claim that she would be persecuted for dishonouring her family. I
also note that the Board considered the Chairperson’s Guidelines Concerning
Women Refugee Claimants Fearing Gender-Related Persecution in reaching its
decision.
[28]
Furthermore,
there is a presumption that the Board considered all of the evidence before it,
and need not mention evidence of a general nature (Cepeda-Gutierrez v.
Canada (Minister of Citizenship and Immigration), 157 F.T.R. 35, [1998]
F.C.J. No. 1425). In the matter at hand the Board did not fail to mention any
evidence central to the issue that contradicted its own finding.
[29]
No
question to be certified was proposed and none arises.
[30]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application for judicial review is
dismissed.
“ D.
G. Near ”
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