Date: 20090728
Docket: IMM-233-09
Citation: 2009 FC 764
Ottawa, Ontario, July 28, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
KASHMIR SINGH GHOTRA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision by the
Refugee Protection Division of the Immigration and Refugee Board (panel) dated
December 11, 2008, determining that the applicant is neither a Convention
refugee nor a person in need of protection.
Issue
[2]
The issue
is whether the panel erred in finding that the applicant had failed to rebut
the presumption that India was capable of protecting him.
Factual background
[3]
The
applicant, a citizen of India from the state of Punjab, fears being persecuted on the basis of
his membership in a particular social group and his political opinion.
[4]
His
father, a longstanding and active member of the Akali Dal Badal Party, was
arrested and imprisoned in 1984. At the time, police raided the applicant’s
family home and accused them of being anti-national.
[5]
In
February 2002, the applicant worked for the same party. He claims to have been
harassed by Congress Party workers. After the Congress Party came to
power, he was harassed by the police and the leaders of the Akali Dal Badal
Party were thrown in jail and charged with corruption.
[6]
After
having worked for his political party in 2003, the applicant was questioned and
beaten by Inspector Garcha, who then began to raid his home. He was shown
photos and asked to identify people in them.
[7]
In April
2004, the inspector left to work in another region, but returned in March 2005.
At the end of April 2005, he once again raided the applicant’s home
and beat his father, who died a year later.
[8]
Throughout
that same year, the applicant claimed to have been arrested, beaten and
tortured. He alleged that he was forced to sign blank papers, have his picture
taken and promise to report to the police station every month in order to be
released.
[9]
In
September 2006, the applicant fled to Delhi,
where he stayed with an agent. He then claimed to have found out that
the police had again raided his home and that Inspector Garcha was looking for
him.
[10]
He flew to
Canada using a false passport on
January 16, 2007, and immediately claimed refugee protection.
Impugned decision
[11]
After
considering the applicant’s arguments, his personal situation, the documentary
evidence and the case law, the panel found that state protection was available
to him in India and that he should have alerted the Indian authorities and
availed himself of this protection prior to claiming refugee protection in
Canada.
Preliminary issue
[12]
The
respondent argues that in paragraphs 28 to 38 of his supplementary memorandum,
the applicant alleges that the panel failed to proceed with an assessment,
under section 97 of the Act, of his personal situation if he were to return to India, considering the fact that he has no
passport.
[13]
The
respondent contends that this is a new argument by the applicant which was
never raised before the panel. It is recognized that an issue that has not been
raised before an administrative tribunal cannot be raised in an application for
judicial review (Toussaint v. Canada (Labour Relations Board) (F.C.A.), (1993), 160 N.R.
396, 42 A.C.W.S. (3d) 288 at paragraph 5; Tozzi v. Canada (Attorney General), 2007 FC 825, [2007] F.C.J.
No. 1085 at paragraph 22). Consequently, the respondent argues that this
allegation and the documentary evidence submitted must be dismissed.
[14]
It is
trite law that judicial review of a decision should proceed only on the basis
of the evidence before the administrative tribunal (Gallardo v. Canada (Minister of Citizenship and Immigration), 2003 FCT 45, 230 F.T.R.
110). The applicant is entitled to rely only on material that was before the
decision-maker when presenting his arguments. Consequently, the Court will not
address this argument by the applicant.
Standard of review
[15]
The
question of state protection is one of mixed fact and law, and the applicable
standard of review is reasonableness (Chagoya v. Canada (Minister of
Citizenship and Immigration), 2008 FC 721, [2008] F.C.J. No. 908 (QL) at
paragraph 3; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190;
Chaves
v. Canada (Minister of Citizenship and Immigration), 2005 FC
193, 137 A.C.W.S. (3d) 392; Mendoza v. Canada (Minister of Citizenship and Immigration), 2005 FC
634, 139 A.C.W.S. (3d) 151 at paragraph 16).
[16]
According
to the Supreme Court of Canada, the elements to be considered are the
justification for the decision, its transparency and its intelligibility. The
outcomes must be defensible in respect of the facts and law (Dunsmuir at
paragraph 47).
Analysis
[17]
For the
application for judicial review to be allowed, the applicant must show that it
was unreasonable for the panel to find that the applicant had not rebutted the
presumption that his country could protect him.
[18]
In spite of
the fact that, in its decision, the panel did not mention that the applicant
was in hiding when he was living in Delhi, the Court is of the view that it was
not unreasonable for the panel to find the applicant’s explanations as to why
he failed to seek the protection of his country or other authorities to be
insufficient.
[19]
In Martinez v. Canada (Minister of Citizenship and Immigration), 2006 FC 343, 146 A.C.W.S.
(3d) 1052 at paragraph 10, it was established that a tribunal should not
automatically conclude that the actions of a small number of people constitute
persecution by the state. When the alleged persecutors are found in a specific
location, as in this case, the tribunal must determine if it is objectively
reasonable for the applicant to seek protection in his or her country.
[20]
In the
case at bar, the decision-maker, relying on both the positive and negative
documentary evidence, found that there was other recourse available to the
applicant with regard to his persecutors in India.
[21]
Given the
particular circumstances in this case, the Court’s intervention is not
warranted.
[22]
The
decision is justified and intelligible and the outcome is defensible in respect
of the facts and law.
[23]
No
question was proposed for certification and none arises from this case.
JUDGMENT
THE COURT ORDERS that
the application for judicial review be dismissed. No question is certified.
‘‘Michel
Beaudry’’
Certified true
translation
Sebastian Desbarats,
Translator
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