Date: 20090219
Docket: IMM-2909-08
Citation: 2009 FC 174
Ottawa, Ontario, February 19, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
SANJIVKUMAR
RAM TRIPATHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Sanjivkumar Ram Tripathi is a citizen of India whose refugee claim was rejected by
the Refugee Protection Division of the Immigration and Refugee Board. While the
Board accepted as credible Mr. Tripathi’s claim that he had been targeted by
Hindu extremists while living in Mumbai, it found that he was not entitled to
refugee protection as he had a viable internal flight alternative within India.
[2]
For the reasons that follow, I am of the view
that the Board’s decision is unreasonable because of the failure of the Board
to consider a central aspect of Mr. Tripathi’s claim in relation to its IFA
analysis. As a consequence, the application for judicial review will be
allowed.
Background
[3]
Mr. Tripathi testified that in September of
2004, he was approached by two representatives of the Shiv Sena movement. Shiv
Sena is a pro-Hindu, right-wing party affiliated with the Indian People’s Party
(the Bharatiya Janata Party or “BJP”). The leader of Shiv Sena has been
investigated for inciting violence between Muslims and Hindus, but has never
been charged with a crime.
[4]
The two men asked Mr. Tripathi to plant a bomb
in a Mumbai factory belonging to a Mr. Al Hatimi, a Muslim individual with whom
Mr. Tripathi had regular business dealings. Shiv Sena wanted the factory blown
up because most of the employees working there were Muslim.
[5]
Mr. Tripathi refused to plant the bomb, telling
the Shiv Sena representatives that his religion did not allow him to commit
such a violent act. Mr. Tripathi says that the two men then told him that if
he refused to do their bidding, they would kill him for being a bad Hindu. The
threats were repeated two days later at another meeting of the three men.
[6]
Shortly thereafter, the police raided Mr.
Tripathi’s home, accusing him of being involved in drug trafficking. Mr.
Tripathi was taken into police custody, where he says that he was beaten and
tortured for several days. While he was in custody, police officers told Mr.
Tripathi that those who did not dedicate themselves to “Hinduvata” (or Hindu
nationalism) would not survive. The police also made comments suggesting that
there was a relationship between the police and the two people who had asked
Mr. Tripathi to plant the bomb.
[7]
Mr. Tripathi was released from detention after
his father paid a bribe to the police. He was told by the police not to go
public about his discussion with members of Shiv Sena, his arrest or his
treatment in custody. He was also told to report to the police when requested
to do so.
[8]
As a result of the injuries he suffered at the
hands of the police, Mr. Tripathi spent several days in hospital. Shortly
after he left the hospital, he received a telephone call, with the caller
threatening him with death. Mr. Tripathi then left Mumbai, living in hiding in
various locations within India until February of 2005, when he left India for Canada on a student visa.
[9]
Several months after arriving in Canada, when he realized that the police
and Hindu nationalists were continuing to harass his family, Mr. Tripathi filed
his application for refugee protection. Sometime after Mr. Tripathi filed his
refugee claim, his family left Mumbai, relocating elsewhere in India. They have not been bothered further
by either members of Shiv Sena or by the police.
The Board’s Decision
[10]
The Board accepted Mr. Tripathi’s story as
credible. While seemingly also accepting that the Shiv Sena organization is
well-established throughout India, the Board nevertheless concluded that Mr.
Tripathi had a viable internal flight alternative in either Lucknow or Allahabad, where the members of his family now resided.
[11]
In coming to this conclusion, the Board observed
that Mr. Tripathi no longer had any business dealings with Mr. Al Hatimi. As a
consequence, the Board was of the view that Shiv Sena would no longer be
interested in using Mr. Tripathi to target Mr. Al Hatimi. In the Board’s view,
this meant that Mr. Tripathi would be able to live safely with members of his
family in either Lucknow or Allahabad.
The Status of the Transcript from the
Earlier Hearing
[12]
The decision under review arose out of Mr.
Tripathi’s second refugee hearing. An earlier hearing was completed in 2006,
but for some reason did not result in a decision having been rendered.
[13]
The transcript of Mr. Tripathi’s testimony at
the earlier hearing was put before the Board as part of the record in the
second hearing. While conceding that the transcript forms part of the
evidentiary record in this case, counsel for the respondent took issue with Mr.
Tripathi’s reliance on portions of that transcript in support of his arguments
before this Court.
[14]
Relying on the decision in Diamanama v. Canada (Minister of Citizenship and
Immigration), [1996] F.C.J. No. 121, counsel for
the respondent argued that the Board “was not bound by the testimony given
during the first hearing” [my translation], and could draw its own conclusions,
based upon the testimony given before it.
[15]
A review of the Diamanama decision
discloses that what the Court said was that a second decision maker is not
bound by a credibility finding made in the context of an earlier hearing, nor
is the second decision maker required to accept the facts as found by an
earlier panel. That is not the situation here. No credibility assessment was
ever made by the earlier panel, nor were any facts found in the context of Mr.
Tripathi’s first hearing, as no decision was rendered in relation to that
hearing.
[16]
Moreover, Diamanama makes it clear that a
second hearing panel is entitled to use the transcript from an earlier hearing
for whatever purposes it wishes: see para. 10.
[17]
Given that the transcript from the first hearing
was part of the evidentiary record before the Board on the second hearing, I
see nothing inappropriate in counsel for Mr. Tripathi relying on portions of
that transcript in support of his arguments. Moreover, the essential points
made by Mr. Tripathi in his testimony at his first hearing were repeated by him
at his second hearing, albeit in a somewhat less detailed fashion.
Analysis
[18]
I am of the view that the Board’s decision is
unreasonable, because of the failure of the Board to properly understand and
address the reasons for Mr. Tripathi’s fear, in considering whether he in fact
had a viable internal flight alternative within India.
[19]
While it is true that Mr. Tripathi was initially
approached by Shiv Sena because of his relationship with Mr. Al Hatimi, the
fact that Mr. Tripathi no longer has a business relationship with Mr. Al Hatimi
is not the end of the matter.
[20]
Mr. Tripathi’s evidence, which was accepted as
credible by the Board, was that once he refused to plant the bomb in Mr. Al
Hatimi’s factory, members of Shiv Sena threatened to kill him in order to make
an example of him, so that no one else would refuse to support the nationalist
Hindu cause.
[21]
Mr. Tripathi also testified that Shiv Sena
members always eliminated the evidence against them, which is why its members
were never charged with criminal offences. Because he could provide evidence
against the organization, Mr. Tripathi testified that his life continued to be
in danger in India.
[22]
Although the Board accepted that the Shiv Sena
organization is well-established throughout India, no consideration was given as to whether Mr. Tripathi would be at
risk in Lucknow or Allahabad
from members of Shiv Sena seeking either to silence him, or to make an example
out of him. Nor did the Board address Mr. Tripathi’s claim that he would be at
risk throughout India at the
hands of police officers working in conjunction with Shiv Sena.
[23]
The failure of the Board to understand or come
to grips with the basis for Mr. Tripathi’s ongoing fear in considering whether
he had a viable internal flight alternative within India resulted in the decision lacking the justification, transparency
and intelligibility required of a reasonable decision: see Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 47.
Conclusion
[24]
For these reasons, the application for judicial
review is allowed.
[25]
In the interests of economy, counsel for Mr.
Tripathi has asked that the matter be returned to the same member for
re-determination, taking into account the Court’s reasons. Counsel for the
respondent did not object to this, and an order will go to this effect.
Certification
[26]
Neither party has suggested a question for
certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This application for judicial
review is allowed, and the matter is remitted to the same member (if he is
available) for re-determination on the basis of the existing record, in accordance
with these reasons;
2. In the event that the member is
no longer available, Mr. Tripathi is entitled to a new refugee hearing before a
different member; and
3. No
serious question of general importance is certified.
“Anne
Mactavish”
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