Date: 20071207
Docket: IMM-456-07
Citation: 2007 FC 1285
Ottawa, Ontario, December 7,
2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
KESHOW
PRASADNARAYAN SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72 (1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board),
dated January 3, 2007. The Board concluded that the applicant was neither a
Convention refugee nor a person in need of protection, pursuant to sections 96
and 97 of the Act.
ISSUES
[2]
The
present application raises only one issue: did the Board err in its
determination that the applicant has an internal flight alternative?
[3]
For
the following reasons, the application for judicial review shall be dismissed.
FACTUAL BACKGROUND
[4]
The
applicant is a citizen of India, born on March 29, 1962. He worked
extensively in the hospitality and restaurant industry prior to coming to Canada. In 1987,
the applicant obtained employment at the Mauraya Sheraton Hotel in Delhi, where he
worked for 13 years. In August 2000, he got a job as the manager of a restaurant
in Delhi. Between August
2000 and April 2006, he worked as a manager in two other reputable Delhi restaurants.
The applicant travelled abroad while working as a manager in order to learn
about the hospitality and restaurant industries on an international scale.
[5]
The
applicant was an active member of his union while working at the Sheraton
Hotel. In September 2003, the applicant established an NGO called Shubh Pahal,
a function of which was to work against police corruption. The applicant was
the president of Shubh Pahal.
[6]
In
March 2006, the applicant wrote a letter to the Police Head Office, complaining
about extortion attempts against a local restaurant owner by police officials
of the Special Crimes Branch. On April 10, 2006, the applicant received a call
from the Dabri Police Station Sub Inspector, asking him to come into the
station. Once there, the Sub Inspector questioned the applicant extensively
about his organization. The complaint made to the Police Head Office was not
mentioned.
[7]
On
April 15, 2006, the applicant received a telephone call from an unidentified
caller, threatening the applicant if he did not withdraw his complaint. The
applicant went to the local police station to report the phone call. The
officer who received the report informed the applicant that there was nothing
that could be done regarding an anonymous call.
[8]
On
April 24, 2006, the applicant was once again called, this time by the Inspector
of the Dabri Police Station. The applicant met with him, and was questioned in
depth about his organization and the complaint made in March.
[9]
On
April 29, 2006, the applicant was arrested while standing at a bus stop by
three police officers of the Special Crimes Branch dressed in plain clothes.
The officers forced him into a van, and brought him to the Raja Garden Police
Station, where he was detained. There, the applicant was beaten and
interrogated along with the vice president of Shubh Pahal. A plastic bag was
put over his head to silence him, and he was accused of having dealings with
criminals. The applicant and the vice president escaped from the police
station by bribing the officer on night duty.
[10]
Shortly
after his arrival in Canada, the applicant was informed by his wife
that the vice president died under mysterious circumstances.
DECISION UNDER REVIEW
[11]
The
Board determined that the applicant is not a Convention refugee, because he
does not have a well-founded fear of persecution in India, nor is the applicant
a person in need of protection, because his removal to India would not subject
him personally to a risk to his life, or to cruel and unusual treatment or
punishment, or to a risk of torture.
[12]
The
Board concluded that the applicant has an internal flight alternative, in a
city such as Goa or Calcutta, for the following reasons:
a) On a balance
of probabilities, the police were not looking for the applicant on a national
or criminal basis, and there was no warrant for his arrest.
b) The applicant
would have no difficulty finding a job in Calcutta, since he
was a successful restaurateur with a good employment record.
c) There is no
impediment to the applicant reaching Calcutta. India is a large
country with no central registry system. According to the country conditions,
there is no suggestion that the applicant’s return to India would be a
matter of interest to the police, and the police who were looking for him in Delhi would not be
aware of his arrival. The country conditions do not provide information that
the police keep track of individuals entering the country if they have no record
of criminality and no arrest warrant issued. The Board preferred the evidence
of the country conditions to the applicant’s claim that those looking for him
could find him anywhere in India.
d) The Board
found that the people who facilitated the applicant’s departure would also not
report his return to anyone who might want to harm him.
[13]
Finally
the Board did not accept counsel’s submission that the applicant would likely
continue his advocacy work upon his return to India since the
applicant did not say for himself that it was his intention to do so. The
Board found on a balance of probabilities, regardless of his intent, that he
would probably not have problems if he started another organization, in light
of the fact that he worked for years as an advocate without issue prior to the
event which precipitated his departure.
ANALYSIS
Standard of Review
[14]
The
standard of review applicable to a determination of the Board that an applicant
has an internal flight alternative is patent unreasonableness (Singh v.
Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1283
(F.C.T.D.); Rodriguez v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 223 (QL), 2005 FC 153).
Internal Flight
Alternative
[15]
In
Thirunavukkarasu v. Canada (Minister of Employment
and Immigration), [1994] 1 F.C. 589 (C.A.), the Federal Court of Appeal
determined that if the applicant is able to seek safe refuge within his country
of origin, he is not a Convention refugee, nor a person in need of protection.
Though the applicant may have a well-founded subjective fear of persecution,
the existence of an internal flight alternative is sufficient grounds for the
Board to refuse the claim for protection.
[16]
The
applicant submits that the Board was bound to consider that the death of the
vice president of Shubh Pahal was a result of his participation in the
organization for the purposes of the assessment of his internal flight
alternative. I cannot accept this argument. The Board was not bound to consider
the credibility of the applicant’s story; as found in Thirunavukkarasu,
above, the determination that an applicant has an internal flight alternative
is sufficient ground to dispose of a claim. Further, the death of a person
similarly situated to the applicant has no relevance to whether or not an
internal flight alternative exists, and as such it is not required that this
fact be considered in the analysis of the internal flight alternative. Finally,
I agree with the respondent’s submission that the submission that the vice
president’s death was linked to his activity with Shubh Pahal is purely
speculative, and it is open to the Board to reject this version of events.
[17]
The
applicant further submits that the Board committed a reviewable error by not
accepting that he would wish to continue his advocacy work upon his return to India. He submits
that his long history of political activism make it reasonable to conclude that
he would resume his work upon his return.
[18]
A
review of the record confirms that the applicant never indicated an affirmative
desire to resume advocacy work; counsel for the applicant suggested it was
likely that he would because of his profile. The Board stated that even
if the claimant starts another organization in Calcutta, it must be
satisfied that the applicant would on a balance of probabilities have problems
and not just possibly have problems. It found that the evidence could not
justify a conclusion to that effect.
[19]
The
respondent submits that counsel’s submission does not constitute sufficient proof
that the applicant would meet the threshold of undue hardship if he resumed his
activities in Calcutta. In support
of this submission, the respondent cites the Federal Court of Appeal in Ranganathan
v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 2118 (QL), which
interpreted the holding in Thirunavukkarasu, above as establishing:
… a very high threshold for the
unreasonableness test. It requires nothing less than the existence of
conditions which would jeopardize the life and safety of a claimant in
travelling or temporarily relocating to a safe area. In addition, it requires
actual and concrete evidence of such conditions. The absence of relatives in a
safe place, whether taken alone or in conjunction with other factors, can only
amount to such condition if it meets that threshold, that is to say if it
establishes that, as a result, a claimant's life or safety would be
jeopardized. This is in sharp contrast with undue hardship resulting from loss
of employment, loss of status, reduction in quality of life, loss of
aspirations, loss of beloved ones and frustration of one's wishes and
expectations.
[20]
I
find that the Board did not err. It was open to the Board to make a finding of
fact that the applicant would not be at risk if he resumed his activist work in
a city such as Calcutta. This determination is supported by the
evidence. I see no reasons to intervene in the Board's assessment of the
two-pronged test in Thirunavukkarasu.
[21]
No
question was proposed for certification and none arises.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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