Date: 20110321
Docket: IMM-3255-10
Citation: 2011 FC 342
Ottawa, Ontario, March 21, 2011
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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GURKARAN SINGH
HARSIMRAN KAUR
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Applicants
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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 for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act), of a decision by the
Immigration and Refugee Board of Canada (the Board) dated May 17, 2010, wherein the Board denied the
refugee claim of the applicants. The Board determined that the applicants are
not Convention refugees or persons in need of protection pursuant to sections
96 or 97 of the Act.
Factual Background
[2]
The
27 year-old principal applicant, Gurkaran Singh and his 29 year-old sister,
Harsimran Kaur, are citizens of India. They arrived in Canada seeking
refugee status under the same factual background as their father, who arrived
in Canada in 2005 and
was accepted as a Convention refugee.
[3]
In
April 1995, the applicants’ family was forced to shelter Sikh militants for two
days. After the militants left, the police arrested the applicants’ father and
grandfather and interrogated them for information about the militants.
[4]
The
applicants’ father was tortured for several days, and was eventually released
after their family bribed the police. Out of concern for her safety, Ms. Kaur
was sent to live with family in Majitha, Punjab; Mr. Singh, the principal
applicant, was sent to join her in 2003 out of fears that the police would
suspect him of being a Sikh militant.
[5]
The
applicants’ father continued to be harassed by the police until he left India and came to Canada. Each time
the police arrested the applicants’ father, they tortured him and interrogated
him about Sikh militants, and each time he was eventually released after the
applicants’ family paid a bribe.
[6]
On
November 11, 2006, the police came to Majitha and arrested Mr. Singh. He was tortured
and interrogated about his father’s whereabouts and his connections to Sikh
militants. After several days, Mr. Singh was released when his uncle paid a
bribe. On November 17, 2006, Ms. Kaur was arrested and interrogated, and she
was also tortured. After several days, the applicants’ uncle bribed the police
to release her.
[7]
Following
their release, the applicants left Majitha and went to live with a family friend
in Motipur, Uttarnchal. On March 5, 2008, they were arrested in Motipur and were
again interrogated and tortured. After several days, the applicants were
released when their grandfather paid a bribe. On their release, they decided to
flee India. They
obtained forged passports, and left the country on May 20, 2008.
[8]
The
applicants arrived in Canada on May 24, 2008. On June 13, 2008, they
claimed refugee status based on a well-founded fear of persecution on the basis
of their political opinion and their religion.
The Impugned Decision
[9]
The
Board acknowledged that the applicants arrived without valid passports, but
found that they had established their identity based on documentary evidence
and Mr. Singh’s testimony. The Board found him to be a credible witness, and
accepted his testimony about what happened to him and his sister in India. However,
the Board found that his testimony with respect to police persecution and
reasonable internal flight alternative (IFA) was speculative.
[10]
The
Board determined that the applicants had failed to demonstrate a nexus between
their fear and the Convention grounds enumerated in section 96 of the Act. The
Board considered evidence about the persecution of Sikh activists, but
concluded that the applicants did not have the profile of Sikh militants, and would
therefore not be of interest to the police based on imputed political opinion.
[11]
The
Board found on a balance of probabilities that the applicants had been the
victims of a corrupt police force that was trying to extort money. The Board
noted that this Court has held that victims of corruption have generally failed
to establish a nexus between their fear of persecution and the Convention
grounds in the definition of a Convention refugee.
[12]
The
Board also noted that the applicants were only 12 and 15 years when the Sikh
militants forced their way into their homes. Thus, the applicants could not
have been politically active individuals who were Sikh militants. Again, the
Board concluded that on a balance of probabilities, the applicants were not
targeted or persecuted by the police because of their political views or
because of their faith or imputed political beliefs, but rather because they
could be extorted. The Board also concluded that, although the applicants
claimed to fear persecution because they are Sikhs, such a fear is un-founded
because the evidence did not suggest that Sikhs in India are
persecuted because they are prevented from practicing their faith.
[13]
The
Board then determined that the applicants had not availed themselves of an
internal flight alternative (IFA) available to them. During his testimony, Mr.
Singh was asked if he and his sister could have moved to Mumbai. He answered
that he did not believe that they could escape by moving because they had already
tried twice and had been found both times. The Board found that, although the applicants
had previously moved twice, they had moved to small towns relatively close to
their hometown, whereas Mumbai is a large city and it would be considerably
more difficult to find the applicants. The Board concluded that the applicants’
profiles were not significant enough for the police to pursue them if they left
the area, and that their fear of being found in Mumbai was speculative. The
Board also added that it would not be difficult for the applicants to find work
in Mumbai since they both have post-secondary education and speak two of the
official languages of India.
[14]
Finally,
the Board determined that the applicants were not Convention refugees because
they had not established a nexus between their past persecution and the
Convention grounds, because their fear was not well-founded and because they
had not shown why they could not avail themselves of the IFA. Based on the IFA
finding, the Board determined that the applicants were not persons in need of
protection pursuant to section 97(1) of the Act.
Legislative framework
[15]
Subsections
96 and 97 of the Immigration
and Refugee Protection Act reads as follows:
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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.
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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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.
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.
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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Issues
[16]
In
this application for judicial review, the only issue is whether the Board’s decision
was based on erroneous findings of fact made in a perverse or capricious manner
or without regard to the material before the Board with regard to the spirit
and intent of the Act.
Standard of Review
[17]
The
Board’s determination that the applicants had not established a nexus is a
factual one and therefore attracts deference (see Mia v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 120, 94 ACWS
(3d) 970, at para 16). Similarly, the determination of whether an IFA
was available to a refugee claimant is a factual one and it also requires
deference (see Navarro v Canada (Minister of Citizenship
and Immigration), 2008 FC 358, [2008] FCJ No 463 at paras 12-14).
[18]
The
Supreme Court of Canada held at paragraph 53 in Dunsmuir v New Brunswick
(2008 SCC 9, [2008] 1 S.C.R. 190, that questions of fact attract the
reasonableness standard. Thus, the Court is not concerned with whether the Board’s
decision was correct, but rather “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir at para 47).
Analysis
[19]
The
applicants challenge the Board’s findings with respect to the lack of a nexus
and the availability of the IFA. The applicants dispute the Board’s finding
that they failed to establish a nexus between their fear of persecution and
Convention grounds. They argue that because the Board found Mr. Singh to be a
credible witness, it therefore accepted his testimony i.e. - the reason for
their repeated detention and torture was linked to the police suspecting them
of having information about their father’s whereabouts or about Sikh
extremists.
[20]
While
it is true that the Board accepted Mr. Singh’s testimony as credible, it stated
at paragraph 9 of the decision that “[t]he principal claimant’s assessment as
to why they were detained by the police, to whether he and his sister were
persecuted because of their faith or to his conclusion that an IFA does not
exist in India, is speculation.” The Board also explicitly rejected the reason
for detention put forward by Mr. Singh. The Board found that corrupt police
officers were trying to obtain money. The Board’s ultimate finding is based on
the fact that the evidence suggested is that the reason for the applicants’
detention was to extort money. It was not based on the political or religious
beliefs of the applicants.
[21]
Upon
reviewing the evidence, the Court finds that the Board reasonably concluded
that the applicants have not demonstrated that the persecution resulted from
political opinion. For instance, the principal claimant has never been a member
of any organization nor did he support any organization that engaged in acts of
subversion. The Court further notes that the applicants do not dispute the
Board’s conclusion that Sikhs in India are not persecuted
because of their faith. The applicants therefore failed to establish that the
reason for their persecution was religious.
[22]
On
the basis of the facts of this application, although the applicants provided
evidence that the police arrested them because of past family links to a
terrorist – who has long been killed by the police – there was also evidence
allowing the Board to conclude that the corrupt police had an interest in the
applicant for money extortion purposes. The Board concluded that the applicants
were victims of crime. For instance, the fact that the applicant testified that
the police was “just out for money” (Certified Tribunal’s Record at p. 862) is
telling. Based on the evidence, it was reasonable for the Board to find that
the applicants have not established an objective basis to their-founded fear of
persecution. It was thus open to the Board to conclude that the applicants had
not established a nexus to a Convention reason.
[23]
The
Court now turns to the issue of the IFA. The applicants also dispute the
Board’s determination that they failed to explain why Mumbai was an unreasonable
IFA. The applicants argue that they established that their profile was
sufficient to draw police across provincial boundaries. They argue that this is
contrary to the Board’s conclusion that the police were unlikely to follow the
applicants to Mumbai.
[24]
As
mentioned above, the Board explicitly rejected the assertion that the reason
for the arrests was because the police believed that the applicants had
information about Sikh militants, finding instead that the reason for the
arrests was money extortion. When considered in this context, the Board’s
conclusion that the applicants did not have a high enough profile to draw the
local police to Mumbai is reasonable.
[25]
The
Board considered documentary evidence regarding internal relocation in India, and found that
citizens, including Sikhs, can move freely within the country. The test is
forward looking and the Board noted that Mumbai is a large city with a population
exceeding 16 million people. Although, the applicants were previously located
in the small towns of Motipur and Majitha, the Court observes that when the
applicants were arrested, they were staying with family in Majitha and with
someone their father knew in Motipur, thus making it easier for a corrupt
police to trace them for extortion. It was also open to the Board, given the
history of the applicants, to find that the applicants’ profiles are not of
such significance as to attract the attention of central authorities in India. Given the
facts of this case, it was also reasonable for the Board to find that although
the applicants had previously been found in small towns did not necessarily mean
that they would be found in the large city of Mumbai. In addition,
the Board considered the fact that the applicants speak two of India’s official
languages (Hindi and English) and have post-secondary education. The Board
determined that it would not be difficult for them to find work in Mumbai.
[26]
Even
if the evidence may bear a different interpretation, this Court will not
intervene if the conclusions drawn by the Board are not unreasonable.
[27]
In
conclusion, the applicants have failed to demonstrate a reviewable error in the
Board’s decision. The Board’s conclusion that the applicants have failed to
explain why moving to Mumbai was not a viable IFA is reasonable. The conclusion
that the applicants are not Convention refugees or persons in need of protection
is also reasonable. The decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir).
The application for judicial review is therefore dismissed.
[28]
No
question was proposed for certification and none arises in this case.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is certified.
“Richard
Boivin”
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