Date: 20110412
Docket: IMM-4353-10
Citation: 2011
FC 447
Toronto,
Ontario, April 12, 2011
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
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AMRINDER SINGH GILL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
Mr.
Gill seeks judicial review of the decision of the Refugee Protection Division
of the Immigration and Refugee Board (RPD) who denied his claim as a Convention
refugee or person in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, RSC 2001, c 27 because he was not found to be
credible and because he had an internal flight alternative (IFA) in India.
[2]
Mr.
Gill, a citizen of India, was 17 and a half at the time of his hearing before
the RPD on April 28, 2010. He came to Canada on August 8, 2008. He
made his refugee claim on August 18,
2008 based on an alleged fear of
persecution due to imputed political opinion. Mr. Gill claimed to be wanted by
Punjab police, who
had allegedly sought after his father because they believed his father knew the
whereabouts of two men suspected to be affiliated with the militant group
Babbar Khalsa International (BKI). The applicant testified that police had twice
raided his home in the Punjab in search of his father. He says that his father
disappeared one day after reporting to the police station, as he was required
to do every month. After seeking legal advice, his mother tried to meet with
the District Commissioner to inform him of the possible police involvement in her
husband’s disappearance. As a result, in April 2008, he and his mother were
arrested. Among other things their photos and fingerprints were taken. While in
custody, his mother was allegedly raped by police. Soon thereafter, he fled to Canada. Upon making
his refugee claim, the applicant was assigned a designated representative,
since he was under 18. At the beginning of the hearing, he amended his Personal
Information Form (PIF) to say that while his mother lived with her brother
until September 2009, she was in hiding since then. He indicated at the hearing
that he could still communicate with her by calling his maternal uncle or by making
arrangements through said uncle.
[3]
The
RPD did not find the applicant to be credible, nor did it believe the
applicant’s story. The Board went on to state that even if the applicant was
credible, he would have an IFA in Mumbai, Calcutta, Madras or Delhi for the
police would have neither the motivation nor the means to seek out and find
him. At the hearing, the RPD had questioned the applicant as to whether he had
made attempts to obtain a medical report confirming his mother’s rape by the
police. The applicant eventually responded that he had asked his maternal uncle
to obtain the said report, but the doctor had refused. The RPD was not
satisfied that the efforts made by the applicant to obtain the report were
diligent.
[4]
Mr.
Gill raises several issues with the RPD’s decision, including its findings on
credibility and the question of an IFA. At the hearing, he insisted
particularly on the issue of procedural fairness, that is, the applicant’s
argument that an adverse credibility finding should not have been made against
him with respect to the failure to obtain the medical report as it was the
responsibility of the designated representative to help him in gathering
evidence. The RPD should thus have questioned the said representative as to how
he fulfilled that duty.
[5]
It
is well settled, and the parties are agreed, that in respect of the RPD’s
assessment of credibility and the availability of an IFA, the Court should
apply the standard of reasonableness: Dunsmuir v New
Brunswick, 2008 SCC 9
at paragraphs 47, 53; Cekim v Canada (Minister of Citizenship and Immigration),
2011 FC 177 at paragraph 6; Valencia v Canada (Minister of Citizenship and
Immigration), 2011 FC 203 at paragraph 20; Questions of
procedural fairness, on the other hand, are reviewed applying the correctness
standard: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 43; Mahdoon v Canada
(Minister of Citizenship and Immigration), 2011 FC 284 at paragraph 20.
[6]
I
shall deal first with the alleged breach of procedural fairness. As discussed
at the hearing, procedural fairness does not occur in a vacuum, rather it is context
dependent (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817 at paragraphs 21-22; Ha v
Canada (Minister of Citizenship and Immigration), 2004 FCA 49 at paragraph
40). Here, the RPD had before it an educated 17 and a half year old claimant,
who confirmed that he understood his obligation to obtain the evidence required
to support his claim for refugee status and that this was explained to him by
an interpreter when he signed his PIF in 2008. Moreover, the applicant did not
come to the hearing before the RPD alone, but had the assistance of a
designated representative and a very experienced counsel. Although it was very
apparent that the credibility of the applicant was a real concern for the RPD
and that it appeared unsatisfied with the applicant’s attempts to obtain
medical evidence as well as other evidence supporting his claim, his counsel at
the time did not raise this issue with the RPD.
[7]
Despite
counsel’s laudable efforts and persistence to convince me otherwise, I cannot
agree that the RPD’s failure to specifically question the designated
representative as to the efforts he made to assist the applicant in obtaining
the necessary evidence amounts to a breach of procedural fairness in every
instance. In the particular circumstances of this case, it seems the
designated representative fulfilled his role. The applicant was in regular communication
with two adults in India (his maternal uncle and his mother) who were
well placed to make more diligent efforts to obtain the required
documentation. There was no evidence that his mother had made any effort to
obtain her medical file by at least signing a form for its release to her
brother. What more could the designated representative have done? In such a
circumstance, fault cannot lie solely on a designated representative, or even
with the experienced counsel, when the applicant chose to wait until March 2010
when a date was set for his hearing to seek supporting documentation from his maternal
uncle.
The RPD asked several questions to satisfy itself that the applicant understood
was what required of him and that he had enough time to make the diligent
efforts to obtain the type of records expressly referred to in the documents
sent to the applicant. The efforts taken were simply insufficient. This was
especially important given that there was no evidence from the applicant’s
mother as to these events. The sole evidence produced was the Sarpanch’s
affidavit which referred to facts which were clearly not within his personal
knowledge and, as noted by the applicant, appears to be based on what his
maternal uncle told the Sarpanch. The RPD did not give probative value to this
document.
[8]
The
applicant asserts that because of the several mistakes he raised, the RPD’s
assessment of his credibility was unreasonable, I am unable to agree. There is
a heavy burden on an applicant who wishes to contest the Board’s assessment of
his credibility (Jassi v Canada (Minister of
Citizenship and Immigration), 2010 FC 356 at paragraph 19; Nijjer v Canada (Minister of
Citizenship and Immigration), 2009 FC 1259 at paragraph 13). Even if I
were to assume that this finding contains a reviewable error, it would not
suffice to quash the decision since the RPD’s finding in respect of the
existence of an IFA would still support its ultimate conclusion to reject the
applicant’s claim.
[9]
Regarding
the IFA, the applicant argues that the RPD failed to take into account the
totality of evidence which suggests that his name would be recorded in a police
database (POLNET) and as such he would be sought by Punjab police throughout India. The RPD is
presumed to have examined all of the evidence and on this issue, the RPD cited
from several documents in the National Documentation Package for India. The Court
cannot conclude that its weighing of the evidence was unreasonable. The RPD’s
reasoning is clear and it refers to documentary evidence supporting its
finding. The applicant has not pointed to any critical piece of information from
the documentary evidence that would call into question the RPD’s finding that:
“[t]he tribunal does not believe that the claimant has the kind of profile that
would make him a target to be placed in POLNET and be sought out throughout the
country.”
[10]
Finally,
in respect of the alleged error that the RPD failed to address the applicant’s
arguments concerning his affiliation with the BKI and the risk of his return to
India with
irregular travel documents, the Court cannot agree that in the particular circumstances
of this case these arguments had to be addressed in the RPD’s reasons. The
applicant could not point to convincing evidence either at the hearing before
the RPD or before this Court as to his “affiliation” with the BKI. The link
between him, his father and his father’s two friends who were the ones presumed
to have a relationship with the BKI is simply too tenuous. Nor could the applicant
demonstrate that his travel documents would be “irregular” (he has a valid
passport) such that he would arouse suspicion amongst the Indian authorities
and be subject to an intensive interrogation upon his return. This risk was
not raised in his PIF, nor when his PIF was amended at the hearing. It was not
raised during his testimony. His counsel did not ask him any questions to link his
circumstances to what is described in some of the documentary evidence. As
noted by Justice Yves de Montigny in Jakhu
v Canada (Minister of Citizenship and
Immigration), 2009 FC
159 at paragraph
27, it is not sufficient to simply refer to objective documentary evidence in
respect of a country to establish a personalized risk. Here his counsel raised
this issue only in argument and by referring the RPD to particular objective
documentary evidence. The applicant has failed to establish a link between the
facts of his case and this evidence. There was therefore no need for the RPD to
deal with it.
[11]
In
conclusion, the decision taken as a whole is within the range of possible,
acceptable outcomes based on the evidence before the RPD. The RPD did not
breach its duty of procedural fairness towards Mr. Gill.
[12]
The
application is dismissed.
[13]
The
parties did not seek certification of any question and the Court finds that
this case turns on its own facts.
ORDER
THIS COURT
ORDERS that:
The application
is dismissed.
“Johanne Gauthier”
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