Docket: IMM-948-11
Citation: 2011 FC 1200
Ottawa, Ontario, October 20,
2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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DALWINDER SINGH
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Applicant
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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
I. Overview
[1]
Mr.
Dalwinder Singh left India in 2008 and claimed refugee protection in Canada based on his
fear of the Indian police. He claims the police targeted him after he
intervened on behalf of a fellow villager who was in police custody.
[2]
A
panel of the Immigration and Refugee Board dismissed Mr. Singh’s claim because he
had failed to show a nexus to any ground recognized in the Refugee Convention,
lacked credibility, and could live safely elsewhere in India (referred to
as an internal flight alternative, or IFA). He argues that the Board erred in
all three of these areas. He asks me to overturn its decision and order a new
hearing before a different panel.
[3]
In
my view, the Board reasonably concluded that Mr. Singh had an IFA in India,
namely, in Chennai or Calcutta. Given this conclusion,
it is unnecessary to consider the other issues raised by Mr. Singh.
[4]
The
sole issue, therefore, is whether the Board reasonably concluded that Mr. Singh
had an IFA in India.
II. Factual Background
[5]
Mr.
Singh said he went to his local police station to deliver some vehicle
ownership papers with his neighbours, Kulwant Singh and Dalbir Singh. At the
station, he saw the police beating a fellow villager, Baldev Singh. Baldev
asked Mr. Singh to tell his family where he was and what was happening. After
informing Baldev’s family, Kulwant, Dalbir and Mr. Singh, with others, returned
to the police station to secure Baldev’s release. The police initially denied that
Baldev was detained there, but then said he would be released the next day
after they had finished their investigation.
[6]
The
next day, Baldev’s family was told that he had been released the night before. However,
they could not find him and a community meeting was called to discuss what to
do. Two lawyers at the meeting asked Mr. Singh, as well as Kulwant and Dalbir,
what they had seen at the police station. They intended to write to the
authorities to investigate the incident.
[7]
On
April 23, 2008, Mr. Singh, Kulwant and Dalbir were summoned to the police
station in connection with Baldev’s disappearance. While Mr. Singh was in
detention, the police beat him unconscious and, in order to intimidate him and
force him to cooperate, falsely accused him of supporting Sikh terrorists. Mr.
Singh was detained for four days and released on the condition that he recant
his allegations about Baldev and pay the police 200,000 rupees (about $4,300).
The police also told him to report to the station every month, otherwise he
would disappear. Mr. Singh did so, but was forced to pay bribes each month.
Shortly thereafter, Mr. Singh left India.
III. The Board’s Decision
[8]
The
RPD stated the correct legal test for an IFA:
1. The
Board must be satisfied, on a balance of probabilities, that there is no
serious possibility that the claimant will be persecuted in the part of the
country where the IFA is believed to exist.
2. Conditions
in the part of the country considered to be an IFA must not show that it would
be unreasonable in all the circumstances, including those particular to the
claimant, for him or her to seek refuge there (Rasaratnam v Canada (Minister
of Employment and Immigration), [1992] 1 FC 706 (CA)).
[9]
The
Board found that this test was met and that Mr. Singh was, therefore, not
entitled to refugee protection. Mr. Singh would not be persecuted in Chennai or
Calcutta because he
had never been involved in any terrorist activities, was not a militant, had
never openly supported Sikh separatists, and was not politically active.
[10]
The
Board found that the police had harassed Mr. Singh because they wanted money
from him, not because they suspected him of being a militant. The documentary
evidence showed that local police would not try to locate someone with a low
profile such as Mr. Singh elsewhere in India. It would be
possible for him to move without being traced.
[11]
The
Board also found that Sikhs from the Punjab are able to move freely within India. There are
no checks on newcomers to any part of India, police do not have the
resources to perform background checks, there is no system of registration of
citizens, and internal relocation is feasible for persons in whom central
authorities are not particularly interested.
[12]
Finally,
the Board found that it would not be unreasonable for Mr. Singh to relocate to
Chennai or Calcutta, both large
cosmopolitan cities, given his experience and resourcefulness.
[13]
The
Board also considered whether Mr. Singh was a person in need of protection
under s 97 of the Immigration
and Refugee Protection Act, SC
2001, c 27, as amended [IRPA]. Because of the available IFAs, his claim
also failed on this ground.
IV. Was the Board Reasonable in
its Conclusion that Mr. Singh had an IFA?
[14]
Mr.
Singh submits that the Board erred in its application of both prongs of the IFA
test. He points to documentary evidence showing that the Punjab police notify
police departments in other parts of India of wanted individuals,
and may pursue a suspect anywhere in India. The Board accepted that
Baldev Singh, the man Mr. Singh saw at the police station, had been arrested by
the Haryana police and taken back to Punjab. Furthermore, Mr. Singh learned
after he came to Canada that Kulwant Singh (his fellow witness) was
arrested in Rajasthan. Therefore, he feels he would be at risk even if he moved
to Calcutta or Chennai.
[15]
Regarding
the second prong of the IFA test, Mr. Singh submits that he has lived in a
village his whole life and has only completed eight years of elementary
education. His sole occupation has been as a farmer in his village, and his
testimony confirmed that he is unsophisticated. The two IFA locations
identified by the Board are large cities in India with diverse
populations, and very different climates, cultures and languages. These proposed
locations would present serious barriers to his employment prospects.
Therefore, the Board’s conclusion that he would be able to find work there was
unreasonable.
[16]
In
my view, the Board’s finding on the first step was reasonably open to it on the
evidence. Although there was evidence that the Punjab police may
notify other police departments of wanted individuals, and may pursue people
across the country, this was found only to occur only with high-profile
militants and terrorists. Mr. Singh was not high-profile, had no political involvement
and had not been formally arrested or charged with any crime. Furthermore,
police do not perform background checks on newcomers and there is no system of
registration of citizens. It was therefore reasonable for the Board to conclude
that, although the police had arrested Kulwant and Baldev Singh in neighbouring
states, they would not trace Mr. Singh thousands of kilometres across India.
[17]
The
Board’s finding on the second step was also reasonable. Although Mr. Singh
submitted that the Board had not considered his personal circumstances, those
circumstances – lack of education, lack of sophistication, limited work
prospects – are not determinative of an IFA finding. According to the Federal
Court of Appeal, an IFA is only unreasonable if there is concrete evidence that
the claimant’s life and safety would be put at risk there: Ranganathan v Canada
(MCI), 2000
CarswellNat 3134 (FCA), at para 15; Thirunavukkarasu v Canada (MEI), 1993
CarswellNat 160 (FCA), at para 14. Mr. Singh’s circumstances do not
satisfy that burden.
[18]
Accordingly,
the Board’s finding that Mr. Singh had an IFA in India was both
reasonable and determinative of his refugee claim and his claim under s 97.
V. Conclusion and Disposition
[19]
The
Board’s conclusion that Mr. Singh had an IFA in India was not
unreasonable on the evidence before it. I must, therefore, dismiss this
application for judicial review. Neither party proposed a question of general
importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
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.
(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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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
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.
(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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