Date: 20070209
Docket: IMM-3689-06
Citation: 2007 FC 145
Ottawa, Ontario, February 9,
2007
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
JASVINDER
SINGH SRAN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division (RPD) of the Immigration and Refugee Board (IRB) dated June 9, 2006
finding that Jasvinder Singh Sran (Applicant) is not a Convention Refugee pursuant
to section 96 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) nor a person in need of
protection pursuant to section 97 of IRPA.
I. Facts
[2]
The
Applicant is a farmer from the village of Chipra in the Punjab
state of India. His
cousin, who farmed with him, had been in contact with a known smuggler.
Consequently, the Applicant’s cousin was targeted by the police and was
arrested and detained on numerous occasions. In August 2003, the Applicant’s cousin
disappeared.
[3]
From
August 2003 onwards, the police started visiting the Applicant in order to try
and obtain information about his disappeared cousin. On October 1, 2005 the
Applicant’s neighbour’s residence was raided. Hearing noises, the Applicant
went out to see what was happening. One of the police officers conducting the
raid noticed the Applicant. The Applicant was apprehended and questioned by
the inspector of police about his cousin. He was then taken to the Gardiwala
police station where he was allegedly tortured for two days, until he paid a
bribe to the police officers.
[4]
After
being released from police custody, the Applicant’s family decided that he
should leave India. Thus, the
Applicant sought asylum in Canada.
[5]
On
June 9, 2006 the RPD determined that the Applicant was neither a convention
refugee pursuant to section 96 of IRPA as he could not link his claim to one of
the grounds of persecution listed in the Convention refugee definition, nor a
person in need of protection pursuant to section 97 of IRPA. Furthermore, the
RPD concluded that there was nothing stopping the Applicant from seeking
protection from the state of Punjab or relocating within India so as to
seek protection from his country of origin for the alleged persecution he faced
from the police in Chipra.
II. Issues
(1) Did the RPD
err when it determined that the Applicant could not link his refugee protection
claim to one of the grounds in the Convention Refugee definition?
(2) Was the RPD’s
finding that the Applicant could seek state protection unreasonable?
III. Analysis
(1) Did the RPD
err when it determined that the Applicant could not link his refugee protection
claim to one of the grounds in the Convention Refugee definition?
[6]
In accordance with section 96 of IRPA, to be considered a
“Convention refugee” a person must demonstrate that they fear persecution “…for
reasons of race, religion, nationality, membership in a particular social group
or political opinion...”. Thus, there must be a nexus between an asylum
seekers claim and one of the five grounds enumerated in the Convention refugee
definition at section 96 of IRPA.
[7]
In La Hoz v. Canada (Minister of Citizenship and Immigration),
2005 FC 762, Justice Blanchard found, after conducting a pragmatic and
functional analysis, that the standard of review applicable to determinations
as to whether there is a nexus between an asylum seeker’s claim and one of the
five grounds for persecution listed in the Convention refugee definition is
that of reasonableness simpliciter. In the words of Justice Blanchard at
paragraph 44 of that decision:
After reviewing the criteria of the pragmatic
and functional analysis, I find that, with respect to determining whether there
is a nexus between a refugee claim and the persecution grounds under section 96
of the Act, the appropriate standard of review is reasonableness simpliciter.
This was Gibson J.'s finding in Jayesekara v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1014
(CanLII), 2001 FCT 1014.
[8]
In the case at bar, the Applicant claimed that he was persecuted
by the police of Chipra due to his political activities or imputed political
activities or by reason of his membership in a particular social group, namely as
a member of the family of a suspected terrorist. The RPD in its reasons
concluded that the Applicant was not a Convention refugee as described under
section 96 of IRPA as there were insufficient facts linking his claim to any of
the five grounds for persecution listed in the Convention refugee definition.
In support of this conclusion, the RPD made reference to the following:
-
the Applicant was only arrested once at which
time he was detained, beaten and tortured;
-
the allegation that the arrest was due to the
Applicant’s imputed political activities or his membership in a social is not
accepted as the Applicant’s arrest came two (2) years after his cousin’s
disappearance;
-
the Applicant was released after the payment of
a bribe;
-
the allegation that the police were still
looking for the Applicant in 2005 is purely speculation
-
there was no arrest warrant issued for the
Applicant;
-
the Applicant was a victim of crime committed
by the police;
[9]
This being said, having reviewed the Tribunal’s record and the submissions
of the parties, I do not find the RPD’s conclusion, that the Applicant is not a
Convention refugee, unreasonable. As such, there is no justification for me to
intervene.
(2) Was the RPD’s
finding that the Applicant could seek state protection unreasonable?
[10]
The
appropriate standard of review regarding state protection is that of
reasonableness simpliciter (see Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193 at para. 11; Robinson v.
Canada (Minister of Citizenship and Immigration), 2006 FC 402 at para. 8; Jean
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1414 at para. 9).
[11]
It
is well-established in the jurisprudence of this Court that where state
protection is available, a claim for refugee protection cannot succeed. In
other words, this Court has held repeatedly that the availability of state
protection is determinative in refugee protection cases, and accordingly, if
state protection is found to be available it is not necessary to address the
other issues brought forward by a refugee claimant (see Shimokawa v. Canada (Minister of Citizenship and
Immigration), 2006 FC 445 at para. 16; Judge v. Canada (Minister of Citizenship and Immigration), 2004 FC 1089 at paras. 4-9; Muszynski
v. Canada (Minister of Citizenship and Immigration), 2005 FC 1075 at para. 6; Danquah
v. Canada (Minister of Citizenship and Immigration), 2003 FC 832 at para. 12).
[12]
In the case at hand the RPD found that the
Applicant did not attempt to seek protection from the authorities of the state
of Punjab nor did he try to seek protection elsewhere in India. According to the RPD, the Indian government
has acknowledged that police corruption is prevalent in India and has committed itself to overcome such
corruption. Nonetheless the RPD concluded that the Applicant “had the
obligation to seek protection from his own State before seeking international
protection”. In my view, there is nothing unreasonable with the RPD’s finding,
as the goal of refugee protection is to protect individuals whose country of
origin cannot.
[13]
Summarily, an individual can only benefit from
refugee protection where they either demonstrate that their country of origin
is unwilling or unable to protect them or that attempting to seek protection
from their country of origin is useless or would aggravate their situation; neither
was demonstrated by the Applicant in the case at hand. As such, the Applicant
cannot qualify as person in need of protection pursuant to section 97 of IRPA
nor a Convention Refugee even had the Applicant established that there was a
nexus between his claim and one of the five grounds for persecution listed in
the definition of Convention refugee at section 96 of IRPA.
IV. Conclusion
[14]
The
application for judicial review is dismissed as the Applicant is neither a
Convention refugee pursuant to section 96 of IRPA nor a person in need of
protection pursuant to section 97 of IRPA. Moreover, the Applicant failed to
seek protection from India, when such protection was available.
[15]
The
parties were invited to submit a question for certification, but chose not to
do so.
JUDGMENT
THIS COURT ORDERS THAT:
-
The application for judicial review is dismissed
-
No questions are certified.
“Simon
Noël”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3689-06
STYLE OF CAUSE: Jasvinder
Singh Sran v. The Minister of Citizenship and Immigration
PLACE OF
HEARING: Montreal
DATE OF
HEARING: February
7, 2007
REASONS FOR
JUDGMENT: NOËL S. J.
DATED: February
9, 2007
APPEARANCES:
|
Me Jean-François
Bertrand
|
FOR THE APPLICANT
|
|
Me Sylviane
Roy
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Me
Jean-François Bertrand
Bertrand
Deslauriers
Montreal
|
FOR THE APPLICANT
|
|
John H. Sims
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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