Date: 20070427
Docket: IMM-5689-06
Citation: 2007 FC 450
Montréal, Quebec, April
27, 2007
Present: The
Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
Abdul Rahim IBUNU MAJEED
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA), of a decision of the Refugee Protection Division of
the Immigration and Refugee Board (the Board) dated September 27, 2006, refusing
the applicant Abdul Rahim Ibunu Majeed status as a refugee and a person in need
of protection within the meaning of sections 96 and 97 of the IRPA.
[2]
The applicant asks this Court to set aside the Board’s
decision and return the matter to the Refugee Protection Division for rehearing
and redetermination before a differently constituted panel.
FACTS
[3]
The applicant, a 36-year-old Indian citizen of India of
Tamil descent and Muslim faith.
[4]
Since 1997, he has operated a shop selling electronic goods
imported from Malaysia, Singapore,
and Hong Kong.
[5]
One of his clients, a man named Govindan, has
connections with a member of Parliament named Harun. When the client refused to
pay for goods purchased from the applicant in 1999, the applicant ceased
supplying him.
[6]
In fall 1999, while returning from a trip to Singapore,
the applicant was arrested by airport security and accused of having supported
Muslim terrorists in India and a
terrorist group in Sri Lanka known as the “Liberation Tigers”.
He was allegedly detained until the end of December 2000 because of the Harun’s
influence.
[7]
In February 2003, the client in question was killed, and
his supporters blamed the applicant for his death.
[8]
The applicant was arrested at the beginning of June 2005
and detained by the police in connection with the death of the client,
Govindan. Before being released a few days later, the applicant was
interrogated and beaten by the police. The applicant blames his detention on
Harun.
[9]
Subsequently, members of the Harun gang threatened the
applicant and insisted that he close down his shop, which he refused to do.
[10]
At the end of January 2005, the applicant was arrested,
detained and beaten by the police. They allegedly repeated that he would have
to close down his shop. The applicant once again refused.
[11]
Following his release, his lawyer advised him that
members of the Harun gang were looking for him and that if he did not close
down his shop, they would kill him and build a false case against him showing
that he finances terrorists.
[12]
In mid-February 2005, the applicant tried to leave India to
fulfil certain commitments he made to clients, but the police arrested him at
that time and detained him for five days.
[13]
The applicant was released thanks to the intervention of
his lawyer. He left India for Canada on
March 1, 2005, and in August 2005, he applied for status as a refugee and
person in need of protection.
IMPUGNED
DECISION
[14]
On September
27, 2006, the Board determined that the applicant was not a
refugee within the meaning of section 96 of the IRPA or a person in need of
protection within the meaning of section 97 of the IRPA. This decision was
essentially based on the existence of an internal flight alternative.
[15]
In this decision, it was also determined that the
applicant did not establish that he had been persecuted by reason of one of the
grounds specified in section 96 of the Act, namely his race, religion,
nationality, membership in a particular social group or political opinion. The
decision concluded with a determination that events giving rise to the
applicant’s fears were due to business competition with Harun. In that context,
the Board noted that the complaint made against the applicant, far from being
based on a charge of assisting terrorist groups, actually concerned the
smuggling of gold ingots.
[16]
In its decision, the Board found the applicant’s narrative
to be credible with respect to his business rivalry with the Harum gang, subject
to a few contradictions which it found to be implausible. Accordingly, the
Board determined that the applicant had not established that his arrest in
November 1999 was the result of a frame-up by Harun. In addition, it noted that
this conflict was local in nature, taking care to point out that the applicant
was able to make several trips to the Far East during this conflict and that for
the moment he was not wanted by the authorities in his country.
[17]
In concluding that there was an internal flight
alternative, the Board determined that the applicant did not satisfy it that
the business conflict with Harun would continue if he were to move to another
region in India, be it Mumbai, Calcutta, or any other place in this large
country sufficiently far from Chennai, where the applicant had operated his shop
up to now. In addition, the Board was of the opinion that an internal
relocation of the applicant within his country would not cause him any unusual,
undeserved or disproportionate hardship within the meaning of the decisions in Thirunavukkarasu
v. M.C.I., [1994] 1 F.C. 589 (C.A.) and Rasaratnam v. Canada, [1992]
1 F.C. 706 (C.A.).
ISSUES
[18]
The Court must decide whether the Board committed a
reviewable error when it concluded that there was an internal flight
alternative and therefore refused to recognize the applicant as a Convention
refugee.
STANDARD
OF REVIEW
[19]
Where the Court is called on to review a decision of the
Board concerning an internal flight alternative, the applicable standard of
review is patent unreasonableness when, as in this case, it is a question of
applying settled law to all of the evidence filed (Gilgorrii v. Canada
(Minister of Citizenship and Immigration), 2006 FC 559).
[20]
However, where this Court’s review of a decision of the
Board concerns the question of whether there is nexus between the alleged
persecution and one of the five grounds in the definition of “Convention
refugee” in section 96 of the IRPA, the applicable standard is reasonableness simpliciter,
as stated in La Hoz v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 940 (QL).
ANALYSIS
Did
the Board commit a reviewable error in concluding that there was an internal
flight alternative (IFA)?
[21]
The applicant submits that in reaching this conclusion
the Board failed to take into consideration the applicant’s special situation
and that this is a reviewable error. More specifically, he stresses the lack of
a business network outside of Chennai, a language barrier, and problems related
to religion. He adds that even if he moved elsewhere in India, he
would still face business competition from Harun, whom he considers to be a
danger to him.
[22]
Meanwhile, the respondent submits that the applicant did
not discharge his burden of showing there was no IFA.
[23]
The applicant had to show that the Board committed a patently
unreasonable error in concluding on a balance of probabilities that he was not
in serious danger of being persecuted in the place suggested as an IFA and in
ruling on the basis of all the circumstances in the applicant’s case that the
situation in the suggested place was such that it was not unreasonable for him
to seek refuge there (Thirunavukkarasu v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589 (C.A.)).
[24]
The applicant has the burden of showing that a decision
should be subject to judicial review.
[25]
The applicant did not show how the conclusion reached by
the Board to the effect that there was an internal flight alternative was
patently unreasonable. He simply alleged that he would always be threatened by
Harun even if he moved, and that he would continue to fear the police.
[26]
The Board’s conclusion about the existence of an
internal flight alternative was based on its analysis of the facts, which led
it to characterize the business conflict between Harun and the applicant as being
strictly local in scope and, moreover, to determine that the applicant was not
wanted by the police.
[27]
A study of the file shows that the Board’s reasons for
concluding as it did in its decision are supported by the evidence. It was its
duty to assess the weight and credibility to be attached to each element of
that evidence.
[28]
The Court notes that nothing in the applicant’s Personal
Information Form (PIF) or in his testimony clearly shows that the business
competition at the root of his problems in India was
national in scope, as opposed to being strictly local. The Court also notes
that in his testimony the applicant admitted that no warrant for his arrest had
been issued against him in India.
[29]
As regards the unreasonableness of the internal flight
alternative, the applicant only invoked the lack of domestic business connections
elsewhere than in Chennai, a language barrier, and problems related to ethnicity.
However, it is acknowledged that it is not unreasonable to identify an internal
flight alternative where an applicant could not find suitable employment (Thirunavukkarasu v. Canada
(Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.)).
[30]
Furthermore,
the applicant did not establish either before this Court or before the Board how
his ethnic origin and his language were unreasonable obstacles to his moving to
an internal flight alternative, especially considering that he had the onus of
showing the lack of an IFA (Rasaratnam v. Canada
(Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.)).
[31]
All things considered, the Court is of the opinion that
the applicant did not discharge the burden of establishing that the Board
committed a patently unreasonable error warranting the intervention of this
Court in concluding that there was an IFA.
Did
the Board commit a reviewable error in excluding the applicant from the
definition of Convention refugee?
[32]
The applicant submits that the Board erred in
determining that his claim for refugee protection had no nexus with the five
grounds of persecution specified in the Convention and accordingly that he was
excluded from the definition of Convention refugee.
[33]
The lack of an IFA in the country of origin of a
claimant for refugee protection or a person in need of protection is part of
the definition of these concepts, as appears from sections 96 and 97 of the
IRPA. Accordingly, the existence of an IFA is fatal to any claim for refugee
protection.
[34]
Given the Court’s conclusion on the first issue, and
even if the Board had erred in answering this question, it is not necessary in
this case to rule on the merits of the criticism of the Board on this point.
[35]
The parties were invited to submit a question for
certification but did not submit any.
[36]
For all these reasons, the Court concludes that there is
nothing warranting review.
ORDER
THE
COURT ORDERS that:
The application for judicial review be
dismissed. No question is certified.
“Maurice E. Lagacé”
Certified true translation
Michael Palles
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