Date: 20080516
Docket: IMM-3866-07
Citation: 2008 FC 601
BETWEEN:
AJIT PAL
SINGH RANDHAWA
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
JUDGMENT
Pinard J.
[1]
This is an application for judicial review of the decision
by the Refugee Protection Division (hereinafter “RPD”) of the Immigration and
Refugee Board that the applicant, a citizen of India, is neither a Convention
“refugee” nor a “person in need of protection” according to the definitions in
sections 96 and 97 of the Immigration and Refugee Protection Act, S.C.
(2001), c. 27.
[2]
The
RPD considered the applicant’s lack of credibility, the existence of an
internal flight alternative (hereinafter “IFA”) and the existence of state
protection in rejecting the applicant’s claim.
[3]
With
respect to the existence of an IFA, an asylum seeker must demonstrate that
there is a serious risk of persecution throughout his country. If the RPD
raises the possibility of an IFA, the onus is on the claimant to show that none
exists (Rasaratnam v. Canada (Minister of Employment
and Immigration), [1992] 1 FC 706 (C.A.), Thirunavukkarasu
v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589 (C.A.),
Sarker v. Canada (Minister of Citizenship and Immigration), 2005 FC 353,
[2005] F.C.J. No. 435 (F.C.T.D.) (QL)).
[4]
In
this case, the applicant submits that the RPD’s finding regarding the existence
of an IFA was based on a negative finding regarding his credibility. However,
here is what the RPD wrote:
The panel
finds that the claimant has not established that the family had a dealership
and rented rooms to the alleged militants and does not find his testimony
credible. Alternatively, the panel finds that the claimant has a viable
[internal flight alternative].
[5]
It
is clear that the RPD’s finding regarding the existence of an IFA is an
alternative to its finding regarding the applicant’s credibility. The RPD found
that the applicant could live in another town in India without fear that the
police would come after him. The applicant submitted no argument beyond his
claim that one of the findings was based on the conclusion that he lacked
credibility. Therefore, he has failed to demonstrate that the finding of the
existence of an IFA was unreasonable.
[6]
As
for the finding of the existence of state protection, it is hard to tell from
reading the RPD’s decision whether its finding that state protection was
available in India was based on its conclusion that the applicant lacked
credibility. Judging from the following excerpt, the RPD seems to have believed
that the applicant had recourses available to him despite having been tortured
by the police:
The
documentary evidence indicates that some police officers were dealt with and
some were not. There were guidelines implemented to be followed. Police
disciplinary action is conducted internally and sometimes courts are not aware
of this. However, these methods are in place.
[7]
However,
in the following paragraphs, the RPD makes comments that seem to indicate that
its finding regarding state protection was linked to its conclusion regarding
credibility:
The
claimant testified of two incidents when he was arrested and both times he was
released. The claimant despite his problems with the police was able to obtain
a passport and a visa to travel to Canada and had no problems leaving India.
The panel
finds that implausible if he was being sought by the police. The panel does not
find his story credible. The panel does not give any weight to his medical
letter because the civil and political system is so corrupt (Information
Request: Number: IND1007769) that such documents from a local politician can be
obtained with the payment of a bribe.
[8]
In
any event, I am of the opinion that the Court’s intervention on the issue of
the existence of state protection is unwarranted in this case. According to the
Supreme Court of Canada, except in situations of complete breakdown of the
state apparatus, the asylum seeker has the burden of proving clearly and
convincingly that he cannot seek the protection of his state (Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689). In The Minister of
Citizenship and Immigration and Maria Del Rosario Flores Carrillo, 2008 FCA
94, the Federal Court of Appeal also wrote the following:
A refugee who claims that the state
protection is inadequate or non-existent bears the evidentiary burden of
adducing evidence to that effect and the legal burden of persuading the trier
of fact that his or her claim in this respect is founded. The standard of proof
applicable is the balance of probabilities and there is no requirement of a
higher degree of probability than what that standard usually requires. As for
the quality of the evidence required to rebut the presumption of state
protection, the presumption is rebutted by clear and convincing evidence that
the state protection is inadequate or non-existent.
[9]
In
this case, despite the applicant’s difficulties with the police, the RPD’s
finding that he had useful recourses available to him was reasonable. In my
opinion, the applicant failed to provide the evidence necessary to rebut the
presumption of the existence of state protection.
[10] In the
circumstances, each of the RPD’s findings, regarding the existence of an IFA
and regarding the existence of state protection, is sufficient to support the
ultimate determination that the applicant is neither a refugee nor a person in
need of protection, and therefore to dismiss this application for judicial
review (see Jasvir Singh v. Minister of Citizenship and Immigration,
2003 FCT 185, [2003] F.C.J. No. 291 (F.C.T.D.) (QL)).
[11] Accordingly,
the application for judicial review is dismissed.
“Yvon
Pinard”
Ottawa,
Ontario
May
16, 2008
Certified true
translation
Francie Gow, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3866-07
STYLE OF CAUSE: AJIT PAL SINGH RANDHAWA v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE
OF HEARING: Montréal, Quebec
DATE
OF HEARING: April 8, 2008
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Pinard
DATED: May 16, 2008
APPEARANCES:
Michel Le Brun FOR THE
APPLICANT
Isabelle Brochu FOR THE
RESPONDENT
SOLICITORS
OF RECORD:
Michel
Le Brun FOR THE
APPLICANT
Montréal,
Quebec
John
H. Sims, Q.C. FOR THE
RESPONDENT
Deputy
Attorney General of Canada
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