Date: 20030121
Docket: IMM-1907-02
Neutral Citation: 2003 FCT 24
Between:
Davinder Singh SHERGILL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board"), dated April 3, 2002, determining him not to be a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
The applicant is a citizen of India. He alleges a well-founded fear of persecution in that country because of his religion, perceived political opinion, and membership in a particular social group (family).
The applicant alleges persecution at the hands of the Punjabi police, as a direct result of their prior persecution of his brother, Surinder ("Surinder"). Surinder fled to Canada in 1993, was granted refugee status, and is now a Canadian citizen.
The Board found that the applicant's evidence was not credible or trustworthy. In the alternative, the Board found that an Internal Flight Alternative ("IFA") was available to the applicant in New Delhi.
The applicant submits that the Board failed to observe a principle of natural justice or procedural fairness when it reached its decision without the benefit of a full transcript of the hearing. The applicant relies on Tung v. Canada (M.E.I.) (1991), 124 N.R. 388, [1991] F.C.J. No. 292 (QL), where the Federal Court of Appeal held that the failure to have a full transcript was prejudicial to the applicant and denied him natural justice. The applicant then cites Kandiah v. M.E.I. (1992), 141 N.R. 232 (F.C.A.), which, he states, narrows the reasoning in Tung, establishing that while the failure of the Board to provide a transcript did not ipso facto vitiate its decision, an appellant could succeed if he shows by the record before the Court that the decision under appeal is wrong. In fact, the Court of Appeal in Kandiah contradicted the findings in Tung:
. . . the failure of the Refugee Division to make or keep a verbatim record of its hearings is not a ground on which its decisions may be set aside by the Court on an appeal under subsection 82.3(1). The Tung decision, insofar as it says otherwise, should not be followed.
In Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, the Supreme Court of Canada addressed the conflict between Kandiah and Tung and resolved the issue in favour of the reasoning in Kandiah, which more closely followed the traditional direction of the Court, at pages 840 and 842:
Even in cases where the statute creates a right to a recording of the hearing, courts have found that the applicant must show a "serious possibility" of an error on the record or an error regarding which the lack of recording deprived the applicant of his or her grounds of review: Cameron v. National Parole Board, [1993] B.C.J. No. 1630 (S.C.), which follows Desjardins v. National Parole Board (1989), 29 F.T.R. 38. . . .
[. . .]
In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice. . . .
(Emphasis is mine.)
Neither the Act nor the Convention Refugee Determination Division Rules, SOR/93-45, require the recording of a refugee hearing, therefore, the Court must simply determine whether the record before it allows it to properly dispose of the application for appeal or review.
With respect to the Board's finding that an IFA was available to the applicant in New Delhi, I am satisfied, upon reviewing the available record, that it does allow a proper disposition of the application for judicial review.
On the subject of an IFA, I stated as follows in Sekhon v. Minister of Citizenship and Immigration (December 23, 1997), IMM-941-97:
[4] As noted by both the applicant and the respondent, the applicable test in considering the possibility of an Internal Flight Alternative (IFA) was defined in Thirunavukkarasu v. Canada (M.E.I.) (1993), 109 D.L.R. (4th) 682, at page 687:
Thus, IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. This test is a flexible one, that takes into account the particular situation of the claimant and the particular country involved. This is an objective test and the onus of proof rests on the claimant on this issue, just as it does with all the other aspects of a refugee claim. Consequently, if there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so.
In the case at bar, on the one hand, the applicant's evidence on the issue consisted of his own testimony and paragraph 41 of the affidavit sworn by his brother. The record does not show if the latter was cross-examined on this point. All this evidence is very limited, as it appears from the entire applicant's testimony on the circumstances elsewhere in India and from paragraph 41 of the applicant's brother's affidavit.
1. Applicant's testimony:
Q Okay. And do you think that you could get protection from other parts of the government? For instance, could you go to a higher level of the police and ask for protection? Would you be safe then?
A Nobody listens over there.
Q So would you get protection?
A Nobody will protect me.
Q And what about other parts of India? Could you leave your village and your district and go to another area and find safety?
A Government is the same. They won't leave my (sic) anywhere.
2. Paragraph 41 of the applicant's brother's affidavit:
There is no safe place in India for a Sikh person who is suspected of being a militant and who has been harassed by the police. The Punjab police are known to go into other states in India and arrest and/or kill Sikhs either with or without permission of the governments in these states.
On the other hand, in addition to the applicant's testimony as a whole, the Board had before it documentary evidence dealing specifically with "[t]he possibility of taking refuge elsewhere in India" (applicant's record, p. 158).
The Board's finding on the subject of a possible IFA is as follows:
If the panel is wrong in finding the claimant not credible, he has an Internal Flight Alternative elsewhere in India. He was in New Delhi while preparing to leave the country and did not seem to have any problem with the police. He was not charged of any crime and is not a high profile militant that would make him a target for the police on a nationwide basis. It is not unreasonable for the claimant to live and find work in any of the big cities in India outside of the state of Punjab.
As pointed out by the respondent, the applicant also testified that all of his dealings with the police were with only two officers from a town or village near his parents' home.
On the evidence that was before it, I find it was reasonably open to the Board to find that the applicant had not satisfied the onus on him of demonstrating that he had a well-founded fear of persecution throughout India or that it would be unreasonable for him to seek haven in the safe parts of the country. This conclusion alone is sufficient to dismiss the application for judicial review, without the necessity to deal with any other issues raised by the applicant.
Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
January 21, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1907-02
STYLE OF CAUSE: Davinder Singh SHERGILL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: December 12, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: January 21, 2003
APPEARANCES:
Ms. Nicole Hainer (agent) FOR THE APPLICANT
Mr. R. Keith Reimer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR THE APPLICANT
Vancouver, British Columbia
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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