Johal v. Canada (Minister of Citizenship and Immigration), docket IMM-4111-96

Date: 19971212

Docket: IMM-4111-96

BETWEEN:

     GURMAIL SINGH JOHAL

     Applicant

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

JOYAL, J.

[1]      This is an application for judicial review of a decision by the Immigration and Refugee Board, dated October 14, 1996, wherein the Board decided that the applicant was not a Convention refugee under s.2(1) of the Immigration Act, R.S.C. 1985, c. I-2.

The Facts:

[2]      The applicant is a 38 year-old Sikh from the Punjab region of India. He is single and had been farming in a village in Harayana since 1978. In the last week of December 1993, three armed militants took refuge at the applicant's farm, and threatened him into feeding and sheltering them for two days. In April 1994, the militants returned and again threatened to kill the applicant if he did not comply, and warned him not to report the encounter to the police.

[3]      In August 1994, the police raided the applicant's home and arrested him. He was detained and tortured for ten days. His release was subsequently secured after one of his relatives bribed the police officers. In November 1994, the police again raided the applicant's house and, because he was not home, they arrested his brother, who was subsequently tortured while in detention for two days. Upon hearing the news of his brother's arrest, the applicant became fearful for his life and left for Uttar Pradesh, where he stayed with relatives. The following month, the police raided the home of some of the applicant's relatives.

[4]      Thus, on March 11, 1995, the applicant left India. He arrived in Canada on March 15 and claimed refugee status on May 30.

Refugee Board Decision:

[5]      The Refugee Board concluded that the applicant had an Internal Flight Alternative ("I.F.A.") available to him in other areas of the country where state protection was available to him. He could therefore reasonably live elsewhere in India.

Issue:

[6]      At issue is whether the Board erred in law by finding that an I.F.A. exists for the applicant in India.

Analysis:

     Internal Flight Alternative:

[7]      In findings on the issue of an I.F.A., a Board is required to be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in his country of origin¹. The question is not whether or not the applicant might have wished to move to another region of his country, but whether it is reasonable to expect him to make do in that location before travelling halfway around the world to seek refuge².

[8]      Moreover, in a recent judgment³, Heald J. examined this question with respect to a Sikh from the Punjab region. In that case, where the facts as well as the Board's decision are quite similar to those in the case at bar, the Court held that cities such as Bombay or Calcutta were quite reasonable I.F.A.s for a Sikh outside of the Punjab.

     Objective Evidence:

[9]      Herein, the applicant submits that the Board ignored some of the documentary evidence which supports his position. However, the fact that a tribunal fails to recite all of the evidence when rendering a decision does not necessarily imply that its decision must be quashed. As stated by Heald J.⁴:

The fact that some documentary evidence was not mentioned in the Board reasons is not fatal to its decision. The passages from the documentary evidence that is relied on by the appellant is part of the total evidence that the Board is entitled to weigh as to reliability and cogency.

[10]      The question that should be asked, then, is whether the evidence not mentioned is so important and vital that failure to acknowledge it may constitute a reviewable error. In that respect, Gibson J. wrote⁵:

It is trite to say that a Tribunal is not obliged to refer in its reasons for decision to all of the evidence that was before it. That fact that a Tribunal fails to do so does not, in ordinary circumstances, give rise to a conclusion that the Tribunal has failed to consider all of the evidence that is before it. But I conclude that that principle does not apply to a failure to make reference to a case-specific document that is evidence directly relevant to the central issue addressed in the Tribunal's decision.

[11]      In his argument, counsel for the applicant underlined small excerpts from the documentary evidence. By using such tactics, counsel forgets a fundamental "rule" of the Court, i.e. to recognize that a Board is entitled to weight the totality of the evidence as to reliability and cogency. One cannot "dissect" the evidence and use only that portion which underlines one's point of view. In my respectful view, the documentary evidence within, read as a whole, does not tend to disprove that the applicant does not have a reasonable I.F.A.

Conclusion

[12]      In such circumstances, and in spite of able and cogent submissions by applicant's counsel, this application for judicial review must be denied.

                                 L-Marcel Joyal

    

                                 J U D G E

O T T A W A, Ontario

December 12, 1997.

__________________

     ¹      Rasaratnam v. M.E.I., [1992] 1 F.C. 706.

     ²      Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589.

     ³      Bhambri v. Canada, [1996] F.C.J. No. 1661.

     ⁴      Hassan v. Canada, [1992] F.C.J. 946, para. 5.

     ⁵      Atwal v. Canada, [1994] F.C.J. No. 1113, para. 10.