Date: 20100409
Docket: IMM-2858-09
Citation: 2010 FC 371
Ottawa, Ontario, April 9, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
JOHN XAVIER NAZERETH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Mr.
John Xavier Nazereth arrived in Canada in 2006. He maintains that he fled his country
of origin, India, because he was
persecuted by Hindu extremists who objected to his religious activities as a
practising Catholic.
[2]
A
panel of the Immigration and Refugee Board heard Mr. Nazereth’s claim for
refugee protection in Canada and rejected it. The
Board accepted certain parts of Mr. Nazereth’s account of events, but believed
that others were exaggerated. It also concluded that Mr. Nazareth could live
safely in India, particularly in Tamil
Nadu, where he had lived for several months before travelling to Canada.
[3]
Mr.
Nazereth argues that the Board treated him unfairly and unreasonably concluded
that he could live safely in Tamil Nadu. He asks me to order a new hearing
before a different panel of the Board.
[4]
I
can find no grounds for overturning the Board’s decision and must, therefore,
dismiss this application for judicial review.
II.
Issues
[5]
There
are two issues:
(1) Did
the Board treat Mr. Nazereth unfairly by failing to notify him that it was
considering whether he could live safely in Tamil Nadu?
(2) Was
the Board’s conclusion that Mr. Nazereth could live safely in Tamil Nadu
unreasonable?
III. Analysis
(a) Factual
Background
[6]
Mr.
Nazereth was a practising Catholic and involved in missionary work in his
hometown of Trivandrum, Kerala,
India. He was involved in the
conversion of at least one Hindu, which is how he came to the attention of
Hindu extremists. In 2005, during a procession celebrating the anniversary of
his church, extremists threw bombs and assaulted a number of participants.
After the attack, his family was threatened and harassed. He decided to leave
his hometown.
[7]
Mr.
Nazereth moved to Puthu Kadai, a village in the state of Tamil Nadu. He claims
that he attempted to open a bank account there, but this alerted the police to
his presence. In 2006, after the police came to his house in Puthu Kadai, he
decided to come to Canada.
(b) The Board’s
Decision
[8]
The
Board found a number of discrepancies in Mr. Nazereth’s account of events but,
nevertheless, concluded that he was genuinely involved with Christian religious
activities and had participated in the conversion of a Hindu person to Catholicism.
The Board acknowledged that, in some parts of India, Christians are mistreated by Hindu extremists.
[9]
However,
the Board found that Mr. Nazereth could live safely in Tamil Nadu; i.e.,
that he had an “internal flight alternative” (IFA). It concluded that there
was no serious possibility of persecution, and that it was not unreasonable for
Mr. Nazereth to seek refuge there. The Board noted that Mr. Nazereth did not
experience any persecution in Tamil Nadu; in fact, no one had been looking for
him for over three years. Many Christians live in Tamil Nadu and practise their
faith openly. Mr. Nazereth had lived there safely and has family nearby. The
Board did not believe Mr. Nazereth’s claim to have been sought by police in
Tamil Nadu.
1. Did the Board treat Mr. Nazereth
unfairly by failing to notify him that it was considering whether he could live
safely in Tamil Nadu?
[10]
At
his hearing, the Board raised the issue whether Mr. Nazereth had an IFA in India. It specifically named
two potential safe havens – New Delhi, and Mumbai. To be fair to a claimant, the Board must give him
or her notice that a particular IFA is being considered so the person can
address the point in testimony or documentary evidence: Arunasalam v. Canada (Minister of
Citizenship and Immigration), 2003 FC 885.
[11]
Mr.
Nazareth argues that because the Board referred specifically to New Delhi and Mumbai he had no
notice that the Board was considering Tamil Nadu as a potential IFA. In my
view, Mr. Nazereth’s submission is unduly formalistic.
[12]
A refugee
claimant has the burden of showing a well-founded fear of persecution in his or
her country of origin. In Mr. Nazereth’s case, he had to show that he was
persecuted in his home town of Trivandrum, Kerala and in Puthu Kadi, Tamil Nadu. In respect of Puthu
Kadi, he had to justify why he felt he was not safe there and had to seek
refuge in Canada. According to his own
version of events, he fled to Tamil Nadu because he felt it would be a suitable
and safe location in which to live. I cannot see how he can claim to have been
prejudiced by the Board’s consideration of a proposition he put forward
himself. He could not have been taken by surprise. He presented evidence about
the circumstances he encountered in Tamil Nadu and was questioned about his
experiences there. Accordingly, I can see no unfairness in the Board’s
consideration of an IFA in Tamil Nadu.
2. Was the Board’s conclusion that
Mr. Nazereth could live safely in Tamil Nadu unreasonable?
[13]
Mr.
Nazereth submits that the Board erred in three aspects of its IFA finding.
First, he argues that the Board did not identify the IFA with sufficient
precision. Tamil Nadu is a huge state, with a population of 62 million. Second,
he suggests that the Board erred in its finding that he did not have a
well-founded fear of persecution in Tamil Nadu. Finally, he maintains that the
Board did not analyze adequately the reasonableness of the IFA in Mr.
Nazereth’s particular circumstances.
[14]
In
my view, the Board’s conclusion that Mr. Nazereth had an IFA in Tamil Nadu was
reasonable.
[15]
First,
the Board’s identification of a putative IFA in Tamil Nadu was sufficiently
precise. It is insufficient for the Board merely to make vague suggestions,
such as, that a claimant live “elsewhere in Pakistan” (Ahmed v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 237) or “elsewhere in Mexico” (Mendoza v. Canada (Minister of
Citizenship and Immigration), 2008 FC 387). Here, though, the Board
identified a particular, and well-defined geopolitical area.
[16]
Second,
the Board concluded that Mr. Nazereth was unlikely to experience persecution in
Tamil Nadu because it disbelieved his evidence on the point. The Board noted discrepancies
between his written narrative and his oral testimony. In the former, he said
that the police came looking for him after he attempted to open a bank account.
In the latter, he said he did not present his identity card to the bank because
he did not want to be traced. In addition, there was no evidence that Mr.
Nazereth was targeted by Hindu extremists in Tamil Nadu, even though he
continued to attend church. I cannot see anything unreasonable about the
Board’s conclusion.
[17]
Third,
regarding the reasonableness of Tamil Nadu as an IFA, the Board noted that Mr.
Nazereth had lived there without incident for several months. The Board
considered the sizable Christian minority and the relative absence of Hindu
extremists. He had family nearby. Again, I can find nothing unreasonable in the
Board’s analysis.
IV. Conclusion and Disposition
[18]
Mr.
Nazereth was not treated unfairly by the Board’s consideration of a potential
IFA in Tamil Nadu. Mr. Nazereth had, in any case, the burden of showing he had
a well-founded fear of persecution there and was justified in seeking refugee
protection in Canada. He was not prejudiced
by the Board’s treatment of the issue. Further, the Board’s conclusion that
Tamil Nadu was a viable IFA was not unreasonable in light of the evidence
before it. Accordingly, I must dismiss this application for judicial review. No
question of general importance is stated.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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