Date:
20100930
Docket: IMM-1812-10
Citation: 2010 FC 981
Vancouver, British Columbia, September
30, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
PROMILLA, DINESH JALAN
and RAVI JALAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under s. 72(1) of the Immigration and
Refugee Protection Act (the “Act”), of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the “Board”), dated March 11,
2010, whereby it was held that the applicants are not Convention refugees and
are not persons in need of protection.
[2]
Promilla,
Dinesh and Ravi Jalan (the applicants) are citizens of India. The female
applicant (Promilla) is the mother of the other two applicants who are adult
males.
[3]
They
are fleeing India for fear of a woman (Rekha) who is having an
affair with the female applicant’s husband (Ashok), who also is the father
of the two other applicants. Rekha moved in with them and began
to make the life of the applicants very difficult. She even burnt the
female applicant with hot oil. She is also alleged to have sent some men to
beat up the two sons.
[4]
The
applicants came to Canada with Ashok in June 2008. The female applicant
testified that her husband brought them to Canada on the condition that they
would remain here and would not follow him to India. The applicants
have not heard from him since that time.
[5]
They
fear Rekha and the Indian police. They allege that Rekha wants them dead
and that she is very influential in India.
[6]
As
a single woman, the female applicant and her two sons with
disabilities (both sons have hearing and speech impediments) fear the Indian
society as a whole because it does not take kindly to “these types of people”.
[7]
The
Board found that the applicants are neither Convention refugees nor persons in
need of protection and that they had an internal flight alternative
(IFA). Credibility was not an issue.
[8]
The
standard of review applicable to issues relating to an IFA is reasonableness, Dunsmuir
(Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190). Consequently, the Court will only intervene if the decision does not fall
within "a range of possible, acceptable outcomes which are defensible in
respect of the facts and the law" (Dunsmuir, at para. 47).
[9]
As
for issues of procedural fairness, they are reviewable according to the
correctness standard (CUPE v. Ontario (Minister of Labour), 2003
SCC 29, [2003] S.C.J. No. 28 (S.C.C.) at para. 100; Sketchley v. Canada
(Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056 (F.C.A.) at para.
54).
[10]
The
applicants take issue with paragraph 2 of the decision claiming that the Board
applied the wrong test to interpret the definition of convention refugee. The
Court is of the opinion that, combined with paragraphs 4 and 19, there is no
reviewable error when reading the contested paragraph:
The duty of this panel is to find if
there is sufficient credible or trustworthy evidence to determine that there is
a "serious possibility" that the claimants would be persecuted, or
that there are substantial grounds to believe that they would be tortured, or
at risk of losing their lives or being subjected to cruel and unusual treatment
or punishment if they return to India ….
[11]
With
regard to the applicants’ arguments on gender-related persecution, I find that
the Board did reasonably examine the possibility that the female
applicant could face gender-related persecution if returned to India, but concluded
that the female applicant does not meet the profile of an abandoned woman
who would face destitution in a large city (para. 18 of the decision).
This conclusion was based on the fact that the female applicant had two
adult sons by her side, as well as the support of her other family
members. The Court's intervention is not warranted.
[12]
With
respect to the alleged procedural fairness issue concerning vulnerable
claimants, the Board inquired as to the hearing disabilities of the two male
applicants and asked whether they were wearing hearing aids, then took a
break to determine how to proceed and reviewed the applicable rules. Upon
resuming, the Board satisfied itself that the two male applicants knew what the
hearing was for and that all three claimants were basing their claims on the
same facts.
[13]
The
Board member also stated that she was prepared to accept the truth of what was
stated in the Personal Information Forms (“PIFs”), but
requested that the two male applicants still affirm the truth of these documents.
In reading the transcripts, it is clear that the Board member proceeded in this
way for the benefit and convenience of the applicants, and not in order to
deprive them of the opportunity to testify.
[14]
At
no time did the applicants or their counsel object to this manner of
proceeding.
[15]
As
a result, I cannot find that there was a breach of procedural fairness. The
Board was attentive and accommodated the applicants.
[16]
The
Board's analysis and conclusions on an IFA are also reasonable. It found that
the applicants could live safely anywhere in India outside of
Jalandhar, the city where Ashok and Rekha live. Large cities were suggested
such as Ludiana and Jammu where the female applicant’s sisters live, as
well as other large cities such as New Delhi and Mumbai.
[17]
The
onus is on the applicants to show that there was a serious possibility of being
persecuted everywhere in India and that it was objectively unreasonable for
them to avail themselves of an IFA (Thirunavukkarasu v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589, 163 N.R. 232; Rasaratnam
v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706;
(1991), 140 N.R. 138 (F.C.A.)). I find that the Board’s findings on this
question do fall within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law.
[18]
No question of general importance was submitted
and none arises.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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