Docket: IMM-4138-11
Citation: 2012 FC 184
Ottawa, Ontario, February 8,
2012
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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SURINDER KUMAR NAGPAL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
Mr.
Nagpal’s claim for refugee status is that he is at risk in India from his
first wife, his brother-in-law, and a corrupt local lawyer –whom he terms the
infamous “Trio” – and the police who are in cahoots with them.
[2]
It
goes back to the early 1990s and continued until he left India in 2003,
first for the United States and later for Canada. He had lent
his brother-in-law money. It went bad. He was arrested, detained and tortured
by the police for over three days in relation to a visit from his Muslim uncle,
who came from Pakistan. He was able
to escape but heard from a policeman he knew that the trio had planted
suspicions in relation to the nature of his uncle’s visit. After years of
marital conflict, he and his first wife divorced. He remarried. In January
2003, he was again arrested, detained and tortured for three days. Apparently,
this was in order to prevent his participation in militant activities. After
his release, he was ordered to report regularly. With aid, he later escaped to
the United
States.
[3]
The
Board member of the Refugee Protection Division of the Immigration and Refugee
Board of Canada found him credible but, nevertheless, dismissed his claim on
the basis that an internal flight alternative is available to him in India, namely the
city of Mumbai. The purpose
of this judicial review is to determine whether that decision was reasonable.
[4]
The
day before the hearing, the Court received a poison pen letter. The allegations,
if true, are that Mr. Nagpal’s story is pure fiction and that he is not
admissible to Canada on the
grounds of serious criminality. I directed that this letter be immediately sent
to counsel for both parties.
[5]
At
the commencement of the hearing, counsel and the Court agreed that the judicial
review should proceed. This is not a case such as Makias v Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 1218, [2008] FCJ No 1534 (QL), a decision of Mr.
Justice Blanchard, in which, at
paragraph 30, this
Court referred a matter back to the Refugee Protection Division because of new
facts. Indeed, there are no new facts, simply unproven allegations. In any
event, proceeding on the basis that Mr. Nagpal is indeed credible, in my
opinion the decision under review was imminently reasonable, and should not be
disturbed.
[6]
In
her decision, the member found that Yamuna Hagar was a small village. The only anecdotal
evidence in the record is that it is a city of some 500,000 people with a
police force of a 100. That was Mr. Nagpal’s uncontradicted evidence.
[7]
Mr.
Nagpal’s theory is that the crooked lawyer was a big fish in a bigger pond than
the member had realized, and that, therefore, his nefarious influence, and that
of the police in Yamuna Hagar, were broader than realized. It was submitted
that they had the wherewithal to track Mr. Nagpal down in Mumbai. Although he
was never convicted of any crime, much less charged with same, he could be
found out, notwithstanding that Mumbai has a population of more than 20
million.
[8]
As
I read the decision, the emphasis was not on the size of Yamuna Hagar but
rather on the size of Mumbai. While it is conceivable that he could be found
out, and conceivable he could be hunted down, the member found that there was
no serious possibility of that happening, much less than it would happen on the
balance of probabilities.
[9]
As
stated in Bokhari v Canada (Minister of Citizenship and Immigration), 2011
FC 354, 96 Imm LR (3d) 169, one must consider not only the possibility that a
person could be tracked down in another part of the country, but whether the persecutors
had the will to do so. There is nothing substantial in the record to back up
that possibility.
[10]
Although
the oral argument was in French for the benefit of counsel, I was requested to
first issue the reasons in English, the official language with which Mr. Nagpal
is more familiar. Both parties agreed there was no question to certify and none
shall
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1.
The
application for judicial review is dismissed.
2.
There
is no serious question of general importance to certify.
“Sean Harrington”
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