Docket: IMM-5488-11
Citation: 2012 FC 381
Montréal, Quebec, April 3, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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AMIT AMIT
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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 JUDGMENT AND JUDGMENT
[1]
This
is an application for a judicial review of the Immigration and Refugee Board
(Refugee Protection Division) [Board], rendered on July 20, 2011, dismissing
the asylum claim of the applicant made under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act], on the basis that an
Internal Flight Alternative [IFA] is available in India, such as the city of
Bangalore.
[2]
It
must be remembered that the concept of IFA is inherent to the very definition
of Convention refugee. The test for determining whether a refugee claimant has
an IFA involves two steps. First, there must be no serious possibility that an
individual would be persecuted or subjected to persecution, or to a danger of
torture or to a risk to his life or of cruel and unusual treatment or
punishment in the proposed IFA; and second, the conditions of the proposed IFA
area must be such that it would not be unreasonable for the individual to seek
refuge there: Rasaratnam v Canada (Minister of Citizenship and Immigration,
[1992] 1 FC 706 (FCA).
[3]
The
onus is on a claimant to prove actual and concrete evidence of conditions which
would jeopardize his or her life (Morales v Canada (Minister of
Citizenship and Immigration), 2009 FC 216). In this respect, the Board’s
failure to consider the specific risks feared by a claimant in an IFA analysis
will constitute an error of law (Velasquez v Canada (Minister of
Citizenship and Immigration), [2010] FCJ 1496 at paras 15-22).
[4]
In
the decision under review, the conclusion that an IFA exists is not reasonable.
It is not challenged that the fear of persecution of the applicant is based on
a Convention ground, notably his imputed political beliefs. The whole reasoning
of the Board is based on the erroneous assumption that the applicant would be a
low profile Sikh militant, but the true question in this case is whether, if we
believe the applicant’s story, a young Hindu man who was detained,
fingerprinted, photographed, interrogated and tortured by the New Delhi police,
because of his alleged links with a suspected terrorist following the 2008
Mumbai bombing, has a well-founded fear of persecution throughout India.
[5]
Instead
of focusing on this fundamental aspect of the asylum claim, the Board relies on
a documentary evidence suggesting that “while the Punjab police may be serious
about pursuing Sikhs anywhere in India whom they view as hard-core militants,
in practice only a handful of militants are likely to be targeted for such
long-arm law enforcement” (India National Documentation Package, May 31, 2010,
Tab 2.5). Be that as it may, the Mumbai bombing was a major incident that
attracted national attention in India. In the absence of a true analysis of the
claimant’s subjective fear of persecution, the Board’s finding that the
applicant has an IFA in Bangalore is arbitrary and
capricious.
[6]
Another
reviewable error concerns the lack of real analysis of the applicant’s
credibility who alleges having been tortured for three days by the police and
has produced documentary evidence to corroborate his story. However, there is
no clear finding by the Board that the applicant is not credible (apart from
the implausibility of what happened after the police incident). This renders
highly dubious the rest of the analysis of the Board on the existence of an IFA
(Flores v Canada (Minister of Citizenship and Immigration), [2010] FCJ
607 at paras 22, 32-33 and 49; Jimenez v Canada (Minister of Citizenship and
Immigration), [2010] FCJ 879 at paras 13-18; Pikulin v Canada (Minister
of Citizenship and Immigration), [2010] FCJ 1244 at paras 12-13 and 22-23).
[7]
If
the Board had clearly and articulately set out its findings of fact, this could
have perhaps prevented the truncated analysis of the objective basis of the
refugee claim through the existence of an available IFA in India. This is not a case
where only section 97 of the Act is at play and where it could arguably be
unnecessary for the Board to proceed with an analysis of the claimant’s
subjective fear (Prasad v Canada (Minister of Citizenship and Immigration), [2011]
FCJ 708; Lezama v Canada (Minister of Citizenship and Immigration),
[2011] FCJ 1213).
[8]
For
all these reasons, the application must succeed. The decision is set aside and
the matter will be referred for reconsideration and review by a different
panel, which will need, among other things, to analyze the applicant’s
subjective fear including an assessment of the credibility and plausibility of
his account, before proceeding with an analysis of the question of persecution,
the issue of an IFA and the availability of state protection, as the case may
be.
[9]
The respondent has proposed no question
for certification, while the applicant has proposed the following serious
question of general importance:
Is
it correct in law to find that there is an Internal Flight Alternative when a
victim of persecution, in this case a victim of torture, is fleeing from the
police or other state agents? Is there not a legal presumption that no Internal
Flight Alternative exists when the persecution emanates from the state or from
agents of the state?
[10]
Having considered the oral submissions of
counsel at the hearing, no question shall be certified. It is not proper to
certify a question of law if there is still matter to seriously debate findings
of fact made by the Board. I would add that the existence of an IFA is mostly
fact driven. In passing, the general proposition that it would be an error of
law to affirm that an IFA is available when persecution comes from the state
itself or agents of the state, such as the police force, has not been seriously
challenged by the respondent in this proceeding.
JUDGMENT
THIS COURT’S JUDGMENT is
that:
1.
The
application for judicial review is granted;
2.
The
decision is set aside and the matter will be referred for reconsideration and
review by a different panel, which will need, among other things, to analyze
the applicant’s subjective fear including an assessment of the credibility and
plausibility of his account, before proceeding with an analysis of the question
of persecution, the issue of an IFA and the availability of state protection,
as the case may be; and
3.
No
question is certified.
“Luc Martineau”
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