Date: 20120614
Docket: IMM-8767-11
Citation: 2012 FC 746
Ottawa, Ontario, June 14,
2012
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
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WAJID ALI
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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 judicial review pursuant to paragraph 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision
made by the Refugee Protection Division of the Immigration and Refugee Board
(the Board), dated October 24, 2011, wherein it rejected the applicant’s
application for refugee protection in Canada. The Board determined that the
applicant was neither a Convention refugee within the meaning of section 96 of
the Act nor a person in need of protection within the meaning of section
97 of the Act.
I. Background
[2]
The
applicant is a citizen of India and is of Muslim faith. He bases his claim
for protection on the following events.
[3]
The
applicant was a successful businessman and a partner in an Indian company
called Elite International. This company specialized in manufacturing and
exporting leather saddlery and other goods related to horseback riding.
[4]
In
order to gain a competitive advantage and undermine the applicant’s business
through negative publicity, one of his competitors, Mr. Naresh, who is a member
of the RSS organization, accused the applicant of killing cows, a serious
offence in India. For this
offence, the applicant was arrested, detained and tortured and only released after
the payment of a significant bribe. The applicant further alleges that on April
15, 2009, he was arrested a second time for killing cows and for sheltering
Muslim militants. He was released four days later, after paying another bribe in
the amount of 50,000 rupees. Throughout this time, he was also harassed by the
police and members of the RSS.
[5]
As
a result of these incidents, he feared for his life and fled India. He arrived
in Canada on May 13,
2009 and, a few weeks later, claimed refugee protection.
[6]
After
the applicant’s departure from India, his partners dissolved the business.
[7]
During
his testimony, the applicant stated that the RSS organization is an anti-Muslim
group that has followers all over the country. He explained that he fears both
the RSS (specifically Mr. Naresh) and the Indian authorities.
II. Decision under review
[8]
The
Board accepted the applicant’s testimony as credible and reliable and believed
that the applicant feared the RSS, its members, Mr Naresh, and members of the
Indian police who are allegedly under the RSS’s influence. However, it
determined that an Internal Flight Alternative (IFA) was available and that
this issue was determinative of the claim. The Board identified the cities of Bangalore, Mumbai and Delhi as potential
IFAs.
[9]
When
questioned about why he feared returning to India, the
applicant stated that he believed that Mr. Naresh remained a threat. The
applicant believed that if he returned to India,
Mr. Naresh would assume that he would start a new business and, once
again, become a competitor. The applicant also stated that he would continue to
be a target of the RSS because once you become a target, you remain a target.
Due to the links between the RSS and the police, the applicant believes that he
cannot be safe in any part of India.
[10]
Despite
the applicant’s testimony, the Board concluded that it was unlikely that the
applicant would face persecution if he returned to India and lived in
a different city. Based on the following elements, the Board did not believe
that the applicant would still be of interest to Mr. Naresh, the RSS or the
police:
- Mr. Naresh’s main
goal was achieved; the applicant’s business was dissolved and he is no
longer a competitor. The Board did not think that Mr. Naresh would invest
the time and the money to target the applicant in the proposed IFAs,
especially if the applicant is not involved in the same business;
- The applicant could
transfer his business skills and experience to a new industry where he
would not be a competitor or a rival to Mr. Naresh;
- The applicant’s
partners did not experience any problems;
- The applicant’s
family continues to live in the same city and has not experienced any
particular problems with Mr. Naresh or the RSS.
III. Issue
[11]
There
is a single issue to be determined in this case and that is whether the Board’s
decision regarding the IFA is reasonable.
IV. Standard of review
[12]
It
is well established that determinations as to the availability of an IFA are
reviewable according to the standard of reasonableness (Anwuobi v Canada (Minister
of Citizenship and Immigration), 2011 FC 1352 at para 9 (available on
CanLII); Lopez Martinez v Canada (Minister of Citizenship and Immigration),
2010 FC 550 at para 14 (available on CanLII); Guerilus v Canada (Minister of
Citizenship and Immigration), 2010 FC 394 at para 10 (available on CanLII);
Barbosa Ponce v Canada (Minister of Citizenship and Immigration), 2011
FC 1360 at para 13 (available on CanLII); Castor v Canada (Minister of Citizenship
and Immigration), 2011 FC 1267 at para 24, 208 ACWS (3d) 382).
[13]
The Court’s role when reviewing a decision against the standard of
reasonableness is defined in Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1
SCR 190 [Dunsmuir]:
. . . A court conducting a review for reasonableness inquires into
the qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
V. Analysis
[14]
The
question of whether or not an IFA exists is integral to the determination of a
refugee claim (Rasaratnam v Canada (Minister of Employment
and Immigration) (1991), [1992] 1 FC 706 at para 6 (available on QL) (CA) [Rasaratnam].
Further, an IFA assessment involves a two-prong test. First, the Board must be
satisfied, on a balance of probabilities, that there is no serious possibility
of the claimant being persecuted, subject to a danger of torture, a risk to his
life, or a risk of cruel and unusual treatment or punishment in the proposed
IFA. Second, it must be reasonable for the claimant to seek refuge there, given
the conditions in the proposed IFA (Rasaratnam, above, at para 10). Once
the Board raises the possibility of an IFA, the applicant bears the burden of
proving either that it does not exist or that, in the circumstances, it would
be unreasonable for the applicant to avail himself/herself of this IFA. (Thirunavukkarasu
v Canada (Minister of
Employment and Immigration (1993), [1994] 1 FC 589 at para 12, 109 DLR
(4th) 682 (CA)).
[15]
In
this case, the applicant takes issue with the Board’s analysis under the first
prong of the IFA test. He argues that it was unreasonable for the Board to
conclude that there was no serious possibility that he would be persecuted either
by the RSS, and more particularly by Mr. Naresh, or by the police.
[16]
The
applicant argues that the Board overlooked the following salient evidence:
- The dispute was not
merely a commercial dispute; it had a religious component to it and it led
to dangerous consequences for him;
- The RSS have links
with the police;
- His family members
were harassed by the RSS and were asked about the applicant’s whereabouts
after his departure;
- His partners were
asked about his whereabouts after his departure;
- The Board did not
consider the documentary evidence about the increasing intolerance towards
Muslims by Hindu fundamentalists and the resurgence of Hindu
fundamentalism.
[17]
The
applicant further argues that the Board failed to consider his testimony about
being an ongoing target of Mr. Naresh. The applicant stated that Mr. Naresh would
assume that the applicant would start up a new business and, once again, become
a competitor. The applicant also testified that he would remain a target of the
RSS.
[18]
With
all due respect and despite the sadness of the applicant’s story, I am of the
view that the Board’s decision is reasonable and that it does not warrant the
Court’s intervention.
[19]
This
Court must show a very high degree of deference to decisions regarding IFAs. In
this case, the Board undertook the appropriate approach to assess whether an
IFA was viable. Furthermore, I do not agree that the Board overlooked salient
evidence or that it failed to consider the applicant’s testimony.
[20]
It
is apparent from the reasons that the Board did acknowledge that the applicant
feared that he remained of interest to Mr. Naresh or to the RSS for two
reasons: (1) he would still be perceived as a potential competitor and (2) once
the RSS targets a person, “they try to finish the job.” The Board considered
this evidence but did not find it compelling enough to be convinced that an IFA
was not viable. With all due respect, the applicant’s evidence related to his
subjective fear but did not establish that there was an objective basis for
that fear. There must be an objective basis for the applicant’s belief that he
or she will be persecuted in the IFA (Romero Quiroz v Canada (Minister of
Citizenship and Immigration), 2011 FC 864 at para 7 (available on
CanLII)).
[21]
It
was not unreasonable, either, for the Board to consider, in light of the
evidence, that the root of the dispute that led to the applicant’s problems was
commercial rather than religious. In that context, and considering the Board’s
findings in that regard, it was not necessary for the Board to mention the
documentary evidence concerning the Hindu fundamentalism. It is
well-established by law that the Board need not mention each and every piece of
evidence in its reasons (Cepeda‑Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35 at para 16, 83 ACWS (3d)
264 (FCTD)) and that the Board is presumed to have considered all of the
evidence (Florea v Canada (Minister of Employment and Immigration) (1993),
[1993] FCJ no 598 at para 1 (available on QL) (CA)). Notably, the recent
Supreme Court decision Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board),
2011 CSC 62 at para 16, [2011] 3 S.C.R. 708 [Newfoundland and Labrador Nurses’
Union] explains:
[16] Reasons
may not include all the arguments, statutory provisions, jurisprudence or other
details the reviewing judge would have preferred, but that does not impugn the
validity of either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion (Service
Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses
Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons
allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir criteria are met.
[22]
In
reading the Board’s decision, I am able to understand why the Board arrived at
its conclusions and upon which evidence it based its findings. I am also
satisfied that the Board assessed all the relevant evidence. There is nothing
on record that leads me to believe that this decision could fall outside the
range of possible, acceptable outcomes which are defensible in respect of
the facts and law (Dunsmuir, above, at para 47). Furthermore, the fact
that a different reasonable conclusion is possible is not a reason for the
Court to set aside a decision. There may exist more than one reasonable outcome
(Dunsmuir, above, at para 47; Newfoundland and Labrador Nurses’
Union,
above, at para 11).
[23]
For all of
the foregoing reasons, the application for judicial review is dismissed. The parties did not propose
any question for certification and none arises in this case.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed. No question is certified.
“Marie-Josée
Bédard”
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