Date: 20120618
Docket:
IMM-6994-11
Citation:
2012 FC 770
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 18, 2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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SUKHWINDER SINGH
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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 filed in accordance with subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (Act), of a
decision dated September 16, 2011, in which the Refugee Protection
Division of the Immigration and Refugee Board (panel) found that the applicant
was not a refugee or a person in need of protection under sections 96 and 97 of
the Act.
I.
Background
A. Factual
background
[2]
Sukhwinder
Singh (applicant) is an Indian citizen who is thirty-one (31) years of age. The
applicant was living in the village of Kili Chahlan in the Punjab region. He
alleges that he fears the authorities in his country, who suspected him of having
militant ties.
[3]
The
applicant alleges that his cousin, Sukhdev Singh, a university student, and his
friends were arrested by the police in December 2002. The applicant maintains
that his cousin was detained and tortured by the police as he was accused of
helping militants.
[4]
The
applicant states that his cousin was detained a second time in August 2003 for
a period of three (3) days and that he was tortured by the police.
[5]
The
applicant alleges that, on November 20, 2003, the police entered his family
home looking for his cousin. The applicant contends that he was detained for
two (2) days, beaten and questioned on the activities of his cousin and
militants.
[6]
The
applicant also alleges that the police harassed members of his family.
Consequently, the applicant’s father decided to send the applicant to another
country. With the help of an agent, the applicant left India and relocated to
Kuwait in February 2004, where he worked for construction contractors.
[7]
In
March 2005, the applicant returned to India to visit his family for a period of
two (2) months. After he left, the applicant states that the police entered his
family home a second time.
[8]
After
his contract in Kuwait ended in March 2007, the applicant returned to India a second
time. He states that he was arrested by the police on March 14, 2007, because
they wanted to obtain more information on his cousin and militants. The
applicant alleges that he was tortured, beaten, photographed and fingerprinted.
[9]
After
his release, the applicant moved to Rajasthan, where he lived for 11 months
with his family. The applicant left India on March 10, 2008, and came to Canada
with a work visa valid from March 3, 2008, to March 31, 2009. The applicant was
laid off by his employer in Canada in June 2009. He filed his refugee
protection claim on August 8, 2009.
[10]
The
applicant argues that the police in India are still looking for him. He also
alleges that the police arrested and tortured his father in November 2010 to obtain
information with respect to him. The applicant’s father died due to injuries sustained
as a result of the torture inflicted by the police. What is more, the
applicant’s wife and children moved to another village.
[11]
The
panel heard the applicant’s refugee claim on August 17, 2011.
B. Impugned decision
[12]
The
panel rejected the applicant’s refugee claim based on the existence of an
internal flight alternative (IFA) and because he lacked credibility.
[13]
Although
the panel found the applicant’s explanations concerning his two return trips to
India and his delay with respect to his refugee claim in Canada to be credible,
the panel drew a negative inference from the fact that the applicant had no
information about his cousin. The panel noted that the applicant did not know
why the police were looking for him. Furthermore, the panel noted that the
applicant’s brothers and sisters, as well as his wife and children, who lived
in India, have not had any problems with the police. Consequently, the panel
found that there was no evidence demonstrating that the police were looking for
the applicant.
[14]
In
addition, the panel stated that there was an IFA because the applicant
testified that the police did not travel to visit his family members and that
the police did not communicate with other police offices. The panel stated that
those findings were corroborated by the documentary evidence (primarily
document 2.5 from the National Documentation Package, entitled “United Kingdom
(UK). 17 April 2008. Home Office. Operational Guidance Note: India”) and
other Federal Court decisions (Singh
v Canada (Minister of Citizenship
and Immigration), 2010 FC 601, [2010] FCJ No 720). In addition, the panel noted
that the applicant entered India twice and was able to leave his country three
times. Moreover, in 2005, the applicant stayed in India for a
three‑month period without incident.
[15]
The
panel listed the cities of Bangalore, Mumbai or Rajasthan as IFAs. The panel
noted that there were job opportunities in those cities and that the applicant
had not established that those IFAs were unreasonable. The panel found that the
applicant did not prove that he has the profile of a person who would be sought
by the authorities throughout the country or that he could be perceived as a
militant by the police. As a result, the panel stated that the applicant was
not the subject of persecution.
II.
Issue
[16]
The
Court is of the opinion that the determinative issue in this case is as
follows: Did the panel err in fact and in law in its assessment of the
existence of an IFA?
III.
Relevant
statutory provisions
[17]
Sections
96 and 97 of the Immigration and Refugee Protection Act read as follows:
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Refugee
Protection, Convention Refugees and Persons in Need of Protection
Convention refugee
96. A Convention refugee is a person who, by
reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
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Notions
d’asile, de réfugié et de personne à protéger
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention
– le réfugié – la personne qui, craignant avec raison d’être persécutée du
fait de sa race, de sa religion, de sa nationalité, de son appartenance à un
groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne
veut y retourner.
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Person in need of protection
97. (1) A person in need of protection is a person
in Canada whose removal to their country or countries of nationality or, if
they do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or to a
risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that
risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in
every part of that country and is not faced generally by other individuals in
or from that country,
(iii) the risk is not inherent or incidental
to lawful sanctions, unless imposed in disregard of accepted international
standards, and
(iv) the risk is not caused by the inability
of that country to provide adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of
persons prescribed by the regulations as being in need of protection is also
a person in need of protection.
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Personne à protéger
97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se
réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce
pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent
ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de
sanctions légitimes – sauf celles infligées au mépris des normes
internationales – et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également
qualité de personne à protéger la personne qui se trouve au Canada et fait
partie d’une catégorie de personnes auxquelles est reconnu par règlement le
besoin de protection.
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IV.
Applicable
standard of review
[18]
It
is settled law that findings concerning the determination of an IFA are
reviewable on the standard of reasonableness (Valencia v Canada (Minister of Citizenship and Immigration), 2011 FC 203 at paragraph
20, [2011] FCJ No 252). As a result,
the Court will focus on “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.” (Dunsmuir v New Brunswick, 2008 SCC 9
at paragraph 47, [2008] FCJ No 9).
V.
Analysis
[19]
At
the centre of this matter is the panel’s decision regarding the IFA. The
applicant alleges that the panel omitted documentary evidence and that it had
the duty to comment on evidence that are relevant to the matter and that
corroborate his account (Gill v Canada (Minister of Citizenship and Immigration), 2003 FCT 656, [2003] FCJ No 847; Singh v Canada (Minister
of Citizenship and Immigration), 2009
FC 485, [2009] FCJ No 616; Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration), 157 FTR 35, [1998] FCJ No 1425).
[20]
The
Court is of the opinion that, in this case, the panel’s decision is reasonable
and that the intervention of the Court is unwarranted.
[21]
In
fact, the evidence in the record does not contradict the panel’s finding and it
was reasonable for the panel to find that the applicant’s problems were limited
to his own village and that he was not a person sought nationwide. Notably,
when his wife and children moved 120 km from Killy Chahlan, they stopped having
problems. His sisters and brothers were not harassed by the police. The sisters
of his militant cousin did not have problems with the police. Furthermore, the
applicant left India three (3) times and returned there two (2) times. His
passport contains stamps to that effect. In 2005, the applicant returned there
for close to three (3) months. In 2007, the applicant lived in Rajasthan
for eleven (11) months. Under these circumstances, it is difficult to imagine
how the applicant has the profile of someone who would be actively sought by his
country’s central authorities. On this point, the Court reiterates the
observations of Justice Shore in Singh, above, at paragraph 10:
[10] The RPD reasonably concluded that
the fact that Mr. Balwant Singh used his own passport to leave India
demonstrated that he did not fear the central authorities. (Choque v. Canada
(Minister of Citizenship and Immigration) (1997), 73 A.C.W.S. (3d) 308,
[1997] F.C.J. No. 1017 (QL); Ccanto v. Canada (Minister of Employment and
Immigration) 1994, 73 F.T.R. 144, 46 A.C.W.S. (3d) 309; Singh v. Canada
(Minister of Citizenship and Immigration), 2009 FC 958, [2009] F.C.J. No.
1169 (QL)).
[22]
Furthermore,
the Court cannot accept the applicant’s argument that the panel disregarded
some of the evidence in the record. For example, the issue of the father’s
death was not discussed during the hearing before the panel and it is clear
that the submissions do not mention it. That element is not determinative. In
fact, the applicant is seeking, quite creatively, to have the evidence
reweighed. On this point, the Court reiterates that the panel is presumed to have
considered all of the evidence (Florea v Canada (Minister of Employment and Immigration) (FCA), [1993] FCJ No 598) and that it is not required to comment on every piece of
evidence in the record (Hassan v Canada (Minister of
Employment and Immigration) (FCA), [1992] FCJ No 946, 147 NR
317; Hinzman v Canada (Minister
of Citizenship and Immigration), 2006 FC 420, [2007] 1 FCR
561; Singh v Canada (Minister of Citizenship
and Immigration), 2008 FC 408, [2008] FCJ No 547). The Court finds the applicant’s argument
to be without merit.
[23]
In
this context, it is important to point out that it is up to the refugee
claimant to establish the inexistence of an IFA according to the two-part test:
applicants must establish that they are at risk throughout their country and
that the IFA would be objectively unreasonable given the circumstances (Rasaratnam v Canada (Minister of Employment and Immigration) (CA), [1991] FCJ
No 1256, [1992] 1 FC 706; Ranganathan v
Canada (Minister of Citizenship and Immigration), [2000] FCJ No 2118, [2001]
2 FC 164; Thirunavukkarasu v Canada (Minister of Employment and Immigration)
(CA), [1993] FCJ No 1172, [1994] 1 FC 589).
[24]
The
finding regarding the existence of an IFA is determinative and sufficient to
dispose of the claim (Baldomino v Canada (Minister of Citizenship and Immigration), 2007 FC 1270, [2007] FCJ No 1638; Shimokawa v
Canada (Minister of Citizenship
and Immigration), 2006 FC 445,
[2006] FCJ No 555; Canada (Attorney
General) v Parent, 2006 FC 353, [2006] FCJ No 457).
[25]
Given
all of the evidence in the record, the Court finds that the applicant did not
establish that he could not seek refuge in the locations suggested by the
panel. Consequently, the Court finds the panel’s decision to be reasonable.
[26]
For these reasons, the application for judicial review will be
dismissed. Neither party proposed any question for certification and this
matter does not contain any.
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that
1. The application is dismissed;
2.
There is no question for certification.
“Richard
Boivin”
Certified
true translation
Janine Anderson,
Translator
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