Date: 20090728
Docket: IMM-201-09
Citation: 2009 FC 763
Ottawa, Ontario, July 28, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
HARDEEP
KUMAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) dated January 7, 2009, where the Board found that the applicant
was not a Convention refugee nor a person in need of protection.
Issues
[2]
The
only issue in the case at bar is whether the Board erred in concluding that the
applicant did not rebut the presumption that India was able to
protect him?
Factual Background
[3]
The
applicant, Hardeep Kumar, is a citizen of India from the
village of Lohgarh in the
district of Jalandhar in Punjab.
[4]
His
brother, Pawan Kumar, was a taxi driver who had problems with the police.
Specifically, he was arrested, tortured and charged in February 2004 for
collaborating with extremists and transporting their weapons. The applicant alleges
that his brother was forced to take extremists in his taxi but that they fled
when he approached a checkpoint.
[5]
In
April 2005, the applicant’s brother was again arrested, tortured and
interrogated by the police about extremists, but was released after
the intervention of influential people. After receiving medical care, he
left home without telling anyone. The applicant and his family went to the
police station to file a report on the matter but they refused to take
their report and alleged that the applicant’s brother had joined the extremists.
[6]
On
June 12, 2005, following the explosion of a bomb in a cinema in Delhi, the police
raided the applicant’s home and asked where his brother was. When the police
did not find him, they arrested the applicant and took him to the police
station, where they interrogated him, beat him and severely tortured him. With
the help of the village council and his family’s payment of a bribe, the applicant
was released on June 17, 2005, and he then received medical attention.
[7]
On
March 23, 2006, two individuals came to the applicant's home during the
night, forcing him and his family to give them food and shelter. They said that
the applicant’s brother was working for them. The next morning, the police
raided the home and arrested the applicant. They took him to the police station
where they questioned him about the extremists and his brother, and they beat
him and tortured him.
[8]
On
March 27, 2006, the applicant was released after a bribe was paid, but, before
his release, he was fingerprinted and photographed, told to sign blank papers
and ordered to report to the police station monthly. The applicant also
received medical attention.
[9]
After
receiving treatment, he left his village and went to Chandigarh with an
agent, or human smuggler. The agent told him that the police were looking for
him because he had not reported to them as ordered. The applicant alleges
that the agent took care of his papers and obtained a visa for him so he could
come to Canada.
[10]
The
applicant left his country and arrived in Canada on December
18, 2006. He claimed refugee protection in Canada on January
29, 2007.
[11]
The
applicant’s claim for asylum is based on his alleged fear of persecution at the
hands of corrupt police officers in Punjab. Specifically, the applicant
alleges that the Punjabi police suspected his brother of supporting the
terrorists and the police detained and tortured him in order to find out his
brother’s whereabouts and to get a confession.
Impugned Decision
[12]
The
Board dismissed the applicant’s claim as it concluded that the applicant could
have availed himself of state protection before fleeing India.
[13]
During
the hearing, the Board asked the applicant if, while living in Chandigarh for
the eight months before he left for Canada, he informed the Indian
authorities of the problems he had with the police in his district. The applicant
replied that he had not done so because he would have probably been captured by
the Punjabi police. When asked whether he had tried to obtain help from either
a human rights commission or a non-governmental organization working in that
field, the applicant answered that he had not done so and that his agent kept
him indoors at all times.
[14]
The
Board asked the applicant to specify whether he had gone to the Canadian
Embassy to obtain his visa. The applicant initially answered that his agent
brought him all the documents, but he then said that he had gone to Delhi with the
agent to visit an office associated with the Canadian Embassy. When asked
whether he informed the Indian authorities of the problems he had with the
police in Punjab when he was in Delhi, the applicant replied
that the agent had not given him enough time to do so. He also answered
that he had not tried to obtain assistance from a human rights commission or a
non-governmental organization working in that field while he was in Delhi.
[15]
The
Board noted that the test for whether state protection might reasonably be
forthcoming is an objective one (Judge v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1089, 133 A.C.W.S. (3d) 157 at
paragraph 10) and there is a presumption that the state is capable of
protecting its citizens (Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689. The Board noted that India is a democratic country and
that the documentary evidence indicates that, despite the serious problems that
do exist in India, the
government generally respects the rights of its citizens. The documentary
evidence further indicates that the judiciary is independent and that citizens
can avail themselves of judicial recourse and obtain concrete results. Control
mechanisms exist with the police forces and the police are expected to abide by
a specific code of conduct and there are government funded and non-governmental
organizations to assist those who have difficulty obtaining state protection.
[16]
When
a lack of state protection is claimed, relevant and probative evidence must be
adduced of the state’s inability to protect (Carillo v. Canada (Minister of
Citizenship and Immigration) 2008 FCA 94, 377 N.R. 393 at paragraph 38).
Where a state is in effective control of its territory, has military, police
and civil authorities in place, and makes serious efforts to protect its
citizens, the mere fact that it is not always successful at doing so will not
be enough to rebut the presumption of the existence of state protection (Canada
(Minister of Employment and Immigration) v. Villafranca (F.C.A.), (1992),
150 N.R. 232, 37 A.C.W.S. (3d) 1259). The protection offered by the state must
not be perfect but it must be practical, real and effective (Judge at
paragraph 9; Kaur v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1491, 143 A.C.W.S. (3d) 1094 at
paragraph 28; Razo v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1265, 162 A.C.W.S. (3d) 659 at
paragraph 10). A citizen is required to seek the protection of the authorities
in their country, unless it is objectively reasonable not to do so; in other
words, unless such protection would not be forthcoming (Soto v. Canada (Minister
of Citizenship and Immigration), 2005 FC 1654, 145 A.C.W.S. (3d) 136 at paragraph
7; Castro v. Canada (Minister of Citizenship and Immigration), 2007 FC
40, 154 A.C.W.S. (3d) 937 at paragraph 14). The Board noted that it is not
reasonable to require a refugee protection claimant to place his own or his
family’s life in danger, or expose himself to the risk of further persecution
merely to demonstrate the ineffectiveness of the state protection sought (Chagoya
v. Canada (Minister of Immigration and Immigration), 2008 FC 721 at paragraph
5, [2008] F.C.J. No. 908 (QL)).
[17]
During
the hearing, the applicant indicated that when state protection becomes
ineffective, there is no further requirement for an applicant to seek the
protection of the authorities. The applicant also cited this Court’s decision
in Kaur and argued that state protection in India was
ineffective. The applicant referred to the documentary evidence, citing in
particular an Amnesty International report indicating that torture and violence
against persons in detention persists in Punjab and that the authorities seem
to believe that they can violate citizens’ fundamental rights with impunity. He
further indicated that the Punjab State Human Rights Commission was inundated
with complaints mostly concerning abuses committed by the police. He also cited
the remarks of an Indian judge who complained that, in response to complaints
of illegal acts by police officers, no action was taken to make the officers
aware of the need to respect human rights.
[18]
The
applicant also filed documentary evidence such as decisions by the Supreme Court
of India noting the existence of illegal practices by Indian police officers,
including cases of torture and death of detainees. In Smt. Shakila
Abdul Gafar Khan v. Vasant Raghunath Dhoble and ANR, [2003] INSC 435,
September 8, 2003 at p. 8 (Khan v. Dhoble and ANR), the judges clearly
indicated that such practices are intolerable and pointed out that recourse is
available to those beaten or assaulted while in detention.
[19]
In
the recent Periodic Review of India by the Human Rights Council, India’s representatives
were criticized and were questioned about acts of torture and mistreatment
committed with impunity by the police and security forces during operations
under the Armed Forces Special Powers Act. Overall, however, India was
congratulated on its commitment to democracy and its determination to promote
human rights, not only through the courts and human rights commissions, but
also through active participation by civil society and the press. The Indian
delegation indicated that India had signed the Convention against Torture and
embraced its objectives.
[20]
The
Board recognized that the situation in India is problematic
and significant violations of human rights do occur. The Board is aware of the
possible consequences of being a victim of torture and concerns with the
remarks of the judges of the Supreme Court of India, who wrote that the
adoption of the Universal Declaration of Human Rights marked the
emergence of a worldwide trend in the protection and safeguarding of specific
fundamental rights, including the right not to be subjected to torture or to
cruel, inhuman or degrading treatment or punishment (Khan v. Dhoble and ANR).
Although the Board noted that these crimes are still alarmingly widespread in
India and that some politicians, feigning ignorance, allow police officers to
act in this way when it suits their own purposes, the Board did not
believe that this shows that state protection is ineffective in India,
because the judges of India’s Supreme Court and other courts perform their
duties in an independent manner, changing the rules of evidence to make justice
more accessible to citizens who are the victims of such acts and calling upon
all concerned, magistrates included, to make all citizens more aware of their
rights.
[21]
Despite
criticisms of the Indian judicial system, including the fact that delays are
sometimes excessive, there is a general effectiveness of the system. Moreover,
illegal acts by police officers in a specific region of the country do not
allow to conclude that the state, taken as a whole, is itself an agent of
persecution or does not offer protection against such acts (Luthra v. Canada
(Minister of Citizenship and Immigration), 2008 FC 1053, 170 A.C.W.S. (3d)
401 at paragraph 13.
[22]
Taking
all of the documentary evidence into account and considering the personal
situation of the applicant, who lived in Chandigarh for approximately eight
months before leaving India, the Board found that the applicant’s testimony and
the documentary evidence to which he referred did not constitute convincing
evidence to support a conclusion that the presumption of the ability of the
Indian authorities to protect their citizens had been rebutted in his case.
[23]
Moreover,
the Board did not believe that it was unreasonable to expect the applicant to attempt
to alert the Indian authorities and to seek their protection while living in Chandigarh or Delhi. He could
have obtained assistance from governmental or non-governmental human rights
organizations and he could have informed them that he was threatened by police
officers in his district (Lopez v. Canada (Minister of Citizenship and
Immigration), 2007 FC 198, 165 A.C.W.S. (3d) 514 at paragraph 22; Hernandez
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1211, 164
A.C.W.S. (3d) 842 at paragraph 21).
[24]
The
Board found that the applicant’s explanation for not taking action while he was
living in Chandigarh or during his stay in Delhi because state protection in
India was ineffective was unconvincing given that, despite the
persistence of significant problems, the documentary evidence showed that
democracy still operated in India. The Board noted that the Indian state
had the resources – particularly its judicial system – and the
willingness to provide adequate protection to its citizens (Navarro v. Canada
(Minister of Citizenship and Immigration), 2008 FC 358, 169 A.C.W.S. (3d)
626 at paragraph
17; Sanchez v. Canada (Minister of
Citizenship and Immigration) 2008 FC 66, 167 A.C.W.S. (3d) 155 at paragraph
12).
Analysis
Standard of review
[25]
The
question of state protection is one of mixed fact and law which is reviewable
on the standard of reasonableness (Chagoya at paragraph 3; Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraphs 55, 57, 62
and 64; Chaves v. Canada (Minister of Citizenship and Immigration), 2005
FC 193, 137 A.C.W.S. (3d) 392; Mendoza v. Canada (Minister of
Citizenship and Immigration), 2005 FC 634, 139 A.C.W.S. (3d) 151 at
paragraph 16; B.R. v. Canada (Minister of
Citizenship and Immigration), 2006 FC 269, 146 A.C.W.S. (3d) 530 at paragraph
17).
[26]
According
to the Supreme Court of Canada, the elements to consider are the justification
of the decision, its transparency and its intelligibility and the outcome must
be defensible in respect of the facts and the law (Dunsmuir at paragraph
47).
[27]
In
the case at bar, it was entirely open to the Board under the circumstances to
conclude that the applicant had failed to exhaust all avenues to seek
alternative avenues of redress sanctioned by the state. Moreover, it was
reasonably open to the Board to find unsatisfactory the applicant’s explanations
for not seeking state protection when he lived in Delhi and Chandigarh.
[28]
As
noted by this Court in Martinez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 343, 146 A.C.W.S. (3d) 1052 at
paragraph 10, the Board should not automatically conclude that the actions of a
few constitute persecution by the state. Where the alleged persecutors are
confined to a specific location or are rogue elements acting outside their
jurisdiction, the Board must still assess whether it was objectively reasonable
for the applicant to have sought the protection of the state.
[29]
The
Board member analyzed not only the positive documentary evidence concerning
India but the negative one and considered that there were remedies available to
the applicant against his alleged persecutors in his country, especially
since he had been living in two different cities where various
authorities and agencies such as human rights commissions were available to
help him. The Board therefore found that since he had failed to seek the
protection of his own country, the applicant had not rebutted the presumption
of state protection. This is not an error justifying the intervention of this
Court.
[30]
The
conclusions of the Board are defensible in respect of the facts and the law.
[31]
Both
parties advised the Court that they do not consider that this case raises a
serious question which ought to be certified for an appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS that
the application for judicial review be
dismissed. No question is certified.
“Michel
Beaudry”
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