Date: 20090213
Docket: IMM-2293-08
Citation: 2009 FC 158
Ottawa, Ontario, February 13, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
PRITAM
SINGH
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), rendered
April 25, 2008, where the Board determined that Pritam Singh (the applicant)
was not a Convention refugee or a person in need of protection.
Issue
[2]
This
application raises the following question: Did the Board err in concluding that
there was an internal flight alternative available to the applicant?
[3]
The application
for judicial review shall be dismissed for the following reasons.
Factual Background
[4]
The applicant
is an illiterate citizen of India who lived with his family in the village of Mothanwala until June 2005.
[5]
The
applicant’s nephew, Kulbagh Singh, was a priest in a Sikh temple who had
previously encountered problems with the police because they suspected he was harboring
militants. After being tortured by the authorities, the applicant’s nephew
lived in secrecy. Police officers often went to the applicant’s farm to inquire
about his nephew.
[6]
On June 6, 2005, his nephew and two of
his colleagues forced the applicant to let them stay at his home. Two hours
later, the police surrounded the farm and the three men ran away through the
sugar cane fields, exchanging gunshots with the police. One of the men and the
applicant were apprehended.
[7]
The
applicant was detained and tortured for three days. He was released following
the intervention of the sarpanch and the payment of a bribe. He was
photographed, police took his prints and he was required to sign some papers. He
was also required to report to the police station every month.
[8]
The
applicant presented himself at the police station in August of 2005 and was
told that two militants had informed the police that a bag of ammunition had
been hidden on his property. He was severely beaten but was finally released.
[9]
He
then fled to Canada after being offered a
temporary lodging by his wife's nephew.
[10]
He appeared
before the Board a first time on June 23, 2006.
[11]
On December 19, 2007, the Board held a de
novo hearing. The day before the hearing, the Board member received a
letter from Dr. Ouimet. The document referred to an examination of the applicant
performed on December
14, 2007.
[12]
At
the hearing, the Board member asked the applicant if he understood the purpose and
the implications of the hearing and asked how he was feeling. The Board member
also spoke to the applicant’s counsel in order to clarify the purpose of this
letter. The hearing then proceeded.
The Board's Decision
[13]
The
Board concluded that the Applicant had an internal flight alternative (IFA) in
several cities in India and rejected the applicant's claim.
[14]
The
Board found that the applicant did not have the profile of a militant, no
warrant had been issued against him and he had not appeared before a judge.
[15]
Although
the applicant testified that he did not speak the language used in the proposed
cities, the Board noted that according to the case law, that did not mean that
an internal flight alternative was not available to him (Ranganathan v.
Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.).
The Board cited excerpts from the National Documentation Package on India, dated May 30, 2007,
IND100771.EX tab 14.4, to support this finding.
Standard of Review
[16]
Prior
to the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the standard of review on the issue of an IFA
was patent unreasonableness (Khan v. Canada (Minister of Citizenship and
Immigration), 2005 FC 44, 136 A.C.W.S. (3d) 912 and Chorny v. Canada (Minister of
Citizenship and Immigration), 2003 FC 999, 238 F.T.R. 289).
[17]
Following
Dunsmuir, the decision on an IFA is reviewable on the newly
articulated standard of reasonableness. As a result, this Court will only
intervene if the decision does not fall “within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at paragraph 47). For a decision to be reasonable there must be
justification, transparency and intelligibility within the decision making
process.
Analysis
[18]
After
having read the parties' written representations, analyzed and considered their
oral arguments and cited case law , I am of the opinion that the Board’s
finding are reasonable in the circumstances of the case at bar. The applicant
has not provided any evidence which demonstrates the inadequacy of the named
IFA.
[19]
In Thirunavukkarasu
v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589 (C.A.), the Court established
a very high threshold as explained at paragraph 15 of Ranganathan, above:
…
requires nothing less than the existence of conditions which would jeopardize the
life and safety of a claimant in traveling or temporarily relocating to a safe
area. In addition, it requires actual and concrete evidence of such conditions.
The absence of relatives in a safe place, whether taken alone or in conjunction
with other factors, can only amount to such condition if it meets that
threshold, that is to say if it establishes that, as a result, a claimant’s
life or safety would be jeopardized. …
[20]
The
combination of reasons provided by the applicant to demonstrate why the IFA is not
a reasonable option for him (language, absence of family members in the IFA,
etc.) do not establish that, as a result, the applicant’s life or safety would
be jeopardized. The factors enumerated by the applicant carry little weight
because they do not meet the aforementioned threshold.
[21]
I am
of the opinion that the applicant did not discharge his burden of establishing
that the Board committed a reviewable error in concluding that there was an IFA
available to him.
[22]
The
letter submitted by Dr. Ouimet cannot serve to establish that the IFA was not a
reasonable option. This letter is not a medical opinion. It was considered and
dealt with by the Board and the applicant's counsel, and both agreed that the
hearing should proceed (tribunal's record, pages 438 to 445). The Court's
intervention is not warranted.
[23]
The
parties did not submit questions for certification and none arises.
JUDGMENT
THIS COURT ORDERS that the
application for judicial review be dismissed. No question is certified.
“Michel Beaudry”
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