Date: 20110117
Docket: IMM-2749-10
Citation: 2011 FC 45
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, January
17, 2011
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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NARESH KUMAR
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Applicant
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and
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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 under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of
the Refugee Protection Division of the Immigration and Refugee Board of Canada
(the Board) dated April 22, 2010, in which it refused to recognize Naresh
Kumar (the applicant) as a refugee or a person in need of protection under sections 96
and 97 of the IRPA.
Background
[2]
The
applicant is an Indian citizen of Hindu origin. He arrived in Canada on August 23, 2007, and
claimed refugee protection 12 days later.
[3]
The
applicant’s claim is based on the following allegations. The applicant lived in
the village of Shatabgarh in the district
of Ludhiana in Punjab state. He claims that he fled
persecution by the local police. The applicant contends that the police
suspected him of protecting and being the accomplice of two of his friends who
are Sikh militants. The allegations against him included hiding his friends at
his home and also hiding their weapons. The applicant was arrested twice when
he was with his two friends. He was beaten and tortured by the police. The
police then went to his home to question him about his friends, who were
wanted. The police also threatened to kill him if he did not disclose the place
where his friends were hiding. The applicant fled to Canada from that persecution. The applicant
contends that even after he left the police went to his home and harassed his
father.
Decision of the Board
[4]
The Board
rejected the applicant’s refugee protection claim on the ground that he had an
internal flight alternative (IFA) in Bombay.
The Board stated that it had not assessed the applicant’s credibility because
it believed that he could reasonably have availed himself of an IFA, even if
his account were accepted as fact.
Issues
[5]
This
application for judicial review essentially raises the question of the
reasonableness of the Board’s decision having regard to the facts and the law.
Standard of review
[6]
The
Board’s decision as to whether there was an IFA is subject to the
reasonableness standard (Martinez v Canada (Minister of Citizenship and
Immigration), 2010 FC 1200 (available on CanLII), Velez v Canada (Minister
of Citizenship and Immigration), 2010 FC 1114 (available on Quicklaw), Yanez
v Canada (Minister of Citizenship and Immigration), 2010 FC 1059 (available
on CanLII), Singh v Canada (Minister of Citizenship and Immigration),
2009 FC 158 (available on Quicklaw).
Analysis
[7]
The
applicant is challenging the Board’s decision on several points. He submits in
particular that the Board failed to exercise its jurisdiction by refusing to
assess his credibility. Essentially, he submits that the Board could not
reasonably have determined whether there was an IFA without taking into account
his allegations and the particular circumstances of his situation, and
accordingly the Board had to either assess his credibility or accept his
allegations as fact. The applicant submits that the Board clearly stated that
it had not assessed his credibility, but the reasons for decision show that it
did not consider his account in its analysis.
[8]
The
applicant also submits that the Board conducted a selective analysis of the
evidence and failed to consider and address documentary evidence that was
relevant and that contradicted its findings.
[9]
The
respondent submits that the Board’s analysis of the evidence was reasonable and
that it analyzed each of the explanations given by the applicant to show there
was no IFA. The Board’s findings are reasonably supported by the evidence and
the Board did not have to cite all the evidence it is presumed to have analyzed.
[10]
For the
reasons that follow, I find that the Board committed errors that render its
decision unreasonable and warrant the intervention of this Court.
[11]
Counsel
for the respondent acknowledged that when the Board stated that it had not
assessed the applicant’s credibility because an IFA was available to him, even
if his story was true, it had to accept as true the facts in support of his
account of persecution. She also submitted that the presumption of truth did
not apply to the explanations the applicant gave to rebut the existence of an
IFA. Counsel stressed that the truth of the account on which the claim is based
must not be confused with the explanations and answers given to the Board
member at the hearing when the issue is whether there is an IFA. That statement
is correct in some circumstances, but in my opinion it is not correct when the
explanations given to rebut the existence of an IRA are closely connected with
the account on which the refugee protection claim is based.
[12]
I find
that in this case the issue of whether there was an IFA could not be analyzed
without regard to certain of the applicant’s allegations in support of his
refugee protection claim. In his Personal Information Form (PIF), the applicant
referred to a number of factual elements that were relevant both to his account
of persecution and to the determination of the issue of whether there was an
IFA; they included the following:
a. When he was charged the first
time he was accused by the police of collaborating with his friends who worked
with Sikh militants, and the police accused him of being a traitor because he
was a Hindu who supported the Sikh militants;
b. When he was first arrested he
was tortured by the police, and he was released after his father paid a bribe;
c. He had learned from the sarpanch
of the village (the head of the village council) that his friends had been
released after 10 days in detention on a promise to report to the police
once a month, and in April 2007 they left their village without informing
the police. They were suspected of joining the militants;
d. He had cut off contact with
his friends, but on the night of June 7, 2007, his friends came to his home.
Shortly after they arrived, the police came to his home; they searched his
house and arrested all three of them;
e. On that occasion the police
accused him of collaborating with the militants by hiding their weapons in his
home. The police detained and tortured him and he was released after five days
after his father paid a bribe;
f.
On
July 15, 2007, the police burst into his home and questioned him about his
friends after informing him that his friends had escaped from prison. The
police accused him of knowing where his friends were hiding. They ordered him
to tell them where they were hiding before the end of the month, failing which
he would be liquidated. The applicant described that incident as follows in his
PIF: “I was conditioned to produce [XX] and [XX] by the end of August, 2007 else
I would be killed in fake story by the police”;
g. His father took him to seek
advice from the sarpanch of the village who advised him not to file a complaint
against the police on the ground that a complaint would aggravate his
situation, and advised him instead to leave India;
h. His father informed him that
on September 1, 2007, after he arrived in Canada, the police went to his home because the
applicant had not “produced his friends” as required. The police then alleged
that the applicant had joined the militants and they harassed his father.
[13]
The
applicant also filed the affidavit of the sarpanch of the village, which
contains various statements, including the following: “That the Punjab Police
frequently visiting at our village in the search of Mr. Naresh Kumar.”
[14]
This
evidence was all relevant to support the applicant’s allegation that he had
been persecuted by the Punjab police and his allegation
that he was wanted by the police because they suspected him of collaborating
with the Sikh militants. Those “facts” were relevant for the purpose of
determining whether the applicant fell within the parameters of
sections 96 and 97 of the IRPA, but also to determine whether, in the
circumstances, an IFA was available to him.
[15]
The
applicant submitted, in particular, that because he was wanted by the police
and suspected of collaborating with Sikh militants and hiding weapons, he would
likely be wanted by the police in the other regions of India, and it was
possible that his name had been entered in POLNET.
[16]
To find
that there was an IFA in this case, the Board had to either accept the
applicant’s allegations as fact and explain why, notwithstanding those
allegations, it found that there was an IFA, or find that the applicant was not
credible and disregard his allegations. The Board could not have accepted only
part of the applicant’s account as fact. In my opinion, that is what it did.
[17]
The Board
clearly indicated that it had not assessed the applicant’s credibility because
it was of the opinion that there was a reasonable internal flight alternative,
“[e]ven if the claimant’s story had been true”. However, it appears from the
decision that the Board failed to consider several of the applicant’s
allegations that were relevant in its analysis of the existence of an IFA. Some
of the Board’s findings are even the opposite of the applicant’s allegations.
[18]
The Board
rejected the applicant’s allegation that the police might arrest him. It found
that the applicant did not have the profile of an active militant wanted by the
police, he had never given his fingerprints, there was no arrest warrant issued
against him, and he had never appeared before a court or been convicted. The
Board therefore concluded that it rejected “the argument that the claimant
could be arrested as an obstacle to an internal flight alternative”. The
Board’s conclusion seems reasonable on its face. The problem with that
conclusion is that it totally disregards and evades the applicant’s allegation
that he was in fact wanted not because he was a militant, but because he was
suspected of collaborating with his militant friends and hiding their weapons.
The Board made no finding regarding that allegation, which was central to the
applicant’s account.
[19]
The Board
also rejected the applicant’s argument that even though he had not been
convicted, his name might be in POLNET because he was suspected of
collaborating with Sikh militants. In that regard, the Board noted that the
documentary evidence concerning the operational level of POLNET was divided.
The Board also noted that the documentary evidence indicated that the names of
persons who are arrested and then released without any charge were entered if
the person was designated as a suspect. It then concluded:
[15] … However, with respect
to the claimant, it is not stated that the police officers, who are instead
looking for bribes or family revenge, are entering information about him in the
network. In addition, even if it were the case, it does not mean that once he
is settled in his new home, the claimant would have to deal with police
officers who would use this information ill advisedly or would treat him poorly.
[20]
With
respect, the Board’s findings completely fail to take the applicant’s
allegations into consideration.
[21]
The Board
had no obligation to accept the version of the facts presented by the
applicant, but it could not state that it had not assessed his credibility and
in the same breath reject his version of the facts or simply ignore it in its
reasons. If the Board believed that the applicant had not discharged his burden
of proof, it had to say so and explain. If it considered the applicant’s
allegations to be insufficient, it also had to say so. It could also have found
the applicant’s allegations not to be credible, but again, it had to give the
reasons.
[22]
The
following passages from the decision are also perplexing. Although the Board
clearly stated that it had not assessed the claimant’s credibility, the
following passage from the decision shows that it in fact drew negative
inferences regarding the claimant’s credibility:
[16] … The panel confronted
the claimant with the fact that he took a while to file his refugee protection
claim. He explained that the human smuggler told him not to claim refugee
protection at the airport.
[17] Here is what the Federal
Court states in similar situations: “The delay in making a claim to refugee
status [or in leaving the country of persecution] is not a decisive factor in
itself. It is, however, a relevant element which the tribunal may take into
account in assessing both the statements and the actions and deeds of a
claimant.”
[18] On that subject, Justice
Hugessen’s statement in Urbanek should be noted, where he states the
following about the refugee determination process: “[...] the purpose of that
system is to provide safe haven to those who genuinely need it, not to give a
quick and convenient route to landed status for immigrants who cannot or will
not obtain it in the usual way”. The panel is of the opinion that this is the
case of the claimant.
[23]
I
acknowledge that the Board’s conclusion regarding the applicant’s delay in
claiming refugee protection was not decisive in this case, but it does speak to
the Board’s perception. Although the Board stated that it had accepted the
applicant’s story as fact, it actually did not believe it. If that was the
case, it had to say so clearly and it had to give reasons for its finding.
[24]
In view of
the conclusion I have reached, I need not address the other grounds for review
advanced by the applicant.
[25]
The
applicant proposed the following question for certification:
[TRANSLATION]
Is it open to the panel not to assess an
applicant’s credibility for the purposes of determining whether there is an
internal flight alternative, when it has refuted some of the statements made to
rebut the internal flight alternative?
[26]
The
respondent objected to certification of that question on the ground that the
issue of whether the panel absolutely had to assess an applicant’s credibility
for the purpose of assessing the internal flight alternative had already been
settled and the second part of the question proposed could not be analyzed
without considering the unique fact situation in each case.
[27]
First,
because the applicant is successful here, certification of the question
proposed would serve no purpose (Rana v Canada (Minister of Citizenship and Immigration), 2010 FC 696 (available on
CanLII)). I further find that the question as proposed could not be certified
because it could not be answered without being considered in relation to a
particular fact situation. Accordingly, it is not a “serious question of
general importance” (Canada (Minister of Citizenship and
Immigration) v Liyanagamage,
51 ACWS (3d) 910, 176 NR 4, at para 4).
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that the application for judicial review is allowed and the
matter is referred back to the Board for the applicant’s refugee protection
claim to be determined by a different panel. No question is certified.
“Marie-Josée
Bédard”
Certified
true translation
Susan
Deichert, Reviser
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