Date: 20070123
Docket: IMM-3209-06
Citation:
2007 FC 67
Ottawa, Ontario, January 23, 2007
Present: The Honourable Mr. Justice
Beaudry
BETWEEN:
KULDEEP
SINGH
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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 (the Act), of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
panel) dated May 26, 2006. The panel ruled that the applicant was not a
Convention refugee or a person in need of protection because he could have
availed himself of an internal flight alternative (IFA) in India.
I. Issue
[2]
Was it
patently unreasonable for the panel to find that an IFA existed for the
applicant?
[3]
For the
reasons that follow, I answer the above question in the affirmative.
Accordingly, this application for judicial review will be allowed.
II. Factual Background
[4]
The
applicant is Sikh and was born in the Punjab, in India, on April 13, 1977. He
left his country on August 19, 2005 and claimed refugee status in Canada on
August 23, 2005.
[5]
He alleges
that he was arrested and tortured by police in January 2004 because he had
helped a Sikh militant. He suffered the same fate two other times, in October
2004 and June 2005. After each arrest, he had to pay, respectively, the sums of
25,000, 30,000 and 50,000 rupees.
[6]
The
applicant fears the authorities in his country because the police in his region
accuse him of being linked to terrorists. He hid for a number of days in New
Delhi. Since leaving for Canada, he has learned that his father was arrested
and tortured and that his wife was raped. They all fled and settled in the
province of Haryana.
III. Impugned Decision
[7]
The panel
rejected the refugee protection claim because the applicant failed to establish
a nexus between the alleged fear and any of the Convention grounds and because
the applicant could have availed himself of an internal flight alternative in
his country.
IV. Analysis
Standard of Review
[8]
The
Federal Court has dealt on several occasions with the question of which
standard of review to apply in IFA cases. In Chorny v. Canada (Minister of
Citizenship and Immigration), 2003 FC 999, [2003] F.C.J. no. 1263 (F.C.)
(QL), Judith Snider J. wrote as follows at paragraphs 9 to 11:
What standard
has the Court applied in similar situations? Two recent decisions of this
Court, while not explicitly carrying out a pragmatic and functional analysis, concluded
that the review of a Board's IFA findings is patent unreasonableness (Ali v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 193, [2001]
F.C.J. No. 361 (QL); Ramachanthran v. Canada (Minister of Citizenship
and Immigration) , 2003 FCT 673, [2003] F.C.J. No. 878 (QL)).
I also note that
in Singh v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 1283 (T.D.) (QL), Tremblay-Lamer J. conducted an
analysis based on the pragmatic and functional approach in order to determine
the standard of review of the Board's determination regarding whether the
Applicant would face persecution if he returned to India. Her conclusion was
that the appropriate standard is patent unreasonableness. As indicated above,
the notion of IFA is inherent in this determination.
Based on the
jurisprudence and the pragmatic and functional analysis conducted in Singh,
supra, I am of the view that the appropriate standard of review of patent
unreasonableness. However, I note that the Board must apply the proper test in
determining whether an IFA exists (Thirunavukkarasu, supra). If the
Board fails to do so, that will be a reviewable error.
[9]
I adopt
that analysis in the case before me. I will not intervene unless the applicant
can demonstrate a patently unreasonable error in the panel’s decision.
Was it patently unreasonable for the
panel to find that the applicant disposed of an IFA?
[11]
On the
other hand, the respondent argues that not only has the applicant not
demonstrated the existence of a nexus between his fears of persecution and one
of the five enumerated grounds of the Convention, but also that he is not
wanted by the authorities as an accomplice of a terrorist. The applicant was
merely a victim of local police extortion. Thus, he could have easily
left his village and, like the rest of his family, settled elsewhere without
risk of being hunted and persecuted. Furthermore, the defendant points out that
[translation] “the Constitution
of India guarantees its citizens freedom of movement and that only a few high
profile militants are in danger of being detected if they settle in India.”
[12]
However,
it is important to note that the credibility of the applicant is not in issue
here. At page 2 of the decision, under the heading “Credibility,” we read as
follows:
[…] Still, despite these doubts and others,
we will base our analysis on the facts given by the claimant in his Personal
Information Form (PIF) and in his testimony.
[13]
In his
Personal Information Form, the applicant gave details of his fear of being
returned to his country. In particular, he explained that the police accused
him of having worked with militants, and that he was interrogated about a
certain Hawara. The documentary evidence filed by the applicant confirms that
this person is a militant and a kingpin of the BKI, a group that has tried to
revive terrorism in the Punjab.
[14]
The panel
did not sufficiently address the issue of the applicant’s fear with respect to
the events linking him to Hawara and the negative consequences for him. If,
indeed, the applicant’s story were found to be accurate, the panel had a duty
to examine the documentary evidence about people who conspire with militants;
that was not done. These issues are at the very heart of the applicant’s claim.
This error warrants the intervention of the Court (Jawaid v. Canada (Minister
of Citizenship and Immigration), 2003 FCT 220, [2003] F.C.J. no. 305 (QL)).
[15]
At the
hearing, the applicant stated through his counsel that he had no objection to
the matter being referred back to the same panel.
[16]
The
parties did not submit any question to be certified.
JUDGMENT
THE COURT ORDERS that the application for
judicial review be allowed. The matter is referred back to the same panel for
redetermination in the light of these reasons. There is no question to be
certified.
“Michel Beaudry”
Certified true
translation
François Brunet, LLB,
BCL
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