Date: 20080716
Docket: IMM-5290-07
Citation: 2008
FC 872
Calgary, Alberta, July 16, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
RAVINDER KAUR SANDHU
RAYINDER SINGH SANDHU
SATIPRIT SINGH SANDHU
Applicant(s)
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent(s)
REASONS FOR ORDER AND ORDER
[1]
The
Applicants in the present Application are a mother (the Principal Applicant) and
her two children who are seeking refugee protection in Canada because of the persecution that they
suffered as immigrants of Indian descent living in Argentina. Their claim was rejected by the Refugee
Protection Division of the Immigration and Refugee Board (RPD) because the RPD
found that the Applicants have an internal flight alternative (IFA) in the city
of Buenos Aires.
[2]
The
Principal Applicant was originally a citizen of India, who moved to Bolivia in 1994 to marry her husband.
She and her husband lived in Bolivia until 1997, during which time
the two minor applicants were born, before moving to Argentina because they were receiving death threats.
The Principal Applicant is now a citizen of Argentina. After their arrival in Argentina, the
Principal Applicant and her husband opened a general grocery store in the town
of Trancas, Tucman province. They were very
happy living in Argentina until they began receiving
threats from people telling them to close down their grocery store and leave Argentina. Their store was also looted
a number of times. Although she and her husband reported these threats and
lootings, the police did not provide them with assistance. As the situation
got worse, the Principal Applicant and her husband hired local people in
Trancas to assist with their grocery store so that they would not be noticed in
the store by customers, but this did not improve the situation. Her family was
harassed any time they went out and her children were harassed at school.
[3]
In March
and April of 2006, their grocery store was looted by people who told them not
to involve the police and to leave Argentina
otherwise their children would be abducted and killed. At the end of April 2006
the Principal Applicant’s husband was kidnapped and she and her children
received threats to leave the country. She then consulted with some friends who
advised her to leave Argentina. The Applicants arrived in Canada on May 3, 2006.
[4]
At the
hearing, the Principal Applicant testified that the reason she and her family
were targeted was because they were Indian immigrants:
Q. Okay. So what was the reason for your
problems in Argentina?
A. I don’t know. They give a hard time to
all those people who are from India and living there. They don’t
like them.
Q. Okay.
A. They are biased against – they are
biased. They don’t like them.
(Tribunal Record, p.55)
[5]
In its
decision rejecting the Applicants’ claim the RPD did not make a clear negative
credibility finding with respect to the Applicants, and, therefore, it is
presumed to have accepted all of their evidence. However, the RPD came to the
conclusion that the Applicants’ had an IFA in Buenos Aires. The Applicants argue that in coming to this
conclusion the RPD misconstrued the Applicant’s claim and, in so doing, arrived
at a conclusion that is not supported in the evidence. I agree.
[6]
The RPD
canvassed the documentary evidence with respect to anti-immigrant sentiment in
Argentina and found that many immigrants experience severe discrimination,
including those living in Buenos
Aires:
Many immigrants complain of
discrimination and racism in Argentina which drew large flows of
immigrants from neighbouring countries during the relative economic prosperity
and stability of the early to mid 1990s, and in earlier periods as well.
According to a survey carried out in 2000 by the New Majority Studies Centre,
65 percent of Bolivian respondents said that they did not feel safe in Argentina. In 2000, more than 80 Bolivian
families were the victims of a wave of violent assaults. The attackers broke
into the homes of immigrants who were taking of the summer of homes of middle
class and wealth Buenos
Aires residents,
on the outskirts of the city. The Bolivians were beaten, tortured with electric
shocks for several hours, robbed and told that they had better not report the
incident, according to the Buenos
Aires Province of the public prosecutor.
[…]
During his investigations, a sociologist
said he found in Argentina’s public hospitals
“immigrants seeking medical attention are met with mountains of red tape, and
once they deal with that, find themselves treated by very prejudiced doctors
who consider them inferior.” Researchers also found a difference in treatment
or outright acts of discrimination from other public institutions such as the
police and schools.
(Decision, pp. 3-4)
Based on this information, the RPD accepted that racism and
discrimination exists in Argentina and, in relation to the
Applicants, the RPD found as follows:
Based upon the foregoing documentary
evidence, I accept that some more recent immigrants to Argentina have been the victims of societal
discrimination and abuse by reason of their former country of origin and/or
because of their race or ethnicity. Based upon the principal claimant’s and her husband’s East
Indian race or ethnicity, I find it plausible that they and the minor
claimant’s may have been the victims of such anti-immigrant or racial
discrimination while operating a grocery store in Trancas, in the state of
Tucuman, Argentina between 1997 and May 2006. Based upon this documentary
evidence and the principal claimant’s testimony, I also find it plausible that
the principal claimant and her husband may have been the victims of criminal
lootings or robberies that took place in their grocery store business in Trancas, Argentina. However, one of
the determinative issues for me in the claimants’ refugee protection claims was
whether the claimants have a viable internal flight alternative in Argentina, outside of province of Tucuman, Argentina, as this issue was raised with the
claimants before and at their refugee protection claim hearing. For the
following reasons, I find there is no serious possibility of the claimants
being subjected to serious harm amounting to persecution if they were to
relocate to the Buenos Aires, the capital city of Argentina, where a viable internal flight
alternative exists for the claimants.
At the hearing, the principal claimant
testified that there is no viable internal flight alternative for her and the
minor claimants in Buenos Aires, Argentina because these same acts of racial or
country of origin discrimination against foreigners and immigrants take place
everywhere in Argentina – and that her sons could be the victims of a
kidnapping like her husband was. The principal claimant also testified that
she and her husband received anti-immigrant or racial receiving threats in
Argentina and had their grocery store business in Trancas was looted or robbed
approximately three or four times – and a few months prior to her husband’s
kidnapping in April 2006 and her and the minor claimant’s departure from
Argentina in May 2006.
According to the principal claimant’s
PIF, all of the foregoing immigrant or racially-motivated problems experienced
by the claimants occurred in the province of Tucman, Argentina and not
elsewhere in Argentina – such as in Buenos Aires. In addition, according to their
PIFs, the claimants have been away from Argentina since May 3, 2006 – a period of
approximately one and one-half years. According to her PIF, the principal
claimant resided in Bolivia between June 1994 and
September 1997, but she is not a national or citizen of Bolivia. Although, the principal
claimant is of East Indian ethnicity, she cannot be classified as an indigenous
national of Bolivia. There is no evidence before
me that would indicate that those local people or criminals in Trancas, Tucuman
province that threatened the claimants, looted their grocery store and
kidnapped the principal claimant’s husband in April 2006 would have any
interest in pursuing the claimants if they were to relocate the Argentine
capital city of Buenos
Aires. For
these reasons, I find on a balance of probabilities that these same
anti-immigrant or racist and criminal elements in Trancas, in the province of Tucuman, Argentina would have no
interest in pursing [sic] the claimants and would have no knowledge that the
claimants were residing in Buenos
Aires, if they
were to relocate to Buenos
Aires.
[Emphasis added]
(Decision, pp. 5 – 6)
[7]
With
respect to the Applicants’ claim for protection, the RPD was required to
determine whether there is more than a mere possibility they would be
persecuted should they return to Argentina.
The Applicants bears the evidentiary burden to prove that this risk exists and
that it would be present throughout Argentina.
Indeed, the RPD found that this prospective risk of persecution does exist for
the Applicants in Argentina because of their combined identity as immigrants
from Bolivia and as East Indians. However,
while the RPD accepted the Principal Applicant’s evidence that there is no
internal flight alternative anywhere in Argentina, the RPD gave this evidence no weight
based on a finding that the past violence suffered is exclusive to the location
in which the Applicants were living, and, as such, would not reoccur in Buenos Aires. On this basis, Buenos Aires is identified as a safe haven.
In my opinion these central findings are fundamentally flawed.
[8]
The
evidence produced by the Applicants of past persecution contains no basis for
finding that violence arising from racism in Argentina occurs by location. The thrust of the
evidence is that overt and violent racism occurs throughout Argentina against people of colour.
Indeed, there is no evidence that overt and violent racism does not occur in Buenos Aires. Therefore, in my opinion,
there is no evidence upon which the RPD could base its finding that Buenos Aires is a safe haven for the
Applicants.
[9]
As a
result, I find that the RPD’s decision is not based on the evidence on the
record, and, thus, is made in reviewable error.
ORDER
THIS COURT
ORDERS that:
Accordingly,
the RPD's decision is set aside and the matter is referred back to a
differently constituted panel for redetermination.
There is no
question for certification.
“Douglas
R. Campbell”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5290-07
STYLE OF CAUSE: RAVINDER
KAUR SANDHU, RAYINDER SINGH SANDHU, SATPRIT SINGH SANDHU v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Calgary, Alberta
DATE OF
HEARING: July
15, 2008
REASONS FOR ORDER
AND ORDER: CAMPBELL J.
DATED: July
16, 2008
APPEARANCES:
|
Birjinder P.
S. Mangat
|
FOR THE APPLICANTS
|
|
W. Brad
Hardstaff
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Mangat Law
Office
Barrister
& Solicitor
Calgary, Alberta
|
FOR THE APPLICANTS
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
Calgary, Alberta
|
FOR THE RESPONDENT
|
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