Date: 20081003
Docket: IMM-4608-07
Citation: 2008 FC 1110
Ottawa, Ontario, October 3, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
MAYA
DEVI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Maya
Devi is an 80 year old citizen of India. She claimed Refugee
status on the basis of a well-founded fear of persecution at the hands of Sadhu
Singh, who resides in her village in India, by reason of her
membership in a social group.
[2]
The
Applicant’s husband died in December 2002. Maya Devi then began looking after
the family’s land that had been leased to Sadhu Singh. After the death of her
husband, Mr. Singh stopped paying rent on the land and Maya Devi went to see
him with the lease agreement to obtain the rent payments. She claims that Mr.
Singh tore up the agreement. She then went to the police but they did not
assist her; neither did her sons, allegedly because they were afraid. Stones
were thrown at her home and she received threatening phone calls. She left India and arrived
in Canada on a
visitor’s visa on September 10, 2003, to live with her son. She made her claim
for refugee protection on April 21, 2006.
[3]
The
Panel member in dismissing her claim found that there was no nexus between the
persecution she claimed to have suffered in India and the
Convention grounds as her persecution was based on her unwillingness to give up
the land or seek a judicial remedy, rather than on her gender. The member also
found that the Applicant was not credible on the basis of implausibility in her
story: that her family in India would not help her in this dispute, that
she made no effort to get back this land which she felt strongly was ancestral
land, and that Mr. Singh had not bothered any of her putative heirs. Lastly,
the member found that the Applicant had not rebutted the presumption of state
protection or shown that it would be unduly harsh for her to find an internal
flight alternative by moving to live with one of her sons in India. The member
noted that Maya Devi had arrived in Canada on a visitor’s visa, which was
exhausted several times before she sought protection and thus the RPD found
that her claim for refugee protection was motivated by a desire to live in Canada with her
son, rather than any real fear she had in returning to India.
ISSUES
[4]
The
Applicant in her written memorandum and in oral submissions raised a number of
issues as follows:
(a) Whether the
Refugee Protection Division erred in the manner it conducted the hearing;
(b) Whether the
Refugee Protection Division erred in its credibility findings;
(c) Whether the
Refugee Protection Division erred in its findings on state protection;
(d) Whether the
Refugee Protection Division erred in its findings of an internal flight
alternative;
(e) Whether the
Refugee Protection Division erred in finding a lack of subjective fear on the
basis of the Applicant’s immigration history; and
(f) Whether the
Refugee Protection Division was biased.
ANALYSIS
Did the Refugee
Protection Division err in how the hearing was conducted?
[5]
The
Applicant was represented at the hearing by a paralegal specializing in
immigration law. The Applicant’s health had been problematic and previous
hearings adjourned to accommodate her. She was not well enough to attend the
hearing on August 2, 2007 and her son, Devraj Dhoot attended as her Designated
Representative and was the only person who gave evidence.
[6]
The
Applicant submits that the RPD failed to discharge its obligation to ensure
that she was provided with a fair and reasonable opportunity to put her case
before it and failed to call her to give evidence or cross-examine her. It was
submitted that she would have been available to be reached by phone and that
the Board ought to have contacted her during the hearing if it had concerns
regarding her story.
[7]
The
Certified Tribunal Record indicates that the Applicant’s representative by
letter of July 31, 2007, proposed that the Applicant’s son attend the hearing
on his mother’s behalf. It was asserted that he “is aware of the circumstances
surrounding his mother’s refugee claim and is fully prepared to answer all
questions concerning his mother’s refugee claim” (my emphasis). By letter
dated August 1, 2007, the Applicant provided the RPD with her written consent
to her son representing her at the hearing.
[8]
At
the commencement of the hearing the Member outlined with care the
responsibilities of a designated representative prior to designating him as the
Applicant’s representative. In short, every care was taken by the RPD to
ensure that the Applicant’s interests were protected and that she was well represented
at the hearing.
[9]
There
is nothing in the transcript of the proceedings before the RPD to indicate that
the RPD was ever informed that the Applicant was available by telephone, if
required. More importantly, neither her representative nor her designated
representative ever suggested to the Member that it would be appropriate to
have her interviewed by phone. There was nothing either inappropriate or
contrary to law in the manner in which the RPD conducted the hearing. Further,
having proposed this manner of conducting the proceeding in the first instance,
it does not now lie in the mouth of the Applicant to object to that process.
Did the Refugee
Protection Division err in its credibility findings?
[10]
A
review of the transcript of the evidence and the reasons of the RPD satisfies
me that the negative findings on credibility were reasonable. The Member found
that there were a number of aspects of the evidence that lacked plausibility,
including that the Applicant’s family in India would offer her no assistance
either with the immediate problem concerning Mr. Singh or with her business
affairs or in having her come to stay with them in light of the culture of the
country to look after mothers; that Mr. Singh would only have targeted the
Applicant, an old woman, and not her heirs; and that neither the Applicant nor
her family would not seek judicial assistance to retrieve her land when it was
so important to her. In my view all of these findings were open to the Member
on the record before her.
Did the Refugee
Protection Division err in its findings on state protection?
[11]
The
RPD looked at the issue of state protection. There is clear evidence in the
PIF and at the hearing that the Applicant approached the local police on one
occasion seeking to file a complaint against Mr. Singh. Her evidence was that
the local police refused to register her complaint. The Member in the
decision, incorrectly, writes that “the claimant made no attempts to go to the
police over this issue or to the courts”. It is clear on the record is that
the Applicant never sought a judicial remedy against Mr. Singh.
[12]
While
the Member erred in her recitation of the evidence with respect to seeking police
assistance, I am of the view that the error is not material to the ultimate
determination. One attempt to lodge a complaint with the local police, in the
circumstances at hand, hardly qualifies as a serious attempt to obtain state
protection, particularly in a country with significant judicial resources.
Did the Refugee
Protection Division err in its findings of an internal flight alternative?
[13]
The
Member found that the Applicant was a member of a fairly large family in India. She had
sons and daughters as well as siblings with whom she could reside. While there
was evidence that it was culturally inappropriate for her to reside with her
daughters, she had two sons and other elatives living in India. There
appears to have been no serious attempt to explore these alternatives when the
Applicant was in India or since. The Member’s conclusion that this
alternative exists for the Applicant cannot be said to be unreasonable on these
facts.
Did
the Refugee Protection Division err in finding a lack of subjective fear on the
basis of the Applicant’s immigration history?
[14]
The
Applicant had attempted to enter Canada prior to her ultimate
arrival in September 2003. She made an application on humanitarian and
compassionate grounds to make an inland residence application that had been
denied before she claimed refugee status almost two and one-half years after her
arrival in Canada. In these
circumstances, it is not unreasonable to draw a negative inference from the
long delay in making a claim for refugee status and the failed H&C
application. It is fair to say that persons with a fear of returning to their
country of origin typically advance a refugee claim immediately upon arrival or
at least within a reasonable time thereafter. The inference the Member drew,
in my opinion, was reasonably open to her.
Was the Refugee
Protection Division biased?
[15]
Aside
from the bald assertion of bias advanced by the Applicant, no evidence was
offered to support this claim. I have reviewed the transcript of the RPD
proceedings and am satisfied that this allegation is without any merit.
CONCLUSION
[16]
It
is my view that the Applicant was afforded co-operation and courtesy by the
RPD. It is further my view that the Member’s decision was reasonable and the
process followed to reach that decision was fair and in accordance with proper
legal principles. Accordingly, this application is dismissed. Neither counsel
proposed any question for certification. In my view there is none.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for
judicial review is dismissed and no question is certified.
“Russel W.
Zinn”
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