Ottawa, Ontario, November 24, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
Applicant
and
IMMIGRATION
REASONS FOR ORDER AND ORDER
BEAUDRY J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board) delivered on May 9, 2005, in which the panel found that the applicant did not meet the section 96 definition of “Convention refugee” or the section 97 definition of “person in need of protection”.
ISSUES
[2] The issues are the following:
1. Did the Board err in its assessment of the applicant’s credibility?
2. Did the Board fail to properly examine the documentary evidence submitted at the hearing?
3. Did the Board commit a patently unreasonable error in finding that the applicant had an internal flight alternative (IFA)?
4. Did the Board err in applying section 97 of the Act?
[3] The first issue is answered in the affirmative. Issues 2, 3 and 4 are answered in the negative. The application for judicial review will be dismissed.
FACTUAL BACKGROUND
[4] The applicant is an Indian citizen who resided in Punjab and is a member of the Sikh minority. He alleges that he was arrested on four occasions by the police on suspicion of collaborating with militants from Jammu and Kashmir. During his detentions, he was allegedly interrogated, beaten and then released when people from his village bribed the police.
[5] After he consulted with a lawyer about dealing with police intimidation, the police allegedly searched his home in his absence on March 10, 2004. The applicant obtained a passport in April 2004 and a visa on July 5, 2004. He arrived in Canada on August 9, 2004.
IMPUGNED DECISION
[6] The Board found that the applicant was not credible because he had managed to obtain a passport, whereas the documentary evidence showed that police authorities in India conduct careful background checks on applicants before issuing passports. The Board also noted that the applicant had waited six months after receiving his passport before leaving India, which does not reflect the behaviour of a person with a subjective fear of persecution in his country. Furthermore, the Board found that, even if it did not doubt the applicant’s credibility, his application for refugee status should be dismissed because he had an IFA elsewhere in India.
ANALYSIS
1. Did the Board err in its assessment of the applicant’s credibility?
[7] The standard of review applicable to judicial review of findings relating to questions of fact and credibility is patent unreasonableness. It has now been clearly established that the Board is a specialized tribunal fully qualified to assess the credibility of testimony. Thus, as long as the Board’s findings as to an applicant’s credibility are not so unreasonable as to warrant the interference of the Court, they are not open to judicial review (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (QL)).
[8] The applicant relies on the following passages from the Board’s written reasons for decision in arguing that the Board committed a patently unreasonable error warranting this Court’s intervention:
The claimant, a dairy farmer, testified that there is no arrest warrant against him, and that he was never a political activist in Punjab. He obtained a passport in April 2004 and a visa on July 5, 2004. The claimant was confronted by the tribunal with section 6.163 of the UK Report, which states that according to the Danish Immigration Service fact-finding report 2000, regarding application for a passport, a very thorough check is made by local police. The individual’s status and whether there was a case against him is researched before a passport is issued.
Confronted, the claimant testified that the police have no right to intervene against him. Furthermore, he gave an incomprehensible answer about his brother, who had accompanied him to New Delhi, who went back to his village to pick-up the passport which had arrived by mail to his house, and returned with it to Delhi to deliver it to the claimant. The tribunal concludes that the claimant’s explanation is not acceptable and affects his credibility. [Emphasis added.]
[9] The applicant asserts that, by listening to the tapes from the hearing, it is clear that he was never told that his explanations were unacceptable or asked to provide additional information on how he obtained his passport in New Delhi, which constitutes a breach of the audi alteram partem rule and the rules of natural justice.
[10] Moreover, the applicant asserts that he was referring not to his brother who accompanied him to New Delhi, but to his brother-in-law.
[11] Moreover, the applicant argues that he was never challenged on the matter of the delay between obtaining his passport and leaving India and that, consequently, he never had an opportunity to explain himself, which constitutes another breach of the audi alteram partem rule.
[12] After reading the stenographer’s notes, I find that the panel erred in referring to the brother, when it was the brother-in-law who went to pick up the passport. The same holds true for the panel’s criticism that the applicant waited at least six months after obtaining his passport before leaving the country. He had to obtain a visa, which was done the month before his departure. This criticism is unwarranted.
[13] With respect to the allegations of a breach of natural justice, I believe that they are unfounded. The applicant was represented by counsel, who declined to ask him questions. The panel is under no obligation to indicate its findings on credibility before delivering its decision (Sarker v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 987 (F.C.T.D.) (QL)).
[14] In this case, the applicant’s credibility was not a decisive factor as the panel, in fact, mentioned.
2. Did the Board fail to properly examine the evidence submitted at the hearing?
[15] It is admitted that the Board is not required to refer in its reasons to the documentary evidence presented to it. Moreover, there is a presumption that all the documentary evidence has been considered (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL)). Moreover, given its role and expertise, the Board has leeway in selecting the evidence that it considers most relevant (Tawfik v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 835 (F.C.T.D.) (QL)).
[16] With respect, it appears that the documentary evidence submitted by the applicant is not very relevant in terms of his personal situation. The news clippings submitted by the applicant describe the political unrest in Punjab and the fact that Indian authorities have arrested Sikh militants in other regions of India than Punjab. These facts were not denied by the Board.
[17] The Board also relied on other documents to find that the applicant, who was not the subject of an arrest warrant and had a relatively low profile, should be able to move elsewhere in India without being sought by the police.
[18] I accordingly find that the Board did not fail to properly consider the documentary evidence submitted in the hearing.
3. Did the Board commit a patently unreasonable error in finding that the applicant had an internal flight alternative (IFA)?
[19] The onus of proof rests on the applicant to show, on a balance of probabilities, that there is a serious possibility of persecution in his country and that it is not reasonable to seek refuge there (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.)).
[20] The Federal Court of Appeal developed a two-pronged test in that case. First, the Board must be satisfied on a balance of probabilities that there is no serious possibility of the applicant being persecuted in the place proposed as the IFA. Second, taking into account all the circumstances (including circumstances particular to the applicant), conditions in the place proposed as the IFA have to be such that it would not be unreasonable for the applicant to seek refuge there.
[21] The applicant relies on the remarks of Gibson J. in Kahlon v. Canada (Immigration and Refugee Board), [1993] F.C.J. No. 811 (F.C.T.D.) (QL) and McKeown J. in Sran v. Canada (Minister of Employment and Immigration), [1997] F.C.J. No. 1047 (F.C.T.D.) (QL), to argue that the Board committed a patently unreasonable error in concluding that he had an IFA. At paragraph 9 of Sran, supra, McKeown J. writes:
Again, the Board did not review all the evidence. The only evidence that the panel had on the subject of the police searching for militants and their supporters indicated that it was virtually impossible for a person to hide anywhere in India if police in the Punjab were looking for them. Although there are no formal communication methods available, it appears that there are many informal agreements which enable the police in the Punjab to hunt down anyone they are seeking. Because the Board ignored the applicant's evidence that the police were looking for him as a supporter of the militants, I am not in a position to know what the Board's finding would be on an IFA . . . .
[22] The standard of review applicable to a finding on an IFA is patent unreasonableness (Mohammed v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1217 (F.C.T.D.) (QL); Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.). The passage from the Board’s decision concerning the applicant’s IFA reads as follows:
The claimant declared that he was not a well-known or high-profile person in Punjab.
In Exhibit A-1, section 2.1, subsection 6.137 of the Montreal Regional Binder for India, dated July 2004, UK Country Assessment, it is written that Punjabi Sikhs are able to relocate in another part of India and, since they are a mobile community, there are Sikhs all over India.
In section 6.138 of the same UK report, it is stated that there are no checks on a newcomer to any part of India arriving from another area of the country, not even Punjabi Sikhs, contrary to what the claimant’s testimony suggested.
Local police forces have neither the resources nor the language abilities to perform background checks on people arriving from other parts of India. There is no system of registration of citizens.
In section 6.139, it is said that it would be possible for a low-profile person to move elsewhere in India. This document also states that someone who has or who has had problems in Punjab should have no problems residing elsewhere in India. It is also reported that authorities in New Delhi are not informed about people wanted in Punjab.
This tribunal considers that, even if the claimant’s story had been found credible, since an Internal Flight Alternative (IFA) is reasonably accessible, the claimant can relocate elsewhere in India.
[23] After reviewing the record, I find that the Board did not commit a patently unreasonable error with respect to the applicant’s IFA. The Member based his findings on credible, serious documentary evidence, and I can see in his finding concerning the IFA no error that would warrant the intervention of this Court.
4. Did the Board err in applying section 97 of the Act?
[24] Section 97 reads as follows:
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. |
|
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes -- sauf celles infligées au mépris des normes internationales -- et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d'une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. |
[25] The applicant asserts that the Board erred in applying section 97 of the Act and that it should have considered the conditions prevailing in India in order to establish the degree of risk that the applicant would face.
[26] With respect, I cannot endorse that argument. The fact that the Board chose to base its decision on documentary evidence whose conclusions differed from the allegations made and documents filed by the applicant does not mean that the Board failed to assess the risk that the applicant would face. In this case, the applicant lived with his sister and in New Delhi without being sought.
[27] The Board’s finding concerning an IFA for the applicant within India renders section 97 inapplicable, since a person having an IFA is not a person in need of protection within the meaning of the Act (Zalzali v. Canada (Minister of Employment and Immigration), [1991] F.C. 605 (C.A.)).
[28] The parties declined to submit questions for certification, and this case contains none.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question is certified.
Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3341-05
STYLE OF CAUSE: JARNAIL SINGH v. MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 10, 2005
AND ORDER BY: The Honourable Mr. Justice Beaudry
APPEARANCES:
Odette Desjardins FOR THE APPLICANT
Marie-Claude Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARIE-JOSÉ BLAIN FOR THE APPLICANT
Montréal, Quebec
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec