Date: 19971120
Docket: IMM-1200-97
BETWEEN:
MAJOR SINGH DHALIWAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board that the Applicant is not a Convention refugee within the meaning assigned to that term by subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 19th of February, 1997.
[2] The Applicant is a Sikh and a former resident of the Punjab in India. He bases his claim to Convention refugee status on an alleged well-founded fear of persecution if he is required to return to India, by reason of his religion, political opinion and membership in a particular social group.
[3] The Applicant's experiences in the Punjab have an all too familiar ring. He was a farmer. Prior to 1994, Sikh militants visited his home and coerced him and his family members into supporting them with food, shelter and transportation. At the end of February, 1994 he was arrested by the police, detained, interrogated and, in the words of the CRDD, "badly tortured". His release was only obtained after twenty days of detention on the basis of payment of a bribe and a promise that the Applicant would become a police informer against the militants. Following his release he was under medical treatment for a month and a half. He then left to live with relatives of his spouse in Uttar Pradesh. Local police inquired about him and he was requested to leave for the sake of the safety of the family with which he was staying. He next went to Delhi. Once again, the family with which he stayed was reluctant to shelter him for a prolonged period. To facilitate arrangements to leave India he returned to his home in the Punjab. Within a few days of returning, he was again arrested. While his detention on this occasion was only for 5 days, he was again tortured.
[4] After arranging to sell a portion of his farm land to finance his departure, the Applicant left India in mid April, 1995 and asserted his refugee claim here in Canada before the end of that month.
[5] The CRDD determined the Applicant not to be a Convention refugee because, in its judgment, he had available to him, in India, an internal flight alternative (an "IFA"). The only issue in dispute before me was whether the CRDD's finding that the Applicant had an IFA was reasonably open on the totality of the evidence that was before the CRDD, and whether the CRDD's analysis in arriving at its finding met the requirements enunciated in Rasaratnam v. Canada (Minister of Employment and Immigration)2 and Thirunavukkarasu v. Canada (Minister of Employment and Immigration)3.
[6] The test for an IFA was succinctly stated by Mahoney, J.A. in Rasaratnam at page 711 in the following terms:
| In my opinion, in finding the IFA, the Board was required to be satisfied on a balance of probabilities that there was no serious possibility of the Appellant being persecuted in [the IFA destination] and that, in all the circumstances including circumstances particular to him, conditions in [the IFA destination] were such that it would not be unreasonable for the Appellant to seek refuge there. |
In commenting on the foregoing passage from Rasaratnam, Mr. Justice Linden, in Thirunavukkarasu, wrote:
| Thus, IFA must be sought, if it is not unreasonable to do so, in the circumstances of the individual claimant. |
| [underlining added by me for emphasis] |
Later, Mr. Justice Linden continued:
| An IFA can not be speculative or theoretical only; it must be a realistic, attainable option. |
[7] On the facts before it, and, in particular by reference to documentary evidence, the CRDD in this matter found there to be IFA destinations in India for Sikhs from the Punjab.
[8] The CRDD then turned to the second portion of the test, consideration of whether the IFA destinations, or any of them, would be reasonable for this Applicant on the circumstances of his individual claim. The CRDD wrote:
| The claimant testified that he is not able to live safely, elsewhere in India outside of Punjab, for the following reasons. Firstly, newcomers from Punjab are investigated, and information about them might be passed onto the local police, who would then make enquiries with the Punjab police. It was the claimant's testimony that the local police from Uttar Pradesh did visit his relatives' home to enquire about him. Secondly, the Punjab police can also seek him out. Thirdly, his language and lifestyle are quite different from those who live outside of Punjab. |
Later, the CRDD continued:
| No evidence was adduced to suggest that the police has either knowledge or perception of the claimant being involved with the militants, beyond the above-mentioned activities. The claimant further testified that he has never belonged to any militant groups and that he has never committed any crime. Even though he was arrested and detained on two occasions by the Punjab police, no charges have ever been filed against him. On both occasions he was released on the promise that he would act as a police informer against the militants. |
Thus, the CRDD acknowledged the circumstances that are particular to this Applicant's claim on the face of its reasons. Against those particular circumstances, it went on, once again largely on the basis of documentary evidence, to conclude that it would not be unreasonable for this particular Applicant, in his individual circumstances, to seek out an IFA within India. In so concluding, the CRDD relied in part on documentary evidence concerning changed country conditions in the Punjab itself.
[9] I conclude that the CRDD applied the appropriate test in law in reaching the conclusion it did regarding an IFA for this particular Applicant. Further, whether or not I might have reached the same conclusions on the facts that were before the CRDD, I can find no basis to conclude that the CRDD's determination that the Applicant had an IFA in India was not reasonably open to it.
[10] In the result, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. No question will be certified.
(Sgd.) "Frederick E. Gibson"
Judge
November 20, 1997
Vancouver, British Columbia
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: November 19, 1997
COURT NO.: IMM-1200-97
STYLE OF CAUSE: MAJOR SINGH DHALIWAL
v.
MCI
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF GIBSON, J.
dated November 20, 1997
APPEARANCES:
Mr. Mishal Abrahams for Applicant
Ms. Brenda Carbonell for Respondent
SOLICITORS OF RECORD:
Kang & Co.
Delta, BC for Applicant
George Thomson for Respondent
Deputy Attorney General
of Canada
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