Ottawa, Ontario, February 9, 2007
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) dated June 9, 2006 finding that Jasvinder Singh Sran (Applicant) is not a Convention Refugee pursuant to section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) nor a person in need of protection pursuant to section 97 of IRPA.
I. Facts
[2] The Applicant is a farmer from the village of Chipra in the Punjab state of India. His cousin, who farmed with him, had been in contact with a known smuggler. Consequently, the Applicant’s cousin was targeted by the police and was arrested and detained on numerous occasions. In August 2003, the Applicant’s cousin disappeared.
[3] From August 2003 onwards, the police started visiting the Applicant in order to try and obtain information about his disappeared cousin. On October 1, 2005 the Applicant’s neighbour’s residence was raided. Hearing noises, the Applicant went out to see what was happening. One of the police officers conducting the raid noticed the Applicant. The Applicant was apprehended and questioned by the inspector of police about his cousin. He was then taken to the Gardiwala police station where he was allegedly tortured for two days, until he paid a bribe to the police officers.
[4] After being released from police custody, the Applicant’s family decided that he should leave India. Thus, the Applicant sought asylum in Canada.
[5] On June 9, 2006 the RPD determined that the Applicant was neither a convention refugee pursuant to section 96 of IRPA as he could not link his claim to one of the grounds of persecution listed in the Convention refugee definition, nor a person in need of protection pursuant to section 97 of IRPA. Furthermore, the RPD concluded that there was nothing stopping the Applicant from seeking protection from the state of Punjab or relocating within India so as to seek protection from his country of origin for the alleged persecution he faced from the police in Chipra.
II. Issues
(1) Did the RPD err when it determined that the Applicant could not link his refugee protection claim to one of the grounds in the Convention Refugee definition?
(2) Was the RPD’s finding that the Applicant could seek state protection unreasonable?
III. Analysis
(1) Did the RPD err when it determined that the Applicant could not link his refugee protection claim to one of the grounds in the Convention Refugee definition?
[6] In accordance with section 96 of IRPA, to be considered a “Convention refugee” a person must demonstrate that they fear persecution “…for reasons of race, religion, nationality, membership in a particular social group or political opinion...”. Thus, there must be a nexus between an asylum seekers claim and one of the five grounds enumerated in the Convention refugee definition at section 96 of IRPA.
[7] In La Hoz v. Canada (Minister of Citizenship and Immigration), 2005 FC 762, Justice Blanchard found, after conducting a pragmatic and functional analysis, that the standard of review applicable to determinations as to whether there is a nexus between an asylum seeker’s claim and one of the five grounds for persecution listed in the Convention refugee definition is that of reasonableness simpliciter. In the words of Justice Blanchard at paragraph 44 of that decision:
After reviewing the criteria of the pragmatic and functional analysis, I find that, with respect to determining whether there is a nexus between a refugee claim and the persecution grounds under section 96 of the Act, the appropriate standard of review is reasonableness simpliciter. This was Gibson J.'s finding in Jayesekara v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1014 (CanLII), 2001 FCT 1014.
[8] In the case at bar, the Applicant claimed that he was persecuted by the police of Chipra due to his political activities or imputed political activities or by reason of his membership in a particular social group, namely as a member of the family of a suspected terrorist. The RPD in its reasons concluded that the Applicant was not a Convention refugee as described under section 96 of IRPA as there were insufficient facts linking his claim to any of the five grounds for persecution listed in the Convention refugee definition. In support of this conclusion, the RPD made reference to the following:
- the Applicant was only arrested once at which time he was detained, beaten and tortured;
- the allegation that the arrest was due to the Applicant’s imputed political activities or his membership in a social is not accepted as the Applicant’s arrest came two (2) years after his cousin’s disappearance;
- the Applicant was released after the payment of a bribe;
- the allegation that the police were still looking for the Applicant in 2005 is purely speculation
- there was no arrest warrant issued for the Applicant;
- the Applicant was a victim of crime committed by the police;
[9] This being said, having reviewed the Tribunal’s record and the submissions of the parties, I do not find the RPD’s conclusion, that the Applicant is not a Convention refugee, unreasonable. As such, there is no justification for me to intervene.
(2) Was the RPD’s finding that the Applicant could seek state protection unreasonable?
[10] The appropriate standard of review regarding state protection is that of reasonableness simpliciter (see Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193 at para. 11; Robinson v. Canada (Minister of Citizenship and Immigration), 2006 FC 402 at para. 8; Jean v. Canada (Minister of Citizenship and Immigration), 2006 FC 1414 at para. 9).
[11] It is well-established in the jurisprudence of this Court that where state protection is available, a claim for refugee protection cannot succeed. In other words, this Court has held repeatedly that the availability of state protection is determinative in refugee protection cases, and accordingly, if state protection is found to be available it is not necessary to address the other issues brought forward by a refugee claimant (see Shimokawa v. Canada (Minister of Citizenship and Immigration), 2006 FC 445 at para. 16; Judge v. Canada (Minister of Citizenship and Immigration), 2004 FC 1089 at paras. 4-9; Muszynski v. Canada (Minister of Citizenship and Immigration), 2005 FC 1075 at para. 6; Danquah v. Canada (Minister of Citizenship and Immigration), 2003 FC 832 at para. 12).
[12] In the case at hand the RPD found that the Applicant did not attempt to seek protection from the authorities of the state of Punjab nor did he try to seek protection elsewhere in India. According to the RPD, the Indian government has acknowledged that police corruption is prevalent in India and has committed itself to overcome such corruption. Nonetheless the RPD concluded that the Applicant “had the obligation to seek protection from his own State before seeking international protection”. In my view, there is nothing unreasonable with the RPD’s finding, as the goal of refugee protection is to protect individuals whose country of origin cannot.
[13] Summarily, an individual can only benefit from refugee protection where they either demonstrate that their country of origin is unwilling or unable to protect them or that attempting to seek protection from their country of origin is useless or would aggravate their situation; neither was demonstrated by the Applicant in the case at hand. As such, the Applicant cannot qualify as person in need of protection pursuant to section 97 of IRPA nor a Convention Refugee even had the Applicant established that there was a nexus between his claim and one of the five grounds for persecution listed in the definition of Convention refugee at section 96 of IRPA.
IV. Conclusion
[14] The application for judicial review is dismissed as the Applicant is neither a Convention refugee pursuant to section 96 of IRPA nor a person in need of protection pursuant to section 97 of IRPA. Moreover, the Applicant failed to seek protection from India, when such protection was available.
[15] The parties were invited to submit a question for certification, but chose not to do so.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for judicial review is dismissed
- No questions are certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3689-06
STYLE OF CAUSE: Jasvinder Singh Sran v. The Minister of Citizenship and Immigration
DATE OF HEARING: February 7, 2007
REASONS FOR JUDGMENT: NOËL S. J.
APPEARANCES:
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Me Jean-François Bertrand
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Me Sylviane Roy
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SOLICITORS OF RECORD:
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Me Jean-François Bertrand Bertrand Deslauriers Montreal
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John H. Sims Q.C. Deputy Attorney General of Canada
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