Date: 19980501
Docket: IMM-2248-97
Between :
HARMESH LAL JANAGILL, domiciled and residing at
7285 Wiseman St., apt. 16, Montreal, Québec H3N 2N5
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, c/o Justice Department,
Guy-Favreau Complex, 200 West René-Lévesque,
East Tower, 5th Floor, Montreal, Quebec, H2Z 1X4
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated May 13, 1997, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act.
[2] The Board found that the applicant had an IFA ("Internal Flight Alternative") available to him in New Delhi given that on a balance of probabilities, there is no serious possibility of persecution there, and that it would not be unreasonable in all the circumstances for him to seek refuge there.
[3] The applicant takes issue with the test as formulated by the Board at page 5 of its decision that there be "no serious possibility" of persecution, rather than "no possibility",1 and with the Board's statement that "the panel is not persuaded that the claimant in his particular circumstances would warrant undue attention from the police for them to seek him or cause him to be sought outside of Punjab". It is the applicant's contention that the Board misconstrued the test or standard to be applied.
[4] The respondent points out that the test as formulated by the Board at page 5 of the decision could be interpreted as being more favourable to the applicant than the test established by the jurisprudence (see Rasaratnam v. M.E.I., [1992] 1 F.C. 706 (F.C.A.) and Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (F.C.A.)).
[5] In any respect, I must, however, agree with the respondent's other submission that it is the proper application of the test or standard which must be decisive in this instance, and not whether the test has been properly formulated. This principle was established by the Court of Appeal in Osei v. Canada (M.E.I.) (1990), 12 Imm.L.R. (2d) 49, wherein Décary, J.A. stated, at page 51, that:
| In the same way as an improper formulation of the test by the tribunal may be obviated by a proper application, a proper formulation may be obviated by an improper application. [. . .] |
In that instance, the Court of Appeal found that the tribunal's decision could not stand, given its improper application of the test which it had properly understood (see also Caballero et al. v. M.E.I. (May 13, 1993), A-266-91 (F.C.A.); Pompey v. Canada (M.C.I.) (September 18, 1996), IMM-16-96 (F.C.T.D.) and Balta v. Canada (M.E.I.) (March 17, 1995), A-354-92 (F.C.T.D.)).
[6] In light of the foregoing and following an overall reading of the Board's decision, I accept that the Board properly assessed the evidence and properly applied the test. I cannot accept that the decision would have turned on the Board's use of the expressions "serious possibility" or "persuaded", given the findings canvassed in its decision.
[7] With respect to the Board's alleged failure to acknowledge that the applicant would be identified as being Punjabi as a result of the difference in the Punjabi dialects in New Delhi and the Punjab, I find it a sufficient answer that the Board nevertheless contemplated the real possibility of the applicant being identified as a Punjabi should he relocate to New Delhi. The Board stated as follows at page 5 of its decision:
| The claimant also spoke about how difficult it was to live in New Delhi because Punjabis were regarded with suspicion there. Although the panel disapproves such discriminatory attitude against any groups, it does not believe that suspicious looks amount to persecution. |
[8] It is clear that the Board did not commit a reviewable error of fact, particularly given that the particular finding of fact would not have impacted on its decision. The Board clearly acknowledged that the applicant would be recognized as Punjabi; the determinative factor was the fact that as a result of his identity, the applicant would suffer no more than a discriminatory attitude.
[9] And finally, with respect to the Board's use of documentary evidence, I accept the respondent's submission that the Board is entitled to weigh the documentary evidence and to draw conclusions from it (see for instance Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317 (F.C.A.)). It is not a reviewable error for the Board to have relied on certain documents and not others (see Zhou v. M.E.I. (July 18, 1994), A-492-91 (F.C.A.)), and, incidentally, most of the documents referred to by the Board are more recent and therefore more indicative of recent developments that those cited by the applicant.
[10] For the above reasons, consequently, the application for judicial review is dismissed.
[11] Neither party has suggested the certification of a serious question.
JUDGE
OTTAWA, ONTARIO
May 1, 1998
__________________1 I note that the test was stated correctly at page 2 of the Board's decision.