OTTAWA, Ontario, April 3rd, 2006
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER
[1] This is an application under section 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (Board), dated June 14, 2005, wherein Board member N. Tabibzadeh determined that Ms. Bhandal (the Applicant) is not a Convention Refugee or a person in need of protection as she has an Internal Flight Alternative (IFA) in Ralto, the village where her husband presently resides with his sister and where two of the applicant's children reside.
[2] The Applicant was born on May 6, 1935, in Bhamaddi, India, and is a citizen of India. She is married to Preetam Singh Bhandal since April 18, 1955; he presently lives in India with his sister in the village of Ralto. The couple has five children and, as I have said, two of the children live in the village of Ralto.
[3] The Applicant arrived at Pearson International Airport on December 26, 2002, on a Visitor's Visa. She applied for Refugee Status on September 30, 2004; no valid explanation has been given to explain this 21 month delay. She states that she fears Punjab Police and terrorists in her village of Kanech.
[4] The facts are simple. The Applicant describes two incidents in her PIF:
Incident 1
[5] The Applicant states that she does not want to return to India as terrorists came to her home with guns and demanded food. On February 10, 2002, at 11pm, four terrorists entered her home and demanded that she prepare food for them. They left after eating and told the Applicant they would kill her and her husband if they called the police.
[6] The following morning, police showed up at their home and accused the couple of feeding and hiding terrorists. The police took the couple to the police station and told them to leave the village or they would be arrested again. Mr. Jarnail Singh, brother of the Village Leader, gave 10 000 Rupees to the Head Police Officer and the couple was released. Mr. Singh drove the couple to Ralto, to live with the Applicant's sister-in-law. The couple stayed there for three months and returned to their village on June 25, 2002.
Incident 2
[7] On July 9, 2002, at 9:00 pm, five terrorists broke into the Applicant's home after they refused to open the door. Once again, they demanded food and left once fed.
[8] At 7:00 am the next morning, three police officers arrived at the couple's home and accused them of feeding terrorists. They were taken to the police station. Mr. Singh paid 20 000 Rupees to bail the couple out.
[9] The couple consulted a lawyer, but he could not help them. The lawyer advised the Applicant to go to Canada; the Applicant's daughter lives in Brampton. The Applicant traveled to New Delhi to apply for a Visitor's Visa, omitting any information regarding the two incidents. Notwithstanding the fact that the last incident happened on July 9, 2002, the Applicant came to Canadaalmost six months later on December 26, 2002.
[10] The Board determined that the Applicant is not a Convention Refugee as she does not have a well-founded fear of persecution for a Convention ground in India. The Board also determined that the Applicant is not a person in need of protection as her removal to India would not subject her to risk to her life or to a risk of cruel and unusual treatment or punishment.
[11] The Board determined that the Applicant was a credible witness, but that those two incidents did not amount to persecution. The Applicant states that the terrorists have threatened the couple with death if they reportet to police, but the police are aware of both incidents and nothing happened to the husband in Ralto.
[12] The Applicant could not identify the terrorists. There is no evidence that the Applicant's husband is harassed by terrorists or detained by Police, even though he lives just a few kilometers away from were the incidents occurred.
[13] The Board determined that the Applicant had an Internal Flight Alternative in Ralto, the village where her husband and her sister-in-law reside without incident. The Applicant did not demonstrate that she would face undue hardship if she moved to Ralto. The Applicant has lands in India which she rents out to the Village Leader.
[14] The main issue herein is whether the Applicant had an IFA in Ralto?
[15] As it pertains to the Internal Flight Alternative, it is accepted that the standard of review is that of patent unreasonableness as the Board is dealing with a factual analysis, Chorny v. MCI, 2003, FC, 999, paragraphs 5 and 9.
[16] The Applicant makes six submissions:
1. Lack of documentary evidence not to be impugned
2. Irrelevant considerations
3. No contradictions in testimony
4. Conclusion without evidence to support it
5. Board erred on the issue of self-sufficiency
6. Claimant's testimony not to be impugned without reasons provided
[17] Those six submissions can be summarized under Procedural Fairness. But, I believe the main issue here is the IFA.
[18] The Respondent makes one main submission regarding the reasonableness of the IFA.
[19] The onus rests on the Applicant to show, on a balance of probabilities, that there is a serious possibility of persecution throughout the country, including the area which is alleged to afford an IFA, Thirunavukkarasu v. MEI, (1993) 109 D.L.R. (4th) 682, at p. 684.
[20] The Respondent believes that the reason the Applicant does not want to move to Ralto, the village in which her husband is located, is that she prefers to be in Canada with her daughter. Her husband has had no difficulty in living there and there is no evidence to indicate that she would be persecuted if she moved there.
[21] The Respondent also mentions that the Applicant waited 21 months after arriving in Canada before making a Refugee Claim.
[22] The Respondent mentions in the Further Memorandum at paragraph 15 that the fact that the Applicant would not have the benefits of old person homes or social assistance in India is irrelevant to the determination of Convention Refugee or person in need of protection. Those arguments are more appropriate for H & C considerations.
[23] I will address two issues in this decision:
1. Internal Flight Alternative
2. Delay in Submitting a Refugee Claim
Internal Flight Alternative
[24] The Board determined that the Applicant had an IFA in Ralto. I agree. Her husband lives there with his sister and two of the Applicant's children live in the village, all without incident.
[25] The twofold test for the IFA, as applied by the Board to the Applicant, can be summarized as follows:
a) On a balance of probabilities, there was no serious possibility of the Applicant being persecuted in Ralto, and
b) In all the circumstances, conditions in Ralto were such that it would not be unreasonable or unduly harsh to expect the Applicant to seek refuge there, Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.) at p. 711. The Applicant previously lived there. Her husband and his sister live there and could help her. As well, two of her children live there. The claimant owns land there and collects rent from the lease of the land.
[26] Justice Linden in Thirunavukkarasu v. Canada(Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.) at page 598, further defines the second part of the test concerning the reasonableness of the IFA in the context of an Applicant's circumstances:
... the question to be answered is, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?
An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in traveling there or in staying there. For example, claimants should not be required to cross battle lines where fighting is going on at great risk to their lives in order to reach a place of safety. Similarly, claimants should not be compelled to hide out in an isolated region of their country, like a cave in the mountains, or in a desert or a jungle, if those are the only areas of internal safety available. But neither is it enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there. If it is objectively reasonable in these latter cases to live in these places, without fear of persecution, then IFA exists and the claimant is not a refugee.
[27] I am satisfied that the Board properly applied the IFA test to the Applicant's case. Its conclusion regarding the IFA is reasonable and cannot be disturbed by this Court.
[28] The IFA issue is determinative but I will nonetheless discuss another determinative issue, the delay in claiming Refugee Status.
Delay in Submitting a Refugee Claim
[29] The Respondent states that the Applicant waited 21 months before making a Refugee Claim. Case law states that a Refugee Claimant must claim Refugee Status at the earliest moment possible as an unexplained delay undermines subjective fear, Conte v. MCI, 2005 CF 963, paragraphs 3-4 and Saleem v. MCI, 2005 CF 1412, paragraphs 22-34.
[30] Justice Pinard in Gamassi v. MCI, November 10, 2000, IMM-5488-99, wrote at paragraph 6 that:
[6] The delay in claiming refugee status, which is not explained, as in this case, is an important factor in determining the lack of a subjective fear of persecution (see, for example, Ilie v. Canada (M.C.I.) (1994), 88 F.T.R. 220, at page 223). In my opinion, this factor alone was, in the circumstances, sufficient to allow the Refugee Division to reasonably infer that the applicant did not have a subjective fear of persecution in Algeria, and sufficient to result in the dismissal of his claim.
[31] As in Gamassi, supra, there are no reasonable explanations to account for the delay and this leads me to agree with the Board when it states that the Applicant does not have a well-founded fear of persecution in India.
[32] The Board's decision regarding the IFA was reasonable. The application for judicial review is denied. No questions were submitted for certification.
JUDGE
OTTAWA, Ontario
April 3rd, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4277-05
STYLE OF CAUSE: Surjit Kaur Bhandal v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 27, 2006
REASONS FOR ORDER: TEITELBAUM J.
APPEARANCES:
| Oladipupo Ola (416) 567-1156
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| Amy Lambiris (416) 973-4021
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SOLICITORS OF RECORD:
| Oladipupo (Dipo) Ola Barrister & Solicitor 1262 Don Mills Road, Suite 82C TORONTO, Ontario M3B 2W7
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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