Vancouver, British Columbia, November 8, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Joginder Singh’s refugee claim was dismissed by the Refugee Protection Division of the Immigration and Refugee Board, which found that he had a viable internal flight alternative (or IFA) within India. Mr. Singh seeks judicial review of the Board’s decision, asserting that the Board made a number of errors in its decision.
[2] For the reasons that follow, I am not persuaded that the Board erred as alleged by Mr. Singh, and, as a result, his application for judicial review will be dismissed.
Problems with Interpretation
[3] Mr. Singh asserts that he was denied procedural fairness in this matter as a result of the inadequate interpretation provided by the Board. In support of this argument, Mr. Singh has provided an affidavit from his former counsel which states that, at the conclusion of the hearing Mr. Singh advised him that the interpreter had not allowed him to complete his evidence and “was not interested in listening to him”.
[4] Counsel further deposes that when the presiding member returned to the hearing room to deliver her decision, counsel put his hand up twice in an effort to convey his client’s message. Nevertheless, the presiding member simply went ahead and delivered her decision.
[5] Mr. Singh did not himself file an affidavit in support of his application, and thus there is no direct evidence from him that there was in fact a problem with the interpretation. Nor is there any evidence from Mr. Singh as to when it was during the hearing that he was limited or precluded from testifying fully.
[6] There is no question that a refugee claimant is entitled to continuous, precise, competent, impartial and contemporaneous interpretation at his or her refugee hearing: see Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191.
[7] An applicant need not demonstrate actual prejudice resulting from deficiencies in interpretation. However, as a general rule, any objection to the quality of the interpretation must be raised at the first reasonable opportunity: see Mohammadian, at ¶ 27.
[8] Having carefully considered the matter, I am satisfied that if there were indeed problems with the interpretation at the hearing, Mr. Singh has waived his right to object. He was represented by counsel at the hearing. His counsel states that he was made aware of the problem with the interpretation by Mr. Singh before the presiding member delivered her decision in this matter. Counsel says that he tried to raise the matter by raising his hand. This type of effort would not appear on the transcript, and thus there is no independent confirmation that this in fact occurred.
[9] Moreover, even if I accept at face value that counsel did try addressing the issue of the interpretation by raising his hand, I am not satisfied that he took reasonable steps to apprise the Board of his concerns. There is no suggestion in counsel’s affidavit that the presiding member even saw counsel’s raised hand prior to delivering her decision. When the presiding member did not call on counsel in response to his raised hand, it would surely have been a simple matter for counsel to address the Board verbally, indicating his concern with respect to the quality of the interpretation.
[10] As a consequence, I find that Mr. Singh’s counsel failed to act reasonably in raising a clear objection to the quality of the interpretation at the first opportunity during the refugee hearing. Mr. Singh is bound by the actions of his counsel, and must be deemed to have waived his right to object.
Internal Flight Alternative
[11] Mr. Singh alleged that he feared persecution by Sikh militants who had threatened and extorted him while he was residing in the Punjab area of India. While accepting that the events relied upon by Mr. Singh in support of his claim took place, the Board’s decision turned on its finding that Mr. Singh had an internal flight alternative (or IFA) available to him in either Uttar Pradesh or Tamil Nadu.
[12] Mr. Singh asserts that the Board erred in coming to this conclusion by ignoring relevant evidence. In particular, Mr. Singh points to evidence with respect to ethnic tensions and police corruption in Punjab.
[13] I am not persuaded that the Board erred as alleged by Mr. Singh. The evidence relied upon by Mr. Singh relates to conditions within Punjab, and is not therefore of particular relevance to the question of whether he could safely and reasonably live elsewhere in India.
[14] Moreover, it is clear from Mr. Singh’s own testimony that he had lived in Uttar Pradesh for a couple of years, without incident. As a consequence, I find no error in the Board’s conclusion that it was reasonable to expect him to live there in the future.
[15] Finally, Mr. Singh’s own testimony confirms that his reluctance to move to either Uttar Pradesh or Tamil Nadu stemmed from personal preference, and not from any concern as to his safety. This is confirmed by the following exchange which took place at Mr. Singh’s refugee hearing:
Q: If you returned to India, is there anything to prevent you from moving somewhere outside Punjab?
A: I don’t know anybody. Where will I go? I want to stay here.
Q: Knowing somebody isn’t a requirement when it comes to protecting your safety. I’m asking are there any legal impediments to your relocating to another part of India?
A: The first thing is we speak Punjabi and out of Punjab people speak Hindi and other languages. But there we don’t have any relatives, link of relatives at other places. I’m living here because I think this is a peaceful country and my brother and sister are here. I feel myself relieved and safe here.
Q: We’re talking about India, not staying here. What about going back to [Uttar Pradesh] where you appear to have lived safely for a couple of years? Why can’t you go back there?
A: It is not easy to live there because we were helpless, that’s why we had to live there.
Q: So would there be anything preventing you from going back there? You have relatives; you already are familiar with the place.
A: I don’t feel like going there. [My emphasis.]
[16] For these reasons, I am satisfied that the Board’s finding that Mr. Singh had a viable IFA available to him in India was one that was reasonably open to the Board.
Conclusion
[17] The Board’s finding that Mr. Singh had a viable IFA available to him is dispositive of this case, and it is therefore unnecessary to address the remaining issues raised by Mr. Singh.
[18] For these reasons, the application for judicial review is dismissed.
Certification
[19] Neither party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is dismissed; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1951-06
STYLE OF CAUSE: JOGINDER SINGH v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: November 7, 2006
APPEARANCES:
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Baldev S. Sandhu
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Peter Bell
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SOLICITORS OF RECORD:
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Sandhu Law Office Surrey, B.C.
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Vancouver, B.C.
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