BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] The Applicant is a citizen of India who professes to be a Christian missionary. He came to Canada in November 2001 and made a refugee claim, that claim was determinated against him by the Refuge Protection Division on May 16, 2003. The Applicant applied for Pre-Removal Risk Assessment (PRRA) and that application was rejected on October 18, 2004. The Applicant seeks judicial review of the rejection of his PRRA application which I have granted for reasons unique to this case.
[2] In rejecting the Applicant's refugee claim, the Refugee Protection Division, in its Reasons at pages 3 and 4 said this as to Internal Flight Alternative (IFA):
The panel notes that India is a federal republic. It contains 28 self-governing states with its own legislative, executive and judiciary machinery. I conclude a viable IFA exists for the claimant in states with large Christian majorities controlled by parties that are not affiliated with the BJP. The leading party in Meghalaya is the opposition Congress Party, which is a pluralistic party attracting the support of religious minorities. The BJP only controls three out of 60 seats in that state. The Mizo National Front runs the State of Mizoram. The BJP is almost non-existent there. Finally, Nagaland is strongly controlled by the Congress Party, which controls 53 out of the 63 assembly seats there. I note that the claimant also speaks Punjabi, Hindi and English and has a work history in administration and sales. I find that he can re-locate to any of the states with large Christian majorities that are controlled by non-BJP parties.
The claimant said that Hindu extremists had large networks everywhere and that he knew no one in those three states. But I note in the very extensive documentation on country conditions that there are nor reports of attacks on Christians in the states of Meghalaya, Mizoram, and Nagaland. I compared this with the very detailed reports of incidents in other states.
[3] Thus having his attention drawn to three northeastern states, Nagaland, Mizoram and Meghalaya, the Applicant, in pursuing his PRRA application, retained a Political Science Professor specializing in the Far East, who provided an opinion stating, inter alia:
I do not find that the applicant has an internal flight alternative within India. While Nagaland, Mizoram, and Meghalaya have populations that are a majority Christian, religion is not their defining characteristic. 209 Scheduled Tribes, each speaking their own dialect, comprise 88 per cent of the population of Nagaland, 95 per cent of Mizoram, and 86 per cent in Meghalaya.
[4] Thus when the matter came for resolution by the PRRA Officer, it was reasonable for the Applicant to expect that, when it came to IFA, these three states would be the basis for the consideration on that issue. Instead, without notice to the Applicant that other states were under consideration, the PRRA Officer's Reasons for refusal state:
Counsel has provided some persuasive evidence that Nagaland, Mizoram or Meghalaya may not be considered reasonable choices for an IFA. The documentary evidence however does appear to show that since the date of the RPD decision the level of religious intolerance throughout India has reduced and persons involved in religious based crimes are being held accountable for their actions. Furthermore, the documentary evidence appears to show that reasonable IFA's exist to other states with large Christian populations such as Kerala & Goa which also appear to show a higher level of religious tolerance.
[5] A review of the Tribunal Record does not produce any compelling reasons why the Officer would raise issues as to Kerala or Goa. The mention of those states is, at best, only in passing.
[6] The application for judicial review is therefore allowed on the basis of a breach of natural fairness namely that the Applicant had a reasonable expectation that the PRRA Officer in considering IFA would direct attention to the three states mentioned in the Refugee Protection Division's Reasons. If the Officer was considering other states in India, reasonable notice thereof should have be given to the Applicant.
[7] There is no question for certification; there will be no Order as to costs.
"Roger T. Hughes"
JUDGE
Toronto, Ontario
September 13, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10166-04
STYLE OF CAUSE: BRINDER PIOUS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 12, 2005
APPEARANCES:
Chantal Desloges FOR THE APPLICANT
Ladan Shahrooz FOR THE RESPONDENT
SOLICITORS OF RECORD:
Green & Spiegel
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT