Date: 20040423
Docket: IMM-5584-03
Citation: 2004 FC 601
Ottawa, Ontario, this 23rd day of April, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
ANUK KUMAR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Anuk Kumar seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), reasons dated July 3, 2003. In that decision, the Board determined that the Mr. Kumar was not a Convention refugee or a person in need of protection. The applicant seeks an order setting aside this decision and an order remitting his claim back to a differently constituted Board for reconsideration.
BACKGROUND
[2] Mr. Kumar is a citizen of Fiji and is a Hindu, of Indian ethnicity. He claimed Convention refugee status in Canada, pursuant to section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), by reason of his fear of persecution at the hands of indigenous Fijians because of his race and political opinion. He also claimed to be a person in need of protection, pursuant to the grounds set out in section 97 of IRPA.
[3] The applicant lived a comfortable life in Fiji, in a house on property that had been leased by his family for fifty years in the village of Nacovi, five miles from the town of Nadi on the west coast of the main island Viti Levu. He had a secure job as a carpenter for Sheraton Resorts. He testified before the Board that he was well known and popular in his village and often acted as a social worker.
[4] Mr. Kumar testified that he suffered no personal difficulties following the coup that occurred in May 2000. His problems began in 2001 when during the August-September election campaign, he participated as campaign manager on behalf of the local candidate for the Fijian Labour Party ("FLP"). That candidate was eventually found by the High Court of Fiji to be the rightful winner after the election results were disputed and challenged. This finding added to the tensions and dispute surrounding the election.
[5] On three occasions, in late October 2001 and March and July 2002, the applicant claims that masked native Fijians threatened him with physical harm if he did not cease his political activities with the FLP. He did not report these incidents to police as he had no confidence that the police would assist him.
[6] On September 30, 2002, Mr. Kumar claims that masked native Fijians dragged him from his car and assaulted him. Mr. Kumar says that they threatened him that if he continued with his FLP involvement he would be killed. He reported this incident to the police, but as he could not identify his assailants, the police could not assist him. About one week later, native Fijians went to the applicant's home, damaging his property and threatening that if he went to the police they would return and kill him and assault his wife and daughter. The applicant also claims that he was harassed on several occasions after this incident while travelling to and from work.
[7] The applicant obtained a visitor's visa to Canada and fled Fiji in December 2002, arriving in Canada on December 22, 2002. He advanced his claim for Convention refugee status in Canada in January 2003.
[8] The applicant testified before the Board that since coming to Canada he has been informed by his family in Fiji that native Fijians continue to visit his home and ask questions about his whereabouts, threatening to harm him if they find him.
The Board's Decision
[9] The Board determined that the applicant was not a Convention refugee or a person in need of protection because he had a safe and viable internal flight alternative ("IFA") in Fiji. The Board found that his difficulties were of a "very localized nature", tied directly to his association with the election campaign in that district. The Board found that while Mr. Kumar may be at risk in his home village and area, it would be safe and reasonable for him to relocate elsewhere in Fiji in order to avoid problems with indigenous Fijians.
[10] The Board determined that Mr. Kumar's evidence did not indicate that he had any political profile or ever took part in political activities, other than occasional meetings, outside his small village of approximately 400 people. This indicated that native Fijians in other parts of the country would not have any interest in him.
[11] The Board found it reasonable for Mr. Kumar to relocate in Fiji, as there was no evidence that he would be unable to find other employment in other areas, even if such work would not be as lucrative or rewarding as his previous employment. The Board stated that he had a long employment history as a carpenter and it was reasonable to assume that he would be able to find work outside the area of Nadi.
[12] Further, the Board concluded that there was no evidence to indicate that he would be prevented in any way from moving and re-establishing himself elsewhere, and despite the fact that he would have to move away from his extended family who live in the Nadi area, it was not unreasonable to expect him to relocate in order to protect himself. The Board referred to documentary evidence that indicated that Hindus live in many areas of Fiji, that the capital, Suva, is mixed and that Indo-Fijians and indigenous Fijians live together peacefully in western Viti Levu.
[13] Finally, the Board found that the current country conditions in Fiji do not indicate that racial tensions are high, as they were following the May 2000 coup, that the two groups, Indo and indigenous Fijians live together peacefully in some areas. The Board acknowledged that the documentary reports were not conclusive on this point, some indicating that descriptions of attacks on Indo-Fijians were exaggerated and others indicating that they continue to occur.
ISSUE
[14] Did the Board err in determining that the applicant had an IFA in Fiji, outside his village and outside the area around the town of Nadi?
PARTIES' POSITIONS and ANALYSIS
[15] The applicant argues that the Board erroneously applied the principles in relation to finding the existence of an IFA and refers to the relevant jurisprudence. According to the applicant, the Board erred in failing to identify a specific location to which an IFA would apply and the Board erred in analysing the reasonableness component of the IFA determination.
[16] The respondent submits that there is no serious possibility that Mr. Kumar would be persecuted in the proposed IFA, as there was no evidence presented to the Board that he had any profile outside his own village. The Board did not err in failing to clearly identify a proposed location that it considered to be a reasonable and safe IFA. The respondent submits that the case of Rabbani v. Canada (Minister of Citizenship and Immigration) (1997), 125 F.T.R. 141 has been affected by the more recent case of Whenu v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1310 (T.D.)(QL), which held that the applicant has the burden of providing evidence that he would not be safe in other areas of his country.
[17] In my opinion, while Whenu, supra, reaffirms the established jurisprudence that a refugee claimant carries the burden of proof in demonstrating that he would not be safe in any location in his country, it has not displaced the principle set out in Thirunaukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) and Rabbani, supra, that the proposed alternative place of safety must be real and attainable, rather than a speculative proposition. Upon review of the Board's reasons, I find that the Board did refer to specific areas where the applicant and his family could relocate to safety, namely in western Viti Levu or in the capital, Suva. The Board noted these locations in reference to a documentary source detailing areas where Indo and indigenous Fijians live together peacefully.
[18] Mr. Kumar submits that the Board failed to consider the fact that he had worked with the same employer as a carpenter since 1979 and that the documentary evidence confirmed that Fiji's economy had been adversely affected due to political instability since 1999, thereby indicating that he would have difficulties finding other employment in another area of Fiji. He also argues that the Board's conclusion that he would be able to find another residence in another region of Fiji was unreasonable in light of the documentary evidence that Indo-Fijians face a great deal of uncertainty in leasing land due to a distinct land tenure system in Fiji where approximately 80% of the land is owned in trust by the indigenous Fijian population.
[19] The respondent submits that the standard of review to be applied to the Board's determination in relation to IFA is patent unreasonableness and this is an area within the Board's expertise. This Court should not interfere unless satisfied that the Board was "clearly wrong" and the respondent relies on Cihal v. Canada (Minister of Citizenship and Immigration) (2000), 257 N.R. 262 (F.C.A.).
[20] In order for the Board to find that a viable and safe IFA exists for the applicant, the following two-pronged test, as established and applied in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) and Thirunaukkarasu, supra, must be applied:
(1) the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the proposed IFA; and
(2) conditions in the proposed IFA must be such that it would not be unreasonable, upon consideration of all the circumstances, including consideration of a claimant's personal circumstances, for the claimant to seek refuge there.
[21] In Thirunaukkarasu, supra, the Federal Court of Appeal emphasized that an IFA will be unreasonable if a claimant must live in hiding or endure physical danger or undue hardship in moving there. However, an IFA will be found "objectively reasonable" even where the proposed area is regarded as less appealing, with fewer opportunities for work than a claimant's home area of the country. The Court stated as follows at paragraphs 13-14:
...It is not a question of whether in normal times the refugee claimant would, on balance, choose to move to a different, safer part of the country after balancing the pros and cons of such a move to see if it is reasonable. Nor is it a matter of whether the other, safer part of the country is more or less appealing to the claimant than a new country. Rather, the question is whether, given the persecution in the claimant's part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. Stated another way for clarity, 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 travelling 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.
[Emphasis added]
[22] The court has held that the Board's finding in relation to finding an IFA is subject to the patent unreasonableness standard: see for exampleSivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.) and Mohammed v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1217 (F.C.)(QL). In particular, the Federal Court of Appeal in Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.), has held that Thirunavukkarasu, supra, set a very high standard for the unreasonableness test, and it is important not to lower that threshold, as to do so would be to incorrectly modify the definition of refugee to the point where one would only have to demonstrate that they would be better off in Canada than in a safe place in their own country.
[23] In my opinion, while the documentary evidence indicates that obtaining leaseholds of property and renewals thereto in Fiji can be difficult for Indo-Fijians, particularly as many lease terms have recently expired, there is also evidence on the record that the government in 2001 and 2002 has made attempts to help those evicted from their lands, through special government compensation programs. While the Board member could have more thoroughly set out her consideration of this issue in analysing the reasonableness of the proposed IFA for the applicant, in view of the problems for Indo-Fijians tenants in Fiji, the evidence on the record does not indicate that the ultimate conclusion is patently unreasonable.
[24] Furthermore, I cannot say that the Board's finding in relation to Mr. Kumar's ability to find different work in a different area of Fiji is patently unreasonable. The applicant's argument that the Board failed to consider the fact that he had been employed with the same employer since 1979 and that the Fijian economy is depressed is essentially a dispute with the manner in which the Board weighed the evidence.
[25] The applicant also argues that the Board failed to consider the unique geography of Fiji, as it would be much more difficult for the applicant to have a safe IFA in such a small country. Here, the applicant relies on Annan v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 25 (T.D.). In a country so small, in terms of area, with a small population of approximately 800,000 people, the applicant submits that those who threatened him in the past would have little difficulty in tracking him down.
[26] In my opinion, the record does not reveal that the Board member failed to appreciate the size and population of Fiji in making her IFA assessment. The decision in Annan, supra, is not authority for the proposition that refugee claimants from small countries cannot find safe and viable alternate locations from localized persecution. Once again, the applicant appears to take issue with the Board's weighing and assessment of the evidence, and there is no basis for this Court's intervention.
[27] The applicant has proposed that the court certify a serious question of general importance as follows: Does a refugee protection division panel err in law when it fails to clearly identify the specific geographical area being considered as an internal flight alternative? I note that Blais J. declined to certify a similar question in Whenu, supra. A question certified under IRPA s. 74 (d) should be one that transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application, see Gyamfuah v. Canada (Minister of Employment and Immigration) (1994), 80 F.T.R. 58, Dragan v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 404 (T.D.)(QL). Moreover, it should be dispositive of the appeal: Bath v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1207 (T.D.)(QL). In my view the law is clear on the issue addressed by the question and the Board applied it correctly in its decision. Accordingly, no question is certified.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5584-03
STYLE OF CAUSE: ANUK KUMAR
AND
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: April 8, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: April 23, 2004
APPEARANCES:
Michael Sherritt FOR THE APPLICANT
Carrie Sharpe FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHAEL SHERRITT FOR THE APPLICANT
Barrister & Solicitor
Sherritt and Greene
Calgary, Alberta
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Edmonton, Alberta