Kaler v. Canada ( Minister of Employment and Immigration )
IMM-794-93
Cullen J.
3/2/94
9 pp.
Application for judicial review of CRDD decision applicant not Convention refugee -- Applicant Sikh from Punjab in India seeking refugee status based on religion, political opinion, membership in particular social group -- Arrested, beaten numerous times because of involvement with All Indian Sikh Student Federation (AISSF), although never charged -- Tried to live in several different areas of India, but each time left and returned to Punjab because warned at risk because Sikh -- Board holding applicant not suffering persecution in Punjab, and only mere possibility would suffer persecution in future -- Concluding police actions towards applicant not persecution, reasonable given involvement with AISSF -- After referring to documentary evidence showing many Sikhs living outside Punjab, Board also concluding not unreasonable for applicant to seek refuge outside Punjab, but within India -- Application dismissed -- Although Board may have felt goal of preventing further Sikh violence valid reason to beat and generally mistreat detainee, neither in accord with opinion of F.C.A. in Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 that beatings of suspects never "perfectly legitimate investigations", however dangerous suspect thought to be, nor with any sense of justice -- Board satisfied applicant no longer needed to fear arbitrary arrests, torture and indicated why -- Decision weakened by understanding why occurred -- Court's decision may have been different, but evidence to satisfy Board -- C.A. fully canvassing internal flight alternative issue in Thirunavukkarasu and resolving much of confusion in area -- Burden on applicant to prove serious possibility of persecution throughout country, including area alleged to afford IFA -- Onus on Minister and Board to warn claimant IFA going to be raised -- Linden J.A. apparently taking notice requirement one step further than Mahoney J.A. in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) -- Notice at hearing and subsequent opportunity to make submissions may no longer be sufficient to canvass issue of IFA -- Linden J.A. may have gone too far on this issue -- Strict reading of decision seeming to lead to almost automatic finding lack of notice prior to hearing operating to quash Board's decision -- Question still whether applicant having ample opportunity to speak to IFA issue in each case -- Linden J.A. not intending applicant, whose counsel fully capable of addressing and in fact addressing issue of IFA at hearing to be able to rely on lack of prior notice that IFA would be discussed as means to quash Board's decision -- As to merits of IFA, Board must be satisfied on balance of probabilities no serious possibility of persecution, and in all circumstances not unreasonable for appellant to seek refuge there -- Question whether, given persecution in claimant's part of country, objectively reasonable to expect claimant to seek safety in different part of country before seeking haven in Canada or elsewhere (would it be unduly harsh to expect person, who is being persecuted in one part of country to move to another less hostile part of country before seeking refugee status abroad) -- Board's finding on existence of IFA appearing reasonable -- Mentioning attempts to live elsewhere, yet still finding IFA, based on totality of evidence -- Reasonableness of IFA determined by whether evidence supporting Board's finding, as it does herein.