Monday, August 01, 2011

Kumar—failure to assess credibility

Kumar v. Canada (Citizenship and Immigration), 2011 FC 45 (CanLII)

Judge: Justice Bédard

Date heard: January 11, 2011

Date decided: January 17, 2011

Counsel for Kumar: Michel Le Brun

Counsel for Minister: Isabelle Brochu

Place of Hearing: Montreal, Ontario

The applicant was an Indian national of the Hindu religion from the Punjab region who alleged persecution on the basis of his having been suspected of aiding two friends who were Sikh militants (para. 3).

The Refugee Protection Division (RPD) rejected the claim on the basis that the applicant had an internal flight alternative (IFA) to Bombay. The RPD had not assessed the applicant’s credibility because, having found that there was an IFA, the RPD stated it was not necessary (para. 4).

Justice Bédard noted that the standard of review in assessing IFA was reasonableness (para. 6). She found that the RPD committed errors and that its decision out to be overturned (para. 10).

The RPD could not have assessed the issue of IFA without accepting certain parts of the applicant’s story as true. This is simply because the RPD cannot assess an IFA without regard to the circumstances, which it can only do with with reference to the claim (paras. 13-16). The RPD could not have accepted only the part of the claim which supported the finding of the IFA without some reason (para. 16).

However, that selective acceptance is exactly what the RPD did. It explicitly stated that it made its finding that there was an IFA “even if the claimant’s story had been true” (para. 17). However, it rejected other parts of the applicant’s story that militated against the finding of an IFA, i.e. his argument that the police would be looking for him throughout the country (paras. 18-21). The RPD could not accept certain parts of the claim and reject others without explicitly stating why it did so (para. 21).


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