Date: 20011213
Court File No.: IMM-6345-00
Neutral Citation: 2001 FCT 1370
Ottawa, Ontario, this 13th day of December, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
SUKHDEV SINGH SANDHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the negative decision of the Post Determination Refugee Claimants in Canada Class (PDRCC) officer, M. Bilucaglia, dated November 27, 2000.
[2] The applicant Sukhdev Singh Sandhu is 41 years of age and a Sikh from Punjab. The applicant applied for refugee status in Canada upon his arrival on March 4, 1998. The Convention Refugee Determination Division did not believe his story and concluded he was not a Convention refugee.
[3] Before the PDRCC officer, the applicant claimed that he faced an objectively identifiable risk if returned to India based on the following incidents (Evaluation of risk of return by the PDRCC officer, page 7 of the Applicant's Record):
In 1985 he was arrested, detained for 8-9 days and beaten while being interrogated about militant activities. He was released with the help of a family friend (senior police inspector for Tarntarn district). In February 1989 central police authorities and local police detained and beat him for three weeks regarding a terrorist incident in Ludhiana. He moved to friends' and relatives' homes in Punjab for approximately 21 months. In January 1991 the applicant, his wife and children moved to Ludhiana hiding their identifies until December 1993 (almost two years). Throughout police harassed his family in Punjab. In December 1993 police arrested, detained and tortured him before releasing him in January 1994 upon the payment of a large bribe. He recovered until March 1994. He then moved to Kahnpur in Uttar Pardesh state and began planning his departure from India in October 1996.
The applicant left India on 10 February 1998. He travelled via Italy (7 days), the U.K. (4 days) and the U.S.A. (9 days). He arrived in Canada on 4 March 1998 and claimed refugee status upon arrival.
[4] The PDRCC officer denied the applicant's application because, according to the officer, he had not demonstrated that he faced an objectively identifiable risk in India. The officer justified this decision by referring to three aspects of the applicant's PDRCC submissions (PDRCC decision, pages 1-2):
The applicant travelled to Canada via Italy (seven days), the U.K. (four days) and the U.S.A. (nine days) but did not claim refugee status in any of those countries. In his PIF he mentioned that he began contacting agents since October 1996. This suggests that he planned his trip and, in my opinion, diminishes the likelihood of risk.
As per his PIF, it seems as though police released him (with the help of a friend - senior police inspector) in 1985 with no conditions or payment because it realised that he was not one of the outlaws. In my opinion, if the police released him because it was satisfied that he was not an outlaw and not involved in militant activity, it is contradictory to state that although he was released, police believed that he was involved with Sikh militants and harassed him and his family thereafter.
The village mayor tried to convince police that the applicant was not involved in militant activities. The police believed that he had left India. Therefore, it does not seem as though the police was actively searching for him throughout India. As per his PIF, throughout the time he lived in Ludhiana he was living OK.
[5] The officer then went on to consider the documentary evidence regarding the political climate in Punjab including two IRB Response to Information Requests (one dated February 17, 1997 and another dated June 12, 2000) and a U.S. Country Report for 1999. The officer concluded from this documentary evidence that the conflict between various groups in Punjab has calmed down and that disappearances in Punjab seem to be at an end.
[6] The officer concluded that the applicant does not face an objectively identifiable risk if he were to return to India.
[7] The applicant argues that the officer's findings are perverse because the officer did not indicate that the applicant lacked credibility. The applicant submits that the fact that he did not claim refugee status in any country other than Canada may be relevant to credibility but cannot be determinative of a PDRCC claim. Further, the officer drew an adverse inference from this fact without informing the applicant.
[8] The applicant further argues that the officer was unreasonable in finding that the police did not think the applicant was involved with militants because the police released the applicant from detention in 1985. The applicant argues that this assumption ignores the fact that he was detained on two occasions following the incident in 1985. According to the applicant, this demonstrates that the police continued to suspect the applicant as a militant.
[9] Finally, the applicant argues that, although the documentary evidence indicates there is an improvement in Punjab, the evidence acknowledges that there remains a risk for those who are perceived of having connections with the militancy. The officer therefore failed to consider the totality of the evidence.
[10] The respondent submits that the applicant's application was refused because the officer found that the applicant would not be subject to an objectively identifiable risk if returned to India. This finding was based on the documentary evidence and the applicant's written submissions. It was not based on the applicant's credibility. Further, the respondent argues that in a PDRCC application, the applicant is entitled to provide written submissions, however, procedural fairness does not require that a PDRCC officer inform the applicant of any and all concerns he or she might have.
[11] Finally, the respondent submits that the officer did consider the applicant's submissions that he was arrested on three occasions and beaten. The officer concluded, however, that even if the applicant was arrested and beaten in 1985, 1989 and 1993, that does not mean that he would face the same risk if returned to India today. The applicant, therefore, does not face an objectively identifiable risk.
[12] The question before this Court is whether the PDRCC officer committed any reviewable errors in assessing the applicant's application. In determining this question, I will apply the standard of review adopted by Madam Justice L'Heureux-Dubé in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817. In that case, reasonableness simpliciter was adopted as the applicable standard for a review of an immigration officer's decision in an H & C application under subsection 114(2) of the Immigration Act.
[13] The PDRCC class definition is set out in subsection 2(1) of the Immigration Regulations, SOR/78-72 ( the "Regulations"):
member of the post-determination refugee claimants in Canada class" means an immigrant in Canada
demandeur non reconnu du statut de réfugié au Canada" Immigrant au Canada :
(a) who the Refugee Division has determined on or after February 1, 1993 is not a Convention refugee,
...
(c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country,
(i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care,
(ii) of extreme sanctions against the immigrant, or
(iii) of inhumane treatment of the immigrant.
a) à l'égard duquel la section du statut a décidé, le 1er février 1993 ou après cette date, de ne pas reconnaître le statut de réfugié au sens de la Convention,
...
c) dont le renvoi vers un pays dans lequel il peut être renvoyé l'expose personnellement, en tout lieu de ce pays, à l'un des risques suivants, objectivement identifiable, auquel ne sont pas généralement exposés d'autres individus provenant de ce pays ou s'y trouvant :
(i) sa vie est menacée pour des raisons autres que l'incapacité de ce pays de fournir des soins médicaux ou de santé adéquats,
(ii) des sanctions excessives peuvent être exercées contre lui,
(iii) un traitement inhumain peut lui être infligé
[14] The officer's negative PDRCC assessment was founded in part on the applicant's own evidence. The applicant began to plan his departure from India in 1996, however, he did not leave until 1998. Further, the applicant travelled through Italy, the U.K. and the U.S.A. without claiming refugee status. The officer concluded from these facts that the applicant does not face an objectively identifiable risk. To take two years to plan your departure would lead one to reasonably conclude that the risk alleged by the applicant is not imminent.
[15] The applicant's contention that the officer did not consider the applicant's arrest subsequent to his 1985 arrest is unfounded. An examination of the officer's notes clearly indicates that the officer considered that the applicant was arrested in 1985, 1989 and 1993.
[16] The officer also considered the documentary evidence and took particular note of the fact that the situation in Punjab has improved to the point where the applicant does not face an objectively identifiable risk.
[17] In my view, the PDRCC officer's assessment of the applicant's risk of return pursuant to subsection 2(1) of the Regulations cannot be characterized as unreasonable. Nor can it be said that the officer based his decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard to the material before it. I find no evidence that the PDRCC officer exercised his discretion pursuant to improper purposes or in bad faith. I therefore find no reason to intervene in the PDRCC officer's decision.
[18] For the above reasons, the application for judicial review will be dismissed.
[19] The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDER that:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge