Citation: 2008 FC 669
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] The Applicant, Charanjit Singh, seeks judicial review of a Pre-Removal Risk Assessment (PRRA) decision dated September 18, 2007, by a Pre-Removal Risk Assessment Officer (the Officer), wherein it was decided that the Applicant would not be subject to risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if returned to his country of nationality or habitual residence pursuant to section 112 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
II. Facts
[2] The Applicant was born on September 21, 1976, in the village of Kari Suri, in Punjab, India. He is Sikh and a citizen of India.
[3] The Applicant’s friend, Mr. Dalbir Singh, became a member of the Shiromani Akali Dal (Amritsar) Party in April 2000. On August 10, 2003, the Applicant and several of his friends were arrested while at Mr. Dalbir Singh’s restaurant. The police raid that led to the arrest was prompted because the authorities suspected Mr. Dalbir Singh was planning on disrupting Independence Day celebrations which were to be held a few days later.
[4] Following the Applicant’s arrest, he was interrogated by the police and tortured. He was released three days later when he paid a bribe to the police. Mr. Dalbir Singh was released ten days later.
[5] On September 1, 2004, Mr. Dalbir Singh went to the police station as required and was never seen again.
[6] On September 2, 2004, the Applicant was arrested and tortured by the police. During his detention, his collar bone was broken. He was released the next day and required medical treatment for his injuries.
[7] Following the advice of his parents, the Applicant left Punjab in October 2004 and moved to his aunt’s home in Rajastan.
[8] On May 1, 2005, the Applicant’s parents’ home was raided and his father was arrested and detained. The Applicant was arrested at his aunt’s home in Rajastan and two days later was transferred to the Punjab police. At that point, the Applicant was accused of transporting arms from Pakistan, tortured and released on May 10, 2005, when he paid a bribe to the police.
[9] On June 1, 2005, the Applicant and his father went to a lawyer’s office seeking assistance.
[10] On June 3, 2005, the Punjab police arrested and detained the Applicant. They threatened to kill him if he brought an action against them before the courts. He was then tortured until his release on June 5, 2005, which was again secured by the payment of a bribe.
[11] On August 1, 2005, the Punjab police raided the Applicant’s home while he was away. His mother was advised to produce the Applicant before the authorities. When he returned home, the decision was made for him to leave India. He left for Delhi, from where arrangements were made for him to leave the country.
[12] The Applicant left India on October 9, 2005, and arrived in Toronto, via London, on October 12, 2005, and claimed Refugee protection on November 9, 2005.
[13] The Applicant’s claim was based on a fear of persecution on the basis of his religion as a Sikh, imputed political opinion and membership in a particular social group, namely the family. He also claimed refugee protection for a risk to life and risk of cruel or unusual treatment or punishment or danger of torture. His claim for refugee protection was denied by a decision of the Immigration Refugee Board, Refugee Protection Division (the Board) dated July 26, 2006. The Board did not believe the Applicant to be “a credible or believable witness.” On November 21, 2006, the Applicant’s application for judicial review of that decision was dismissed.
[14] On February 9, 2007, the Applicant submitted an application for a PRRA. He submitted the following new evidence in support of his application:
- Photocopy and partial translation of a newspaper article published in “City News” dated January 2007;
- SikhNet news clip dated July 2, 2007;
- Affidavit of Kirpal Singh, February 21, 2007; and
- Affidavit of Swaran Singh, February 21, 2007.
[15] A negative PRRA decision was rendered on September 18, 2007, and on November 6, 2007, the Applicant filed the present application for judicial review challenging the PRRA decision.
III. Impugned Decision
[16] In her September 18, 2007 PRRA decision, the Officer made several findings that are summarized below:
(a) The Applicant reiterates the same elements that were presented in his Personal Information Form (PIF) and before the Board. The only difference is that he now states that the agents of persecution are the police and a group called the Shamri Kali Mon Party. Not only has the Applicant never mentioned this group before, but he has not given any explanation as to why this information was not previously disclosed. He failed to provide any details on how this group was involved in the incidents that caused the Applicant to leave India and how it would put him at risk if he were to return. Consequently, little probative value was given to this evidence;
(b) The copy of the newspaper clipping and translation the Applicant submitted in support of his claim were not originals. Further, only a partial translation was provided, the name of the author was not indicated and the translation was not official. In addition, the contents simply reiterate the incidents as they were presented by the Applicant. For these reasons, the Officer gave little probative value to this evidence;
(c) With respect to the affidavits submitted by the Applicant’s father and the local municipal councilor in India, it was found that they do not give any detailed information as to when, how often and where incidents of police harassment occurred. Further, the affidavits are copies (the originals are not on file) and the notary stamps are illegible. For these reasons, little weight was given to these documents;
(d) The internet news clip about a false Sikh militant case submitted by the Applicant does not involve himself, his family or his friend, Mr. Dalbir Singh. The Applicant failed to show how this evidence personally relates to his story and accordingly, little probative value was given;
(e) The Applicant failed to support his claim that he is of interest to the Punjab police because of his association with Mr. Dalbir Singh, a perceived known militant; and
(f) The risks identified by the Applicant are not supported by the objective documentation on the country conditions.
[17] For these reasons, the Officer was not satisfied that there would be, upon the Applicant’s return to India, more than a mere possibility that he would face the persecution he feared. Consequently, the Officer found that the Applicant is “not a person in need of protection pursuant to section 96. The evidence in support of the Applicant’s application also does not support that on the balance of probabilities the applicant would be personally at risk of torture or cruel and unusual treatment or punishment pursuant to section 97.”
IV. Issues
[18] The following issues are raised in this application:
A. Did the Officer err in her consideration of the Applicant’s personal evidence and the documentary evidence on country conditions in India?
B. Does the PRRA process provide a fair procedure, which is compliant with the Canadian Charter of Rights and Freedoms, S. 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 and Canada’s international obligations?
V. Standard of Review
[19] The Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, recently decided that there are now only two standards of review; reasonableness and correctness. The Court indicated that correctness must be maintained in respect of jurisdictional and some other questions of law (see Dunsmuir at paragraph 50). When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process and must ask whether the tribunal’s decision was correct.
[20] The Supreme Court also teaches that reasonableness in judicial review is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (see Dunsmuir at paragraph 47).
[21] Guidance with regard to the application of the reasonableness standard may be found in existing case law (Dunsmuir at paragraph 54). The appropriate degree of deference to be afforded a tribunal will be decided upon consideration of the following factors: the existence of a privative clause; whether the decision maker has special expertise in a discrete and special administrative regime; and the nature of the question to be answered. (Dunsmuir at paragraph 55).
[22] It is settled law that when considered globally and as a whole, a PRRA decision must be reviewed against a standard of reasonableness simpliciter (Figurado v. Canada (Solicitor General), 2005 FC 347, [2005] F.C.J. No. 458 (Lexis), at paragraph 51; and Lai v. Canada (Minister of Citizenship and Immigration), 2007 FC 361, [2007] F.C.J. No. 476 (Lexis) at paragraph 55). However, the standard to be applied will depend on the particular question that is being reviewed. In Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437, 272 F.T.R. 62, [2005] F.C.J. No. 540 (Lexis), after applying the pragmatic and functional approach, Justice Mosley found that questions of fact must be reviewed against a standard of patent unreasonableness, questions of mixed fact and law are subject to a standard of reasonableness, and questions of law must be assessed in accordance with a standard of correctness.
[23] Here, the decision under review is not protected by a privative clause and does engage the Officer’s expertise. With respect to the nature of the question, it is essentially one of fact. The Officer is required to consider and weigh the Applicant’s personal evidence and documentary evidence on country conditions in India.
[24] Upon application of the principles enunciated in Dunsmuir and upon consideration of the above-cited factors and prior jurisprudence of this Court, I find the applicable standard of review with respect to the first issue in this application to be reasonableness.
[25] The second issue raises a question of procedural fairness and institutional bias. A decision which results from a process that fails to respect the principles of procedural fairness and/or natural justice will be afforded no deference and is reviewable on the correctness standard. (Olson v. Canada (Minister of Public Safety & Emergency Preparedness), 2007 FC 458, [2007] F.C.J. No. 631 (Lexis) at paragraph 27 and Kamara v. Canada (Minister of Citizenship and Immigration), 2007 FC 448, [2007] F.C.J. No. 598 (Lexis) at paragraph 20). If it is determined that the process is tainted with institutional bias, that process is an unfair process. A decision which results from an unfair process will be set aside.
VI. Analysis
A. Did the Officer err in her consideration of the Applicant’s personal evidence and the documentary evidence on country conditions in India?
[26] The Applicant contends that the Shiromani Akali Dal Party and the Shamri Kali Mon Party are the same entity and that the Officer erred by finding that this was the first time the Applicant made any mention of this group. The Applicant points to his narrative at question 31 of his Personal Information Form (PIF) which makes special mention of this group and how it relates to his case. The Applicant also contends that the affidavits from his father and the local municipal councilor provide clear evidence of the harassment suffered by his family at the hands of the Punjab police, and consequently, the harassment he may suffer upon his return to India. The Applicant adds that the newspaper article specifically reports the particulars of his case and should not have been ignored. With respect to the internet clip, the Applicant argues that the facts described are similar to his circumstances and should therefore have been considered by the Officer. Finally, the Applicant submits that the objective documentary evidence indicates that his life would be at great risk if he were to return to India since he has been targeted more than once and falsely accused of aiding militants.
[27] The Applicant claims that the name of the Shiromani Akali Dal Party was misspelled in his PRRA application and points to his narrative attached to his PIF as evidence that he had previously mentioned the said party as persecutor agent. I disagree. The narrative in question only mentions that Mr. Dalbir Singh belonged to the Shiromani Akali Dal Party and does not provide details as to how or why the said party is looking for him. The Applicant never mentioned fearing that party either when he claimed refugee status (when he completed his PIF) or before the Board. The Applicant failed to explain why the party was not mentioned earlier. In his PRRA application, the Applicant states “The Shamri Kali Mon Party and the police are still looking for [me], even after my refugee claim was dismissed. They have false charges. [They] will torture or kill me if I go back.” Beyond this bald statement, the Applicant provides no evidence to substantiate such a claim. The Officer did not err in affording this element of the Applicant’s claim little probative value.
[28] Turning to the affidavits by Mr. Swaran Singh, the Applicant’s father and Mr. Kirpal Singh, the local municipal councilor, in her reasons the Officer noted the general and vague nature of the allegations in the affidavits and that they contained little detail as to the time and frequency of the alleged incidents. The Officer also observed that the affidavits were not originals and that notary’s stamp was not legible. An omission in the father’s affidavit was also noted by the Officer: Mr. Kirpal Singh attested that he had personally intervened to take the Applicant’s father out of police interrogation. The father’s affidavit makes no mention of this event. Considering these factors on the whole, it was open to the Officer to afford little probative value to the two affidavits.
[29] With respect to the newspaper article submitted to corroborate the Applicant’s story, the Officer considered this evidence and provided cogent reasons for giving the article little probative value. The Officer noted that only a select passage of the article was translated, the translation was not official and the author’s name was not indicated. She also noted that the incidents reported in the article had occurred several years earlier but were reported three days after the Applicant was offered a PRRA. In my view, the Officer did not err in affording this evidence little probative value.
[30] It was also open to the Officer to give little weight to the internet news clip. This evidence did not relate to the Applicant’s personal story.
[31] I now turn to the general documentation on the situation in India.
[32] The Applicant argues that the Officer misinterpreted the documentary evidence. The Applicant points to documentary evidence which indicates that torture continues to be regularly reported in Punjab despite the end of the militancy period and that arbitrary detention remains a problem in India.
[33] In her reasons, the Officer relied on the U.S. State Department Country Reports on Human Rights Practices, 2002 wherein there is no mention of arbitrary arrests of Sikhs in Punjab. Further, where the documentary evidence indicates that arbitrary arrest is widespread, it also states that it is so under special security laws aimed at fighting separatist insurgencies.
[34] While the Applicant maintains that he has been targeted more than once and falsely accused of aiding militants, the record indicates that in dismissing the Applicant’s refugee claim, the Board found that, “[t]he claimant was unable to provide a single detail as to whether or not there were actual militant activities that would have encouraged the police to seek his friend out in the year 2003.” Further, there is no evidence to indicate that the Applicant was a militant or involved with militants.
[35] The documentation on the country conditions in India indicates that the situation for Sikhs in the Punjab has much improved recently and that Sikh militancy in Punjab has “…been virtually eliminated.” The documentary evidence also indicates that “…people who are not high profile militant suspects are not at risk in the Punjab today.” The evidence does indicate, however, that all those who had a connection with a Khalistan movement risked arrest. There is no evidence that the Applicant is connected to such a movement.
[36]
The Officer listed the sources of documentary
evidence she consulted before rendering her decision. She acknowledged that
this evidence indicated there was a period where Sikh militants were persecuted
by the police. She also noted that this same evidence indicated that the Sikh
militant movement is no longer active in Punjab. The Applicant was not believed to have been a supporter of an alleged
militant or a militant himself. Consequently, he did not have the profile of a
person who would be at risk of persecution in India. The Applicant produced no further probative evidence in his PRRA
application to support his allegation of risks. It was therefore open to the
Officer to conclude that the objective documentary evidence did not support his
allegations of risks.
[37] For the above reasons, I am of the view that the Officer’s conclusions regarding the Applicant’s personal evidence and the documentary evidence on country conditions in India fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. The Officer did not commit a reviewable error in deciding as she did.
B. Does the PRRA process provide a fair procedure, which is compliant with the Charter of Rights and Freedoms, s. 7, Part I of the Constitution Ac, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 and Canada’s international obligations?
[38] The Applicant submits that PRRA reviews are conducted by “low-level officials with little or no independence and with no recognized competence in analysis of human rights or international law, and the courts are not ensuring access to an effective remedy.” Further, the Applicant argues that the “decision-maker is not someone of recognized competence, but rather an employee of the Ministry that wishes to deport the Applicant. There is no real judicial independence for the PRRA Officers.” The Applicant states that “all decisions rendered by PRAA officers show a systematic bias in favour of deportation and against the application of international human rights law.”
[39] The Applicant is in essence raising the question of institutional bias of the PRRA process. That question was considered by my colleague, Mr. Justice de Montigny in Lai v. Canada (Minister of Citizenship and Immigration), 2007 FC 361. I reproduce below paragraphs 64 and 74 of his reasons:
[64] Because an
allegation of bias is of such momentous importance, the grounds to establish
such an apprehension must be substantial and must rest on something more than
pure speculation or conjecture: Committee for Justice
and Liberty, above, at pages 394-395; Arthur v.
Canada (Attorney General), [2001] F.C.J. No.
1091, 2001 FCA 223, at paragraph 8. In the present case, I have not understood
counsel's submission to be that the PRRA officer was personally biased. What we are dealing with here
is an allegation of institutional bias, which would have arisen in all the cases decided while the
Minister of Citizenship and Immigration had
overlapping statutory "intervention" and "protection"
authority during the transition period following the IRPA's enactment…
[74] In coming to this conclusion, I am comforted by the decision reached by my colleague Justice Frederick Gibson in Say v. Canada (Solicitor General), [2005] F.C.J. No. 739, 2005 FC 739 (aff'd, [2005] F.C.J. No. 2079, 2005 FCA 422). In that case, the applicants had raised the issue of institutional bias or lack of independence on the part of the PRRA officers because they were (for a short period of time) organizationally situated within the Canada Border Services Agency, along with removal officers. After examining the evidence, Justice Gibson concluded the PRRA unit was structured in such a way that it was insulated from other sections of the CBSA, so that a right-minded and informed individual would not have a reasonable apprehension of bias. At paragraph 39 of the decision, he wrote:
On the evidence before the Court in this matter, I conclude that there would not be a reasonable apprehension of bias, in the mind of a fully informed person, in a substantial number of cases. That is not to say that there could not well be a reasonable apprehension of bias, as a matter of first impression, in the mind of a less than fully informed person, in a substantial number of cases. The mandate of the CBSA was portrayed in the substantial amount of public information surrounding its establishment as a security and enforcement mandate, a mandate quite distinct from a "protection" mandate. But the evidence before the Court indicates that its mandate was, at least in the period in question, rather multifaceted and that there was a conscious effort to insulate the PRRA program from the enforcement and removal functions of the CBSA. Thus, I conclude that a "fully informed person" would not have a reasonable apprehension that bias would infect decision makers in the PRRA program in a "...substantial number of cases". (My emphasis).
Also
see Doumbouya v. Canada (Minister of Citizenship and Immigration), 2007
FC 1187 at paragraph 99; Kubby v. Canada (Minister of Citizenship and Immigration),
2006 FC 52 at paragraph 9; and Oshurova v. Canada (Minister
of Citizenship andImmigration), 2005 FC 1321 at paragraph 5.
[40] I adopt the reasoning and conclusions articulated by Mr. Justice de Montigny in Lai, above. Regarding the PRRA process in the circumstances of this case, I am also of the view that there is no reasonable apprehension of bias, either from an institutional or from an individualized point of view. It follows, therefore, that there can be no infringement of the principles of fundamental justice or procedural fairness.
VII. Conclusion
[41] For the above reasons, the application for judicial review will be dismissed.
[42] The parties have had the opportunity to raise a serious question of general importance as contemplated by paragraph 74(d) of the Act and have not done so. I am satisfied that no serious question of general importance arises on this record. I do not propose to certify a question.
JUDGMENT
THIS COURT DOTH ORDER AND ADJUDGE that:
1. The application for judicial review of a Pre-Removal Risk Assessment decision dated September 18, 2007 is dismissed.
2. No serious question is certified.
“Edmond P. Blanchard”
Judge
ANNEX
Immigration and Refugee Protection Act, S.C. 2001, c. 27:
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4589-07
STYLE OF CAUSE: CHARANJIT SINGH v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
APPEARANCES:
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Me Stewart Istvanffy Montréal, Quebec
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Me Kinga Janik Montréal, Quebec |
SOLICITORS OF RECORD:
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Me Stewart Istvanffy Montréal, Quebec
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John H. Sims, Q.C. Deputy Attorney General of Canada |