Date: 20060623
Dockets: IMM-2889-06
IMM-3175-06
Citation: 2006 FC
799
Ottawa, Ontario,
June 23, 2006
PRESENT: THE
HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
BACHAN
SINGH, SOGI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
and
MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is a motion by
the applicant to stay the enforcement of a removal order issued against the
applicant, originally scheduled on June 16, 2006.
[2]
The Minister’s
counsel told the Court that he suspended the enforcement pending a decision on
this motion.
RELEVANT
FACTS
[3]
Mr. Sogi has been the
subject of many decisions by the Immigration Board as well as the Federal Court
since he arrived in Canada on May 8, 2001.
[4]
I will not review the
previous decisions in detail except to point out that Mr. Sogi has been
subject to a removal order for several years, i.e. since October 8, 2002, and
that the Canadian authorities did not proceed with his removal because the
pre-removal risk assessment had not been adequately prepared.
[5]
In fact, on September
30, 2004, his pre-removal risk assessment application (PRRA) was dismissed by
the Minister’s delegate, who considered that removal was the only alternative.
The Federal Court of Appeal granted the application by the Minister of
Citizenship and Immigration to set aside this decision since the Minister’s
delegate had not considered the evidence relied on for the Security
Intelligence Report (SIR).
[6]
The matter had
therefore been returned to another officer of the Department who made a new
decision on May 11, 2006, which reads essentially as follows:
After fully considering all facets of this case,
including the humanitarian aspects, and an assessment of the risk that Mr. Sogi
might face if returned to India and the need to protect Canadian society, I am
of the opinion that the Applicant, Mr. Sogi constitutes a danger to the
security of Canada, and that he does not face a risk under s. 97 of IRPA should
he be returned to India. Consequently, his request for protection is
denied.
[7]
He adds immediately
afterwards, just before his signature, the material that he took into
consideration and I quote:
I have carefully reviewed and considered the entirety of
the submissions from Mr. Sogi (through his lawyers), the PRRA Assessment
prepared by Immigration officials, the Restriction Assessment prepared by
Canadian Border Safety Agency officials, the background information at CSIS and
all attendant documentation.
[8]
On June 6, 2006, the
Canada Border Services Agency advised Mr. Sogi’s counsel that the removal
would be enforced within three weeks.
[9]
On June 11, 2006, the
applicant filed a motion to stay.
[10]
For his motion to
succeed, the applicant must establish that there is a serious issue to be
tried, that he is at risk of irreparable harm if he is removed, and that the
balance of convenience is in his favour.
SERIOUS ISSUE
[11]
To determine whether
the applicant raised a serious issue to be tried in his motion to stay, we must
examine the two applications for judicial review on which this motion to stay
is based. In fact, last May 31, the applicant filed an application for judicial
review of the decision denying him his refugee claim following a pre-removal
risk assessment (PRRA) issued by Citizenship and Immigration Canada, represented
by the Minister’s delegate, L.J. Hill, dated May 15, 2006.
[12]
Indeed, the applicant
also applied for a judicial review of the enforcement of the removal order
against the applicant, on June 11, 2006.
[13]
The applicant filed a
single motion to stay related to the two applications for judicial review.
[14]
The judge hearing a
motion to stay does not have the responsibility of reviewing the findings of
the officer responsible for issuing a notice regarding the expectation of harm
if the person were to be removed to his native country.
[15]
The judicial review
of the PRRA officer’s decision will be decided at a later stage; first, a judge
shall examine whether the leave must be granted and then, if leave is granted,
a judge will examine the reasonableness of the decision on the merits in
accordance with legislative and jurisprudential requirements.
[16]
It is my
responsibility at the stage of the stay to determine whether, prima facie,
the decision is consistent with the applicable legal provisions and whether the
decision-maker reviewed the evidence in the record including the secret
evidence and specifically the Security Intelligence Report (SIR) and the
documents referred to in that document. Until there is a new order, the
decision is legal, and I have the responsibility to consider it in light of the
new evidence filed in the record, if there is any.
[17]
It appears clear on
reading the PRRA decision, which I reviewed, that the officer’s review of Mr.
Sogi’s situation was complete, detailed and systematic. Inter alia, after
his refugee claim was denied by the United Kingdom, he entered Canada under a
false identity while the British authorities were preparing to remove him. On
that point, the reasons stated by the British authorities were the same as
those of the Canadian authorities, namely that his presence was no longer
authorized on British soil because he constituted a threat to national security
due to his involvement in terrorist activities on an international scale.
[18]
Although it was
acknowledged during his many immigration hearings that he had used many false
identities on British soil and well as on Canadian soil, and when he traveled
to India and to Pakistan, Mr. Sogi continued to deny that he was a
terrorist member of the international terrorist group “Babbar Khalsa
International” (BKI) organization.
[20]
At page 16 of his
decision, the PRRA officer discussed a report by a Danish fact-finding mission
to Punjab, Danish Immigration Services, May 2000:
It continued by saying “that several people who had
previously been militants and who had served their sentences for terrorist
activities now lived a normal life in Punjab.” For example, a politician who had
been accused of involvement in the assassination of Indira Gandhi in 1984 was
now a Member of Parliament. The fact-finding mission consulted NGOs and
independent lawyers and most of them believed that currently there was no
militant movement in Punjab. Most active members were now either inactive or
living abroad.
[21]
Later on in his
analysis at page 19, the PRRA officer discusses the repeal of the Prevention
of Terrorism Act (POTA):
Alternatively, because of the repeal of POTA,
and the protections offered by the new legislation, in the event that he was so
very well-known, I am still not convinced that he couldn’t return to any part
of India without facing such risks.
There is evidence of BK militants having been
arrested in the last year or so. They were arrested in relation to specific
terrorist actions. I have seen nothing persuasive in the evidence that even
those active militants who have been arrested have been subjected to harsh
treatment.
There is nothing convincing in the evidence that
would lead me to conclude that Mr. Sogi would be subjected to torture or a risk
to his life or cruel and unusual treatment or punishment if he were to be
arrested because of his membership in the BK(I). I note the letter of Amnesty
International dated August 6, 2003 to Lorne Waldman indicating that a person
believed to belong to an organization such as BKI could be charged under POTA,
the provisions of which were believed by AI to violate international human
rights standards.
The evidence establishes that the POTA, Prevention
of Terrorism (second) ordinance 2001 has been abolished and the new act,
Prevention of Terrorism Act, 2002 has been adopted. This act has been
recognized as being a notable improvement over POTA and provides safe
guards to an accused person. Section 33 of the Act provides that confessions
cannot be compelled or induced and that any complaint of torture is to be
investigated by a medical officer. Thus, the concerns raised by the August 6,
2003 letter are not persuasive. I note that Mr. Sogi could be subjected to
prosecution for the role he might have played in the aborted bombing but that
the new legislation protects against the abuses of the former legislation.
[22]
It is interesting to
note that in the PRRA agent’s report, he carefully reviewed the risk faced by
other militants from Punjab who were removed to India after several years
abroad, and I quote at page 18:
In order to better assess the risk that may face
Mr. Sogi upon return to India I have looked at the militants who have returned
to India. Mr. Wassan Singh Zaffarwal, chief of the Khalistan Commando Force,
recently returned to India after 19 years abroad. He was treated to an
overwhelming welcome by the people of his region. He has been exonerated on 7
of the 9 criminal charges against him. He was arrested shortly after his return
to India for the other charges but was released on bail. In the ‘Press Trust of
India’ dated March 27, 2003, he said “there is no scope for revival terrorism
in Punjab.”
Another former militant, Jagjit Singh Chauhan,
returned from England in 2001. During his early years in England, he propagated
the cause of Khalistan on a radio station under his stewardship. In addition,
Satnam Singh Paonta, an associate of Gajinder Singh, chairman of the Del Khalsa
International, a pro-Khalistan movement, also returned to India. As reported in
‘The Economic Times’ “Chauhan put a price on then Indian prime minister Indira
Gandhi’s head and yet he is being allowed to roam around freely”. There were no
reports on file to indicate that either of them has faced torture upon their
return.
[24]
After reviewing and
analyzing in detail the conditions in India and Mr. Sogi’s personal situation,
the PRRA officer determined that Mr. Sogi would not be subject to a risk
for his life, or to a danger of torture, or to a risk of cruel or unusual
treatment or if he were to return to India, and this was after reviewing all of
the evidence available, not only the evidence involving Mr. Sogi directly,
but also the documentary evidence on the situation in India and on the
situation of militants who returned to India after residing abroad for several
years.
[25]
The officer also
reviewed the proposed alternatives to his removal. He dismissed them all,
first, because Mr. Sogi had not been credible in the past and, second, in
view of the evidence of his membership in a terrorist group. He also determined
that the proposed conditions to have friends or other persons responsible for
his undertakings if he were released did not at all offset the danger that
Mr. Sogi posed to Canada, the danger that was recognized unequivocally in
an earlier decision.
[26]
With regard to
weighing the documentary evidence, it is a fact that the PRRA officer assigned
more weight to some documents than to others, inter alia a report issued
by the Refugee Board (RB) rather than another report issued by Amnesty
International. Whether or not we agree with either of these documents, it is
not my place to reassess all of the documents, but rather to determine whether
the analysis that was carried out on them was unreasonable.
[28]
With regard to the
application for leave filed against the decision to enforce the order to remove
the applicant (docket IMM-3175-06), the factual arguments are the same as those
in the matter challenging the PRRA officer’s decision, adding that the
applicant acknowledged that the removal officer has less room to maneuver than
the PRRA officer, that the only legal grounds raised involve the Charter, and
that the enforcement of the removal was inconsistent with the Charter. Clearly,
under the current circumstances, I assign little weight to this argument since
in fact the removal officer enforces a decision, examines whether the criteria
are met and proceeds in accordance with the appropriate legislation. The
constitutional grounds are hardly applicable under the circumstances.
[29]
Without going over
the entire matter, I do not believe that there is truly a serious issue raised
at this stage regarding docket IMM-3175-06. Under the circumstances, these
arguments could be assessed by the judge who will determine whether leave may
be granted for the judicial review; but as far as I am concerned, I assign
little weight to these arguments raised in regard to the failure to comply with
the provisions of the Canadian Charter of Rights and Freedoms and more
specifically, with regard to the factual framework supporting the arguments of
the findings of the other Minister’s officer, namely the PRRA officer, who
analyzed the facts and found that there was no serious risk of torture if
Mr. Sogi were to be deported to his native country.
[30]
The case law informs
us that the necessary threshold for determining that there is a serious issue
to be tried is not very high.
[31]
Assuming for
analytical purposes without deciding whether there is a serious issue in docket
IMM-2889-06, I will now examine whether there is irreparable harm.
IRREPARABLE HARM
[32]
The applicant argued
that the minute he sets foot in India, he will be arrested and detained.
[33]
It is possible that
in fact, as soon as he arrives on Indian soil, he could be arrested and
detained, considering his membership in the BKI terrorist group. The
applicant’s arrest and detention do not in themselves amount to cruel and
unusual punishment. After being considered a danger to national security in
England and in Canada for his involvement in an international terrorist
network, and given that both countries came to the same conclusion that there
was no alternative but to remove him from their territory, it is possible that
the person contemplated would be arrested and detained.
[34]
However, the analysis
and the findings of the PRRA officer are to the effect that the Indian
authorities have a mechanism in place which suggests that he could assert his
rights normally like other militants who returned to India after several years,
and who were the subject of several criminal charges; some were even able to be
released on bail.
[35]
As I said earlier,
the fact that Mr. Sogi could be arrested and detained upon his arrival in
India does not amount to cruel and unusual punishment. In fact, it appears
rather normal that anyone facing charges or suspicions of a criminal nature or
of terrorist activities may have to face criminal charges and appear in court
to defend himself. This situation arises every time people are deported from
Canada on the grounds of serious criminality in Canada, or when they are wanted
to respond to charges of the same kind in their native country and lose their
privilege to remain in Canada.
[36]
If the Canadian
authorities had to keep people on Canadian soil indefinitely based only on the
fact that they could possibly be arrested and detained on their arrival in
their native country, one might think that Canada would become a haven for
criminal foreign nationals, and even terrorists.
[37]
The PRRA officer
already reviewed the issue of whether the enforcement of the measure would
deprive him of life, safety and health, or whether he was in danger of torture
or persecution or at risk of cruel and unusual treatment or punishment. The
officer determined that the applicant did not face a risk to his life, his
safety or his health, nor was he in danger of torture, persecution or at risk
of cruel and unusual treatment or punishment. The PRRA officer made this
determination after a detailed and in-depth analysis of the applicant’s
personal situation and of the situation across India, particularly in Punjab,
in light of the risks the applicant Mr. Sogi would himself face if he were
to return to India.
[38]
With regard to the
documentary evidence filed before the PRRA officer as well as before me, it is
quite clear that the judge must proceed to review this evidence and, as far as
I am concerned, I consider that I need not return to or reexamine in detail all
of the evidence that had been submitted previously to the PRRA officer.
However, I find it necessary in the particular circumstances of this matter to
review all of the documentary evidence that had been filed as well as the new
documentary evidence filed by the applicant’s counsel in support of this motion
to stay.
[39]
As the Minister’s
counsel correctly points out, the Indian State adopted several special laws at
the beginning of the insurgency in Punjab in the 1980s, which resulted in many
human rights violations. Those violations led to much criticism of the Indian
authorities by international organizations. However, it is clear that more
recently, the situation has improved greatly in India even if there are several
pockets of violence inter alia in the regions of Jammu and Kashmir and
in some other regions further south. However, the situation in Punjab, where
the applicant comes from, has evolved considerably and has improved a great
deal since the mid-1990s. The new evidence filed since the decision dated May
11, 2006, cannot in any event lead me to find that the determinations made by
the PRRA officer could be considered unreasonable.
[40]
In fact, at the risk
of repeating myself, I must point out that in a motion to stay, the judge’s
role is to examine the determinations made by the PRRA officer to determine
whether, in the light of new evidence, I could find that Mr. Sogi could be
the victim of cruel or unusual treatment or punishment or torture if he were to
return to India, rather than to perform anew the PRRA officer’s specialized
task.
[41]
The applicant entered
Canada illegally using not one, but several false identities during his
travels. The Canadian authorities determined that he was a danger to Canada
and, once his recourse was exhausted, he was subject to a removal order of
which he has been aware for several years.
[42]
The fact that he is
once again asking for the judicial review of the removal order and the
pre-removal risk assessment decision does not automatically give rise to a
stay.
[43]
The applicant filed
an application with the Human Rights Committee of the United Nations on June 11
of this year and filed a letter from the Committee asking the Canadian
authorities to suspend the applicant’s removal until the matter could be
reviewed by the Court.
[45]
The Minister’s
counsel considers that this application does not in any way give rise to an
obligation to stay the removal, which must be reviewed in light of Canadian
legislation.
[46]
I agree with the Minister’s
counsel; in any event, this application is not only tardy since it was filed
barely five days before this hearing, but also the Committee has no authority
before our Court. This step closely resembles a last-minute attempt to buy
time.
[47]
Recently in Dadar
v. Canada (Minister of Citizenship and Immigration), 2006 FC 382,
Mr. Dadar filed before the Federal Court a communication to the effect
that the United Nations Committee Against Torture (UNCAT) determined that there
were substantial grounds to believe that there was a danger of torture if he
were deported to Iran. The Committee had therefore asked Canada to follow up
and the government of Canada responded quickly, confirming that although Canada
takes its international obligations seriously, it nevertheless intended to
remove Mr. Dadar to Iran.
[48]
Madam Justice Carolyn
Layden-Stevenson, in Dadar, supra, referring to Ahani v.
Canada (Attorney General) (2002), 58 O.R. (3d) 107 (Ont. C.A.), leave to
appeal dismissed, [2002] S.C.C.A. No. 62, decided by the Court of Appeal
for Ontario, explained that this decision by a United Nations Committee was not
enforceable in Canada.
[49]
Later in her
decision, the judge explains the role of the Federal Court at paragraph 23:
I have already noted that, as a matter of law,
the UNCAT decision is not binding on Canada. As in Ahani, this case
demonstrates the proper role of the executive and the proper role of the
judiciary. It is not for the judiciary to second guess Canada’s decision not to
adopt the UNCAT decision. Rather, it is a matter for a “court of public or
international opinion, not for a court of law”.
[51]
The judge must
examine whether the applicant could suffer irreparable harm if the removal
order were to be enforced. The applicant multiplied the recourse in recent
years and if the Court had to grant a stay based simply on the fact that the
person was requesting a new review of a decision, this attitude would be
contrary to the principles and objectives of the law.
[52]
I personally examined
the documents included in the voluminous documentary evidence filed before the
PRRA officer as well as before me and I have no other choice but to find that
the applicant failed to persuade me that he could be the victim of torture or
of cruel and unusual treatment if he were removed to India.
[53]
I find that the
applicant has not persuaded me that he would suffer irreparable harm if he were
to be removed to India.
BALANCE OF CONVENIENCE
[54]
Indeed, I do not
hesitate to determine that the balance of convenience clearly favours the respondent since the Minister has
the obligation to enforce the removal order as soon as circumstances so permit.
[55]
Whereas the applicant
has failed to satisfy two of the three elements of the test established in the
case law (Toth v. Minister of Employment and Immigration, 1988, 86 N.R.
302 (FCA)), namely that there is irreparable harm and the balance of
convenience is in his
favour, it will not be
necessary to decide whether there is a serious issue to be tried.
[56]
Accordingly, the
motion to stay will be dismissed.
ORDER
THE COURT ORDERS that:
The
motion to stay be dismissed.
“Pierre Blais”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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