Kaur v. Canada (Minister of Citizenship and Immigration), 2003 FC 1293

Date: 20031105

Docket: IMM-8058-03

Citation: 2003 FC 1293

OTTAWA, ONTARIO, THE 5^TH OF NOVEMBER 2003

Present:         THE HONOURABLE MR. JUSTICE LEMIEUX                                      

BETWEEN:                          

                                                                     NIRMAL KAUR

                                                                                                                                                     Applicant

                                                                                 and

                               THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                              REASONS FOR ORDER AND ORDER

[1]                 Nirmal Kaur (the "applicant") seeks a stay of the execution of her removal order scheduled for November 6, 2003, pending final determination of her application for leave and judicial review of the September 3, 2003, decision of Pre-removal Risk Assessment Officer Charbonneau (the "PRRA officer"), a decision which she received on September 30, 2003.

[2]                 The applicant is a 41 year old woman, a citizen of India and a Sikh born and raised in the Punjab. She is a failed refugee claimant. The Refugee Division did not believe her story which advanced a well-founded fear of persecution at the hands of the Punjabi police because they suspected her husband, who is in hiding, and herself of being militant supporters.

[3]                 A judge of this Court on June 11, 2002, refused to grant leave from the Refugee Division's decision.

[4]                 Her submissions to the PRRA officer alleged the same risks as those advanced to the Immigration and Refugee Board. She adds a new fear - her arrest and detention as a failed returning refugee by the Indian police when she arrives in India. In addition, she filed new evidence to prove the need for Canada's protection either under section 96 or 97 of the Immigration and Refugee Protection Act (the "Act").

[5]                 I am dismissing this stay application on the grounds the applicant failed to establish she would suffer irreparable harm if removed to India. I reach this conclusion for several reasons.

[6]                 First, as noted, the applicant still claimed before the PRRA officer fear of arrest, torture and rape at the hands of the Punjabi police. In my view, her new evidence (internet articles, a copy of Amnesty International's 2003 report entitled "Break the Cycle of Impunity and Torture in Punjab", a letter from the Sikh Temple in Montreal, two medical certificates from India, an affidavit of the Town Sarpanch and a diagnosis from the West Montreal Counselling Centre) do not fill the gap perceived by the Refugee Division.

[7]                 The PRRA officer considered and specifically discarded a number of pieces of this new evidence. In other cases, it did not specifically comment on certain documents but my review of them leads me to conclude they do not support her case.

[8]                 Counsel for the applicant stressed the Amnesty study. I examined that report. While it concludes torture continues after the end of the militancy period, it does not establish the existence today of wholesale torture of the Sikh community in an era of rising militancy. The report acknowledges the targets of torture have changed. The targets now are detainees held in connection with criminal investigations and include members of all religious communities and social group. It does acknowledge women may be the targets of torture.

[9]                 Second, the documentary evidence considered by the PRRA officer does not support the claimant's fear of arrest as a failed returning refugee.

[10]            Third, the PRRA officer considered as an adjunct the existence of a viable IFA, a conclusion which was not seriously challenged by her counsel.

                                                                            ORDER

THIS COURT ORDERS that this stay application is dismissed.

                                                                                                                                        "François Lemieux"

                                                                                                                                                       J U D G E

                                                                     FEDERAL COURT

                                     NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:          IMM-8058-03

STYLE OF CAUSE:       NIRMAL KAUR v. MCI

PLACE OF HEARING: MONTREAL

DATE OF HEARING:    November 3, 2003

REASONS FOR ORDER AND ORDER DATED:            November 5, 2003

APPEARANCES:

Mr. STEWART ISTVANFFY                    FOR THE APPLICANT

Ms. GRETCHEN TIMMINS                     FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. STEWART ISTVANFFY                    FOR THE APPLICANT

1070, Bleury Street

Office 503

Montreal, Quebec

H2Z 1N3

Telephone:            (514) 876-9776

Fax:                        (514) 876-9789

Ms. GRETCHEN TIMMINS                     FOR THE RESPONDENT

DEPARTMENT OF JUSTICE OF CANADA

Complex Guy-Favreau

200, René-Lévesque Blvd. West

East Tour, 5^th Floor

Montreal, Quebec

H2Z 1X4

Telephone:              (514) 283-5216

Fax:                          (514) 283-3856