Date: 20050906
Docket: IMM-1259-05
Citation: 2005 FC 1203
Ottawa, Ontario, the 6th day of September, 2005
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
RAVINDER SINGH
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Helene Panagakos of the Immigration and Refugee Board (Refugee Protection Division) (the "Board") dated February 3, 2005, wherein the Applicant was found to be neither a Convention refugee nor a person in need of protection, as per ss. 96 and 97 respectively of the Immigration and Refugee Protection Act ("IRPA").
ISSUE
[2] Did the Board err in failing to give regard to the documentary evidence indicating that the Applicant would face persecution if returned to India?
CONCLUSION
[3] For the reasons outlined below, the answer to that question is no, and therefore this judicial review is denied.
BACKGROUND
[4] The Applicant, Ravinder Singh (Mr. Singh or the "Applicant"), is a 25-year-old male from Punjab, India. His father was a member of the Shironmani Akali Dal Amritsar party, and, as a result, was falsely arrested and abused by authorities on several occasions. His father eventually fled India for the Philippines, but was later killed.
[5] On June 27, 2000, an old friend of his father's, who was a member of the Mann Party, came to see the Applicant in his farm fields. The next day, the police raided the Applicant's house and arrested him. He was taken to the police station where he was abused and falsely accused of consorting with militants. After three days of detention and the payment of a bribe, Mr. Singh was released. Subsequently, from time to time, the police would come to the Applicant's house, insult his family and inquire about militants. On a few other occasions, the Applicant was physically abused and threatened by authorities at the police station. Each time, the Applicantsought medical help.
[6] The Applicant took steps to report these problems to the police. He met with a lawyer to commence proceedings against the police, but, following the meeting, he was again detained by the police, fingerprinted, photographed, assaulted, and made to sign blank papers.
[7] Mr. Singh left the Punjab region and arrived in Rajasthan on May 10, 2003, to stay at a relative's house. The police continued to look for him in the Punjab, and beat his younger brother on October 1, 2003 in an attempt to ascertain the Applicant's whereabouts. His relative's home was subsequently ransacked, but the Applicant was not there at the time. He was, however, as a consequence, no longer welcome to live there. At this point, Mr. Singh made arrangements with a smuggling agent to come to Canada.
SUBMISSIONS OF THE PARTIES
The Applicant
[8] The Applicant seeks leave only on the portion of his claim made under section 97(1)(a) of IRPA: that as a failed Sikh refugee claimant who was deported from Canada, he will be personally subjected to a danger of torture by the Indian authorities upon his return. He does not seek judicial review of the Board's credibility findings.
[9] In its decision, the Board stated that no documentary evidence was submitted demonstrating that the claimant would face persecution if he had to return to India as a failed refugee claimant. It went on to cite documentary evidence stating that only those Indian nationals who had not complied with Indian laws upon their departure would run the risk of being prosecuted upon return. Furthermore, the evidence showed that failed asylum seekers returning to India might be questioned briefly, but were usually then free to leave the airport (or other port of entry). The Board also quoted documentary evidence that stated that if the individual was being sought by any Indian security or police forces, he would be handed over to the force in question. Otherwise, the authorities would likely only be involved for a brief initial interview.
[10] The Applicant submits that the Board ignored documentary evidence that supported his claim that hardships often befall failed refugee claimants upon their return to India, especially those who are Sikh. The Applicant pointed to documentary evidence that showed that sometimes Sikhs were the victims of police misconduct while in custody, and subjected to inhumane methods of interrogation, including torture. The Applicant also provided information about Sikh terrorists based in Canada, among other places, which he alleged would cause the Indian authorities to scrutinize him even more closely upon his return. The Applicant submits that the Board was obligated to deal with this evidence.
[11] The Applicant submits that the Board's evidence was fraught with conditional statements, such as "returnees did not have a problem if they returned with valid travel documents and if their departure had taken place with valid travel documents." The Applicant notes that while this may indeed be the case, his own situation does not conform to some of these conditions, i.e., the Applicant left India on a false passport.
[12] The Applicant further submits that the Board reached its decision via "selective reading" of the evidence. That is, the Board chose to address part of the documentary evidence, but not all of it. The Applicant referred to the case of Balendra v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1352, for the proposition that although a tribunal is not required to refer to every piece of evidence contrary to its finding, the more important the unmentioned evidence is, the more willing a court may be to infer from this silence that the panel made an erroneous finding without regard to the evidence.
[13] Finally, the Applicant submits that the merits of his section 97 claim do not rely on the Board's credibility findings, but can be determined on the basis of the country condition documents alone. The Board should have looked at similarly-situated persons (i.e., failed Sikh asylum claimants) for evidence of substantial hardship, and not just based its conclusion on the Applicant's personal history or credibility. Mr. Singh honestly believes he will now be investigated and tortured because as a failed Sikh refugee claimant, India will believe he is connected to the Sikh terrorist organizations believed to be in Canada.
The Respondent
[14] The Respondent, the Minister of Citizenship and Immigration (the "Minister" or the "Respondent") submits that, generally, the lack of credibility of an applicant will impact on a s. 97 analysis, since the fear alleged must be of a personal nature. Simple referring to country conditions is generally insufficient to grant protection to a person under s. 97 of IRPA. The Respondent cites Jarada c. Canada (Minister of Citizenship and Immigration), [2005] A.C.F. No. 506 at paras. 27-28:
[27] D'autre part, l'article 96 comporte un volet objectif et un volet subjectif, ce qui n'est pas le cas de l'article 97(1)(a) : la personne qui invoque cette dernière disposition doit démontrer, selon la prépondérance des probabilités, qu'elle est plus susceptible d'être persécuté que de ne pas l'être ("more likely than not") (Chan c. M.E.I., [1995] 3 R.C.S. 593; Li c. M.C.I., [2005] F.C.J. no. 1 (C.A.F.)).
[28] Ceci étant dit, l'appréciation du risque que pourrait courir le demandeur d'être persécuté s'il devait être retourné dans son pays doit être personnalisé. Ce n'est pas parce que la preuve documentaire démontre que la situation dans un pays est problématique du point de vue du respect des droits de la personne que l'on doit nécessairement en déduire un risque pour un individu donné (Ahmad c. M.C.I., [2004] A.C.F. no. 995 (C.F.); Gonulcan c. M.C.I., [2004] A.C.F. no. 486 (C.F.); Rahim c. M.C.I., [2005] A.C.F. no 56, 2005 CF 18 (C.F.). À ce chapitre, le manque de crédibilité du demandeur pouvait être retenu contre lui tant sous l'article 96 que sous l'article 97(1)(a).
[15] The Respondent also relies on Inderpal Singh Gill v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 58 (Gill), in which a similar argument was presented. In that case, the Court held that since the Applicant was found to be not credible with respect to his membership in a certain group, he could not be said to fall in the category of a larger, related group who was often subjected to harsh treatment. The Court further held that determining whether substantial grounds exist to believe that a person could risk torture upon return, is a finding well within the jurisdiction and competence of the Board to assess, both in its roles as a specialized tribunal and as the first-instance trier of fact.
[16] Finally, the Respondent submits that being subject to repercussions because of a violation of India's exit laws cannot be said to constitute persecution, but, rather, prosecution.
Standard of Review
[17] The standard of review of decisions of the Immigration and Refugee Board dealing with credibility and fact-driven decisions is patent unreasonableness: Mahjoub v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 173 at para. 42. See also Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.) at para. 4, where the Court states that the Refugee Division, as a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: "[W]ho is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences?"
Analysis
[18] Section 97 of IRPA extends protection to those who, while not refugees, are otherwise in need of protection which they are unable to obtain from the authorities in their country of origin. The Applicant here claims to be in need of such protection since, as a failed Sikh refugee claimant being returned to India from Canada, the Indian authorities will suspect him of having ties to militants abroad. The Applicant claims that there is widespread belief that there is a significant Sikh element in Canada which can be considered terrorist, and, as such, he will run a serious risk of detention, torture and/or persecution.
[19] I find it hard, however, to reach this conclusion in light of the Board's negative credibility findings. Surely if the Board found the Applicant to be not credible regarding his alleged links with Sikh militants, and the Applicant then chooses not question this part of the decision, he cannot now allege that, because he has been in Canada, India will believe these links do indeed exist. The Applicant has provided documentary evidence in support of his argument that where a person is suspected to have links to an overseas terrorist organization, he or she may have trouble upon their return to India, however, this is evidence of general risk (See "Control on arrival", Danish Report, Section 9.4). The Applicant must show personalized risk, and, in the absence of arguments against the Board's credibility findings, he has not shown such a risk.
[20] In this respect, I look to the decision in Gill, supra, where Justice Shore states:
The Court would also like to note that, since the Applicant was not found credible with respect to his link with terrorists, he cannot be said to fall in the category of "Indian asylum seekers who were already wanted by the Indian authorities for earlier offences such as alleged involvement in a terrorist group" who could [...] be subject to harsher treatments.
[21] I see no reason to find otherwise in this case.
[22] The Applicant also submits that the Board erred by stating that there was no documentary evidence to show that he would be facing persecution if returned to India. Again, because of the credibility finding, he cannot be perceived as a "suspect" of terrorist activities. Therefore, the evidence has to be read in relation to the Applicant and his situation as it was determined by the Board. The Danish Report referred to above does not support the Applicant's submissions.
[23] Finally, the Applicant submits that the Board's conclusion that he will not suffer persecution upon his return, based upon documentary evidence stating that asylum seekers who both leave and return with proper travel documentation, ignored the fact that the Applicant actually left with improper documents and therefore is in violation of India's exit laws. This, however, cannot be used as evidence that he will be persecuted by Indian authorities upon his return. The Board acknowledged the fact that Mr. Singh left on false documents. By pointing out that those who left with proper documents should have no problem upon their return, the Board is, rather, underlining the fact that Mr. Singh perhaps fears prosecution instead of persecution. In Zaidi v. Canada (Minister of Citizenship and Immigration) (2004), 35 Imm. L.R. (3d) 273 (F.C.), Kelen J. cites the Federal Court of Appeal's decision in Valentin v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 390, which he paraphrased in the following way:
...a defector cannot gain legal status in Canada under IRPA by creating a "need for protection" under section 97 of IRPA by freely, of their own accord and with no reason, making themselves liable to punishment by violating a law of general application in their home country about complying with exit visas, i.e. returning. As worthy as the applicant may be for Canadian immigrant status, the Refugee Board, and this Court, do not have the legal jurisdiction to grant defectors legal status.
[My emphasis]
[24] The Applicant is, in essence, asking this Court to re-weigh the evidence that was before the Board, and in the absence any patently unreasonable error, the Court has no reason to intervene. Therefore this application for judicial review is rejected.
[25] The parties were invited to submit questions for certification but they have not done so.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review be rejected and no question will be certified..
"Simon Noël" Judge
COUR FÉDÉRALE
AVOCATS INSCRITS AU DOSSIER
DOSSIER : IMM-1259-05
INTITULÉ : RAVINDER SINGH
Demandeur
et
LE MINISTRE DE LA CITOYENNETÉ ET IMMIGRATION
Défenderesse
LIEU DE L'AUDIENCE : Montréal
DATE DE L'AUDIENCE : 31 août 2005
MOTIFS DU JUGEMENT : Monsieur le juge S. Noël
DATE DES MOTIFS : Le 6 septembre 2005
COMPARUTIONS:
AVOCATS INSCRITS AU DOSSIER:
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