Kaur v. Canada (Minister of Citizenship and Immigration), 2004 FC 1612

Date : 20041117

Docket : IMM-725-04

Reference : 2004 FC 1612

OTTAWA, ONTARIO, NOVEMBER 17, 2004

Present:           THE HONOURABLE MR. JUSTICE MARTINEAU

BETWEEN:

                                                                 HARJIT KAUR

                                                         AJAYPAL SINGH RIAR

                                                                                                                                           Applicants

                                                                         - and -

                                               THE MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision dated December 19, 2003, by Gilles Crête, Pre-removal risk assessment officer (the PRRA Officer), who concluded that the applicants were not Convention refugees nor persons in need of protection pursuant to sections 96 and 97 of the Act.

BACKGROUND

[2]                Mrs. Harjit Kaur is a widow of 50 years old. Mr. Ajaypal Singh Riar, her son, is 20 years old. Both of them are citizens of India. Mrs. Kaur and Mr. Riar, the applicants, were admitted into Canada as visitors. They arrived in Canada on July 29, 2000, to attend a relative's wedding. Two months after their arrival in Canada, the applicants made a claim for Convention refugee status. Their claim was refused on October 31, 2000. The Convention Refugee Determination Division (the CRDD) of the Immigration and Refugee Board found that the applicants were not credible. On January 9, 2002, the applicants presented an application for judicial review in connection with the CRDD's decision. Their application was denied by the present Court.

[3]                On October 18, 2001, the applicants applied for consideration under the post-determination refugee claimants in Canada (PDRCC) class. On September 16, 2003, the applicants were informed that their application for protection under the PDRCC class was converted into a PRRA application. On October 15, 2003, the applicants sent their new submissions to Citizenship and Immigration Canada (CIC).

[4]                On this matter, the applicants allege that at the end of the 1980's Mrs. Kaur and her now deceased husband were forced to help and harbor terrorists related to Babbar Khalsa. In 1992, the police learned that the applicants had collaborated with the terrorists. The police interrogated the applicants' family, arrested the husband and searched thoroughly their house.

[5]                The applicants also allege that in October 1994, the terrorists, once again, imposed their presence in their house for a period of three days. Following that event, the applicants left their house and moved in another part of the country because they feared for their lives. Mr. Riar was enrolled in a new school. However, Mrs. Kaur continued to work in the same place.

[6]                The applicants received their passports during the years 1995 and 1996. Mrs. Kaur came to visit Canada in July 1999. She did not make a claim for Convention refugee status at that time. She returned to India following the said visit.

[7]                On January 18, 2000, Mrs. Kaur alleges that she was arrested and abused sexually by the police in India. According to the applicants, Mr. Riar was also arrested and beaten by the police. The applicants were shortly released after their arrest. They found refuge in the house of Mrs. Kaur's sister. Following the advice given by their family, the applicants fled to Canada.

[8]                The applicants allege that their removal from Canada to India would constitute a great risk to their security. In fact, Mrs. Kaur says that there is no adequate protection for her as a woman and for Mr. Riar as a young Sikh. They also allege being actively researched by the police in India.

[9]                On December 19, 2003, the PRRA Officer determined that the applicants would not be subject to risk of persecution, danger of torture, risk to life or risk of cruel and unusual treatment or punishment if returned to India. The applicants ask that the PRRA be set aside and remitted for redetermination before a different officer.

GROUNDS OF REVIEW

[10]            The applicants allege before this Court that the PRRA Officer made a patently unreasonable error or based his decision on erroneous findings of fact that he made in a perverse or capricious manner or without regard for the material before him when he concluded that they were not at risk, had a possibility of internal flight alternative (IFA) or that the State of India would provide for adequate protection on their return. The applicants also submit that the impugned decision does not take into account all the documentary evidence. On this matter, the applicants cite Kalsi v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 482 (F.C.T.D.) (QL), where Justice Tremblay-Lamer stated that where there is relevant evidence that does not emanate from the claimant's testimony which can link the claimant to his claim, the PRRA Officer must consider it.

[11]            The applicants allege that the PRRA Officer made flagrant errors about the situation in India and the state of respect of human rights in that country. Police torture is still rampant and militants, their families or their sympathisers, and even woman activists who are trying to get justice, are still at grave risk. The applicants cite Shahi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1826 (F.C.T.D.) (QL), where Justice Tremblay-Lamer found, in 1999, that the applicant could reasonably expect unusual hardship if he had to leave Canada for the Punjab due to police's incorrect suspicion with Sikh militants.

[12]            The applicants also allege that there is a terrible problem of impunity in cases of Sikhs who have been victims of torture. Moreover, during the course of argument, applicants' counsel referred to the applicants' book of authorities, and in particular to numerous documents submitted under the heading "international doctrine" which were in support of their allegations of risk. The applicants are relying upon these judgments and articles of doctrine to basically prove to the Court that their return in India is not an option with respect to the serious situation in India. Since these documents were not submitted before the PRRA Officer, I am of the opinion that the general content of these documents should not be a matter of judicial notice.

[13]            The applicants also contend that the PRRA Officer has erred in law because he has ignored all the personal evidence they have submitted in support of their allegations of risk upon return to India. Finally, they allege that the PRRA Officer's decision violates section 12 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter), as well as section 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, UNGAOR, Supp. No. 51, UN Doc. A/39/51 (1984) 197.

ANALYSIS

[14]            This Court finds that all the arguments submitted by the applicants are unfounded.

[15]            Firstly, I find that the evidence which was not presented before the PRRA Officer cannot be taken into account during the present judicial review (Naredo v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 742 (F.C.T.D.) (QL); Owusu v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1505 (F.C.T.D.) (QL)). To review a decision on the basis of new evidence would transform said review into an appeal. Consequently, no new evidence will be taken into account by this Court such as the written article by Cynthia Keppley Mahmood, "Writing the Bones".

[16]            Secondly, in applying the pragmatic and functional approach, where the impugned decision is considered globally and as a whole, the applicable standard of review should be reasonabless simpliciter (Shahi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1826, at para. 13 (F.C.T.D.) (QL); Zolotareva v. Canada (Minister of Citizenship and Immigration), 2003 FC 1274, at para. 24; Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC 39, at para 7). That being said, where a particular finding of fact is made by the PRRA Officer, the Court should not substitute its decision to that of the PRRA Officer unless such finding of fact was made in a perverse or capricious manner or without regard to the material before the PRRA Officer (paragraph 18.1(4) (d) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended; Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39 at para. 14).

[17]            Thirdly, it is important to underline the fact that the PRRA process is not an appeal of the CRDD's decision, but rather is intended to be an assessment based on new facts or evidence which demonstrates that the person at issue is now at risk of persecution, risk of torture, risk to life, or risk of cruel and unusual treatment or punishment. In short, the purpose of the PRRA application is not to reargue the facts which were originally before the CRDD or to do indirectly what cannot be done directly - e.g. contest the findings of the CRDD. The Court notes, in this regard, that pursuant to subsection 113(a) of the Act, "new evidence" is evidence that arose after the rejection of the refugee claim or was not reasonably available at that time, or that the applicant could not have reasonably been expected to have presented in the circumstances.

[18]            Fourthly, in the case at bar, the Court concludes that the impugned decision is not reviewable. Clearly, the PRRA Officer did not base his decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard to the material before him. Moreover, the general conclusion reached by the PRRA Officer is supported by the evidence and can stand up to a probing examination. The PRRA Officer's decision is based on several pieces of evidence. Furthermore, in considering these said pieces of evidence, the PRRA Officer assessed the applicant's case, the situation in India and established a risk assessment analysis in connexion with the removal of the applicants.

[19]            The PRRA Officer's decision was not based on speculation, but on documentary evidence to which he makes specific reference throughout his decision. For example, the PRRA Officer relied upon the April, 2001, Country Assessment of India, produced by the Country Information & Policy Unit, Immigration & Nationality Directorate, Home Office U.K., to conclude that the general situation in India is now stable. He also relied upon the Danish Immigration Service Report of 2001 and the 2002 US Country Reports on Human Rights to determine that the security condition in Punjab with respect to the Sikhs is now very good. Moreover, the PRRA Officer also relied on the 2003, Country Assessment of India, produced by the Country Information & Policy Unit, Immigration & Nationality Directorate, Home Office U.K. (the 2003 U.K. Report) to determine that the judicial protection, in Punjab, in connection with police abuse had improved. Furthermore, the PRRA Officer also based his decision on Mr. Ravi Nair's opinion, director of the South Asia Human Rights Documentation Centre (SAHRDC) and the United Nations High Commission for Refugees' (UNHCR), Background paper on Refugees and Asylum Seekers from India, UNHCR Centre for Documentation and Research, Geneva, dated of 1997, to conclude that only militant Sikhs and high profile people in connection with terrorism are actively searched in India. In short, the PRRA Officer concluded that, based upon these public documents, the applicant's allegations with respect to the risk in connection with their return to India are unfounded.

[20]            In the case at bar, the applicants did not succeed in proving that they were high profile people or Sikh militants. In other words, they simply did not prove that their particular situation was different from the normal situation in India which is described in the public documents. Therefore, this Court finds that the PRRA Officer's decision to reject the applicants' allegations with respect to the risk of torture in the event of their return in India was clearly based on relevant evidence and is reasonable.

[21]            In the case at bar, the PRRA Officer looked at the "new documents" submitted by the applicants, particularly a letter from Jaspal Singh Dhillon, Chairman of the Human Rights & Democracy Forum, dated October 17, 2003 (the HRDF letter), which was certifying that Mrs. Kaur's daughter and her son-in-law came to their office to complain about the harassment of the police who was still searching for her mother. Moreover, the author of the document gave his opinion on the actual situation in India. The PRRA Officer obviously did not find that this evidence was sufficient to revive the credibility of the story that was rejected by the CRDD. Indeed, the Human Rights & Democracy Forum was made aware of Mrs. Kaur's problems with the police by her daughter who was complaining of the police's harassment, but who declined to file an official complaint before the Court or the Human Rights Commission although she had the support of the Human Rights & Democracy Forum. The PRRA Officer concluded that in these circumstances, he could not give a lot of weight to this letter which also presented an overview of the political situation in India that was in contradiction with the up-to-date documentation relied on by the PRRA Officer.

[22]            As for the letter from Sarayit Singh, a lawyer, dated October 5, 2003, and the letter from Nari Chetna, dated October 7, 2003, they clearly refer to the initial letters filed before the CRDD and which were rejected by the Board. As such, they are not really "new evidence" and they were not worth mentioning in the PRRA Officer's reasons (Ozdemir v. Canada (Minister of Citizenship and Immigration), 2001 FCA 331). As for the warrant of arrest, dated January 17, 2004, which appears at page 51 of the applicants' file, this is obviously a new fact which was not brought to the attention of the decision-maker in the case at bar since the PRRA Officer's decision was rendered in December 2003.

[23]            As for the possibility of an IFA, the PRRA Officer was required to be satisfied, on a balance of probabilities, that in all the circumstances including the circumstances particular to the applicants, there were no serious possibility for the applicants for being persecuted outside Punjab, and it was objectively reasonable to expect the applicants to seek safety, in the rest of India, before seeking a haven in Canada (Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.); Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.)).

[24]            The applicants had the onus of demonstrating that they had a well-founded fear of persecution, risk to life or risk of cruel and unusual punishment in every part of India, and that it would be unreasonable in all of the circumstances for them to seek haven in the safe parts of India. The situation in Punjab has changed since 1999. In the case at bar, this Court finds that the PRRA Officer has applied the relevant test and has considered all the evidence submitted, including the evidence in connexion with the specific situation of the applicants. The PRRA Officer concluded that the applicants had the possibility of an IFA because they could reach other parts of India where they could be safe, for example in big cities such as New Delhi and Mumbai. The PRRA Officer cited the Indian Constitution in order to justify his decision. In fact, according to said Constitution, all the citizens of India are free to go anywhere in the country. Moreover, the PRRA Officer also based his decision on public reports such as the 2003 U.K. Report which confirm that a possibility of an IFA exists in India. This IFA is available to all Indian citizens, including Sikhs. Moreover, the applicants have already successfully found refuge in the house of Mrs. Kaur's sister. Therefore, despite the able efforts made by applicants' counsel to demonstrate that the PRRA Officer's conclusion is unreasonable, I find otherwise here.

[25]            As for the allegation of fear of risk by the Mrs. Kaur based on the fact that she is a woman in India, the PRRA Officer found that the applicants did not succeed in proving such allegation. On this matter, the PRRA Officer based his decision on the fact that there is, in India, a recognized national organisation that was founded for the protection and interests of the women in India. The PRRA Officer simply did not believe the testimony of the applicant. It is well established that the PRRA Officer has an expertise in the weighing of the credibility of an applicant's testimony and of the evidence submitted before him (Singh v. Canada (Minister of Citizenship and Immigration), 2003 FC 1303; Hassan v. (Minister of Citizenship and Immigration), [1992] F.C.J. No. 946 (F.C.A.) (QL)). This Court finds that the PRRA Officer's decision with respect to this matter is not unreasonable nor based on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before it.

[26]            As for the applicants' allegation on the matter of state protection, it is well established that the PRRA Officer must weight the evidence in connexion with the state of origin of the applicants (Canada (Minister of Employment and Immigration) v. Malgorzat, [1991] F.C.J. No. 337 (F.C.A.) (QL)). The PRRA Officer can, in order to make his decision, look at all the evidence with respect to the State's efforts to protect the Sikhs. The Supreme Court of Canada has stated in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 724-725:

... however, clear and convincing confirmation of a State's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the State protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty.

[27]            In the case at bar, this Court finds that the applicants did not succeed in proving the State's inability to protect them. Moreover, the applicants did not even prove that they were Sikhs militants. They simply did not establish that they are actively searched by the Indian authorities nor did they prove that they are high profile people. Clearly, the PRRA Officer was entitled to consider the fact that the applicants were not involved in political or militant activities; that they did not have the profile of militants (Sidhu, supra). Moreover, according to all the public reports, the situation in India is stable for the Sikhs. In short, the PRRA Officer concluded that the written evidence did not support the applicants' allegation nor the HRDF letter. Consequently, the Court's intervention is not justified since the PRRA Officer's conclusion is reasonable and does not contain any reviewable error.

[28]            In conclusion, the PRRA Officer took into account all the evidence submitted to him before rendering his decision. Consequently, even if this Court had weighed the evidence differently, it cannot intervene since the PRRA Officer's decision is based on relevant evidence submitted before him (Linaogo v. Canada (Solicitor General), 2004 FC 335, [2004] F.C.J. No. 336 (QL)). This Court finds that the PRRA Officer's decision is not illogic. The applicants did not succeed in proving that the PRRA Officer's decision is unreasonable or that it is based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before him.

[29]            The applicants' counsel has proposed the following three questions for certification:

1)         Is Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, UNGAOR, Supp. No. 51, UN Doc. A/39/51 (1984) 197 (the Convention) mandatory before the Immigration and Refugee Board and the PRRA process and in application of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11? Is its consideration mandatory in the context of the analysis of the risk of return in the pre-removal risk assessment (PRRA)?

2)         Does the current situation in India support a conclusion that protection of the State is available against the police terror in the Punjab?

3)          Does section 24 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, guarantee that there will be no return to torture and that in judicial review the Federal Court must look at the most up-to-date information in order to follow the Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, judgment of the Supreme Court of Canada?

[30]            Paragraph 97(1)(a) of the Act refers specifically to the notion of torture contained in Article 1 of the Convention and therefore integrates the principles contained in Article 3 of the Convention. Consequently, the answer to the first question proposed by the applicants is contained in the law itself and does not require certification (Sidhu, supra). Moreover, the risk of torture is essentially a question of fact to be examined on a case by case basis. In the present case, the PRRA Officer assessed the relevant evidence and determined that the applicant would not face a risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment in India. The Federal Court of Appeal noted in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), that a proposed question should be certified only when it deals with issues of broad significance of general application which transcend the immediate interests of the parties. Clearly, this is not such a case here.

[31]            With respect to the second question proposed by the applicants, I note that the situation in India, or in any other country, at any given time, is a question of fact. Although, proof of country conditions before the PRRA Officer is not subject to the strict rules of evidence, one cannot say that the facts alleged by the applicants are so notorious as not to be subject of dispute among reasonable people (Abdul Khaliq v. Canada (Solicitor General), 2004 FC 1561). The cases of [1938] S.C.R. 100">Reference re Alberta Statutes, [1938] S.C.R. 100 and Schnell v. BC Electric Rly Co. (1910), 14 W.L.R. 586, have led the authors of Sopinka, Lederman, Bryant "The Law of Evidence in Canada", 2^nd ed., to say that the courts should notice without proof that which "everybody knows". However, each claim revolves on its own particular facts. In this case, the Court is not in the position to take judicial notice of what the applicants seem to characterize as notorious facts with respect to the situation in India. That being said, the Minister, who is far more knowledgeable than the Court in terms of country conditions, does from time to time form the view that a situation in a given country is horrific and issues a moratorium against returning people there. That has not happened here.

[32]            As for the third question, this Court finds that the basic principle of administrative law to the effect that evidence which was not before the decision-maker is not relevant upon judicial review is applicable to the case at bar. The Federal Court of Appeal's jurisprudence on that subject is unequivocal (Zsoldos v. Canada, 2003 FCA 305; Gitxsan Treaty Society v. Hospital Employees' Union (C.A.), [2000] 1 F.C. 135). The Suresh decision does not change any way this very fundamental principle. The more so since, in the Suresh case, the Court was concerned with the decision to deport Suresh to torture which is not the case here. Moreover, Suresh was a known terrorist and the risk of being subject to torture if he returned to Sri Lanka was not in issue. What was in issue was whether he should be returned anyway. In this case, the decision under review is not a decision to remove the applicants from Canada. Furthermore, the applicants' allegations that they would face torture upon return to India are disputed unlike in the Suresh case. Furthermore, the applicants are not barred in any way to have CIC consider new evidence following a first negative risk assessment. In section 165 of the Immigration and Refugee Protection Regulations, SOR/2002-227(the Regulations) the legislator has foreseen the situation where a person who has remained in Canada after receiving a negative risk assessment would need a second assessment to be made by CIC thereafter. It is always possible to file another PRRA application if the applicants feel that new compelling evidence should be evaluated prior to their removal and to ask the Federal Court for a stay of their removal pending that evaluation, since the Regulations clearly state that the subsequent applications for a PRRA do not result in a stay of the removal order.

[33]            Therefore, considering the above comments, including those with respect to Liyanagamage, supra, no question of general importance shall be certified by the Court.

                                               ORDER

THIS COURT ORDERS that this application for judicial review be denied.

                   "Luc Martineau"                    

                                                                                                   Judge                                

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-725-04

STYLE OF CAUSE: HARJIT KAUR ET AL. v. M.C.I.

PLACE OF HEARING:                                 MONTRÉAL, QUEBEC

DATE OF HEARING:                                   NOVEMBER 3, 2004

REASONS FOR ORDER

AND ORDER:          THE HONOURABLE MR. JUSTICE MARTINEAU

DATED:                     NOVEMBER 17, 2004

APPEARANCES:

MR. STEWART ISTVANFFY                                    FOR THE APPLICANTS

MS. LUCIE ST-PIERRE                                              FOR THE RESPONDENT

SOLICITORS OF RECORD:

STEWART ISTVANFFY                                            FOR THE APPLICANTS

MONTRÉAL, QUEBEC

MORRIS ROSENBERG                                              FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA