Date: 20041001
Docket: IMM-7829-03
Citation: 2004 FC 1324
BETWEEN:
Satnam SINGH BHALLU
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of a Pre-Removal Risk Assessment ("PRRA") Officer (the "Officer") dated August 26, 2003, wherein the Officer found that the applicant does not face a risk of torture, of cruel and unusual treatment or punishment, nor a risk to his life. The applicant also filed an application on Humanitarian and Compassionate grounds (the "H & C application") on February 18, 2003, claiming that he would suffer undue or unusual hardship if he were forced to return to India. Leave to file an application for judicial review of the same officer's decision rejecting the H & C application was denied by Lemieux J.
[2] The applicant is a citizen of India. He claims that he was repeatedly beaten, tortured and mistreated by police in India and was accused of supporting and belonging to the Khalistan National Army, a movement that carries out terrorist activities in Punjab. The applicant claims that he still fears being targeted by the police in Punjab. He fears being arrested, tortured, beaten and mistreated again. He claims that his life is at even greater risk since the terrorist attacks on September 11, 2001 because the authorities are trying to combat terrorism in Punjab at all costs and excessive police abuse and brutality continue to exist.
[3] The applicant submits that a hearing should have been held in order to allow him to answer questions that the Officer obviously had asked herself while processing his file. Indeed, the Officer did wonder why the sarpanch had decided to submit such a complete affidavit when he had refused to do so before. The applicant submits that his credibility was at stake in this matter and that according to the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations"), he should have been afforded a hearing.
[4] I do not agree. Hearings within the context of PRRA applications are held only in exceptional cases, when all the circumstances listed in section 167 of the Regulations are met.
[5] In Singh et al. v. Canada (M.E.I.), [1985] 1 S.C.R. 177, the Supreme Court of Canada held that oral hearings are not necessary in all cases, except when the decision depends on findings of fact or credibility. In Zhang v. Canada (M.C.I.), [1996] F.C.J. No. 1377 (T.D.) (QL), Justice Gibson of this Court interpreted the Supreme Court's statement in the following manner:
[11] I am not satisfied on the material before me that the PCDO, in his decision, implicitly or explicitly rejected the credibility of the Applicant. But even if he did, I am not satisfied, once again by reference to the decision of the Federal Court of Appeal in Shah v. M.E.I. cited by Rothstein, J. in the quotation above, that in a matter such as this the statement of Madame Justice Wilson in Singh et al. v. The Minister of Employment and Immigration, [1985] 1 S.C.R. 177, that ". . . I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. . . ." extends to the facts before me. I interpret Madame Justice Wilson's reference to "...a serious issue of credibility ..." as an issue of credibility that is central to the decision in question. Even if there is a question of credibility implicitly raised in the decision of the PCDO in this matter, I do not find it to be central to the decision.
[6] In the case at bar, the issue of the applicant's credibility was not central to the Officer's decision in the PRRA. The Officer's decision was based on a number of considerations, including the existence of a reasonable internal flight alternative for the applicant, the availability of state protection against police abuse and a complete analysis of the documentary evidence which indicated that the applicant's allegation of risk if deported to India is not founded.
[7] I also find that the Officer did not commit a patently unreasonable error by giving no weight to either the sarpanch's new affidavit, the applicant's medical certificate or his father's medical certificate. The sarpanch's new affidavit is a document that could have reasonably been available as evidence before the Board. The sarpanch had already submitted an affidavit during the proceedings before the Immigration and Refugee Board (the "Board"). In its decision, the Board decided that the affidavit did not contain sufficient information to support the applicant's story. The applicant then seemingly attempts to remedy this lacuna by submitting this new affidavit. This is not the kind of evidence that is encompassed by paragraph 113(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") (see Kaybaki v. Canada (Solicitor General of Canada), [2004] F.C.J. No. 27 (F.C.) (QL)). Moreover, when the applicant submitted the first affidavit, he had explained that the sarpanch could not give specifics about the incidents that had occurred because he was afraid of repercussions. The Officer could not now understand what change in circumstances came about that resulted in the sarpanch no longer fearing talking about these events. The Officer in this instance correctly stated that no explanation had been given as to why the sarpanch changed his mind. As for the medical certificate related to the applicant's own injuries, Dr. Dongier does nothing more than repeat the applicant's claims. He gives no opinion of his own regarding the causation of the injuries sustained by the applicant except to say that the injuries are compatible with his description of the torture he underwent.
[8] Therefore, the Officer was correct in determining that the document was of limited value. Moreover, this certificate is dated March 3, 1999, more than three months prior to the hearing before the Board which was held on June 23, 1999. Consequently, this is not new evidence according to paragraph 113(a) of the Act.
[9] I am also of the opinion that the Officer correctly dismissed the evidentiary value of the applicant's father's medical certificate. This certificate does not validate the cause of his father's injuries. The applicant submits that this evidence corroborates what he suggests happened to his father, but, like with his own certificate, any evidence deriving from the applicant's testimony is tainted in cases where there has been an adverse finding of credibility.
[10] In addition, I find that the applicant is attempting to have this Court reweigh evidence that was before the Officer. In the context of a judicial review, it is not within the mandate of this Court to re-evaluate evidence; this Court must simply examine the Officer's decision and determine whether a reviewable error has been made. In such a case, the file would be sent back for redetermination (see Suresh v. Canada (M.C.I.), [2002] 1 S.C.R. 3, and Ahani v. Canada (M.C.I.), [2002] 1 S.C.R. 72).
[11] The applicant submits that the same officer processed both his PRRA and H & C applications in the same day, and suggests that the Officer could not have had the time to properly examine all the aspects of his PRRA application and his H & C application and come to a fair decision in the same day.
[12] In order for an applicant to successfully claim that there was a reasonable apprehension of bias in the processing of his claim, he or she must demonstrate that an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the decision-maker would not decide fairly ([1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369). In the absence of any evidence to the contrary, it must be presumed that a decision-maker will act impartially. To rebut this presumption, the applicant must present more than vague allegations as to bias, which has not been done in this instance. The applicant admits that the fact that the same officer processed both claims is not sufficient to give rise to such a claim. However, I do not think that the fact that both decisions were made on the same day should negate them. The Officer's reasons leave nothing wanting. She deals with all the evidence presented and comes to reasonable conclusions in both instances.
[13] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
October 1, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7829-03
STYLE OF CAUSE: Satnam SINGH BHALLU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 1, 2004
REASONS FOR ORDER BY: PINARD J.
DATED: October 1, 2004
APPEARANCES:
Mr. Jack B. Rosenfeld FOR THE APPLICANT
Mr. Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jack B. Rosenfeld FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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