Date: 20120605
Docket: IMM-8310-11
Citation: 2012 FC 685
Ottawa, Ontario, June 5, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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SATWINDER PAL SINGH GREWAL RAJINDER KAUR GREWAL
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
It
is trite law that deference is due to a Pre-Removal Risk Assessment [PRRA]
officer’s findings of facts. As stated in Abdollahzadeh v Canada (Minister
of Citizenship and Immigration), 2007 FC 1310:
[29] I would add, as it had been
mentioned in Colindres, supra, in circumstances similar to this case, that the
fact that the applicant disagrees with the findings of the PRRA officer does
not render the PRRA officer’s decision unreasonable. In my opinion, the
applicant in her submissions is in reality asking the Court to substitute its
assessment of the evidence for the assessment made by the officer. This is not
the Court’s role at this stage of the applicant’s file (Gonzalez v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1592, 2006 FC 1274 at paragraph 17; Maruthapillai
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 761
at paragraph 13).
II. Judicial Procedure
[2]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], dated September
30, 2011, which dismissed the Applicants’ PRRA application.
III. Background
[3]
Mr.
Satwinder Pal Singh Grewal, and his wife, Mrs. Rajinder Kaur Grewal, are
citizens of India.
[4]
The
Applicants entered Canada in October, 2008 to visit their son who is studying at the
University of Windsor. They claimed refugee protection on February 13, 2009
alleging a risk from the Indian police and authorities and Sikh militants as Mr. Grewal has
supported the Congress Party.
[5]
The
Refugee Protection Division of the Immigration and Refugee Board [Board]
dismissed their claim in January 2011 finding they had an internal flight
alternative [IFA] in Delhi. This Court denied leave for judicial review of the
Board’s decision.
[6]
The
Applicants filed a PRRA application in July 2011.
IV. Decision under Review
[7]
The
officer analyzed the evidence the Applicants submitted in support of their PRRA
application. The evidence before the officer included the Applicants’ Personal
Information Forms [PIF] and three letters; one from the Applicant’s
sister-in-law, Mrs. Manjit Kaur, one from advocate P.L. Sharma, and
one from counsel, Mr. Sarpanch Nachhattar Singh. The
Applicants also submitted as evidence a newspaper article translated into
English.
[8]
The
officer found that neither the PIFs nor the Board’s country conditions
documentation constituted new evidence. The officer gave little probative
value to the three letters because there were inconsistencies between them. He
found important core elements were missing. The officer concluded that all
three letters were formulated only to support the PRRA application.
[9]
The
officer found the newspaper article did not establish a personalized risk for
the Applicants. The officer did not give weight to the allegation that Mr.
Satwinder Pal Singh Grewal is wanted by the police because there was no
corroborating evidence to that effect. The officer noted that the Applicants’
youngest son and other relatives live in India.
[10]
The
officer reviewed country conditions in India and concluded that “progress has
been made in addressing the issue of corruption and impunity in the police
force, the government and judiciary” (PRRA Decision at p 7).
[11]
The
officer found that a valid IFA exists for the Applicants in Delhi.
V. Issue
[12]
Is
the officer’s decision reasonable?
VI. Relevant Legislative Provisions
[13]
The
following legislative provisions of the IRPA are relevant:
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Consideration
of application
113. Consideration of an
application for protection shall be as follows:
(a) an applicant whose claim to
refugee protection has been rejected may present only new evidence that arose
after the rejection or was not reasonably available, or that the applicant
could not reasonably have been expected in the circumstances to have
presented, at the time of the rejection;
(b) a hearing may be held if the
Minister, on the basis of prescribed factors, is of the opinion that a
hearing is required;
(c) in the case of an applicant
not described in subsection 112(3), consideration shall be on the basis of
sections 96 to 98;
(d) in the case of an applicant
described in subsection 112(3), consideration shall be on the basis of the
factors set out in section 97 and
(i) in the case of an applicant for
protection who is inadmissible on grounds of serious criminality, whether
they are a danger to the public in Canada, or
(ii) in the case of any other
applicant, whether the application should be refused because of the nature
and severity of acts committed by the applicant or because of the danger that
the applicant constitutes to the security of Canada.
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Examen
de la demande
113. Il est disposé de la
demande comme il suit :
a) le demandeur d’asile débouté ne peut
présenter que des éléments de preuve survenus depuis le rejet ou qui
n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il
n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les
ait présentés au moment du rejet;
b) une audience peut être tenue si le
ministre l’estime requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au
paragraphe 112(3), sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au
paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et,
d’autre part :
(i) soit du fait que le demandeur
interdit de territoire pour grande criminalité constitue un danger pour le
public au Canada,
(ii) soit, dans le cas de tout autre
demandeur, du fait que la demande devrait être rejetée en raison de la nature
et de la gravité de ses actes passés ou du danger qu’il constitue pour la
sécurité du Canada.
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[14]
The
following legislative provisions of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [Regulations], are relevant:
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Hearing
— prescribed factors
167. For the purpose of
determining whether a hearing is required under paragraph 113(b) of
the Act, the factors are the following:
(a) whether there is evidence
that raises a serious issue of the applicant's credibility and is related to
the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is
central to the decision with respect to the application for protection; and
(c) whether the evidence, if
accepted, would justify allowing the application for protection.
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Facteurs
pour la tenue d’une audience
167. Pour l’application de
l’alinéa 113b) de la Loi, les facteurs ci-après servent à décider si la tenue
d’une audience est requise :
a) l’existence d’éléments de preuve
relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui
soulèvent une question importante en ce qui concerne la crédibilité du
demandeur;
b) l’importance de ces éléments de
preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments
de preuve, à supposer qu’ils soient admis, justifieraient que soit accordée
la protection.
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VII. Position of the parties
[15]
The
Applicants submit that the officer erred in his finding inconsistencies between
the letters. The Applicants also argue that the officer should have held a
hearing to give them an opportunity to respond to his concerns in accordance
with the Regulations. They further contend that the officer’s IFA
finding is erroneous.
[16]
The
Respondent argues that credibility was not a central issue that justified
holding a hearing. The Respondent adds that the officer reasonably weighed only
the evidence the Applicants submitted. Finally, the Respondent submits that the
officer correctly applied the test for an IFA.
VIII. Analysis
[17]
The
standard of review that applies to a PRRA officer's decision with respect to
his assessment of the facts is reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
[18]
It
is trite law that holding an oral hearing is exceptional and is only justified
when all the factors in subsection 167(1) of the Regulations are met (Andrade
v Canada (Minister of Citizenship and Immigration), 2010 FC 1074).
[19]
In
the present case, it is clear that the officer did not question the Applicants’
credibility; rather, the central issue was the probative value of the new
evidence the Applicants submitted. Paragraph 167(1)(a) of the Regulations
was not met; therefore, no oral hearing was required.
[20]
In
Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC
1067, this Court made the following statement:
[33] The weight the trier of fact
gives evidence tendered in a proceeding is not a science. Persons may weigh
evidence differently but there is a reasonable range of weight within which the
assessment of the evidence’s weight should fall. Deference must be given to
PRRA officers in their assessment of the probative value of evidence before
them. If it falls within the range of reasonableness, it should not be disturbed.
In my view the weight given counsel’s statement in this matter falls within
that range.
[21]
In
the present case, the omission of relevant information from some of the letters
led the officer to conclude, as he was entitled to, that these letters did not
demonstrate the alleged fear from the police, authorities and militant Sikhs (J.E.P.G.
v Canada (Minister of Citizenship and Immigration), 2011 FC 744). It is not
the role of this Court to re-assess the evidence the officer weighed.
[22]
With
respect to the officer’s finding of an IFA in Delhi, the Applicants have not
demonstrated that the officer erred. The Court notes that the officer did not
analyze whether the Applicants had an IFA. His conclusion on IFA is as follows:
In addition, should they not wish to return
to Punjab, I find insufficient new evidence to cause me to come to a different
conclusion from the RPD; that a valid Internal Flight Alternative exists for
the applicants in Delhi.
(PRRA Decision at p 9).
[23]
Nevertheless,
this conclusion is reasonable, given the officer’s analysis of the conditions
in India. Based on his analysis of country conditions, he reasonably concluded
that the Applicants did not face a personalized risk in India; therefore, it
was not necessary for the officer to consider an IFA.
IX. Conclusion
[24]
For
all the above reasons, the Applicants’ application for judicial review is
dismissed.
JUDGMENT
THIS COURT
ORDERS that the Applicants’ application for judicial
review be dismissed. No question of general importance for certification.
“Michel
M.J. Shore”
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