Date:
20121113
Docket:
IMM-9533-11
Citation:
2012 FC 1318
Ottawa, Ontario,
November 13, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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JIAUDDIN JAINUL
SHAIKH
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Applicant
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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
[1]
The
applicant seeks judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA)
of the decision of Pre-Removal Risk Assessment (PRRA) officer (Officer), dated
November 5, 2011, rejecting the applicant’s PRRA application. For the reasons
that follow the application is dismissed.
Background
[2]
The
Officer’s decision was based on the finding that the applicant 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.
[3]
The
applicant, Jiauddin Jainul Shaikh, is a Muslim and a citizen of India. He is unmarried and his parents and siblings live in India.
[4]
The
applicant testified before the Immigration and Refugee Board that in 2002, as a
student activist, he joined with other Muslims to protest against politically
affiliated Hindu fundamentalist groups such as Shiv Sena and Navriman Sena.
Due to the applicant’s involvement in Muslim activism, members of these
fundamentalists groups began targeting him in 2005. The applicant
unsuccessfully sought police protection from these incidents.
[5]
The
applicant further said that on September 21, 2005, he was kidnapped and
beaten. The leader of one of the Hindu fundamentalist groups contacted his
father and demanded 100,000 rupees for his son’s release. The applicant’s
father negotiated his son’s release for 35,000 rupees on the condition that the
balance would be paid within a week. The applicant was released with the
warning that if the balance was not paid, he would have nowhere to hide in India. His father was unable to pay the balance. Thus, on November 16, 2005, he fled to
the United Arab Emirates (UAE). The applicant worked in the UAE, but
overstayed his tourist visa. He was subsequently caught by the authorities and
deported back to India on May 11, 2007.
[6]
On
his return to India the applicant initially lived with relatives and visited
his home at night. However, on July 7, 2007, the extremists visited his home
while he was there. The applicant said that he escaped through the back of the
house. After consulting with his family he decided that India was not safe for him. He secured a six-month contract on a ship and a United States
(US) visa and sailed to the US in October 2007. On May 14, 2008, when the ship
docked in Vancouver, the applicant disembarked and entered Canada.
[7]
On
arrival in Canada the applicant filed a claim for refugee protection. His
refugee hearing was held in March 2010. In a decision dated July 27, 2010, the
Refugee Protection Division (RPD) denied the applicant’s refugee claim. The
determinative issues were credibility and Internal Flight Alternative (IFA).
The RPD identified various concerns that pointed to a lack of subjective fear
of persecution and found that, on a balance of probabilities, the applicant had
been country shopping. In addition, the RPD found that an IFA existed for the
applicant in Kolkata, Delhi or Bangalore, where there were large Muslim
populations. The RPD concluded that the applicant did not have a well founded
fear of persecution and was not a person in need of protection. Leave to
challenge the RPD’s decision was denied.
[8]
On
June 4, 2011 the applicant filed a PRRA application. In his PRRA the applicant
explained that he feared persecution in India and irreparable harm should he
return. He highlighted the continuing risk to his life in India, the lack of an IFA, the collusion between the police and religious extremist groups
and referred to documentary sources on religious extremism and increasing
violence against religious minorities. He also provided a letter from his
father indicating that extremist groups had recently been searching for him and
that his family was victim of a break-in by religious extremists on April 15,
2011.
Decision Under Review
[9]
The
Officer noted the statutory requirement for new evidence mandated under
subsection 113(a) of the IRPA, and the explanation of this assessment
provided in Raza v Canada (Minister of Citizenship and Immigration),
2006 FC 1385, [2006] FCJ No 1779. Turning to the applicant’s PRRA submissions
the Officer found that the applicant had merely restated the information
provided to the RPD. Specifically, the Officer stated that:
This information is not significantly different than
the information previously provided and I do not find the submission provides
new evidence regarding the material elements of the applicant’s personal circumstances.
[10]
The
Officer noted the applicant’s father’s letter and its contents. After
considering this letter the Officer found that the information contained
therein was unverifiable and that its probative value was minimal. The Officer
explained that:
The information does not come from a disinterested
party to the outcome of the applicant’s case and the information is not
corroborated by independent evidence. I do not find this letter provides
significantly different information from that considered by the RPD but rather
is an update on the risk identified by the applicant. I do not find this letter
rebuts the findings of the RPD including the IFA finding.
[11]
The
Officer then turned to the articles submitted by the applicant, noting that he
had read and considered them all. The Officer found that they reported on a
number of topics, including “country conditions in India, reducing police
torture against Muslims, the promotion of impunity in India and the façade of human rights in India”. The Officer found that the articles were general in
nature and did not address the material elements of the applicant’s personal
circumstances. He concluded that they did not rebut the RPD’s findings and did
not provide evidence of new risk developments that were personal to the
applicant and that had arisen since the RPD’s decision.
[12]
The
Officer also addressed the applicant’s submission that there was no IFA. With
regards to these submissions the Officer stated that:
He [the applicant] quoted from various sources; however,
he did not provide the documentation that he was quoting from and I can assign
no weight to the sections quoted.
[13]
After
reviewing the RPD’s finding on IFA, the Officer found that none of the
applicant’s PRRA submissions rebutted this finding. Nevertheless, the Officer
reviewed country conditions to determine if there had been a significant change
in country conditions. Based on the human rights situation stated in the 2010
US Department of State Human Rights Report for India the Officer found that
there had not been a significant change in country conditions since the RPD’s
decision.
[14]
The
Officer concluded that the applicant did not face more than a mere possibility
of persecution nor that it was more likely than not that he would be subjected
to torture or was at risk to life or of cruel and unusual treatment of
punishment upon return to India. The applicant’s PRRA application was
therefore rejected.
Issues and
Standard of Review
[15]
The
applicant raises three issues; first, whether the Officer erred in discounting
the letter from the applicant’s father on the basis that it was “unverifiable”
and came from an interested party; whether the Officer erred in the assessment
of country condition reports on the basis that the risks they described were not
personalized to the applicant, and finally; whether the Officer erred in not
according a hearing to the applicant.
[16]
It
is well established that, barring an error in procedural fairness, the standard
of review of a PRRA officer’s decision is reasonableness. In consequence, it
is not up to the reviewing court to substitute its own view of a preferable
outcome or to re-weigh the evidence.
Discussion
[17]
The
respondent correctly notes that giving evidence little weight due to its
provenance is an option which is open to the decision maker. The jurisprudence
is clear that evidence should not be disbelieved simply because it comes from
an interested party: R v Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, para
11. The Court has expressed this principle on several occasions; all neatly
summarized by Justice de Montigny in Cruz Ugalde v Canada (Public Safety and Emergency Preparedness), 2011 FC 458, paras 24-25. Underlying these
cases is the reality that certain types of evidence, by its very nature, will
usually be known or testified to by persons with close personal connections to
the applicant. This applies with particular force in cases of refugee
protection, where the risk must be personal to the claimant. The Officer would
thus have erred if this evidence had been wholly discounted on this basis
alone.
[18]
The
Officer also noted that the letter was not corroborated by independent
evidence. In some respects, the Officer is right. There is no evidence that
corroborates the precise events of April 5 when the applicant’s parents’ home
was invaded by Hindu extremists. That is correct, but that aspect of the
letter describes increasing aggressive conduct by Hindu extremists.
[19]
These
errors in the treatment of the letter from the father must be situated in the
context of the RPD decision and the PRRA process. The RPD found that the
applicant had a viable IFA in other areas of India. The letter does not
displace or address this finding.
[20]
At
the outset, I note that a positive IFA finding is usually determinative of the
claim: Rosas Maldonado v Canada (Minister of Citizenship and Immigration),
2011 FC 1183, para 6. As explained by Justice Snider in Sarker v Canada (Minister of Citizenship and Immigration), 2005 FC 353, para 7:
Whether the Applicant is correct in this assertion
is not, in my view, important or necessary for this application. The
question of the existence of an IFA is a separate component of the Board's
analysis that can stand alone (Tharmaratnam v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 92 (F.C.T.D.)). Put simply,
where an IFA is found, a claimant is not a refugee or a person in need of
protection (Zalzali v. Canada (Minister of Employment and Immigration),
[1991] 3 F.C. 605 (F.C.A.), Rasaratnam v. Canada (Minister of Employment and
Immigration), [1992] 1 F.C. 706 (F.C.A.)). […]
[Emphasis added]
[21]
In
sum, notwithstanding the errors, they do not affect the outcome of the decision
or call into question the reasonableness of the IFA finding. The letter, even
if accepted and given great weight, has no bearing on the IFA finding. In sum,
although the Officer erred in his treatment of the evidence, the error was
immaterial to the outcome of the case.
[22]
The
applicant also contends that the Officer did not have regard to all of the evidence
before him, rendering the decision unreasonable. To be specific, it is said
that the Officer did consider the country condition reports. The applicant
submitted a report: “The Promotion of Impunity in India: How Oppressive
National Political Agendas Interact with the Global War on Terror” by Satchit
Balsari, research associate at the Harvard School of Public Health (the
“Balsari report”).
[23]
The
Officer dismissed this report stating:
[The Applicant] quoted from various sources;
however, he did not provide the documentation that he was quoting from and I
can assign to weight to the sections quoted.
[24]
The
Officer continued, noting:
… the applicant submitted articles from various
sources… the articles report on various topics including country conditions in India, reducing police torture against Muslims, the promotion of impunity in India, and the façade of human rights in India.
[25]
The
applicant has established that the Officer confused those aspects of the
reports that were in fact “quoted” by the applicant as opposed to those that
were relied on. This error is, in my view, equally immaterial. What is
critical is whether the Officer fairly considered and directed his mind to
their content.
[26]
The
crux of the applicant’s argument is that the Officer failed to examine the
reports, because if he had, he would not have concluded that the assertion in
the father’s letter about a rise in Hindu extremism was uncorroborated.
[27]
The
issue of Hindu extremism was not new; indeed, it was the very basis of the
claim and was the very risk considered by the RPD. Nor did anything in that
report address the viability of an IFA. To be specific, the report in question
addresses violence in the state of Gujarat in 2002. The report itself was
written in 2004. It is not new evidence that requires a hearing under section
113 of the IRPA. It is worth noting that the report, at page 20,
sustains the reasonableness of the finding of the IFA:
Meanwhile, Indian minorities, like those persecuted
in Germany, have started emigrating. The vastness of Indian territory allows
them to seek refuge within India’s borders. Ghettoization of Muslims has
been observed across the country, with escalations in trend following communal
violence. There are several regions in Gujarat that the VHP has declared
“cleansed” – free of Muslims. Unprecedented migrations were seen in the city
and suburbs of Bombay following the riots of 1993. These cloistered societies,
however, foster insecurity, and the perceived lack of justice drives them to
violent action. The area of Mumbra near Bombay, is not 80% Muslim, where “talk
of nationalism, democracy, secularism…has come to be seen as anti-Islam.”
[Emphasis added]
[28]
This
leaves the question whether the Officer, given his treatment of the father’s
letter as “unverifiable”, erred in not providing the applicant a hearing. Had
the letter been directed to the viability of an IFA this argument might have
succeeded. As it was directed to a known risk, already assessed, and for which
refuge was available, it added nothing to the analysis of the risk before the
Officer. The finding of the IFA was not called into question by this evidence.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review be
and is hereby dismissed. There is no question for certification.
"Donald J.
Rennie"
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