Date: 20090618
Dockand: IMM-5140-08
Citation:
2009 FC 644
Ottawa, Ontario, June 18, 2009
PRESENT:
The Honourable Mr.
Justice Shore
BANDWEEN:
CHINDER
SINGH
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
When
a claim has no core, or rather, when the core of a claim, in and of itself,
dissolves bit by bit, there is no longer a basis on which the first level
decision maker could grant refugee status:
[1] Just as a specialized
tribunal must not examine facts out of context, simply eager to point out
contradictions with "microscopic zeal"; a party at a judicial review
hearing must not dissect each sentence in the reasons of a decision of a
specialized tribunal. Both are exercises in futility.
(Borate v. Canada (Minister of Citizenship and Immigration), 2005 FC 679, 139 A.C.W.S.
(3d) 734).
[2]
[1] A decision of a
first-instance decision-maker must not be dissected piece by piece, but should
rather be examined in its entirandy. If, as a whole, it is coherent, that
decision must stand.
(Nijjar v. Canada (Minister of Citizenship and Immigration), 2006 FCJ 1058, 165 A.C.W.S.
(3d) 147).
II. Legal proceeding
[3]
This an
application for judicial review of a decision by the Refugee Protection Division
(RPD) of the Immigration and Refugee Board (Board) dated October 23, 2008, determining
that the applicant is neither a Convention refugee nor a person in need of
protection under sections 96 and 97(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c.27 (IRPA).
III. Preliminary remark
[4]
The
applicant did not file a supplementary memorandum and thus had to limit himself
to the arguments in the memorandum dated January 8, 2009, and his reply
memorandum dated February 16, 2009.
IV. Facts
[5]
The applicant,
Mr. Chinder Singh, who is 63 years old, is a Sikh from the Punjab and a citizen
of India.
[6]
Mr Chinder
Singh bases his refugee claim on the fact that the police arrested him in
December 2004, accusing him of financing the activities of militant terrorists
by sending money from Great Britian where he lived from August 1991 to May
2004.
[7]
On August
24, 1991, Mr. Chinder Singh, who was travelling with a passport issued in his
name by the authoritites in his country in Jalandhar on April 2, 1991, arrived
in Great Britain as a visitor.
[8]
After he
arrived in Great Britain, Mr. Chinder Singh applied for refugee status, availed
himself of a number of remedies, worked as a cook and lived there until May 19,
2004, when he was sent back to India.
[9]
During his
stay in Great
Britain, Mr. Chinder
Singh, who is not a citizen of Great
Britain or of
any European country, obtained a voter registration card for the European
Parliament and voted.
[10]
For his return
to India, on May 19, 2004, Mr. Chinder Singh travelled with a travel document
issued by Indian authorities in Great Britain, which was seized by the Indian authorities upon his
arrival in New
Delhi, on May 20,
2004, because the passport had expired.
[11]
Despite
the fact that Mr. Chinder Singh alleged that the police looked for him during
his stay in Great Britain, the authorities did not bother him when he arrived in
India because his family had paid a
bribe.
[12]
Despite
the fact that nothing happened bandween his return to India in May 2004 and his arrest in December
2004, the local police, who had accused him of sending money to terrorists when
he lived in Great
Britain,
arrested him, detained him and beat him. Mr. Chinder Singh has no proof that he
was detained. He was released on payment of a bribe and with the assistance of an
influential person, who turned out to be a municipal councillor.
[13]
Mr. Chinder
Singh was not brought before a court and no charges were laid against him (Transcript
(T) of September 19, 2006, Applicant’s Record (AR) at p. 636).
[14]
In his Personal
Information Form (PIF), Mr. Chinder Singh states that after his release, i.e.
from January 8, 2005, to January 24, 2005, he was treated for injuries that the
police inflicted on him. The Indian medical certificate states the following:
. . . Patient was suffering from
complaints like multiple injuries, bruises, swelling, and pain in all over his
body. The patient was thoroughly examined and given treatment of I/V Fluids,
Antibiotics, Anti-inflammatory and local dressing.
(PIF, question 31: Tribunal Record (TR) at p. 33 and AR at
p. 27; List of exhibits, TR at p. 1 and AR at p. 52; Exhibit P-3: TR at p. 1 and
AR at p. 56).
[15]
On his
arrival in Canada, Mr. Chinder Singh answered
in the negative about questions concerning his health and the fact that he consulted
a doctor, justifying his response by the fact that he did not have any problems
at that time (T of September 19, 2006: TR at p. 643).
[16]
However,
the medical certificate obtained in 2005 in Canada, from Dr. Ouimand, described [translation]
“diabetes, chest pain, (still under investigation for probable angina),
arterial hypertension and and high cholesterol” as well as mild to severe
arthritis of the knees. At the hearing, Mr. Chinder Singh added that he had
tuberculosis (List of Exhibits, TR at p. 1 and AR, at p. 52; Exhibit P-4: TR at
p. 1 and AR at p. 7).
[17]
The latter
diagnosis was confirmed by a physical examination and an X-ray, and the doctor
suggested that he should see a specialist to confirm Mr. Chinder Singh’s
assertion that the knee problem was caused by the violence he suffered in India (Exhibit P-4: TR at p. 1 and AR at p. 7).
[18]
Following Dr.
Ouimand’s recommendation, there is no specialist’s report on file to confirm
that Mr. Chinder Singh’s knee pain was caused by torture. Moreover, Dr. Pellandier’s
report dated April 4, 2006, mentions osteoarthritis of the knees (T of
September19, 2006: TR at p. 656; Reasons for Decision of the RPD from 2007 at
p. 5: TR at p. 108 and AR at p. 44).
[19]
Mr. Chinder
Singh arrived in Canada, in Vancouver, on April 8, 2005, and
claimed refugee status in Montréal on April 13, 2005.
[20]
On April
29, 2005, at his interview with an immigration officer, Mr. Chinder Singh
astated that he had already seen a doctor (“Immigration Officer Interview Notes”
at p. 1: TR at p. 77 and Exhibit B to the Affidavit of Brigitte Révah).
[21]
In his
declaration of April 29, 2005, in his PIF and during his testimony, Mr. Chinder
Singh confirmed that he had never been charged with any crime.
[22]
During the
same interview, Mr. Chinder Singh also stated that he had never been
convicted of any crime and that there was no outstanding arrest warrant against
him (“Immigration Officer Interview Notes”, questions 34 and 36: TR at p.
79 and Exhibit B to the Affidavit of Brigitte Révah).
[23]
At the
hearing in 2006, and particularly at the one in 2008, Mr. Chinder Singh was confronted
about the availability of an internal flight alternative (T of September 19,
2006: TR at pp. 632, 660 to 663; T of January 15, 2008: TR at pp. 708-724).
[24]
On
February 1, 2007,the RPD denied Mr. Chinder Singh’s refugee claim on the ground
that he was not credible.
[25]
On October
5, 2007, Mr. Justice Sean Harrington granted the application for judicial
review and referred the case back to the RPD with the following instructions:
[18] Although
I am granting the application for judicial review, I strongly urge Mr. Singh to
come up with copy of the United Kingdom decision
rejecting his claim.
(Singh v. Canada (Minister of Citizenship and Immigration),
2007 FC 1034, 161 A.C.W.S. (3d) 134; Reasons for Decision of the Federal Court at
para. 18; TR at p. 21 and AR at p. 50).
[26]
At the end
of the hearing on January 15, 2008, the Board provided Mr. Chinder Singh with another
opportunity to obtain documents regarding his stay in Great Britain and gave him until February 15, 2008, to
do so (T of January 15, 2008: TR at pp. 725-729).
[27]
Although
the RPD record contains letters addressed to Great Britain asking for a copy of
the decision, the decision is not in the tribunal record (Letter dated January
16, 2008: TR at pp. 49 and 50 and Exhibit F to the Affidavit of Brigitte Révah;
Letter dated February 1, 2008, and attached exhibit: TR at pp. 47 and 48 and Exhibit
G to the Affidavit of Brigitte Révah; Letter dated April 8, 2008: TR at
p. 45 and Exhibit H to the Affidavit of Brigitte Révah; Reasons for Decision of
the RPD from 2008 at paras. 10 and 11: TR at p. 5 and AR at p. 9).
[28]
On October
23, 2008, based on documentary evidence stating that Sikhs are able to relocate
within India , the RPD refused the refugee
application mainly on the ground that Mr. Chinder Singh
did not fit the profile of a dangerous militant and,
therefore, an internal flight alternative was available to him.
V. Issue
[29]
Is the
inherent logic of the Board’s decision tenable (that is, the reasonableness of
the Board’s decision)?
VI. Analysis
[30]
Mr. Chinder
Singh alleges that the Board had no evidence that there was no outstanding warrant
against him and that, in any event, the police can arrest without a warrant.
[31]
Second, Mr.
Chinder Singh submits that the Board erred by finding that he did not fit the
profile of a dangerous militant and by disregarding the documentary evidence
indicating that he had fled abroad.
[32]
Mr. Chinder
Singh also argues that the Board disregarded the most relevant evidence about the
availability of an internal flight alternative for Sikhs.
[33]
As a
supplementary argument, Mr. Chinder Singh submits that the Board did not give
adequate reasons for its decision.
[34]
Last, Mr. Chinder
Singh contends that the respondent is attempting to [translation] “improve” the decision by
replacing in context excerpts from the evidence that the respondent cited both
before the RPD and in his principal memorandum.
Arrest warrant
[35]
Mr. Chinder
Singh stated that he had not been charged with any crime, had not been associated
with a terrorist group, had not been convicted of any crime and that no arrest
warrant had been issued against him (“Immigration Officer Interview Notes”,
questions 34 and 36: TR at p. 79 and Exhibit B to the affidavit of Brigitte
Révah).
[36]
The
documentary evidence shows that the police can arrest a person without a
warrant:
Police Treatment of Relocated Sikhs
Article
48 of the Indian Code of Criminal Procedure reads as follows: “A police officer
may, for the purpose of arresting without warrant any person whom he is
authorized to arrest, pursue such person into any place in India” (India 25 Jan.
1974). The Central Reserve Police Force, a paramilitary force of India (AHRC 25 Jan.
2005), may be summoned to any state of India to help “maintain law and order
and contain insurgency,” as well as “various police duties,” such as crowd
control and protection of officials (India n.d.b). No information could be
found on cooperation bandween Indian state police forces to apprehend wanted
individuals among the sources consulted by the Research Directorate.
This
power of police officers notwithstanding, a professor of Asian studies
commented that in pursuing a wanted individual, it is unlikely that the central
Indian authorities will attempt to locate the person in another state, and that
this is the case with Sikhs (14 Nov.
2005). This professor added that such pursuits have more to do with the profile
of the individual than with the faith the individual subscribes to (ibid.).
The human rights activist referred to above informed the Research Directorate
that he was not aware of any police sweeps or searches of Sikhs in India on the
basis of their religion (24 May 2005).
This human rights activist also
noted that “persons without sufficient financial means and social clout would
mainly be the victims [of suspicions]” (Human Rights Activist 24 May 2005).
Similarly, geographer Craig Jeffrey concluded in his study on nandworks of the
citizenry and the police in India that those persons with relatives in the
police force are able to “perpanduat[e] their economic and social advantage”
(Jeffrey 2000, 1013). (Emphasis added.)
(IND100771.EFX (French version): TR at pp. 15 and 16 (excerpts)
and 68 (Indiax) and AR at p. 80; IND100771.EX (English version): TR at pp. 15 and
16 (excerpts) and 68 (Indiax) and AR at pp. 87 and 98).
[37]
Based, inter
alia, on the fact that there was no outstanding arrest warrant against Mr. Chinder
Singh, the Board determined that he was not a dangerous militant (RPD’s 2008 reasons
for decision at para. 15).
[38]
Mr. Chinder
Singh alleges that the Board had no evidence that there was no outstanding
arrest warrant against him and that, in any event, the police may arrest
without a warrant.
[39]
Contrary
to what Mr. Chinder Singh argues, it is clear that there was evidence that
there were no outstanding warrants or criminal charges against him because that
is what he had stated three times in addition to stating that he had not been
associated with a terrorist group (“Immigration Officer Interview Notes”, questions 34 and 36:
TR at p. 79 and Exhibit B to the Affidavit of Brigitte Révah; Schedule 1 –
Background Information, questions 4A. and 4H.: TR at p. 88 and Exhibit A to the
Affidavit of Brigitte Révah ).
[40]
Since Mr. Chinder
Singh stated that there was no outstanding warrant against him, the Response to
the Request for Information IND100771 makes it inconceivable that the police
would attempt to find him outside of the Punjab especially since there was no
evidence that he would be considered a dangerous militant (IND100771.EFX (French
version): 14.4 of the Package dated May 30, 2007: TR at pp. 15 and 16 (excerpts)
and 68 (Indiax) and AR at p. 80; IND100771.EX (English version): 2.4 of the
Package dated May 30, 2007: TR at pp. 15 and 16 (excerpts) and 68 (Indiax) and AR
at pp. 87 and 98).
[41]
Therefore,
this first argument does not warrant the intervention of this Court.
Applicant’s profile
[42]
Mr. Chinder
Singh’s second argument is that the Board erred by finding that he did not fit
the profile of a dangerous militant and by disregarding the documentary
evidence that he had fled abroad.
[43]
There is
no evidence in the record that Mr. Chinder Singh was a militant, let alone a
dangerous militant. Mr. Chinder Singh submits that he was suspected of giving
money to a militant group while living in Great Britain and adds that he had
not been associated with militant groups and that there was no outstanding
charge or warrant against him.
[44]
It must also
be noted that Mr. Chinder Singh, whose passport had expired, returned to India
on May 20, 2004, by travelling with a travel document issued by the Indian
authorities in Great Britain on May 7, 2004, which was seized on his
arrival in India, and that nothing happened to him although the documentary
evidence shows that militants who were returned to India at roughly the same
time as Mr. Chinder Singh had encountered difficulties at the port of entry (PIF,
questions 13 and 31: TR at pp. 27 and 32 and AR at pp. 21 and 26; Notice of
Seizure: TR at p. 39 and AR at p. 32; IND100662.E: TR at p. 68 (Indiax) and AR at
pp. 70-77).
[45]
In fact,
the documentary evidence reveals the following:
Deportees
Amnesty International
reported in January 2003 that
Some refugees from Punjab - deported to India from western
countries in recent years on the ground that after the end of the militancy
period they would no more be at risk in Punjab - have been detained and charged
under the lapsed [Terrorism and Disruptive Activities] Act on their return (AI 20 Jan. 2003).
. . .
An official at the Canada Border Services Agency (CBSA) wrote in
13 December 2005 correspondence to the Research Directorate that
[a]t no point during the removal process are foreign authorities
informed that an individual has made a refugee claim in Canada. To support a request for a
Travel Document from a foreign embassy or consulate, a removal order is
provided as it confirms the CBSA's legislative requirement to seek the
cooperation of a foreign government in issuing a Travel Document. A removal
order contains no information regarding an application for protection.
A review of information on
removals on the Websites of the United Kingdom Immigration and Nationality
Directorate and the Office of Detention and Removal of the United States
Immigration and Customs Enforcement also did not indicate whether the
authorities of these countries inform Indian authorities about the details of
deportees to India (UK Nov. 2005; US n.d.a), although, the United States'
Website on Operation Predator, an operation "to target those who exploit
children," states that "[Immigration and Customs Enforcement] is
partnering with foreign governments" in the removal of "sexual
predators" from the United States (ibid. n.d.b.).
. . .
However, a
specialist in Indian affairs is of the opinion that if a returnee to India had
a "high profile," and the practice was to detain such people, then
there would be a "normal likelihood" that the police would detain the
returnee, and the state police rather than the federal police would conduct this
detention (13 Oct. 2005). A senior director of an Indian affiliate of an
international human rights organization agreed and explained that "when
deported to India, these Indian citizens are generally detained by the
immigration authorities and handed over to the local police who
arrest them for violation of travel laws of India despite having valid
passports" (VFA 23 Oct. 2005). These sources were unaware of any cases
particularly involving refugee claimants.
. . .
Suspected of Applying for Refugee Status Abroad
According to a UNHCR legal
officer,
Indian nationals who returned after having their asylum
applications rejected abroad did not have problems if they returned with valid
travel documents, and, if their departure had taken place with valid travel
documents. Those who had not complied with Indian laws on departure and return
to India
might be prosecuted. Refused Indian asylum-seekers who returned to
India with temporary travel
documents could enter without any problems as such, but if they arrived after
their passport had expired then they would be questioned about the reasons for
this. These arrivals were questioned briefly and then were able to leave the
airport freely
(3 Nov. 2005).
Similarly, an associate
professor of social and cultural anthropology specializing in Indian affairs (3
Nov. 2005) and an India-based senior director of an international human rights
organization (VFA 23 Oct. 2005)agreed that those suspected of having requested
refugee status abroad are often treated with suspicion and likely to be
"harassed.". In contrast, the general secretary of an India-based
human rights organization commented that "[g]iven the Constitutional
provisions of the country there appears to be no possibility of any harassment against
such persons" (PUCL 30 Oct. 2005). Due to a lack of resources, the South
Asian Human Rights Documentation Centre was unable to comment on the subject of
this Response. (Emphasis added.)
(INF100662.E: TR at p. 68 (Indiax) and AR at pp. 70-77).
[46]
The RPD
did not reach an unreasonable conclusion by ruling that Mr. Chinder Singh did
not fit the profile of a dangerous militant.
Documentary evidence
[47]
Mr. Chinder
Singh also argues that the Board disregarded the most relevant evidence about
internal flight alternatives for Sikhs.
[48]
Comparing
the reasons for decision with all the documentary evidence that the Board
relied on to find that Mr. Chinder Singh had an internal flight alternative,
that is, the Response to the Request for Information IND100771.EX and the
report of the “Home Office, Country of Origin Information Report INDIA ,
11 May 2007”, evidence cited by counsel for the applicant at the RPD hearing (IND100771.EX:
14.4 of the Package dated May 30, 2007, TR at pp. 15 and 16 (excerpts) and 68 (Indiax)
and AR at pp. 77-86 and 95-104; “Home Office, Country of Origin Information
Report, May 11, 2007”: 2.4 of the Package dated May 30, 2007 (updated): TR at
p. 16 (excerpts)
and p. 68 and (Indiax): Exhibit I to the Affidavit of
Brigitte Révah; T January 15, 2008: TR at pp. 719 and 720; Ghotra v. Canada (Minister of Citizenship and Immigration), 2008 FC 498, [2008] F.C.J. No.
638 (QL), Justice François Lemieux).
[49]
By
replacing the excerpt cited by Mr. Chinder Singh in its context, this is what
can be found in the document IND100771.EX:
Feasibility
of Safe Relocation within India
The
Indian Constitution allows for freedom of movement of citizens, which,
according to Country Reports 2004, was generally respected in practice
in 2004 (Country Reports 2004 25 Feb. 2003, Sec. 2d). According to the
human rights activist referred to above, “[t]heoretically, Sikhs can, like
others, move and relocate themselves in any part of India that does not come
under excluded or restricted zones like some parts in the northeast of India”. (Human Rights
Activist 24 May 2005). This information was corroborated by the UK Immigration
and Nationality Directorate, which stated in September 2005 that “there exists
the option for those who encounter difficulties to seek national protection or
to relocate internally …” (Art. 3.8.8). However, the same report also concluded
that “for single women who do not relocate as part of a family unit relocation
may be difficult and unduly harsh” (UK Sept. 2005, Art. 3.8.6). In addition, “[for Sikhs] fearing
ill-treatment/persecution by the state authorities relocation to a different
area of the country to escape this threat is not feasible” (ibid., Art. 3.7.8).
Similarly, ENSAAF, a California-based non-profit organization that “fights
impunity for human rights abuses in India”, stated in a letter entitled “No Safe Haven: The Myth of
the Internal Flight Alternative in India for Returned Sikh Asylum Seekers,” written on 24 January
2005, that
Sikh survivors of human rights abuse cannot live safely or
securely in any part of India … [due to] … government protection for
perpetrators of human rights abuses in Punjab and India; the perception of a
revival of militancy in Punjab; the continuation of abuses perpetrated by
security forces in India; and the ability and willingness of security and
intelligence agencies to track down Sikhs who have relocated to other parts of
India, outside of Punjab (1).
This letter can be accessed at
<http://www.ensaaf.org/ifa-letter-2005-01.pdf>, although it should be
noted that most of the information contained in the letter is based on
incidents that occurred in the 1990s (ENSAAF 24 Jan. 2005).
In
contrast, the UK Immigration and Nationality Directorate stated in September
2005 that “… where the fear is of local police and the individual is not of
interest to the central [Indian] authorities internal relocation is feasible
and not unduly harsh" (UK Sept. 2005, Art. 3.7.8). (Emphasis
added.)
(IND100771.EX: 14.4 of the Package dated May 30,
2007: TR at pp. 15 and 16 (excerpts) and 68 (Indiax) and AR at pp. 79 and 80 and
97).
[50]
The “Home
Office” report is to the same effect::
19.116 The
Danish Immigration Service consulted various individuals, authorities and
organisations regarding the security situation during their fact-finding
mission to Punjab in March and
April 2000. According to the UNHCR in Delhi, the security situation in Punjab
is now under control, but as the UNHCR does not have a presence in Punjab they could
not comment on the situation in dandail. Three foreign diplomatic missions in India
agreed that the situation in Punjab had considerably improved and that the
conflict bandween various groups had calmed down. Acts of violence in Punjab
were becoming less common, and were now at a low level. Two of the missions
reported that incidents do occasionally occur, such as explosions caused by
bombs on buses and trains, but that such incidents occur in the rest of India, and not
exclusively to Punjab. Officials of the Committee for Co-ordination on
Disappearances in Punjab (CCDP) considered that Punjab was now
peaceful and that there were no problems with militant groups and no political
problems either. A Foreign Embassy consultant, reported that several people
who had previously been militants and who had served their sentences for
terrorist activities now lived a normal life in Punjab. [37] (p19)
.
. .
19.124 There
were no checks on a newcomer to any part of India arriving from another part of
India, even if the
person is a Punjabi Sikh. Local police forces have neither the resources nor
the language abilities to perform background checks on people arriving from
other parts of India. There is no system of
registration of citizens, and often people have no identity cards, which in any
event can be easily forged. “Sikhs relocating from Punjab state to other parts
of India do not have
to register with the police in their area of relocation, unless they are on
parole…” (Immigration and Refugee Board of Canada, 18 January
2006) [4c]
19.125 The
Danish Immigration Service fact-finding mission to Punjab, dated March to April
2000, noted “The Director of the South Asia Human Rights Documentation
Centre believed that a high-profile person would not be able to move elsewhere
in India without
being traced, but that this would be possible for low-profile people.” Sources
from foreign diplomatic missions in India considered that there
was no reason to believe that someone who has or has had problems in Punjab
would not be able to reside elsewhere in India. Reference
was made to the fact that the authorities in Delhi are not informed about those
wanted in Punjab. [37] (p53)
19.126 The
US Citizenship
and Immigration Services, in a response to a query (updated on 22 September
2003), noted that:
“Observers generally
agree that Punjab police will try to catch a wanted suspect no matter where he
has relocated in India. Several say,
however, that the list of wanted militants has been winnowed [whittled] down to
‘high-profile’ individuals. By contrast, other Punjab experts have said in
recent years that any Sikh who has been implicated in political militancy would
be at risk anywhere in India. Beyond this dispute over who is
actually at risk, there is little doubt that Punjab police will pursue a
wanted suspect. ‘Punjab police and other police and intelligence agencies
in India do pursue those militants, wherever they are located, who figure in
their lists of those who were engaged in separatist political activities and
belonged to armed opposition groups in the past,’ a prominent Indian human
rights lawyer said in an e-mail message to the Resource Information Center
(RIC) (Indian human rights lawyer 4 May 2003).” [86] (p1)
19.127 The
Immigraton(sic) and Refugee Board (IRB) of Canada indicated in a response paper
dated 18 January 2006 that “A professor of Asian studies, commented that in
pursuing a wanted individual, it is unlikely that the central Indian
authorities will attempt to locate the person in another state, and this is the
case with Sikhs…such pursuits have more to do with the profile of the
individual than with the faith the individual subscribes to.” A human rights
activist consulted said he was not aware of any police sweeps or searches of
Sikhs in India on the basis
of their religion. [4c] (La Cour
souligne).
(“Home Office, Country of Origin Information Report INDIA, 11 May 2007”: TR at pp. 16 (excerpts) and
68 (Indiax) and Exhibit I to the Affidavit of Brigitte Révah).
[51]
Considering
that Mr. Chinder Singh stated that there was no outstanding charge or arrest
warrant against him and that he had never been associated with terrorist groups
and that the Board found he did not fit the profile of a dangerous militant,
this argument does not require the intervention of this Court.
Reasons for decision
[52]
In his
reply memorandum, relying on a passage from a recent decision, Canada
(Minister of Citizenship and Immigration) v. Garcia, 2009 FC 91, [2009] F.C.J.
No. 118 (QL), Mr. Chinder Singh submits that the Board’s reasons for
its decision were inadequate.
[53]
The
passage from the Garcia decision, above, cited by Mr. Chinder Singh, must
be read in conjunction with the rest of the decisions, in particular, the
following paragraphs:
[13] In the
case at bar, the applicant asserts that even without subjecting the RPD’s
reasons to a probing examination, they do not make it possible to understand
the basis of its decision, or to follow the reasoning leading to its
determinations, and for that reason alone, this Court’s intervention is
warranted. I agree.
[14] It is
impossible to determine whether the decision is reasonable if the underlying
reasons are not sufficiently clear and detailed. It is not enough to quote the
law; reference must be made to the relevant evidence. In Via Rail Canada
Inc. v. National Transportation Agency, [2001] 2 F.C. 25, the Court of
Appeal pointed out the following:
[17]The duty to provide
reasons is a salutary one. Reasons serve a number of beneficial purposes
including that of focussing the decision maker on the relevant factors and
evidence. In the words of the Supreme Court of Canada:
Reasons, it has been argued,
foster better decision making by ensuring that issues and reasoning are well
articulated and, therefore, more carefully thought out. The process of writing
reasons for decision by itself may be a guarantee of a better decision [Baker
v. Canada (Minister of Citizenship and
Immigration), [1999]
2 S.C.R. 817, at p. 845].
[18]Reasons
also provide the parties with the assurance that their representations have
been considered.
[19]In
addition, reasons allow the parties to effectuate any right of appeal or
judicial review that they might have. They provide a basis for an assessment of
possible grounds for appeal or review. They allow the appellate or reviewing
body to determine whether the decision maker erred and thereby render him or
her accountable to that body. This is particularly important when the decision
is subject to a deferential standard of review.
[18]Reasons
also provide the parties with the assurance that their representations have
been considered.
[19] In
addition, reasons allow the parties to effectuate any right of appeal or
judicial review that they might have. They provide a basis for an assessment of
possible grounds for appeal or review. They allow the appellate or reviewing
body to determine whether the decision maker erred and thereby render him or
her accountable to that body. This is particularly important when the decision
is subject to a deferential standard of review.
. . .
[21] The duty
to give reasons is only fulfilled if the reasons provided are adequate. What
constitutes adequate reasons is a matter to be determined in light of the
particular circumstances of each case. However, as a general rule, adequate
reasons are those that serve the functions for which the duty to provide them
was imposed. In the words of my learned colleague Evans J.A., "[a]ny
attempt to formulate a standard of adequacy that must be met before a tribunal
can be said to have discharged its duty to give reasons must ultimately reflect
the purposes served by a duty to give reasons" [Administrative Law:
Cases, Text and Materials (4th ed.), (Toronto: Emond Montgomery, 1995), at
p. 507].
[22] The obligation to provide
adequate reasons is not satisfied by merely reciting the submissions and
evidence of the parties and stating a conclusion…Rather, the decision maker
must set out its findings of fact and the principal evidence upon which those
findings were based….The reasons must address the major points in issue. The
reasoning process followed by the decision maker must be set out and must reflect
consideration of the main relevant factors…
[15] Moreover,
the Supreme Court of Canada clearly stated in Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190, that the reviewing court, in inquiring into the qualities
that make a decision reasonable, must be concerned with the existence of
justification, transparency and intelligibility within the decision-making
process. If the reasons are not adequate, the Court cannot assess the decision.
Thus, there must be adequate reasons for the Court to be able to analyze the
reasonableness of the decision.
[16] As Mr.
Justice Luc Martineau wrote at paragraph 5 of Minister of Citizenship and
Immigration v. Koriagin, 2003 FC 1210, [2003] F.C.J. No. 1534
(QL):
To fulfil
the obligation under paragraph 69.1(11)(b) of the Act, the reasons must
be sufficiently clear, precise and intelligible to allow the Minister or the
person making the claim to understand the grounds on which the decision is
based and, where applicable should the decision be appealed, to allow the Court
to satisfy itself that the Refugee Division exercised its jurisdiction in
accordance with the Act.
[17] In this
case, the RPD, in making its determinations, did not refer to any element of
the voluminous documentary evidence. Despite the fact that it identified the
parties’ arguments and the correct principles of law, the Court is unable to
follow its reasoning. It is obvious that the RPD decided that the Minister of
Public Safety and Emergency Preparedness had not discharged his burden of
establishing that there are serious reasons for considering that the respondent
committed or was an accomplice in the commission of crimes against peace, war
crimes, crimes against humanity or acts contrary to the principles and purposes
of the United Nations. However, it did not explain, with regard to the
evidence, how it arrived at this determination. This is an error of law.
[54]
The
Board’s decision in this case meets the criteria set out in the above decision
since the reasons are sufficiently clear, precise and intelligiblefor the
parties to understand the underlying reasons for the decision.
Quotes from the documentary
evidence
[55]
Last, as
his final argument, Mr. Chinder Singh added in his reply memorandum that the
respondent was attempting to support the decision by citing passages from the
documentary evidence.
[56]
The
excerpts from the documentary evidence that the respondent cited are taken from
the documentary evidence cited by counsel for Mr. Chinder Singh at the RPD
hearing on which the Board relied to deny the refugee claim and the documentary
evidence cited Mr. Chinder Singh in his principal memorandum.
VII. Conclusion
[57]
For all
the foregoing reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial
review is dismissed.
2. No
serious question of general importance is certified.
“Michel M.J. Shore”
Certified
true translation
Mary
Jo Egan, LLB
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